RULE OF LAW
Rule of law is a dynamic concept and is one of the essentials of a constitution based on Democracy. It heralds the “Supremacy of Law’ and is opposed to the Rules of man. Bracton in the 13th century had said” Even the Rulers are subject to law’, Fortseque uses this rule to justify that tax could not be imposed without “law made by the Parliament”. It was Chief Justice Coke who originated it in England. The modern concept of rule of law was expounded by Dicey and his exposition has three importance factors:
i) The rule against arbitrariness :-
This means that Administrative officers should not exercise their powers arbitrarily and even an act of an officer must have some basis in the “Act” of the legislature or the rule authorizing him to do it. Hence, the Executive officer should exercise only those powers which are authorized by legislature. This is what Dicey meant when he said that the rule of law in operation. Further, it should be noted that no discriminatory power should be given to the executive officials by Act or by rules. Ultimately all the powers are to be controlled by the Constitution. This is the effective part of the rule of law. Administrative powers are limited by legislation. But the Parliament itself is controlled by the people.
The second part of the rule of law is that among equals law should be equal and should be equally administered. It means that the like should be treated alike. To Dicey, this is ‘equality before the law’ He declared that “no one should be made to suffer in body or goods except for a distinct breach of law. It also means that “all persons must be amendable to the ordinary jurisdiction of the court”. Rule of law contains the guiding principles to the administrators. They should exercise their powers without making discrimination between persons and persons in society. If they excercise this power arbitrarily or by making discrimination, then, it should be controlled or corrected by Judicial scrutiny.
In India the Supreme Court and the High Courts have powers to issue writs in the nature of Habeus corpus., Mandamus, quo warranto, prohibition and certionari Arts. 32 & 226 Rule of law according to Dicey does not accept the French “droit-administratiff”, as, it makes special provisions and provides for special treatment to the Government officials who exercise their power in the colour of their office. In India, the courts have held that such exercise of power by the Govt officials –Central and States- is subject to Judicial scrutiny. Administration of Justice has the rule of law as its basic foundation. It means Justice should be available to all. It should be equal and should not favour any particular individual in the society. It also means ‘ No-individual shall be given preference on the grounds of his religion, race, caste, place of birth, political influence etc. Hence, Justice under the rule of law is free from discrimination and bias.
iii) Common Law Rights:
According to Dicey, the third limb of the rule of law is that the Constitution of England is the consequence of the common law right of the individuals, and hence common law is the source of the freedom of the people. If the rights are based on a document like the Constitution, by amending the constitution, by the Parliament, the rights can be abrogated or denied. In A.D.M. Jabalpur V. Shukla our Supreme Court erred in holding that Art 21 of the Constitution was suspended & hence., there was no remedy by writ under an emergency. This was corrected by the 44th Amendment & hence habeas corpus cannot be suspended even in emergency. The Supreme Court held that Rule of law is the basic structure of the constitution and, cannot be amended under Act, 368 of the constitution.(Minerva Mill’s Case), Rule of law ‘is explained in Indira Gandhi V. Raj Narain & Keshavananda Baharathi’s case In Miss Veena Seth V, State of Bihar, the Supreme Court extended Rule of Law to the poor, the downtrodden, the ignorant, the illiterate-against exploitation. The rule of law aims at protecting the individual his life, liberty and property.
State & Rule of law :
Director of Rations was prosecuted by Corporation of Calcutta as he had not taken out license for storing etc. The question before the Supreme Court was whether the state was bound by its statute. Held: State not bound by statute. [Dir. of Rationing V. Corpn of Calcutta I960]. This was overruled by Supreme Court in Supt of legal affairs W. B V. Corpn of Calcutta, under “Rule of law”, State was held bound to take out license etc. The English concept of Royal prerogative is not applicable in India. Entinck V. Corrington : U. K case D had entered P’s house by breaking open the doors, and had seized certain papers. The court awarded compensation to P as D had entered and seized papers. D’s defence that his act was authorised by the Secretary of State was rejected by the House of Lords. It upheld the Supremacy of Law and held that the Secretary of State had no statutory authority & hence had no power to issue a warrant for search. Thus, rule of law as the basic principle of Administrative law in England, USA, India etc.,
RULE OF LAW