Viability of Dicey’s Rule of Law in 21st Century

Siddharth Yadav[1] & Aditi Vyas[2]

Abstract

The rule of law is a prime source of legitimization for any government in the modern world. Countries who have incorporated common law system of justice delivery owe its genesis from ‘British jurisprudence’ the base of which is the Rule of Law. A country that incorporates the rule of law should encompass a Grundnorm or core law from which all other authorities derive its power.

The roots of the Rule of Law theory can be detected from the Ancient Romans during the establishment of the first republic; it has been a subject of several medieval thinkers in Europe such as Hobbs, Locke, and Rousseau by the way of social contract theory. Indian thinkers Chanakya have also elaborated the rule of law theory by putting up that the Head of state should be governed by the word of law. The credit for popularising term Rule of law goes to A.V. Dicey, the savant of British jurisprudence, who examined the rule of law along with the sovereignty of Parliament and he established nexus with his work ‘Law of the constitution’. Dicey explains its theory on the basis of three pillars based on the concept that “a state should rule on principles of law and not of a ruler”.

Critiques have often advocated that the Rule of law is purely a thesis with no functional application. According to World Justice Project index, 2017-18 India ranks 62 out of 113 countries on Rule of law index by making its position on 4thfollowed by Denmark, Norway, and Finland in increasing order. In this paper, we have scrutinized most serious concepts and notions of various thinkers and philosophers and their contributions in enhancing the word ‘Rule of Law’.

Introduction

From ancient time, human beings have always entrusted the power of its ruling or administration into some sovereign power or to a person for maintaining the order in the society. In this paper, the ups and down of rule of law in present era shall be expounded. Although it is appropriate to start and analyse the thought of modern theorists on rule of law, some mentions should be made that the concept of rule of law is not new to the present century. That the background of rule of law and the spirit of rule of law is an ancient document and the concise discussion of its antiquity will be explained in our first section. The second will cover Dicey and his principle of law. Third part will explain the exception to the rule of rule. Fourth part will explain the evolution of rule of law in India supported by case laws and provisions. By the end, we shall conclude the aforesaid points and discuss contribution which has taken place in succeeding 20 years.

As the term ‘survival of the fittest’ given by Herbert Spencer in the ancient times gave rise to despotism & monarchy in the medieval times; and with the passage of time, the advent of ideologies of socialism and capitalism gave to the birth of republics, democracies, and communists in the modern times. In the ancient era, there was no solution for an unconstitutional action short of an actual revolution. Later in medieval regime king was opposed if his action infringed the law but supremacy of law in other terms was not assured by any sovereign institutions. Here arises a question, why present system outlasts for longer than the previous ones? What can be learned from history and how can we make our present system more efficient.

The solution we came up with is the rule of law has developing nature as we can notice from its ancient, the medieval and up to present era, mankind could not be trusted to administer by oneself. As long as there will be a ruler or a group of people who have sovereign power there could always be the abuse of power

 So the question arises. What could be included in the present system which may prevent the misuse of power? What could substitute the ‘Rule of Men’ which was the common phenomenon for decades? What could be the ultimate solution?[3]

As the notion of ‘Rule of Law’ came into existence in simplest form, which means the supremacy of the law over every individual, wherein each act is to be governed in accordance legal principle of the land and considering all individuals as equivalent while having constitution preserving the spirit of this law. Law will be sovereign and all other authorities will be subordinate to it. A nation that incorporates the rule of law would be one where the basic and fundamental law would be the supreme and other authority to be administered by the state. The king or any representatives or elected individual of the republic would also controlled by the laws derived out of this sovereign law which was established and their powers would also be restricted by this law.[4]

Background

The idea of the rule of law has its genesis back to ancient times, wherein savant namely Plato & Aristotle had first discussed and put their views on such an idea.[5] Over the years,

The idea expanded and flourished in the domain of man wherein even monarch also agreed to be bound by the law they laid down, one prime instance when the Magna Carta of 1215 was approved and signed by King John, the first memorandum of rule of law.[6] These ideas were also publicized by medieval thinkers like Hobbs, Locke & Rousseau further propagated. Even Indian savant Chanakya had also mentioned about the concept of rule of law, in reference to king imposing the same in his reign. The term rule of law was first coined by Sir Edward Coke and was derived from the French phrase ‘la principle de legalite’ i.e. the principle of legality. Though, the absolute recognition for this theory actually goes to A.V Dicey, who in his book “Introduction to the Study of the Law of the Constitution” took the notion forward and remains to be one of the most popular works on the theme.[7]

A.V. Dicey’s theory

 The theory propounded by A.V. Dicey was based on three fundamental postulates which were basically made for demarking England’s administration at that period of time from all other republics in Europe, expressly disproving French & Dutch governance by giving a contrast between them and English governance. The guarantee of equality before the law is an aspect of what Dicey call rule of law in England. It means no person is above the law and every person, whatever is his rank or conditions, is subject to the jurisdiction of courts.” With us” Dicey wrote, “every official from the Prime Minister down to a constable or a collector of taxes is under the same responsibility for every act done without legal justification as any other citizen”. Rule of law requires that no person shall be subjected to harsh, uncivilized or discriminatory treatment even when the object is the securing of paramount exigencies of law and order. In the whole procedure, Dicey rationalize England’s excellence on three grounds, which are now appreciated as the three basic fundamentals for the rule of law:[8]

Supremacy of law

It depicts the absolute supremacy of law. And every individual must follow it. It covers all three organs of government i.e. executive, legislative, and judiciary. In other words- “a man may be punished for breach of the law, but he can be punished for nothing else.

Equality before the law

Every individual is equal before the law. No one is above law. This means that ‘no one is above law with the sole exception of the monarch who can do no wrong’. This principle is based on equity by keeping in mind the strata of society. The laws must be unbiased and should be imposed in a just manner.[9]

The predominance of legal spirit

There must be an agency according to which every individual must be given equal protection and courts must have the power to safeguard and administer these laws and take cognizance of any illegal act done in society and personal liberty must be ensured to every individual and laws of state should not be arbitrary to the interest of the public. This basically referred to the independence of the judiciary.

The exception to the rule of law[10]

The aforesaid rule of equality is, however not an absolute rule and there are a number of exceptions to it:

Firstly, ‘equality before the law’ does not mean that the “powers of private citizens are the same as the powers of the public officials”. Thus, a police officer has the power to arrest while, as a general rule, no private person has this power. This is not the violation of rule of law. But the rule of law does require that these powers should be clearly defined by law and that the abuse of authority by public officers must be punished by ordinary courts in the same manner as the illegal acts committed by private persons.[11]

Secondly, the rule of law does not prevent certain classes of persons being subject to special rules. Thus, members of armed forces are controlled by military laws. Similarly, medical practitioners are subjected to law framed by Medical Council of India. Article 361 of the Indian Constitution provides immunity to President and the State Governors, according to which President and Governor they shall not be answerable to any Court for exercising and performing their powers and duties of the office and no criminal proceeding shall be instituted or continued against him during the term of his office. 

Thirdly, ministers and other executive bodies are given wide discretionary powers by the statutes. A Minister may be allowed by law ‘to act as he thinks fit’ or ‘if he is satisfied’. Such power is sometimes abused. At present, a large number of legislation are passed in the form of delegated legislation, i.e. statutory instruments, orders, rules made by ministers and other bodies and not directly by Parliament. These rules did not exist in Dicey’s time.

Evolution of the rule of law in India

The concept of the ‘Rule of Law’ was amalgamated during the creation of Indian constitution. The preamble embodies in a solemn form with the concept of justice, liberty, equality, and fraternity to be guaranteed to all its citizens. The Constitution was made as a sovereign instrument which defines the law of India and then further different laws were made inconsistent with it. By following this procedure, the Constitution became the supreme law from which the all organs of government like the legislative, executive & judiciary seek their authority and therefore it is to be deemed the structure of the ‘rule of law’ in India.[12]

Article 14 gives the concept of equality before law & equal protection of the law, while Article 21 gives the right to personal life & liberty. These basic rights were promulgated by A.V. Dicey. Since the concept of rule of law was one of the basic structure on which the Constitution was based, the impact can be noticed inexplicably in Part III which guaranteed fundamental rights to the citizens of the country. Other than part III there were numerous important Articles which were inserted to support the modern idea and are pillars of the rule of law such as: Article 19, which provides protection of certain rights like freedom of speech & expression, freedom of movement, freedom to practice any profession; Article 21 which provides protection of life and personal liberty; Article 226 and Article 32 which provides remedies through writs in High court and Supreme court of India.[13]

The basic structure of our Indian Constitution upholds the concept rule of law. Justice R.S. Pathak of the Hon’ble Supreme Court, states “It must be remembered that our entire constitutional system is founded on the rule of law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.”

Significant cases & principles evolved

The Constitution of India embodies the provisions for the rule of law and their validity through several landmark cases which decided the practical applicability and separation of powers within the three pillars of democracy and laid the strong edifice for continuous developments of the principles and notion of the rule of law. The Supreme Court of India has further strengthened the mechanism through its various judgments foremost which took place in Shankari Prasad v Union of India[14], where the issue which was raised regarding before the courts was whether the fundamental rights could be amended by the Parliament through Article 368 of the Constitution wherein the Supreme Court held that the Parliament had unlimited power to amend the fundamental rights of the Constitution which were guaranteed under Article 368 because according to Article 13 of the Constitution, the term ‘law’ had meant any legislative action and not a constitutional amendment. Therefore, a constitutional amendment would have been valid even if it abridged any of the fundamental rights. This was further upheldin Sajjan Singh v Union of India[15] by the Supreme Court and now gave absolute power to the parliament to take away the basic liberties guaranteed by the makers of the constitution. The balance of power had tilted in favour of the parliament and the Ninth Schedule had become an instrument of misuse. As the saying goes, ‘power corrupts, and absolute power corrupts absolutely.’ it was not long before court doors were knocked once again for the sake of justice. This lead to the historic case of ICGolakNathv.State of Punjab[16] wherein the Supreme Court took away the absolute power of the parliament to amend the fundamental rights and again restored equilibrium to the separation of powers in particular and the rule of law in general.[17]

But yet again, the Rule of law was struck another blow with the 24th Amendment by the Parliament which restored the amending power of the Parliament and also increased the scope of its own powers. This was challenged in KeshavanandaBharti v. State of Kerala[18] wherein the basic structure doctrine was laid by the Supreme Court. The courts held that the Parliament had wide powers in regard to amending the Constitution but this power was limited and could not have included the power to abrogate the basic feature of the Constitution. There were implied limitations which were put within which the parliament could amend the Constitution. Thus, the rule of law was preserved.

 After the KeshavanandaBharti a case, the concept was expanded and was applied to a variety of cases which presented themselves. In the case of Indira Gandhi v. Raj Narain[19] , the Supreme Court had invalidated the Indira Government’s attempt to immunize the election dispute by removing the power of the courts to have the trial of a Prime Minister. In Raman Dayaram Shetty v. International Airport Authority of India[20], the Supreme Court held that the great purpose of rule of law was the protection of the individual against arbitrary exercise of power, wherever it is found.

 But there was one case which shall always remain as a stain on the magnificent history of the judiciary of India, which is A.D.M. Jabalpur v Shivakant Shukla[21], famously known as the habeas corpus case. According to the Shah Commission Report, around 1, 08,010 detents were imprisoned in courts and denied their right to be presented in the court of law. In this case, the judges upheld the autocracy of the government and hence erred in conferring justice.

In National Legal Services Authority v. Union of India[22], the courts enumerated upon the importance of the rule of law and exclaimed that “The rule of law is not merely public order. The rule of law is public order based on social justice. This is the rule of law that strikes a balance between society’s need for social equality, internal order, political independence and economic development, on the one hand and the needs of the individual, his personal liberty and his human dignity on the other. It is the duty of the Court to protect this rich concept of the rule of law.”

Conclusion

 It has been a long period of 71 years of Independence, during this era country has witnessed rise and fall of various governments. Numerous attempts and experiments in pursuance to break, bend& even destroy the concept of the rule of law were made but it was the mutual consonance and liberal judiciary which ceased this from happening.  The concept of rule of law is accomplishing its purpose by providing the basic liberties of its citizens. Rule of law has become the foundation for our democracy, and it proved itself as the Himalayas which act as a shield from cold winds of Siberia, while at the same time ensuring that the monsoon winds do not fly away. Though amendments, precedents evolved and the provision laid down, we have accomplished our major aim of keeping law supreme and terminating authoritarian and dictatorial regimes where the rule of men was prominent from arising back into our country. It would be impossible for the entire world, what founding fathers of India have made and impossible to establish a country, that would follow the letter of the law and implement the Rule of Law.


[1] Student, 7th Semester, Ba Llb (H), Amity Law School, Rajasthan.

[2] Student, 7th Semester, Ba Llb (H), Amity Law School, Rajasthan.

[3] Alistair Price, Why the Rule of Law Matters, WORLDJUSTICEPROJECT, (June 21, 2018, 11:20 PM), https://worldjusticeproject.org/news/why-rule-law-matters.

[4] Bhavani Kumar, Rule of Law in India, LAWOCTOPUS, (June 21, 2018), www.lawoctopus.com/academike/rule-of-law-in-india/.

[5] Mokshita Jain, Rule of Law: Essence of Administrative Law in India, EDUCONCOURS, (Jan 14, 2017, 4:50 PM) educoncours.com/2017/10/08/rule-of-essence-administrative-law-india/.

[6] Ivan Sage, Democracy, Constitutionalism & Rule of Law, VUWJ 25.

[7] Dicey, LAW OF CONSTITUTION 202-03 (10TH ed).

[8] Brain Z. Tamanaha, The History & Elements of the Rule of Law, SJLS, 232-247 (2012).

[9] Uma Pal, Right to Equality- A Fundamental Right, LEGAL SERVICES INDIA, (JAN 13, 2018)

http://www.legalservicesindia.com/article/print.php?art_id=1688.

[10] Dr. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA 79 (53rd ed. 2016).

[11] Dr.V.N. Shukla, Constitution of India 27 (5th ed.).

[12] The concept of Rule of Law, LAWTEACHER, (Jan 19, 2018, 6:20 AM), https://www.lawteacher.net/free-law-essays/constitutional-law/introduction-concept-of%20-rule-law-essays%20.php#ftn9.

[13] Sanjay Gupta, Defending the Indian Constitution & the Rule of Law-Right up to the 21st Century, LEGALSERVICESINDIA, (Jan 19, 2018), HTTP:// www.legalservicesindia.com/article/artcle/defending-the-constitution-&-the-rule-of-law-248-1.html.

[14] Shankar Prasad v Union of India, AIR 1951 SC 458.

[15] Sajjan Singh v Union of India, AIR 1965 SC 845.

[16] IC GolakNath V State of Punjab, AIR 1967 SC 164.

[17] SOLI J. SORABJEE & ARVIND P. DATAR, NANI PALKHIVALA THE COURTROOM GENIUS 41-56 (9th Edition, LexisNexis 2017).

[18] KeshwanandBharati v. the State of Kerala, AIR 1973 SC 1461.

[19] Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.

[20] Raman DayaramShetty v. International Airport Authority of India, 1979 AIR 1628.

[21] ADM Jabalpur v Shivakan tShukla, AIR 1976 SC 1207.

[22] National Legal Service Authority v. Union of India, WP (Civil) No 604 of 2013.