ADMINISTRATIVE

LAW

TOPIC: RULE OF LAW

Submitted to: Submitted by:

Dr. Shruti Bedi Geetanjali Bhatia
B.A LLB (Hons)

ACKNOWLEDGEMENT
1|Page
 I have put my sincere efforts in this project. However, it would not have been
possible without the kind support and help of many individuals and organizations. I
would like to extend my sincere thanks to all of them.

I am highly indebted to Dr. Shruti Bedi for their guidance and constant
supervision as well as for providing necessary information regarding the project &
also for their support in completing the project.

I would like to express my gratitude towards my parents, seniors and my

classmates for their kind co-operation and encouragement which help me in
completion of this project.

My thanks and appreciations also go to my friends in developing the project and

people who have willingly helped me out with their abilities.

Geetanjali Bhatia

2|Page
 RULE OF LAW

Introduction

The concept of Rule of Law is that the state is governed, not by the ruler
or the nominated representatives of the people but by the law. A country
that enshrines the rule of law would be one where in the grundnorm of the
country, or the basic and core law from which all other law derives its
authority is the supreme authority of the state. The monarch or the
representatives of the republic are governed by the laws derived out of the
grundnorm and their powers are limited by the law. The King is not the
law but the law is king.

The expression ‘Rule of Law’ has been derived from the French phrase
‘la principle de legalite’,1 i.e. a Government based on the principles of
law.
Rule of law is one of the basic principles of the English Constitution:
This doctrine has been enshrined in the Constitution of U.S.A. and in the
Constitution of India as well. The entire basis of administrative law is the
concept of rule of law. Sir Edward Coke, The Chief Justice in James I's
reign is said to be the originator, of this great principled. In a battle

1 Kamaluddin Khan, The Doctrine of Rule of Law

3|Page
 against the King, he succeeded in maintaining that the King must be
under the God and the law and thus vindicated the supremacy of law
against the executive. Dicey developed, this doctrine of Coke in his
classic book, 'The Law and the Constitution' published in the year 1885.2

 Dicey formulation of law

Dicey’s theory has three pillars based on the concept that “a government
should be based on principles of law and not of men”, these are:

1. Supremacy of law: The First meaning of the Rule of Law is that ‘no man
is punishable or can lawfully be made to suffer in body or goods except for a
distinct breach of law established in the ordinary legal manner before the
ordinary courts of the land. It implies that a man may be punished for a
breach of law but cannot be punished for anything else. No man can be
punished except for a breach of law. An alleged offence is required to be
proved before the ordinary courts in accordance with the ordinary procedure.
It is opposed to the influence of arbitrary power and wide discretionary
power. In Dicey’s words, “wherever there is discretion, there is room for
arbitrariness and that in a republic no less than under a monarchy
discretionary authority on the part of the government must mean insecurity
for legal freedom on the part of its subjects.

2. Equality before law: The Second meaning of the Rule of Law is that no
man is above law. Every man whatever be his rank or condition is subject to
the ordinary law of the realm and amenable to the jurisdiction of the ordinary
tribunals.

2A. V. Dicey, INTRODUCTION TO THE STUDY OF THE

LAW OF THE CONSTITUTION

4|Page
 Prof. Dicey states that, there must be equality before the law or equal
subjection of all classes to the ordinary law of the land. He criticised the
French legal system of droit Administrative in which there were separate
administrative tribunals for deciding the cases of State Officials and citizens
separately. He criticises such system as negation of law. In the words of Lord
Denning: "Our English law does not allow a public officer to shelter behind
a droit administrative.''

3. Predominance of law: The Third meaning of the rule of law is that the
general principles of the constitution are the result of juridical decisions
determining file rights of private persons in particular cases brought before
the Court.
Dicey states that many constitutions of the states (countries) guarantee their
citizens certain rights (fundamental or human or basic rights) such as right to
personal liberty, freedom from arrest etc. According to him documentary
guarantee of such rights is not enough. Such rights can be made available to
the citizens only when they are properly enforceable in the Courts of law,
For Instance, in England there is no written constitution and such rights are
the result of judicial decision.
Application of the Doctrine in England: Though, there is no written
constitution, the rule of law is applied in concrete cases. In England, the
Courts are the guarantors of the individual rights. Rule of law establishes an
effective control over the executive and administrative power.

5|Page
Evaluation of Dicey’s rule of law:

Dicey's formulation of the concept of "rule of law" has been subjected to

criticism on various counts.
While explaining the contents of his doctrine of "Rule of Law", Dicey not
only excluded "discretionary powers" but also insisted that the administrative
authorities should not be given wide discretionary powers. He believed that
"wherever there is discretion there is room for arbitrariness."
Dicey, thus, failed to distinguish arbitrary powers from discretionary powers.
While arbitrary power is said to be inconsistent with the concept of "Rule of
Law", discretionary power would not be, if it is exercised properly. Intensive
Government as it exists in modem times, say Wade & Forsyth "cannot be
carried on without a great deal of discretionary power" and that this power
"is often conferred in excessively sweeping language".
Besides, Dicey ignored the privileges and immunities enjoyed by the Crown
(which term stood for the Executive) under the cover of the Constitutional
maxim "King can do no wrong". Dicey, therefore, say Jain & Jain was
factually wrong in his analysis, though his exposition of "Rule of Law" has
had a tremendous impact on the growth of Administrative Law in England.
Dicey's criticism of French system of Administrative Courts is said to be
based on his mistaken conclusion. He misunderstood and miscomprehended
the real nature of the system. He held that Droit Administratif was designed
for the purpose of giving to officials "a whole body of special rights,
privileges or prerogatives as against private citizens", so as to make them a
law unto themselves.
The French Administrative Law, the learned authors assert, "has a system of
compensation for the acts of public officers which is in some respect more

6|Page
 generous than that of English Law.” It is that, the French Conseil d’ Etat is
widely admired and has served as a model for other countries.
Besides, Dicey also ignored the growth of administrative tribunals, quite a
few of which had come into existence when he propounded his concept of
"rule of law".
Later, Dicey himself became conscious of the emergence of Administrative
Law in England.
The principle implicit in Dicey's "rule of law" thesis is that the Executive
must act under the law and not by its own decree or fiat. It is still the core
principle of the Common Law system.
In modern times, Dicey's rule of law has come to be identified with the
concept of rights of citizens. As Wade and Phillips16 rightly state, it is
accepted in almost all the countries outside the Communist world with some
variations. It is invoked in modern democratic countries to keep control over
the oppressive, capricious and arbitrary exercise of powers by the
administrative authorities. The International Commission of Jurists, in their
'Delhi Declaration' made in the year 1959 accepted the idea of the rule of law
as a modern form of law of nature. In the ultimate analysis it may be
concluded that Dicey’s contribution to the study of Administrative Law must
be acknowledged.

Others view on Rule of law:

 Wade and Forsyth, assigns four meaning to “rule of law”. Its primary
meaning is that "everything must be done according to law".3 It requires that
every government authority must be able to justify its action as authorized by
law. And, that the affected person may always resort to the Court of law and

3 Upadhya , JJR, Administrative Law, Central Law Agency

7|Page
 if the legal pedigree is not found to be perfectly in order, the Court will
invalidate the act. It is called the principle of legality.

"Rule of law" means that "government should be conducted within a

framework of recognized rules and principles which restrict discretionary
power." It is the secondary meaning of the rule of law, say the learned
writers.

The third meaning of "rule of law", a corollary drawn from its first
meaning, Wade & Forsyth say, is that disputes as to the legality of acts of
government, are to be decided by Judges who are independent of the
Executive. The right to carry a dispute with the government before the
ordinary Courts, manned by Judges of the highest independence.

The law should be even-handed between the Government and citizen. The
Government should not enjoy unnecessary privileges or exemptions from
ordinary law. That, "all public authorities", in principle, "should be subject
to all normal legal duties and liabilities which are not inconsistent with
their governmental functions". It is the fourth meaning assigned to the
concept of "rule of law.

 Prof. A.L. Good hart, rule of law is that public officers are governed by law,
which limits their powers. It means government under law
_the supremacy of law over the government is distinct from government by
law_ the mere supremacy of law in society generally would apply also to
totalitarian states4.
 John Finnis says that by ‘rule of law’ is meant a system in which 1)its rules
are prospective 2)possible to comply with 3)promulgated 4)clear 5)coherent
with each other 6)sufficient stable 7)the making of decree and orders are
guided by rules that are themselves promulgated, clear, stable and general

4 Upadhya , JJR, Administrative Law, Central Law Agency

8|Page
 8)those who administer rules are accountable to their own compliance with
rules related to their activities and who perform these consistently and
accordance with law5.

Significance of Rule of Law:

 Rule of law helps to eradicate corruption tendencies the government.
 It leads to demand for accountability from the leaders.
 There is S.O.P or SEPARATION OF POWERS between the three organs
of government.
 It reduces dictatorship among leaders; this is done through the regular
elections.
 Multiparty system is effective because people have the right to belong in
their political parties of their choice.
 Impartiality in decision making and proper scrutiny of laws.

Rule of law under the Indian Constitution:

 Supremacy of the constitution: Dicey’s doctrine of the “rule of

law” has been accepted and embodied in the constitution of India because
the Preamble includes the ideals of justice, liberty, and equality. These
concepts are enshrined in the part 3 as fundamental rights and made
5 Upadhya , JJR, Administrative Law, Central Law Agency

9|Page
 enforceable. The constitution is supreme and all the three organs of the
government that is judiciary, legislature, executive are subordinate to and
have to act in accordance with it. The principal of judicial review is
enshrined in the constitution and subjects can approach High courts and
Supreme courts for the enforcement of fundamental rights guaranteed under
the constitution. Supreme Court under article 32 and high court under article
226 can issue writs for the enforcement of the fundamental rights.
The executive and legislative powers of the state and the Union are required
to be exercised according to the provisions of the constitution. The
government and public officials are not above law.

 Constitutional requirement of Equality: Equality before law

as a postulate of rule of law has been accepted and adopted under article 14
of the constitution. The maxim “The king can do no wrong” has no
application in India. The government and public authorities are subject to the
ordinary courts of law and for the similar wrongs are to be tried and also.
Suits for breach of contracts and torts committed by the public authorities
can be filed in the ordinary courts and damages recovered from the state
government or union government for their employees. In People Union for
Democratic rights v. Union of India6 the court upholding the public interest
litigation as one of the corollaries of rule of law, observed that the public
interest litigation is intended to promote and vindicate public interest which
demands the violation of legal and constitutional rights of large number of
people who are poor, ignorant or socially and economically disadvantaged
position, should not go unnoticed and unredressed. That would be
destructive of the rule of law which forms one of the essential elements of
the public interest in any democratic form of government.

6 1982 AIR 1473

10 | P a g e
 Constitutional guarantee and judicial enforcement of
rights: The constitutional of India guarantee certain rights which can be
enforced by the courts. In Om oil seeds exchange ltd., Delhi v. Union of
India7 upheld the sanctity of the rule of law even during the promulgation of
emergency and the suspension of the fundamental rights. Neither the
declaration of emergency nor the suspension of the fundamental rights can
be destructive of rule of law. Such a declaration and consequential
suspension of the fundamental rights combined with other constitutional
changes in their wake, to an extent, abridged the rule of law but all these do
not add up to an abrogation of it.

 Rule of law as legal concept: The basic concept of rule of law is

not a defined concept. The courts would not declare any positive law as
invalid on the ground that it violates the contents of rule of law. In P.
Sambamurty v. State of A.P 8held that it was a basic principle of “rule of
law” that the exercise of power by the Executive or by any other authority
must not only be conditioned by the constitution, but, must also be in
accordance with the law.

 Rule of law as a feature of Basic structure: in Keshavnanda

Bharti v. State of Kerala9 some of the judges constituting majority were of
the opinion that the rule of law was an “aspect of the doctrine of basic
structure of the constitution which even the plenary power of parliament
cannot amend”.

 Elimination of arbitrariness, and not of discretion: From

the viewpoint of the Indian conception of rule of law it only eliminated the
arbitrariness but not the discretion. It therefore becomes necessary to check

8 1993 AIR 2178

9 1973) 4 SCC 225

11 | P a g e
 in order to uphold the principles of rule of law in administration so that the
discretionary power does not degenerate into arbitrary power. In Indira
Nehru Gandhi v. Raj Narain10 wherein the Apex court invalidates Clause (4)
of Article 329-A, inserted in the constitution by the constitutional (39th
amendment) Act 1975, to immunize the election dispute to the office of the
Prime Minister from any kind of judicial review. That there is in the world
on government or legal system which has no discretion. It is not possible that
a government may be consist of law alone but not of men and those men
may not be given discretion.

 Fairness in action: It was noticed that due to the growth of

governmental functions, it was not possible for government by itself to
undertake to regulate and control, say the service , industries, professionals,
Skills and experience rather than politicians who compose government
should do it. In A.K Kraipak v. Union of India11 it was observed that-
“Under our constitution the rule of pervades over the anti-field of
administration. Every organ of the state under our constitution is regulated
and controlled by rule of law. In a welfare state like ours it is inevitable that
the jurisdiction of the administrative bodies is increasing at the rapid rate.
The concept of our constitution would lose its validity if the instrumentalists
of the state are not charged with the duty of discharging their functions in a
fair and just manner”.

 Public interest in security of social welfare: The rule of

notion as evolved by the Indian courts extends to the protection of social
welfare as well with this in view the Supreme Court in Veena Seth v. State
12
of Bihar it was held that the reach of the rule of law is extended to the
poor and the down trodden the ignorant and illiterate who constitute the large

10 1975 AIR 1590

11 1969 (2) SCC 262
12 AIR 1983 SC 339

12 | P a g e
 bulk of humanity in India. In Sheela Barse v. State of Maharashtra13, the
Apex Court insisted on ‘fairness’ to women in police custody, especially
female prisoner.

 Pervasiveness of the concept of rule of law: The constitution

of India embodies the modern concept of rule of law with the establishment
of judicial system which should be able to work impartially and free from all
influences.

 Rule of law vis-à-vis Administrative law:

Administrative Law, broadly speaking, deals with the composition and
powers of the different organs of administration; the limits of their powers;
the methods and procedures followed by them in exercising their powers and
functions; the various modes by which their powers are controlled including
the legal remedies available to a person against them when his rights are
infringed by their operation.
Since, it is the individual who usually is affected in his dealing with the
mighty Administration, the most important function of Administrative Law
is to protect him from administrative excesses. It is to ensure that
government’s powers are exercised according to law, on proper legal
principles according to the rules of reason and justice and not on the mere
caprice or whim of the administrative officers. It is the central theme of
“Rule of Law” which implies that the Executive must act under the law and
not by its own decree or fiat.
Thus, both "Administrative Law" as well as "Rule of Law” aim at
controlling the exercise by the Administration of arbitrary powers. There is,
therefore, no contradiction between the two.

13

13 | P a g e
 The principal concern of Dicey's formulation of “Rule of Law” was "absence
of arbitrariness" and "equality before the law". It is to keep the Executive
and the operation of its powers within the limits of law. In that sense also
Administrative Law does not infringe but on the other hand, promotes “Rule
of Law”. For the Administrative Law is developed not to sanctify Executive
arbitrariness but to check it and protect the rights of the people against the
administrative excesses.

Wade and Forsyth state that the concept of “Rule of Law” might be called
the mainspring of Administrative Law and that the later is the area where the
principle of "Rule of Law" is to be seen in its most active operation.

In the ultimate analysis, it may be stated that both “Rule of Law” and
"Administrative Law" emphasize on the judicial control of administrative
action; both denounce the increase of arbitrary or discretionary powers of
Administration and advocate controlling it through procedures and other
means. “Administrative Law” thus does not infringe, but on the other hand,
promotes “Rule of Law”.

Conclusion:
Parliament is to keep in mind that the laws made by it are not against the rule of
law, or against the Constitution or public moral and humanity. It should also
from time to time keep an eye on the social changes and scientific advancement
so that the laws meet the demands of the time. The Executive should also
refrain from executing the laws which are against natural justice or in violation
of the rights; liberties and freedom of common man or is against the state or
constitution in particular. This is the doctrine of Self -Restraint, whereby, all the
organs try to fulfil the aspirations of the nation and uphold the rule of law,
without interfering into the domain of the other.

14 | P a g e
The Constitution must in all circumstances be considered supreme, and the laws
made by the legislature should pass the test of reasonableness and the objectives
of the Constitution. If any organ of the Government crosses its limits or
encroaches upon the powers of the other organs or exceeds its jurisdiction, the
act shall be considered as invalid and any abuse of law or any action shall be
termed as void ab initio; and the principle of checks and balance will come into
play to ensure the sustenance of the principle of Rule of Law.

15 | P a g e
 BIBLIOGRAPHY

 Jain, M.P. and Jain, S.N. Principles of Administrative Law, 5th Ed. 2007
Wadhwa and Co. Delhi
 Upadhya , JJR, Administrative Law, Central Law Agency, 7th Ed. (2006)
 Kesari, U.P.D, Lectures on Administrative Law, 15th Ed, 2005, Central Law
Agency, Allahabad
 Massey, I.P., Administrative Law, 5th Ed. 2003, Eastern Book Company,
Lucknow
 Chavi Agarwal, ‘Rule of law - A reflection upon we the people and
beyond’http://www.legalserviceindia.com/article/l459-Rule-of-law.html
 Kamalludin Khan ‘The Doctrine of Rule of Law’
http://twocircles.net/legal_circle/doctrine_rule_law_kamaluddin_khan.html

16 | P a g e