IntroductionThe expression 'Rule of Law' has been derived from the French phrase 'la principle de legalite', i.e. a Government based on the principles of law. The term Rule of Law means the principles of legality which refers to a government based on principles of law and not of men. In this sense the concept of the rule of law is opposed to arbitrary powers.This doctrine has been enshrined in the Constitution of U.S.A and in the Constitution of India as well. The entire basis of Administrative Law is the concept of Rule of Law. Sir Edward Coke, The Chief Justice in James Is reign is said to be the originator of this great principle. In a battle against the King, he succeeded in maintaining that the King must be under the God and the law and thus vindicated the supremacy of law against the executives. Dicey developed this doctrine of Coke in his classic book, The Law and the Constitution published in the year 1885.[footnoteRef:2] [2: Upadhyaya J.J.R. ,Administrative Law, Central Law Agency, Allahabad pp-36]

Modern Concept of the Rule of LawThe Modern Concept of the Rule of Law is fairly wide. Dewis gives seven principle meanings of the term rule of law:1. Law and order2. Fixed Rules3. Elimination of Discretion4. Due of process of law or fairness5. Natural law or observance of the principles of natural justice6. Preference for judges and ordinary courts of law to executive authorities and administrative tribunals; and7. Judicial review of administrative actions[footnoteRef:3] [3: Ibid., pp-38 39]

MeaningThe concept of rule of law is embedded in the Charter of the United Nations, the Secretary-General defines the rule of law as" a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency." [footnoteRef:4] [4: http://www.un.org/en/ruleoflaw/ accessed on 1st April 2014]

The expression rule of law was given prominence by Dicey. According to him, the rule of law is the one of the cardinal principles of the English system. He attributed the following three meanings to the doctrine:I. Supremacy of law;II. Equality before law; andIII. Predominance of legal spirit.Supremacy of law- Expounding the first postulate, Dicey states that rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power. It excludes the existence of arbitrariness of prerogative power or even wide discretionary authority on the part of government. He asserted that the Englishmen were ruled by the law, and by the law alone; he denied that in England the government was based on exercise by persons in authority of wide arbitrary or discretionary powers. Dicey claimed, Wherever there is discretion, there is room for arbitrariness and that in a republic no less than under a monarchy discretionary authority on the part of government must mean insecurity for legal freedom on the part of its subjects. Accordingly Wade also says, The rule of law requires that the government should be subject to the law, rather than the law subject to the government.Equality Before law- Explaining the second postulate of the doctrine of rule of law, Dicey says that there must be equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. In England, he maintained all persons were subject to one and same law, and there were no extra ordinary tribunals or special courts for the officers of the government and other authorities. According to him, courts are supreme throughout the state. In this connection he criticized the French legal system of Droit Adminis Tratif in which there were separate administrative tribunals also for deciding cases between the officials of the state 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. Predominance of legal Spirit- Explaining the third postulate, Dicey says that the general principles of the constitution are the result of the 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. The constitution is not the source but consequence of the rights of the individuals. Dicey apprehended that if the source of fundamental rights of the people in any written constitution, the right can be abrogated at any time by amending the constitution. In this way the rule of law postulates judicial supremacy.[footnoteRef:5] [5: Supra note 1 pp 36 37]

Rule of Law under in IndiaFundamental rights enshrined in part III of the constitution is a restriction on the law making power of the Indian Parliament. It includes freedom of speech, expression, association, movement, residence, property, profession and personal liberty. In its broader sense the Constitution itself prescribes the basic legal system of the country. To guarantee and promote fundamental rights and freedoms of the citizens and the respect for the principles of the democratic State based on rule of law. The popular habeas corpus case, ADM Jabalpur v. Shivakant Shukla[footnoteRef:6]is one of the most important cases when it comes to rule of law. In this case, the question before the court was whether there was any rule of law in India apart from Article 21. This was in context of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an emergency. The answer of the majority of the bench was in negative for the question of law. However Justice H.R. Khanna dissented from the majority opinion and 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[footnoteRef:7] [6: AIR 1976 SC 1207] [7: http://www.legalserviceindia.com/article/l459-Rule-of-law.html accessed on 1st April]

Every organ if the administration is regulated by the rule of law. The Indian Constitution embodies the modern concept of the rule of law. The concept of the rule of law exists in this country by the virtue of the following features:1. Supremacy of the Constitution- Diceys doctrine of the rule of law has been accepted and embodied in the constitution of India. In the preamble, our enunciated the ideals of justice and liberty and equality. The constitution is supreme and all the three organs of the government, i.e. the legislature, The Executive and the Judiciary are subordinate to and have to act in accordance with it. The principle of Judicial Review is enshrined in the constitution and subjects can approach High Courts and Supreme Court for enforcement of fundamental rights guaranteed under the constitution. Supreme Court under A. 32 and High Courts under A. 226 can issue writs for enforcement of fundamental rights.

If the executive or the government abuses the powers conferred on it or if the action is mala fied, the same can be quashed by the ordinary courts. All rules, regulations, ordinances, by-laws, notifications, customs and usages are laws within the article 13 of the constitution. If they are inconsistent or contrary to any provision of the constitution, they can be declared as the ultra vires by the Supreme Court and high courts. No person shall be deprived of his life or personal liberty except according to procedure established by law.[footnoteRef:8] The executive and legislative powers of the state and the union are required to be exercised according to the provision of the constitution. The government and public officials are not above law. [8: Article 20]

2. Constitutional Requirement of Equality- Equality before law as a postulate of rule of law has been accepted and adopted under A. 14 of the constitution. The maxim the king can do no wrong has no application in India. The government and public authorities are subject to the jurisdiction of ordinary courts of law and similar wrongs are to be tried and penalized similarly. They are subject to ordinary legal process. The doctrine of equality is accepted in public service also.[footnoteRef:9] Suits for breach of contract and torts committed by the public authorities can be filed in the ordinary courts and damages recovered from the state government or the union government for acts of their employees.[footnoteRef:10] [9: Article 300-A] [10: Article 299 and Article 300 ]

The Supreme Court observed inSom Raj v. State of Haryana[footnoteRef:11]that the absence of arbitrary power is the primary postulate of Rule of Law upon which the whole constitutional edifice is dependant. Discretion being exercised without any rule is a concept which is antithesis of the concept. [11: 1990 2 SCC 653]

3. Constitutional Guarantee and Judicial Enforcement of Rights- In the constitution of India are guaranteed certain rights which can be enforced by the courts. At this juncture, we may consider the position prevailing in India as regards the third principle of Diceys doctrine of rule of law, i.e., predominance of legal spirit. Until recently, this principle was being considered in the context of interpreting the provision of the constitution.But in Chief settlement Commissioner, Punjab v. Om Prakash[footnoteRef:12], 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 [12: AIR 1969 SC 33]

4. Rule of Law as a Legal Concept- The basic concept of rule of law is not a defined legal concept. The courts would not declare any positive law to be invalid on the grounds that it violates the contents of rule of law. However, in habeas corpus case an attempt was made to challenge the detention orders during emergency on the ground that they were violate of the principles of the rule of law as the obligation to act in accordance with rule of law ............ is the central feature of our constitutional system and is a basic feature of constitution.

5. Rule of Law as a Feature of Basic Structure- In Kesavananda Bharti vs. State of Kerala[footnoteRef:13] some of the judges constituting majority were of the opinion that the rule of law was an aspect of the doctrine of basic structure of the constitution, which even the plenary power of Parliament cannot reach to amend. [13: AIR 1973 SC 1461]

In Indira Gandhi Nehru vs. Raj Narain[footnoteRef:14] - Article 329-A was inserted in the Constitution under 39th amendment, which provided certain immunities to the election of office of Prime Minister from judicial review. The Supreme Court declared Article 329-A as invalid since it abridges the basic structure of the Constitution. [14: AIR 1975 SC 2299]

6. Elimination of Arbitrariness, and Not of Discretion-From the Indian Conception of Rule of Law is eliminated arbitrariness and not discretion. As Davis has observed: All Governments in history has been governments of laws and of men. Rule alone untempered by discretion cannot cope with the complexities of Modern government and of modern justice. Discretion is our principal source of creativeness in government and in law. It therefore becomes necessary to confine structure and check discretion in order to uphold the principles of rule of law in administration, so that the discretionary power does not degenerate into arbitrary power. As Justice Matthew has said in Indira Nehru Gandhi v. Raj Narain that there is in the world no government or legal system which has no discretion. It is not possible that a government maybe composed of law alone, but not of men and those men may not be given discretion. All the governments are composed of law and men. The needs of modern government are to make wide discretionary power in escapable. If discretion is taken as arbitrariness, there may not be a single political system having rule of law. Discretion is essential for the viability of nay political system. The only important aspect is misuse of discretion.Accordingly expounding the concept of rule of law in Supreme Court Advocates on Record Association v. Union of India[footnoteRef:15], the Supreme Court laid down that rule of law does not rule out existence of discretionary power completely. In this case, the court held the view that vesting of absolute power in one individual is not warranted under the constitutional scheme for the rule of law to become realistic, there has to be room for discretionary authority within the operation of the rule of law, even though it has to be reduced to minimum extent necessary for proper governance and within the areas of discretionary authority, the existence of proper guidelines or norms of general application excludes any arbitrary exercise of discretionary authority. In such a situation, the exercise of discretionary authority in its application to individuals, according to proper guidelines or norms further reduces the area of discretion, but to that extent discretionary authority has to be given to make the system workable. [15: AIR 1994 SC 268]

7. Compliance with the requirement of law- In a rule of law society, the executive is required to observe and comply with the requirement of law. In Sambamurthy v. State of A.P.[footnoteRef:16] arose a question of great legal importance having far reaching effect. In this case the Supreme Court held that Article 371-D (5) (Proviso) of the Constitution violates Rule of Law which is a basic structure and essential feature of the Constitution. This constitutional provision empowered the State Government of Andhra Pradesh to nullify any decision of the Administrative Services Tribunal. Declaring the provision unconstitutional, the Supreme Court observed: "It is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law and the power of judicial review is conferred by the Constitution with a view to ensuring that the law is observed and there is compliance with the requirement of law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the state is kept within the limits of the law. Now if the exercise of the power of judicial review can be set at naught by the state government by overriding the decision given against it, it would sound the death-knell of the rule of law. The rule of law would cease to have any meaning because then it would be open to the state government to defy the law and get away with it. The proviso to clause (5) of Article 371-D is therefore clearly violative of the basic structure doctrine." [16: AIR 1987 SC 357]

8. Fairness in action.One of the advances made in the realm of the rule of law is the requirement and enforcement of fairness in the action of administration. It was noticed that with the growth of governmental functions it was not possible for government by itself to undertake to regulate and control, say, the services, industries, professions, education and other similar activities and that persons possessing special skills and experience rather than politicians who compose government should do it. Thus there grew congeries of Commissions, Boards, Tribunals and bodies to deal with these and many other matters. In such a ..,.on text it is heartening to note that courts' are making all concerted efforts to establish a rule of law society in India by requiring 'fairness' in every aspect of the exercise of power by state. Such development which has revolutionized administrative law owes its genesis to the decisions of the Supreme Court in R. D. Shetty v. international Airport Authority[footnoteRef:17]. and Ajay Hasia v. Khalid Mujeeb Sehravardim[footnoteRef:18]. These have laid down that not only the State Government but also every instrumentality or agency of the State Government is subject to the constitutional limitations by the Fundamental Rights and of the limitations so imposed is that every action of the state or its instrumentality or agency must be fair. [17: AIR 1979 SC 1728] [18: AIR 1981 SC 487]

9. Public interest in security of social welfareThe rule of law notion as evolved by the do Courts extends to the protection of social welfare as well. With this end in view the Supreme Court in Veena Sethi v. State of Bihar[footnoteRef:19]. held that the reach of the rule of law extended to the poor and the down-trodden, the ignorant and illiterate who constitute the large bulk of humanity in India. In this case the court ruled that the rule of law does not exist merely for those who have the means to fight for their rights and very often for perpetuation of the status quo which protects and preserves their dominance and permits them to exploit a large section of the community. Such a ruling was given on basis of a letter written by the Free Legal Aid Committee, Hazaribagh. Bihar drawing its attention to unjust died and illegal detention of some prisoners in jail for about two or three decades. Similarly in People's Union for Democratic Rights v. Union of India (Asiad case)[footnoteRef:20] a petition by a public spirited organisation on behalf of persons belonging to socially and economically weaker section employed in the construction work of various projects connected with the Asian Games, 1982 complaining of violation of various provisions of labour laws was held maintainable. In the opinion of the court, rule of law is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed. That would be destructive of the rule of law which forms one of the essential elements of public interest in any democrative form of government. The rule of law does not mean that the protection of law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests or protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and rule of law is meant for them also in reality. In this way, under the concept of rule of law, the idea of justice is no more confined to the rights of the individual only but has been extended to the socio-economic spheres as well. [19: AIR 1983 SC 339] [20: AIR 1982 SC 1473]

10. National policy of reservation for Backward Classes and constitutional viability of creamy-layerIn the Mandal Commission Case, 1992 the Supreme Court has upheld the national policy of reservation in favour of socially and educationally backward classes but at the same time has also required identification and exclusion of creamy layer for extension of the reach of Rule of law to the disadvantaged section of people'. 11. Pervasiveness of the concept of rule of law.The Constitution of India embodies the modern concept of the rule with the establishment of a judicial system which should be able to work impartially and free front all influences. The rule of law pervades over the entire field of administration and every organ of the state is regulated by the rule of law. The concept of this rule of law would lose its vitality if the instrumentalities of the state are not charged with the duty of discharging their function in a fair and lust manner.According to Goodhart, although much emphasis is placed upon the supremacy of the legislature in some countries of the West, the Rule of Law does not depend upon contemporary positive law it may be expressed in positive law but essentially it consistsof values and not institutions it connotes a climate of legality and legal order in which the nations of the West live and in which they wish to continue to live.Judicial activism as valiant enterprise is seen as is part of the efforts of Constitutional courts in India to establish rule of law society which postulates that no matter how high a person may be the law or always above him The Court is also making efforts to link rule of law with human rights of the people. The Court it evolving strategy by which it can force the government not only submit to law but also create conditions where people can develop capacities to enjoy there right in proper and meaningful way. It is the responsibility of the public administration for effective implementation of rule of law and constitutional commands which effectuate fairly the objective standard* laid down by law." Every government servant holding public power is a trustee of the society and accountable for due effect national goals." Although all the merits are unhurt in the concept of the Rule of Law, the only negative aspect of the concept is that respect for law degenerates into rigidity of legalism which is injurious to the nation.[footnoteRef:21] [21: Supra note 1 pp 39-45 ]

Critical AnalysisThe opposite of rule of law is rule of person. The rule of law is necessarily rule by men, for the law is inert. Men are necessary to enforce the law, but all men are prone to interpret the law through their own knowledge, interpretation, and ethical sense. At best a set of laws are a well-intended guidebook for the application of justice by the rule of men. In spite of an apparently enviable position of the subjects in almost all the fields of industry, commerce, education, transport, banking, insurance etc. there is interference by the administrative authorities with the actions of the individuals, companies and other corporate and non corporate bodies, observes Justice Ramaswamy. There is a large amount of discretion involved in the administrative work. For e.g.: for the purpose of national planning the executive is armed with vast powers in respect of land ceiling, control of basic industries, taxation, mobilization of labour etc. Even Parliament passes acts which are opposed to personal liberty such as preventive detention act or maintenance of Internal Security act 1971, national security act 1980. Even the simplest thing like discriminate payment of employees can be termed as inequality, as opposed to rule of law. The case Frank Anthony Employees Union v. Union of India is concerned with discrimination in payment to employees, which was held to violate the persons right to equality and unreasonable classification of pensioners was held to be arbitrary in the caseNakara v. Union of IndiaThe main characteristic of the concept of rule of law is equality. This it has been criticized widely. the government possesses the inherent authority to act purely on its own volition and without being subject to any checks or limitations. Total equality is possible to prevail in general conditions, not only in India but in any country for that matter. For e.g.: No case can be filed against the Bureaucrats and Diplomats in India No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a state, in any court during his term of office. 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. The privileges enjoyed by the members of parliament with respect to legal actions against them. There are separate tribunals for administrative cases

Conclusion

The rule of law is an idea about law, justice, and morality. It considers what laws, norms, rules, procedures, systems, and structures should be and what they should not be. Norms should be proclaimed publicly by the peoples and/or their appropriate representatives. Inherent in this formulation are three realities. One is that the law governs people as well as the government itself. Next, persons should obey the law. Third is that the norms we call law need to be obeyable - not only in the sense of being known, knowable and predictable, but in the deepest sense of being just. It is a necessary element for democracy and good governance and also assists to facilitate stability and peace. The rule of law in the Indian society has not achieved the intended results is that the deeply entrenched values of constitutionalism or abiding by the Constitution of India have not taken roots in the society. Corruptions, Terrorism etc. are all antithesis to Rule of Law. In recent times, common law traditions, the Constitution of India, and the perseverant role of the judiciary have contributed to the development of rule of law. But on occasions we have slipped back into government by will only to return sadder and wiser to the rule of law when hard facts of human nature demonstrated the selfishness and egotism of man and the truth of the dictum that power corrupts and absolute power corrupts absolutely. A few examples of how our judicial system has upheld the rule of law and ensured justice is clearly seen in the creation of new avenues seeking remedies for human rights violations through PIL pleas and promotion of genuine interventions by the judiciary in the areas of bonded and child labour, prostitution, clean and healthy environment etc. but on the darker side there have been violations of fundamental rights as well. For e.g. The discrimination of eunuchs based on their class and gender makes the community one of the most disempowered groups in Indian society Eunuchs might have an accepted place in Indian society, but it is a place pretty much at the bottom of the social heap making them not just a sexual but also a highly deprived social minority.

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