Rule of Law: Dicey's Concept, the Rule of Law under the Indian Constitution and its Exceptions

The rule of law is the idea that a society should be governed by law and not by the arbitrary will of those who hold power. It is the oldest and most important principle of administrative law, because the entire purpose of the subject is to ensure that the administration acts according to law. The modern discussion of the rule of law begins with A.V. Dicey, whose account both shaped and, in one respect, obstructed the growth of administrative law. In India the principle has been given a constitutional home, declared part of the basic structure, and developed far beyond Dicey's version, while at the same time being subject to necessary exceptions. This topic traces the concept from Dicey to its present Indian form.

1. The Idea and its Origins

The phrase 'rule of law' is derived from the French la principe de legalite, the principle of legality, meaning a government based on principles of law and not of men. Its roots run deep: to Aristotle, who argued that the rule of law is preferable to that of any individual; to the medieval assertion by Bracton that the King is under God and the law; to Sir Edward Coke, who in the seventeenth century maintained against the Stuart kings that the King is subject to the law; and to the settlement of 1688, which subordinated the Crown to Parliament and the law. Coke is often regarded as the originator of the modern principle, but its classic exposition is that of Dicey.

2. Dicey's Concept of the Rule of Law

A.V. Dicey, in his Introduction to the Study of the Law of the Constitution (1885), gave the rule of law three distinct meanings. They must be stated precisely, because each carries its own meaning and attracts its own line of criticism.

2.1 First meaning: supremacy of law

The supremacy of law, in this sense, is the opposite of arbitrary power. Where there is discretion, Dicey believed, there is room for arbitrariness, and a citizen's rights depend on the certainty of the law rather than on the will of officials.

2.2 Second meaning: equality before the law

The second meaning is equality before the law: every person, whatever his rank or condition, is subject to the ordinary law of the land and to the jurisdiction of the ordinary courts. No one is above the law, and officials are answerable in the ordinary courts, in the same way as private citizens, for acts done in their official capacity. It was this meaning that led Dicey to condemn the French droit administratif, under which disputes involving officials were decided by separate administrative courts. He regarded such a separate system, which gave officials a distinct set of rules and a distinct forum, as a denial of equality and therefore inconsistent with the rule of law.

2.3 Third meaning: the constitution is the result of the ordinary law

The third meaning is peculiar to England and reflects the absence of a written constitution there. In England, Dicey said, the general principles of the constitution, such as the right to personal liberty or the right of public meeting, are the result of judicial decisions determining the rights of private persons in particular cases brought before the courts. The constitution is not the source but the consequence of the rights of individuals as defined and enforced by the courts. In this sense the rights are more secure, because they are woven into the ordinary law and cannot easily be suspended.

3. Criticism of Dicey's Concept

Dicey's account has been influential but is now regarded as flawed in important respects. The criticisms are themselves examinable.

1. Confusion of discretion with arbitrariness. Dicey treated all discretionary power as a threat to the rule of law. This is untenable in a modern State, where wide discretion is unavoidable and where the real question is not whether discretion exists but whether it is controlled. Administrative law answers Dicey by controlling discretion rather than abolishing it.
2. Misunderstanding of droit administratif. Dicey misjudged the French system. The Conseil d'État proved to be an effective and independent protector of the citizen against the administration, in some respects more effective than the English courts. His later writing, including his 1915 article, showed a more sympathetic understanding, and the modern view is that a separate administrative jurisdiction is not inconsistent with the rule of law.
3. Overlooking official privileges and immunities. Even in England, the Crown and public officials enjoyed special privileges and immunities, so the equality Dicey described was never complete. The Crown Proceedings Act, 1947 was needed precisely because the Crown had not been suable like a private person.
4. Denial of a needed administrative law. By insisting that administrative law was alien to England, Dicey delayed the recognition and orderly development of the subject there. Later writers, including Jennings and Robson, regarded his hostility as an obstacle to sound administrative regulation.
5. The third meaning is parochial. The proposition that a constitution is best derived from ordinary judicial decisions reflects the peculiar English position and does not fit countries with written constitutions, where rights are declared in the constitution itself and are, if anything, more securely protected.

4. The Modern Concept of the Rule of Law

The rule of law has since been developed well beyond Dicey. In 1959 the International Commission of Jurists, at its Delhi Congress, adopted the Declaration of Delhi, which formulated the rule of law in a modern, substantive sense: it is not merely a set of formal safeguards but requires the State to create conditions in which the dignity of the individual is upheld and his social, economic, educational and cultural needs are met. This is the rule of law of the welfare State, which imposes positive as well as negative duties on government.

The English jurist Joseph Raz analysed the rule of law as a set of principles concerning how laws should be made and administered: laws should be prospective, open and clear; relatively stable; made under open, stable and general rules; the independence of the judiciary must be guaranteed; the principles of natural justice must be observed; the courts should have review powers; they should be accessible; and the discretion of crime-preventing agencies should not be allowed to pervert the law. Lord Bingham, in a well-known modern account, expressed the core of the principle as the proposition that all persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect in the future and publicly administered in the courts. These accounts share the idea that the rule of law is both a formal and a substantive value.

5. The Rule of Law under the Indian Constitution

The Constitution of India embraces the rule of law and, in the hands of the Supreme Court, has given it a content richer than Dicey's. The principle is not stated in a single Article; it pervades the whole document and has been located in several provisions.

5.1 The constitutional anchors

• Supremacy of the Constitution. The Constitution is the supreme law, and by Article 13 any law inconsistent with the fundamental rights is void. Government and its officials are subject to the Constitution.
• Article 14. Equality before the law and the equal protection of the laws is the direct constitutional expression of Dicey's second meaning, and, through the non-arbitrariness doctrine, of the first.
• Article 21. No person may be deprived of life or personal liberty except according to a procedure that is fair, just and reasonable, which secures the citizen against arbitrary executive action.
• Articles 32 and 226. The writ jurisdiction of the Supreme Court and the High Courts provides the enforcement machinery through which the rule of law is made effective.
• Judicial review and the basic structure. The rule of law and judicial review have been held to be part of the basic structure of the Constitution and beyond the amending power.

5.2 The leading cases

The principle has been applied and restated in many later decisions. In Som Raj v. State of Haryana, (1990) 2 SCC 653, the Court held that the absence of arbitrary power is the first postulate of the rule of law upon which the whole constitutional edifice is based. In Bachan Singh v. State of Punjab, (1982) 3 SCC 24, Justice Bhagwati observed that the rule of law excludes arbitrariness and that wherever there is arbitrariness there is a denial of the rule of law. Most recently, the constitutional courts have continued to invoke the rule of law to require that high functionaries act within reasonable time and without arbitrariness, as in the 2025 advisory opinion on the assent of Bills, while recognising the limits that the separation of powers places on judicial intervention.

6. Exceptions to the Rule of Law

No legal system applies the rule of law without qualification. Certain immunities, privileges and discretions are recognised as necessary, and they are conventionally described as exceptions to the rule of law, in the sense of departures from the strict principle of the equal subjection of all to the ordinary law. The principal exceptions in the Indian context are the following.

6.1 Constitutional immunities of high functionaries

Article 361 confers immunities on the President and the Governors. They are not answerable to any court for the exercise and performance of the powers and duties of their office; no criminal proceedings may be instituted or continued against them during their term of office; and no process for their arrest or imprisonment may issue from any court during that term. The conduct of the President or a Governor in the exercise of official functions may, however, be examined in appropriate proceedings such as those against the Union or the State, and their official acts remain subject to judicial review even though they are personally immune.

6.2 Privileges of legislators

Articles 105 and 194 confer privileges on Members of Parliament and of the State Legislatures. A member is not liable to any proceedings in any court in respect of anything said or any vote given in the House or its committees, and freedom of speech in the legislature is protected. These privileges place certain legislative conduct beyond the ordinary law.

6.3 Discretionary powers

The modern State cannot function without conferring wide discretionary powers on the administration, and to that extent Dicey's insistence on the absence of all discretion cannot be met. This is not, however, a true abandonment of the rule of law, because discretion is now controlled by law: it must be exercised within the limits of the statute, for the purpose for which it was conferred, on relevant considerations, and reasonably. Controlled discretion is consistent with the rule of law; only uncontrolled or arbitrary discretion offends it.

6.4 Diplomatic and other statutory immunities

Foreign sovereigns, ambassadors and diplomats enjoy immunity from the jurisdiction of the courts under international law and the Diplomatic Relations (Vienna Convention) Act, 1972. Certain statutes confer immunity on public servants for acts done in good faith in the discharge of official duties, and some require prior sanction for their prosecution, for example under the provisions on prosecution of public servants in the criminal law. Public corporations and international organisations may also enjoy limited immunities. These are recognised departures from strict equality before the law.

6.5 Special treatment and administrative adjudication

The existence of tribunals and administrative authorities that decide disputes outside the ordinary courts is sometimes described as a departure from Dicey's second meaning, which required all disputes to be decided by the ordinary courts. In the modern understanding this is not a violation of the rule of law, provided the tribunals are independent, act fairly and are subject to judicial review, as L. Chandra Kumar and the Madras Bar Association cases require.

7. The Rule of Law in Summary

1. The rule of law means government under law and not under the arbitrary will of individuals. Its classic exposition is Dicey's, with three meanings: the supremacy of law and absence of arbitrary power; equality before the ordinary law and the ordinary courts; and, in England, a constitution derived from ordinary judicial decisions.
2. Dicey's account has been criticised for confusing discretion with arbitrariness, for misunderstanding droit administratif, for overstating equality, for delaying the growth of administrative law, and for the parochialism of its third meaning.
3. The modern concept, expressed in the Declaration of Delhi (1959) and by writers such as Raz and Bingham, is both formal and substantive and imposes positive obligations consistent with the welfare State.
4. The Indian Constitution embraces the rule of law through the supremacy of the Constitution, Articles 14, 21, 32 and 226, and the basic structure doctrine, and the Supreme Court has developed it into a constitutional and substantive principle, as in Indira Nehru Gandhi and the overruling of A.D.M. Jabalpur.
5. The recognised exceptions are the constitutional immunities of the President and Governors (Article 361), the privileges of legislators (Articles 105 and 194), diplomatic and statutory immunities, and the necessary existence of controlled discretion and independent administrative adjudication.

8. Related Topics and Provisions

• Constitutional Foundations of Administrative Law in India (Topic 7): the Articles that give the rule of law its constitutional home.
• Administrative Law vs Constitutional Law (Topic 6): the rule of law as the shared foundation of both branches.
• Separation of Powers: the companion principle examined alongside the rule of law.
• Administrative Discretion and its Control: the modern answer to Dicey's distrust of discretion.
• Droit Administratif: the French system that Dicey criticised, treated in the historical development topic.
• Judicial Review of Administrative Action: the machinery through which the rule of law is enforced.
• Constitution of India: Articles 13, 14, 21, 32, 105, 194, 226, 361; the basic structure doctrine.