ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW

AMITY LAW SCHOOL

LUCKNOW

ADMINISTRATIVE LAW

DOCTRINE OF RULE OF LAW

SUBMITTED TO: SUBMITTED BY:

MR. ASHUTOSH SHUKLA MAYURIGUPTA
B.A;LL.B(H) ;IV(B)
A8111111069

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 ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW

ACKNOWLEDGEMENT

The assignment work bears the imprint of many people, and I express my
gratitude to all those who have helped me and rendered their help in all the
possible ways in a completion of my assignment.

No work can be successful without the guidance and blessing of elders and this
work is no exception. It is a matter of immense pleasure to express my gratitude
to my faculty Honble Mr. Ashutosh Shukla for his guidance and excellent
insights which gave direction and focus to this paper. I thank him for lending his
precious time in making this assignment an authentic piece of work.

I also owe sincere gratitude to the staff at library for always helping in the process
of finding material and other sources for research. I am very grateful to my
seniors and all the individuals involved in the subgroup for their contributions and
assistance in compiling this assignment and the recommendations that go with it:
they are the outcome of an open, interactive and creative cooperation.

I also thank social networking site for searching the required information in
precise and as per needed. How I can forget to give credit and my satisfaction to
my friends.. My sense of gratitude is due to AMITY LAW SCHOOL,
LUCKNOW.

At last, I express my heartfelt gratitude to the God Almighty, without whose

blessing and motivation, the completion of this assignment would have been
impossible.

Thanks to all.......

Mayuri Gupta

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 ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW

CONTENTS

INTRODUCTION......................................................................4
SUPREMACY OF LAW...........................................................5
EQUALITY BEFORE LAW.....................................................6
PREDOMINANCE OF LEGAL SPIRIT/JUDGE-MADE
CONSTITUTION.......................................................................7
DEVELOPMENT OF RULE OF LAW IN INDIA...................8
CONCLUSION..........................................................................9

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 ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW

INTRODUCTION

"The King himself ought not to be subject to man, but subject to God and the law,
because the law makes him King"1. Sir Edward Coke2

Rule of law is one of the basic principles of English Constitution accepted in the
United States and Indian Constitution. Originated by Sir Edward Coke, it is the
entire basis of administrative law. Against the King, he maintained successfully
that the King should be under God and the Law, and established the supremacy of
law against the executive. This theory of Coke was further developed by A.V.
Dicey in his classic work on the British Constitution The Law and the
Constitution published in the year 1885.3

Dicey believed the rule of law to be one of the fundamental principles of

the English legal system and in the said book he attributed three distinct
meanings/ideas to the doctrine:

I. Supremacy of Law

II. Equality before Law

III. Predominance of Legal Spirit/Judge-made Constitution

Dicey asserted that the above mentioned features existed in the British
Constitution.

1 Proclamations (1610) 77 ER 1352

2 Sir Edward Coke, Chief Justice in King James Is reign, the originator of the concept of Rule of Law.
3 DICEY, A.V., INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, CHAPTER
4 (X ed.)

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 ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW

SUPREMACY OF LAW

According to Dicey, the 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 prerogative
or even wide discretionary power 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.4

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 subject.5

As Wade6 says, The rule of law requires that the government should be subject to
the law, rather than the law subject to the government.

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 describes this principle as the central and the most characteristic feature
of common law.7

4 The Law of the Constitution (1915) 202.

5 Ibid, 184.
6 Wade & Forsyth, Administrative Law (2009) 17-21, 286-287.
7 Takwani, C. K; Lectures on Administrative Law; p. 20.

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 ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW

EQUALITY BEFORE LAW

Dicey stated that there must be equality before the law or the equal subjection of
all the 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 separate tribunals or special courts for officers of the
government and other authorities.

He criticised the French legal system of droit administratif in which there were
distinct administrative tribunals for deciding cases between the officials of the
State and the citizens. He believed that the exemption of the civil servants from
the jurisdiction of the ordinary courts of law and providing them with special
tribunals was the negation of equality.

He proclaimed8:

With us every official from the Prime Minister down to a constable or a collector
of taxes is under the same responsibility of every act done without legal
justification as any other citizen.

Dicey stated9 that any encroachment on the jurisdiction of the courts and any
restriction on the subjects unimpeded access to them are bound to jeopardise his
rights. Lord Dennings observed,Our English Law does not allow a public officer
to shelter behind a droit administratif.10

8 Supra 4.
9 V.G.Ramachandran, Administrative Law (1984) 6.
10 Ministry of Housing and Local Govt. v. Sharp, (1970)2 QB 223, 226: (1970) 2 WLR 802 (CA).

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 ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW

JUDGE-MADE CONSTITUTION

Dicey stated that in many countries rights such as right to personal liberty,
freedom from arrest freedom to hold public meetings, etc are guaranteed by a
written Constitution; in England, it is not so. Those rights are the result of judicial
decisions in concrete cases which have actually arisen between the parties. Thus,
Dicey emphasised the role of the courts of law as guarantors of liberty and
suggested that the rights would be secured more adequately if they were
enforceable in the courts of law than by mere declaration of those rights in
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.

There is in the English Constitution an absence of those declarations or

definitions of rights so dear to foreign constitutionalists...Our Constitution, in
short, is a judge-made Constitution and it bears on its face all the features, good
and bad, of a judge-made law.

The British Constitution though largely unwritten, is based on the separation of

powers. Mere incorporation or inclusion of certain rights in the written
Constitution is of little value in the absence of effective remedies of protection
and enforcement.

Dicey propounded:

Habeas Corpus Acts declare no principle and define no rights, but they are for
practical purposes worth a hundred constitutional articles guaranteeing
individual liberty.11

11 The Law of the Constitution (1915) 195.

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 ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW

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 Punjab12 and A.D.M Jabalpur13. A significant
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.14

In the case of Golaknath v. State of Punjab15 it was held that rule of law under
the constitution serves the needs of people without undoubtedly infringing their
rights. It recognises social reality and adjusts to social requirement as required
time to time. In A.K. Kraipak v. Union of India16 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. Khanchand17 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 Gujrat18 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.19

12 AIR1982 SC 1325, para 9

13 AIR 1976 SC 1207,para 220
14 Jaisinghani v. Union of India, AIR1967 SC 1643
15 AIR 1967 SC 1836
16 AIR 1970 SC 150
17 AIR 1974 SC 543
18 AIR 2004 SC 3114
19 Darayo vs State of UP, AIR 1967 SC 1457.

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 ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW

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, shouldnt
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 shouldnt be staged inferior to one another
and basic constitutional principles must be followed for the most optimum
solution.

BIBLIOGRAPHY

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 ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW

C.K.TAKWANI; LECTURES ON ADMINISTRATIVE LAW

M.P.JAIN; ADMINISTRATIVE LAW

M.P.JAIN; INDIAN CONSTITUTIONAL LAW

J.N.PANDEY; THE CONSTITUTIONAL LAW OF INDIA

www.indiankanoon.com

www.scconline.com

www.legaltrigger.com

www.sscnonline.com

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