A Dicey Doctrine of Rule of Law
Author: Latika Durgani
Designation: Law Student
INTRODUCTION: A Dicey Doctrine of Rule of Law
Constitutional Theorist and British Jurist, AV Dicey propounded a Doctrine of Rule of Law in 1855. Dicey very clearly made three distinct ideas in Rule of Law which exist in British Constitution and are as follow: -
Absence of Arbitrary power i.e., no one is punishable except for a distinct breach of law established ordinarily before the courts of the land.
Equality before the law i.e., everyone irrespective of their rank, or condition is subject to ordinary law and they are not above the law.
Individual Liberties i.e., the result of the ordinary law is the constitution and the independence of the judiciary.
The concept of Rule of Law has also been discussed in international forums such as United Nations. It is a socio-legal-economic content. This concept does not have any universally accepted fixed connotation though it is regarded as the foundation of friendly and equitable relations between states and the base of fairs societies.
Supreme Court of India has referred to this phrase very often and ruled out that the Doctrine of Rule of Law is one of the basic features of the Indian Constitution and cannot be destroyed by amending the constitution under Article 368. It also held that this doctrine is embodied in Article 14 of the Indian Constitution which says that the state shall not deny to any person equality before the law and there should be equal protection of the laws within the territory of India. Equality before Law is of British Origin and has a negative concept which connotes that there should be the absence of any special privileges in favor of any person. Also, everyone should be treated equally to the ordinary law of the land administered by ordinary law courts.
Therefore, no person is above the law. Equal Protection of Laws has been taken from the Constitution of the USA and it is a positive concept which connotes that there should be no discrimination and everyone should be treated equally under equal circumstances.
It averts social ostracization in general. In toto, rule of law is a law that is reasonable, non-discriminatory, and envisages controlled power. It is comprised of constitutional values, for instance, constitutionalism, equality before the law, independent judiciary, liberty of the citizens, etc.
But there are certain things which are written on the paper and less found in practicality. In the Indian scenario, when it comes to procedural effectiveness it fairly does good. According to the World Justice Project Rule of Law Index 2020, India ranks 69th stating that faith in the rule of law is diminishing which is a grim situation. India still ranks very low on the corruption index, it secured 86th position among 180 countries. There has been degradation of position from the year 2019. Factors such as corruption, unfair policies, delayed justice, archaic laws, the bias of lawyers, deep politicization all subvert to Rule of Law.
India needs stringent laws that prevent the violation of rule of law. The legislative should keep in mind that laws are not made against the rule of law or the Constitution. India's legal institution needs reform as it has been seen as a "second-order" issue. Rule of Law's foundation lies in curbing corruption, the absence of an abuse of power, and access to public services. It is strongly interlinked with development and promotes human rights and sustains peace. It is still not too late for India to reinvest and invigorate in its rule of law mechanism because even the slightest change can bring exemplary impact.
For the United Nations definition, “the rule of law is 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 measures to ensure adherence to the principles of supremacy of the 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”.
“What is the Rule of Law”, https://www.un.org/ruleoflaw/what-is-the-rule-of-law/
Indira Nehru Gandhi v. Raj Narayan 1975 SCC (2) 159
The Constitution of India, 1950