Administrative Law

1st Assignment

Rule of Law and its Application in the Indian Polity

Submitted by:
Tanmay Gupta
16010126334
Division D
BBA.LLB 3rd Year
 Rule of Law and its Application in the Indian Polity

“Rule of Law”
The lead definition of Rule of Law given by Black's is this: "A substantive legal
principle and the supremacy of regular as opposed to arbitrary power".1 The
concept of “Rule of Law" is the basis of a democratic state. It means that the state
is governed by the principles of law and not of men. In a wider sense Rule of Law
means that law is the highest authority and is above all. In a narrower sense it
means that the administrative actions may only be exercised in accordance with the
procedure established by law. The concept of Rule of Law is intended to be a
safeguard against arbitrary actions of the state.

The concept of Rule of Law can be traced back from the early 13th century. John,
King of England was made to sign a document called ‘Magna Carta’ (Great
Charter) which is considered as the first written document relating to Fundamental
Rights of citizens. It subjected the executive (King) to the established laws and
customs of the England. In chapter 39 it states that “No freeman shall be arrested,
or detained in prison, or deprived of his freehold, or outlawed, or banished, or in
any way molested; and we [the barons] will not set forth against him, nor send
against him, unless by the lawful judgment of his peers and by the law of the
land.”2This clause recognized all the individuals as equals under the law. It
recognized the right to lawful trial of an individual rather than the judgments and
convictions based on the executive absolute authority. Thus ‘Magna Carta’
compelled the English King to act in accordance of rule of law.

Later A.V. Dicey developed the concept of Rule of Law in his classic book,
“Introduction to the Study of the Law of the Constitution (1885)” and coined the
term “Rule of Law”.

DICEY’S CONCEPT Of RULE OF LAW

“Rule of Law”, explained by Dicey in 1885, means “the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power and
excludes the existence of arbitrariness, of prerogative or even wide discretionary
authority on the part of the Government.”3
1
BLACK'S LAW DICTIONARY 1448 (9th ed.).
2
MAGNA CARTA 39(1215); TOM BINGHAM, THE RULE OF LAW (2010).
3
A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION
(1915).
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 Rule of Law and its Application in the Indian Polity

Dicey developed his thesis of Rule of Law and gave following three attributes to it:
A. Supremacy of law
Dicey argued that the Englishmen were ruled by the law and law alone. “A man
may be punished for a breach of law, but can be punished for nothing else”.4 He
argued that, ' 'Wherever there is discretion, there is room for arbitrariness which
led to insecurity and infringement of legal freedom enjoyed by the citizens."5 .
Dicey described this principle as 'the central and most characteristic feature' of
Common Law. He denied that in Britain the government was based on exercise of
wide, arbitrary or discretionary powers.
In other words supremacy of law means that no person may be punished contrary
to the procedure established by law and that procedure should be fair, just and
reasonable.6 The law is supreme and even the executive is under the law. It also
means that excessive discretionary powers leads to arbitrariness which leads to
insecurity to the supremacy of law and thus the same should be abstained.
B. Equality before law
Another significance which Dicey attributed to the concept of Rule of Law was
"equality before the law and equal subjection of all classes to the ordinary law of
the land administered by the ordinary law courts."7
This means that every citizen must be subject to one and the same body of law
which is the ordinary law of the land administered by the ordinary law courts.
Explaining the second principle of the rule of law, Dicey states that in Britain, all
persons were subject to one and the same law, and there were no separate
administrative tribunals or special courts for deciding the disputes between the
state and the citizens.
According to him the ordinary Courts are supreme throughout the state. He
criticized the principle of “Droit Administratif” as in the French legal system
which provided for separate tribunals for settlement of cases between the official
of states and citizens. He saw this as a negation of the concept of the rule of law as
it took away the jurisdiction of the common courts and subjected government
officials to a law different from that which the general public was subjected to.

4
Id.
5
MP JAIN & SN JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 13 (6th ed.)
6
Maneka Gandhi v. Union of India, 1978 AIR 597.
7
A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION
(1915).
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 Rule of Law and its Application in the Indian Polity

“Droit Administratif”- In the French Legal system all claims and disputes in which the
public authorities or officials are parties fall outside the scope of the jurisdiction of
ordinary courts and they must be dealt with and decided by the special tribunals.
According to Lord Denning, the system has been designed to protect public
officials from liability of their acts. 8

C. Predominance of legal spirit

According to Dicey, it is not simply enough to include the above two doctrines of
Rule of Law in the constitution or in the other laws of a country, there must be an
enforcing authority for these principles. He asserted that this enforcement authority
can be found in the courts because the general principles of British Constitution
come from conventions and customs of the people which are recognized, defined
and enforced by the common courts in the administration of justice in concrete
cases from time to time.9 He states of such rights and liberties of the individuals
which are the result of the various judicial adjudications rather than from being
enunciated in the constitution. So these rights of the individual are defined and
enforced by the ordinary courts of law. Therefore, the constitution is the outcome
of the rights of the individuals recognized by judiciary and it is not the source or
originator of these rights.10
So as per Dicey it is the courts which ensures and enforce the liberty and rights of
the people while a written constitution merely declares such rights in a constitution
wherein such rights could easily be curtailed, ignored or trampled upon.11 The
courts are the enforcers of the rule of law and they must be independent of all
external influences. Thus the freedom of the judiciary becomes an important pillar
to the rule of law.

8
Ministry of housing v. Sharp, (1970) 2 QB 223.
9
MP JAIN & SN JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 14 (6th ed.)
10
Although, In the Indian system, the constitution is the source and works as the protector of
these rights.
11
TOM BINGHAM, THE RULE OF LAW (2010).
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 Rule of Law and its Application in the Indian Polity

ANALYSIS OF DICEY’S CONCEPT OF RULE OF LAW

This thesis of Dicey has had a strong impact on the development of Administrative
Law in England. But his concept of rule of law has been subjected to the criticism.
As in his analysis, he ignored many of the privileges and immunities enjoyed by
the crown under the umbrella of the constitutional maxim that “king can do no
wrong”, and also ignored many statutes which conferred wide discretionary powers
to the executive which could not be scrutinized by the judiciary.

He also ignored the growth of some of the administrative tribunals which had come
into existence by 1885 in Britain. Later, Dicey himself became aware of the
emergence of Administrative Law in Britain. He argued that the state officials
should not be given wide discretionary powers. He stated that "wherever there is
discretion there is room for arbitrariness."12
Dicey, here, failed to distinguish arbitrary powers from discretionary powers.
According to him, arbitrary powers are inconsistent with the principles of rule of
law as well as discretionary powers. But when discretionary powers are exercised
properly there will be no room for arbitrariness.
Dicey's criticism of Droit Administratif is said to be based on his mistaken
conclusion. He misunderstood and miscomprehended its real nature. He believes
that this system of French administration is developed to protect the state officials
from the liabilities of their acts. But later studies revealed that this system was
better curbing the menace of maladministration than the common law system.
One of the major drawbacks of this theory lies in the fact that discretionary powers
are regarded as being arbitrary and in a modern welfare state, administrative
discretion is inescapable.

12
MP JAIN & SN JAIN, PRINCIPLES OF ADMINISTRATIVE LAW (6th ed.)
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 Rule of Law and its Application in the Indian Polity

MODERN CONCEPT OF RULE OF LAW

In 1959, International Commission of Jurists further developed the concept of rule

of law. They made a declaration as to the fundamental principles of Rule of Law in
New Delhi. This later became known as the Declaration of Delhi.13 The jurists
analyzed the meaning of “Rule of Law”.

They accepted the idea of rule of law as the modern form of “law of nature”. They
regarded it as a dynamic concept which is required to ensure independent judiciary
and an ideal setup for any democratic government to achieve. Also they declared
that the concept of Rule of Law should be employed not only to safeguard and
advance the liberties and rights of the citizens, but also to establish the social,
economic and cultural conditions which are conducive to human aspirations and
dignity.

In modern times, Dicey's rule of law has come to be identified with the concept of
the civil and political rights of the individual in a free society. This concept has
been accepted by most of the countries with some variations. The modern concept
of the Rule of Law14 has the following 7 connotations-

(a) Law and order;

(b) Fixed rules;

(c) Due process or fairness;

(d) Elimination of discretion;

(e) Principles of natural justice;

(f) Preference to ordinary courts over administrative tribunals;

(g) Judicial review of administrative actions.

13
INTERNATIONAL COMMISSION OF JURISTS, DECLARATION OF DELHI (1959).
14
KENNETH C. 0. DAVIS, ADMINISTRATIVE LAW TREATISE (1958).
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 Rule of Law and its Application in the Indian Polity

RULE OF LAW IN INDIAN POLITY

Rule of Law is a basic requisite for a democratic state. It forms the basic structure
of the Constitution of India15 and it drifts through every provision of it. It keeps the
powers of executive within bounds which are conferred upon it by the Constitution
and the law. The rule of law is the basis of the administrative law in India.16Rule of
law pervades the entire scheme of constitution and therefore forms it basic
framework. 17

Supremacy of the constitution-

The preamble of Constitution of India has enunciated the principles of justice,
liberty, equality and fraternity. It declares India to be of a sovereign, socialist,
secular democratic and republican polity. The principles which are expressed in the
Preamble are the basis of Rule of Law.18 The constitution is the supreme law of the
land. The laws enacted by the Legislative should be in conformity to the provisions
of the Constitution by the virtue of Article 13.19 Otherwise, they can be declared
void by the Courts. Thus the organs of the State at both the level derive their
authorities from the Constitution and must operate within the jurisdiction
prescribed by it.
Fundamental Rights-
Part III of the Indian constitution guarantees and safeguards six fundamental rights
to all the citizens-
(a) Right to Equality(Articles 14-18),
(b) Right to Freedom(Articles 19-22),
(c) Right against exploitation (Articles23-24),
(d) Right to Freedom of Religion(Articles 25-28),
(e) Cultural and Educational Rights(Articles 29-30),
(f) Right to Constitutional Remedies (Article 32).

15
Kesavananda Bharati v. State of Kerela, (1973) 4 SCC 225
16
A.K. Kraipak v. Union of India, AIR 1970 SC 150.
17
Bachan Singh v. State of Punjab, AIR 1982 SC 1336.
18
V.N. SHUKLA, CONSTITUTION OF INDIA (1950).
19
INDIA CONST. art.13(2) - “The State shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void”.
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 Rule of Law and its Application in the Indian Polity

The Fundamental Rights are meant to promote the idea of Rule of Law & political
democracy. They run as limitations on the despotism of the executive and arbitrary
laws of the legislature. They are justiciable in nature and can be enforced by the
courts. Supreme Court (under Art.32) and High Court (under Art. 226) can issue
writs for enforcement of the Fundamental Rights of the aggrieved against the state.

Article 21 declares that no person shall be deprived of his life or personal liberty
except in accordance with procedure established by law. It is not only available
against arbitrary actions of executive but also against the legislative actions.20 It
has been established that a law has to pass through the scrutiny of fairness and
reasonableness by virtue of Article 14 and Article 19. Articles 14, 19 and 21 are so
fundamental that they are also called the golden triangle of the Indian Constitution
and they cannot be read in isolation.21

Equality before law as a basic constituent of Rule of law has been adopted under
Article 14 of the Constitution. In India there is no rule that the King can do no
wrong. Everyone is equally subjected before the law and there is no special
privilege given to any person. All persons are subject to the law which is
administered by ordinary law courts. And no person is above law whether rich or
poor, official or non- official, high or low.
Judicial Review-
Though the phrase ‘Judicial Review’ has nowhere expressly been used in the
Constitution but the provisions of several Articles22 confers this power on the
Supreme Court and the High Courts. Due to supremacy of Constitution, any law
which is inconsistent with it is null and void through judicial review. It is the
characteristic feature of the constitution by which the Courts can challenge the
constitutionality of executive orders and legislative enactments.23 Judicial review is
regarded as the basic feature of the constitution.24

20
Maneka Gandhi v. Union of India, 1978 AIR 597. It overruled A.K. Gopalan v. The State of
Madras, 1950 AIR 27.
21
Id.
22
INDIA CONST. art.13, art.32, arts.131-136, art.143, art.226, art.145, art.246, art.251, art.254,
art.372
23
Chief Commissioner, Punjab v. Om Prakash, 1969 AIR 33.
24
Indira Nehru Gandhi v. Raj Narain, 1975 AIR 2299; IR Coelho v state of Tamil Nadu, AIR
2007 SC 861.
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 Rule of Law and its Application in the Indian Polity

Judiciary is highly regarded for having upheld the principle of “Rule of Law” time
and again over the few past decades. It was held by the Supreme Court that when
the discretion is conferred on an executive authority, it must be exercised in a fair
and just manner and should not be exercised arbitrarily. KHANNA J has stated in
his dissenting opinion that “The rule of law is the antithesis of arbitrariness”.25 “If
the discretion is exercised without any principle or without any rule, it is a situation
amounting to the antithesis of rule of law.”26
CONCLUSION

Its existence inhibits arbitrary use of authority by the state in a substantial way.
The concept of the rule of law has been used for many propositions and deductions
to restrict an unwanted rise in the administrative powers. It has given a philosophy
through which the state power can be curbed and be kept within bounds. It has
provided a sort of standard or touchstone to test and judge any law on the grounds
of justice, reasonableness and fairness prevailing in a democratic state.

Rule of Law has its own journey. It has been evolved from Dicey’s concept to the
modern concept in which it has protected certain civil rights and liberties of
people. In India, it is duly recognized by the Constitution and is firmly established
by judiciary.

BIBLIOGRAPHY
BOOKS REFFERED-
1. BLACK'S LAW DICTIONARY 1448 (9th ed.)

2. TOM BINGHAM, THE RULE OF LAW (2010).

3. A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE
CONSTITUTION (1915).
4. MP JAIN & SN JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 13
(6thed.)
5. KENNETH C. 0. DAVIS, ADMINISTRATIVE LAW TREATISE (1958).
6. V.N. SHUKLA, CONSTITUTION OF INDIA (1950).

25
A.D.M. Jabalpur v. Union of India, AIR 1967 SC 1207.
26
Som Raj v. State of Haryana, (1990) 2 SCC 653.
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