RULE OF LAW

Constitution of India:

Article 14. “Equality before law. – The State shall not deny to any person equality before
law or equal protection of laws within the territory of India.‖

1. Rule of law embodies the doctrine of supremacy of law. It is a basic and fundamental necessity
for a disciplined and organized community. Sir Edward Coke, CJ in James I’s reign, was the
originator of this concept. Dicey developed this theory of Coke’s in his classical work ‘The Law
and the Constitution’ published in the year 1885. “Rule of law”, said Dicey, means:
i. “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 govt.
Englishmen are ruled by the law, and by the law alone; a man may with us be
punished for a breach of law, but he can be punished for nothing else.
ii. There must be equality before the law, or the equal subjection of all classes to
the ordinary law courts; the ‘rule of law‘in this sense excludes the idea of any
exemption of officials or others from the duty of obedience to the law which
governs other citizens or from the jurisdiction of the ordinary tribunals; there
can be with us nothing really corresponding to the ‘administrative law‘ (droit
administratif) or the ‘administrative tribunals‘ (tribunaux administratifs) of
France. The notion which lies at the bottom of the ’administrative law‘ known
to foreign countries is, that affairs or disputes in which the Government or its
servants are concerned are beyond the sphere of the civil courts and must be
dealt with by special and more or less official bodies. This idea is utterly
unknown to the law of England, and indeed is fundamentally inconsistent with
our traditions and customs.”‖
iii. The role of Courts of law as guarantors of personal liberty (or judge-made
/unwritten constitution), freedom from arrest, freedom to hold public meetings
etc. He stated that the Law of the Constitution, the rules which in foreign
countries naturally form part of a constitutional code, is not the source but the
consequences, of the rights of individuals, as defined and enforced by the
courts. Mere incorporation or inclusion of certain rights in a written
constitution is of little value in the absence of effective remedies of protection
and enforcement. Though the British Constitution is largely unwritten, those
rights are the result of judicial decisions in cases which have actually arisen
between the parties. He attributed the concept of Rule of Law was “equality
before the law or the equal subjection of all classes to the ordinary law of the
land administered by the ordinary law courts.”

DROIT ADMINISTRATIF

Droit Administratif is associated with the name of Napoleon Bonaparte. Before the
Revolution in 1789, there was a constant struggle for power going on in the French politics
between the traditionalist Bonapartists (who supported the executive power even in judicial
matter) and reformist parliaments (who supported the jurisdiction of ordinary courts).
 In France, Droit Administratif is a body of rules which determine the organization and
the duties of public administration and which regulate the relations of the administration with
the citizens of the State. In 1799 Conseil d’Etat was established; the main aim of the institution
was to resolve difficulties which might occur in the course of the administration. Its main task
was to advice the minister with whom the complaint was to be lodged. The minister was the
judge, and Conseil d’Etat administered only advisory justice.
In due course, it started exercising judicial powers in matters involving administration.
In 1872 its formal power to give judgment was established. It laid down, among other things,
the principle that questions of administrative liability would be within the jurisdiction of
administrative courts and that the liability was subject to special rules different from those of
Droit Civil. Droit Administratif does not represent principles and rules laid down by the French
Parliament; it consists of rules developed by the judges of the administrative courts. Droit
Administratif includes three series of rules:
I. Rules dealing with administrative authorities and officials.
II. Rules dealing with the operation of public services to meet the needs of citizens.
III. Rules dealing with administrative adjudication.
Conseil d’Etat is the supreme administrative court. It is not a priori invention but is the product of
historical process. It is not an adjudicatory body but is also a consultative body. There is no Code of
Droit Administratif; the Conseil d’Etat has developed and elaborated the doctrines on its own. In
case of conflict between the ordinary courts and the administrative courts regarding jurisdiction, the
matter is decided by the Tribunal des Conflicts. This tribunal consists of an equal number of ordinary
and administrative judges and is presided over by the minister of justice. This has been done neither
to justify the arbitrary powers of the administrative officials nor to narrow the field of citizen’s
liberty but to help citizens against the excesses of the administration.

2. Dicey‘s ―Rule of Law has been criticised by eminent writers. Some observations:

(a) Dicey wrote in the hey-day of laissez-faire and he dealt with the rights of individuals
not with the powers of the administration. Even in 1885, in his analysis he ignored the
privileges and immunities enjoyed by the Crown under the cover of Constitutional
maxim that the king can do no wrong, and also ignored the many statutes which
conferred discretionary powers on the executive which could not be called into
question in ordinary Courts.

(b) The welfare state has changed public law, and consequently delegated legislation
and the exercise of judicial functions by administrative bodies have increased. But
Dicey‘s Rule of Law, which was founded on the separation of powers, fixed public
attention on administrative law and delegated legislation. Dicey dealt with individual
liberty and criticised administrative discretion. But did not deal with the administration
as such, and failed to distinguish between discretion given to public officials by statute
and the arbitrary discretion at one time claimed by the King.

(c) Administrative law existed in England when Dicey‘s book was published in 1885.
England was ruled by means of statutory powers which could not be described as the
powers of the King. All that could be said was that the King had powers, this Minister
had powers and that Minister had powers. In the words of Maitland, England was
becoming a much governed nation, governed by all manner of councils and boards and
officers, central and local, high and low, exercising the powers which had been
committed to them by modern statutes.

(d) In his Law of the Constitution, Dicey did not refer to the prerogative writs of
mandamus, prohibition and certiorari by which superior courts exercised control over
administrative action and adjudication. These writs belong to public law and have
nothing to do with private law, and had he noticed those writs he could not have denied
the existence of administrative law in England.

(e) Dicey‘s picture of the Englishmen protected by the Rule of Law, and the Frenchmen
deprived of that protection because public authorities in France enjoyed privileges and
immunities is now recognised as a distorted picture. An eminent judge, Lord Denning,
has said that far from granting privileges and immunities to public authorities, the
French Administrative Courts exercise a supervision and control over public authorities
which is more complete than which the Courts exercise in England. Dicey himself
showed ―a change of heart‖ in his long Introduction to the eighth edition of the Law of
the Constitution. There, he doubted whether law courts were in all cases best suited to
adjudicate upon the mistakes or the offences of civil servants, and he said that it was for
consideration whether a body of men who combined legal knowledge with official
experience, and who were independent of government, would not enforce official law
more effectively than the High Court. It is a measure of Dicey‘s intellectual integrity that
he abandoned the doctrine of a lifetime and recognized official law, and a special
tribunal substantially on the lines of the Couseil d’Etat, as better suited to enforce that
law than the High Court.

(f) When Dicey maintained that the Rule of Law required ―the equal subjection of all
classes to the ordinary law of the land administered by ordinary courts and that the Rule
of Law was inconsistent with administrative law and administrative tribunals, he created
a false opposition between ordinary and special law, and between ordinary courts and
special tribunals. The two kinds of laws existed even in his day, and ordinary courts, as
well as special tribunals, determined the rights of parties. A law administered by the
courts and by special tribunals is equally the law of the land; the determinations of
courts and of special tribunals are determinations under the law. Dicey himself came to
recognise that it may be necessary to create a body of persons for adjudicating upon the
offences or the errors of civil servants as such adjudication may be more effective in
enforcing official law. As Devlin J., speaking of England, put it, it does not matter where
the law comes from: whether from equity, or common law or from some source as yet
untapped; and it is equally immaterial whether the law is made by Parliament, or by
judges or even by ministers, for what matters is the Law of England.

(g) When Dicey said that wide discretionary authority was inconsistent with the Rule of
Law he might have expressed his political philosophy, but he certainly did not express a
principle of the English Constitution for in fact wide discretionary power existed in
England. Dicey‘s dislike of discretionary power was due, first, to the fear of abuse, and,
secondly, to the belief that the judicial function consists in applying settled principles of
law to the facts of a case, and not in the exercise of discretionary power. Taking the
second point first, the exercise of discretionary power formed then, and forms now, a
large part of the work of regular courts. Thus, where an accused pleads guilty, the only
question which remains is one of punishment, and here the judge has a very wide
discretion. Again, if discretion is opposed to the Rule of Law, a final court with
discretionary power to admit or reject an appeal or an application, would contravene
the Rule of Law, and yet most final courts, including our Supreme Court, possess this
power, and, what is more, exercise it without assigning any reasons. Again, the power to
adjoin a case, to allow an amendment, to condone delay, to award costs are
discretionary powers, and like all discretionary powers may be abused. But the law
confers all necessary discretionary powers notwithstanding the possibility of abuse,
though it is usual to provide safeguards against abuse. But the safeguards are not
always effective. When High Court judges say, ―We prefer to be wrong: you can go to
the Supreme Court after obtaining special leave from it, judicial power is abused, and
the safeguard of an appeal nullified in a practical sense, for an appeal by special leave is
expensive, and if the amount at stake is small, few persons will spend thousands of
rupees to set right a palpably wrong decision. Nor is it enough to say that the judge is
independent and an administrative tribunal is not. First, there is no reason why an
administrative tribunal cannot be made independent of Government. Secondly, in
England, judges of the superior courts are practically irremovable, but judges of
subordinate courts can be removed by the Lord Chancellor for inability or misbehavior,
and Justices of the Peace, who are an essential part of the administration of justice, can
be removed by the Lord Chancellor at pleasure. Again, though in theory, the members
of the Conseil d’Etat in France are removable by the executive, in practice no member
has been removed for rendering judgments unpalatable to the Government, though
many such judgments have been rendered. The ultimate guarantee against abuse of
power, legislative, judicial and executive, lies in the political and legal safeguards against
such abuse, in a vigilant public opinion, and in a sense of justice in the people generally.

(h) The emphasis which Dicey laid on personal freedom from arbitrary arrest and
detention is as true, if not more true, as when Dicey wrote his book. Dicey‘s doctrine
that all classes in the United Kingdom were subject equally to the ordinary law of the
land administered by the ordinary courts was true in the very limited sense that a public
servant was individually liable for a tort or a crime. But equality before the law did not
mean equality of rights and duties. An unpaid tax is a debt due to the State, but the
Income-tax authorities have powers for recovering that debt which private creditors do
not have for the recovery of their debts.

(i) Dicey asserted that his Rule of Law was a principle of the constitution. The modern
version of the Rule of Law takes a different line. The Rule of Law belongs to the realm of
political and moral philosophy, and can be accepted or rejected according as one accepts
or rejects that philosophy. Prof. Jackson rightly observes that the doctrines of the
separation of powers and the Rule of Law give little help in determining the practical
question: what mattes should be assigned to special tribunals and what to courts of law.
Speaking for the Privy Council, Lord Atkin formulated that concept in the following oft-
quoted words:
As the executive, he (i.e. the Governor) can only act in pursuance of the powers
given to him by law. In accordance with British jurisprudence no member of the
executive can interfere with the liberty or property of a British subject except on
the condition that he can support the legality of his action before a court of
justice.
3. Although complete absence of discretionary powers, or absence of inequality, are not possible
in this administrative age , yet Dicey’s concept and the principle implicit in the Rule of Law that
the executive must act under the law, and not by its own decree or fiat, is still a cardinal
principle of the common law system. The executive is regarded as not having any inherent
powers of its own but all its powers flow and emanate from the law. It also serves as the basis of
judicial review of administrative action for the judiciary sees to it that the executive keeps itself
within the limits of law and does not over step the same.

Rule of law in India

4. Rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic
features. We have adopted under our Constitution the British system under which the rule of
law prevails. The maxim “The King can do no wrong” does not apply in India. There is equality
before the law and equal protection of laws (Art 14). Rule of law under the Constitution serves
the needs of the people without infringing their rights and tries to adjust itself from time to time
avoiding authoritative path. Federal structure of the Indian Constitution is founded on certain
fundamental principles and the executive and legislative powers of States and the Union have to
be exercised in accordance with the provisions of the Constitution. Undoubtedly, one of them
being Rule of Law that includes judicial review of arbitrary executive action, [State of M.P. v.
Thakur Bharat Singh, AIR 1967 SC 1170]. The necessary element of the rule of law is that the
law must not be arbitrary or irrational and it must satisfy the test of reason, [Bachan Singh v.
State of Punjab, AIR 1982 SC 1325]. Rule of law requires that any abuse of power by public
officers should be subject to control of the Courts, [St. of Punjab v. Khanchand, AIR 1974 SC
543]. Khanna, J. in his dissent, has stated, “Rule of law is the antithesis of arbitrariness……Rule of
law is now the accepted norm of all civilized societies” [A.D.M. Jabalpur v. S Shukla, AIR 1976 SC
1207].
5. All rules, regulations, ordinances, bye-laws, notifications, customs and usages are “laws” within
the meaning of Art 13 and if they are inconsistent with or contrary to any of the provisions
thereof, they can be declared ultra vires the SC and by the HCs. No person shall be deprived of
his life or personal liberty except according to procedure established by law (Art 21); or of his
property save by authority of law (Art 300A). It has been held that the rule of law is social justice
based on public order. It strikes a balance between society’s needs for political independence,
social equality, economic development and internal order on the one hand, and the needs of
the individual, his personal liberty and his human dignity on the other. It is the duty of the court
to protect this rich concept of the rule of law, [National Legal Services Authority v. UoI, (2014)5 SCC 96]

Case study

The State of M.P. v. Bharat Singh [AIR 1967 SC 1170] did not raise any question about Dicey‘s
Rule of Law, though it did raise a question about the Rule of Law in the strict legal sense. In
Bharat Singh case, it was contended that as the executive power of the State was co-extensive
with its legislative power (Arts 162), an executive order restricting the movements of a citizen
could be passed without the authority of any law, and the Supreme Court‘s decision in Kapur
case [Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225] was relied upon to support the
contention.
 [The Supreme Court could have pointed out, but did not, that the principle of Kapur case
directly negatived the contention when that case held that though the authority of law was not
necessary for Government to carry on trade, such authority was necessary when it became
necessary to encroach upon private rights in order to carry on trade. The Supreme Court
distinguished Kapur case on the ground that it involved no action prejudicial to the rights of
others.]
Bharat Singh case is really disposed of by the court‘s observation that ―every act done by the
Government or by its officers must, if it is to operate to the prejudice of any person be
supported by some legislative authority, for that is the strict legal meaning of the Rule of Law.

State of M. P. v. Thakur Bharat Singh

AIR 1967 SC 1170

Facts in Issue

1. Thakur Bharat Singh is a citizen of India, who is ordinarily resident in Raipur district.
2. On April 24, 1963, the' State of Madhya Pradesh made an order in exercise of powers conferred
by s. 3 of the Madhya Pradesh Public Security Act, 1959 directing the respondent Thakur Bharat
Singh -
(i) that he shall not be in any place in the Raipur district;
(ii) that he shall reside in the municipal limits of Jhabua town, district Jhabua, Madhya
Pradesh, and shall proceed there, immediately on the receipt of this order ; and
(iii) that he shall notify his movements and report himself personally every day at 8 a.m.
and 8 p.m. to the Police Station Officer, Jhabua.‖
3. State of emergency declared on October 20, 1962, by the President under Art. 352 was not
withdrawn or revoked as on Apr 24, 1963.
[The relevant provisions of Section 3 of the Act provides:
(1) ―If the State Government or a District Magistrate is satisfied with respect to any
person that he is acting or is likely to act in a manner prejudicial to the security of the
State or to the maintenance of public order, and that, in order to prevent him from so
acting it is necessary in the interests of the general public to make an order under this
section' the State Government or the District Magistrate, as the case may be, may make
an order -
(a) directing that, except in so far as he may be permitted by the provisions of
the order, or by such authority or persons as may be specified therein, he shall
not be in any such area or place in Madhya Pradesh as may be specified in the
order
(b) requiring him to reside or remain in such place or within such area in
Madhya Pradesh as may be specified in the order and if he is not already there
to proceed to that place or area within such time as may be specified in the
order.
(c) requiring him to notify his movements or to report himself or both to notify
his movements and report himself in such manner, at such times and to such
authority or person, as may be specified in the order ;
(d) imposing upon him such restrictions as may be specified in the order, in
respect of his association or communication with such persons as may be
 mentioned in the order ; (e) prohibiting or restricting the possession or use by
him of any such article or articles as may be specified in the order:
` (2) & (3) ….xxxxxxxxxxxxxxx……
(4) If any person is found in any area or place in contravention of a restriction order or
fails to leave any area or place in accordance with, the requirements of such an order,
then, without prejudice to the provisions of sub-section (5), he may be removed from
such area or place by any police officer.
(5) If any person contravenes the provisions of any restriction order, he shall be
punishable with imprisonment for a term which may extend to One year, or with fine
which may extend to one thousand rupees, or with both." ]

[Section 4 authorises the State to revoke or modify "the restriction order", and Section 5
authorises the State to suspend operation of the "restriction order" unconditionally or upon
such conditions as it deems fit and as are accepted by the person against whom the order is
made. Section 6 requires the State to disclose the grounds of the "restriction order". Section 8
provides that in every case where a "restriction order" has been made, the State Government
shall with in thirty days from the date of the order place before the Advisory Council a copy
thereof together with the grounds on which it has been made and such other particulars as have
a bearing on the matter and the representation, if any, made by the person affected by such
order. Section 9 provides for the procedure of the Advisory Council, and s. 16 requires the State
to confirm, modify or cancel the "restriction order" in accordance with the opinion of the
Advisory Council.”]‖

Back Ground to the Appeal

1. In the view of the learned Judge the provisions of s. 3(1)(a) of the Act were valid and therefore
the directions contained in cl. (i) of the order could lawfully be made by the State, but cls. (b) &
(c) of s. 3(1) of the Act were invalid because they contravened the fundamental freedom of
movement guaranteed under Art. 19 of the Constitution, and therefore the directions contained
in cls. (ii) & (iii) of the order were invalid.
2. Against the order passed two appeals were filed under the Letters Patent of the High Court. A
Division Bench of the High Court held that cls. (a) & (c) of s. 3(1) of the Act were valid, but cl. (b)
of s. 3(1) was not valid because it violated the fundamental guarantee under Art. 19(1) (d) of the
Constitution. The High Court confirmed the order of Shivdayal, J., since in their view the
direction contained in cl. (iii) of the order was "inextricably woven" with the directions in cl. (ii)
and was on that account invalid. Against the order of the High Court, the State of Madhya
Pradesh appealed to the SC.

Issue before the Court

The respondent moved a petition in the High Court of Madhya Pradesh under Arts. 226 & 227 of
the Constitution challenging the order on the grounds, inter alia, that
1) Ss. 3 & 6 and other provisions of the Act which authorised imposition of
restrictions on movements and actions of person were ultra vires in that they
infringed the fundamental freedoms guaranteed under Art. 19(1) (d) & (e) of
the Constitution of India; and
 2) the order was "discriminatory, illegal and violated principles of natural
justice."

Principles of law involved

1. Art. 13(2) of the Constitution prohibits the State from making any law which takes away or
abridges the rights conferred by Part III, and laws made in contravention of Art. 13(2) are to
the extent of the contravention void.
2. Article 358 expressly authorises the State to take legislative or executive action provided such
action was competent for the State to make or take, but for the provisions contained in Part III
of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to
take action to the prejudice of citizens and others.
3. Article 358 which suspends the provisions of Art. 19 during an emergency declared by the
President under Art. 352 is in terms prospective. Article 358 however does not operate to
validate a legislative provision which was invalid because of the constitutional inhibition
before the proclamation of emergency.

Analysis

3. By cl. (ii) of the order the respondent was required to reside within the municipal limits of
Jhabua town after proceeding to that place on receipt of the order. Under cl. (b) of s. 3(1) the
State is authorised to order a person to reside in the place, where he is ordinarily residing and
also to require him to go to any other area or place within the State and stay in that area or
place. If the person so ordered fails to carry 'out the direction, he may be removed to the area
or place designated and may also be punished with imprisonment for a term which may extend
to one year, or with fine, or with both.’
4. The Act it may be noticed does not give any opportunity to the person concerned of being
heard before the place where he is to reside or remain in is selected. The place selected may
be one in which the person concerned may have no residential accommodation, and no means
of subsistence. It may not be possible for the person concerned to honestly secure the means of
subsistence in the place selected.
5. Sub-section 3(1)(b) of the Act does not indicate the extent of the place or the area, its distance
from the residence of the person extended and whether it may be habitated or inhabitated; the
clause also nowhere provides that the person directed to be removed shall be provided with
residence, maintenance or means of livelihood in the place selected. In the circumstances agree
with the High Court that cl. (b) authorised the imposition of unreasonable restrictions insofar as
it required any person to reside or remain in such place or within such area in Madhya Pradesh
as may be specified in the order.
6. If the power conferred by s. 3(1) (b) authorised the imposition of unreasonable restrictions, the
clause must be deemed to be void, for Art. 13(2) of the Constitution prohibits the State from
making any law which takes away or abridges the rights conferred by Part III, and laws made in
contravention of Art. 13(2) are to the extent of the contravention void. Section 3(1) (b) was
therefore void when enacted and was not revived when the proclamation of emergency was
made by the President. Since the clause is not severable, it must be struck down in its entirety as
unreasonable. If it is intended to restrict the movements of a person and to maintain
supervision over him, orders may appropriately be made under cls. (c) and (d) of S. 3(1) of the
Act.
 7. All executive action which operates to the prejudice of any person must have the authority of
law to support it and the terms of Art. 358 do not detract from that rule. Article 358 expressly
authorises the State to take legislative or executive action provided such action was
competent for the State to make or take, but for the provisions contained in Part III of the
Constitution. Article 358 does not purport to invest the State with arbitrary authority to take
action to the prejudice of citizens and others; it merely provides that so long as the
proclamation of emergency subsists laws may be enacted, and executive action may be taken
in pursuance of lawful authority which if the provisions of Art. 19 were operative would have
been invalid.
8. Our federal structure is founded on certain fundamental principles:
(1) the sovereignty of the people with limited Government authority i.e., the
Government must be conducted in accordance with the will of the majority of the
people. The people govern themselves through their representatives, whereas the
official agencies' of the executive Government possess only such powers as have been
conferred upon them by the people;
(2) There is distribution of powers between the three organs of the State-legislative,
executive and judicial – each organ having some check direct or indirect on the other;
and
(3) the rule of law which includes judicial review of arbitrary executive actions.
9. We have adopted under our Constitution not the continental system but the British system
under which the rule of law prevails. Every Act done by the Government or by its officers must,
if it is to operate to the prejudice of any person, be supported by some legislative authority.

[As pointed out by Dicey in his Introduction to the Study of the Law of the Constitution",
(10th Edn., at p. 202) the expression "rule of law " has three meanings, or may be
regarded from three different points of view. "It means, in the first place, 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 of wide
discretionary authority on the part of the government." At p. 188 Dicey points out : "In
almost every continental community the executive exercises far wider discretionary
authority in the matter of arrest, of temporary imprisonment, of expulsion from its
territory, and the like, than is either legally claimed or in fact exerted by the government
in England and a study of European politics now and again reminds English readers that
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.” ]

Held

10. The order made by the State in exercise of the authority conferred by s. 3(1)(b) of the Madhya
Pradesh Public Security Act of 1959 was invalid and for the acts done to the prejudice of the
respondent after the declaration of emergency under Art. 352 no immunity from the process of
the Court could be claimed under Art. 358 of the Constitution, since the Order was not
supported by any valid legislation.