The Rule of Law: Dicey, and What Survives of Him
Chapter Seven
Syllabus topic 1, "Constitutionalism". No printed label names the rule of law, and MU has set it on three of the seven papers we hold, twice as a whole question and once as a short note.
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In one line
The rule of law means that people are governed by known rules rather than by the will of whoever is in office, and that the government is under the same law as everybody else.
In the wording a student can write in an exam: the rule of law is the principle that all authority must be exercised under and in accordance with law, that the law must be general, prospective, published and reasonably certain, that no person may be punished except for a distinct breach of law established before an ordinary court, and that the government itself is subject to the ordinary law administered by the ordinary courts. It is the antithesis of arbitrary power. The phrase is old, but the modern statement of it is A. V. Dicey's, in the Introduction to the Study of the Law of the Constitution (1885).
Why a society needs the idea at all
Because a rule announced in advance lets a person plan, and a decision made afterwards does not. If conduct can be made criminal after it has occurred, no amount of care protects anybody.
Because generality is the cheapest protection a minority has. A rule that applies to everyone is unlikely to be made oppressive by a majority that must live under it too. That is why a law aimed at one person, or at one identified group, is the classic rule-of-law problem, and why it recurs throughout this paper.
And because power exercised by rules can be checked, while power exercised by will cannot. A court can ask whether an officer acted within a rule. It cannot ask whether an officer's preference was the right preference.
Dicey's three meanings, and the state of each today
First meaning: the absolute supremacy of regular law as opposed to arbitrary power. No person may be punished except for a distinct breach of law established in the ordinary legal manner before the ordinary courts, and there is no room for wide discretionary authority in the government.
This limb survives, but the second half of it does not. No modern State can function without conferring discretion: a licensing officer, a tax assessor and a police officer all exercise it. The modern position is not that discretion is forbidden but that it must be conferred by law, confined by standards, and reviewable. The Indian statement of this is in E.P. Royappa, below.
Second meaning: equality before the law. Every man, whatever his rank, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. Dicey contrasted this with the French droit administratif, the separate body of administrative law applied by separate administrative courts, which he thought a system of official privilege.
The Rule of Law: Dicey, and What Survives of Him
This limb survives in its core and Dicey's use of it was mistaken. Equality before the law is article 14 in India and is fundamental. But Dicey's belief that a separate administrative jurisdiction means official privilege was wrong even about France: the Conseil d'Etat developed a body of law more demanding of officials than the English common law then was. And India itself has administrative tribunals under articles 323A and 323B.
Third meaning: the constitution is the result of the ordinary law of the land. In England the general principles of the constitution, such as the right to personal liberty, are the result of judicial decisions in particular cases brought by private persons, rather than of a written declaration of rights.
This limb does not apply to India at all, and saying so is worth a mark. India has a written Constitution which is the source of the rights rather than their summary. The Indian arrangement is in fact stronger: a right declared by a court can be reversed by an ordinary statute, and a right in Part III cannot.
What has replaced Dicey: the modern content
The formal or thin conception, associated with Joseph Raz, asks only about the qualities a law must have: it must be prospective, open, clear, relatively stable, made by general rules, and applied by an independent judiciary that is accessible. On this view a wicked law properly made and applied satisfies the rule of law, and the objection to it is moral rather than legal.
The substantive or thick conception adds that the law must respect certain fundamental rights, so that a State systematically denying them does not have the rule of law however regular its procedures. The International Commission of Jurists at Delhi in 1959 adopted a version of this, defining the rule of law as the principles, institutions and procedures which experience has shown to be essential for the protection of the individual against arbitrary government and for enabling the individual to enjoy the dignity of man.
India has adopted the substantive conception, and the proof is that the rule of law is enforced here through articles 14 and 21 rather than through procedural regularity alone. That is the subject of the next chapter.
A worked example
A State government issues an order transferring all pending prosecutions under a particular Act against members of one political party to a Special Court, whose procedure omits committal, allows the court to refuse cross-examination, and permits no appeal. Test the order against the three limbs.
Under the first limb the question is whether the discretion is confined. The order does not identify any principle by which a case is chosen for the Special Court. A power to pick which accused gets which procedure, exercisable for any reason, is exactly the wide discretionary authority Dicey objected to, and the Indian answer is the same: a discretion without a standard is arbitrariness.
The Rule of Law: Dicey, and What Survives of Him
Under the second limb the question is whether these accused are being treated as a class of their own without a reason. Speedier trial can be a valid object, and a classification of offences or of classes of cases by reference to that object may be sustainable. A classification of persons by their political affiliation cannot be, because affiliation has no connection with the need for speed.
Under the third limb, ask what an Indian court has that an English one did not. In England before 1998 the answer would have been the presumption that Parliament does not intend to abrogate liberty, which yields to clear words. In India the answer is article 14 and article 21, which do not yield to clear words at all, and article 32, by which the accused may go directly to the Supreme Court.
Note where the example ends up. Two of Dicey's three limbs give the right answer in India, and they give it more strongly than in the system he was describing, because here they are written down as rights.
The cases
The rule of law in India is a basic feature and an amendment offending it is void. In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. Facts. The Prime Minister's election had been set aside by the Allahabad High Court, and the Thirty-ninth Amendment inserted article 329A(4) declaring that the election of a person holding the office of Prime Minister should not be void and should continue to be valid, and that no court should have jurisdiction over it. Held. Clause (4) void as destructive of the basic structure: it did not amend the election law but decided a particular dispute by constitutional fiat and withdrew it from every court, violating the rule of law, free and fair elections, and the separation of the judicial function from the legislative. Why it matters here is that it is the purest Indian application of the generality requirement. The vice was not that the rule was harsh but that it was a rule for one case and one person.
Arbitrariness and equality are the same idea, and that is how the rule of law is enforced in India. In E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555. Facts. A senior member of the Indian Administrative Service holding the post of Chief Secretary to the Government of Tamil Nadu was transferred to two other posts he said were inferior, and alleged the transfers were mala fide and violated articles 14 and 16. Held. The plea of mala fides failed on the facts, but reasoned that article 16 is an instance of the application of the concept of equality in article 14, article 14 being the genus and article 16 a species; that equality is a dynamic concept with many aspects and dimensions which cannot be cribbed, cabined and confined within traditional and doctrinaire limits; and that equality and arbitrariness are sworn enemies, so that where an act is arbitrary it is implicit in it that it is unequal and therefore violative of article 14. Why it matters here is that it gives an Indian court a general power to strike at arbitrary State action without needing to find a comparator, which is a stronger tool than anything in Dicey.
The Rule of Law: Dicey, and What Survives of Him
And the case that shows what the doctrine's absence looks like is Indian. In Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207. Facts. During the Emergency the President had suspended the right to move any court for the enforcement of articles 14, 21 and 22, and detenus sought habeas corpus, the writ requiring a detaining authority to justify a detention. Held, by four to one. In view of the Presidential Order no person had locus standi to move a High Court under article 226 for habeas corpus on any ground including mala fides, and that section 16A(9) of the Maintenance of Internal Security Act was valid. Khanna J. dissented, holding that the State had no power to deprive a person of life or liberty without the authority of law even when article 21 was suspended, because that principle did not owe its existence to article 21 alone. Why it matters here is that Khanna J.'s dissent is the rule of law in its substantive sense, and the Forty-fourth Amendment 1978 wrote it into the Constitution by providing that articles 20 and 21 may never be suspended.
Distinctions
| Dicey's limb | What it says | Its state today |
|---|---|---|
| 1. Supremacy of regular law | Punishment only for a distinct breach established before the ordinary courts; no wide discretionary authority | The first half survives; discretion is now permitted but must be conferred, confined and reviewable |
| 2. Equality before the law | Everyone, of whatever rank, subject to the ordinary law and the ordinary courts | Survives as article 14; Dicey's attack on droit administratif was misconceived, and India has tribunals under articles 323A and 323B |
| 3. The constitution as the result of ordinary law | Rights come from judicial decisions, not a written declaration | Does not apply to India, which has a written Constitution that is the source of the rights |
The Rule of Law: Dicey, and What Survives of Him
| Formal (thin) conception | Substantive (thick) conception | |
|---|---|---|
| Asks | Was the law properly made, published, prospective and applied by an independent court? | All that, and does the law respect fundamental rights? |
| A wicked but regular law | Satisfies the rule of law | Does not |
| Associated with | Joseph Raz | The Delhi Declaration of the International Commission of Jurists, 1959 |
| India | Necessary but not sufficient | Adopted, through articles 14 and 21 |
What it does NOT mean
It does not mean rule by lawyers or by courts. The rule of law binds judges too, and a court deciding by preference rather than by law is the problem, not the cure.
It does not mean that all discretion is unlawful. The modern requirement is that discretion be conferred by law, guided by standards and open to review, not that it be abolished.
It does not mean rule of law and rule by law are the same. Rule by law means only that the government acts through legal forms, which an oppressive government can easily do. The rule of law adds requirements about what those laws must be like and who may be reached by them.
And it does not mean Dicey is the Indian law. He described England in 1885. The Indian doctrine takes his first two limbs, rejects his third, and adds an enforceable equality clause he did not have.
Quick revision
The rule of law is government by known, general, prospective rules rather than by will, with the government itself under the ordinary law. Dicey's three meanings: supremacy of regular law and no wide discretionary authority; equality before the law and no droit administratif; and the constitution as the result of ordinary judicial decisions. Limb one survives in part, since discretion is now permitted if conferred, confined and reviewable. Limb two survives as article 14, though Dicey's attack on French administrative law was misconceived and India has tribunals under articles 323A and 323B. Limb three does not apply to India, which has a written Constitution that is the source of rights. The modern debate is formal against substantive; India has the substantive conception, and the Delhi Declaration of 1959 is its classic statement. Indira Nehru Gandhi struck down a constitutional amendment made for one case. E.P. Royappa holds equality and arbitrariness to be sworn enemies. ADM Jabalpur is the failure, and Khanna J.'s dissent became law by the Forty-fourth Amendment.
Test yourself
1. State Dicey's three meanings of the rule of law. The absolute supremacy of regular law as against arbitrary power and wide discretionary authority; equality before the law, everyone being subject to the ordinary law and the ordinary courts; and the constitution being the result of the ordinary law developed by the courts rather than of a written declaration of rights.
The Rule of Law: Dicey, and What Survives of Him
2. Which of the three does not apply to India, and why? The third. India has a written Constitution which is the source of fundamental rights rather than a summary of decided cases, and that is a stronger position because a Part III right cannot be reversed by ordinary legislation.
3. Was Dicey right about droit administratif? No. He thought a separate administrative jurisdiction meant official privilege, but the Conseil d'Etat developed a law more demanding of officials than the English common law of his day. India itself has administrative tribunals under articles 323A and 323B.
4. Distinguish the formal and substantive conceptions. The formal conception asks only whether law is prospective, open, clear, stable, general and applied by an independent court, so a wicked law properly applied satisfies it. The substantive conception adds respect for fundamental rights. India has adopted the substantive conception.
5. What did Indira Nehru Gandhi v. Raj Narain add to the doctrine in India? It made the rule of law an operative limit on the amending power: article 329A(4) was struck down because it decided one dispute by constitutional fiat and removed it from every court, offending generality, free elections and the separation of powers.
6. Distinguish the rule of law from rule by law. Rule by law means only that a government acts through legal forms, which an oppressive government can do easily. The rule of law adds requirements about the quality of those laws, their generality and prospectivity, and about the government being reachable under them.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.