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Black’s Law Dictionary[1] defines Rule of Law as:
1. A Substantive Legal Principle.
2. The Supremacy of regular as opposed to
arbitrary power.
3. The doctrine that every person is subject to
the ordinary law within the jurisdiction.
4. The doctrine that general constitutional
principles are the result of judicial decisions determining the rights of
private individuals in the courts.
A.V. Dicey is usually considered to be the one
who propounded this doctrine. However, he was not the first one to use the term
‘rule of law’. But he was the one who played a major role in
popularizing and conceptualizing this doctrine. This concept is ages old and
was used by philosophers such as Aristotle, who said ‘law should
govern’. Rule of law implies that no citizen can escape the law, including the
king or the legislators. Rule of law is also opposed to the idea of supremacy
of king. Thus no government or the people who run the government are above
the law and the concept of the presence of a heavenly right to rule is not
acknowledged under this doctrine.
Soli J. Sorabjee has aptly stated that[2]:
“An essential component of the Rule of Law is that exercise of
governmental powers prejudicial to a person must have the sanction of law.
Consequently, the holding of a public meeting or staging of a dramatic
performance cannot be prohibited by an executive order without the sanction of
law. Again, a play or a book cannot be banned by an administrative circular
without the backing of a law. When John Adams used the historic phrase, ‘a
government of laws and not of men’, he was not indulging in a rhetorical
flourish but was flatly repudiating the idea of rule by fiat or farman, by
individual whim and caprice. He was emphasizing what Burke had earlier said
that law and arbitrariness are sworn enemies.”
In its path breaking judgment in Kesavananda
Bharti’s case, our Supreme Court ruled that there are certain essential
features of the Constitution which cannot be amended by Parliament even if it
possesses the requisite majority. In its list of essential features is
included the Rule of Law.
In the case of Indira Nehru Gandhi v. Raj Narain[3],
the Apex Court held that Rule of Law embodied in Article 14 of the
Constitution is the “basic feature” of the Indian Constitution and hence it cannot
be destroyed even by an amendment of the Constitution under Article 368 of the
Constitution.
In the case of A.D.M. Jabalpur v. S. Shukla[4],
Khanna, J. Observed:
“Rule
of Law is the antithesis of arbitrariness……..Rule
of Law is now the accepted norm of all civilized societies……Everywhere it is
identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of
individual liberty and public order. In
every state the problem arises reconciling human rights with the requirement of
public interest. Such harmonizing can only be attained by the existence of
independent Courts which can hold the balance between citizen and the state and
compel governments to conform to the law”.
Let us also see what the International
Commission of Jurists has to say on rule of law. According to them, ‘rule
of law’ includes:
1. That the state should not pass
discriminatory laws.
2. That the state should not interfere with the
religion belief.
3. State should not place under restrictions on
freedom.
4. Rule of law not only the adequate safeguards
against abuse of power but effective government capable of maintaining law and
order.
5. Due process of law.
6. No arrest without the authority of law.
7. Presumption of innocence.
8. Legal aid.
9. Public trial and public hearing.
10. Independent of judiciary.
11. Independent of legal profession.
12. Standard of professional ethics.
Thus we see that ‘rule of law’ doctrine is firmly entrenched into our constitutional jurisprudence. Some
scholars have even suggested that ‘rule of law’ is
part of the basic feature of the basic structure of our constitution. It is definitely something on which the edifice of our democracy is
built upon.
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