Rule of law be used as a formula for expressing the fact that the laws of the Constitution are not the source but the consequence of the rights of individual as defined and enforced by the courts.
In many countries private rights such as freedom from arrest are sought to be guaranteed by a statement in a written Constitution but with England these rights are the result of court decisions in particular cases which have actually arisen.
Dicey’s fear was that a mere declaration of rights in a document will not provide any security against their being suspended or taken away by an executive or legislative action. In order to secure the rights with great strength their existence is to be affirmed through the decisions of the court.
Dicey’s concept of rule or law has been criticised mainly on the ground of his notion of equality before law which according to him, negatives the existence of administrative law.
There has been no government of legal system in world history which did not involve both rules and discretion.
It is impossible to find a Government of laws alone and not men in the sense of eliminating all discretionary powers. All Governments are of laws and of men.
The basic assumption of the rule of law is the absence of arbitrary power on the part of the government. According to him, its primary meaning is that everything must be done according to law.
Applied to the powers of government, this requires that every government authority which does act which otherwise would be wrong such as taking a man’s land or which infringes a man’s liberty must be able to justify its action as authorised by law.
The secondary meaning of the rule of law is that government should be conducted within a framework of recognised rules and principles which restrict discretionary power.
Under the rule of law, effective control of and proper publicity for delegated legislation is included particularly when it imposes penalties and that when discretionary power is granted the manner in which it is to be exercised should as far as practicable be defined; and every man should be responsible to the ordinary law whether be private citizen or public officer.
Those private rights should be determined by impartial and independent tribunals and that fundamental private rights are safeguarded by the ordinary law of the land.
In India, the Constitution is supreme. The preamble of our Constitution clearly sets out the principle of rule of law when it lays down the objectives of social, economic and political justice, equality of status and opportunity and fraternity, dignity of the individual citizen of India.
Part III of the Constitution lays down the fundamental rights guaranteed to every citizens of the country. These rights are justifiable under Articles 32 and 226 of the Constitution which ensure them a protection from any legislative or executive encroachments.
Laws, including ordinance, bye-laws, rules, regulation, notifications, customs or usages having the force of law must conform to the requirements of the Constitutional provisions.
Where they do not conform, they will be declared void under Article 13 and other relevant articles of the Constitution.
The law of preventive detention which is obnoxious to the rule of law must, however, conform procedure established by law under Article 21 of the Indian Constitution.