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

Apoorva Agarwal[1]

The concept of rule of law has been in existence since time immemorial. However, its correct meaning and utilization has not been truly found. In India we come across various instances where we still see abruptness and arbitrariness in state as well as individual actions. Take the instance of a Muslim man Akhlaq who was lynched to death by a mob suspecting beef in his house. The Police instead of arresting the persons involved first gave the meat to the post mortem. On the other hand, a new type of biasness has been found called ‘obstinacy’ where the deciding officer would not take a “no” for an answer. So being a developing country India still lacks some aspects where rule of law needs to work upon. This article explains the early concept of rule of law, the Dicey’s postulates and how the judiciary and the legal system has sustained this principle. It lists various case laws which have given new dimensions to rule of law and some new concepts which rule of law has developed in our nation. All in all, this article emphasises the importance and relevance of rule of law for republican India in 21st century.

India is an independent and modern welfare state and we are presently living in this largest democracy of the world. Now the chief characteristics of a modern welfare state are i) a vast increase in the range and detail of government regulation of privately owned economic enterprise, ii) the direct furnishing of services by government to individual members of the community like the economic and social services as social security, low-cost housing, banking and medical facilities etc. and  iii) increasing government ownership and operation of industries and business which at an earlier time were or would have been operated for profit by individuals or private corporations.[2] Elaborating on the to-do list of the welfare state, pubic power becomes an instrumentality for achieving objectives beyond internal order and national defence, a well-established state can still lack the attribute of distributive justice. But now the scenario is that social justice has been growing and there is an inevitable increase in the frequency with which ordinary citizens come into direct relationship with the wielders of power. Rule of law has the role to look to the diverse nature of discretionary actions and make them free from arbitrariness. Rule of law is a brick on which democracy is built and it is something which is fundamental to the idea of good governance. As it is rightly said that Rule of law runs like a golden thread through every provision of the constitution and constitutes it’s one of the basic features.

Conceptual Objectives of Rule of Law

The rule of law is a dynamic concept which does not have a strait jacket-formula and like many other concepts do not have an exact definition, however this does not convey that it does not have basic values to what it represents. Rule law has its origination from the natural law and usually is a historical ideal but with great relevance even today. “Rule of law” is to be understood neither as a “rule” nor a “law”. It is generally understood as a doctrine of “state political morality” between “rights” and “powers”, between individuals, and between individuals and the State in any free and civil society. This balance may be drawn by “law” based on freedom, justice, equality and accountability. Therefore, it infuses law with moral qualities.[3] The term ‘rule of law’ is derived from the French phrase la principle de legalite which means a government based on principles of law and not of men. Now even in most autocratic forms of government there is presence of some law, but it does not mean that there is rule of law. Rule of law envisages the rules based on principles of freedom, equality, non-discrimination, fraternity, accountability and non-arbitrariness. This is how rule of law is an ideal of good governance.

Early Greeks deliberated the concept of rule of law like Aristotle at around 350 BC. Edward Coke is said to be the originator of this concept when he asserted that king must be under God and thus vindicated the supremacy of law over pretensions of the executive.[4] Later in 1885, Victorian Professor A.V. Dicey developed on this concept in the course of his lectures at Oxford University. Dicey was an individualist and at the end of the golden Victorian era of laissez faire in England, he wrote about the concept of the rule of law. That was the reason why Dicey’s concept of rule of law contemplated the absence of wide powers in the hands of government officials. According to him, wherever there is discretion, there is a room for arbitrariness.[5]

In India, the concept of rule of law can be traced back to Upanishads. It provides: “Law is the King of Kings. It is more powerful and rigid that they (Kings). Thus in monarchial system rule of law was used primarily to govern the arbitrary powers of the monarch, however, in a democracy rule of law has taken different dimensions where the holders of public powers have to justify that the exercise of power is legally valid and socially just. Rule of proper law balances the needs of the society and the individual.[6] The Indian judiciary has inculcated the principle of rule of law through various landmark case laws. However, the unfortunate order passed in ADM Jabalpur V. Shivakant Shukla[7]  the commonly known as Habeas Corpus Case, the majority completely misinterpreted the concept and they went on suggesting that during an emergency, the emergency provisions themselves constitute the rule of law, yet an attempt was made to challenge the arbitrary detention orders. However, if the reasoning of all the five opinions is closely interpreted, the contended attempt was somehow accepted, no matter it wasn’t reflected in the final order passed by the court.[8] The Supreme Court privacy judgment[9] in on 24th August unequivocally safeguards the right to life and liberty and hence gave a new dimension to the rule of law by reiterating that “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. They constitute rights under natural law”. This clearly emphasizes that the principle of rule of law is evolving in the 21st yet keeping its inherited values the same i.e. just and free from arbitrariness. In Keshvananda Bharti V. State of Kerala[10], the rule of law was considered as an aspect of the doctrine of basic structure of the Constitution, which even the plenary power of the Parliament cannot reach to amend. In Indira Nehru Gandhi V. Raj Narain, Hon’ble Justice Mathew observed that clause (4) of Article 329-A offended the rule of law which postulated pervasiveness of the spirit of law throughout the whole range of government in the sense of excluding arbitrary official action in any sphere.[11] Referring to the same constitutional provision, Beg J observed that the jurisdiction of the Supreme Court to try a case on merits cannot be taken away without injury to the basic postulates of the rule of law and of justice within a politically democratic constitutional structure.[12] In Som Raj V. State of Haryana,[13] it was rightly observed by the Supreme Court that if the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of the rule of law. The absence of arbitrary power is the first postulate of rule of law upon which whole constitutional edifice is based. It is overwhelming to observe that Indian courts are putting efforts to preserve the values of the rule of law. Professor Upendra Baxi summarizes some very significant facets of rule of law which throws light on the relationship of rule of law with the Indian judiciary which were relevant to quote here –

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“Indian courts have gone further to insist on specific content of rule of law obligations. These include the rules of natural justice which have to be followed not just in quasi-judicial action but often also in purely administrative action. The scope and content of the requirements of natural justice have varied from time to time according to the judicial interpretation, but the broad insistence remains. In addition, access to information as to the grounds of decision has remained an important preoccupation of the Indian Judiciary, as many impediments to it have the tendency of obstructing judicial review of administrative action. The Rule of Law notion has been in addition consistently extended to secure for the individual fair dealing by the State in its economic activities. For example, the government is held bound by its assurance to individuals in business transactions by way of estoppels. The State has to follow some of the rules of natural justice before reaching a decision that it would not trade with certain contractors or before blacklisting them.”[14]

Dicey’s postulates and their adoption in India

The rule of law is one of the cardinal principles of the legal system developed by Professor Dicey. He gave three prime postulates to the theory that are:

Supremacy of law: It was stated that rule of law means absolute supremacy and predominance of regular law as oppose to the influence of arbitrary law of wide discretionary power. It excludes the arbitrariness of prerogative power or even wide discretionary authority on the part of the government. According to Wade, “The rule of law requires that government should be subject of law rather than the law subject to the government”. The Indian Constitution recognizes supremacy of law by establishing that the Constitution is the soul legal sacred document given to the people of India. Constitution is the supreme law of the land and any provision which abrogates the provisions of the Constitution or where the constitutional provisions itself are arbitrary and abridges fundamental rights of the people will stand null and void.  For Instance, in the 1997 case of Vishakha V. State of Rajasthan,[15] which is a case of sexual harassment at workplace, the PIL was entertained by the Supreme Court and the court observed that India was a signatory to the CEDAW and international conventions and hence enlarged the hands of fundamental rights. It thus read the provisions of CEDAW[16] in consonance with Articles 14, 15,19 and 21 of the Constitution and laid down binding guidelines commonly known as the ‘Vishakha guidelines’ followed not just by public sector but eve private sectors to ensure dignity and safety of women in the place of employment. This is one instance and lead a step further as to enforce fundamental rights against private persons as well and clearly depicts how an accountable, fair and just system rule of law is pragmatic in India. Similarly, in Sheela Barse V. State of Maharashtra,[17] the court insisted on “fairness” to women in police lock-up and drafted a code of guidelines for the protection of prisoners in police custody, especially female prisoners.

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Equality before law – Prof Dicey stated that, “There must be equality of law, to all the ordinary law of the land administered by ordinary law courts.” This aspect of rule of law has to be scrutinized critically. This does not refer that law must be same for everybody irrespective of service or functions, rather, this literally means that and even Dicey insisted that any government officer must be under the same liability for acts done without legal justification as a private individual. For Instance, recently talking in context of India, Rashtriya Janta Dal SupremoLalu Prasad Yadav has been sentenced to 14 years and of imprisonment and heavy fine in the fodder scam case that involved the embezzlement of 9.4 billion from the government treasury of Bihar. Another example of equality before law is the trial of bollywood actor Salman Khan, who is still undergoing the trial of killing the extinct species of blackbuck according to Schedule 1. Thus, India treats every person who has done a crime as criminal and the trial takes place according to the respective statute and not arbitrarily. Even the people who cannot afford the legal services can still knock the doors of the courts through the free legal aid services as contemplated by Article 39A. Developing the constitutionalism further, the Supreme Court in Veena Sethi V. State of Bihar[18] extended the reach of rule of law to the poor and the downtrodden, the ignorant and the illiterate, who constitute the bulk of humanity in India, when it ruled that the rule of law does not exist merely for those who have the means to fight for their rights and very often do so for the perpetuation of the status quo, which protects and preserves their dominance and permits them to exploit a large section of the community. The opportunity for this ruling was provided by a letter written by the Free Legal Aid Committee, Hazaribagh, Bihar drawing its attention to unjustified and illegal detention of certain prisoners in jail for almost two or three decades.[19]

Predominance of Legal Spirit- Prof. Dicey has stated that there must be judicial supremacy. In context of England, rights are the result of judicial decision in concrete cases which have actually arisen between the parties. The Constitution is not the source but the consequences of the rights of the individuals. He apprehended that if the source of Fundamental rights of people is any written constitution, then the right can be abrogated by amending the constitution at any time. This can probably be the reason why England does not have a written constitution. However, India has also absorbed this postulate though diligently believing in our written and lengthiest Constitution.

Modernizing of rule of law

The Supreme Court came into being on 28 January 1950. It replaced both the Federal Court of India and the Judicial Committee of Privy Council which were at the apex of the Indian court system, under colonial era. Since then till now, the concept of rule of law has not just evolved with time but also modernized. The modern concepts like ‘procedure established by law’, ‘judicial review’, ‘public interest litigation’, ‘checks and balances’, ‘basic structure’, ‘tribunalisation’ and many more. All of these have their existence from the embedded concept of rule of law in the constitution. The rule of law has been considered a significant pillar of the administrative law today. Some of the modern concepts have been briefly described below:

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Tribalization- Apart from judicial bodies, Indian Judiciary is also characterized by numerous semi-judicial bodies involved in dispute resolution. Tribunals and Regulators are specialized government agencies that oversee the law and order compliance in the relevant government sectors. For example, one of the tribunals TDSAT functions alongside the regulator TRAI. These tribunals have an informal mechanism and very limited evidence procedure is followed. The justice mechanism is quick as compared to courts and less procedural formalities are required. Though the system is quick, it does have the shortcoming of being discretionary and at times biased and arbitrary. Therefore, even though the procedure of tribunals is different from court they still have to follow the principles of natural justice i.e. rule against bias, right to be heard and reasoned decisions. This is how discretion and arbitrariness is restricted and eliminated respectively and rule of law has been conceptualized.

Public Interest Litigation– The first ever PIL is listed as Hussainara Khatoon V. State of Bihar[20] and dates back to 1979. A public interest activist lawyer filed this case on behalf of thousands of prisoners of Bihar jail against inhuman conditions of the prison.  The bench headed by Justice P.N Bhagwati declared free legal aid and expeditious trial to these prisoners which led to their release. Since then PILs have encompassed several social and economic issues, legal entitlements (right to food, right to work), environment issues (clean water and air) and political reforms.

Judicial Review of administrative actions Judicial review has helped to preserve the constitutional principles and values and the constitutional supremacy. The scope of judicial review in courts in India has developed this with respect to three issues –

  1. Protection of fundamental rights as guaranteed in the Constitution
  2. Matters concerning legislative competence between the Centre and states
  3. Fairness in executive acts

In Maneka Gandhi V. Union of India,[21] the court adopted the principle of post decisional   hearing in situations of urgency where prior hearing is not feasible and recognized that chance of hearing cannot be debarred completely. The Courts have also emphasized on the principle of reasonableness in most cases that involve state action. Another principle frequently utilized by courts especially in administrative law is principle of proportionality. Judicial review safeguards the aggrieved against any sentence that is burdensome, disproportional and thus arbitrary.

Conclusion

Rule of law has made the Indian legal system stable, fair and opened the doors of justice for all. Dicey’s rule of law has been critics in a trend, although it must be noted that one must understand his personality and the atmosphere and compulsions of the time when he developed his thesis. The concept has been recognized all over and in context of republican India, the concept is growing and must be acknowledged.  The constitutional bench recognises that no matter how high a person is, the law is always above him. Rule of law is now being identified in human rights of the people and also courts are working as to how make government submit clearly to law but also create conditions here people are meaningfully aware about their rights and can exercise them. Every public servant is a trustee of society and is accountable for the due effectuation of constitutional goals.[22] Therefore, rule of law is highly relevant in republican India.


[1] Student, Vivekananda Institute of Professional Studies, Delhi.

[2] IP Massey, Administrative Law, (8th ed. Eastern Book Company, 2012).

[3] Alex Carrol, Constitution and Administrative Law 40 (2nd Edn. Longman, 2002).

[4] I.P. Massey, Administrative law 24 (9th ed. Eastern Book Company, 2013).

[5] Dicey, Law of the Constitution 198 (8th ed. OUP Oxford).

[6] Aharon Barak, Begin and the Rule of law 10(3) Israel Studies, 1-28 (2005).

[7] ADM Jabalpur v. Shivakant Shukla (1976) 2 SCC 521.

[8] Upendra Baxi, Developments in Indian Administrative Law (A.G. Noorani); Public Law in India 134 (1982); The Indian Supreme Court and politics (1980).

[9] Justice K S Puttuswamy v. UOI.

[10] Keshvananda Bharti v. State of Kerala (1973) 4 SCC 225.

[11] Indira Nehru Gandhi V. Raj Narain AIR 1975 SC 2299.

[12] Ibid, para. 623.

[13] Som Raj v. State of Haryana (1990) 2 SCC 653.

[14] UpendraBaxi, Developments in Indian Administrative law, (AG Noorani Ed.), Public Law in India 134 (1982)

[15] Vishakha v. State of Rajasthan AIR 1997 SC 3011.

[16] The  Convention of Elimination of All Forms of Discrimination Against Women (1979).

[17] Sheela Barse v. State of Maharashtra (1983) 2 SCC 96; Veena Sethi v. State of Bihar (1982) 2 SCC 583.

[18] Veena Sethi v. State of Bihar (1982) 2 SCC 583.

[19] I.P. Massey, Administrative law 24 (9th ed. Eastern Book Company, 2013).

[20] Hussainara Khatoon v. State of Bihar 1979 SCR (3) 532.

[21] Maneka Gandhi v. Union of India 1978 SCR (2) 621.

[22] UT Chandigarh v. Kuldeep Singh, (1997) 9 SCC 199.