Concept of ‘Rule of Law’ under The Administrative Law | Dicey’s Concept of the Rule of Law (Notes)

1) Concept of ‘Rule of Law’

Rule of law is a live and dynamic concept. The term 'rule of law' is derived from the French phrase 'la principle de legality' (principle of legality) which means a government based on principles of law and not of men. Basically this principle means that law is supreme and no one, whether rich or poor is above the law.

The King is not the law but the law is king. According to this principle government authority may only be exercised in accordance with the written laws which are adopted through an established procedure. It is a safeguard against the arbitrary actions tradition


2) Dicey’s Concept of the Rule of Law

A.V. Dicey was a prominent British jurist and constitutional theorist whose interpretation of the Rule of Law became foundational to modern constitutional law. In his seminal work, Introduction to the Study of the Law of the Constitution (1885), Dicey outlined three core principles that encapsulate his concept of the Rule of Law. These principles are:

(1)    Supremacy of Law (No One is Above the Law):

Dicey’s first principle posits that no one, including the government or its officials, is above the law. Everyone, regardless of rank or office, is subject to the ordinary law of the land. The government must operate within the law, and any action it takes must be backed by legal authority.

(2)    Equality Before the Law:

According to Dicey, all individuals are equal before the law, meaning that no one should receive special treatment based on their status, rank, or power. This principle asserts that the law applies equally to every individual, and no person or group should have the ability to exercise arbitrary power.

(3)    Constitutional Rules are the Result of Judicial Decisions:

Dicey emphasized the role of the judiciary in enforcing the rule of law. He argued that the protection of individual rights and liberties arises from judicial decisions rather than from a codified constitution. Under this principle, constitutional rights are safeguarded through the interpretation and application of laws by courts.

3) Merits

(1)    Protection from Arbitrary Power:

One of the strongest merits of Dicey’s Rule of Law is its emphasis on the prohibition of arbitrary government action. By ensuring that the law governs, not the will of a ruler or government, it protects individuals from tyrannical or authoritarian practices. This aspect ensures that governmental powers are regulated and limited by law.

(2)    Equality Before the Law:

Dicey’s principle of equality before the law ensures that all individuals, regardless of their status, wealth, or position, are subject to the same legal framework. It prevents discrimination based on social, economic, or political factors. It promotes the ideal that justice should be blind, ensuring that no one is above the law.

(3)    Judicial Safeguards for Rights::

By placing reliance on judicial decisions, Dicey argued that individual liberties were protected through courts, making judicial interpretation of the law crucial in safeguarding freedoms. This allows for judicial review of governmental actions, ensuring that individuals’ rights are not infringed upon by arbitrary or excessive state actions.

(4)    Prevention of Excessive Power:

By emphasizing the rule of law and limiting discretionary power, Dicey’s theory aims to prevent any governmental body from gaining excessive or unchecked power, fostering a democratic and balanced system of governance.

(5)    Clarity and Predictability:

Dicey’s conception helps in creating clarity and certainty in legal systems, where individuals can predict the consequences of their actions based on established legal norms. This is essential for rule-based governance, ensuring stability in the legal environment.

4) Demerits

(1)    Formalism and Lack of Substantive Justice:

Dicey’s focus on the procedural aspect of law makes his theory overly formalistic. It assumes that fair procedures inherently lead to just outcomes, which may not always be the case. It does not address the content of the law — a law might be equally applied but could still be unjust (e.g., discriminatory laws or laws that disadvantage marginalized groups).

(2)    Lack of Adequate Flexibility:

Dicey’s strict adherence to the absence of arbitrary power and discretion can be problematic in complex governance systems where discretionary powers are needed to address dynamic or urgent situations. Administrative agencies and regulators often require flexibility to deal with evolving problems, which may not always fit neatly into pre-established legal norms.

(3)    Overemphasis on Judicial Supremacy:

Dicey places significant importance on judicial review, which could lead to judicial overreach. The judiciary may sometimes act beyond its intended scope, making decisions that encroach upon the legislative or executive domain. This can undermine the democratic process, as it gives unelected judges the authority to override the decisions of elected representatives.

(4)    Inadequate Attention to Socio-Economic Inequalities:

While Dicey promotes equality before the law, his theory assumes formal equality without addressing the structural inequalities in society. In practice, some individuals or groups may not have equal access to legal resources (e.g., legal representation), leading to unequal outcomes. Modern theories of the Rule of Law emphasize the need for substantive equality, where the law ensures that disadvantaged groups are adequately supported to achieve actual equality.

(5)    Incompatibility with Modern Welfare States:

Dicey’s model was developed in a 19th-century context with minimal state intervention in economic and social affairs. The modern welfare state, with its extensive regulatory and administrative powers, requires more flexibility and nuanced governance that Dicey’s theory may not fully accommodate.

5) Application of Dicey’s Rule of Law in the Indian Legal System

1. Application of Dicey’s Rule of Law

India, being a common law country with a constitutional democracy, has adopted and modified Dicey’s Rule of Law in various ways, incorporating it into the fabric of its legal system.

(1) Supremacy of Law in India

The Indian Constitution establishes the supremacy of law through the Rule of Law principle, which ensures that no one is above the law. This concept is enshrined in the Constitution under various provisions:

1.        Article 14 guarantees equality before the law and prohibits discrimination.

2.        Article 21 ensures the right to life and personal liberty, which can only be deprived in accordance with the law.

3.        Articles 32 and 226 (Judicial Review) allows courts to examine whether governmental actions comply with the law. This ensures that any arbitrary exercise of power is subject to scrutiny by the judiciary.

(2) Equality Before the Law

Article 14 of the Indian Constitution guarantees equality before the law, ensuring that no person or class of persons is granted privileges or is exempt from the legal system.

Equality in treatment is provided to all, including citizens and public authorities. However, positive discrimination is also recognized under Indian law, notably through provisions like Reservations for Scheduled Castes, Scheduled Tribes, and Other Backward Classes (OBCs) under Article 15 and Article 16. While this may seem to contradict Dicey's absolute equality before the law, it reflects a substantive equality approach that seeks to rectify historical injustices and disparities in society.

(3) Predominance of Legal Spirit and Judicial Review

Dicey’s emphasis on the protection of individual rights through judicial decisions aligns with India’s constitutional framework, where the judiciary has a significant role in safeguarding fundamental rights. The judicial review mechanism in India ensures that courts can review the constitutionality of executive actions and legislation, upholding the supremacy of the Constitution.

The writ jurisdiction under Articles 32 and 226 allows individuals to approach the courts for enforcement of fundamental rights and for challenging government actions that violate the law.

2. Deviations in Application

While Dicey’s theory of the Rule of Law has had a significant influence on the Indian legal system, certain aspects require a nuanced understanding in the Indian context:

(1)    Discretionary Powers:

Modern governance in India involves substantial discretionary powers vested in the executive, particularly in areas like public administration, taxation, and emergency powers. While Dicey advocated against arbitrary discretion, such powers are constitutionally granted and subject to judicial review. For example, Article 356 (President’s Rule) allows for the dissolution of state governments under certain circumstances, but this power has been limited by judicial scrutiny to avoid misuse.

(2)    Emergency Provisions:

The Rule of Law in India faces challenges during times of emergency when Article 352 allows the government to suspend certain rights and freedoms, which can be seen as a deviation from the principles Dicey propounded. However, the Supreme Court has held that even in times of emergency, fundamental rights are not entirely suspended, and certain rights like the right to life (Article 21) cannot be abrogated.

6) Contemporary significance in a welfare state (significance in today’s modern era)

(1)    Protecting Social and Economic Rights

In a welfare state, the Rule of Law plays a critical role in guaranteeing social rights (such as the right to healthcare, education, and housing) alongside civil and political rights. The state, through welfare policies, assumes an active role in ensuring that citizens' basic needs are met, particularly those of vulnerable groups. The Rule of Law ensures that the state’s actions are legal, transparent, and accountable. This helps citizens to enforce their rights and claim entitlements such as social security benefits, health care services, or public housing.

(2)    Promoting Equality and Social Justice

The Rule of Law in a welfare state must account for both formal equality and substantive equality. While formal equality ensures that all citizens are treated the same before the law, substantive equality recognizes that due to historical, economic, or social disadvantages, some citizens may need special provisions or affirmative actions to achieve real equality.

(3)    Accountability of State and Government

In a welfare state, where the government plays a central role in the provision of social benefits, the Rule of Law ensures that state actions are transparent, accountable, and subject to judicial scrutiny. Governments must act within the law, ensuring that welfare measures are not misused or distributed inequitably. The Rule of Law in this context prevents corruption, nepotism, or abuses of power by the state. It ensures that state interventions are well-regulated, and individuals can seek remedies when their rights are violated.

(4)    Balancing Individual Rights with State Intervention

The Rule of Law ensures that the state's role in welfare provision does not infringe upon individual liberties. It is necessary for a welfare state to regulate various aspects of life (such as employment, health, and education) but also essential that such interventions do not infringe on basic freedoms, such as freedom of expression, association, or privacy. In a welfare state, the Rule of Law helps maintain a delicate balance between state intervention for social welfare and the protection of individual freedoms. Excessive or unchecked state power can undermine personal autonomy.

(5)    Judicial Review and Constitutional Safeguards

The Rule of Law in a welfare state is reinforced by judicial review, where courts act as guardians of the constitution, ensuring that welfare policies comply with constitutional principles. Courts can intervene to ensure that state welfare programs do not violate citizens' fundamental rights or deviate from the legal norms. Judicial review provides an essential safeguard in a welfare state, ensuring that the government cannot overstep its authority and that laws and policies are consistent with the principles of justice and equity.

(6)    Promoting Good Governance

A significant part of the Rule of Law in a welfare state is the requirement for good governance. This includes effective administration, fair procedures, and the elimination of corruption in government dealings. The state must use its resources efficiently to serve the welfare of the public. Good governance, under the Rule of Law, helps maintain the legitimacy of the state’s welfare policies. It ensures that welfare benefits reach the intended recipients, administrative resources are not misappropriated, and public policies are implemented effectively.


By, 

Adv. Harashavardhan (Bhaiya) Deshmukh

(Pune Maharashtra)

Mail: dabangglawyer@gmail.com , Contact: 8483882344

Follow @DabanggLawyer 


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