Rule of Law

The rule of law is the foundational constitutional principle that law — not the will of rulers, not force, not arbitrary discretion — governs the conduct of both citizens and the State. It means that government action must be authorised by law, taken in accordance with law, and subject to legal challenge. No person — however powerful — is above the law; and no person — however vulnerable — is beneath its protection. The rule of law is the antithesis of arbitrary power: it substitutes legal authority for the personal will of those who hold power.

A.V. Dicey's classic formulation identified three elements of the rule of law: (1) Supremacy of law — no man may be punished or made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land; arbitrary punishment and arbitrary prerogative are incompatible with the rule of law; (2) Equality before law — every man, whatever his rank or condition, is subject to the ordinary law and the jurisdiction of the ordinary courts; no one is above the law; and (3) The constitution as a result of ordinary law — individual rights are not secured by a written constitution but are the result of decisions of ordinary courts in lawsuits about particular cases, which over time create a constitutional framework. The third element, specific to England, has been adapted in India's written constitutional framework.

In Indian constitutional law, the rule of law is a basic feature of the Constitution — one of the features so fundamental that it cannot be destroyed or abrogated even by a constitutional amendment (Kesavananda Bharati v. State of Kerala, 1973). The Supreme Court has repeatedly held that the rule of law requires: that the State and its agencies act within the four corners of their legal authority; that government decisions be based on relevant considerations and be proportionate to the statutory objectives; and that affected persons have access to an independent judiciary to challenge unlawful action.

The rule of law has several practical implications in Indian legal practice: (1) Every executive action must have a legal basis — government officials cannot act without statutory authority; (2) Retrospective laws that criminalise acts innocent at the time of commission violate the rule of law (Article 20(1)); (3) Persons charged with offences have the right to a fair trial before an independent judiciary — arbitrary detention violates the rule of law; and (4) All persons are entitled to equality before the law — special privileges, class legislation, and discriminatory application of law violate the rule of law.

For advocates, the rule of law is both a principle of constitutional law (directly enforceable) and an interpretive guide. When government action is challenged, the rule of law requires: that the authority for the action be identified (which law authorises this?); that the procedures required by law be followed; and that the action be within the power (intra vires) of the authority taking it. An action that fails any of these tests is unlawful — and the rule of law provides the constitutional basis for judicial review and correction.