ADMINSTRATIVE LAW PROJECT REPORT

On the topic

RULE OF LAW UNDER THE INDIAN LAW AND

RELEVANCE IN CONTEMPORARY TIMES

SUBMITTED TO SUBMITTED BY

Dr. Shallu Ma’m Jayant

UILS, B.A. LLB (Hons)

Panjab University 6th Semester

77/21

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 ACKNOWLEDGEMENT

I would like to earnestly acknowledge the sincere efforts and valuable time given
by my respected teacher Prof. Shallu in helping me understand the subject with in-
depth knowledge. Her valuable guidance and feedback have helped me in
completing this project. I am also deeply obliged to her for allowing me to work on
this project which has helped me thoroughly analyse the concept of writing case
comments. Any attempt at any level can’t be satisfactorily completed without the
support and guidance of my parents and friends. I would like to thank my parents
who helped me a lot in gathering different information, collecting data, and
guiding me from time to time in making this project, despite their busy schedules,
your encouragement kept me motivated, even during the most challenging phases.

JAYANT

B.A. LL.B. (Hons.) 3rd YEAR

(6th SEMESTER)

SECTION B

ROLL NO. 77/21

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 TABLE OF CONTENT

INTRODUCTION ..................................................................................................... 4
HISTORY AND DEVELOPMENT ......................................................................... 6
ESSENTIALS, IMPORTANCE & EXCEPTIONS .................................................. 7
TRADITIONAL RULE OF LAW ..........................................................................10
MODERN RULE OF LAW ....................................................................................11
RULE OF LAW UNDER THE INDIAN LAW .....................................................13
RELEVANCE OF RULE OF LAW IN CONTEMPORARY TIMES ...................18
CONCLUSION .......................................................................................................20
BIBLIOGRAPHY ...................................................................................................21

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 INTRODUCTION

1.1) The phrase has been derived from the French term, la principle de legalite,
which stands for the principle of legality. This principle holds that the government
is based on rules made by laws and not men. It is a principle of governance in which
all persons, institutions and entities, including the state itself, are accountable to laws
that are publicly promulgated, equally enforced and independently adjudicated.
1.2) The Oxford English Dictionary has defined rule of law this way: “The
authority and influence of law in society, especially when viewed as a constraint on
individual and institutional behavior; (hence) the principle whereby all members of
a society (including those in government) are considered equally subject to publicly
disclosed legal codes and processes.” Rule of law implies that every citizen is subject
to the law. It stands in contrast to the idea that the ruler is above the law, for example
by divine right. The Rule of Law is a political ideal that all citizens and institutions
within a country, state, or community are accountable to the same laws, including
lawmakers and leaders. It is a principle of governance in which all persons,
institutions and entities, including the state itself, are accountable to laws that are
publicly promulgated, equally enforced and independently adjudicated. The rule of
law implies that every person is subject to the law, including persons who are
lawmakers, law enforcement officials, and judges. The Rule of Law doctrine was
later developed by A.V. Dicey in his book, “Introduction to the Law of Constitution
(1885).” The Rule of Law according to Dicey means that no man is punishable or
can be lawfully made to suffer in body or goods except for distinct breach of law
and no man is above the law. The term Rule of Law thus, means the paramountcy of
Law over Government.

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1.3) Among modern legal theorists, one finds that at least two principal conceptions
of the rule of law can be identified: a formalist or "thin" definition, and a substantive
or "thick" definition. Formalist definitions of the rule of law do not make a judgment
about the "justness" of law 5 itself, but define specific procedural attributes that a
legal framework must have in order to be in compliance with the rule of law.
Substantive conceptions of the rule of law go beyond this and include certain
substantive rights that are said to be based on, or derived from, the rule of law. The
"formal" interpretation is more widespread than the "substantive" interpretation.
Most legal theorists believe that the rule of law has purely formal characteristics. For
instance, such theorists claim that law requires generality (general rules that apply
to classes of persons and behaviors as opposed to individuals), publicity (no secret
laws), prospective application (little or no retroactive laws), consistency (no
contradictory laws), equality (applied equally throughout all society), and certainty
(certainty of application for a given situation), but formalists contend that there are
no requirements with regard to the content of the law. Others, including a few legal
theorists, believe that the rule of law necessarily entails protection of individual
rights. Within legal theory, these two approaches to the rule of law are seen as the
two basic alternatives, respectively labelled the formal and substantive approaches.
Still, there are other views as well.
1.4) Statistics: In 2023, India’s ranking in the rule of law index stood at 79 out of
140 countries, with a score of 0.49. This was a significance increase in India’s
ranking since 2015. The index is calculated based on eight factors varying from
constraints on government powers to criminal justice. The top ranked country in
2023 Rule of Law index is Denmark

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 HISTORY AND DEVELOPMENT

2.1) The rule of law has a long history. Around 350 BC, Greek philosophers such as
Plato and Aristotle addressed the notion of the rule of law. Sir Edward Coke, the
Chief Justice during James I's reign, invented the notion of the rule of law. The rule
of law in England originated in approximately 1215 when King John of England
signed the Magna Carta. The signing of the Magna Carta represented the Monarchy
of England’s permission to be subject to the law and for the law to be supreme. Prof.
Albert Venn Dicey evaluated the concept of the Rule of Law, and as per his theory
rule of law is based on various principles. The Rule of Law originated in England,
and India adopted it. The rule of law has been welcomed by the framers of our
constitution. The preamble assures to provide equality of status and of opportunity
and to promote among them all. It provides the most important fundamental rights
to the citizens

2.2) The British people strongly believed in the Divine Theory of State. The king
was given the power to govern the people by the Divine Authority (God). This theory
propagates that, “King can do no wrong, king is above law”. Rights of citizens were
not acknowledged or protected, everything worked upon the interests of the king.
With advancement of time and political knowledge this was challenged, Sir Edward
Coke (chief justice of England then) was the first person to criticise the maxims of
Divine Concept. He strongly believed that the King should also be under the Rule of
Law.

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 2.3) The most critical case in Indian Judicial History with respect to the evolution
of the Rule of Law in India was the Kesavananda Bharti v State of Kerela 1 case,
where it was added to the basic structure of the constitution, to be upheld at all times.
This marked a permanent establishment of Dicey’s theory of the Rule of law in the
Indian legal system

ESSENTIALS, IMPORTANCE & EXCEPTIONS

3.1) ESSENTIALS

● Legal Equality: The rule of law requires that all individuals, regardless of their
status, are equal before the law. It means that everyone should be treated fairly and
impartially by the legal system.

● Transparency: Transparency is a crucial aspect of the rule of law. It means that

laws, regulations, and legal processes should be clear and publicly available. This
ensures that individuals understand their rights and can hold the legal system
accountable.

● Accountability: The rule of law holds individuals and institutions accountable for
their actions. This includes government officials and entities. It means that those
who violate the law should be held responsible.

1 (1973) 4 SCC 225; AIR 1973 SC 1461

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● Fair and Impartial Judiciary: A fair and impartial judiciary is essential for the
rule of law. It ensures that legal disputes are resolved in a just manner, without any
bias or influence. Judges should be independent. They should make decisions based
on the law and evidence presented before them.

● Access to Justice: The rule of law requires that everyone has access to justice.
This means that individuals should have the right to seek legal remedies. They
should have their cases heard in a timely manner and receive a fair judicial process.

● Respect for Human Rights: The rule of law goes hand in hand with the protection
of human rights. It requires that legal practices respect and uphold fundamental
human rights. No one should be subjected to arbitrary arrests, torture, or other human
rights abuses.

● Consistency and Predictability: The rule of law demands consistency and

predictability in the application of laws. Laws should be applied uniformly to all
individuals and situations. It should not have favoritism or arbitrary decision-
making. This ensures that people can rely on the law and make informed choices.

● Separation of Powers: The rule of law is closely connected to the principle of

separation of powers. It means that the powers of government are divided among
different branches. This separation prevents the concentration of power. It provides
checks and balances within the system.

3.2) IMPORTANCE

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● The rule of law is founded on traits such as legal clarity and predictability, which
ensures the establishment of a welfare state and political stability.

● The rule of law is valuable because it prevents arbitrary decisions, ensures fairness,
and prevents tyranny and oppression. It restricts the power of individuals in positions
of authority. The rule of law plays a crucial role in protecting civil and political rights
and liberties, as well as the equality and dignity of all people.

● It helps discourage corruption, achieve social and economic development targets,

and strengthen peace and security at the international and national levels.

3.3) EXCEPTIONS

The rule of law demands both rulers and ruled to be accountable to the law, which
is of indisputable significance in modern democratic countries. It may be claimed
that the rule of law is not an accurate representation of any condition of events but
rather a complicated notion that becomes even more complex when put into action.

● Ambassadors and diplomats cannot be sued or prosecuted in the nations where

they serve since they are above the law of the host country; instead, they can be
deported.

● There are certain people who are immune to the country’s laws. The President
and Vice President, Governors, members of the Parliament (National Assembly),
and other high-ranking government officials are among those who fall within this
category.

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● The expanding domain of judges and attorneys, as well as their encroachment on
areas formerly reserved for politicians and voters, leads to the loss of much that is
politically and democratically valued.

● When there are catastrophic situations that force the government to proclaim a
state of emergency or when there is war, the government normally exercises some
discretionary powers

TRADITIONAL RULE OF LAW

Dicey in his work stated that the Rule of Law is fundamental to the English legal
system and gives the following three meanings to the doctrine:

4.1) Supremacy of Law Government should be subject to law, law should not be
subject to government. Rule of law according to Dicey means the absolute
supremacy or predominance of regular law as opposed to the influence of arbitrary
power or wide discretionary power. It means the exclusion of the existence of
arbitrariness on the part of the government. This in essence means that no man can
be arrested, punished or be lawfully made to suffer in body or in goods except by
the due process of law and for breach of a law established in the ordinary legal
manner before the ordinary courts of the land.

4.2) Equality before Law While explaining this aspect of the doctrine, Dicey stated
that there must be equality before the law or equal subjection of all classes to the
ordinary law of the land administered by the ordinary law courts. Dicey believed

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that the exemption of civil servants from the jurisdiction of the ordinary courts of
law and providing them with special tribunals was the negation of equality. He stated
that any encroachments on the jurisdiction of the courts and any restriction on the
subject’s unimpeded access to them are bound to jeopardise his rights. The French
legal system of Droitt Administratiff is criticized by AV Dicey in which there is
separate tribunal for deciding cases between officials and the citizens. Exemption of
civil servants from jurisdiction of courts of law and providing them special tribunals
was negation of equality.

4.3) Pre-dominance of Legal Spirit General principles of constitution are result of

judicial decisions. The constitution is not only the source but also the consequences
of rights of individual. Rule of law postulates judicial supremacy because if the
constitution is written amendments or abrogations are certain. Dicey observed that
in many countries rights such as the right to personal liberty, freedom from arrest,
freedom to hold public meetings, etc. are guaranteed by a written Constitution; in
England, it is not so. In England, those rights are the result of judicial decisions in
concrete cases that have actually arisen between the parties. Thus he emphasized the
role of the courts of law as guarantors of liberty and suggested that the rights would
be secured more adequately if they were enforceable in the courts of law than by
mere declaration of those rights in a document.

MODERN RULE OF LAW

5.1) The modern Rule of Law is fairly wide. It is based upon the positive rule of the
state: rule of law implies that the functioning of government in a free society should

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be so exercised as to create conditions in which the dignity of man as an individual
politically, socially, economically, educationally, culturally is upheld.

Davis lays down 7 types of Modern law:

1. Law and order

2. Principle and natural law

3. Fixed rules and regulations

4. Eliminate the idea discretion

5. Due and fair process of law

6. Preferences for judges and court of law to execute authority and administrative
tribunals

7. Judicial review of administrative action.

In its modern sense, rule means no more than organized public power. It refers to
rule of organization. Ideologically, rule of law sets ideal for any government to
achieve. It is based upon declaration which sets up three ideal rule of law: make rule
which uphold dignity of individual; legislative to check abuse of power of executive
and courts to access ones rights; independent judiciary i.e. utmost importance to
legal profession for free and democratic society.

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 DISCUSSION BY INTERNATIONAL COMMISSION OF JURISTS (1959-
NEW DELHI) Major Findings:

1. Rule of Law – to safeguard and advance the political and civil rights of the
individual in a free society.

2. To establish social, economic, educational and cultural conditions under which

the individual may realise his legitimate aspirations and dignity.

3. It should not interfere with the religious belief and should not restrict freedom
of speech or freedom of person.

4. No discrimination on minority groups.

5. Adequate safe guards against abuse of power by the executives.

6. There should be an independent judiciary with security of tenure free from

legislative and executive interference.

7. The rule of law necessitates an independent legal profession.

RULE OF LAW UNDER THE INDIAN LAW

For the democratic government rule of law is basic requirement. Rule of law runs
like a golden tread through every provision of constitution and in disputely constitute
one if its basic feature. Rule of law pervades over the entire field of administration.

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6.1) SUPREMACY OF THE CONSTITUTION

● In India, although it is said that the concept of Rule of Law has been adopted from
England; the traces of same can be witnessed back to Upanishads. This principle is
prevalent in India as the framers of our Constitution has thoroughly enshrined it over
various articles however, never formally provided any written law about it. It is a
derivative context rather than textual references to allow its usage time to time. The
Constitution of India intends India to be governed by the rule of law stating that there
shall be no supreme law other than the Constitution itself and the other governmental
bodies would derive its power from the Constitution.

● The Preamble of the Constitution itself prescribes the ideas of Justice, Liberty and
Equality. These concepts are further enunciated in Part III of the Constitution and
are made enforceable. All three branches of the government are subordinate i.e. the
Judiciary, Legislature and the Executive are not only subordinate to the Constitution
but are bound to act according to the provisions of the Constitution. The doctrine of
judicial review is embodied in the Constitution and the subjects can approach the
High Court and the Supreme Court for the enforcement of fundamental rights. If the
Executive or the government abuses the power vested in it or if the action is mala
fide, the same can be quashed by the ordinary courts of law.

● The Supreme Court of India in Chief Settlement Commissioner Punjab v. Om

Prakash2 observed that in our constitutional system, the central and most
characteristic feature is the concept of the rule of law which means, in the present
context, the authority of the law courts to test all administrative action by the
standard of legality. The Court added that the doctrine of rule of law rejects the

2 1969 AIR 33, 1968 SCR (3) 655, AIR 1969 SUPREME COURT 33

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conception of the dual state in which government action is paced in a privileged
position of immunity from control by law.

6.2) ARTICLES OF CONSTITUTION

● Provides for judicial review in which subject can approach High Court and
Supreme Court under Article 226, 32 respectively for the enforcement of their
rights. If the executive or the government abuses the power conferred on it, the same
can be quashed. In the context of Indian democracy, in Article 13(1) of the Indian
Constitution it is said that any law made by legislature is subjected to be in
conformity with the Constitution otherwise shall be declared invalid. Article 14
again provides the provision which says about equality before law and equal
protection of law. No man is above law, no one can be made subject to punishment
until there is a breach of law or any act is done contrary to any law provided by the
laws accepted and recognized in accordance with the Constitution. It further
provides the discrimination clause which explicitly provides that no discrimination
shall be made on the basis of sex, religion, race, place of birth and hence ensure the
separation of power between the three wings of the government, that being, the
executive, the legislature which shall have no influence on the judiciary which is the
third wing of the government. Article 21 further provides the check and balance
concept which checks the arbitrary executive action which provides no one shall be
deprived of one’s life and liberty except in accordance to the procedure established
by law.

LEGAL CONCEPT

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● CASE: ADM Jabalpur v. Shivkanth Shukla3 (haebus corpus case). It relates to
individuals rights not to be detained unlawfully. The question before the court was
‘whether there was any rule of law in India apart from Article21’. This was in the
context of suspension of enforcement of Articles14, 21 and 22 during the
proclamation of an emergency. In this case, Indira Gandhi’s win in Lok Sabha was
challenged by High Court. Justice Khanna accused her in fraudulent activities to win
the elections barring her from elections for 6 years. She took the case to the SC where
she was only granted a conditional stay. As a result she imposed emergency on 26th
june, 1975. Political opponents Atal Bihari Vajpayee and Morarji Desai were
arrested under MISA allowing no trial. They challenged detention in HC The state
argued that in time of emergency executive gets the power to take over the
implementation of laws for the interest of state so the right of people to reach out to
courts is taken in article 359(1). The golden thread of rule of law lies in article 21 of
the Indian Constitution.

● In another landmark and historic judgment of Bacchan Singh V State of

Punjab4, 1982 , Justice P.N Bhagwati, emphasized that rule of law excludes,
arbitrariness and unreasonableness, further suggested, to make laws it is important
to have, democratic form of government, but the power of the legislature is not to be
unfettered, and there should always be independent judiciary to protect citizens from
excessive powers of legislature and executive.

● Again, in Chief Settlement Commr; Punjab v. Om Prakash5 , it was observed

by the Supreme Court that, “In our constitutional system, the central and most

3 AIR 1967 SC 1207

4 1982)3SCC24, [1983]1SCR145A
5 1969 AIR 33, 1968 SCR (3) 655, AIR 1969 SUPREME COURT 33

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characteristic feature is the concept of rule of law which means, in the present
context, the authority of law courts to test all administrative action by the standard
of legality. The administrative or executive action that does not meet the standard
will be set aside if the aggrieved person brings the matter into notice.”

- BASIC STRUCTURE

● The popularly known case of Kesavananda Bharati v. State of Kerala6 , the

Supreme Court held that the Rule of Law is an essential part of the basic structure
of the constitution and as such cannot be amended by any Act of Parliament, thereby
showing how the law is superior to all other authority of men. Here, in this case,
some of the judges constituting majority were of the opinion that rule of law was an
aspect of the doctrine of basic structure of the constitution, which even the plenary
power Of parliament cannot reach to amend.

● There is good deal of discussion about the rule of law in Indira Nehru Gandhi
v/s Raj Narayan7 . In this case Supreme Court invalidates clause (4) of Article 329A
inserted in the constitutional 39th amendment act, 1975 to immunize the election
dispute to the office of prime minister from judicial review in any way. In the
opinions of j Khanna and j chandrachud- article 329a was in violation of basic
structure of the concepts. Though other justices did not go to this extent but certainly
expressed the view that Article 329A (4) offend the concept of the rule of law. These
above cases provide distillation of Indian judicial thought on conception of rule of
law.

6 5 AIR 1973 SC 1461

7 AIR 1975 SUPREME COURT 2299, 1976 2 SCR 347

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- PUBLIC WELFARE AND SOCIAL SECURITY

Rule of law extends to the protection of public welfare and social security as well.

● In case of veena sethi v/s state of bihar 8, rule of law is extended to poor, illiterate
and ignorant people who constitute large bulk of humanity in India. It does not
merely exist for those who can fight but also by anyone who can preserve the social
welfare.

● In the case of PUDR v/s union of india9 , petition filed by public spirited
organization on behalf of persons belonging to socially and economically weaker
sections employed in the construction work of various projects connected with Asian
games complaining of violation of labour laws was held miserable. Rule of law is
intended to promote public interest which demands that legal rights of poor ignorant
people should not go unnoticed, and repugnance are very unruly horses, just like
public policy.

RELEVANCE OF RULE OF LAW IN CONTEMPORARY

TIMES

Relevance of rule of law is demonstrated by application of the following principles

in practice:

● Separation of powers between legislative, judiciary and executive.

8 AIR 1983 SC339

9 1982 AIR 1473

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● Law made by representatives of people in an open and transparent way.

● Law and administration is subject to open and free criticism by people, who may
assemble without fear.

● Law is applied equally and fairly, so that no one is above the law.

● Law is capable of being known to everyone, so that everyone can comply.

● No one is subject to any action by any government agency other than in accordance
with the law and the model litigant rules, no one is subject to any torture

● Judicial system is independent, impartial, open and transparent and provides a fair
and prompt trial.

● All people are assumed to be innocent until proven otherwise and are entitled to
remain silent and are not required to incriminate themselves.

● No one can be prosecuted for any law not known to law when committed.

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 CONCLUSION

The Rule of law is one of the most widely used term in political discourse same as
democracy, it is god of constitutionality “omnipresent” some find it relevant and
some scholars also find it of no use, because it is so widely used with such different
meaning but it imbibes golden values and principles, basic tenant of Dicey’s rule
of law is power is to be derived from law and is to be exercised strictly in
accordance of law, the term rule of law has no particular articulate connotation,
even though Indian Judiciary, gives very high importance to this and uses very
repeatedly, the broad emphasis or sense of rule of law is absence of any centre of
unchecked, arbitrary power, even if frequent government intervention in ordinary
pursuit of citizens, is on increase may give rise to arbitrariness of government,
which will be contrary to rule of law, informed citizenry is strongest foundation
laying under and with pillars of democracy, they are the subjects and they are the
authority as well, in tussle between supremacy of state and limitation of state, via
constitutional principles, it’s only citizens “we the people” who will have to ensure
government is upholding pre-set golden benchmarks and endeavour to strengthen,
spirit of rule of law, Indian Constitution framers have addressed these golden
principles very sincerely and cautiously, hence have given these values upper
hand, but again ultimate is “source of constitution”. The thing, essentially to be
remembered is, words of Dr. Baba Sahib Ambedkar, which he spoke in final
speech in the Constituent Assembly –“however a good constitution may be, it is
sure to turn out bad because those who are called to work is it, happen to be bad
lot, however bad a constitution may be it may turn out to be good, if those who are
called to work It happened to be good a lot”

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 BIBLIOGRAPHY

Books and bare provisions

• BARE ACT- The Constitution of India

• 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
Massey, I.P., Administrative Law, 5th Ed. 2003, Eastern Book Company Agency,
Allahabad
• Jain, M.P. and Jain, S.N.Principles of Administrative Law, 5th Ed. 2007

Websites

• Elizabeth Andersen and Ted Piccone https://worldjusticeproject.org/our-

work/publications/journal-articles/meaning-measuring-and-mattering-
rule-law last visited 14-04-2024
• Research Journal https://www.ijcrt.org/papers/IJCRT2010155.pdf last
visited 14-04-2024

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