RULE OF LAW



A few words may be said here about the concept of Rule of Law as other ideas
and concepts relating to Constitutionalism will be discussed in due course in the
following pages.
The doctrine of Rule of Law is ascribed to DICEY whose writing in 1885 on
the British Constitution included the following three distinct though kindered
ideas in Rule of Law:


(i) Absence of Arbitrary Power : No man is above law. No man is punishable
except for a distinct breach of law established in an ordinary
legal manner before ordinary courts. The government cannot punish
any one merely by its own fiat. Persons in authority in Britain do not
enjoy wide, arbitrary or discretionary powers. Dicey asserted that
wherever there is discretion there is room for arbitrariness.


(ii) Equality before Law : Every man, whatever his rank or condition, is subject
to the ordinary law and jurisdiction of the ordinary courts. No man is
above law.


(iii) Individual Liberties : The general principles of the British Constitution,
and especially the liberties of the individual, are judge-made, i.e.,
these are the result of judicial decisions determining the rights of private
persons in particular cases brought before the courts from time to
time.


DICEY asserted that the above-mentioned features existed in the British Constitution. The British Constitution is judge-made and the rights of the individual form part of, and pervade, the Constitution. The rights of the individuals are part of the Constitution because these are secured by the courts. The British Constitutional Law is not the source, but the consequence, of the rights of the individuals as defined by the courts.
DICEY was thinking of the common law freedoms, such as, personal liberty, freedom of speech, public meeting, etc. What DICEY was saying was that certain Constitutions proclaim rights but do not provide adequate means to enforce those rights. In the British Constitution, on the other hand, there is inseparable connection between the means of enforcing a right and the right to be enforced.
Referring in particular to the Habeas Corpus Act, DICEY said that it was “worth a hundred Constitutional articles guaranteeing individual liberty.” DICEY however accepted that there was rule of law in the U.S.A., because there the
rights declared in the Constitution could be enforced, and the Constitution gave legal security to the rights declared.
The third principle is peculiar to Britain. In many modern written Constitutions, the basic rights of the people are guaranteed in the Constitution itself. This is regarded as a better guarantee for these rights and even in Britain there exists at present strong opinion that basic rights should be guaranteed. DICEY’S thesis has been criticized by many from various angles but, the basic tenet expressed by him is that power is derived from, and is to be exercised according to law.

In substance, DICEY’S emphasis, on the whole, in his enunciation
of Rule of Law is on the absence of arbitrary power, and discretionary power,
equality before Law, and legal protection to certain basic human rights, and these
ideas remain relevant and significant in every democratic country even to-day.
It is also true that dictated by the needs of practical government, a number of
exceptions have been engrafted on these ideas in modern democratic countries,
e.g., there is a universal growth of broad discretionary powers of the administration;
administrative tribunals have grown; the institution of preventive detention
has become the normal feature in many democratic countries. Nevertheless,
the basic ideas are worth preserving and promoting.
The concept of Rule of Law has been discussed in several international forums.
The effort being made is to give it a socio-legal-economic content and a
supranational complexion.
Rule of Law has no fixed or articulate connotation though the Indian courts refer
to this phrase time and again. The broad emphasis of Rule of Law is on absence
of any center of unlimited or arbitrary power in the country, on proper
structuration and control of power, absence of arbitrariness in the government.
Government intervention in many daily activities of the citizens is on the increase
creating a possibility of arbitrariness in State action. Rule of Law is useful as a
counter to this situation, because the basic emphasis of Rule of Law is on exclusion
of arbitrariness, lawlessness and unreasonableness on the part of the government.