The concept of “Rule of Law" is the building block on which the modern democratic society is founded. For the successful functioning of the polity it is imperative that there is enforcement of law and of all contracts based on law. Laws are made for the welfare of the people to maintain harmony between the conflicting forces in society. One of the prime objects of making laws is to maintain law and order in society and develop a peaceful environment for the progress of the people. The concept of Rule of Law plays an important role in this process.
The term “Rule of Law" is derived from the French phrase 'La Principe de Legality' (the principle of legality) which refers to a government based on principles of law and not of men. In a broader sense Rule of Law means that Law is supreme and is above every individual. No individual whether if he is rich, poor, rulers or ruled etc are above law and they should obey it. In a narrower sense the rule of law implies that government authority may only be exercised in accordance with the written laws, which were adopted through an established procedure. The principle of Rule of Law is intended to be a safeguard against arbitrary actions of the government authorities. The rule of law has been described as a “rare and protean principle of our political tradition". The rule of law centrally comprises “the values of regularity and restraint, embodied in the slogan of “‘a government of laws, not men’". The term Rule of Law does not provide any thing about how the laws are to be made, or anything specific like the Fundamental Rights or the Directive principles or equality etc. but it provides for two basic concepts that is Law must be obeyed by the people and that the law must be made in such a way that it is able to guide the behaviour of its subjects. Different legal theorists have different approaches towards the concept of Rule of Law. Some believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law. While other legal theorists believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches.
ORIGIN OF THE CONCEPT OF RULE OF LAW
The concept of Rule of Law is very old. In the thirteenth century Bracton, a judge in the reign of Henry III in a way introduced the concept of Rule of Law without naming it as Rule of Law. He wrote:
"The king himself ought to be subject to God and the law, because law makes him king."
Edward Coke is said to be the originator of concept of Rule of Law when he said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives. [5] In India, the concept of Rule of Law can be traced back to the Upanishad. It provides that Law is the King of Kings. It is more powerful and higher than the Kings and there is nothing higher than law. By its powers the weak shall prevail over the strong and justice shall triumph. But the credit for developing the concept of Rule of Law goes to Professor A.V. Dicey who in his classic book “Introduction to the Study of the Law of the Constitution" published in the year 1885 tried developing the concept of Rule of Law. As per Dicey no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land. This establishes the fact that law is absolutely supreme and it excludes the existence of arbitrariness in any form. According to Dicey where there is scope discretion there is room for arbitrariness. So Dicey held that every man, whatever is his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.
DICEY'S THEORY of Rule of Law consists of three main principles:
1. Absence of Arbitrary Power or Supremacy of Law: As per Dicey Rule of law means the absolute supremacy of law and 'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land. Diecy was of the view that all individuals whether if he is a common man or government authority are bound to obey the law. He is of the view that no man can be punished for anything else than a breach of law which is already established, and also that the alleged offence is required to be proved before the ordinary courts in accordance with ordinary procedure.
2. Equality before Law: As per Dicey Rule of law, in the second principle, means the equality of law or equal subjection of all classes of people to the ordinary law of the land which is administered by the ordinary law courts. In this sense rule of law conveys that no man is above the law. Even the Government Officials are under a duty to obey the same law and there can be no other special courts for dealing specifically with their matters.
3. Constitution is the result of the ordinary law of the land: As per Dicey, in many countries rights such as right to personal liberty, freedom, arrest etc are provided by the written Constitution of a Country. But in England these rights are a result of the judicial decisions that have arisen due to the conflict between the parties. The constitution is not the source but the consequence of the rights of the individuals.
But this principle of Dicey is not applicable in India as in India we consider the Constitution to be the basic ground work of laws from which all other laws are derived.
COMPONENTS OF RULE OF LAW
Rule of Law is a dynamic concept but it is somewhat difficult to define. Every person has its own way of defining rule of law some think it to be the supremacy of law; some think it to be the principles like clarity, universality, stability etc. Due to all these reasons certain ingredients of Rule of Law have been identified and all which need to exist for the concept of Rule of Law to survive.
- Common ingredients of Rule of Law are:
- a government bound by and ruled by law
- equality before the law
- the establishment of law and order;
- the efficient and predictable application of justice; and
- the protection of human rights.
RULE OF LAW IN MODERN SENSE
Today Dicey's theory of rule of law cannot be accepted in its totality. The modern concept of the rule of law is fairly wide and therefore sets up an ideal for any government to achieve. This concept was developed by the International Commission of Jurists. Known as Delhi Declaration, 1959 which was latter on confirmed at logos in 1961. According to this formulation-
"The rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential to the full development of his personality".
According to Davis, there are seven principal meanings of the term “Rule of law: (1) law and order; (2) fixed rules; (3) elimination of discretion; (4) due process of law or fairness; (5) natural law or observance of the principles of natural justice; (6) preference for judges and ordinary courts of law to executive authorities and administrative tribunals; and (7) Judicial review of administrative actions. So finally it may correctly be said that rule of law does not mean and cannot mean any government under any law. It means the rule by a democratic law-a law which is passed in a democratically elected parliament after adequate debate and discussion. Likewise, Sir Ivor Jennings says -
"In proper sense rule of law implies a democratic system, a constitutional government where criticism of the government is not only permissible but also a positive merit and where parties based on competing politics or interests are not only allowed but encouraged. Where this exist the other consequences of rule of law must follow".
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