Dicey’s concept of Rule of Law
📘 Dicey’s Concept of Rule of Law
A.V. Dicey (1885), a British constitutional theorist, defined the Rule of Law as a fundamental principle of the British Constitution, which applies just as strongly to modern administrative law and democratic governance globally.
He identified three key principles:
🔹 1. Supremacy of Law (No Arbitrary Power)
No person is punishable or made to suffer except for a breach of law established in the ordinary legal manner before the ordinary courts.
This opposes arbitrary or discretionary power. Everyone must follow the law of the land, including public officials.
🔹 2. Equality Before the Law
Every person, regardless of rank or status, is subject to the same laws and to the jurisdiction of the same courts.
This means no special privileges or legal immunities for government or elites.
🔹 3. Constitution as the Result of the Ordinary Law
The constitution is not the source of rights but rather a result of judicial decisions establishing individual rights.
Dicey believed in common law protections of liberties, not written constitutions.
⚖️ Case Law Supporting or Challenging Dicey’s Rule of Law
Let’s look at six+ detailed cases that demonstrate how courts have applied or tested Dicey’s principles.
🧑⚖️ 1. Entick v. Carrington (1765) — UK
Facts:
Government agents entered and searched Entick’s home without lawful authority, on orders from a minister.
Held:
The court ruled the search was unlawful. Government cannot act without legal authority.
Dicey Principle:
✔️ Supremacy of Law
→ Officials must obey the law just like private citizens.
🧑⚖️ 2. A.K. Gopalan v. State of Madras (1950) — India
Facts:
Gopalan was detained under the Preventive Detention Act. He challenged the legality under Article 21 (right to life and personal liberty).
Held:
The Supreme Court upheld the detention, focusing narrowly on legality under procedure established by law.
Dicey Principle:
❌ Challenge to Rule of Law
→ Court prioritized procedure over fairness, arguably allowing executive overreach.
🧑⚖️ 3. Kesavananda Bharati v. State of Kerala (1973) — India
Facts:
The question was whether Parliament could amend any part of the Constitution, including fundamental rights.
Held:
The Supreme Court ruled that Parliament cannot alter the “basic structure” of the Constitution.
Dicey Principle:
✔️ Supremacy of Law & Constitutionalism
→ Even lawmakers are subject to limits; constitutional supremacy reflects Dicey’s spirit.
🧑⚖️ 4. R (on the application of UNISON) v. Lord Chancellor (2017) — UK
Facts:
The UK government introduced high fees for employment tribunal claims, reducing access to justice.
Held:
The UK Supreme Court held the fees were unlawful because they restricted access to courts, a basic right under the Rule of Law.
Dicey Principle:
✔️ Access to Justice = Supremacy of Law
→ The Rule of Law requires that courts remain open to all, not just the wealthy.
🧑⚖️ 5. Indira Nehru Gandhi v. Raj Narain (1975) — India
Facts:
Indira Gandhi’s election was set aside for electoral malpractice. Parliament passed a law to overturn the judgment retroactively.
Held:
The law was struck down. Parliament cannot use legislative power to override judicial decisions in individual cases.
Dicey Principle:
✔️ Equality Before Law & Separation of Powers
→ Government is not above the law; judicial independence upheld.
🧑⚖️ 6. Anisminic Ltd v. Foreign Compensation Commission (1969) — UK
Facts:
A tribunal wrongly denied compensation to a company, and a statute said its decisions “shall not be called into question in any court.”
Held:
The court ruled the decision was reviewable, because the tribunal made an error of law.
Dicey Principle:
✔️ Supremacy of Law
→ Even when Parliament tries to oust judicial review, courts protect the Rule of Law by reviewing illegal actions.
🧑⚖️ 7. Olga Tellis v. Bombay Municipal Corporation (1985) — India
Facts:
Pavement dwellers were evicted without notice. The state argued they were illegal occupants.
Held:
Supreme Court ruled that right to livelihood is part of right to life under Article 21. Evictions without hearing were illegal.
Dicey Principle:
✔️ Supremacy & Equality Before Law
→ Even the poorest citizens have rights protected by law.
🧠 Summary Table: Dicey's Principles in Case Law
| Case Name | Dicey Principle(s) Applied | Outcome/Significance |
|---|---|---|
| Entick v. Carrington (1765, UK) | Supremacy of Law | Govt must act under lawful authority |
| A.K. Gopalan (1950, India) | Challenged Supremacy of Law | Formal legality over substantive fairness |
| Kesavananda Bharati (1973, India) | Constitutional supremacy | Limits on Parliament = Rule of Law |
| UNISON Case (2017, UK) | Access to Justice = Rule of Law | Courts must be open to all |
| Indira Gandhi Case (1975, India) | Equality before Law | Parliament can't override court decisions |
| Anisminic Case (1969, UK) | Judicial review of error of law | Tribunals subject to Rule of Law |
| Olga Tellis (1985, India) | Rights for all under the law | Even squatters protected by constitutional rights |
⚖️ Final Takeaways
Dicey’s Rule of Law is not just theory — it is alive in case law, often used to check executive or legislative overreach.
Modern courts uphold the Rule of Law by:
Ensuring access to courts
Protecting due process and fairness
Keeping officials accountable
Enforcing equality before the law
Dicey’s third principle (common law origin of rights) is more historical and less applicable in written constitution systems (like India or the U.S.).
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