Dicey’s Concept of Rule of Law- An Analysis
This article titled ‘Dicey’s Concept of Rule of Law- An Analysis.’ is written by Jagrati Gupta and discusses the concept or rule of law as laid down by Dicey. I. Introduction “The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the… Read More »
This article titled ‘Dicey’s Concept of Rule of Law- An Analysis.’ is written by Jagrati Gupta and discusses the concept or rule of law as laid down by Dicey.
“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.” ~ Caroline Kennedy
Can there be any development and progress in a society where a certain group of people receive special treatment at the expense of others? Will society be called civilized if there is rampant peremptory use of power by the administrative authorities? Will society be able to perform its functions if there is no regard for the law of the land? The existence of a civilization is not only determined through the formation of rules or laws but also through their observation and general respect for them. This is called the principle of the “Rule of Law”.
The concept ‘Rule of Law’ popularised by A. V. Dicey is one of the most significant and applauded principles all over the world with an exclusive aim to bulwark the rights of humans.
For instance, if a victim of a crime is coerced into withdrawing his/her complaint against the offending person or is threatened into abstaining herself/himself from seeking justice for the offence committed against him/her, it constitutes the breach of rule of law or if the legislature ordains a statute which in any way circumscribes or violates the fundamental rights of people like the freedom of speech and expression is a violation of the sanctity of “Rule of Law”.
The underlying objective of this research article is to dive into the depth of this doctrine and analyse its various aspects. In the succeeding paragraphs, an endeavour has been made to concisely analyse the conceptualisation, evolution, application, merits and criticisms of Dicey’s ‘Rule of Law’.
By elaborating upon the aspect of the application of the doctrine in the real world, a graphic sketch of the merits of the doctrine has been drawn. One of the integral aspects of the doctrine is the judicial interpretations and applications in various scenarios.
The cogitation behind the concept “Rule of Law” is very dynamic and possesses a perfect mechanism to check absolutism and anarchy by giving an upper hand to only the law of the land. The peremptory use of power is prevented through this principle as law which is formulated after a thorough discussion and contemplation by legislative bodies gains precedence over any other authority. Therefore, rule of law facilitates and maintains the essence and true meaning of democracy.
“Rule of Law” regards all human beings as equal and that everyone deserves equal protection of the law. It states that the law of the land takes supremacy over all biases and prejudices and to maintain this any person irrespective of class, caste, gender, etc., will be punished if he breaks any law.
Plato defined rule of law as a law supreme in nature dominating every class of people.
Aristotle believed that law should be the final sovereign and no one should be above it.
Edward Coke’s definition of rule of law: Rule of law means the absence of arbitrary power on the part of the government and that no one should be punished except for a specific breach of law substantiated in the ordinary legal manner before the ordinary courts of land.
According to Albert Venn Dicey, “the rule of law means the absolute supremacy or predominance of the regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness or even of wide discretionary authority on the part of the government.”
III. Origin and Evolution of Rule of Law
The concept of “Rule of Law” is not novel, rather its roots go back to the 6th century BC, the epoch of Plato and Aristotle. During this time, Greece and Rome were delved into a series of philosophical discussions about the importance of law in society. In the book The Laws, Plato recognised the notion that government should be subservient to the law.
Aristotle, his student carried forward this idea and ameliorated it in The Politics where he connoted “rule of law” with reason and “rule of man” with passion, importing that government should be bound by law in order to eliminate arbitrariness.
During the promulgation of the Magna Carta in 1215, this concept was recognised after a long series of revolts by the nobility against the king following his attempts to extract more resources from them to fund the war in France. One of its noteworthy provisions declared that no person should be deprived of their liberty or property “except by the lawful judgement of his equals or by the law of the land”.
John Locke, father of liberalism formulated the “social contract” theory in his book Two Treatises of Government (1690) under which he argued that individuals had voluntarily coincided to surrender their natural rights in lieu of an assurance that their personal freedom and liberty will be protected by a governing authority through the promulgation of various laws. Therefore, he asserted the importance and supremacy of laws over any governing authority.
Montesquieu further refined this concept in his book L’Esprit des Lois (1748) where he formulated his theory for separation of powers in which he divided the powers of the government into three branches, so that avoid the accumulation of all the powers under one authority. Unlike the previous scholars, Montesquieu paid extreme importance to the role of the judiciary which should check the unbounded powers of the executive and legislature, to ensure rule of law.
Sir Edward Coke is credited for framing the word “rule of law” derived from the French phrase ‘La Principe de Legalite’ which means the principle of legality. In the nineteenth century, British constitutionalist Albert V. Dicey popularised the phrase “rule of law” through his writings.
In his book Introduction to Study of the Laws of the Constitution (1885) where he explained his three principles of the “Rule of Law”. In the Austrian Constitution, Hans Kelsen also included this concept (Rechsstaat), according to which all laws are subject to compliance with the constitution and government action is constrained by this legal framework.
With the adoption of the Universal Declaration of Human Rights in 1948, the “rule of law” was recognised as a global ideal and the General Assembly of United Nations proclaimed that “it is essential if a man is not to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law”.
IV. Principles of Dicey’s Rule of Law
Professor Dicey recognised three core principles of rule of law.
- Supremacy of Law– Dicey regarded that the law of the land is supreme in nature and any person violating it will be punished accordingly. This denotes that no person can be made liable or punitively suffer in terms of his body or his goods unless there is enough evidence to prove a distinct breach of law established under the ordinary legal manner before the ordinary courts. Thus, no person must be punished or tormented according to the whims and fancies of administrative authorities but only in accordance with the established law and procedures.
- Equality before law– This principle states that every person irrespective of class, caste, gender, etc., is subjected to the ordinary law and is under jurisdiction to ordinary court and not to any special court. This implies that government officials should not enjoy special immunities (save for the monarch) and should be held accountable for their actions before the ordinary courts. The authorities cannot bend the laws to provide any sort of special treatment to any particular individual or the law cannot become harsher to another individual. Therefore, the same set of laws will apply to all people.
- The predominance of legal spirit– This doctrine states the independence of the judiciary to enforce the spirit of rule of law. The court of law is a significant institution that has commendably contributed to determining and maintaining the rights of private persons and the general principles of the Constitution are the result of these judicial decisions. Dicey contended that the constitution does not constitute to be a source of the constitution rather judiciary is synonymous with it. Therefore, Dicey was not satisfied to just write these rights in the constitution but that they should be enforceable in a court of law and to achieve this, the judiciary should be impartial and independent.
V. Critical Analysis of Rule of Law
Dicey’s principle of “Rule of Law” forms an imperative pillar for sustaining democracy and basic human rights but to apply it triumphantly, analysis of its merits, demerits and its application in different case laws around the world will assist us in understanding how it should be applied and how it has been accommodated in different democracies.
1. Excellencies of “Rule of Law”
- Ensures independence of the judiciary– The third principle of Dicey focuses on maintaining the freedom of the judiciary as it plays an important role in enforcing the basic rights of people. Judiciary constitutes the third pillar/estate of democracy and Montesquieu, in his theory of “Separation of Powers” has emphasised its importance to maintain a system of check and balance on the Legislature and Executive. This can be done by auditing the various laws and statutes which transgresses the elementary features of the constitution, for instance, any law which flouts the basic human rights, encourages discrimination on any basis, etc., and to scrutinise the actions of executive bodies to prevent them from committing any extrajudicial actions or failing to practise the due course of law.
- Endorses the freedom of people– The foundation of “Rule of Law” is the law of the land, but Dicey’s principle ensures that the laws do not hamper with human rights including freedom to speech and expression, freedom to have a decent life, etc., as the obligatory obedience and equal application of unjust laws will not make any difference in society. Therefore, through the illustration of the independence of the judiciary, Dicey throws light on its role in securing the rights of private citizens. Through various landmark judgements, courts have set precedents that will prevent any government or private agency from impeding the rights of any individual.
For example, in Keshavananda Bharti v. State of Kerala, the unlimited power of the legislature to amend any part of the Constitution was circumscribed by recognising the ‘rule of law’ as part of the basic structure of the constitution. Through this, the rampant misuse of the power of amending the Constitution came to a halt as no amendment could be brought if it hampers the basic structure of the Constitution (including human rights).
- Dissuades arbitrariness on the part of administrative authority– In a just society, the laws are meant to be applied equally on all persons in the same degree and essence without deviating from the omphalos of the said law. Ensuring this requires the elimination of arbitrariness or wide discretionary authority to a large extent which is guaranteed by the “Rule of Law”. The laws lose their significance when they are misused or used in a whimsical manner by any authority, therefore it is imperative to distinguish between the will of the law or the will of the authority by allotting apex position to the former. Therefore, lex terrae is supreme to any government authority and no activity can occur which contravenes it. Any kind of arbitrary action like giving immunity against any liability to a certain class of people or applying the law harshly to another class does not have any locus standi under this principle.
In P. Royappa v. State of Tamil Nadu, the Supreme Court observed, “Where an act is arbitrary it is implicit in it that it is unethical both according to political logic and constitutional law and is, therefore, violative of Article 14. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory diktats”. This was further repeated in the case of D.S. Nakara & Others v. Union of India.
- Preservation of the Constitution– The aspiration with which a constitution is constructed is that it defines and distinguishes the character of any state, the goals and objectives a state wants to achieve, the rights and benefits a state seeks to provide to its citizens, the framework and blueprint of how the government and legal system should work allocating their respective powers and responsibilities.
The concept of ‘rule of law’ whose core principle is to safeguard and to obey the law of the land, and therefore, it helps in the preservation of the Constitution and its ideals as the Constitution forms the lex loci of the state. By conserving its objectives, this principle prevents the extra-judicial exercise of power and averts any attempt to infringe the fundamental rights of any person. Thus, it ensures stability and consistency in the laws and makes sure that they are not changed very frequently or for benefit of an individual or a group of people only.
- Advocates qualitative standard of life– Rule of law champions the qualitative standard of living if it operates to the letter. In the present scenario, the purview of ‘rule of law’ has broadened and apart from strictly abiding to the ordinary laws, this principle now also endorses the creation of the social conditions that would make it possible for the citizens to enjoy the social order.
2. Demerits of Rule of Law
- Categorising discretionary power along with arbitrary power– Dicey mistook discretion as synonymous with arbitrariness. He advocated that every administrative action should strictly abide by the law of the land without leaving any scope of applying discretion. Dicey failed to extrapolate that brassbound obedience of the laws does not guarantee justice or the ideals of the democratic and modern constitution. The ratification and obtaining consensus over laws do not define its credibility and application for eternity and therefore, they need to be re-interpreted, amended and replaced from time to time which requires discretion and conscience. If we intend to apply the objectives of the laws on the ground level, exercise of discretion and conscience is the way to do so.
For example, if a law intends to distribute 2 kgs of rice to all families below the poverty line (BPL), here the purpose of the law is to assist the poor masses in their basic requirements, if an official while distributing the goodies recognises that each BPL family has varying numbers of members and to distribute the scheduled amount of rice to the family of 9 members in the same way as distributed to a family of 3 members would not ensure justice and equity although the official strictly abided by the law. So, if the official exercises his discretion and distributes the quantity of rice proportionately to the members of the family that will satisfy the objective of the law.
In Satbir v. Surat Singh & Ors, the court held that ordinarily, this Court does not interfere with an order of acquittal recorded by the High Court; but if the High Court arrives at its findings overlooking important facts and relying upon few circumstances which do not in any way impair the probative value of the evidence adduced during the trial, this Court would be failing in its obligation to do complete justice if no intervention is done with such order of acquittal.
- Contradictory– Dicey allocated huge importance to the role of the judiciary in establishing and safeguarding the rights of private persons. But, this noble ideal stands in contradiction to the strict obedience of the law which eliminates any possibility of discretion. Judiciary’s role in maintaining and ensuring human rights cannot always be accomplished just by strictly obeying the laws as the possibility of any contingent situation cannot be eliminated just by ratifying the laws, hence providing the liberty of discretion to administrative authorities help in ensuring the objectives and motives of the lex loci.
In I. C. Golaknath and Others v. State of Punjab and Anr., Chief Justice Koka Subba Rao for the first time invoked the doctrine of Prospective overruling and by a thin majority of 6:5 ratio overturned the earlier precedents and made Fundamental Rights out of the ambit of the government’s amending power. The judges, in this case, employed the power of their discretion and conscience in considering the earlier precedents set in Shankari Prasad v. UOI and Sajjan Singh v. State of Rajasthan as not fit to be followed in the future judgements as the earlier judgements did not safeguard the fundamental rights and therefore had to be remedied leading to the introduction of Prospective Overruling.
- Overemphasis of the role of Judicial Decisions– Dicey exaggerated the importance of judicial decisions in ensuring the rights of private persons or bringing reformation in society. The rationale given by Dicey completely disregard the role of the legislature in securing the rights of people but in fact over the centuries when the judiciary’s role was not well-defined and it did not possess any autonomy, the legislature had not taken a back seat in ensuring the rights of people. For example, in India, the promulgation of the Equal Remuneration Act, 1976, prevented discrimination against women in receiving equal recompense as provided to men. Similarly, through the Hindu Succession Act, 2005 a daughter’s right to be an equal coparcener as a son in claiming her share in the ancestral property of the Hindu Undivided Family was established and any sort of discrimination in claiming her right was deemed to be unlawful. In Britain, the right to Unemployment Insurance has been given to the people under the Parliamentary Acts. Similarly, the Libel Act of 1888 gave certain special rights to the press.
In the USA, the ratification of the Civil Rights Act (1964) prohibited discriminatory behaviour in public places along with employment discrimination based on race, colour, religion, sex or national origin, in the same way, the Voting Rights Act (1965) ensured the voting rights of blacks and abolished any discrimination that blacks faced during voting. Therefore, the legislature has also contributed to maintaining people’s rights and curing any kind of oppression.
- Allotting undue moral superiority to Judiciary– In the modern age, the role of the judiciary as the saviour of human rights or as an inspector, checking extra-constitutional behaviour of the legislature and executive is a dominant feature of determining the power dimensions among the three organs. Judiciary has often succeeded with flying colours in protecting democracy, human rights and guaranteeing justice but it is an ugly truth that the judiciary has not always fulfilled its ethical and moral duty. Dicey mistook the judiciary as the only organ to be an impeccable and ethical body guaranteeing justice and human rights. Allotting this moral superiority to an institution that is not even subjected to proper auditing or reviewing accumulates a particular body with too much power and less accountability.
Former Chief Justice JS Verma recognised this truth on one of the occasions, “These days we (Judges) are telling everyone what they should do but who is to tell us? We have the task of enforcing the rule of law, but does not exempt and even exonerate us from following it”. Thus, a system of check and balances on legislature and executive by the judiciary is not enough to prevent authoritarian behaviour but the judiciary should also be subjected to some form of inspection (without any interference in its independence) as well, to secure the true essence of ‘rule of law’.
VI. Application of Rule of Law in India
Dicey’s concept of ‘Rule of Law’ has been embraced by the Indian Constitution and by a humungous range of judgements. Our Common Law system has been borrowed from British Jurisprudence, the basis of which is the ‘Rule of Law’.
1. Some of the articles of our Constitution states its application and they are:
- Article 13(1): It states, “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void”. It means that the constitution shall be the supreme power in the land and the legislative and the executive derive their authority from the constitution. Any law that is made by the legislature has to be in conformity with the Constitution failing which it will be declared invalid.
- Article 14: It states, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. It denotes that all persons irrespective of any divisions is subjected to the same set of laws and no one is above the law. Hence, no person will either get immunity against any law or will be treated exceptionally harshly by the law.
- Article 21: It states, “No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India.” Article 21 provides a further check against arbitrary executive action by stating that no person shall be deprived of his life or liberty except in accordance with the procedure established by law. This article is in consonance with Dicey’s first principle, “Supremacy of Law” which eliminates any possibility of arbitrary action by administrative authorities.
- Article 32 and 226: To ensure its honest applicability in India, the Constitution provides remedies to secure fundamental rights in the form of writs like Habeas Corpus, Mandamus, Quo Warranto, Certiorari and Prohibition.
2. Role of Indian Judiciary in the application of ‘Rule of Law’
- A D M Jabalpur v. Shivkanth Shukla: (the Habeas Corpus Case.) In this case, the question before the court was ‘whether there was any rule of law in India apart from Article 21’. The context in this case was of abeyance of implementation of Articles 14, 21 and 22 during the proclamation of an emergency. The answer to the majority of the bench was in negative for the question of law. However, Justice H.R. Khanna had a distinct opinion observed that:” Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…Rule of Law is now the accepted norm of all civilized societies”.
- Chief Settlement Commr; Punjab v. Om Prakash: It was observed by the Supreme Court that, “In our constitutional system, the central and most characteristic feature is the concept of rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the matter into notice.”
- Satvant Singh Sawhney v. D Ramarathanana: The Supreme Court has held that every executive action if it operates to the prejudice of any person, must be supported by some legislative authority.
- Secretary, State of Karnataka and Ors. v. Umadeviand Ors: A Constitution Bench of this Court has laid down the law in the following terms: “Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution.”
- Keshavananda Bharati v. State of Kerala: The Supreme Court held that the Rule of Law is an essential part of the basic structure of the constitution and as such cannot be amended by any Act of Parliament, thereby showing how the law is superior to all other authority of men.
- Maneka Gandhi v. Union of India: The Court held that exercise of power in an arbitrary manner by the government would not infringe the rights of the people and arbitrariness violates Article 14 of the Indian Constitution.
- Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil: The Court observed that for survival of democracy, rule of law must prevail, and it is necessary that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values who win the elections on a positive vote obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits of the candidates.
VII. Case laws applying Rule of Law around the world
- Entick v. Carrington: This is a case of United Kingdom, Lord Camden, the Chief Justice of the Common Pleas ruled which later became a general principle that the state may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law. Hence, it established the limits of executive power in English law: the state may act lawfully only in a manner prescribed by statute or common law. The decision in this case also had global ramifications. It heavily influenced the drafting of the US Constitution, credited by many as the principal influence behind the Fourth Amendment. Its effects are also felt in Australia, influencing major constitutional decisions such as that in A v Hayden. Articles 6 and 8 of the European Convention on Human Rights, guaranteeing a fair trial as prescribed by law and right to private life respectively, can also be said to trace their DNA back to this case.
- Batson v. Kentucky: This case is the landmark case of securing Fourteenth Amendment Rights in USA and bolstered ‘Rule of Law’. In a 7-2 decision, the Court held that by using peremptory challenges to remove a potential juror from the jury pool based on race, the state violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution and observed, “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”
- Plyler v. Doe: Also, a landmark case that secured Fourteenth Amendment Rights. By a 5–4 vote, the Court concluded that the Texas legislation (which denied enrolment in their public schools to and withhold any state funds for the education of children who were not “legally admitted” to the country) violated the Equal Protection Clause. The Court explained that “education has a fundamental role in maintaining the fabric of our society” and “provides the basic tools by which individuals might lead economically productive lives to the benefit of us all.”
- Rose v. Johannesburg Local Road Transportation Board: This is a case of South Africa. Justice Lucas observed, “The right of everyone to equal justice before the law, the rule of law, requires that every party in a matter upon which a judicial body is called upon to give a decision should be entitled to what must appear to be fair, unbiased and impartial consideration of his case.”
- Krohn v. Minister of Defence: Also, a case of S. Africa, here Chief Justice Innes remarked, “Every subject high or low is amenable to the law, but none can be punished save by properly constituted legal tribunal. If any man’s rights or personal liberty or property are threatened, whether by the government or private individual, the Courts are open for his protection.”
- R. v. Jaser: The Ontario Superior Court of Justice (Canada) was asked to find that the law governing a trial should be in accordance with a holy book rather than the Criminal Code of Canada. The Court held that the Rule of Law was a fundamental principle of the Canadian Constitution and that the Criminal Code was part of a system of “positive laws” that governs in Canada and cannot be overridden.
- Director of SSS v. Agbakoba: The Supreme Court (of Nigeria) affirmed the decision of the Court of Appeal by observing that respondents were liable for violating the appellant’s right to personal liberty, freedom of thought, freedom of expression and freedom of movement guaranteed respectively by section 32, 35, 36 and 38 of the 1999 Constitution and ordered by the order of Mandamus to release the applicant’s passport forthwith.
Dicey’s doctrine of ‘Rule of Law’ is fundamental to the constitutions of most democracies. Although the world has treaded a long way since the prejudicial and biased colonial era but to receive equal treatment is still a far- fetched dream for many people who are hitherto bound to live an oppressive and unfair life. Thus, constructing landmark concepts and doctrines aimed at developing the society plays only a partial role but to bring a change in actuality expects an endeavour from all the sections of society.
 Keshavananda Bharti v. State of Kerala AIR  SC 1461.
 Satbir v. Surat Singh AIR  SC 1160
 INDIA CONSTITUTION, Article 14.
 INDIA CONSTITUTION, Article 21.
 A D M Jabalpur v. Shivkanth Shukla AIR  SC 1207, para 154
 Chief Settlement Commr; Punjab v. Om Prakash AIR  SC 33
 Supra note 6
 Satvant Singh Sawhney v. D Ramarathanana AIR  SC 1836, para 33
 Supra note 10.
 Secretary, State of Karnataka and Ors. v. Umadevi and Ors AIR  SC 1806
 Supra note 12
 Supra note 1
 Supra note 14
 Maneka Gandhi v. Union of India AIR  SC 597
 Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil AIR  SC 678
 Entick v Carrington (1765) 19 St Tr 1030
 Boyd v United States 116 U.S. 616 (1886)
 Batson v. Kentucky, 1986 U.S. LEXIS 150
 Plyler v. Doe, 457 U.S. 202 (1982)
 Rose v. Johannesburg Local Road Transportation Board, 1947 4 SA 272 (W)
 Krohn v. Minister of Defence,  So. Afr. L.R. 191, 197 (App. Div.)
Director of SSS v. Agbakoba (1999) 3 SC 77