Rule of Law

At a Glance

• What it is The doctrine that the law is supreme, and that the Government must act according to law and within its limits
• Propounded by A.V. Dicey, the British jurist, in The Law of the Constitution (1885)
• Dicey’s elements Absence of arbitrary power; equality before the law; primacy of the rights of the individual
• In India The first and second elements apply; the third does not, since the Constitution is the source of individual rights
• Constitutional home Article 14: equality before the law and the equal protection of the laws
• Supreme Court Rule of law as embodied in Article 14 is a basic feature, so it cannot be destroyed even by an amendment
• Exam link UPSC Prelims, Polity: Basic Concepts

Where Does It Fit?

The previous topic explained the terms the Preamble uses for the Indian State. The rule of law is one of the ideas that makes a democratic polity work in practice. It belongs to the British constitutional tradition, and it reaches the Indian Constitution through the right to equality in Article 14. The next topics take up the separation of powers and judicial review, which work alongside it.

What Is the Rule of Law?

The doctrine of rule of law is one of the fundamental characteristics of the British constitutional system. It lays down that the law is supreme, and hence the Government must act according to law and within the limits of the law. The concept of equality before law is an element of the rule of law, as propounded by A.V. Dicey, the British jurist. The Indian Constitution borrowed the rule of law from the British Constitution.

What Are Dicey’s Three Elements?

1. Absence of arbitrary power: No man can be punished except for a breach of law.
2. Equality before the law: All citizens, rich or poor, high or low, official or non-official, are equally subject to the ordinary law of the land administered by the ordinary law courts.
3. Primacy of the rights of the individual: The Constitution is the result of the rights of the individual as defined and enforced by the courts of law, rather than the Constitution being the source of the individual rights. In Great Britain the rights of citizens flow from judicial decisions, not from the Constitution.

The first and second elements are applicable to the Indian system, and not the third one. In the Indian system, the Constitution is the source of the individual rights.

How Does Article 14 Carry the Rule of Law?

Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. It confers rights on all persons, whether citizens or foreigners, and the word person includes legal persons such as statutory corporations, companies and registered societies.

Equality before law is of British origin, while equal protection of the laws has been taken from the American Constitution.

Both aim at establishing equality of legal status, opportunity and justice. The Supreme Court held that where equals and unequals are treated differently, Article 14 does not apply. Article 14 forbids class legislation, but it permits reasonable classification of persons, objects and transactions by the law. The classification should not be arbitrary, artificial or evasive. It should be based on an intelligible differential and a substantial distinction.

The Supreme Court has held that the rule of law as embodied in Article 14 is a basic feature of the Constitution. Hence, it cannot be destroyed even by an amendment.

What Is Meant by “Law” in This Context?

Article 13 gives the term law a wide meaning for the purposes of the Fundamental Rights. It includes permanent laws made by Parliament or state legislatures, temporary laws such as ordinances, statutory instruments in the nature of delegated legislation (an order, bye-law, rule, regulation or notification), and non-legislative sources such as custom or usage having the force of law. Any of these can be challenged in the courts as violating a Fundamental Right, and can be declared void.

Article 13 declares that a constitutional amendment is not a law. However, in the Kesavananda Bharati case (1973), the Supreme Court held that a constitutional amendment can be challenged on the ground that it violates a fundamental right that forms part of the basic structure, and can be declared void.

What Are the Exceptions to Equality Before Law?

The rule of equality before law is not absolute. The Constitution and other laws make these exceptions to it.

• President and Governors (Article 361): They are not answerable to any court for exercising the powers and duties of their office. No criminal proceedings can be instituted or continued against them during their term, and no process for arrest or imprisonment can be issued. Civil proceedings in respect of a personal act can be instituted only after two months’ notice.
• Reports of Parliament and the legislature (Article 361-A): No person is liable to civil or criminal proceedings for publishing a substantially true report of the proceedings of either House of Parliament or of a state legislature.
• Members of Parliament (Article 105): No member is liable to any court proceedings for anything said or any vote given in Parliament or its committees.
• Members of a state legislature (Article 194): The same protection for speech and votes in the legislature or its committees.
• Article 31-C: Laws made by a state for implementing the Directive Principles in clause (b) or (c) of Article 39 cannot be challenged as violating Article 14. The Supreme Court held that where Article 31-C comes in, Article 14 goes out.
• Foreign sovereigns, ambassadors and diplomats: They enjoy immunity from criminal and civil proceedings.
• The UNO and its agencies: They enjoy diplomatic immunity.

Why Is This Topic Important?

• A basic feature: The rule of law in Article 14 cannot be destroyed even by a constitutional amendment.
• Direct Prelims material: Dicey, the elements that apply to India, the British and American origins within Article 14, and the exceptions to equality can all be asked directly.
• Link to other topics: It connects the British sources of the Constitution, the right to equality, and the basic structure doctrine.

What Came Next?

The next topic, the separation of powers, deals with how the functions of government are divided among the legislature, the executive and the judiciary. Judicial review and the basic structure doctrine follow.

Key People and Terms

• A.V. Dicey British jurist who propounded the rule of law; author of The Law of the Constitution (1885)
• Equality before law British concept; negative; no one is above the law
• Equal protection of the laws American concept; positive; like should be treated alike
• Reasonable classification Permitted by Article 14 if based on an intelligible differential and substantial distinction
• Article 361 Immunity of the President and the Governors
• Kesavananda Bharati case (1973) A constitutional amendment can be challenged if it violates a basic-structure fundamental right

Exam Corner

Mains Angle

A question on the rule of law is usually linked to equality and to the limits on power. Use these points to add depth.

• Government under law: The doctrine lays down that the law is supreme and the Government must act according to law and within its limits.
• Why India accepts only two elements: In India the Constitution is the source of individual rights, so Dicey’s third element does not apply.
• Not absolute: Equality before law has constitutional exceptions, such as the immunity of the President and Governors under Article 361 and the protection of members of the legislature under Articles 105 and 194.
• Reasonable classification: Article 14 forbids class legislation but permits classification that is based on an intelligible differential and a substantial distinction, and is not arbitrary, artificial or evasive.
• Safe from amendment: The Supreme Court has held that the rule of law as embodied in Article 14 is a basic feature, which cannot be destroyed even by an amendment.