Rule of Law v/s Rule by Law

This blog is part of the series Constitution simplified

This article focuses on bringing clarity on the two very different concepts which
looks similar at face value. Sir Ivor Jennings, the famous constitutional historian,
characterised Rule of Law as ‘an unruly horse’.

First, let’s be clear with what Rule of Law is not?

Rule of Law should not be equated with law and order. The breakdown of law and
order is a temporary phenomenon.
Breakdown of Rule of Law means collapse of good governance and breakdown
of constitutional machinery in a State.

Now, let’s see what Rule of Law is?

It may be difficult to define the concept with precision but in essence it signifies
commitment to certain principles and values. Generally, the rule of law is the
principle that no one is above the law and treated equally among citizens.
Rule of law symbolises the quest of civilised democratic societies to combine that
degree of liberty without which law is tyranny with that degree of law without
which liberty becomes licence.
However high you may be, the law is above you.

For instance, One may be the Prime Minister or the Speaker or the Imam or the
Archbishop or a judge or the Sankaracharya or whoever, all are equally subject to
the law. That imparts the element of non-discrimination in the concept of the Rule
of Law.

What are the principles of Rule of Law?

It was A.V. Dicey, the English Professor and Constitutional expert,

who developed this concept. He defined 3 principles that govern the rule of law.

1. Supremacy of Law
No man shall be punished or made to suffer in body or goods except for the
 violation of law. Such a violation must be established in an ordinary court of land
and in ordinary legal manner.
2. Equality before Law
No man is above the law and everyone, whatever his condition or rank is, is subject
to the ordinary laws of the land. <It means a person can sue or be sued in a court of
law>
3. Predominance of Legal spirit
The result of the ordinary law of the land is constitution. It indicates that the general
principles of the constitution are the result of judicial decision of the courts in
England. <However, this principle does not apply in case of written constitution. It
stands modified in India, where it reads that the constitution is the supreme law of
land & all other laws in order to be legally valid shall conform to constitution>

What is the importance of Rule of Law?

Rule of Law is essential for the protection of human rights.

This concept changed the mode of administration from “King was Law” to “Law is
King”. It is quite essential for the healthy functioning of democracy.
In its path breaking judgment in Keshavanand Bharti’s case, our Supreme Court
ruled that Rule of Law is part of basic structure of the constitution.
The Constitution in order to preserve the rule of law, has conferred the writ
jurisdiction under Art. 32 and Art. 226 on Supreme Court and High Court
respectively.

How Rule of Law is different from Rule by Law?

It is important not to confuse Rule of Law with rule by law.

The existence of a law is necessary but that is not sufficient. The law must have a
certain core component which guarantees the basic human rights and the human
dignity of every person.
Rule by law can become an instrument of oppression and it can give legitimacy to
the enactment of laws which may grossly violate basic human rights.

Let’s see with examples, how rule by law can be misused

Nazi Germany put Jews in concentration camps and thereafter sent them to the
gas chambers. The justification offered was that there was a law which empowered
such acts to be done. But that was rule by law, not Rule of Law.
 During the apartheid regime in South Africa, repressive and racially
discriminatory laws against the black majority were sought to be justified on the
basis of enacted laws.

Let’s see the relevance of Rule of Law in India

In India, this concept is implicitly mentioned in the fundamental rights of our

constitution. The equality before law (Article 14) includes Rule of Law in itself.
Indian Constitution grants some exception to the Rule of Law.

What are the exceptions to the Rule of Law in India?

1. The President/Governor is not answerable to court of law in discharge of his

executive functions.
2. No criminal proceedings whatsoever can be instituted against President or
Governor of state, while he is in office.
3. No civil proceedings in which relief is claimed can be filed against President or
Governor except after a expire of a 2 month notice that is served on him.

Under International laws, the visiting heads of state, heads of govt, ministers,
officials and foreign diplomats who are posted in country are not subjected to
jurisdiction of local courts in discharge of their official functions.

What are the concerns regarding Rule of Law in India?

Legal experts have raised their concerns regarding the implementation of Rule of
Law in India. A free democratic society like India cannot have recourse to
measures that violate the very essence of rule of law.
For instance, a law that permits the killing of suspected terrorists or
enables indefinite detention without prior hearing in the absolute discretion of the
executive is destructive of the rule of law. Fake encounters have no place in a
govt professedly based on the rule of law.
Therefore, we should strive to instill the rule of law temperament and culture at home and in educational
institutions. The aim should be that rule of law becomes the secular religion of all nations based on
tolerance and mutual respect.