P. 1
rule of law

rule of law

|Views: 203|Likes:
Page |1

The term 'rule of law* means the principled of legality which refers to a government based on principles of and not of men. In this sense the concept of the rule of law is opposed to arbitrary powers. Rule of law is one of the basic principles of the English Constitution: This doctrine has been enshrined in the Constitution of U. S.A. and in the Constitution of India as well. The entire basis of administrative law is the concept of rule of law . Sir Edward Coke, The Chief Justic
Page |1

The term 'rule of law* means the principled of legality which refers to a government based on principles of and not of men. In this sense the concept of the rule of law is opposed to arbitrary powers. Rule of law is one of the basic principles of the English Constitution: This doctrine has been enshrined in the Constitution of U. S.A. and in the Constitution of India as well. The entire basis of administrative law is the concept of rule of law . Sir Edward Coke, The Chief Justic

More info:

Categories:Types, Business/Law
Published by: Gurpreet Singh Mandair on Aug 18, 2011
Copyright:Attribution Non-commercial


Read on Scribd mobile: iPhone, iPad and Android.
download as DOCX, PDF, TXT or read online from Scribd
See more
See less





Page |1

The term 'rule of law* means the principled of legality which refers to a government based on principles of and not of men. In this sense the concept of the rule of law is opposed to arbitrary powers. Rule of law is one of the basic principles of the English Constitution: This doctrine has been enshrined in the Constitution of U. S.A. and in the Constitution of India as well. The entire basis of administrative law is the concept of rule of law . Sir Edward Coke, The Chief Justice in James I's reign is said to be the originator, of this great principled. In a battle against the King, he succeeded in maintaining that the King must be under the God and the law and thus vindicated the supremacy of law against the executive. Dicey developed, this doctrine of Coke in his classic book, 'The Law and the Constitution' published in the year 1885.

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. 1 Garner2 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". The expression "Rule of Laio" is said to have been derived from the French maxim "la principe de legalite", which broadly means "government based on principles of law and not of men". "Ride of Law" in this sense, is a concept opposed to arbitrary or tyrannical power.

It signifies that nobody should be deprived of his rights and liberties by - any administrative action; that the administration should perform its functions according
1 2

Ex-Attorney General Mr. Mannigham Buller, quoted in S. Rajagopalan, Administrative Law, 1970, 57. Administrative Law, 1983, 9.

Page |2

to law and not arbitrarily; that the supremacy of the Courts be upheld, to fully secure the judicial control of Administrative Law. According to Prof. Goodhart, 3 the essence of "Rule of law" is that "public officers are governed by law, which limits their powers. It means government under law²the supremacy of law over the government is distin ct from government by law²the mere supremacy of law in society generally which would apply also, to totalitarian States." To put it in short, "Rule of Law" implies a state of affairs, where there is absence of arbitrary powers, where law is observed by everyone including the Government and its officers, where the action of the administration is backed by law, where every man is equal before law and assured that he will not be punished except for violation of law, where cases relating to violation of law or disputes as to rights and duties, are decided by impartial and independent Courts or Tribunals. 4

Wade & Forsyth, 5 assign four meanings to "rule of law". Its primary meaning is that "everything must be done according to law". It requires that every government authority must be able to justify its action as authorized by law. And, that the affected person may always resort to the Court of law and if the legal pedigree is not found to be perfectly in order, the Court will invalidate the act. It is called the principle of legality.

Therefore, "rule of law" means that "government should be conducted w ithin a framework of recognized rules and principles which restrict discretionary power." It is the secondary meaning of the rule of law, say the learned writers. They refer to Edward Coke's description of "rule of law" as "the golden and straight metwand of law, as opposed to the uncertain and crooked cord of discretion. "6

The third meaning of "rule of law", a corollary drawn from its first meaning, Wade & Forsyth say, is that disputes as to the legality of acts of government, are to be decided by Judges who are independent of the Executive. The right to carry a dispute with the government before the ordinary Courts, manned by Judges of the
Prof. A.L. Goodhart, The Rule of Law and Absolute Sovereignty , 106 UPLR, (1958), 943. See also K.C. Davis, supra, note 11. 5 Administrative Law, 2007, 20-24. 6 Sir Edward Coke was the Chief Justice in the Court of James I. He was credited with being the originator of the concept of rule of law .
4 3

Page |3

highest independence, is, according to the learned writers, an important element in the Anglo-American concept of the rule of law.7 The law should be even-handed between the Government and citizen. That, the Government should not enjoy unnecessary privileges or exemptions from ordinary law. That, "all public authorities", in principle, "should be subject to all normal legal duties and liabilities which are not inconsistent with their governmental functions". It is the fourth meaning assigned to the concept of "rule of law. "8 Besides the above four meanings of "rule of law" which may be said to be the principles for the maintenance of the "rule of law", what is most essential is the establishment of "representative democracy", providing for beneficial social and economic services and conditions, personal independence, along with the principle of "minimal interference." 8 In England, Sir Edward Coke, the Chief Justice during James I reign, was credited with being the originator of the concept of 'rule of law'. In the battle royal which he waged against the King, Coke maintained successfully that the King must be under God and the Law and thus vindicated the supremacy of law over the pretensions of the Executive.

A.V. Dicey developed the concept in the course of his lectures at the Oxford University. He laid stress on the fact that Englishman could be punished for a breach of the law and for nothing else. Dicey developed his thesis in his classic work entitled ³The 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
7 8

Id., 22. Id., 22.

Page |4

prerogative or even wide discretionary authority on the part of the Government. According to him the English men 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. 9 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." 10 As Wade11 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 prin ciple 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."12 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 law and providing them with the special tribunals was the negation of equality. Of course, Dicey himself saw that administrative authorities were exercising 'judicial' func tions

The Law and the Constitution, 1915, p. 202. Id., p. 184. 11 Administrative Law, 1994, pp. 34-36. 12 Dicey, supra, note 16.

Page |5

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 Dicey 13, 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 Denning 14: "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 Con stitution is not the source but the consequence of the rights of the indi viduals. 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 a document, as in the latter case, they can be ignored, curtailed or trampled upon. He stated: ³the Law of the Constitution, the rules
13 14

Cited by V.G. Ramachandran: Administrative Law, 1984. Ministry of housing v. Sharp, (1970) 2 QB 223(226)

Page |6

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.´

Dicey's formulation of the concept of "rule of law" has been subjected to criticism on various counts. While explaining the contents of his doctrine of "Rule of Law", Dicey not only excluded "discretionary powers" but also insisted that the administrative authorities should not be given wide discretionary powers. He believed that "wherever there is discretion there is room for arbitrariness." Dicey, thus, failed to distinguish arbitrary powers from discretionary powers. While arbitrary power is said to be inconsistent with the concept of "Rule of Law", discretionary power would not be, if it is exercised properly. Intensive Government as it exists in modem times, say Wade & Forsyth 15 "cannot be carried on without a g reat deal of discretionary power" and that this power "is often conferred in excessively sweeping language". Besides, Dicey ignored the privileges and immunities enjoyed by the Crown (which term stood for the Executive) under the cover of the Constitutional maxim "King can do no wrong". Dicey, therefore, say Jain & Jain, was factually wrong in his analysis, though his exposition of "Rule of Law" has had a tremendous impact on the growth of Administrative Law in England. 16 Dicey's criticism of French system of Administrative Courts is said to be based on his mistaken conclusion. He misunderstood and miscomprehended the real nature of the system. He held that Droit Administratif was designed for the purpose of giving to officials "a whole body of special rights, privileges or prerogatives as against private citizens", 17 so as to make them a law unto themselves. The French Administrative Law, the learned authors assert, "has a system of compensation for the acts of public officers which is in some respect more generous

Supra note 3, 23. Jain and Jain, Principles of Administrative Law, 2008, 13-14. 17 A.V. Dicey, The Law of The Constitution, X, 336.


Page |7

than that of English Law. ´18 It is that, the French Conseil d¶ Etat is widely admired and has served as a model for other countries. 19 Besides, Dicey also ignored the growth of administrative tribunals, 20 quite a few of which had come into existence when he propounded his concept of "rule of law". Later, Dicey himself became conscious of the emergence of Administrative Law in England. The principle implicit in Dicey's "rule of law" thesis is that the Executive must act under the law and not by its own decree or fiat. It is still the core principle of the Common Law system. One thing must be noted. In modern times, Dicey's rule of law has come to be identified with the concept of rights of citizens. As Wade and Phillips 16 rightly state, it is accepted in almost all the countries out side the Communist world with some variations. It is invoked in modern democratic countries to keep control over the oppressive, capricious and arbitrary exercise of powers by the administrative authorities. The Inter national Commission of Jurists, in their 'Delhi Declara tion' made in the year 1959 accepted the idea of the rule of law as a modern form of law of nature. In the ultimate analysis it may be concluded that Dicey¶s contribution to the study of Administrative Law must be acknowledged.

The modern concept of "Rule of Law" was developed by the International Commission of jurists in 1959, 21 which was later on confirmed at Lagos in 1961. The Jurists22 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.

Ibid. See Brown and Bell, French Administrative Law, V, quoted Ibid. 20 For instance, special tribunals were established under the Poor Law Amendment Act, 1834, whereunder poor law boards exercised legislative and adjucatory powers. Besides, there were Ecclesiastical and Admiralty Courts exercising special jurisdiction. 21 It is known as Delhi Declaration, 1959. 22 Ibid.


Page |8

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. 23 The modern concept of the Rule of Law is fairly wide. Davis24 gives seven principal meanings of the term Rule of Law: ² (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.

The term 'rule of law' can be used in two senses: formal sense, and ideological sense. In purely formal sense the rule means no more than organised public power. In this sense the rule of law refers to the rule of organisation. In purely formal sense, any system of norm based on a hierarchy of orders, even the organised mass murders of Nazi Regime qualify as law. In ideological sense, the rule of law sets an ideal for any government to achieve. This concept was developed by the International Commission of Jurists known as Delhi Declaration, 1959.

For a democratic government, rule of law is a basic requirement. The rule of law runs like a golden thread through every provision of the Constitution and indis putably constitutes one of its basic features, which requires that every organ of the state

23 24

Ibid. Administrative Law, 1959, pp. 24-27.

Page |9

must act within the confines of powers conferred upon it by the Constitution and the law. The rule of law pervades over the entire field of administration. 25 Rule of law permeates the entire fabric of the Indian Constitution a nd indeed forms one of its basic features. 26 Law in the context of the rule of law does not mean any law enacted by the legislative authorities, however arbitrary or despotic it may be ...............what is necessary element of the rule of law is that law must no t be arbitrary or irrational and it must satisfy the test of reason and the d emocratic form if the polity seeks to ensure this element by making the frame of law accountable to the people." 27 Even law can promote arbitrary power. Law and rule of law are two different concepts. As Justice Khanna emphasised in his celebrated dissentin g opinion in the Habeas corpus case,28 "A state of negation of rule of law would not cease to be such a state because of the fact that such a state of negation of rule of law has been brought about by statute.´ Every organ of the administration is regulated by the rule of law. The Indian Constitution embodies the modern concept of the rule of law. The concept of the rule of law exists in this country by virtue of the following features: 1) Supremacy of the constitution . - Dicey¶s doctrine of the rule of law has been accepted and embodied in the Constitution of India. In the Preamble are enunciated the ideals of justice, liberty and equality. These concepts are enshrined in the Part III as fundamental rights and are made enforceable. The Constitut ion is supreme 29 and all the three organs of the government, that is legislature, executive and judiciary are subordinate to and have to act in accordance with it. The principle of judicial review is enshrined in the Constitution and subject can approach High Courts and Supreme Court for enforcement of Fundamental Rights guaranteed under the Constitution. Supreme Court under Art. 32 and High Court under Art. 226 can issue writs for enforcement of the Fundamental Rights. If the executive or the government abuses the powers conferred on it or if the action is mala fide, the same can be quashed by the ordinary courts. All rules, regulations,
A.K. Kraipak v. Union of India, AIR 1970 SC 150. Bachan Singh v. State of Punjab, AIR 1982 SC 1336. 27 Bachan Singh v. State of Punjab, AIR 1982 SC 1336. 28 ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207. 29 AK Gopalan v. State of Madras, AIR 1950 SC 27.
26 25

P a g e | 10

ordinances, bye-laws, notifications, customs and usages are laws within the meaning of Art.13 of the Constitution. If they are Inconsistent or contrary to any provision of the Constitution, they can be declared ultra vires by the Supreme Court and the High Courts. No person shall be deprived of his life or personal liberty except according to the procedure established by law. 30 The executive and legislative powers of the State and the Union are required to be exercised according to the provisions of the Constitution. The government and public officials are not above law. 2) Constitutional requirement o f equality. - Equality before law as a postulate of rule of law has been accepted and adopted under Art 14 of the C onstitution. The maxim µthe king can do no wrong' has no application in I ndia. The government and public authorities are subject to the jurisdiction of ordinary courts of law and for similar wrongs are to be tried and penalized similarly. In Som Raj v. State of Haryana31 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 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. ´ 3) Rule of law as a feature of basic structure. - In Kesvananda Bharti v. State of
Kerala 32 some of the judges constituting majority were of the opinion that the Rule of

law was an "aspect of the doctrine of basic structure of the Constitution, which even the plenary power of Parliament cannot reach to amend." In Indira Nehru Gandhi v. Raj Narain ,33 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, the following facets of "Rule of Law" may be culled out²

30 31

Art. 21. (1990) 2 SCC 653. 32 AIR 1973 SC 1461. 33 AIR 1975 SC 2299.

P a g e | 11

²that, 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,34 ²that, 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, 35 ²that, 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.36

4) Elimination of arbitrariness, and not of discretion. - Expounding the concept of rule of law in Supreme Court Advocate-on-Record Association v. Union of India 37, 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 con stitutional 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 are as 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, ac cording to proper guidelines, or norms further reduces the area of discretion, but to that extent discretionary authority h as to be given to make the system workable . Judicial activism as valiant enterprise is seen as a part of the efforts of Constitutiona l 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


Id., para 336, per Mathew, J. (Emphasis added). Id., para 623, per Beg, J. (Emphasis added). 36 Id., para 59, per Ray, C.J. 37 AIR 1994 SC 268.

P a g e | 12

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 l aw, the only negative aspect of the concept is that respect for law degenerates into rigidity of legalism which is injurious to the nation.

Administrative Law, broadly speaking, deals with the composition and powers of the different organs of administrat ion; the limits of their powers; the methods and procedures followed by them in exercising their powers and functions; the various 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. 38 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 government¶s 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 ³Rule 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 ³Rule 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 ³ Rule of Law´. 39 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.

38 39

Jain and Jain, supra note 27, 12. Harry W. Jones, The Rule of Law and The Welfare State, 58 Col. LR 143 (1958).

P a g e | 13

Wade and Forsyth state that the concept of ³Rule 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 .40

In the ultimate analysis, it may be stated that both ³Rule 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 controlling it through procedures and other means. ³Administrative Law´ thus does not infringe, but on the other hand, promotes ³Rule of Law´. 41

40 41

Wade and Forsyth, supra note 3, 20-24. See also supra, 15-19, Development of Administrative Law .

You're Reading a Free Preview

/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->