INTRODUCTION
The term rule of law is said to be derived from the French term la principe de legalite which means the principle of legality as it refers to a government based on principles of law and not Government based on men. In this sense, the concept of rule of law is opposed to arbitrary powers. The concept of rule of law, it said to be an animation of natural law and remains a historical ideal as it makes a powerful appeal even during present times as men prefer to be ruled by law and not by powerful men. Is also the supreme manifestation of human civilization and culture and is a new lingua franca of global model thought in modern democracies. It is incomprehensible to imagine a constitution devoid of basic concepts of administrative law like natural justice rule of law separation of powers, rule of law, audi alteram partem etc.
Rule of law is neither a rule nor a law and it is merely a doctrine of state political morality which concentrates on rule of law and securing occurring of correct balance between rights and powers or between individuals and the state in order to live in a free and civil society.
In ancient times the Greeks understood the concept of rule of law which encompasses all government actions. Aristotle extensively studied the concept of rule of law and differentiated between procedural justice and moral justice. The rule of law falls under the category of moral justice. James M. Banuchan was of the opinion that there is a difference between law and rule of law because it is observed that primitive and non-democratic societies had the idea of law, but almost all progressive and democratic liberal societies have the concept of rule of law.
RULE OF LAW IN INDIA
With regards to India, the concept of Rule of law finds it’s earliest mention in the Upanishads where it is stated that law is the king of kings. This means that the actual power is that of the law and not that of the king, as the king merely imparts justice by interpreting the law and not by twisting the law. In modern times democracy is have come to the opinion that law is above every government organization or institution.
The rule of law though being extensively studied subject does not have a well-defined terminology. It is a well decided consensus that in a tussle between rule of law and positive law, the courts generally do not dismiss positive law. However, they do try to interpret positive law using the principles of the rule of law.
ADM Jabalpur v. Shivkant Shukla (AIR 1976 SC 1207) or “Habeas corpus case”
In this case, the court was of the opinion that during emergency the citizens lose the right of Rule of law. However, rule law of law is an established as a legal concept.
Kesavananda Bharti v. State of Kerala (AIR 1973 SC 1461)
In this case, the court upheld the doctrine of ruler and declared it to be a part of the basic structure of the Constitution of India. The court also that being integral part of the basic structure of the Constitution made it unamendable by the Parliament.
Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299)
In this case, Justice Kanna and Justice Chandrachud held that Article 329-A inserted by the 39th amendment in the year 1975 violated the concept of basic structure of the constitution whereas, other justices, tough did not completely agree with the decision of Justice Khanna and Justice Chandrachud, were also of the view regarding that Article 329-A offends the doctrine of rule of law. The Supreme Court invalidated clause a of article three twenty nine of the constitution of India.
The rule of law has two aspects, the formal aspect and the ideological aspect. The formal aspect refers to organised power and is opposed to a rule by one man and whereas the ideological aspect refers to the regulation of the relationship of the rule with the dealer. So the concept of rule of law is that of varied, interests and contents.
DICEY’S CONCEPT OF RULE OF LAW
Dicey, though was from England, he was greatly enamoured by the Droit Administratif of France. He also observed that whenever there was a dispute between public interests and private interests, those matters were not heard in ordinary courts but were tried in special administrative courts. Thus, the law which was applicable in that case was not that of ordinary law but a special law developed by the administrative court.
Dicey divided the rule of law into various parts, which are eliminated as follows:
Non-existence of discretionary power in the hands of government officials:
This implies that justice is to be dumped by existing legal principles and not by exercising discretionary power because discretion leads to arbitrariness.
Nobody should be deprived of this property or be made to suffer in body except in cases where there is a breach of law established in the ordinary legal process by the ordinary courts of the state.
That everyone is respective of one’s status, one must be subjected to the courts of the land;
That everyone should be governed by the law passed by the legislative organs of the state;
That there should be an absence of special privileges for a government official or any other person.
The rights of citizens must tend from the traditions and customs of the land recognized by the courts and the administration of justice.
Dicey’s administrative law comprised of only a single aspect of French system of administrative law, which was administrative jurisdiction to the exclusion of ordinary civil and criminal process. Daisy thus found similarity between French administrative law and the institution of ancient autocratic monarchy.
A popular criticism of Dicey is that he misconceived administrative law because he thought that the whole administrative law was the French system of administrative law, whereas administrative law was much more than that. In fact, it was also observed that Dicey was not concerned with the whole body of law relating to administration, but he only concerned himself with a single aspect of administrative law, which is administrative adjudication.
Another criticism of dicey was that he also did not acknowledge the existence of administrative law in England, however the case was quite the opposite even during his time. Administrative law
did exist in England as there existed special courts in England which were referred to as Ecclesiastical and Admiralty Courts. Special tribunals were also in place which were established under the Poor Law Amendment Act, 1834 in which the Poor Law Boards were set up to exercise legislative and adjudicatory powers. Also, the Constables Protection Act, 1750 gave special immunity to police officers. Another example is that government officials enjoyed discretion to enter private properties.
It is pertinent to note that in the case of Local Government Board v. Arlidge and Board of Education v. Rice, the administrative agency was authorised to decide even a question of law in this case, Dicey himself recognised his mistake and observed that there exists in England another body of administrative law. That is to say, that towards the end of his life, he recognized that official law, which is known as administrative law, could be effectively enforced by judicial courts. It is often stated that a body of men who combined official experience with legal knowledge provided that they’re entirely independent of government. Another important fact to be noted is that even-though the way in which Daisy formulated administrative laughter is not really an essential contradiction between the rule of law and administrative law, as the central idea of this principle is the absence of abuse of authority and equality before law. In this sense, there is no contradiction between disease rule of law and ordinary law.
CONCLUSION
As per rule of law, it is required that the people should be governed by the accepted rules rather than the decisions that are arbitrarily taken by the rulers. For this, it is essential to keep in mind that the rules that are made should be general and abstract, known and certain and it should apply equally to all individuals. Legal limitation on government is the essential attribute of constitutionalism. Rulers are not above law under the concept of constitutionalism, government power is divided with laws enacted by one body and administered by another and for that an independent judiciary exists to ensure laws.
Thus, on the basis of the aforementioned information it can be undeniably deduced that since its inception, the principle of Rule of Law owing to the dynamism inherent in the very concept itself
has evolved at a brisk pace. This development can be accredited to the several laws laid down by the parliament and also through the numerous judicial pronouncements.
However, despite all the development that the concept has undergone, Rule of Law when analysed in the context of India does exist but it cannot be said to be followed in strict sense. Instances often come to light when following a particular law becomes subject to public convenience and they subscribe to such law only if it is in line with their perception of right and wrong and is in consonance with the ideologies that they uphold.