ADMINSTRATIVE LAW PROJECT PAPER

TOPIC: DEVELOPMENT OF RULE OF LAW

VIDIT HARSULKAR

ID NO: 2015-021

THIRD YEAR
 CONTENTS PAGE NUMBER

2
RULE OF LAW: DICEY ’S PRINCIPLES

5
DEVELOPMENT OF RULE OF LAW IN BRITAIN

THE GREAT CHARTER: M AGNA CARTA

DICEY’S CONCEPT OF RULE OF LAW IN E NGLAND

11
DEVELOPMENT OF RULE OF LAW IN INDIA

13
CRITICISM

16
CONCLUSION

19
BIBLIOGRAPHY

2
 RULE OF LAW: DICEY’S PRINCIPLES
"The King himself ought not to be subject to man, but subject to God and the law, because the law

makes him King" : Lord Chief Justice Coke quoting Bracton said in the case of Proclamations

(1610) 77 ER 13521

Rule of law is classical principle of administrative law. As a matter of fact this

principle was one of the principles that acted as impediment development of

Administrative Law principles. The irony further is that the rule of law is now

an important part of modern Administrative Law. Whereas the rule of law is

still the one of the very important principles regulating in common law

countries and common law derived countries modern laws has denied some of

the important parts of rule of law as proposed by Dicey at the start of 19th

Century.

Dicey defined rule of Law as the “absolute supremacy or predominance of

regular law as opposed to the influence of arbitrary power and excludes the

existence of prerogatives or even wide discretionary power on the part of

government”.2 Dicey asserted that wherever there is discretion, there is room

for arbitrariness which leads to legal insecurity of citizens.

Other aspect of Dicey‟s Rule of Law is equality before law or equal subjection

of ordinary law to all class of people by ordinary court. Whereas he asserted

1
KRISTY J HOOD, Conflicts of Law within The U.K, Oxford University Press, 2007;
2
The Law of Constitution, pg 198;

3
that the French Droit Administratif is a bad law where there are separate

tribunals for different matters, he further insisted that England hadn‟t any of

similar or same system existed.3

The later view of Dicey about the equality and dominance of law over

arbitrariness set standard of most civilized Constitutions of world. However,

the later views on droit administrative impaired the development of

Administrative law at very early stage where it required a support. The

Administrative Law was, for almost all the time, including Dicey‟s dominion,

was present, but, was never recognized as it should have been for a neat and

satisfactory development in common law countries.

The presence of Administrative Law and its inevitable nature is clear by the

recognition of some of the scholar‟s contemporary to Dicey. Maitland was one

of those scholars who have recognized the presence of Administrative Law in

England.4 It is also evident that the presence of Administrative Law was

substantial but was ignored by Dicey in his early era. The famous case of

Board of Education v. Rice5 and Local Government Board v. Arlidge6

affirmed the practice of Administrative Law in England. It is evident that it is

after this case that Dicey realized the presence of Administrative Law in a
3
M.P JAIN, S.N. JAIN, Principles of Administrative Law, Wadhwa Nagpur, 5th Ed.;
4
Maitland, Constitutional History of Britain, 1908, pg .501;
5
1911 AC 179;
6
1915 AC 129;

4
positive form. He however maintained that the presence of Droit Administratif

in England is no body‟s case and that rule of law must be preserved.

The rule of law, as propounded by Dicey has its own advantages and

disadvantages. Apart from setting the base for all common law country, it has

also provided the base for Administrative law principles are set. It is a method

by executive in general and government in particular is kept in control against

the misuse of wide power vested in them. It also eliminates unreasoned

discretion, bias and arbitrariness in governance that emanates from wide power

of executive. Moreover, the rule of law gives supremacy of Courts over all

other functionaries of State. This leads to the further curbing where

government can‟t be judge in his own cause.

Dicey‟s submission of rule of law has its disadvantages as well. Where the

Dicey‟s rule of law eliminated presence of arbitrary power in government, it

also eliminated the “wide discretionary” power from the government. The

protest of Dicey in presence of wide discretionary power in government would

lead to the failure of policies and implementation of law as required apart from

bad assessment before the formulation of policy. The biggest mistrust being

the efficacy of judiciary in managing affairs of the state in the Dicey‟s Rule of

Law.

5
 DEVELOPMENT OF RULE OF LAW IN BRITAIN

The Rule of law, in UK, was developed over the centuries as a brake on

arbitrary power. The modern concept of Rule of law owes much to the great

battles between the English kings and their subjects, the struggle for supremacy

between parliament and Stuart kings, and finally the war between the British

Empire and its American Colonies.7

THE GREAT CHARTER: MAGNA CARTA

On June 15, 1215 in the meadows of Runnymede, King John and his rebellious

barons agreed to the great charter known as Magna Carta. The great charter

was the first significant written instrument limiting the power of the king and

confining him to what the barons regarded as good governance. These

promises were a bargain between the king and the feudal lords dictated by the

force of arms.

Winston Churchill, in his History of English Speaking peoples, writes about

the glorious legend of the charter of an Englishman‟s liberties.

“The original Articles of the barons on which Magna Carta is bases exist

today in the British Museum. In the next hundred years it was reissued 38

7
HARRY W JONES, The Rule Of Law And Welfare State,58 Col LR 143 1958;

6
 times, at first with a few substantial alterations but retaining its original

Characteristics”.8

He concludes,

“Now for the first time the king himself is bound by the law. The root

principle was destined to survive across the generations and raise

paramount long after the feudal background of 1215 had faded in the past.

The charter became in the process of time an enduring witness that the

power of the crown was not absolute…. And when in subsequent ages the

state swollen with its own authority, has attempted to ride roughshod over

the rights and liberties of the subject it is to this doctrine that appeal has

again and again been made, and never, as yet, without success…..There is a

law which is above the king and which even he must not break. This

reaffirmation of a supreme law and its expression in a general charter is a

great work of Magna Carta; and this alone justifies the respect in which

men have held it”.9

DICEY’S CONCEPT OF RULE OF LAW IN ENGLAND

Dicey developed the stuffing of his theory by chirping from a foggy England

into a sunny France.10 In France, Dicey observed that the government officials

exercised wide discretionary powers and if there was any dispute between a

8
WINSTON CHURCHILL, A History Of English Speaking Peoples, 1957;
9
Ibid pg 97;
10
Mohd. Awal Hussain Mullah, The Rule of Law in Bangladesh, The University of Rajshni Press;

7
government official and private individual it was tried not by an ordinary court

but by a special administrative court.11 The law applicable in that case was not

ordinary law but a special law developed by the administrative court. From this

Dicey concluded that this system spelt the negation of the concept of rule of

law which is secret of Englishman‟s liberty. Therefore, dicey concluded that

there was no administrative law in England.12

In England, the doctrine of rule of law was applied in concrete cases. If a man

is wrongfully arrested by the police, he can file a suit for damages against them

as if the police were private individuals. In Wilkes v. wood it was held that an

action for damages for trespass was maintainable even if the action complained

of was taken in pursuance of the order of the minister.13 In the leading case of

Entick v. Carrington14 a publisher‟s house was ransacked by the king‟s

messengers sent by the secretary of state. In an action for trespass, 300 were

awarded to the publisher as damages. In the same matter, if a man‟s land is

compulsorily acquired under an illegal order, he can bring an action for

trespass against any person who tries to disturb his possession or attempts to

execute the said order.15

11
Ibid pg 13;
12
Supra Note (7);
13
KRISTY J HOOD, Conflicts of Law within The U.K, Oxford University Press, 2007;
14
1765, EWHC KB J98;
15
Ibid pg 209;

8
Dicey‟s formulation of the concept of Rule of law, which according to him

forms the basis of the English constitutional law, contains three principles

1. Absence of discretionary power in the hands of the governmental

officials. By this Dicey implies that justice must be done through known

principles. Discretion implies absence of rules, hence in every exercise

of discretion there is room for arbitrariness.

2. No person should be made to suffer in body or deprived of his

property except for a breach of law established in the ordinary legal

manner before the ordinary courts of land. In this sense, the rule of law

implies:

a) Absence of special privileges for a government official or any other

person

b) all the persons irrespective of status must be subjected to the ordinary

courts of the land.

c) Everyone should be governed by the law passed by the ordinary

legislative organs of the state.

3. The rights of the people must flow from the customs and traditions of

the people recognized by the courts in the administration of justice

9
Dicey‟s thesis has its own advantage and merits. The doctrine of rule of law

proved to be effective and powerful weapon in keeping administrative

authorities within their limits16. It served as a touchstone to test all

administrative actions. The broad principle of rule of law was accepted by

almost all legal systems as a constitutional safeguard.17

The first principle (Supremacy of law) recognizes a cardinal rule of democracy

that every government must be subject to law and not law subject to the

government. It rightly opposed arbitrary and unfettered discretion to the

governmental authorities, which has tendency to interfere with rights of

citizens.

The second principle (equality of law) is equally important in a system wedded

to democratic polity. It is based on the well known maxim “however high you

may be, law is above you” and “all are equal before the law”

The third principle puts emphasis on the role of judiciary in enforcing

individual rights and personal freedoms irrespective of their inclusion in a

written constitution.18 Dicey feared that mere declaration of such rights in any

statute would be futile if they could not be enforced.19 He was right when he

16
CECILL CARR, Conquering English Administrative Law (1941);
17
Yusuf Khan vs Manohar Joshi 1999 SCC (Cri) 577;
18
Ibid pg 598;
19
Ibid;

10
said that a statute can be amended and fundamental rights can be abrogated.20

We have witnessed such a situation during emergency in 1975 and realized that

in absence of strong and powerful judiciary, written constitution is

meaningless.

Dicey never spoke of equality under the rule of law as rigid. He was not blind

to inequalities glaring inequalities in the British legal system, not to the

contradictions involved in the supremacy of the parliament and the guarantees

of equality of all classes to the ordinary law administered by the courts. 21 His

dislike of the French system of administrative tribunals was the most

vulnerable in his enunciation. Dicey‟s antagonism was based on his

supposition that law meant fixed rules, and administration involved exercise of

discretion not controlled or guided by rules. His dislike of exercise of

discretionary authority, if literally understood, may appear illogical, for in

every decision, judicial or administrative, there is vast field of discretion.22

Administration of justice is not a mechanical process inexorably leading to a

set result from a given set of facts. It involves a large area of discretion. It

would be a perversion of true quality of justice to attribute to the adjudicator or

20
Supra Note (2);
21
Ibid;
22
Ibid;

11
judge of a mechanical approach.23 There is again no reason to suppose that an

administrative authority exercising power vested by law does not do justice

merely because have has discretion in formulating his line of action.

Dicey contrasted law with administrative action and discretion, and asserted

that Rule of law means absolute supremacy or predominance of regular law as

opposed to the influence of arbitrary power, the existence of arbitrariness, of

prerogative or of wide discretionary authority of the government.24 Even in

those days discretion as they exercised it now. But what Dicey probably

criticized was exercise of discretionary powers not supported by law. He was

not wrong in asserting that in Britain the court was not powerless to grant

relief, in respect of affairs and disputes in which the government and its

servants were concerned, but in France the administrative tribunal alone could

grant relief.

DEVELOPMENT OF RULE OF LAW IN INDIA

The rule of law in India has been a platform for all Administrative Action and

judicial review. Supreme Court has propounded the idea in many cases like

Bachan Singh v. State of Punjab25 and A.D.M Jabalpur26. A significant

23
GRIFFITH & STREET, Principles of Administrative Law, 2(1973) Pg 110;
24
KETTON , The Passing Of Parliament, 56-63 (1954);
25
AIR1982 SC 1325, para 9;
26
AIR 1976 SC 1207,para 220;

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derivative of Rule of Law in Administrative Law is Judicial Review. Judicial

review is very important part of Indian Administrative system where it is

considered as part of Basic Structure Doctrine. The process of judicial review

keeps the unreasonable and arbitrariness under control. The absence of

arbitrary power is first essential rule of law on which whole Constitutional

structure is based.27 In the case of Golaknath v. State of Punjab28 it was held

that rule of law under the constitution serves the needs of people without

undoubtedly infringing their rights. It recognisessocial reality and adjust to

social requirement as required time to time. In A.K. Kraipak v. Union of

India29 it was held that under our constitution the rule of law pervades over

entire field of administration and every organ of the state is regulated by the

rule of law accepted by our Constitution. In State of Punjab v. Khanchand30 it

was held that rule of law require that any power of officer is subject to power

of Court. In the case of Zahira Habibullah v. State of Gujrat31 it was held that

the rule of law win administration is closely related to human rights protection.

27
Jaisinghani v. union of india, AIR1967 SC 1643;
28
AIR 1967 SC 1836;
29
AIR 1970 SC 150;
30
AIR 1974 SC 543;
31
AIR 2004 SC 3114;

13
The binding nature of judgment of court is considered to be essential part of

rule of law.32

CRITICISM

Dicey‟s first principle (supremacy of regular law as opposed to the influence of

arbitrary power) has been seriously challenged, due to the proposition that the

rule of law excludes even wide discretionary authority by the government. The

modern government depends on many discretionary powers granted to the

executive by the large numbers of statutes annually passed by parliament or

other legislature. It seems that Dicey‟s theory may be interpreted to reject the

thousands of rules in our society made through the discretion of delegated

authorities. This first principle also cancel out the fact that, as a matter of

essential competence, many present day statutes allow police the power to

detain people for a short period of time due only to a reasonable suspicion. Ivor

Jennings has also indicated that arbitrary power may be increased in national

emergencies, such as war. This was reflected in the drastic powers given to the

English government by the Defense of the Realm Act in 1914.

Dicey‟s second meaning stresses the equal subjection of all persons to the

ordinary law.33 What a constitutional guarantee of equality before law may

32
Darayo vs State of UP, AIR 1967 Sc 1457;

14
achieve is to enable legislation to be invalidated which discriminates between

citizens on grounds that are considered irrelevant, unacceptable or offensive.

These views of Dicey long impeded the proper understanding of administrative

law, but today the need for such law in a democracy cannot be denied.

Administrative courts as they may exist protect the individual against unlawful

acts by public bodies.34

Dicey‟s second principle (equality before the ordinary law of the land) may

also be challenged in today‟s law. Although it is true that public officials who

commit crimes or torts are liable before the ordinary courts (except for

circumstances of non-justifiability, such as in The Church of Scientology v

Woodward, it is not true that those public officials and private citizens have the

same rights, and are thus equal. “A tax investigator, for example, has powers

which the taxpayer does not possess”.35 Furthermore, members of the police

force may be able to exercise considerably more lawful power over members

of society than the average citizen lawfully could.36

33
SAM KALEN, The transformation of Modern Administrative Law: Changing Administrations and
Environmental Guiodence Documents, Regents of University of California, 2008;
34
M.P. JAIN AND S.P. JAIN, Principles of Administrtive Law, Wadhwa Nagpur, 5th Ed., 2007;
35
ARD A EPSTEIN, Why the Modern Administrative Law is inconsistent with Rule of Law, NYU Journal of
Law and Liberty, 2008;
36
PILAR DOMINGO, Why Rule of Law Matters for Development, Overseas Development Institute, May, 2009;

15
The principle of equality before the law has raised significant problems for the

rule of law. It would be unjust if the law failed to account for social difference

and disadvantage, and simply presumed that everyone was equal and should be

treated equally. This led Hayek to attempt to adapt the rule of law in a manner

that Joseph Raz thought created “exaggerated expectations” for it . Hayek

stated: “The requirement that the rules of true law be general does not mean

that sometimes special rules may not apply to different classes of people if they

refer to properties that only some people possess... Such distinctions will not be

arbitrary; will not subject one group to the will of others, if they are equally

recognized as justified by those inside and those outside the group”. This

statement lead Raz to allege it was a guarantee of freedom and a “slippery

slope leading to the identification of the rule of law with the rule of good

law”.37

Dicey‟s third meaning of the rule of law expressed a strong preference for the

principles of common law declared by the judges as the basis of the citizens‟

rights and liberties. Dicey had in mind the fundamental political freedoms-

freedom of the person, freedom of speech, freedom of association. Today it is

difficult to share Dicey‟s faith in common law as the primary legal means of

37
PETER CANE, An Introduction to Administrative law, Clarendon Press, Oxford, 3rd Ed.

16
protecting the citizen‟s liberties against the state. First, fundamental liberties at

common law may be eroded by Parliament and thus acquire a residual

character. Secondly, the common law does not assure the citizen‟s economic

and social well-being. Third, while it remains essential that legal remedies are

effective, there is value in a declaration of the individual‟s basic rights and in

creating judicial procedures for protecting those rights. Diceyan theory may be

further criticized due to his perception of the “sovereignty of Parliament and

the supremacy of the rule of (ordinary) law”. Keith Mason has pointed out that

Australian parliaments may be supreme, but they are not sovereign. “The rule

of law affirms parliament‟s supremacy while at the same time denying it

sovereignty over the Constitution.” Criticisms of Diceyan theory have lead to

different formulations of the rule of law; but Dicey‟s formulation still reflects

some of the fundamental principles of the rule of law. In following his

formulation some commentators prefer the narrow term „government under

law‟ rather than „rule of law‟. However some commentators prefer to formulate

the rule of law, not as an actual rule of law in itself, but as a “statement of

constitutional and juridical principle, a juristic reserve, an idea of a profound

legality superior, and possibly anterior, to positive law. It is not easy to define

with precision, because in part it manifests itself more as an absence than a

presence, rather like those other great negatives, peace and freedom”.

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CONCLUSION :

The rule of law is central theme to all democratic and civilized society of this

world. The concept forms the basic framework of all legal system. It is one of

the tools by which the unfettered power of executive is kept under control

through supremacy of Courts. Though the rule derives from common law

system, particularly from Dicey and it met terrible opposition due to other

option of much efficient system of Droit Administratif, it still forms the

backbone of all civilized legal system of world. The rule of law and supremacy

therein, however, shouldn‟t be the only principle engraved in a legal system.

This further becomes true when the legal system has large domain of

implementation and further when there are expertise require in various domain

for the several issues.

In conclusion, a fine system and a well homogenized solution of rule of law

and Droit Administratif is the most optimum solution for the efficient dispute

resolution system. The two systems shouldn‟t be staged inferior to one another

and basic constitutional principles must be followed for the most optimum

solution.

18
 BIBLIOGRAPHY

BOOKS

 KRISTY J HOOD, Conflicts of Law within The U.K, Oxford University

Press, 2007;

 P.P. CRAIG, Administrative Law, Thompson Sweet and Maxwell, South

Asian Edition, 5th Ed., 2003;

 PETER CANE, An Introduction to Administrative law, Clarendon Press,

Oxford, 3rd Ed.

 S.P. SATHE, Administrative Law, Lexis Nexis Butterworths, 7th Ed.;

 M.P. JAIN AND S.P. JAIN, Principles of Administrtive Law, Wadhwa

Nagpur, 5th Ed., 2007;

JOURNALS

 PROFESSOR DICEY, Professor Dicey, Journal of Society of

Comparative Legislation, New Vol. Vol 17. No. ½, Cambridge

University Press, 1917;

 SAM KALEN, The transformation of Modern Administrative Law:

Changing Administrations and Environmental Guiodence Documents,

Regents of University of California, 2008;

19
 PROFESSOR DICEY, Conflict of Laws, The Modern law Review, Vol

25, No. 3, May, 1962;

 PROFESSOR DICEY, Speech of Professor Dicey at Liberal Unionist

Meeting, University of Bristol Library;

 RICHARD A EPSTEIN, Why the Modern Administrative Law is

inconsistent with Rule of Law, NYU Journal of Law and Liberty, 2008;

 PILAR DOMINGO, Why Rule of Law Matters for Development,

Overseas Development Institute, May, 2009;

20