Meaning and Origin: The rule of law is a product of centuries of struggle of the people for the recognition of their inherent rights. In classical Greece Aristotle wrote that “law should be the final sovereign”. In 1215, the Magna Carta checked in the corrupt and whimsical rule of King John by declaring that government should not proceed except in accordance with the law of the land. During the thirteenth century, Thomas Aquinas argued that rule of law represents the natural order of God as ascertained through divine inspiration and human resource. In the seventeenth century, the English jurist Sir Edward Coke asserted that the “king ought to be under no man, but under God and the law.” Despite its ancient history, the rule of law is not celebrated in all quarters. The English philosopher Jeremy Bentham described the rule of law “nonsense on stilts.” The twentieth century has seen political leaders who have oppressed disfavored persons or groups, without warning or reason, governing as if no such thing as rule of law existed. For many people around the world, the rule of law is essential to freedom.
The most famous exposition of the concept of rule of law has been laid down by A.V. Dicey (Law of the Constitution) who identifies three principles which together establish the rule of law:
- The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power.
- Equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and
- The law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts
When explained, it amounts to, in Dicey’s own words:
“……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. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment or to payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] …. And all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorize as is any private and unofficial person.”
Criticisms: Dicey’s concept has been criticized because of the predominance of ordinary laws and absence of arbitrary power. Discretionary power is a must when it comes to application of laws by the governmental agencies like impartial and independent tribunals. Due to these limitations the rule of law still remains a cardinal principle of every democratic government. It is true that delegated legislation and administrative jurisdiction are both the worst enemies of rule of law. The development of delegated legislation and administrative justice, however are not only inevitable, but also, with proper modification and safeguards, desirable.
Dicey’s notions may have been criticized but the main idea behind rule of law still holds i.e. protection of individual rights and liberties. For a democratic government, the rule of law is a basic requirement; and for the maintenance of rule of law, there must be an independent and impartial judiciary. It is embodied in the concept of rule of law that equality before the law or equal protection of laws is ensured to all citizens, and every citizen is protected from arbitrary exercise of power by the state. Thus, in a state professing the rule of law, the aim should be to provide for a system which secures to its citizens adequate procedure for the redress of their grievances against the state before forums, which are able to administer justice in an impartial manner without any fear or favour. Each country has devised its own system to ensure the maintenance of the rule of law. The rule of law pervades the entire field of administration and regulates every organ of the state.
Rule of law in India: The Constitution of India specifically provides that the state shall not deny to any person equality before the law or the equal protection of the laws. The concept of rule of law would lose all its vitality if the instrumentalities of the State are not charged with the duties of discharging their functions in fair and just manner. It has been held that the rule of law pervades the constitution as its basic feature and cannot be taken away even by an amendment of the constitution. In a system governed by rule of law, discretion when conferred upon executive authorities, must be confined within clearly defined limits. This means that decision should be made by the application of known principles and rules and, in general, such decisions should be predictable and citizens should know where he stands.
The Constitution lays down in Part IV the directive principle of state policy. It enjoins the State to bring about a social order in which justice – social, economic and political – shall govern all the institutions of national life. The rule of law promotes the lofty ideals enshrined in the directive principles of state policy and draws its sustenance from the higher judiciary, which upholds the constitutionality of laws keeping in view the philosophy of these ideals.
A growing threat to the rule of law is coming from undue delay in judicial proceedings. In order to ensure the rule of law, the system must, therefore, ensure effective and expeditious remedies against the violation of laws.