APPLICATION OF RULE OF LAW IN INDIA : DICEY’S THEORY

ABSTRACT

The rule of law is the principle that no one is above the law, including the government. It is a
fundamental principle of democracy and a prerequisite for a just and orderly society. The rule
of law means that everyone, regardless of their position or power, is subject to the same laws.
This includes the government, which must act in accordance with the law and cannot
arbitrarily detain or punish people.

The rule of law is important for several reasons. First, it protects individual rights and
liberties. When the government is bound by the law, it cannot abuse its power or violate the
rights of its citizens. Second, the rule of law promotes equality before the law. Everyone is
treated equally under the law, regardless of their social status or economic position. Third, the
rule of law reduces corruption and promotes good governance. When the government is
accountable to the law, it is less likely to engage in corrupt practices.

Keywords:

Rule of law, Dicey Concept, Liberty, Speech and Expression, Etc.

INTRODUCTION

The concept of "Rule of Law" denotes the supremacy of a nation's legal framework over any
elected representation or authority within the country. This idea originates from the French
phrase 'la principe de legality', signifying governance guided by law rather than individuals.
Diverse interpretations exist across various countries. Notably, Aristotle, a prominent
philosopher, endeavored to provide a substantive definition. He sought to elucidate this
theory by linking it to rational rule and principles of natural justice in the context of legal
regulations.

A.V. Dicey introduced a widely acknowledged theory through his renowned work, 'The Law
of the Constitution'. He gained prominence for advocating that the foundation of government
should rest on legal principles rather than personal discretion. Dicey expounded this
perspective by outlining three fundamental pillars of governance1: (1) Primacy of Law, (2)
Equal Application of the Law, and (3) Preeminence of Legal Values.

1
Hariharan Rule of Law in India, Academike, 16 November, 2014.
 LITERATURE REVIEW

The Rule of Law and the Rule of Empire: AV Dicey in Imperial Context2 The
contemporary global prevalence of the rule of law owes much to Victorian legal theorist A. V.
Dicey. However, the imperial aspects of Dicey's thinking about the rule of law have received
limited attention. This article aims to highlight these imperial dimensions. Dicey viewed the
rule of law as an English achievement that justified British imperialism, yet he acknowledged
that imperial rule sometimes conflicted with the rule of law due to arbitrariness and
inequality. In today's era of transnational interventions authorized by the rule of law, Dicey's
concerns resonate, reflecting our current ambiguities and interests.

A Structuralist Concept of the Rule of Law3: Conventional interpretations of the rule of

law emphasize specific legal attributes, seen as virtues. However, this paper introduces a
novel structuralist perspective. Maintaining the rule of law's integrity as a societal remedy,
this approach delves deeper, revealing its link to inherent social, economic, and political
inequalities. It asserts that the rule of law functions in collective normative discussions to
assess how individuals' actual capabilities interact with the legal system.

While legal processes grant public access, the rule of law prioritizes actual access,
participation, and impartial adjudication. Conditions affecting stakeholders, especially the
vulnerable, disrupt the rule of law's virtues by hindering equal access. Viewing the rule of law
structurally as moral influence: (1) clarifies law vs. the rule of law, (2) shifts rule-of-law
origin to communities, (3) explains citizens' expectations of constraint and promotion, and (4)
exposes disparities undermining effectiveness.

Dicey on writing the Law of the constitution4: The prevalent perception of A. V. Dicey's
"Law of the Constitution" devalues its theoretical significance, labeling it as unclear and
unhelpful to modern legal professionals. However, this essay challenges this notion by
examining Dicey's unpublished notes, correspondence, and his role as a legal scholar. This
inquiry unveils a different 'Dicey'—one who integrated analytical, historical, comparative,
and normative elements through discursive narratives about general principles. Interpreted as

2
81, Lino D, The Rule of Law and the Rule of Empire : AV Dicey in Imperial Context, 739-764, Modern Law
Review (2018)
3
10, Golsanki A, A Structuralist Concept of the Rule of Law, British Journal of American Legal Studies, (2021)
4
32, Walters, MD, Dicey on Writing the Law of the Constitution, Oxford University Press, 21-49, (2012)
a discourse on legal principles rather than a mere rulebook, the "Law of the Constitution"
regains theoretical coherence and provides insights into contemporary constitutionalism.

ANALYSIS OF THE RULE OF LAW

It's crucial to grasp the distinction between administrative law and the rule of law.
Government officials are bound by distinct regulations compared to regular citizens, but the
rule of law is universal—applying equally to all individuals, regardless of their status, be it
the Prime Minister or a clerk. This concept ensures non-discrimination and holds a supreme
position.

A.V. Dicey opposed differential regulations for various groups, advocating instead for the
Rule of Law. Napoleon introduced the term "administrative law," known as Droit
Administratif in France.

ELEMENTS OF RULE OF LAW

Defining the rule of law is complex and varies among individuals. Some see it as law's
supremacy, while others view it through aspects like clarity, universality, and stability.
Consequently, specific elements of the rule of law have been identified, each essential for its
persistence.

The following are some of the most common components of the rule of law:

● A government bound by and regulated by the law;

● The establishment of law and order;
● The safeguarding of human rights
● Equality before the law;
● The effective and predictable application of justice.

In the Kesavananda Bharati v. State of Kerala5 case, the concept of the "basic structure"
was introduced. It was held that any element of the Constitution could be amended as long as
it didn't impact its fundamental framework.

In the case of Indira Gandhi v. Raj Narain6, the court determined that the rule of law is an
integral part of the fundamental structure. The ruling implied that rule of law was
incorporated into the list, signifying its immunity from amendments.
5
Kesavananda Bharati v. State of Kerala and Anr [Writ Petition (Civil) 135 of 1970]
6
Indira Nehru Gandhi v. Shri Raj Sarain & Anr [Appeal (civil) 887 of 1975]
The case of State of Bihar v. Sonawati Kumari7 established that all authorities within a
state, including the executive administration, are bound to adhere to the regulations.

In the case of Bachan Singh v. State of Punjab8, commonly referred to as the "Death
Penalty Case," the rule of law was affirmed as safeguarding against arbitrary actions. Any
exercise of arbitrary power would be deemed a violation of the principle of the rule of law.

The case of Som Raj v. State of Haryana9 underscored that the central objective of the rule
of law principle is to prevent the exercise of arbitrary power, which forms the foundation of
the entire Constitution.

THE RULE OF LAW THEORY OF DICEY

Supremacy of Law or Absence of Arbitrary Power: as outlined by Dicey, signifies that no

individual can be lawfully subjected to punishment or harm unless they have distinctly
violated established laws in the usual legal process within the courts. Dicey's perspective
emphasizes the rule of law as the paramount authority. According to him, this concept
demands universal adherence to the law, whether by ordinary citizens or government
officials. He asserts that no one can be penalized for anything other than contravening an
existing law, and any alleged transgression must be proven through conventional court
proceedings.

Equality before Law: According to Dicey, the second fundamental aspect of the rule of law
is the "equality of law" or the equal application of the ordinary state law to all segments of
society through regular law courts. This principle signifies that no one holds superiority over
the law. It mandates that government officials are equally subject to the law, with no special
courts to address their matters.

Constitution Arising from Ordinary Law: Dicey notes that in various countries, a written
Constitution grants rights like personal liberty and freedom. Yet, in England, these rights are
a product of judicial decisions that have evolved from disputes. The Constitution, in this
context, isn't the origin but the outcome of individual rights.

7
The State of Bihar v. Rani Sonabati Kumari [1961 AIR 221, 1961 SCR (1) 728}
8
Bachan Singh v. State of Punjab [AIR 1980 SC 898]
9
Som Raj and Ors. Etc. v. State of Haryana and Ors Etc. [1990 AIR 1176, 1990 SCR (1) 535]
However as stated above, in India, we consider the Constitution as the fundamental basis
from which all other laws emanate. Therefore, this Dicey concept doesn't hold true in the
Indian context.

RULE OF LAW IN CURRENT SCENARIO

Today, the comprehensive acceptance of Dicey's theory of the rule of law is limited. The
contemporary interpretation of the rule of law is broader and places rigorous demands on
administrations. The International Commission of Jurists introduced this perspective through
the Delhi Declaration in 195910, further solidified at logos in 1961. This perspective
emphasizes that in a free society, the government's functions should safeguard the individual's
dignity. This dignity encompasses not only the acknowledgment of specific civil or political
rights but also the creation of political, social, economic, educational, and cultural conditions
crucial for an individual's holistic development.

ROLE OF FREEDOM OF SPEECH IN RULE OF LAW

Due to its vital role in the democratic process, the rule of law includes the essential concept
of respecting others' rights, particularly through means like speech, writing, and artistry.
Notably, the rule of law fundamentally opposes arbitrariness. Five fundamental freedoms,
including the freedom of speech and expression, underscore this principle.

Freedom of Speech and Expression, a cornerstone constitutional right, is bestowed upon all
citizens. However, exercising this freedom entails responsibility, as it should not malign or
offend individuals or religious sentiments. This freedom should be wielded without
apprehension of punitive consequences for inappropriate conduct.

The Universal Declaration of Human Rights (UDHR)11 underscores the individual's right to
freedom of expression and opinion, including the ability to maintain confidentiality from
media or external sources. Both Article 1912 of the UDHR and the International Covenant on
Civil and Political Rights (ICCPR)13 affirm the centrality of freedom of speech and
expression as a fundamental human right.

INDIAN CONSTITUTION AND FREEDOM OF SPEECH AND EXPRESSION

10
Delhi Declaration, 1959
11
Universal Declaration of Human Rights
12
Article 19 of UDHR
13
International Covenant on Civil and Political Rights
As per Article 19(1) of the Indian Constitution, Freedom of Speech and Expression
encompasses the liberty to convey thoughts through spoken words, gestures, art, writing, or
any relevant medium. This category encompasses the dissemination of content through
articles, books, and other forms, consequently encompassing press freedom as well.

● It also assists people in staying informed about current events in society or their
country.
● Assist the individual in developing ideas, thoughts, and opinions that will aid in
decision making.
● The ability to maintain a balance between stability and societal change is aided by a
diversity of views.
● Assist with achieving self-fulfillment.

In the case of Shivkant Shukla v. ADM Jabalpur14, the government of Madhya Pradesh
contested the High Court's stance. The pivotal issue was whether the Rule of Law extends
beyond Article 21 of the Indian Constitution. The argument was that there exists no rule
besides Article 21, and no other form of the rule of law can ever be established.

SUGGESTIONS AND CONCLUSION

The judiciary is actively working to bridge the connection between the rule of law and human
rights. Its efforts encompass compelling the government to abide by the law while fostering
an environment where individuals can effectively exercise their rights. Public administration's
role involves ensuring effective implementation of constitutional mandates while upholding
fair and objective legal standards.15 Government officials entrusted with public duties hold
the responsibility of advancing national objectives.16 However, a potential downside of the
Rule of Law is the risk of rigid legalism undermining the nation's welfare.

The Supreme Court has solidified Judicial Authority and crafted the principle of Judicial
Review through unalterable instances. Our Constitution champions principles like equal
treatment before the law, prohibition of arbitrariness, and judicial supremacy. While modern
authorities possess discretionary powers for societal governance, their misuse can be curbed
through appropriate regulations, laws, and norms, fostering effective societal control. India's

14
ADM Jabalpur v. Shivkatn Shukla (1976) 2 SCC 521
15
State of Punjab v. G.S. Gill, (1997) 6 SCC 129
16
Supdt. Engineer, Public health U.T. Chandigar v. Kuldeep Singh, (1997) 9 SCC 199
balanced embrace of Dicey's "Rule of Law" concept, coupled with discretionary power,
underpins our judicial system's success.

The challenge lies in harmonizing the Rule of Law with discretionary power, achievable
when the judiciary oversees potential misuse, employing harmonious construction.
Inadequate inculcation of constitutional values in society has hindered the desired outcomes
of the rule of law in India. The rule of law opposes corruption, terrorism, and lawlessness.
Common law traditions, the Indian Constitution, and the judiciary's resolute role collectively
bolster the rule of law. Instances of lapsing into governance by will have exposed human
nature's flaws and the corrupting influence of power.

Our judicial system has upheld the rule of law, expanding avenues for justice through PILs
and addressing issues like bonded labor, child labor, and environmental preservation. Yet,
violations of fundamental rights persist, as seen with marginalized eunuchs. The Singur
incident prompted the High Court Division bench, led by Chief Justice S. S. Nijjar and
Justice Pinaki Chandra Ghosh, to intervene. The concept's origin traces back to Chief Justice
Sir Edward Coke's notion during King James I's era, emphasizing subordination of the King
to both law and God, with law reigning over the executive.