Sei sulla pagina 1di 30

UNIVERSITY INSTITUTE OF LEGAL

STUDIES

PROJECT REPORT
ON

THE CONCEPT OF
RULE OF LAW
SUBMITTED TO:
Ms. IMROSE
SUBMITTED BY:
HARGUN SANDHU
ROLL NO. 195/15
FORTH SEMESTER
2016-17
SECTION D
2

ACKNOWLEDGEMENT
I wish to express my sincere gratitude to
Ms. Imrose for providing me an opportunity to do a project
on The concept of rule of law. The project would not
have reached its current shape without her guidance.
This project has given me a clear insight on what is rule of
law, how it has evolved over time, how the same concept is
followed in UK and USA, and the status of rule of law in
India.
Thank you
3

Index
1. Introduction

2. A.V. Diceys Theory

3. Modern meaning of rule of law

4. Rule of law in UK

5. Rule of in USA

6. Rule of law in India

7. Rule of law and administrative law

8. Conclusion

9. Bibliography
4

INTRODUCTION
When the Rule of Law disappears, we are ruled by the whims of men.

Tiffany Madison

Rule of law in a plain language can be defined as a situation in which the law of the
land is superior than the government ruling the land. It is a legal regime which
restraints the power of the government. It does so to ensure that the government does
not resort to arbitrary power or abuse its power in order to rule over the people of the
land. As stated by several political and legal philosophers, democracy cannot sustain
in a country without establishment of rule of law.

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.

The rule of law is a celebrated, historic concept, the meaning of which is still not
clear and is interpreted differently by different nations and thus needs a multi-
dimensional aspect to understand its concept.

The concept of Rule of Law" is the building block on which the modern democratic
society is founded. For the successful functioning of the polity it is imperative that
there is enforcement of law and of all contracts based on law. Laws are made for the
welfare of the people to maintain harmony between the conflicting forces in society.
One of the prime objects of making laws is to maintain law and order in society and
develop a peaceful environment for the progress of the people. The concept of Rule
of Law plays an important role in this process.
5
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 county 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 concept of Rule of law is of old origin and is an ancient ideal. It was discussed
by ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato
wrote: Where the law is subject to some other authority and has none of its own, the
collapse of the state, in my view, is not far off; but if law is the master of the
government and the government is its slave, then the situation is full of promise and
men enjoy all the blessings that the gods shower on a state". Likewise, Aristotle also
endorsed the concept of Rule of law by writing that "law should govern and those in
power should be servants of the laws."
The phrase Rule of Law is derived from the French phrase la principe de legalite
(the principle of legality) which refers to a government based on principles of law
and not of men. Rule of law is one of the basic principles of the English Constitution
and the doctrine is accepted in the Constitution of U.S.A and India as well. The entire
basis of Administrative Law is the doctrine of the rule of law.
Sir Edward Coke, the Chief Justice of King James Is reign was the originator of this
concept. He maintained that the King should be under God and the Law and he
established the supremacy of the law against the executive and that there is nothing
higher than law.
Later, Albert Venn Dicey (a British jurist and constitutional theorist) developed the
concept in his book The Law of the Constitution (1885).1

1https://www.lawteacher.net/free-law-essays/constitutional-law/introduction-concept-of-rule-law-
essays.php#ftn1
6

RULE OF LAW- A STATE OF AFFAIRS


The expression "rule of law" explains a state of affairs in which everything must be
done according to law. It is a state of affairs in which there are legal barriers to
governmental arbitrariness and there are available legal safeguards for the protection
of the individuals. In simple words, it is the reverse of tyranny, the antithesis of the
rule of anarchy and fear.2
Garner3 holds that the expression "Rule of Law" is often used simply to describe the
state of affairs in a country where, in main, the law is observed and order is kept. It is
thus synonymous with "law and order".

A.V. DICEYS THEORY


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.4

Dicey developed his thesis in his classic work entitled The Law and the Constitution"
published in the year 1885.
In his formulation, Dicey attributed to the concept of "rule of law", the following three
meanings:

A. Supremacy of law
Explaining the first principle, Dicey states that rule of law means the absolute
supremacy or predominance of regular law as opposed to the influence of arbitrary
power or wide discretionary power. It excludes the existence of arbitrariness of

2 Ex-Attorney General Mr. Mannigham Buller, quoted in S. Rajagopalan, Administrative Law, 1970, 57.
3
3 Administrative Law, 1983, 9.
4 The Law of Constitution, pg 198;
7
prerogative or even wide discretionary authority on the part of the Government.
According to him 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. 5 He denied that
in England the government was based on exercise by persons in authority of wide
arbitrary or discretionary powers. In his 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." 6 As Wade7 says the rule of law requires that the
Government should be subject to the law, rather than the law subject to the
Government.
In other words, according to this doctrine, no man can be arrested, punished or be
lawfully made to suffer in body or goods except by due process of law and for a
breach of law established in the ordinary legal manner before the ordinary courts of
the land. Dicey described this principle as 'the central and most characteristic feature'
of Common Law.
B. Equality before law
The attribute of "Rule of Law" Dicey stated was "equality before the law and equal
subjection of all classes to the ordinary law of the land administered by the ordinary
law courts."8
Explaining the second principle of the rule of law, Dicey states that there must be
equality before the law or the equal subjection of all classes to the ordinary law of the
land administered by the ordinary law courts. According to him, in England, all
persons were subject to one and the same law, and there were no extraordinary
tribunals or special courts for officers of the Government and other authorities.
According to him Courts are supreme throughout the state. He criticised the French
legal system of droit administratif in which there were separate administrative tribunals
for deciding cases between the officials of the State and the citizens. According to
him, exemption of the civil servants from the jurisdiction of the ordinary courts of
5The Law and the Constitution, 1915, p. 202.
6Id.,p. 184.
7Administrative Law, 1994, pp. 34-36.
8 Dicey, supra, note 16.
8
law and providing them with the special tribunals was the negation of equality. Of
course, Dicey himself saw that administrative authorities were exercising 'judicial'
functions though they were not 'courts'. He, therefore, asserted: "Such transference of
authority saps the foundation of the rule of law which has been for generations a
leading feature of the English Constitution."
According to Dicey9, any encroachment on the jurisdiction of the courts and any
restrictions on the subject's unimpeded access to them are bound to jeopardize his
rights. In the words of Lord Denning10: "Our English law does not allow a public
officer to shelter behind a droit administratif.''
Meaning of droit Administratif- Under the French Legal System, known as droit
administratif, there are two types of laws and two sets of courts independent of each
other. The ordinary courts administer the ordinary civil law as between subjects and
subjects. The administrative courts administer the law as between the subject and the
State. An administrative authority or official is not subject to the jurisdiction of the
ordinary civil courts exercising powers under the civil ldfw in disputes between the
private individuals. All claims and disputes in which these 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. Though the system of droit
administratif is very old, it was regularly put into practice by Napoleon in the 18th
century.
C. Predominance of legal spirit
Explaining his third exposition of "Rule of Law", Dicey asserted that the general
principles of the Constitution were the result of judicial decisions of the Courts in
England. in many countries rights such as right to personal liberty, freedom from
arrest, freedom to hold public meetings are guaranteed by a written Constitution; in
England, it is not so. Those rights are the result of judicial decisions in concrete cases
which have actually arisen between the parties. The Constitution is not the source but
the consequence of the rights of the individuals. Thus, Dicey emphasised the role of

9Cited by V.G. Ramachandran: Administrative Law, 1984.


10Ministry of housing v. Sharp, (1970) 2 QB 223(226)
9
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, as in the latter case, they can be ignored,
curtailed or trampled upon. He stated: the Law of the Constitution, the rules which
in foreign countries naturally form part of a constitutional Code, are not the source
but the consequences of the rights of individuals, as defined and enforced by the
courts.
The meaning of the rule of law made by Diceys may be criticized on the basis of
following grounds, as-
(a) Dicey has opposed the system of providing the discretionary power to the
administration. In his opining providing the discretionary power means creating the
room for arbitrariness which may create a serious threat to individual freedom. Now-
a-days, it has been clear that providing the discretion to the administration is
inevitable. The present trend is the establishment of Welfare State which performs
numerous functions including economic and social functions. The function of the
State is not confined to maintenance of law and order and collection of taxes.
Dicey has failed to distinguish discretionary power from the arbitrary powers.
Arbitrary power may be taken as against the concept of Rule of Law, but the
discretionary power with proper guidelines is not against the concept of Rule of Law.
In modern times in all the countries including England, America and India, the
discretionary powers are conferred on the Government. If providing the discretionary
power to the administration or Government is taken against the concept of rule of
law; the rule of law is not in existence in any country including England.

(b) According to Dicey the rule of law requires that every person should be subject to
the ordinary courts of the Country. Every person, whether rich or poor, irrespective of
status or rank, must be subject to the same body of law and the same court of the
country. Dicey has claimed that there is no separate law and the separate court for the
trial of the government servants in England. He criticized the system of droit
administrative prevailing in France. In France there are two types of courts
10
Administrative courts and Ordinary Civil courts. The dispute between the citizens
and administration are decided by the Administrative courts and the dispute between
the citizens is decided by the Ordinary Civil courts. It is very critical to decide the
separation for deciding the disputes between the administration and the citizens on
the basis of Diceys concept. Even England is also not free from the special courts
and tribunals. As because in England, there have both the system and enforce special
laws. Meant to say that offences against Military law or Naval law are tried by the
Court Martial. Ecclesiastical law is enforced by the Ecclesiastical Courts or like that.

(c) According to Dicey the Rule of Law requires equal subjection of all persons to the
ordinary law of the country and absence of special privileges to the ordinary law of
the country and absence of special privileges for person including the administrative
authority. In the opinion of Dicey the Rule of Law excludes the idea of any
exemption to officials or others from the duty ordinance to the law which governs
other citizens or from the jurisdiction of the ordinary courts. This proportion of Dicey
does not appear to be correct even in England. As because several persons enjoys
some special privileges and position etc.

(d) Third meaning given to Rule of Law by Dicey is that, the constitution is the result
of judicial decisions determining the rights of private persons in particular cases
brought before the Courts is based on the peculiar character of the Constitution of
Great Britain is the Written and contains the principles evolved through judicial
decisions. The meaning of Rule of Law does not hold good in India, U.S.A, etc. as
because the Constitution of India is not the result of the ordinary law of the land.
Whereas, any law which is against the Constitution of India is declared void.
11

MODERN MEANING OF RULE OF LAW


The modern concept of "Rule of Law" was developed by the International
Commission of jurists in 1959,11 which was later on confirmed at Lagos in 1961. The
Jurists recorded that "rule of law" depended not only on the existence of adequate
safeguards against the abuse of power by the executive but also on the existence of
effective Government capable of maintaining law and order and ensuring social and
economic conditions of life for society.

Stating that an independent legal profession was the sine qua non of the "Rule of Law",
the Jurists expressed that there should be independent judiciary with the security of
tenure free from legislative and executive interference.12

The modern concept of the Rule of Law is fairly wide. Davis 13 gives seven principal
meanings of the term Rule of Law:

(1) Law and Order,


(2) Fixed rules;
(3) Elimination of discretion;
(4) Due Process of law or fairness;
(5) Natural Law or observance of the principles of natural justice;
(6) Preference for judges and ordinary courts of law to executive authorities and
administrative tribunals; and
(7) Judicial review of administrative action.

11 It is known as Delhi Declaration, 1959.


12 It is known as Delhi Declaration, 1959.
13 Administrative Law, 1959, pp. 24-27.
12

RULE OF LAW IN THE UNITED KINGDOM


The rule of law is one of the fundamental principles of UK' s unwritten or uncodified
constitution .The key idea of the rule of law is that the law should apply equally to
all, rulers and ruled alike. This, in the words of the 19-century constitution expert
,A.V.Diecy ensures a government of law' and not a government of men . The
alternative to the rule of law is there for arbitrary government. In this way, the rule of
law establishes the relationship between government and the people. AS John Lock
put it, whenever law ends, tyranny begins.
Furthermore, the rule of law is the principle that the law should rule in the sense that
it applies to all conduct and behavior and covers both private and public officials. The
most important sub principles of the rule of law are that no one is above the law, that
there is equality for all before the law, that the law is always applied and that legal
redress is available through the courts.
However, the rule of law is a complex principle , and it is best explained as a
collection of subprinciples .There has been ,moreover, significant debate about how
far the law rules' the UK . Harden and Lewis (1988) even describe the rule of law as
the noble lie' of the British constitution. As previously mentioned, the rule of law,
has been created to ensure that:

No One Is Above' The Law


This implies that everyone is bound by the law. The law applies to ministers and
public officials as well as other members of society. This is supposed to ensure that
public officials use their power reasonably and do not exceed the limits placed on its
use. This aspect of the rule of law is upheld through administrative law and by the
practice of judicial review.
How ever, concerns have been expressed about the extent to which this principle
applies in the UK.
1 . Many of the powers of the prime minister and other ministers are based on the
Royal prerogative, which is not subject to judicial oversight.
13
2 . As parliament is sovereign, it can make, unmake and amend any law it whishes and
son on, in that sense, it is above the law.
3 . The principle of parliamentary privilege means the MPs and peers are not subject to
legal restrictions on what they can say in parliament
4 . The Queen, as head of the legal system, is not properly subject to the law.
All these aspects can undermine No one is above' the law, moreover they are not
illegal actions and can not be prosecuted as an illegal action.

Equality Before The Law


The law is meant to treat all citizens alike; it is no respecter of persons. All people
should therefore have the same legal rights and have the same legal rights and have
the same access to the legal system. Consideration of Race, Colour, Creed, Religion,
Wealth, social status and official position must be irrelevant to how people are treated
by the court system.
However, concerns have been expressed about the extent to which this principle
applies in the UK:
1 Legal disputes may be prohibitively costly, for many, and only the wealthy can
afford to be represented by top lawyers.
2 Access to legal aid is not always easy and may exclude people from middle-income
groups
3 Judges may be biased against, for instance. women, ethnic minorities and the poor
because they tend to come from narrow and privileged social and educational
background
The Law Is Always Applied.
Disputes must be resolved by the application of the law rather than by other means.
This means that there must be a certainty of punishment for breaches of law law
cannot apply in certain circumstances, but not in others. By the same token, there
should be punishment only for breaches of law- people should not be penalized
except through the due process of law.
However, concerns have been expressed about the extent to which this principle
14
applies in the UK;
1 Not all crimes are reported and therefore legally addressed (this applies, for instance,
in the case of most rapes)
2 As polices resources are limited many crimes are not detected (for example, speeding
offences)
3 Trial by the media means that people may be punished without legal proceeding
having taken, or, perhaps, despite being acquitted.
4 Legal Redress Is Available Through The Courts
If people's rights have been infringed (whether by other citizens, organizations or the
state,) they should be able to protect themselves through the law. For many legal
experts and a growing body of senior judges this implies that the law should defend
fundamental human rights. This is the aspect of the rule of law that safeguards the
individuals from the state.
However, concerns have been expressed about the extent to which this principle
applies in the UK:
1 There is no entrenched bill of right to protect fundamental human rights
2 The Human Rights Act can be set aside if parliament whishes.
3 Access to European Court of Human Rights is expensive and time-consuming.
Judge's Independence
One crucial aspect of the role of the law is that judges are meant to be strictly
impartial and non-political. This is one of the basic differences between liberal
democratic countries and authoritarian regimes. In the later, the courts simply become
instrument of the state .In the Soviet Union, for example ,judges applied what was
called social legality ,during the 1930s in particular. Show trial were used to expose
and punish opponents of the regime .By contrast, in liberal democracies, the authority
of the law is linked to the fact that it is supposed to be non-political. This, in turn, is
based on the assumption that the law is interpreted by judges who are independent
and impartial.
On the other hand, in UK, in view of the potential political significance of judicial
decision, the independence of judges is always a principle under pressure.
15
Traditionally, the main concern about the effectiveness of the judicial independence
focused on appointment process. While that was controlled by prime minister and the
Lord Chancellor, and so long as the Lord Chancellor's office fused the roles of head
of the judiciary and cabinet minister, judicial independence always appear to be a
constitutional fiction. This concern has substantially been addressed though the
establishment of the judicial appointment commission.
A second concern about judicial about judicial independence stems from a growing
willingness of ministers publicly criticize the courts. This has particularly applied in
the case of successive home secretaries. Examples of this includes:
1) In 2003, David Blunkett condemned the release of the nine-afghan hijackers
2) In 2005, Charles Clarke criticized the release of terrorist suspects from Belmaresh
3) In 2007, John Reid attacked the decision not to deport the murders of the London
headmaster, Philip Lawrence, when hi is released.
In conclusion, the constitution, in any county, has a major impact on judicial system.
As a result, the distinctive UKs constitution has had influences on judicial system
also. The fact that UK's constitution grants a lot power to parliament is obvious .In
other words, to some extent, parliament can set aside any provisions of the rule of law
if it wishes, For instance, nowadays, they are debates about the invasion of Iraq
which claim that the invasion was an illegal action and directly against law. Since, the
membership of UK in European Union the Judicial system has also been influenced
by European treaties such as changing the highest court of appeal from House of lord
to European court of justice.
Although, the vagueness, in the principles of the rule of the law exists by virtue of
parliamentary sovereignty, the rule of law has also achieved, to some extent, its
goals.14

14 https://www.lawteacher.net/free-law-essays/english-legal-system/the-rule-of-law-in-uk.php
16

RULE OF LAW IN USA


The united states of America in their constitution do not have the concept of rule of
law directly, but they follow a similar concept, that is the concept of due process of
law. Due process is a difficult thing to define.
In the Magna Carta, due process is referred to as "law of the land" and "legal
judgment of peers." Some state constitutions continue to use these phrases.
The reference in the 5th Amendment applies only to the federal government and its
courts and agencies. The reference in the 14th Amendment extends protection of due
process to all state governments, agencies, and courts.
Due process, in the context of the United States, refers to how and why laws are
enforced. It applies to all persons, citizen or alien, as well as to corporations.
In that, the "how" is procedural due process. Is a law too vague? Is it applied fairly
to all? Does a law presume guilt? A vagrancy law might be declared too vague if the
definition of a vagrant is not detailed enough. A law that makes wife beating illegal
but permits husband beating might be declared to be an unfair application. A law
must be clear, fair, and have a presumption of innocence to comply with procedural
due process.
The "why" is substantive due process. Even if an unreasonable law is passed and
signed into law legally (procedural due process), substantive due process can make
the law unconstitutional. The Roe v Wade abortion decision declared a Texas law in
violation of due process and ruled that in the first trimester, it is unreasonable for a
state to interfere with a woman's right to an abortion; during the second trimester, it is
reasonable for a state to regulate abortion in the interest of the health of mothers; and
in the third, the state has a reasonable interest in protecting the fetus. Another
application has been to strike down legislation requiring certain non-dangerous
mentally ill persons be confined against their will.
Generally, due process guarantees the following (this li15st is not exhaustive):
1 Right to a fair and public trial conducted in a competent manner
2 Right to be present at the trial
15 https://www.usconstitution.net/consttop_duep.html
17
3 Right to an impartial jury
4 Right to be heard in one's own defense
5 Laws must be written so that a reasonable person can understand what is criminal
behavior
6 Taxes may only be taken for public purposes
7 Property may be taken by the government only for public purposes
Owners of taken property must be fairly compensated.
18

RULE OF LAW IN INDIA


In India, the concept of Rule of law can be traced back to the Upanishads. In modern
day as well, the scheme of the Indian Constitution is based upon the concept of rule
of law. The framers of the Constitution were well familiar with the postulates of rule
of law as propounded by Dicey and as modified in its application to British India. It
was therefore, in the fitness of things that the founding fathers of the Constitution
gave due recognition to the concept of rule of law.
The doctrine of Rule of Law as enunciated by Dicey has been adopted and very
succinctly incorporated in the Indian Constitution. The ideals of the Constitution viz;
justice, liberty and equality are enshrined in the Preamble itself (which is part of the
Constitution).
The Constitution of India has been made the supreme law of the country and other
laws are required to be in conformity with it. Any law which is found in violation of
any provision of the Constitution, particularly, the fundamental rights, is declared
void. The Indian Constitution also incorporates the principle of equality before law
and equal protection of laws enumerated by Dicey under Article 14.
The very basic human right to life and personal liberty has also been enshrined under
Article 21. Article 19(1) (a) of the Indian Constitution guarantees the third principle
of the Rule of law (freedom of speech and Expression). No person can be convicted
of any offence except for violation of a law in force at the time of the commission of
the act charged as an offence is also very well recognized in the Indian
Constitution. The principles of double jeopardy and self-incrimination also found its
rightful place in the Constitution. Articles 14, 19 and 21 are so basic that they are
also called the golden triangle Articles of the Indian Constitution.
The Constitution also ensures an independent an impartial Judiciary to settle disputes
and grievances for violation of fundamental rights by virtue of Articles 32 and 226.16

Rule of law as a feature of basic structure

16 https://www.lawteacher.net/free-law-essays/constitutional-law/introduction-concept-of-rule-law-essays.php#ftn1
19
The Constitution (First Amendment) Act, 1951, shocked the status of Rule of law in
India. The question which came up for consideration in Shankari Prasad v. Union
of India17 was whether the fundamental rights can be amended under Article 368.
The Supreme Court held that Parliament has the power to amend Part III of the
Constitution under Article 368 as under Article 13 law means any legislative action
and not a constitutional amendment. Therefore, a constitutional amendment would be
valid if abridges any of the fundamental rights.
The question again came up for consideration in Sajjan Singh v. State of
Rajasthan18 in which the Supreme Court approved the majority judgment in
Shankari Prasad case and held that amendment of the Constitution means amendment
of all provisions of the Constitution. Honble Chief Justice Gajendragadkar held that
if the framers of the constitution intended to exclude fundamental rights from the
scope of the amending power they would have made a clear provision in that behalf.
However, both these cases were overruled by the Apex Court in Golaknath v. State
of Punjab19 and it held that Parliament has no power to amend the Part III of the
Constitution so as to take away or abridges the fundamental rights and thus, at the
end the Rule of law was sub-served by the Judiciary from abridging away. However,
the Rule of law was crumpled down with the Constitution (Twenty-Fourth
Amendment) Act, 1971. Parliament by the way of this Amendment inserted a new
clause (4) in Article 13 which provided that nothing in this Article shall apply to any
amendment of this constitution made under Art 368. It substituted the heading of
Article 368 from Procedure for amendment of Constitution to Power of Parliament
to amend Constitution and Procedure thereof. The Amendment not only restored the
amending power of the Parliament but also extended its scope by adding the words
to amend by way of the addition or variation or repeal any provision of this
constitution in accordance with the procedure laid down in the Article".
This was challenged in the case of Keshavananda Bharti v. State of Kerala.20 The
Supreme Court by majority overruled the decision given in Golaknaths case and held
17 AIR 1951 SC 455
18 1965 AIR 845, 1965 SCR (1) 933
19 1967 AIR 1643, 1967 SCR (2) 762
20 (1973) 4 SCC 225
20
that Parliament has wide powers of amending the Constitution and it extends to all
the Articles, but the amending power is not unlimited and does not include the power
to destroy or abrogate the basic feature or framework of the Constitution. There are
implied limitations on the power of amendment under Article 368. Within these limits
Parliament can amend every Article of the Constitution. Thus, Rule of law prevailed.
In Keshavananda Bharti v. State of Kerala, the Supreme Court states that Our
Constitution postulates Rule of Law in the sense of supremacy of the Constitution
and the laws as opposed to arbitrariness." The 13 judge Bench also laid down that the
Rule of law is an aspect of the basic structure of the Constitution, which even the
plenary power of Parliament cannot reach to amend."
Since Keshavananda case, Rule of law has been much expanded and applied
differently in different cases.
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.

The popular habeas corpus case, ADM Jabalpur v. Shivakant Shukla21 is one of
the most important cases when it comes to rule of law. In this case, the supreme court
was confronted with the question whether the third pillar of the Diceys doctrine was
an integral part of the Indian concept of rule of law. The question before the court
was whether there was any rule of law in India apart from Article 21.
On 25th June, emergency was proclaimed by Mrs. Indira Gandhis government on the
grounds of internal disturbances under Article 358. Large number of persons was
arrested under MISA (Maintenance of Internal Security Act. 1971) without informing
the grounds for arrest. Some of them filed writ petitions in different High Courts
challenging the detention orders as illegal and unconstitutional and praying for the
issue of a writ of Habeus Corpus. The petitioners contended that their detention is
violation of Article 21. It was argued on the other side that the protection tinder
Article 21 is not available since it was suspended during emergency. The preliminary
objection was rejected by various High Courts. The Madhya Pradesh Government
through Additional District Magistrate. Jabalpur and Government of India filed
21 (1976) 2 SC 521
21
appeals before Supreme Court. The case was heard by a five- judge Constitutional
Bench consisting of Ray CJ and Khanna, Beg, Chandrachud and Bhagwati JJ. The
majority of the bench answered the issue in negative and observed that there cannot
be a brooding and omnipotent rule of law drowning in its effervescence the
emergency provisions of the constitution.22
Khanna J, however, did not agree with the majority view. In a powerful dissent he
observed that even in the absence of Article 21 in the constitution, the state has
got no power to deprive a person of his life or liberty without the authority of
law. The principle that no one shall be deprive of his life and liberty without the
authority of law was not the gift of the constitution. It was a necessary corollary of
the concept relating to the sanctity of life and liberty, it existed and was in force
before the coming into force of the constitution. Without such sanctity of life and
liberty, the distinction between a lawless society and one governed by laws would
cease to have any meaning.
the judgment of A.D.M Jabalpur vs S.Shukla reiterated the two essential principles of
rule of law. In it the judge said

rule of law is the antithesis of arbitrariness... Rule of law is now the accepted norm
of all the civilised societies... Everywhere it is identified with the liberty of the
individual. It seeks to maintain a balance between the opposing notion of individual
liberty and public order. In every state the problem arises of reconciling human rights
with the requirements of public interests. Such harmonising can also be attained by
the existence of independent courts which can hold the balance between citizen and
the state and compel government to conform to the law.

In Som Raj v. State of Haryana23 it was held by the Supreme Court that normally, the order
of appointment would be in order of merit of candidates from the select list. Even
when the discretion is conferred on an executive authority, it must be exercised in a
reasonable, manner and should not be exercised arbitrarily. "The absence of arbitrary

22
23 (1990) 2 SCC 653.
22
power is the first postulate of the rule of law upon which our whole constitutional
edifice is based. If the discretion is exercised without any principle or without any
rule, it is a situation amounting to the antithesis of rule of law.
In Bachan Singh,24 Justice Bhagwati stated that rule of law excludes arbitrariness and
unreasonableness. To ensure it, he said that it is necessary for the government to be
democratic in making laws and there should be independent judiciary to limit the
powers of the legislature and the executive.

In P. Sambamurthy v. State of Andhra Pradesh25 the SC has declared a provision


authorizing the executive to interfere with tribunal justice as unconstitutional
characterizing it as violative of the rule of law which is clearly a basic and essential
feature of the constitution.

Yet another case is of Yusuf Khan v. Manohar Joshi26 in which the SC laid down
the proposition that it is the duty of the state to preserve and protect the law and the
constitution and that it cannot permit any violent act which may negate the rule of
law.

In an early case of S.G. Jaisinghani V. Union of India27, the Supreme Court


portrayed the essentials of rule of law in a very lucid manner. It observed: The
absence of arbitrary power is the first essential of the rule of law upon which our
whole constitutional system is based. In a system governed by rule of law, discretion
when conferred upon executive authorities must be continued within clearly defined
limits. The rule of law from this points of view means that decisions should be made
by the application of known principles and rules and, in general such decision should
be predictable and the citizen should know where he is. If a decision is taken without
any principle or without any rule it is unpredictable and such a decision is antithesis
of a decision taken in accordance with the rule of law.

24 (1980) 2 SCC 684


25 1987 AIR 663.
26 Writ Petition (civil) 673 of 1998.
27 AIR 1967 SC 1427
23

In Chief settlement Commr., Punjab v. Om Prakash28, it was observed by the


Supreme Court that, In our constitutional system, the central and most 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 appropriate action in the competent court. The rule of
law rejects the conception of Dual State in which governmental action is placed in a
privileged position of immunity from control by law. Such a notion is foreign to our
basic constitutional concept.

In the case of Zahira Habibullah v. State of Gujrat29 it was held that the rule of
law win administration is closely related to human rights protection.

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


law.

In Sheela Barse v. State of Maharashtra,30 the petitioner was a freelance journalist


who sought permission to interview the female prisoners in the Maharashtra State
Jails. The permission was granted by the Inspector-General of Prisons. The petitioner
started tape recording the interview with the prisoners, she was instead advised to
keep notes only. When the petitioner raised objection on this score, her permission to
conduct the interview was cancelled since the grant of permission to interview was a
matter of discretion of the Inspector General and such interviews are ordinarily
allowed to research scholars only. Feeling aggrieved by the cancellation of the
permission, the journalist wrote a letter to the Supreme Court on the ground that a
citizen has a right to know under Articles 19(1)(a) and 21 of the Constitution, if the
Government is administering the jails in accordance with law, and that the Press has a

28 AIR 1969 SC 33.


29 (2004) 4 SCC 158
30 1983 AIR 378.
24
special responsibility to collect information on public issues to educate the
people. Her letter was treated as a writ petition under Article 32 of the constitution.
In certain jails in Bihar, under trial prisoners were kept in the leg iron bar subjected to
inhumane conditions. It was held violative of Article 21 of the constitution and the
basic principle of rule of law.

In Indira Nehru Gandhi v. Raj Narain,31 wherein the Apex Court invalidated
Clause (4) of Article 329-A, inserted in the Constitution by the Constitution (39th
Amendment) Act, 1975, to immunize the election dispute to the office of the Prime
Minister from any kind of judicial review.
In the case of Indira Nehru Gandhi v. Raj Narayan, the Apex Court held that Rule of
Law embodied in Article 14 of the Constitution is the basic feature of the Indian
Constitution and hence it cannot be destroyed even by an amendment of the
Constitution under Article 368 of the Constitution. Article 329-A was inserted in the
Constitution under 39th amendment, which provided certain immunities to the
election of office of Prime Minister from judicial review. The Supreme Court
declared Article 329-A as invalid, since it was clearly applicable only to the then
current prime minister and was an amendment to benefit only one individual. It was
decided that the law of the land is supreme and must prevail over the will of one
person.
the following facets of "Rule of Law" may be culled out
that, the Rule of Law postulates the pervasiveness of the spirit of law throughout
the whole range of government in the sense of excluding arbitrary official action in any
sphere,32
that, the jurisdiction of the Supreme Court to try a case on merits cannot be taken away
without injury to the basic postulates of "the Rule of Law" and of justice within a
politically democratic constitutional structure,33
that, since the validation of the Prime Minister's election was not by applying any
law, therefore, clause (4) of Article 329-A, offended the Rule of Law.
31 AIR 1975 SC 2299.
32 Id., para 336, per Mathew, J. (Emphasis added).
33 Id., para 623, per Beg, J. (Emphasis added).
25

Elimination of arbitrariness, and not of discretion . - Expounding the


concept of rule of law in Supreme Court Advocate-on-Record Association v.
Union of India34, the Supreme Court laid down that rule of law does not rule out
existence of discretionary power completely. In this case the court held the view that
vesting of absolute power in one individual is not warranted under the constitutional
scheme. For the rule of law to become realistic, there has to be room for discretionary
authority within the operation of the rule of law, even though it has to be reduced to
the minimum extent necessary for proper governance and within the areas of
discretionary authority, the existence of proper guidelines or norms of general
application excludes any arbitrary exercise of discretionary authority. In such a
situation, the exercise of discretionary authority in its application to individuals,
according to proper guidelines, or norms further reduces the area of discretion, but to
that extent discretionary authority has to be given to make the system workable.
Judicial activism as valiant enterprise is seen as a part of the efforts of Constitutional
Courts in India to establish rule of law society which postulates that no matter how
high a person may be the law is always above him.The Court is also making efforts to
link rule of law with human rights of the people. The Court is evolving strategy by
which it can force the government not only submit to law but also create conditions
where people can develop capacities to enjoy their rights in proper and meaningful
way. It is the responsibility of the public administration for effective implementation
of rule of law and constitutional commands which effectuate fairly the objective
standards laid down by law. Every government servant holding public power is a
trustee of the society and accountable for due effect national goals.
Although all the merits are unhurt in the concept of the Rule of law, the only negative
aspect of the concept is that respect for law degenerates into rigidity of legalism
which is injurious to the nation.

34 AIR 1994 SC 268.


26

RULE OF LAW VIS-A-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
27
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.35

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 governments 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.

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. 36 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.37

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

35 Jain and Jain, supra note 27, 12.


36 Harry W. Jones, The Rule of Law and The Welfare State, 58 Col. LR 143 (1958).
37 Wade and Forsyth, supra note 3, 20-24.
28
controlling it through procedures and other means. Administrative Law thus does
not infringe, but on the other hand, promotes Rule of Law.38

CONCLUSION
The recent expansion of rule of law in every field of administrative functioning has
assigned it as a place of special significance in the Indian administrative law. In all
matters such as the protection of the rights of the people, equal treatment before the
law, protection against excessive arbitrariness, the Constitution of India has provided
enough mechanisms to ensure that the Rule of Law is followed. Through its decisions
the Courts have strived to reinforce these mechanisms and ensure smooth justice

38 See also supra, 15-19, Development of Administrative Law.


29
delivery to all citizens. Recent aggressive judicial activism can be seen as a part of
the efforts of the Constitutional Courts in India to establish rule-of-law society, which
implies that no matter how high a person, may be the law is always above him.
Court is also trying to identify the concept of rule of law with
human rights of the people. The Court is developing techniques by which it can force
the government not only to submit to the law but also to create conditions where
people can develop capacities to exercise their rights properly and meaningfully.
The public administration is responsible for effective implementation of rule of law
and constitutional commands, which effectuate fairly the objective standards laid
down by law. Every public servant is a trustee of the society and is accountable for
due effectuation of constitutional goals. This makes the concept of rule of law highly
relevant to our context.

BIBLIOGRAPHY

Books
1. Dr. J. J. R. Upadhyaya, Administrative Law
Websites
30

1. https://www.lawteacher.net/free-law-essays/administrative-
law/origin-and-concept-of-rule-of-law-administrative-law-
essay.php
2. https://www.lawteacher.net/free-law-essays/constitutional-
law/introduction-concept-of-rule-law-essays.php#ftn1
3. https://www.lawctopus.com/academike/rule-of-law-in-india/
4. http://www.legalserviceindia.com/article/l459-Rule-of-
law.html
5. http://www.legalservicesindia.com/article/article/rule-of-law-
in-india-1403-1.html
6. https://www.lawctopus.com/academike/rule-of-law-in-india-
2/
7. https://www.scribd.com/document/238923251/Indian-
Democracy-and-Rule-of-Law
8. https://www.lawteacher.net/free-law-essays/english-legal-
system/the-rule-of-law-in-uk.php
9. https://www.usconstitution.net/consttop_duep.html