The Concept of Rule of Law

The entire base of 'Administrative Law' rests on the concept of the 'Rule of Law'. No Constitution of any country can function and no nation can march along the true democratic way of life without a true and continuous realization of the importance of the 'Rule of Law' and of judicial review of legislative and executive action.

The expression 'Rule of Law' has been derived from the French phrase 'la principle de legalite', which means the principle of legality and which refers to a Government based on the principles of law and not of men. In simple words, the expression 'Rule of Law' indicates the state of affairs in a country where, in main, the law rules. Thus, it provides protection to the people against the arbitrary action of the Government and its officials by compelling them to exercise their powers in accordance with the law. 2 Historical Background of the Concept of Rule of Law

The concept of the 'Rule of Law' is indeed very ancient. It is said that the Holy Roman Emperor Konrad II (1024-1039 A. D) decreed in his great law compilation of May 28, 1037 that no holder of a feudal estate 'shall be deprived of his fief……. , but by the laws of the Empire and the judgment of his peers. ' More known is King John Lackland's English Manga Carta of 1215 which in Chapter 39 postulated: "No free man shall be taken or arrested or exiled or in some way destroyed, nor will we go upon him, except under a lawful judgment and by the law of the land. "3 Origin of the Concept of Rule of Law

Sir Edward Coke, the Chief Justice in James I's Reign is said to be the originator of this great principle. He expressed the view that the King must be under the God and the law and thus he vindicated the supremacy of law over the pretensions of the executive. Later on Professor A. V. Dicey developed this concept in the course of his lectures at the Oxford University. Dicey wrote about the concept of 'Rule of Law' in the fourth Chapter of his classic book, "The Law of the Constitution" (published in 1885) at the end of the golden Victorian Era of laissez faire4 in England.

According to Professor Dicey, whenever there is discretion there is room for arbitrariness and the 'Rule of Law' is opposed to the arbitrary powers of the Government and its officials. Meaning of the Expression Rule of Law The 'Rule of Law' is a dynamic concept and is not capable of any exact definition. This, however, does not mean that there is no agreement on the basic values which it represents. The term 'Rule of Law' is used in contradiction of the rule of man. In the system in which 'Rule of Law' prevails, it is the law that rules even though through the instrumentality of man and not the man independently of or above the law.

In this sense the 'Rule of Law' is an ideal. It is the modern name of the 'natural law'. 5 In Jurisprudence, Romans called it 'jus naturale', Mediaevalists called it the 'law of God', Hobbes, Locke and Roussueau called it 'social contract'6 and its modern name is 'Rule of Law'. According to H. W. R. Wade, the 'Rule of Law' has different meanings. Its primary meaning is that every thing must be done according to law. Applied to the powers of Government, this requires that every Government Authority which does some act which would otherwise be a wrong or which infringes a man's liberty must be able to justify its action as authorized by law.

The secondary meaning of the 'Rule of Law' is that the functions of the Government should be conducted within a framework of recognized rules and principles which restrict discretionary power. 7 According to Garner, the 'Rule of Law' is often used to describe the state of affairs in a country where, in main, the law is observed and order is kept. It is an expression synonymous with 'law and order'. 8 However, to the public lawyers it is linked with the writings of Dicey. Dicey's Formulation of the Concept of Rule of Law

According to Dicey the concept of 'Rule of Law' forms the basis of the English Constitutional Law and it has three meanings: 1. Supremacy of law; 2. Equality before law; and 3. Predominance of legal spirit. 1. Supremacy of law: – It means the absolute predominance of regular law as opposed to the influence of discretionary power and excludes the existence of arbitrariness. It prohibits wide discretionary powers in the hands of Government officials. It implies that justice should be done according to the established or written principles of law and not according to the discretion vested with the individuals (Government officials).

In other words, 'no man is punishable or can lawfully be made to suffer in body or goods except for a breach of established law in the ordinary legal manner before the ordinary Courts of the land'. Accordingly Wade also says, "The 'Rule of Law' requires that the Government should be subject to the law, rather then the law subject to the Government. "9 2. Equality before law: – It means the equal subjection of all persons to the ordinary law of the land administered by the regular law Courts. The 'Rule of Law' in this sense excludes the idea of any exemption of government officials from the subjection to regular law Courts like other citizens.

It means that cases of citizens against the government should not be decided by the administrative tribunals, where the government officials act as judges because such tribunals while deciding the cases of citizens gives preference to Government and hence equality before law is denied to ordinary citizens. 10 According to Dicey in England all persons were subject to one and the same law, and there were no extraordinary tribunals or special Courts for Government officials and other authorities.

In this connection he criticized the French legal system of 'droit administratif' in which there were separate administrative tribunals for deciding cases between the government officials and the citizens. In his view, exemption of civil servants from the jurisdiction of the ordinary Courts of law and providing them with the special tribunals was the negation of equality. 11 3. Predominance of legal spirit: – By this Dicey means that the general principles of the Constitution are the result of judicial decisions of the Courts in England.

In many countries rights are guaranteed by a written Constitution; in England it is not so. Those rights are the result of judicial decisions in concrete cases which have actually arisen between the parties. In this way he emphasized on role of Courts as the guarantor of liberty. Dicey apprehended that if the source of the rights of people is any written Constitution, the rights can be abrogated at any time by amending the Constitution. According to him without enforcement machinery there is little value of rights in documents. In this way Dicey's 'Rule of Law' postulates judicial supremacy. 12

Evaluation of Dicey's Rule of Law Dicey's 'Rule of Law' is a standard to judge the action of the government departments concerning the individual citizens. It proved to be a powerful instrument in controlling the administrative authorities within their limits and saves the citizens from arbitrary exercise of powers, provides equality before Law and therefore, legal spirit predominantly prevails13. According to Wade, the British Constitution is founded on the doctrine of Rule of Law. Similar is the view of Yardley that in broad principle the 'Rule of Law' is accepted by all as a necessary Constitutional safeguard. 14 Criticism

Dicey's 'Rule of Law' is not free from criticism. His views about 'Rule of Law' have been criticized by many writers. It is observed that Dicey ignored the realities in England and misinterpreted the situation in France. The criticism can be summarized in the following manner:- 1 Dicey denied the existence of Administrative Law in England but it is interesting to note that his contemporary, Maitland, perceived its emergence15. By 1915 Dicey himself asserted the emergence of Administrative Law in England, though in the final analysis he asserted that it is not a true Administrative Law because the supremacy of ordinary Courts prevails.

16 2 According to Dicey, where there is discretion there is room for arbitrariness. Thus he failed to distinguish between discretionary power and arbitrary power. While the arbitrary power is repugnant to the rule of law, discretion, unless exercised improperly is not. The modern welfare state can not function without discretionary power as the functions of the modern welfare state are so complex, varied and multifarious that the legislature can't anticipate and to provide for the same.

Wade and Phillips observed: "If it is contrary to the 'Rule of Law' that discretionary authority should be given to Government or public officers, then the 'Rule of Law' is inapplicable to any modern Constitution"17. As per Wade, if Dicey had chosen to examine the scope of Administrative Law in England, he would have to admit that even in 1885 there existed a long list of Statutes which permit the exercise of the discretionary powers, such as Public Health Act which gave wide discretionary powers to the Government officials to enter upon private properties.

18 In reality the Administrative Law is much concerned with the control of the discretionary power of the administration. The present trend is that the discretionary power is given to the government or administrative authorities but according to the guidelines or principles laid down by the concerned Statute. 3 Dicey supported equality before law, but in practice it is not possible to have absolute equality. Even during Dicey's time the Crown and its servants enjoyed special privileges, immunities and vast discretionary powers on the basis of the doctrine that 'The King can do no wrong'.

Some Acts such as Constable Protection Act, 1750 gave special immunity and protection to police officers. 19 4 According to Dicey no person should be arrested or punished except in case he breaches the law but the law does not really ensure that this fortunate state of affairs shall continue; as it was during two world wars. In time of emergency there is nothing to stop the legislature from empowering the executive to imprison any person suspected of having enemy association20. 5 According to Dicey the Constitution is the result of the judicial decisions determining the rights of individuals in particular cases brought before the Courts.

This is true for England as its Constitution is unwritten and contains the principles evolved through judicial decisions. But this does not hold good in India, USA etc. For example, the Indian Constitution is not the result of judicial decisions. The ordinary law is governed by the Constitution and any law which is against the Constitution of India is declared void by the Courts. 21 6 Dicey said that there were no extraordinary tribunals or special Courts in England, but at his time there were special Courts present in England such as Admiralty Courts. Moreover special tribunals were not totally absent in England when Dicey wrote his thesis.

The Poor Law Amendment Act, 1834 created the Poor Law Board which had wide powers of rule making and adjudication of disputes. 22 John Dickenson says: "In so far as administrative adjudication is coming in certain fields to take the place of adjudication by the law Courts, the supremacy of law as formulated by Dicey is overridden. "23 7 Dicey misunderstood the real nature of the French system of 'droit administratif'. He thought that this system was designed to protect public officials from liability for their acts, and as such, was inferior to the British system of ordinary Courts deciding disputes between the citizens and the State24.

Even today English Judges speak as if 'droit administratif' is a system for putting the executive above the law. Thus Lord Denning has said: "Our English law does not allow a public officer to shelter behind droit administratif. " But in fact the French Administrative Law has a system of compensation for the wrongs of public officers which is in some respects more generous and effective in controlling the administration than that of English law and it is widely admired and followed by other countries.