Rule of law means the law rules, here the word law used in two sense ‘jus’ and ‘lex’. It implies an absence of arbitrary power on the part of government and equality of all persons before the law.
This principle is based on the legal maxim ‘ubi jus ibi remedium’ which means where there is a right, there is a law.
Sir Edward coke originated this principle against the arbitrary ruling of king and to protect individual freedom. He established that the king is under god and law. Further this concept developed by Dicey in his book INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION’. According to him, 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 means the exclusion of existence of arbitrariness on the part of government.
Dicey explained Rule of law in three ways. They are:
- Supremacy of law
- Equality before law
- Predominance of legal spirit
SUPREMACY OF LAW: supremacy of ordinary law as opposed to arbitrary authority of government. Dicey excludes arbitrariness and wide discretionary powers on the part of government because it can encroach the liberty of individual.
In existence of rule of law no person is arrested and detained except by the due process of law and for breach of law proved in court.
EQUALITY BEFORE LAW: This principle is based on two maxim i.e., law is above all and every person is equal before law.
Dicey says that everyone is equal person is equal before the court of law and tried in a same manner. He also criticized French legal system and said that separate tribunals for civil servants is against the principle of rule of law and equality.
Law should not discriminate between government official and people on the basis of social background, creed, religion, etc.
PREDOMINANCE OF LEGAL SPIRIT: Dicey observed that rights such as freedom from arrest, personal liberty, freedom to form association, freedom of speech and expression, etc are provided by written constitution of many countries. Except in England where these right evolved from judicial decision in cases. He emphasized that courts are guarantors of law and suggested to implement these rights in courts rather than to write them in the document.
POSITION OF RULE OF LAW IN INDIA
In India, the concept of rule of law had its roots in Dharam shastra which says that ‘king is under the rule of Dharma’. The three document of ancient India i.e., Dharna shastra, Neeti shastra and Artha shastra are the source of some important rules:
- Both the parties to dispute must be heard.
- The judge must not have any interest in the cause.
- The hearing of the case in open court.
- There must not be prejudiced against either party of dispute.
- The judgment must be based on merits
The concept of rule of law developed after the independence of India in 1950, the constitution became the supreme law of the land. The rule of law extended to all over India and placed on higher footing in comparison to ordinary law.
The document abolished the caste system and promoted equality before law. The supreme court of India also recognized the rule of law as part of basic structure.