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Civil Procedure Code

The document discusses the principles of rule of law under administrative law in India. It covers the origins of rule of law, Dicey's principles of rule of law, and rule of law under the Indian constitution. It then summarizes the 1976 ADM Jabalpur v Shivkant Shukla case where the majority held that writ petitions could not be filed during an emergency, while Justice Khanna dissented stating that legal remedies through statutes could still be pursued. The present scenario and UN perspective on rule of law are also covered.

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Priya Garg
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71 views21 pages

Civil Procedure Code

The document discusses the principles of rule of law under administrative law in India. It covers the origins of rule of law, Dicey's principles of rule of law, and rule of law under the Indian constitution. It then summarizes the 1976 ADM Jabalpur v Shivkant Shukla case where the majority held that writ petitions could not be filed during an emergency, while Justice Khanna dissented stating that legal remedies through statutes could still be pursued. The present scenario and UN perspective on rule of law are also covered.

Uploaded by

Priya Garg
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PPT, PDF, TXT or read online on Scribd
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Principles of ADMINISTRATIVE Law

Rule of Law

The formal origin of the word is attributed to Sir. Edward Coke,


and is derived from French phase ‘la principe de legalite’ which
means the principle of legality.

The firm basis for the Rule of Law theory was expounded by A. V.
Dicey and his theory on the rule of law remains the most popular.
Dicey’s doctrine of Rule of law
– The absence of arbitrary power and the
absolute supremacy or predominance of
regular law

– Equality before the law

– Individual liberties/ the constitution is judge


made
Rule of Law under the Indian Constitution
 Ancient Indian system—Dharma
 Preamble
 Article 13
 Article 14
– Equality before the law
– Equal protection of the laws
 Article 19
 Article 20
ADM Jabalpur v Shivkant Shukla
{AIR 1976 SC 1207: (1976) 2 SCC 521}.
[FIVE JUDGES BENCH]

• On June 26 1975, the President of India under clause (1) of


Article 352 of the Indian Constitution declared a state of
emergency citing reasons of internal disturbances.

• On June 27 1975, and in exercise of powers conferred by


clause (1) of Article 359 of the Indian constitution an order
was issued by the President within which the right of any
person to move the court to enforce Article 14, Article 21 and
Article 22 of the Constitution will remain suspended for the
period of Emergency.
Contd.
• In the above backdrop the Maintenance of Internal Security
Act, (MISA) was enacted and under which prominent political
opponents to the Government of the day was kept under
detention without any reasons communicated.
• The preventative detention led to filing of several writ
petitions all over the country. A few High Courts allowed the
writ of Habeas Corpus and ruled in favor of the petitioners
• The main issue before the Supreme Court was whether, in
execution of the Presidential Orders when a person was
detained, if the High Court can entertain a writ of Habeas
Corpus filed by a person challenging the ground for his
detention?
• By a Majority decision of the constitutional bench
consisting of five Judges, the Supreme Court of
India on 28 April, 1976, held that “In view of the
Presidential order dated 27 June 1975 no person has
any locus standi to move any writ petition under
Article 226 before a High Court for habeas corpus or
any other writ or order or direction to challenge the
legality of an order of detention on the ground that
the order is not under or in compliance with the Act
or is illegal or is vitiated by mala-fides factual or legal
or is based on extraneous consideration.
• In this case the four judges Chief Justice A.N. Ray,
along with Justices M.H. Beg, Y.V. Chandrachud and
P.N. Bhagwati have arrived at the same conclusion,
which is that the writ of habeas corpus is not
maintainable in case of proclamation of emergency
under article 359.
• The four judges said that the court has no authority
or powers to challenge if the detention made under
sec 16A of MISA.
• under the act it clearly states that the grounds
of the detention need not be disclosed hence
the court cannot question the state or the
executive body to validate the detention.
• Hence the party does not have locus standi to
movie to any court for maintaining suit on
fundamental rights.
• Justice Khanna had dissenting
opinion on the point that during
proclamation of emergency or
presidential order under article
359(1) even if the person cannot
go to the court of law for the
enforcement of fundamental right
under the constitutional remedy
that does not restrain him from
exercising his legal remedy through
statute.
• Justice Khanna exclusively relied on the
judgment delivered in the case of Makkhan
Singh v. State of Punjab in which he specified:
“If in challenging the validity of his detention
order, the detenu is pleading any right outside
the rights specified in the order, his right to
move any court in that behalf is not
suspended, because it is outside Article 359(1)
and consequently outside the Presidential
order itself.
• A Presidential order under Art 359(1) can suspend
during the period of emergency only the right to
move any court for enforcement of the
fundamental rights mentioned in the order. Rights
created by statutes being not fundamental rights
can be enforced during the period of emergency
despite the Presidential order. Any redress sought
from a court of law on the score of breach of
statutory provisions would be outside the purview
of Art 359(1) and the Presidential order made
thereunder.
• Art 226 under which the High Courts can issue writs of
habeas corpus is an integral part of the Constitution. No
power has been conferred upon any authority in the
Constitution for suspending the power of the High Court to
issue writs in the nature of habeas corpus during the period
of emergency. Such a result cannot be brought about by
putting some particular construction on the Presidential
order in question.

• There is no antithesis between the power of the State to


detain a person without trial under a law of preventive
detention and the power of the court to examine the validity
of such detention. In exercising such power the courts only
ensure that the detaining authority acts in accordance with
the law providing for preventive detention.
Justice Khanna
• “Even in absence of Article 21 in the
Constitution, the state has got no power to
deprive a person of his life and liberty without
the authority of law. Without such sanctity of
life and liberty, the distinction between a
lawless society and one governed by laws
would cease to have any meaning…Rule of
Law is now the accepted norm of all civilized
societies”
Who do you think is right?

The majority..??
or
Justice khanna ..??
Present Scenario
• Most part of the opinions seen in the Shivkant
Shukla case have been totally negated by 44th
Amendment of the Constitution and it is no
longer a law.
• Presently the implementation of Article 20
and 21 can’t be suspended in any
circumstance
United Nations & Rule of LAW
• The Secretary-General has described the
rule of law as -

A PRINCIPLE OF GOVERNANCE

• in which all persons, institutions and


entities, public and private, including the
State itself, are accountable to laws.
WHAT KIND OF LAWS ?

• that are publicly promulgated,


• equally enforced
• independently adjudicated, and
• which are consistent with
international human rights norms
and standards.
IN A NUTSHELL
• WHAT DO YOU MEAN BY RULE OF LAW?
• WHAT ARE THE PRINCIPLES GIVEN BY
DICEY?
• WHAT WAS THE MISTAKE IN HABEAS
CORPUS CASE?
• WHAT DOES UNITED NATIONS SAY
ABOUT RULE OF LAW?

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