These are compiled notes for educational purpose only.

I do not have any kind of ownership

on these notes for legal purposes.

Introduction/ Meaning

Historical origins

Definitions

Dicey’s Rule of Law

Features of Dicey’s Rule of Law

Merits of Dicey’s Rule of Law

Components of Dicey’s Rule of Law

Criticism of Dicey’s Rule of Law

Modern understanding of rule of law

Delhi declaration

K.C. Davis

SC of India

UN Secretary General in report

Lord Bingham

Rule of Law under the Indian Law

Rule of Law under Indian Constitution

Judicial Pronouncements on Rule of Law

Relevance in contemporary times

Exceptions to Rule of Law

Introduction/ Meaning
To simply understand the meaning of rule of law, it means that no man is above law and also
that every person is subject to the jurisdiction of ordinary courts of law irrespective of their
position and rank.

The concept of Rule of Law is that the state is governed, not by the ruler or the nominated
representatives of the people but by the law. A county that enshrines the rule of law would be
one wherein the Grundnorm of the country, or the basic and core law from which all other law
derives its authority is the supreme authority of the state. The monarch or the representatives
of the republic are governed by the laws derived out of the Grundnorm and their powers are
limited by the law. The King is not the law, but the law is king.

The rule of law is a set of principles, or ideals, for ensuring an orderly and just society. Many
countries throughout the world strive to uphold the rule of law where no one is above the law,
everyone is treated equally under the law, everyone is held accountable to the same laws, there
are clear and fair processes for enforcing laws, there is an independent judiciary, and human
rights are guaranteed for all.

The derivation of the phrase ‘ Rule of Law’ is from the French phrase ‘la principe de legalite’
which implies principle of legality. By this phrase it refers to a government based on principles
of law and not of men. One of the basic principles of Constitution is rule of law and this concept
is up to standard in both India and America Constitution.

“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

Historical origins
The origins of the Rule of Law theory can be traced back to the Ancient Romans during the
formation of the first republic.

Greek philosophers such as Plato and Aristotle discussed the concept of rule of law around 350
BC. Plato wrote “Where the law is subject to some other authority and has none of its own, the
collapse of the state, in my view, is not far off; but if law is the master of the government and
the government is its slave, then the situation is full of promise and men enjoy all the blessings
that the gods shower on a state”. Aristotle wrote “law should govern and those who are in
power should be servant of the laws.”
It has since been championed by several medieval thinkers in Europe such as Hobbs, Locke,
and Rousseau through the social contract theory. Indian philosophers such as Chanakya have
also espoused the rule of law theory in their own way, by maintaining that the King should be
governed by the word of law.

The Magna Carta, 1215 although it stands on its own as a historical event with reverberating
consequences in the rule of law tradition, epitomized a third Medieval root of the rule of the
law- the effort of nobles to use law to restrain kings.

The formal originator of the concept of rule of law was Sir Edward Coke the Chief Justice in
James I Reign. He was the Chief Justice during the reign of King James I. He waged a battel
royal against the king, maintaining successfully that the king must be under the Law and God
and thus vindicated the supremacy of law over the pretentions of the executive.

The doctrine of Rule of Law is the entire basis of Administrative Law.

Definitions
According to Sir Edward Coke,

“Rule of Law means:

A) Absence of arbitrary power on the part of the Government.

B) No man is punishable or can be made to suffer in body or good except for a distinct breach
of law established in the ordinary legal manner before the ordinary courts of the land.”

According to Black’s Law Dictionary:

“Rule of Law” means legal principles of day to day application, approved by the governing
bodies or authorities and expressed in the form of logical proposition.

According to Oxford Advance Learner’s Dictionary:

“Rule of Law” means the situation in which all the citizens as well as the state are ruled by the
law.

William Wade and Christopher Forsyth gave 4 meanings to the rule of Law:

1. Everything must be done according to the law (principle of legality)

2. Government should conduct within the framework of recognised rules and principles
which restrict discretionary power.
 3. The third meaning is derived from the 1st one – disputes as to the acts of the government
are to be decided by judges who are independent of the executive
4. All public authorities should be subject to all normal legal duties and liabilities which
are not inconsistent with their government functions.

Basically, rule of law is essential for democratic functioning of a country, for a

representative democracy.

Dicey’s Rule of Law

It would be appropriate to discuss the views of Dicey, as he is known to be the main exponent
of the concept of rule of law. However the origin of his doctrine was attributed to Sir Edward
Coke. He introduced for the first time that, ‘King is under God and the Law.’ The firm base of
rule of law owes its exposition to Albert Venn Dicey. Dicey, in his book Law and Constitution
in the year 1885 further developed this concept given by Coke. According to Dicey’s theory,
rule of law has three pillars based on the concept that “a government should be based on
principles of law and not of men”, these are-

 Supremacy of Law;

 Equality before the Law; and

 Predominance of Legal spirit.

1. Supremacy of Law
This is the first pillar of Dicey’s concept of rule of law. It means that the law rules over all
people including the persons administering the law. According to Dicey the absolute
supremacy of the law as opposed to the arbitrary power of the government is what constitutes
the rule of law. In other words a man should only be punished for the distinct breach of law,
and not for anything else. The person cannot be punished by the government merely by its own
fiat but only according to the established law.

Further, Dicey asserted that discretion has no place where there is supremacy of law. According
to him discretion is a link to arbitrariness. Dicey says that wherever there is discretion, there is
room for arbitrariness and discretionary authority on the part of the government to jeopardize
the legal freedom of the people.
 2. Equality before Law
The second important pillar of Dicey’s concept of Rule of Law is Equality before Law. In other
words, every man irrespective of his rank or position is subject to the ordinary law and
jurisdiction of the ordinary court and not to any special court. According to him special law
and special courts is a threat to the principles of equality. Therefore he is of the view that there
should be the same set of laws for all the people and should be adjudicated by the same civil
courts.

French legal system of Droit Administrative was also criticized by him as there were separate
tribunals for deciding the cases of state officials and citizens separately.

3. Predominance of the legal spirit

The third pillar of Dicey’s concept of Rule of Law is predominance of legal spirit. According
to Dicey, for the prevalence of the rule of law there should be an enforcing authority and that
authority he found in the courts. He believed that the courts are the enforcer of the rule of law
and hence it should be free from impartiality and external influence. Independence of the
judiciary is therefore an important pillar for the existence of rule of law. He asserted that the
courts of law and not the written constitution are the ultimate protector of an individual’s
fundamentals.

Dicey’s theory has been criticised by many from various angles but the basic tenet expressed
by him is that power is derived from, and is to be exercised according to law. In substance,
Dicey’s emphasis, on the whole, in his enunciation of rule of law is on the absence of arbitrary
power, and discretionary power, equality before law, and legal protection to basic human rights
and these ideals remain relevant and significant in every democratic country even today.

Features of Dicey’s Rule of Law

1. Law does not recognises special rights for individuals or group of individuals.
2. Law does not recognise any distinction between individuals.
3. No one should be punished without proper trial.
4. Everyone to be tried in the same court of law under the same law
5. Under the rule of law, there is no scope for arbitrariness.
Merits of Dicey’s Rule of Law

1. Enhances individual rights – the principle focuses primarily on the equality before law
and therefore puts everyone on an equal stratum so that people not only get access to
courts against the people in power but also get fair and just trials. It bars the use of
power by the authority so that no undue influence is done and an equal opportunity and
platform is provided to everyone in order to get justice and stand for their rights.
2. Protects and promotes freedom of judiciary – it ensures that all the functions are
performed smoothly and without any interference from any source whether internal or
external so that fairness and equality is maintained at all the levels and people with
power are not using it to their advantage. This maintains the individuality and freedom
of judiciary which is of utmost need in an independent country as without judicial
freedom the people will not be truly free as there would a constant misuse of power
otherwise and majority of people will be under a constant threat from people with
power.
3. Preserves the constitution – the rule of law ensures the supremacy of the constitution
as constitution is ultimately the law of the state and the ‘rule of law’ ensures certainty
of law in the state in order ensure stability and consistency in the laws and to make sure
that they are not changed very frequently or for benefit of an individual or a group of
people only.
4. Prevents arbitrariness – the rule of law prevents the arbitrariness on the part of
government officials and employees and also makes sure people are well aware of their
rights and liberties and no interference in done with the same and a quality of life is
maintained.
5. Public welfare is a dominant consideration, provides for preservice of human rights and
values.
6. Echo’s the spirit of Magna Carta- no free person shall be outlawed, punished or
imprisoned against the law.

Components of Dicey’s Rule of Law

1. Government biund by and ruled by law
2. Equality before law
3. Establishment of law and order
4. Efficient and predictable application of justice (common law precedents)
Criticism of Dicey’s Rule of Law
Professor A. V. Dicey’s theory which was so acceptable to the penchant of nineteenth-century
individualism, has been a subject of critical inquiry in later years. Several fallacies have been
alleged by various academicians and theorists in the findings and claims made by A.V. Dicey:

W.Paton

He stated that the constitution of the UK as a result of political struggle and not a result of
logical deductions from the Rule of Law[5]. Dicey on the other hand had stated that Rule of
Law was in mind while framing the constitution of while framing the constitution and this was
why there was a preamble UK and that is why there was a Preamble. This claim was
vehemently opposed to by G.W. Paton in the words:

“These are undoubtedly the characteristics of the past and are not logical deductions from a
rule of law. For law may have a varying content; it may protect the subject against despotism
or give the most ruthless power to a tyrant. It is not enough for the democrat to demand a rule
of law–everything depends on the nature of that law. Every legal order which functions as a
rule of law; applies to the Nazi state as well as a democracy.” [6]

Wade and Forsyth

They advocate that there was no equality of law in stricto sensu even in England as there were
many immunities given to the King following the principle of Rex Non-Protest Peccare,
‘The King Can Do No Wrong’. Dicey was criticized for turning a blind eye to the immunity
so provided to the King and stating the concept of equality before the law (which is indeed a
major postulate of rule of law) as being existent in England.

W.I. Jennings

He criticized each of the three suggested meanings of Rule of Law as propounded by Dicey in
his book. [7]

The first meaning allocated to the Rule of Law was the supremacy of law i.e. law as opposed
to arbitrary power to exclude the existence of wide discretionary powers on the part of the
government. However Dicey failed to distinguish between arbitrary and discretionary powers
as even during Dicey’s period wide discretionary powers were vested in public authorities. The
legislative power of the parliament also was exercised according to a discretion vested in the
same.
Secondly, Dicey pointed out that every man is subjected to the ordinary laws of the realm
enforced in ordinary tribunals. Here Dr. Jennings drew our attention to the increasing practice
of vesting powers of adjudication in administrative tribunals and boards and the immunity
given to the public officers in the exercise of their duties.

Thirdly, Dicey says that the general principles of the constitution in England are the result of
the ordinary laws of the land that is to say that they are a result of judicial decisions. Dr.
Jennings termed this as being an overstatement because Dicey herein has concentrated his
thinking to only special individual rights namely freedom of speech etc. Whereas in reality, the
most important principles underlying the British Constitution are not judge-made at all. [8]

….

 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[5] & 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 Right

Modern understanding of rule of law

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.
Accordingly - "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".

Delhi declaration

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 later 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 the creation
of certain political, social, economic, educational and cultural conditions which are essential to
the full development of his personality”.
K.C. Davis

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.

Sir Ivor Jennings has said- “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 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”.

UN Secretary General in report

SC of India
Lord Bingham

Lord Bingham’s central thesis is that ‘the rule of law’ is a necessary part of modern
democracy. He rejects the proposition that the ‘rule of law’ can be achieved by rigorous
conformity to a set of legal rules: ‘I would roundly reject it in favour of a “thick” definition,
embracing the protection of human rights within its scope.’ In an interview on Start the Week,
Lord Bingham expanded on this: human rights, he declared, are essential to the fulfilment of
one’s personality. The dignity of the human person is, on Lord Bingham’s account, the
foundation of the rule of law.
Lord Bingham outlined 8 sub-rules which he believed comprised the rule of law and these 8
principles enunciated by Lord Bingham had been regarded as the modern version of the rule of
law. Lord Bingham declared that “the core of the existing doctrine of the rule of law was that
all public and private persons should be bound by and entitled to the benefit of laws publicly
and prospectively issued and publicly administered by the courts.” The view of Lord Bingham
could be said as filling in the gaps of Dicey’s conception as it is more modern and concerning
the latest issue. The 8 principles are as below:

Sub-rule 1: The law must be accessible so far as possible, intelligible, clear and predictable.

Sub-rule 2: Questions of legal right and liability should generally be decided by application
of the law and not the exercise of the discretion.

Sub-rule 3: The law must apply equally to everyone, unless differences can be justified.

Sub-rule 4: The law must provide appropriate protection of essential and basic human rights.

Sub-rule 5: The parties in civil disputes must be able to resolve disputes without facing a huge
legal cost or excessive delays.

Sub-rule 6: The executive must use the powers given to them reasonably, in good faith, for the
proper purpose and must not exceed the limit s of these powers.

Sub-rule 7: There must be adjudicative procedural fairness.

Sub-rule 8: The state must comply with the obligations of international law which whether
deriving from treaty or international custom and practice governs the conduct of nations.
Rule of Law under the Indian Law
The rule of law should be respected so that the basic structure of our democracy is
maintained and further strengthened” _ Lal Bahadur Shastri

In India, the principles of Rule of Law are very much into, that the government has to follow
the constitution which is considered to be the supreme law in India. So the Indian government
is governed by the principles of rule of law. And we made it very clear by using the terms
Justice, Equality, and Liberty in the Preamble of Indian Constitution.

Constitution is Supreme than the three wings of government;

Legislative (Parliament), Executive, Judiciary

Rule of Law under Indian Constitution

1. 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”[6]. 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.
2. 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”[7]. 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.
3. Article 15 – Prohibition of Discrimination on Grounds of Religion, Race, Sex, Caste
and Place of Birth.
4. Article 16 – Equality of Opportunity in matters of Public Employment.
5. Article 17 – Abolition of Untouchability.
6. Article 18 – Abolition of Titles.
7. Article 19 – Freedom of speech and expression
8. Article 20 – ex-post facto laws, rule against self-incrimination. Double jeopardy
9. 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.”[8] 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.
10. Article 22- Safeguards against arrest and detention – (1) any person who is arrested has
the right to consult at all times and be defended by a lawyer of his own choice. This
right is expanded right from the moment of the person’s arrest.
11. Article 23- Rights against exploitation - Traffic in human beings and the beggar and
other similar forms of forced labour are prohibited
12. 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.
13. Article 368 – Power of parliament to Amendment using proper procedure laid in
constitution.
14. Article 50 – separation of judiciary.

Judicial Pronouncements on Rule of Law

1. 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”.
2. 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.”
3. 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.
4. Secretary, State of Karnataka and Ors. v. Umadevi and 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.”
5. 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.
6. 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.
7. 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.

8. A.K Gopalan Vs State

Also known as the Habeas Corpus case, the order of detention passed during emergency was
challenged in this case on the grounds that such order is violative of the principles of rule of
law which is the basic feature of the Indian Constitution. The issue that was before the Supreme
Court to decide was whether there is any rule of law in India apart from Article 21 of the
Constitution. The majority bench in the case decided the matter in the negative while Justice
khanna gave a dissenting Judgement.

He observed that the Rule of Law is accepted in all civilised society and is considered as a
symbol of society being free. He further observed that Rule of Law is the only means of
archiving the balance between individual liberty and public order. Hence he was of the opinion
that even if there was no such Article like Article 21 in the Indian Constitution the state has no
power to deprive a person of his life and liberty without the authority of law.

9. A.K Kraipak V Union of India

Supreme Court on the question whether the principle of natural justice can be followed in
administrative function held that every instrumentalities of the state is bound by the doctrine
of rule of law and is charged with the duty of discharging their functions in a just, fair and
reasonable manner, which forms the basic principle of Rule of Law without which the concept
of Rule of Law has no validity. The rule of law is applicable to the entire field of the
administration as every organ of the state is regulated by the rule of law.

10. Indra Nehru Gandhi V Raj Narayan

In this case the 39th amendment to the Constitution was challenged which has placed the
election of President, Prime Minister, Vice-President and the Speaker of Lok Sabha
unjustifiable in the courts of law. Holding the amendment as unconstitutional chief justice Ray
found the amendment as violative of the basic structure of the Constitution i.e., Rule of Law.
Rule of Law being anti thesis to arbitrariness does not empower the parliament to pass a
retrospective law validating an invalid election. Such exercise of power is opposed to the basic
principles of Rule of Law.

11. Bachan Singh v. state of Punjab Singh

This a landmark judgement on death penalty. The question whether death penalty can be
imposed under section 302 of IPC was discussed in this case. While the majority of the judges
held that the death penalty can be imposed under rarerest of the rare situation, justice Bhagwati
dissented with the majority opinion and said said that imposition of the death penalty under
Section 302 of IPC is ultra vires and void as it violates Articles 14 and 21 of the Constitution.

Justice Bhagwati has emphasized that rule of law denies any room for arbitrariness and
unreasonableness. To ensure this, he has suggested that the power of the parliament to make
law should not be unfettered and the excesses of executive and legislative power should be
brought under the check by the independent judiciary so that the rights of the citizen can be
protected.

12. Sambamurthy v. state of Andhra Pradesh

In this case the Supreme Court upheld the principles of rule of law as the basic structure of the
Indian Constitution. Clause 5 of Article 371-D was challenged before this court which provided
the government with the power to modify or annul the administrative tribunal’s order. Chief
Justice Bhagwati in this case held clause 5 of Article 371-D as unconstitutional on the basis of
doctrine of basic structure. He held that clause 5 is contrary to the principle of rule of law which
is the basic structure of the Constitution and is thus unconstitutional. Judicial review which is
one of the tenets of rule of law is provided to the courts under the constitution to ensure that
the law is observed and is complied with by the executive and other authorities and such power
of judicial review cannot be taken away from the court. Any such attempt would be against the
Rule of law and thus ultra vires.

13. Yusuf Khan v. Manohar Joshi

The SC laid down that the constitution places a duty over the state to maintain and preserve
law and order and to see that no act violence overpasses the mandate provided by the rule of
law.

Hence, it is quite evident that the concept of rule of law is gaining importance and attention
and judicial efforts are made to make it stronger.
Relevance in contemporary times
The relevance of the Rule of Law is demonstrated by application of the following
principles in practice:

 The separation of powers between the legislature, the executive and the judiciary.
 The law is made by representatives of the people in an open and transparent way.
 The law and its administration is subject to open and free criticism by the people, who
may assemble without fear.
 The law is applied equally and fairly, so that no one is above the law.
 The law is capable of being known to everyone, so that everyone can comply.
 No one is subject to any action by any government agency other than in accordance
with the law and the model litigant rules, no one is subject to any torture.
 The judicial system is independent, impartial, open and transparent and provides a fair
and prompt trial.
 All people are presumed to be innocent until proven otherwise and are entitled to remain
silent and are not required to incriminate themselves.
 No one can be prosecuted, civilly or criminally, for any offence not known to the law
when committed.
 No one is subject adversely to a retrospective change of the law.

National Security Advisor Ajit Doval on November, 2021, said that no nation
can be built where rule of law has failed, where people cannot feel safe and
secure and where law enforcers are weak, corrupt and partisan.
Addressing the trainee officers of Indian Police Service (IPS) at Sardar
Vallabhbhai Patel National Police Academy (SVPNPA) here, he said they
have a vital role to play in nation building through enforcement of laws.

“Quintessence of democracy does not lie in the ballot box. It lies in the laws
made by people who are elected through those ballot boxes. You are the
enforcers of laws. Laws are not as good as they are made. Laws are as good
as they are executed and implemented and the service that people are able
to get out of it,” he said after reviewing the colourful Dikshant Parade.
Rule of Law vs Rule by Law (Indian express article)

CJI N V Ramana: The former is what we fought for, the latter is an instrument of colonial
rule. In the face of a pandemic, it's important to reflect on how the tension between the two
defines the quality of justice.

The British colonial power… used the law as a tool of political repression, enforcing it unequally on the
parties, with a different set of rules for the British and for the Indians. It was an enterprise famous for
“Rule by Law”, rather than “Rule of Law”, as it aimed at controlling the Indian subjects… Our struggle
for independence thus marked our journey towards the establishment of a state defined by the Rule
of Law… A framework was needed to ensure this. The framework that forms the binding link between
law and justice in this country. That is what “We the people” gave to ourselves in the form of the
Constitution . . .

Rule by law indicates that decisions are forced upon a citizenry, while Rule of law is to control the
unlimited exercise of the power by the supreme lawmaking authority of the land. It is a just
application of the law for everybody, keeping in mind that the law doesn’t go against basic precepts
of humanity.

Exceptions to Rule of Law

It order to cope up with the need of practical government, a number of exceptions have been
engrafted on these ideals of rule of law provided be Dicey in modern democratic countries,
e.g., there is a universal growth of broad discretionary powers of the administration; many
administrative tribunals have developed; the institution of preventive detention has now
become the normal feature in many democratic countries. Nevertheless even after
incorporating certain exceptions the basic ideas of rule of law are still preserved and promoted.

In India, dicey’s concept of rule of law cannot be said to be followed in strict sense, there are
certain exceptions provided under the Indian Constitution and other laws. For example:

 Existence of wide discretionary power to the executive-

President and governor of this state are given wide discretionary power in relation to certain
matters under the Indian Constitution. Under Article 72 and 161, the president and the
governor respectively have a prerogative to grant pardons, reprieves, respite or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any
offence. Article 85 provides the president with discretion in relation to the prorogation of either
house of the parliament and the dissolution of the house of people. The governor on the other
hand has discretion in sending the report to the president under Article 356 of the constitution
and in reserving bills for consideration under Article 200.

Police which are a part of the executive are given wide power of arrest without warrant in case
of cognizable offences. Criminal courts in India have wide discretionary power in providing
sentences.

 Immunities and privileges-

Under Indian constitution equality before law doesn’t mean that the power of a private citizen
should be the same as public official. Public officials like ministers, local authorities, public
officers and others of the like have many powers, immunities and privileges which ordinary
citizens don’t have. For example-

1. The President/Governor is not answerable to the court of law in discharge of his

executive functions.

2. No criminal proceedings whatsoever can be instituted against President or Governor

of state, while he is in office.

3. No civil proceedings in which relief is claimed can be filed against the President or
Governor except after an expiration of a 2 month notice that is served on him.

4. Under International laws, the visiting heads of state, heads of government, ministers,
officials and foreign diplomats who are posted in the country are not subjected to
jurisdiction of local courts in discharge of their official functions.
In short ----

Article

105 No member of Parliament shall be liable to any proceedings in any court in respect of
anything said or any vote given by him in parliament or any committee thereof

194 No member of the legislature of a state shall be liable to any proceedings in any court
in respect of anything said or any vote given by him in the legislature or any committee thereof

361(1) The President or the Governor is not answerable to any court for the exercise and
performance of the powers and duties of his office.
361(2) No criminal proceedings shall be instituted or continued against the President or the
Governor in any court during his term of office.

361(3) No process for the arrest or imprisonment of the President or the Governor of a State,
Shall issue from any court during his term of office.

361(4) No civil proceedings against the President or the Governor shall be instituted during his
term of office in any court in respect of any act done by him in his personal capacity, whether
before or after he entered upon his office, until the expiration of two months next after notice
has been delivered to him.

31-C Laws made by the state for implementing Directive Principles of State Policy (DPSPs)
contained in clause (b) or (c) of Article 39 cannot be challenged on the ground that they are in
violation of Article 14. Supreme Court held that “where Article 31-C comes in, Article 14 goes
out”.

Foreign sovereigns (rulers), ambassadors and diplomats enjoy immunity from civil and
criminal proceedings.

UNO and its agencies enjoy diplomatic immunity