Rule by Law, and Why the Difference Decides This Paper
Chapter Fourteen
Syllabus topic 1, "National Security, Public Orders and Rule of Law"
Pages 72 to 75 of 657
In one line
Rule by law means the government uses law as its instrument; rule of law means the government is itself bound by it.
In the wording a student can write in an exam: rule by law, or rule through law, describes a system in which the State acts through legal forms but the content of the law is unconstrained and the State is not effectively answerable under it. Rule of law requires in addition that the law satisfy minimum standards of generality, prospectivity, clarity and fairness, that officials be bound by it, and that an independent court be able to hold them to it. The distinction is one of substance and of accountability, not of form.
Why the distinction exists
Because the twentieth century produced States that were scrupulous about legal form and monstrous in substance. Statutes were passed, gazettes published, courts constituted, procedures followed. If the rule of law meant no more than acting through law, those States satisfied it.
That is not a merely historical point. It is the reason the Delhi Declaration of 1959, set out in [Rule of Law: The Modern Formulations], insisted that the rule of law is a dynamic concept with social and economic content, and the reason Lord Bingham insisted that the law must afford adequate protection of fundamental human rights.
The four differences, drawn
1. What constrains the content of the law. Under rule by law, nothing does: any content will serve so long as it is enacted. Under the rule of law, the content must satisfy standards. In India those standards are supplied by Part III and by the basic structure, so the distinction is not abstract here; it is enforceable.
2. Whether the State is bound. Rule by law binds the citizen to the State. The rule of law binds the State as well. This is Dicey's second meaning and Bingham's fourth principle.
3. Whether an independent body decides. Under rule by law the executive may be the judge of its own actions, or the body reviewing it may be one it appoints and controls. The rule of law requires independent adjudication.
4. Whether the law is knowable in advance. Rule by law is compatible with retrospective, secret and vague rules. The rule of law is not, and this is the whole of Fuller's account.
The test to apply
Four questions, in order. They can be applied to any provision in this book, and an answer that runs through them is doing real work rather than asserting a conclusion.
Q1. Is there a legal source for the power? If not, the action fails at the first step, and neither conception is satisfied.
Q2. Does the law bind the official as well as the citizen, or does it exempt him? Immunity clauses are the place to look. Section 16 of the National Security Act 1980 protects anything done in good faith under the Act; section 6 of the Armed Forces (Special Powers) Act 1958 requires the previous sanction of the Central Government before any prosecution of a person acting under that Act.
Rule by Law, and Why the Difference Decides This Paper
Q3. Is there independent adjudication, and how much of the decision can it reach? An Advisory Board of three persons who are, have been, or are qualified to be Judges of a High Court, appointed by the detaining Government, sitting in confidence, with no lawyer for the detenu, is not a court. A High Court on habeas corpus is.
Q4. Could the person have known in advance what would bring the power down on them? A detention order rests on a prediction about future conduct, so the answer is structurally weaker here than for a criminal offence.
A worked example: applying the test to a detention order
Q1. Yes. Section 3 of the National Security Act 1980 confers the power, states who may exercise it and on what grounds.
Q2. Partly. The Act binds the detaining authority to procedure, but section 16 gives protection for anything done in good faith, and the practical effect is that an official whose order is quashed faces no consequence.
Q3. Two answers. The Advisory Board is not independent adjudication in the full sense: it is constituted by the same Government, it sits in confidence, and section 11(4) provides that nothing in that section entitles the detenu to appear by any legal practitioner. The High Court on habeas corpus is independent, but it cannot examine the sufficiency of the grounds, which is the subject of [Subjective Satisfaction, and How Far a Court May Examine It].
Q4. Weak. The Act names grounds like the maintenance of public order, and whether a person's conduct falls within them is decided afterwards by an official.
Conclusion for an answer. Preventive detention in India sits between the two conceptions. It is unquestionably rule through law: the power is conferred, limited and reviewable. It is not the full rule of law: the reviewing body is not a court, the review does not reach the merits, and the citizen cannot know in advance. Whether the gap is justified by necessity is the argument in [Exceptional Legislation and the Rule of Law: An Assessment], and it is the argument MU is really setting when it puts national security and the rule of law in the same title.
The same test applied to an emergency
Q1. Yes. Article 352 confers the power to proclaim.
Q2. Yes and more so after 1978. The proclamation must be on written Cabinet advice, must be approved by both Houses by special majorities, and lapses if it is not.
Rule by Law, and Why the Difference Decides This Paper
Q3. Yes in part. The proclamation itself is subject to judicial review on limited grounds, and articles 20 and 21 can never be suspended.
Q4. Yes. The grounds are stated in article 352(1) and the consequences in articles 353 to 360.
The comparison is instructive and worth making in an answer: the emergency provisions, which sound more drastic, satisfy the rule of law test better than the detention statutes do, because they were rewritten in 1978 by a Parliament that had just seen them abused, while the detention statutes were not.
What it does NOT mean
It is not a claim that Indian law is rule by law. India has an enforceable bill of rights, judicial review as part of the basic structure, and an independent judiciary. The distinction is a tool for testing particular powers, not a verdict on a system.
It is not the same as good law and bad law. A law may be unwise and still satisfy the rule of law, and a well-intentioned law may fail it.
It does not mean discretion is rule by law. Discretion conferred in clear terms, exercised for the proper purpose on relevant considerations and subject to review, is compatible with the rule of law. Unconfined discretion is not.
Quick revision
- Rule by law: the State acts through legal forms; content unconstrained; the State not effectively bound.
- Rule of law: adds standards of content, binds officials, requires independent adjudication and prospective knowable rules.
- Four differences: content, whether the State is bound, independent adjudication, knowability in advance.
- The four question test: is there a legal source; does the law bind the official; is there independent adjudication and how far does it reach; could the person have known in advance.
- Applied to preventive detention: satisfies the first, partly the second, imperfectly the third, weakly the fourth.
- Applied to the emergency provisions after 1978: satisfies all four better, because Parliament rewrote them after the abuse.
Test yourself
1. State the difference in one sentence. Rule by law means the government governs through law; the rule of law means the government is itself governed by law.
2. Which provision of the National Security Act is the place to look when asking whether the law binds the official? Section 16, which provides that no suit, prosecution or other legal proceeding shall lie against the Government or any person for anything done in good faith in pursuance of the Act.
3. Why is an Advisory Board not independent adjudication in the full sense? Because it is constituted by the same Government that detains, its proceedings and report are confidential save for the part stating its opinion, and section 11(4) of the Act provides that nothing in that section entitles the detenu to appear by a legal practitioner.
Rule by Law, and Why the Difference Decides This Paper
4. Give the four questions of the test. Is there a legal source for the power? Does the law bind the official as well as the citizen? Is there independent adjudication and how far does it reach? Could the person have known in advance?
5. Why do the emergency provisions score better on the test than the detention statutes? Because they were rewritten by the 44th Amendment in 1978 by a Parliament that had just seen them abused, while the preventive detention statutes were not similarly reformed, and section 3 of that Amendment, which would have tightened article 22, has never been brought into force.
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.