2.1.8. Rule of Law

Another important feature of the British Constitution is the Rule of Law. Constitutionalism or limited government is the essence of Rule of Law. This checks the arbitrary action on part of the Executive. According to Dicey, there are three principles of Rule of Law, found in Britain:

♤ Protection from arbitrary arrest and the opportunity to defend oneself.

♤ Equality before Law which means that all persons are equal before law, irrespective of their position or rank. It is different from the concept of Administrative Law, which gives immunity of various types to public servants. In the absence of Constitution and Fundamental Rights in Britain, the judiciary protects this law. So this system is called as the Principle of Common Laws. In Maneka Gandhi vs Union of India case (1978) SC held that the ‘procedure established by law’ within the meaning of Article 21 must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.

♤ The rights of people in Britain are guaranteed by the judiciary. The Judiciary gives recognition to the common laws. Thus, the people in Britain enjoy rights, even in the absence of a Bill of Rights or Fundamental Rights. The Constitution is the result of rights of the individuals protected by the courts in British Constitution whereas in India, the Constitution is the source of the individual rights.