ADMINISTRATIVE LAW PROJECT

ON

“RULE OF LAW”
(SESSION :2018-19)

SUBMITTED TO: SUBMITTED BY:

DR. JASNEET WALIA
AASTHA DHAWAN, 121/17
DEEPIKA DHEMLA, 135/17
DIKSHA VOHRA,138/17
GAURI, 143/17
MADHVI, 160/17
MUSKAAN GUPTA, 169/17
NANDINI GUPTA, 172/17

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 ACKNOWLEDGEMENT

We would like to take this opportunity to express our profound gratitude and deepest regards to
our professor of Administrative Law, Dr. Jasneet Walia, for reposing immense faith in us while
assigning us this topic, and for her exemplary guidance, monitoring and constant encouragement
throughout the course of this project. The blessing, help and guidance given by her shall carry us
a long way in the journey of our life.

We also take this opportunity to express a deep sense of gratitude to the librarian staff, for their
cordial support, valuable information and guidance, which helped us in completing this task.

AASTHA DHAWAN, 121/17

DEEPIKA DHEMLA, 135/17

DIKSHA VOHRA,138/17

GAURI, 143/17

MADHVI, 160/17

MUSKAAN GUPTA, 169/17

NANDINI GUPTA, 172/17

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 TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 6
MEANING ...................................................................................................................................... 6
OTHER VIEWS ON RULE OF LAW – .................................................................................... 7
FORMAL AND IDEOLOGICAL MEANING OF THE TERM ‘RULE OF LAW’ ................. 9
RULE OF LAW VIS-À-VIS ADMINISTRATIVE LAW ........................................................... 11
DICEY’S PRINCIPLES ............................................................................................................... 13
1. SUPREMACY OF LAW: ..................................................................................................... 13
2. EQUALITY BEFORE LAW ................................................................................................ 14
3. PREDOMINANCE OF LEGAL SPIRIT .............................................................................. 15
CRITICISM ............................................................................................................................... 16
CONCLUSION ......................................................................................................................... 17
VIABILITY OF DICEY’S RULE OF LAW IN 21ST CENTURY ............................................. 18
ROLE OF JUDICIARY IN MAINATINING RULE OF LAW ................................................... 19
RULE OF LAW UNDER THE INDIAN CONSTITUTION ....................................................... 21
RULE OF LAW AS PART OF THE BASIC STRUCTURE ................................................... 23
RULE OF LAW AND INDIAN JUDICIARY ............................................................................. 27
RULE OF LAW IN UNITED STATES ....................................................................................... 31
HISTORY OF RULE OF LAW ................................................................................................ 31
THE BASIC PRINCIPLES OF THE AMERICAN CONSTITUTION ................................... 36
OVERVIEW OF THE MODERN CONCEPTION OF THE RULE OF LAW ....................... 38
HOW IS THE RULE OF LAW APPLIED DIFFERENTLY IN OTHER COUNTRIES? .......... 41
RULE OF LAW IN UNITED KINGDOM .................................................................................. 43
THE GREAT CHARTER: MAGNA CARTA ......................................................................... 43
CONCLUSION ......................................................................................................................... 46
STUDY OF CASE: MANEKA GANDHI VS. UNION OF INDIA ............................................ 47
INTRODUCTION ..................................................................................................................... 47
LEGISLATIVE HISTORY OF ARTICLE 21: ......................................................................... 47
BRIEF FACTS OF THE CASE – ............................................................................................. 49

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 PETITIONER’s ARGUMENTS ............................................................................................... 50
RATIO DECIDENDI OF THE CASE – ................................................................................... 51
OBITER DICTA OF THE CASE – .......................................................................................... 54
JUDGEMENT ........................................................................................................................... 56
CRITICAL ANALYSIS ............................................................................................................ 57
CONCLUSION ......................................................................................................................... 60
BIBLIOGRAPHY ......................................................................................................................... 62

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 CASES
ADM Jabalpur v. Shivakant Shukla AIR 1976 2 SCC 521 ........................................................................ 25
Amlan Jyoti Borooah Vs.State of Assam AIR 2006 SC 387 ...................................................................... 28
Bachan Singh v. State of Punjab AIR 1980 SC 898 ................................................................................... 29
Bhopal Gas Leak Case, AIR (1989) (1) SCC 674 ...................................................................................... 18
Chief settlement Commr; Punjab v. Om Prakash, SCC 1969 AIR 33 ........................................................ 27
Golaknath v. State of Punjab, 1967 AIR 1643 ........................................................................................... 22
Indira Nehru Gandhi v. Raj Narain 1975 SCC 159 ................................................................................... 23
Keshavananda Bharti v. State of Kerala AIR 1973 SCC 225 .................................................................... 22
MC Mehta v. Union of India , 1987 SCR(1) ............................................................................................. 18
Olga Tellis v. Bombay Municipal Corporation , AIR 1986 SC 180 ........................................................... 18
R. v. Home Secretary ex. p. Pierson, (1998) AC 539 ................................................................................. 43
Raman Dayaram Shetty v. International Airport Authority of India 1979 AIR 1628 ............................... 24
re: Arundhati Roy 2003 AIR 726............................................................................................................... 24
Sajjan Singh v. State of Rajasthan 1965 AIR 845,1965 SCR(1)933 ......................................................... 22
Secretary, State of Karnataka and Ors. v. Umadevi and Ors AIR 2006 SC 1806 ....................................... 28
Shankari Prasad v. Union of India AIR 1951 SC 455................................................................................. 21
Sheela Barse v. State of Maharashtra AIR 1983 2 SCC 96 ....................................................................... 25
Som Raj v. State of Haryana 1990 AIR 1176 ............................................................................................. 26
Sukhdev v. Bhagatram, AIR 1975 SC 1331 ............................................................................................... 28
Union of India v. President, Madras Bar Association AIR 2013 SC 1072 ................................................. 21
Union of India v. Raghubir Singh SCC 1989 AIR 1933............................................................................. 26
Veena Sethi v. State of Bihar AIR 1982 2 SCC 583................................................................................. 25

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 INTRODUCTION
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. Rule of law remains
a constant theme in development policy and practice, and in recent policy discourse and
international commitments it has gained new levels of prominence. Of course, rule of law and
justice are concepts that have been bandied around for many decades, gaining ground at different
times, for different reasons, and following (more or less) shifting normative orientations and
goals across a range of development policy agendas.

The term ‘rule of law’ means the principles of legality which refers to a government based on
principles of law and not of men. In this sense, the concept of 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 9n 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 principle. 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.

MEANING
The term “Rule of Law” is derived from the French phrase ‘La Principe de Legality’ (the
principle of legality) which refers to a government based on principles of law and not of men. In
a broader sense, Rule of Law means that Law is supreme and is above every individual. No
individual whether if he is rich, poor, rulers or ruled etc are above law and they should obey it. In
a narrower sense, the rule of law implies that government authority may only be exercised in
accordance with the written laws, which were adopted through an established procedure. The
principle of Rule of Law is intended to be a safeguard against arbitrary actions of the government
authorities. The rule of law has been described as a “rare and protean principle of our political
tradition”.

The rule of law centrally comprises “the values of regularity and restraint, embodied in the
slogan of “‘a government of laws, not men’”. It does not provide anything about how the laws
are to be made, or anything specific like the Fundamental Rights or the Directive principles or

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equality etc. but it provides for two basic concepts, i.e., Law must be obeyed by the people and
that the law must be made in such a way that it is able to guide the behaviour of its subjects.

The expression ‘rule of law’ was given prominence by Dicey. According to him, the rule of law
is one of the cardinal principles of the English Legal System. He attributed the following three
meanings to the doctrine :

 Supremacy of law.
 Equality before law, and
 Predominance of legal spirit.

OTHER VIEWS ON RULE OF LAW –

For Professor E.C.S. Wade1, the basic assumption of the rule of law is the absence of arbitrary
power on the part of the government. According to him, its primary meaning is that everything
must be done according to law. Applied to the powers of government, this requires that every
government authority which does some act which otherwise would be wrong (such as, taking a
man’s land) or which infringes a man’s liberty must be able to justify its action as authorised by
law ...... The secondary meaning of the rule of law is that government should be conducted
within a framework of recognised rules and principles which restrict discretionary powers. 2
Moderating the Dicey’s meaning in the present day context, Prof Wade includes under the rule of
law-effective control of and proper publicity for delegated legislation particularly when it
imposes penalties that should as far as practicable be defined; every man should be responsible
to the ordinary laws whether he be private citizen or public officer, that private rights should be
determined by impartial and independent tribunals and that fundamental private rights are
safeguarded by the ordinary laws of the land". The rule of law, he adds, is reconciled into the
supremacy of Parliament by the independence of the judiciary, but the independence of the
judiciary. from one point of View, is generally regarded as forming part of the rule of law and
from another point of view is itself secured merely by Act of Parliament.

The essence of rule of law, according to Prof. A.L. Goodhart, is that public officers are governed
by law, which limits their powers. It means government under law- the supremacy of law over
the government is distinct from government by law-the mere supremacy of law in society
generally which would apply also to totalitarian States.3

John Finnis says that by ‘rule of law’ is meant a system in which (i) its rules are prospective, (ii)
possible to comply with, (iii) promulgated, (iv) clear, (v) coherent with each other, (Vi)
sufficiently stable, (vii) the making of decrees and orders is guided by rules that are themselves

1
Wade and Phillips – Constitutional Law (7th ed.) pp 74-75.
2
Wade – Administrative Law, 4th ed. p. 23.
3
The Rule of Law and Absolute Sovereignty, (1958) 106 University Pennsylavania Law Review.

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promulgated, clear, stable and relatively general, (viii) those who administer rules are
accountable for their own compliance with rules relating to their activities and who perform
these consistently and in accordance with law.

Sir Ivor Jennings would equate the rule of law with democracy as understood by the liberal
tradition. It demands in the first place that the powers of the executive should not only be derived
from the law (as Dicey said) but that they should be limited by law. Every political authority
except perhaps Parliament is subject to considerable limitations.

English law in its history and substance has undoubtedly, exhibited a great respect for the
concept and the application of the rule of law. The rule of law hitherto has been regarded largely
to concern with the negative ideals, e.g., protecting the individuals from arbitrary powers, but it
has recently moved on to positive plane mainly because of the report of International
Commission of .Jurists which met in 1959 at New Delhi. The report emphasized a more positive
approach to rule of law. It lays emphasis not only on the provisions of adequate safeguard
against abuse of power but also on the existence of effective government capable of maintaining
law and order and of achieving such social, economic conditions as will ensure reasonable
economic security, social welfare and education for the mass of the people. The Report may be
summarised as follows :

(a) The function of the Legislature in a free society under the rule of law is to create and
maintain the conditions which will uphold the dignity of man as individual. The dignity requires
not only recognition of his civil and political rights but also establishment of the social,
economic, educational and cultural conditions which are essential to the development of his
personality. It further emphasized that the State should not pass discriminatory laws, it should
not interfere with the religious beliefs of its people and it should not resort to undue restrictions
of their freedoms.

(b) The rule of law depends not only on the provisions of adequate safeguard against abuse of
power by the executive, but also on the existence of effective government capable of maintaining
law and order and of ensuring adequate social and economic conditions of life for the society. ‘

(c) An independent judiciary and a free legal profession are indispensable for a free society
under the rule of law.

Independence here implies freedom from interference by the Executive or Legislative with the
exercise of the judicial function. Independence“ does not mean that a Judge is entitled to act in
an arbitrary manner; his duty is to interpret the law and the fundamental assumptions which
underlie it, to the best of his abilities and in accordance with the dictates of his own conscience.
Further, it is essential to the maintenance of the rule of law that there should be an organised
legal profession, free to manage its own affairs under the general supervision of the Courts. The
lawyers should be free to accept any case which is offered to him unless his acceptance of the

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brief would be incompatible with his obligation not to mislead the Courts or give rise to a
personal conflict of interest. A lawyer should be free without fear of the consequences to press
upon the Court any argument of law or facts which does not involve a deliberate deception of the
Court.4

The same points were restated in the Law of Lagos (1961) by the jurists, Judges and lawyers in
the following words :

"The rule of law is a dynamic concept which should be employed not only to safeguard and
advance the civil and political rights of the individual in a free society, but also to establish
certain social economic, educational and cultural conditions under which his legitimate
aspirations and dignity may be realized."

It may be mentioned here that the broader perspectives of rule of law concluded by the
International Commission of Jurists have greater relevance in the under-developed countries. A
mere constitutional guarantee of the rights cannot yield any good unless conditions are created
by the government for the proper enjoyment of those rights. A country which suffers from
political instability and unwarranted encroachment on the judicial process by the executive
cannot realize the objectives of rule of law.

The concept of rule of law, in modern age, does not oppose the practice of conferring
discretionary powers upon the government but on the other hand emphasizes on spelling out the
manner of their exercise. It also ensures that every man is bound by the ordinary laws of the land
whether he be private citizen or a public officer; that private rights are safeguarded by the
ordinary laws of the land.

Thus the rule of law signifies that nobody is deprived of his rights and liberties by an
administrative action; that the administrative authorities perform their functions according to law
and not arbitrarily; that the laws of the land are not unconstitutional and oppressive; that the
supremacy of courts is upheld and judicial control of administrative action is fully secured.

FORMAL AND IDEOLOGICAL MEANING OF THE TERM ‘RULE OF LAW’

Different legal theorists have different approaches towards the concept of Rule of Law. Some
believe that the rule of law has purely formal characteristics, meaning that the law must be
publicly declared, with prospective application, and possess the characteristics of generality,
equality, and certainty, but there are no requirements with regard to the content of the law. While
other legal theorists believe that the rule of law necessarily entails protection of individual rights.

4
Vide Report of International Commission of Jurists on “The Rule of Law in Free Society” 1959, p.311.

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Within legal theory, these two approaches to the rule of law are seen as the two basic
alternatives, respectively labelled as the formal and substantive or ideological approaches.

In purely formal sense, the rule means no more than organized public power. In this sense, the
rule of law refer to rule of organization.

In a purely formal sense, any system of norm based on a hierarchy of orders, even the organized
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 International Commission of Jurists, known as Delhi Declaration. 1959. This
Declaration puts up three ideals of rule of law in a free society as under –

1. The function of legislature in a free society, under rule of law is to establish and maintain
condition which will uphold the dignity of man as individual. This dignity requires not
only the recognition of certain civil or political rights but also creation of certain political,
social, economic and cultural condition which are essential to the full development of his
personality.
2. The rule of law depends not only on the provision of adequate safeguards against abuse
pf power by the executive but also on the existence of effective government, capable of
maintaining law and order and of ensuring sufficient economic and social condition of
life. This condition include National Health Scheme, social security, access to law courts
and right to living wage.
3. Independent judiciary and free legal profession are indispensable requisites of a free
society under the rule of law.
The rule of law is a dynamic concept. It changes with a change in social, economic and
political values and valuation. The basic postulate, however, remains fullest development of
individual personality keeping in view, the interest of society.

CONCEPT
Today Dicey’s theory of rule of law cannot be accepted in its totality. The modern concept of the
rule of law is fairly wide and therefore sets up an ideal for any government to achieve. This
concept was developed by the International Commission of Jurists. Known as Delhi Declaration,
1959 which was latter on confirmed at Logos in 1961. According to this formulation-

“The rule of law implies that the functions of the government in a free society should be so
exercised as to create conditions in which the dignity of man as an individual is upheld. This
dignity requires not only the recognition of certain civil or political rights but also creation of
certain political, social, economic, educational and cultural conditions which are essential to the
full development of his personality”.

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The modern concept of rule of law is fairly wide. Davis gives seven principal meaning of the
term, ‘Rule of Law’ –

1. Law and Order.

2. Fixed Rules
3. Eliminations of discretion,
4. Due process of law and 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.
So finally it may correctly be said that rule of law does not mean and cannot mean any
government under any law. It means the rule by a democratic law - a law which is passed in a
democratically elected parliament after adequate debate and discussion. Likewise, Sir Ivor
Jennings says –

“In proper sense rule of law implies a democratic system, a constitutional government where
criticism of the government is not only permissible but also a positive merit and where parties
based on competing politics or interests are not only allowed but encouraged. Where this exist
the other consequences of rule of law must follow.”

RULE OF LAW VIS-À-VIS ADMINISTRATIVE LAW

It is sometimes said that the rule of law is negation of administrative law. In fact, the concept of
rule of law hampered the recognition of administrative law in England for a long time because of
the influence of Dicey’s interpretation. As it has been earlier pointed out that for Dicey
administrative law was alien to England, because it meant several things, e.g., the establishment
of administrative courts for deciding disputes between State officials and individuals, as they
existed in France but not in England. According to Dicey, all these factors were opposed to rule
of law. Dicey believed, although wrongly, that only England is the sole repository of rule of law.
In modern times also, there is a thinking that the growth of administrative powers, which was an
inevitable consequence of planning and welfare activities of the State, has come in the way of
rule of law. National planning has completely put into oblivion the ideals of personal freedom
and liberty in several respects. There is greater degree of public control over so many areas
which henceforth constituted the areas of operations of private rights. In carrying out the welfare
activities of the State, the administration had to be armed with greater power and in this process a
large measure of Personal freedoms was bound to be eclipsed. If rule of law is intended to ensure
personal freedom and rights and adequate safeguards against any encroachment on them, then
the growth of administrative law seemingly contradicts rule of law. But, in fact, the rule of law
emphasizes upon rule that the executive must act under the law and not by its own whims and

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fiat. The executive does not derive the powers out of its own accord but derives them from the
law. The rule of law serves as the basis of judicial control over administrative action. Its
principal concern like that of administrative law is to keep the executive and the operation of its
powers within the limits of law so that it may not turn to be arbitrary. There is no incompatibility
between the rule of law and administrative law. In reality, viewed as a system of control of
administrative powers, it can be asserted that administrative law does not contradict but, on the
other hand, promotes rule of law. Administrative law not unlike rule of law has not come to
establish ‘New Despotism’ but to make it impossible. Like the rule of law it also ensures proper
and orderly exercise of the administrative powers. Hence the two are not opposed to each other
but on the other hand go parallel with a common objective of achieving an orderly government.5

5
Harry v Jones, - The Rule of Law and the Welfare State, 58 Col. LR 143 (1958).

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 DICEY’S PRINCIPLES
In Modern times, the rule of law was propounded by the Albert Dicey, a British jurist and
Philosopher. He gave following three postulates of rule of law: 1. Everyone is equal before the
law. 2. Sanctions have to be backed by law. 3. Courts are the ultimate body and supremacy of
court is ambivalent in civilized society.6 As per Prof. A.V.Dicey, “the rule of law means the
absolute supremacy or predominance of regular law as opposed to the influence of arbitrary
power and excludes the existence of arbitrariness or even of wide discretionary authority on the
part of Government.” ( The Law of Government)

A V Dicey in his book The Law of the Constitution (1885) has given the following three
implications of the doctrine of rule of law.7

Today Dicey's theory of rule of law cannot be accepted in its totality. The modern concept of the
rule of law is fairly wide and therefore sets up an ideal for any government to achieve.
Accordingly - "The rule of law implies that the functions of the government in a free society
should be so exercised as to create conditions in which the dignity of man as an individual is
upheld. This dignity requires not only the recognition of certain civil or political rights but also
creation of certain political, social, economic, educational and cultural conditions which are
essential to the full development of his personality".8

A.V.DICEY’S CONCEPT
1. Supremacy of Law

2. Equality before Law

3. Predominance of Legal spirit

1. SUPREMACY OF LAW:

Expounding the first postulate, dicey states that rule of law means the absolute power or
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 power or wide
discretionary authority on the part of government. He asserted that Englishmen were ruled by
law, and by the law, and by the law alone; he denied that in England the government was based
on exercise by persons in authority of wide arbitrary, or discretionary powers. dicey9 claimed,
‘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 government must mean insecurity for

6
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1761506 seen on 14.004.2019
7
https://iasscore.in/national-issues/concept-of-rule-of-law
8
Supra note 1
9
The law of the constitution, 8th ed. P. 198.

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legal freedom on the part of its subjects”,10 According wade11 also says, ‘the rule of law requires
that the government should be subject to the law, rather than the law subject to the
government.”12

'Supremacy of Law' is the central and most characteristic feature of Common Law. Law is the
absolute supreme and predominant as opposed to influence of arbitrary power or discretionary
power. English men are ruled by the Rule of Law and law alone. A man can be punished by
rule of law, and by nothing else.

The rule of law requires both citizens and governments to be subject to known and standing
laws. The supremacy of law also requires generality in the law. This principle is a further
development of the principle of equality before the law. Laws should not be made in respect of
particular persons. As Dicey postulated, the rule of law presupposes the absence of wide
discretionary authority in the rulers, so that they cannot make their own laws but must govern
according to the established laws. Those laws ought not to be too easily changeable. Stable laws
are a prerequisite of the certainty and confidence which form an essential part of individual
freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be
achieved if they are framed in too detailed a manner.13

2. EQUALITY BEFORE LAW

Explaining the second postulate of the doctrine of rule of law, dicey says 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. In England he maintained, 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 superior throughout the state.
In this connection he criticized the French legal system of droit administratif in which there were
separate administrative tribunals also for deciding cases between the officials of the state and the
citizens. In this view, exemption of civil servants from the jurisdiction of the ordinary courts of
law and providing them with the special tribunals was the negation of equality. 14

There must be equality before law or equal subjection of all classes to the ordinary law. All
people should be subject to one and the same law. There is no need for extraordinary tribunals
or special courts to deal with cases of Government and its servants (such as the one seen in Droit
Administratif). 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.” The second principle emphasizes everyone, including the government, irrespective of

10
Dicey, law of the constitution, 8thed. P. 198.
11
Administrative law, 1988, p. 23.
12
Dr. j.j.r. upadhyaya, administrative law, centrl law agency, Allahabad, 2015.
13
lljs.in/wp-content/uploads/2017/08/Rule_of_Law
14
Supra note 6.

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rank, shall be subject to the same law and courts. This element is interpreted to be misguided and
facing bundle of criticisms. In fact, by reason of maintaining the law and order in the society,
there are actually exceptions such as the Crown, police, Members of Parliament. The Crown may
exercise prerogative powers which may defeat the rights of individuals. The police have powers
over and above the citizen. Members of Parliament have immunity from the law of defamation.
Prof. Dicey states that, there must be equality before the law or equal subjection of all classes to
the ordinary law of the land. He criticised the French legal system of droit Administrative in
which there were separate administrative tribunals for deciding the cases of State Officials and
citizens separately.15

3. PREDOMINANCE OF LEGAL SPIRIT

Explaining the third postulate, Dicey says that the general principles of the constitution are the
result of judicial decisions of the courts in England. In many countries rights 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 consequence of the rights of individuals. Dicey apprehended that if the source of
fundamental rights of the people is any written constitution, that right can be abrogated at any
time by amending the constitution. In this way the rule of law postulates judicial supremacy. 16
The rights are a result of court judgements rather than from being enshrined in the Constitution.
The Constitution is a consequence (and not the source) of the rights of the individuals. Thus,
Courts are the guarantors of the liberty Rights would be secured more adequately if they were
enforceable in courts rather than just being written in the Constitutional document. Mere
incorporation in a written constitution is of no use in the absence of effective remedies of
protection and enforcement. Wade: Government is a subject of the Rule of Law, rather than the
law being a subject of the Government.

The Third meaning of the rule of law is that the general principles of the constitution are the
result of juridical decisions determining file rights of private persons in particular cases brought
before the Court. Dicey states that many constitutions of the states (countries) guarantee their
citizens certain rights (fundamental or human or basic rights) such as right to personal liberty,
freedom from arrest etc. According to him documentary guarantee of such rights is not enough.
Such rights can be made available to the citizens only when they are properly enforceable in the
Courts of law, For Instance, in England there is no written constitution and such rights are the
result judicial decision. Application of the Doctrine in England: Though, there is no written
constitution, the rule of law is applied in concrete cases. In England, the Courts are the

15
Supra note 3
16
Supra note 6.

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guarantors of the individual rights. Rule of law establishes an effective control over the executive
and administrative power.

CRITICISM
 The view of Dicey as to the meaning of the Rule of Law has been subject of much
criticism. The whole criticism may be summed up as follows. Dicey has opposed the
system of providing the discretionary power to the administration. In his opinion
providing the discretionary power means creating the room for arbitrariness, which may
create as serious threat to individual freedom. Now days it has been clear that providing
the discretion to the administration is inevitable. The opinion of the Dicey, thus, appears
to be outdated as it restricts the Government action and fails to take note of the changed
conception of the Government of the State. Dicey has failed to distinguish discretionary
powers from the arbitrary powers. Arbitrary power may be taken as 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. The present trend is
that discretionary power is given to the Government or administrative authorities, but the
statute which provides it to the Government or the administrative officers lays down
some guidelines or principles according to which the discretionary power is to be
exercised. The administrative law is much concerned with the control of the discretionary
power of the administration. It is engaged in finding out the new ways and means of the
control of the administrative discretion.
 According to Dicey the rule of law requires that every person should be subject to the
ordinary courts of the country. Dicey has claimed that there is no separate law and
separate court for the trial of the Government servants in England.
 He critcised the system of droit administrative which is prevailing in France. In France
there are two types of courts Administrative Court and Ordinary Civil Courts. The
disputes between the citizens and the Administration are decided by the Administrative
courts while the other cases, (i.e. the disputes between the citizens) are decided by the
Civil Court. Dicey was very critical to the separation for deciding the disputes between
the administration and the citizens.
 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 for person including the
administrative authority. This proportion of Dicey does not appear to be correct even in
England. Several persons enjoy some privileges and immunities. For example, Judges
enjoy immunities from suit in respect of their acts done in discharge of their official
function. Besides, Public Authorities Protection Act, 1893, has provided special
protection to the official. Foreign diplomats enjoy immunity before the Court. Further,

16 | P a g e
 the rules of public interest privilege may afford officials some protection against orders
for discovery of documents in litigation.17

CONCLUSION

Thus, the meaning of rule of law taken by Dicey cannot be taken to be completely satisfactory.
Third meaning given to the rule of law by Dicey 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. In spite of the above
shortcomings in the definition of rule of law by Dicey, he must be praised for drawing the
attention of the scholars and authorities towards the need of controlling the discretionary powers
of the administration. He developed a philosophy to control the Government and Officers and to
keep them within their powers. The rule of law established by him requires that every action of
the administration must be backed by law or must have been done in accordance with law. The
role of Dicey in the development and establishment of the concept of fair justice cannot be
denied. The concept of rule of law, in modern age, does not oppose the practice of conferring
discretionary powers upon the government but on the other hand emphasizing on spelling out the
manner of their exercise. It also ensures that every man is bound by the ordinary laws of the land
whether he be private citizens or a public officer; that private rights are safeguarded by the
ordinary laws of the land. Thus the rule of law signifies that nobody is deprived of his rights and
liberties by an administrative action; that the administrative authorities perform their functions
according to law and not arbitrarily; that the law of the land are not unconstitutional and
oppressive; that the supremacy of courts is upheld and judicial control of administrative action is
fully secured.18

17
https://oll.libertyfund.org/pages/dicey-his-life-law-of-the-constitution seen on 14.04.2019
18
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1761506 seen on 14.04.2019

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 VIABILITY OF DICEY’S RULE OF LAW IN 21ST CENTURY
Every civilization has experienced the rule of a supreme power, a power which is undisputed.
Ranging from an ‘omnipotent’ king to religious scriptures, some or the other form of power has
governed the societies of all times. While such systems propagated the ideals of equality and
justice on paper, arbitrary powers with the rulers seldom allowed subjects to enjoy them in
reality. Overtime, law began to be seen as supreme power. The superiority of law above
everything is called rule of law. It was A.V Dicey who explained what actually is meant by rule
of law. ‘It means, in the first place, supremacy or predominance of regular law as opposed to the
influence of arbitrary power or even of wide discretionary authority on the part of the
government. Secondly it enforces equality before law and thus 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 ordinary tribunals. Thirdly, it emphasizes the role of judiciary
in protecting the rights of citizens.’ The doctrine of rule of law places the law of the land at the
highest pedestal, where there is no space for arbitrariness. In the 21st century, when man’s steps
know no bounds, the existing laws fail to cater to the needs. Laws as old as Indian Penal Code,
1860 continue to rule people with few amendments here and there. In an attempt to meet the
deficiencies of existing laws, new laws are formulated (POCSO, Juvenile Justice Act, People
with Disability Act) but the old ones are not repealed, the incongruity between the two hampers
delivery of justice.

Article 13 of the Indian Constitution very clearly lays down the principle of equity before
law, but when it comes to powerful people, this principle finds no place for itself. Salman Khan,
the superstar with a huge fan following, got bail hours after being convicted in a hit and run case,
as the High Court went out of its way to hear his bail plea, Sanjay Dutt manages to be in and out
of jail in no time, despite of being convicted of charges as serious as terrorism, Fardeen Khan
who was caught buying cocaine got away easily as police was pressurised into dismissing his
case as drink and drive and the list does not end here. While the constitution treats women at par
with men, some laws which are discriminatory against women still exist in India. A divorced
Hindu Women cannot claim her right in the property of her in-laws and is expected to be happy
with just monthly maintenance, a Muslim man can topple a woman’s life in no time by just
saying Talaq thrice, a man not women is considered natural guardian of a child, a woman under

18 | P a g e
adultery laws is treated nothing more than an object where her husband’s consent decides the
criminality of act and not her own. While the law makers tend to impart equal status to
transgenders, the newly proposed transgender bill is nothing but a farce in the name of equality.

In 21st century, when man is power hungry, corruption is rampant, humane nature of man
is dying, rule of law still manages to serve the interests of society. It sets a boundary for men
who otherwise would have made this world a hell. If corruption is done away with and law
reforms are taken more seriously, rule of law is the best. It still is humankind’s best hope for
freedom and justice.

ROLE OF JUDICIARY IN MAINATINING RULE OF LAW

Judiciary is one of the building pillars of any democracy. Rule of Law grants right to people but
these rights would be ‘empty promises’ without enforcement machinery. If the violation of these
rights is not checked, rule of law would have no meaning. Justice for all is the aim of Rule of
Law and it cannot be achieved without the presence of an independent judiciary. The Judiciary
not just ensures the enforcement of existing rights, but also add new dimensions and
interpretations to them in accordance with changing times. In Common legal systems, Judicial
decisions form a major part of the law of the land. The laws written in black and white by the
legislature would have failed to serve the purpose had it not been judiciary who in each case
considering the circumstances imparts true justice.

Indian Judicial system since independence has performed its functions fairly well. It has emerged
as a stronger body braving all challenges, be it Indira Gandhi’s attempt to restrain its powers or
time and again government’s unjust interference in judicial appointments or recurring charges of
corruption against its members.

The Indian Judiciary refused to act as a passive interpreter and came up with Absolute Liability
rule in MC Mehta v. Union of India19and Bhopal Gas Leak Case20 ; it extended second

19
MC Mehta v. Union of India , 1987 SCR(1)
20
Bhopal Gas Leak Case, AIR (1989) (1) SCC 674

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generation rights like ‘housing’ in Olga Tellis v. Bombay Municipal Corporation21 ; when the
law-makers failed to take any action, the Supreme Court came up with NALSA Judgement
upholding rights of transgender community22 ; in this age of technology it ensured the citizens of
right to privacy .23

The role of judiciary in maintaining rule of law cannot be undermined. But to make it possible
for judiciary to do justice to its position, its independence has to be ensured and it has to be
provided with the requisite infrastructure. The country’s courts lack basic infrastructure for
judges, court staff, lawyers and litigants. Adequate infrastructure is a sine qua non for reduction
of pendency and clearing backlog of cases in courts. Infrastructural development needs to be
undertaken to ensure citizens’ right to speedy trial. The judicial decisions need to be made more
transparent.

While Judiciary plays a very important role in maintaining rule of law, the cooperation from
legislature, executive and the public is paramount. Budgetary allocations towards development
of judicial infrastructure must be increased, judges must not fall prey to political pressure.

“The bedrock of our democracy is the rule of law and that means we have to have an
independent judiciary, judges who can make decisions independent of the political winds that are
blowing.”

21
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
22
(2014) 5 SCC 438
23
(2014) 6 SCC 433

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 RULE OF LAW UNDER THE INDIAN CONSTITUTION
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 term Law includes all orders, rules, regulations, bylaws, notice and customs. It expects that
all these will be according to Constitutional provisions if they will against, under article-13 they
will be declare unconstitutional and void. In the Constitution of India guaranteed certain rights
which can be enforced by the courts. At this Juncture, we may consider the position prevailing in
India as regards the third principle of Dicey‟s doctrine of Rule of Law, i.e., predominant of legal
spirit.

Until this principle was being considered in the context of interpreting the provisions of the
Constitutions. In our Constitutional system, the central and most characteristic feature is the
concept of the 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 doctrine of Rule of Law has been adopted in Constitution of India.

The principles of Rule of Law i.e. justice, equality and liberty are enriched in the Constitution of
India. The Constitution of India is above all the laws implemented in Indian Territory and any
law made by the central government or by the state government must be in confirmation with the
Constitution of India. If any law made by the legislation under the jurisdiction of India which is
against the mandates of the constitution, the law would be void. The constitution of India
guarantees equality before the law, as an aspect of the rule of law, under Article-14.

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Under Article 32, the Supreme Court has power to issue writes in the nature of Habeas Corpus,
mandamus, prohibition, quo warrantor and certiorari. It is also given power of judicial review to
prevent any ultra vires law, to preserve „Rule of Law' Article 15 and 16 of right to equality and
Article 19, 20 and 21 in form of right to life and liberty are provisions of our constitution to this
affect.

In India, no one has very arbitrary power, except the powers given by the law. The constitution is
the Supreme Court law of the land and even the government derives its authority from it. This
effectuates the supremacy of law. Everyone, in India are subject to same laws, without any
discrimination, court takes into account no rank or condition

However, the president and the governors (under Article 361) are given special exemptions.
Armed forces personnels are treated by armed laws, officials are given same immunities etc. But
these provisions do not negate the effectiveness of the rule of law in India, because their
provisions are also made by laws, under various provisions of the constitution. From a poor
person to the president, be it a police constable or a collector, are treated by law.

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 and impartial Judiciary to settle disputes and
grievances for violation of fundamental rights by virtue of Articles 32 and 226. In Union of

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Indiav. President, Madras Bar Association24 , the Supreme Court held that “Rule of Law has
several facets, one of which is that disputes of citizens will be decided by Judges who are
independent and impartial; and that disputes as to legality of acts of the Government will be
decided by Judges who are independent of the Executive.”

Justice R.S. Pathak of the Hon’ble Supreme Court has observed that “It must be remembered that
our entire constitutional system is founded on the rule of law, and in any system so designed it is
impossible to conceive of legitimate power which is arbitrary in character and travels beyond the
bounds of reason.”

RULE OF LAW AS PART OF THE BASIC STRUCTURE

The Constitution (First Amendment) Act, 1951, shook the status of Rule of law in India. The
question which came up for consideration in Shankari Prasad v. Union of India25 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 Rajasthan 26 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. Hon’ble
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
ofPunjab 27 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

24
Union of India v. President, Madras Bar Association AIR 2013 SC 1072
25
Shankari Prasad v. Union of India AIR 1951 SC 455
26
Sajjan Singh v. State of Rajasthan 1965 AIR 845,1965 SCR(1)933
27
Golaknath v. State of Punjab, 1967 AIR 1643

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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 28 . The Supreme
Court by majority overruled the decision given in Golaknath’s case and held 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 Kerala29 , 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. In Indira Nehru Gandhi v. Raj Narain 30 , the Supreme Court invalidated Clause
(4) of Article 329-A inserted by the Constitution (Thirty-ninth Amendment) Act, 1975 to
immunise the election dispute to the office of the Prime Minister from any kind of judicial
review. The Court said that this violated the concept of Rule of law which cannot be abrogated
or destroyed even by the Parliament.

28
Keshavananda Bharti v. State of Kerala AIR 1973 SCC 225
29
Supra note 5.
30
Indira Nehru Gandhi v. Raj Narain 1975 SCC 159

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The Habeas Corpus case according to many scholars is a black mark on the rule of law. The case
entails Dicey’s third principle of rule of law. The legal question in this case was whether there is
any rule of law over and above the Constitutional rule of law and whether there was any rule of
law in India apart from Article 21 of the Constitution regarding right to life and personal liberty.
A five judge Bench with a majority of 4:1 (going by strict interpretation) held in the negative.

The majority judges held that the Constitution is the mandate and the rule of law. They held that
there cannot be any rule of law other than the constitutional rule of law. Excluding moral
conscience, they held that there cannot be any pre-Constitution or post-Constitution rule of law
which can run counter to the rule of law embodied in the Constitution, nor can there be any rule
of law to nullify the constitutional provisions during the time of Emergency.

The majority judges held that “Article 21 is our rule of law regarding life and liberty. No other
rule of law can have separate existence as a distinct right. The rule of law is not merely a
catchword or incantation. It is not a law of nature consistent and invariable at all times and in all
circumstances. There cannot be a brooding and omnipotent rule of law drowning in its
effervescence the emergency provisions of the Constitution.” Thus they held that Article 21 is
the sole repository of right to life and liberty and during an emergency, the emergency provisions
themself constitute the rule of law.

In a powerful dissent, Justice H.R. Khanna observed that “Rule of law is the antithesis of
arbitrariness…Rule of law is now the accepted form of all civilized societies…Everywhere it is
identified with the liberty of the individual. It seeks to maintain a balance between the opposing
notions of individual liberty and public order. In every state the problem arises of reconciling
human rights with the requirements of public interest. Such harmonizing can only be attained by
the existence of independent courts which can hold the balance between citizen and the state and
compel governments to conform to the law.”

With the Constitution (Forty-Fourth Amendment) Act, 1978 it has been laid down that even
during emergency, Articles 20 and 21 will not be suspended. According to me, Justice Khanna
(with due respect to his high moral conscience) has not given a judgment in consonance with the
rule of law. His Lordship has on the other hand tried to place the judiciary over and above the
rule of law. During emergency, that was the rule of law that Article 21 is suspended. Creating

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rule of law above the Constitution will create huge implications. Whatever be the case, the
Austinian sense of jurisprudence does apply in the present case and the majority judges have not
decided wrongly. Though now it remains only an academic question but if a law does not seem
to be morally rich then it is the job of the Legislature to amend it and not the Judiciary to come
up with its own new law which is non-existent and against the existing law.

In Raman Dayaram Shetty v. International Airport Authority of India 31 , the Supreme Court
held that the great purpose of rule of law is the protection of individual against arbitrary exercise
of power, wherever it is found. In re: Arundhati Roy 32 , Justice Sethi observed that for
achieving the establishment of the rule of law, the Constitution has assigned the special task to
the judiciary.

When Article 371-D(5) (Proviso) authorized the A.P Government to nullify any decision of the
Administrative Services Tribunal, it was held violative of the rule of law. Holding the provision
unconstitutional, the Supreme Court said that it is a basic principle of the rule of law that the
exercise of power by the Executive must not only be governed by the Constitution but also be in
accordance with law. The Court also held that the power of judicial review should be used to
ensure that rule of law is maintained.

Over the years, the Courts have used judicial activism to expand the concept of rule of law. For
example Courts are trying to establish a rule of law society in India by insisting on ‘fairness’. In
Sheela Barse v. State of Maharashtra 33 the Supreme Court insisted on fairness to women in
police lock-up and also drafted a code of guidelines for the protection of prisoners in police
custody, especially female prisoners. In Veena Sethi v. State of Bihar 34 also the Supreme Court
extended the reach of rule of law to the poor who constitute the bulk of India by ruling that rule
of law does not merely for those who have the means to fight for their rights and expanded the
locus standi principle to help the poor.

31
Raman Dayaram Shetty v. International Airport Authority of India 1979 AIR 1628
32
re: Arundhati Roy 2003 AIR 726
33
Sheela Barse v. State of Maharashtra AIR 1983 2 SCC 96
34
Veena Sethi v. State of Bihar AIR 1982 2 SCC 583

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 RULE OF LAW AND INDIAN JUDICIARY
Fundamental rights enshrined in part III of the constitution is a restriction on the law making
power of the Indian Parliament. It includes freedom of speech, expression, association,
movement, residence, property, profession and personal liberty. In its broader sense the
Constitution itself prescribes the basic legal system of the country. To guarantee and promote
fundamental rights and freedoms of the citizens and the respect for the principles of the
democratic State based on rule of law. The popular habeas corpus case, ADM Jabalpur v.
Shivakant Shukla35 is one of the most important cases when it comes to rule of law. In this case,
the question before the court was „whether there was any rule of law in India apart from Article
21‟. This was in context of suspension of enforcement of Articles 14, 21 and 22 during the
proclamation of an emergency. The answer of the majority of the bench was in negative for the
question of law. However Justice H.R. Khanna dissented from the majority opinion and observed
that “Even in absence of Article 21 in the Constitution, the state has got no power to deprive a
person of his life and liberty without the authority of law. Without such sanctity of life and
liberty, the distinction between a lawless society and one governed by laws would cease to have
any meaning…”

Applied to the powers of the government, this requires that every government authority which
does some act which would otherwise be a wrong (such as taking a man’s land), or which
infringes a man’s liberty (as by refusing him planning permission), must be able to justify its
action as authorized by law -and in nearly every case this will mean authorized directly or
indirectly by Act of Parliament.

The secondary meaning of rule of law is that the government should be conducted within a
framework of recognized rules and principles which restrict discretionary powers. The Supreme
Court observed in Som Raj v. State of Haryana36 that the absence of arbitrary power is the
primary postulate of Rule of Law upon which the whole constitutional edifice is dependant.
Discretion being exercised without any rule is a concept which is antithesis of the concept. The
third meaning of rule of law highlights the independence of the judiciary and the supremacy of
courts. It is rightly reiterated by the Supreme Court in the case Union of India v. Raghubir

35
ADM Jabalpur v. Shivakant Shukla AIR 1976 2 SCC 521
36
Som Raj v. State of Haryana 1990 AIR 1176

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Singh37 that it is not a matter of doubt that a considerable degree that governs the lives of the
people and regulates the State functions flows from the decision of the superior courts.

Although, complete absence of discretionary powers, or absence of inequality are not possible in
this administrative age, yet the concept of rule of law has been developed and is prevalent in
common law countries such as India. The rule of law has provided a sort of touchstone to judge
and test the administrative law prevailing in the country at a given time. Rule of law,
traditionally denotes the absence of arbitrary powers, and hence one can denounce the increase
of arbitrary or discretionary powers of the administration and advocate controlling it through
procedures and other means. Rule of law for that matter is also associated with supremacy of
courts. Therefore, in the ultimate analysis, courts should have the power to control the
administrative action and any overt diminution of that power is to be criticized. The principle
implicit in the rule of law that the executive must act under the law and not by its own fiat is still
a cardinal principle of the common law system, which is being followed by India.

In 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 is one of the vital principles playing an
important role in democratic countries like India. There is a thin line between judicial review and
judicial activism. Rule of law serves as the basis of judicial review of administrative action. The
judiciary sees to it that the executive keeps itself within the limits of law and does not overstep
the same. Thus, judicial activism is kept into check. However there are instances in India where
judiciary has tried to infringe upon the territory of the executive and the legislature. A recent
example of this would be the present reservation scenario for the other backward classes. The
judiciary propagated that the creamy layer should be excluded from the benefits of the
reservation policy, whereas the legislature and the executive were against it.

No person shall be deprived of his life or personal liberties except according to procedure
established by law or of his property save by authority of law. The government officials and the
government itself is not above the law. In India the concept is that of equality before the law and
equal protection of laws. Any legal wrong committed by any person would be punished in a
similar pattern. The law adjudicated in the ordinary courts of law applies to all the people with

37
Union of India v. Raghubir Singh SCC 1989 AIR 1933

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equal force and bindingness. In public service also the doctrine of equality is accepted. The suits
for breach of contract etc. against the state government officials, public servants can be filed in
the ordinary courts of law by the public.

In Chief settlement Commr; Punjab v. Om Prakash38 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 matter into notice.”

In India, the meaning of rule of law has been much expanded. It is regarded as a part of the basic
structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by
Parliament. The ideals of constitution; liberty, equality and fraternity have been enshrined in the
preamble. Constitution makes the supreme law of the land and every law enacted should be in
conformity to it. Any violation makes the law ultra vires.

For democracy to survive, rule of law must prevail, and it is necessary that the best available
men should be chosen as people's representatives for proper governance of the country. This can
be best achieved through men of high moral and ethical values who win the elections on a
positive vote obtained on their own merit and not by the negative vote of process of elimination
based on comparative demerits of the candidates.”

In the case of Sukhdev v. Bhagatram39Mathew J. declared that “Whatever be the concept of the
rule of law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the
definition given by Hayek in his “Road to Serfdom” and “Constitution of liberty” or the
exposition set-forth by Harry Jones in his “The Rule of Law and the Welfare State”, there is, as
pointed out by Mathew, J., in his article on “The Welfare State, Rule of Law and Natural Justice”
in “Democracy, Equality and Freedom,” “substantial agreement is in juristic thought that the
great purpose of the rule of law notion is the protection of the individual against arbitrary
exercise of power, wherever it is found”. It is indeed unthinkable that in a democracy governed
by the rule of law the executive Government or any of its officers should possess arbitrary power

38
Chief settlement Commr; Punjab v. Om Prakash, SCC 1969 AIR 33
39
Sukhdev v. Bhagatram, AIR 1975 SC 1331

29 | P a g e
over the interests of the individual. Every action of the executive Government must be informed
with reason and should be free from arbitrariness. That is the very essence of the rule of law and
its bare minimal requirement. And to the application of this principle it makes no difference
whether the exercise of the power involves affection of some right or denial of some privilege.”

In Secretary, State of Karnataka and Ors. v. Umadeviand Ors40 a Constitution Bench of this
Court has laid down the law in the following terms: “Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our Constitution and since the rule of law is
the core of our Constitution, a court would certainly be disabled from passing an order upholding
a violation of Article 14 or in ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of the Constitution.”

In the case of Amlan Jyoti BorooahVs.State of Assam41, it was held by S B Sinha that: “Equity
must not be equated with compassion. Equitable principles must emanate from facts which by
themselves are unusual and peculiar. A balance has to be struck and the Court must be cautious
to ensure that its endeavour to do equity does not amount to judicial benevolence or
acquiescence of established violation of fundamental rights and the principles of Rule of law.”

Moreover, In the case of Bachan Singh v. State of Punjab42, Justice Bhagwati has emphasized
that rule of law excludes arbitrariness and unreasonableness. To ensure this, he has suggested
that it is necessary to have a democratic legislature to make laws, but its power should not be
unfettered, and that there should be an independent judiciary to protect the citizens against the
excesses of executive and legislative power.

Hence, it is quiet evident that the concept of rule of law is gaining importance and attention and
judicial efforts are made to make it stronger.

40
Secretary, State of Karnataka and Ors. v.Umadeviand Ors AIR 2006 SC 1806
41
Amlan Jyoti BorooahVs.State of Assam AIR 2006 SC 387
42
Bachan Singh v. State of Punjab AIR 1980 SC 898

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 RULE OF LAW IN UNITED STATES
Rule of law is a principle under which all persons, institutions, and entities are accountable to
laws that are:

 Publicly promulgated
 Equally enforced
 Independently adjudicated
 And consistent with international human rights principles.

The courts play an integral role in maintaining the rule of law, particularly when they hear the
grievances voiced by minority groups or by those who may hold minority opinions. Equality
before the law is such an essential part of the American system of government that, when a
majority, whether acting intentionally or unintentionally, infringes upon the rights of a minority,
the Court may see fit to hear both sides of the controversy in court.43

HISTORY OF RULE OF LAW

The America of 1787 inherited from medieval England the concept of rule of law, sometimes
expressed as “a government of laws, not of men.” One may trace the rise of this principle in
English history all the way back to the signing of Magna Charta in the year 1215, when King
John found it necessary to guarantee his obedience to English laws. For that matter, medieval
English writers on law derived their understanding of the rule of law from ancient Roman
jurisprudence.

“The king himself ought not to be under man but under God, and under the Law, because the
Law makes the king. Therefore, let the king render back to the Law what the Law gives him,
namely, dominion and power; for there is no king where will, and not Law, wields dominion.”
So wrote Henry de Bracton, “the father of English law,” about the year 1260, during the reign of
Henry III. This teaching that law is superior to human rulers has run consistently through English

43
https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law

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politics and jurisprudence all the way down the centuries. It was rather belligerently asserted
from time to time by the English colonies in North America.

This doctrine that no man is above the law applied not only to kings but also to legislative bodies
and judges. Sir Edward Coke fiercely resisted not only attempts by King James I to interpret the
law for himself but also Acts of Parliament that contravened the common law. Citing Bracton as
an authority, he asserted that “the king must not be under any man, but under God and the law.”
In Dr. Bonham’s Case44 (1610), Coke laid down the principle of judicial review, claiming that
judges had a right, when interpreting Acts of Parliament, to declare them null and void if they
conflicted with established principles of law and justice. “And it appears in our books,” said
Coke, “that in many cases, the common law will control Acts of Parliament, and sometimes
adjudge them to be utterly void; for when an Act of Parliament is against common right and
reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge
such an Act to be void.”

That the English had turned their backs on their own tradition and respect for rule of law was the
principal grievance of American colonial leaders. In his famous pamphlet The Rights of the
British Colonies Asserted and Proved (1764), James Otis wrote:

To say the Parliament is absolute and arbitrary, is a contradiction. The Parliament cannot make 2
and 2 [equal] 5. … Parliaments are in all cases to declare what is good for the whole; but it is not
the declaration of parliament that makes it so. There must be in every instance a higher
authority—God. Should an act of parliament be against any of His natural laws, which are
immutably true, their declaration would be contrary to eternal truth, equity and justice, and
consequently void.45

44
8 Co. Rep114
James McClellan, “Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American
45

Government (2000).” Retrieved at 13/04/19

https://oll.libertyfund.org/pages/rule-of-law-us-constitutionalism

32 | P a g e
Similar arguments were made by the State supreme court judges after 1776. Their attempts to
nullify legislative enactments through the power of judicial review were largely unsuccessful,
however, because most early State constitutions, like the English Constitution, followed the
doctrine of legislative supremacy. Acts passed by the State legislatures were expected to conform
to the State constitutions. But there were no provisions calling for the supremacy of the State’s
constitution over laws passed by the legislature should the judges decide that a law conflicted
with the State’s constitution. Thus, the absence of a supremacy clause in these State constitutions
rendered the power of judicial review weak and ineffective.

The Federal Constitution of 1787 drastically changed the concept of constitutional government
by introducing the principle of constitutional supremacy. Article VI declared that “This
Constitution … Shall be the supreme law of the land.” Laws passed by Congress, though
supreme in relation to State constitutions and State laws, were ranked below the Constitution.
Indeed, Article VI explicitly stated that such laws must conform to, and be made in pursuance of,
the Constitution. Noting the significance of the Supremacy Clause, Chief Justice John Marshall
held in the famous case of Marbury v. Madison 46(1803) that an Act of Congress contrary to the
Constitution was not law:

In declaring what shall be the supreme law of the land, the Constitution is first mentioned; and
not the laws of the United States generally, but those only which shall be made in pursuance of
the Constitution, have that rank.

It may thus be seen that the American Constitution and the power of judicial review are an
extension of rule of law. The Constitution is law, the highest law, and the President, Congress,
and the Federal Judiciary are bound by its terms. A government of laws and not of men is, then,
the underlying principle of the American political and legal system.

This means that no person, however powerful or talented, can be allowed to act as if he were
superior to the law of the land. Public decisions must be made upon the basis of law, and the
laws must be general rules that everybody obeys, including those who make and enforce the law.

46
5 U.S. 137 (1803)

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A law that violates the Constitution is not a law and is not, therefore, enforced. This was the
principle that Marshall followed in Marbury v. Madison. Likewise, rule of law means equality
before the law. A law that singles out certain people for discriminatory treatment, or is so vague
and uncertain that one cannot know what it requires, will not be treated as a law.

Rule of law, then, is not rule of the law, but a doctrine concerning what the law ought to be—a
set of standards, in other words, to which the laws should conform. Merely because a tyrant
refers to his commands and arbitrary rulings as “laws” does not make them so. The test is not
what the rule is called, but whether the rule is general, known, and certain; and also whether it is
prospective (applying to future conduct) and is applied equally. These are the essential attributes
of good laws—laws that restrain but do not coerce, and give each individual sufficient room to
be a thinking and valuing person, and to carry out his own plans and designs. This does not mean
that the individual is free to do as he pleases; for liberty is not license. As the Framers knew well,
absolute freedom would be the end of freedom, making it impossible for society to be orderly,
safe from crime, secure from foreign attack, and effectively responsive to the physical, material,
and spiritual needs of its members. Under God, said the exponents of the rule of law, the law
governs us; it is not by mere men that we ought to be governed; we can appeal from the whims
and vagaries of human rulers to the unchanging law.

Though this is a grand principle of justice, often it is difficult to apply in practice. Passion,
prejudice, and special interest sometimes determine the decisions of courts of law; judges, after
all, are fallible human beings. As the Virginia orator John Randolph of Roanoke remarked
sardonically during the 1820s, to say “laws, not men,” is rather like saying “marriage, not
women”: the two cannot well be separated.

Yet the Framers at Philadelphia aspired to create a Federal government in which rule of law
would prevail and men in power would be so restrained that they might not ignore or flout the
law of the land. The Supreme Court of the United States was intended to be a watchdog of the

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Constitution which might guard the purity of the law and forcefully point out evasions or
violations of the law by the other branches of government or by men in public office.

The Framers knew, too, the need for ensuring that the President of the United States, whose
office they had established near the end of the Convention, would be under the law—not a law
unto himself. The President’s chief responsibility, in fact, is to enforce and uphold the law, and
to “take care that the laws be faithfully executed.” Whereas the members of Congress and the
Federal Judiciary, and other Federal and State officials, all take an oath “to support this
Constitution” (Article VI, Clause 3), the President—and the President alone—swears on the
Bible (or affirms) that he will “preserve, protect and defend the Constitution” (Article II, Section
1, Clause 8).

Thus in the final analysis the nation looks to the President as the person ultimately responsible
for upholding the rule of law and the supremacy of the Constitution. By making him
Commander-in-Chief of the armed forces and by giving him the power to supervise the heads of
the various departments of the executive branch, the Constitution also confers upon the President
the means by which he may fulfill his law enforcement responsibilities.

By and large, America has enjoyed rule of law, not of men. No President of the United States has
ever tried to make himself dictator or to extend his term of office unlawfully. Martial law—that
is, a suspension of the law and the administration of justice by military authorities in times of
war, rebellion, and disorder—has never been declared nationwide. No party or faction has ever
seized control of the Federal government by force or violence. The Constitution of the United
States has never been suspended or successfully defied on a large scale. Thus the rule of law has
usually governed the country since 1787—a record true of very few other countries of the
world.47

James McClellan, “Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American
47

Government (2000).” Retrieved at 13/04/19

https://oll.libertyfund.org/pages/rule-of-law-us-constitutionalism

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THE BASIC PRINCIPLES OF THE AMERICAN CONSTITUTION
Federalism, separation of powers, and rule of law are the heart of the American Constitution. But
there are other fundamental principles of the system as well, all of which contribute significantly
toward the achievement of liberty, order, and justice. Viewing the Constitution as a whole, as the
Framers perceived it, we observe that its essential features include the following:

First, the Constitution is based on the belief that the only legitimate constitution is that which
originates with, and is controlled by, the people. Thus a constitution is more than a body of
substantive rules and principles. As Thomas Paine wrote, “A constitution is not the act of a
government, but of a people constituting a government, and a government without a constitution
is power without right.” This principle is declared in the Preamble of the Constitution, which
proclaims that the Constitution is ordained and established not by the government, but by “We
the People.”

One of the most remarkable debates ever staged in Congress occurred in March 1850 over the
slavery question. This was the last joint appearance on the public stage of that great triumvirate,
Henry Clay, Daniel Webster, and John C. Calhoun. Webster advocated compromise to save the
Union, and his plea for moderation was heeded.

In this extraordinary picture, it is possible to identify each member because the artist used
photographs to create an exact likeness. Webster is standing. To his left (front row, bottom right)
is Stephen A. Douglas. Clay is directly behind Webster’s uplifted hand, almost seeming to stare
at the back of it. Calhoun is directly behind the fourth member (front row, left to right), and
beside him, to his right, is Jefferson Davis. (Courtesy of the Library of Congress.)

Second, the United States Constitution subscribes to the view that the government must in all
respects be politically responsible both to the States and to the governed. This is achieved
through the election and impeachment process, with only the members of the House of
Representatives being directly accountable to the electorate. Though not directly represented, the
States exercise some influence by virtue of the Electoral College, control of the franchise, and

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the amendment process. Prior to the adoption of the Seventeenth Amendment in 1913, the States
were also able to protect their interests in some instances by virtue of the fact that members of
the Senate were indirectly elected by State legislatures rather than directly by the people.

Third, the Constitution rested on the proposition that all constitutional government is by
definition limited government. A constitution is a legal, not just a political limitation on
government; it is considered by many the antithesis of arbitrary rule; its opposite is despotic
government, the government of will instead of law. Parliamentary supremacy, identifying all law
with legislation, is thus hostile to the American Constitution, which declares that the Constitution
shall be the supreme law of the land.

Fourth, the Constitution embraced the view that in order to achieve limited government, the
powers of government must be defined and distributed—that is, they must be enumerated,
separated, and divided. A unitary and centralized government, or a government in which all the
functions or functionaries were concentrated in a single office, was a government that invited
despotism and would inevitably become tyrannical and corrupt. This tendency toward “tyranny
in the head” might be prevented, or at least discouraged, through a separation of powers among
the three branches of the Federal government, and a reservation to the States of those powers that
were not delegated to the Federal government.

Conversely, the Framers were also mindful that in order to be limited, it did not follow that
government must also be weak. Too little power was as dangerous as too much, and if left
unattended might produce “anarchy in the parts,” or a state of disorder into which the man on the
white horse would ride to forge tyranny out of chaos. The solution for avoiding these extremes of
too much and too little power was to balance power and to balance liberty and order, allocating
to the people and to each unit of government a share of the national sovereignty.

Fifth, the American Constitution was premised on the seemingly unassailable assumption that
the rights and liberties of the people would be protected because the powers of government were
limited, and that a separate declaration of rights would therefore be an unnecessary and
superfluous statement of an obvious truth. Since the government of the United States was to be

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one of enumerated powers, it was not thought necessary by the Philadelphia delegates to include
a bill of rights among the provisions of the Constitution. “If, among the powers conferred,”
explained Thomas Cooley in his famous treatise Constitutional Limitations (1871), “there was
none which would authorize or empower the government to deprive the citizen of any of those
fundamental rights which it is the object and duty of government to protect and defend, and to
insure which is the sole purpose of a bill of rights, it was thought to be at least unimportant to
insert negative clauses in that instrument, inhibiting the government from assuming any such
powers, since the mere failure to confer them would leave all such powers beyond the sphere of
its constitutional authority.” In short, the Constitution itself was a bill of rights because it limited
the power of the Federal government.48

OVERVIEW OF THE MODERN CONCEPTION OF THE RULE OF LAW

A modern view in the United States is that through the separation of powers between the
legislative, executive, and judicial branches “that it may be a government of laws and not of
men.” This perspective extends to create a system of government where individuals and the
government itself are subject to laws that are administered with equity, and neither are subject to
the whims of an individual or group. Throughout the ages there have been plenty of governments
and regimes that have focused on ruling through law. Typically, these regimes create laws that
are severe and then use the law to crack down on society and anyone who might infringe upon
their control of power. Their justification for this concept of “the rule of law” is that it is applied
uniformly across society. An unbiased place to start in establishing a better understanding of the
modern concept of “the rule of law” is the annual Rule of Law Index provided by the World
Justice Project (WJP). Annually, the WJP produces a study indicating the state of “the rule of
law” across the world. In order to do this, the WJP has established that “the rule of law” is a
system where four principles are upheld. These four principles make up the definition of “the
rule of law”. First, the government, its officials, individual citizens, and private companies are
accountable under the law.Second, the laws are clear, publicized, stable, just, and they are

48
supranote3
https://oll.libertyfund.org/pages/rule-of-law-us-constitutionalism

38 | P a g e
applied evenly in order to protect fundamental rights, including the safety of oneself and
property Third, the process by which the laws are enacted, administered, and enforced is
accessible, fair, and efficient. Finally, justice is delivered in a timely fashion by competent,
ethical, independent, and neutral judges that have adequate resources and are representative of
the communities they serve.These four principles taken together represent the foundations of a
democratic society that create a system where men are governed by laws. under this definition, it
is clear that the judiciary plays a large role in supporting “the rule of law” and providing access
to justice to the people. 49

Active Role of the Judiciary Branch

As discussed above, the role of the judiciary is essential .Returning to the principles that were
established by the World Justice Project, the judicial branch plays a role in all four. The first
principle holds that government, as well as individuals, are accountable under the law. Here the
courts play a vital role. When the founders established the constitution they gave the Supreme
Court the ability to stop actions taken by any level of government if they did not comply with the
constitution. This feature of judicial power protects against illegal actions taken by Congress, the
President, or any governmental agency. In those cases, the Supreme Court is charged with
applying the law as it is given to them (though they are restricted by the Constitution and
precedent), providing the courts with the ability to hold the other branches of government
accountable to “the rule of law.” Of course, the courts are also charged with holding individuals
accountable to “the rule of law.” The second principle requires that the laws are clear, publicized,
and just, and that the laws be applied evenly to protect fundamental rights, including the security
of persons and property.Here again the judicial branch plays an extensive role. The courts are
charged with applying the law to every individual circumstance that comes before them. In this
capacity, the courts can protect the fundamental rights espoused in the constitution, such as the
freedom of religion, by protecting individuals from those who would infringe upon those rights.
The third and fourth principles require the laws to be enforced in a fair and efficient fashion and
by competent, ethical, and independent representatives who have adequate resources and reflect

49
“Government of laws ,not of men “, American Democracy and The Rule of Law, Foundation of democracy and
justice, retrieved on 13/04/19
.https://idjca.org/wp-content/uploads/2015/04/White-Paper.pdf

39 | P a g e
the makeup of the communities they serve.These principles also require the courts to administer
justice efficiently and fairly; the courts need to remain independent and should only apply the
law to the facts given to them.50

Interactions of the Executive Branch and Legislative Branch

The main responsibility of the legislature is to provide the laws and policies that govern society.
After ultimate approval of these laws, it is the responsibility of the executive branch to
implement the law. The executive branch administers these laws by determining the best route to
enact the policies it has been provided by the legislature. “The rule of law” has slowly developed
over time to create limitations on the executive and legislative branches of government that
prevent them from excluding themselves from the laws they pass. If the legislature passes, or the
executive branch implements, laws inconsistent with the constitution, then the Supreme Court
can overrule them. Therefore, the executive branch occasionally needs to enforce decisions made
by the Supreme Court, such as with Brown v. Board of Education51 that decided segregation is
unconstitutional.

Alternatively, if Congress wishes to amend the constitution—possibly to overturn a Supreme

Court decision—it can under Article V of the Constitution. Article V provides that Amendments
may be proposed either by the Congress with a two-thirds vote in both the House of
Representatives and the Senate, or by a convention of states called by two-thirds of the state
legislatures. Congress then gets to determine whether the amendment is ratified by three-fourths
of the state legislatures or state ratifying conventions in three-fourths of the states.52

50
Ibid at 7
51
347 U .S , Supreme Court ,1954
52
https://idjca.org/wp-content/uploads/2015/04/White-Paper.pdf at page 8

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 HOW IS THE RULE OF LAW APPLIED DIFFERENTLY IN OTHER
COUNTRIES?
The previous section was a general overview of the government and “the rule of law” in the
United States, but there are some obvious differences in other parts of the world. This section
will briefly go over a few of those differences.53

 European Union

The European Union’s judiciary, the Court of Justice of the European Union (CJEU) is quite
remarkable because it is almost completely reliant on “the rule of law” for legitimacy. In the
European Union, each member state maintains its own complete government, including
executive, legislative, and judiciary branches. The CJEU decides cases that fall under European .
Union law in cooperation with the national judiciary of individual member nations. The court has
established jurisprudence and precedent to enforce laws across the European Union in the
interest of human rights. In order for these rulings to hold, the CJEU relies on member nations to
accept “the rule of law,” and deference to the CJEU.This deference gives legitimacy to certain
uniform legal principles being applied across 28 different countries and allows the CJEU to
maintain “the rule of law” among all its members so that none of the countries can act against the
communal laws established by the European Union.

China

On the opposite side of the spectrum lies China. A good example of China’s relationship with
“the rule of law” came on July 9, 2015, when the government rounded up 120 some civil right
lawyers and 50 support staff and detained them in prisons.For a long time, China has considered
“the rule of law” to mean the use of law to maintain control.Although Chinese officials have
made statements saying that “the rule of law” requires governing by their constitution, China has
no mechanism to enforce such proclamations.the actions that the government took in 2015
indicate there is no independent judiciary, and the government is not held accountable to
laws.Clearly China does not function under the Western notion of “the rule of law.”54

53
Ibid at page9
54
https://idjca.org/wp-content/uploads/2015/04/White-Paper.pdf

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 CONCLUSION

In conclusion, although the concept of “the rule of law” can seem opaque, it is fundamental to
protecting citizens from tyrannical governments and anarchy by providing guiding principles to
those in power. “The rule of law” is the philosophical and legal linchpin of Western society.
While the executive and legislative branches each carry out the critical task of establishing and
implementing policy across the state and country, it is the judiciary branch that holds the
government and individuals accountable to “the rule of law.”

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 RULE OF LAW IN UNITED KINGDOM
The Rule of law, in UK, was developed over the centuries as a brake on arbitrary power. The
modern concept of Rule of law owes much to the great battles between the English kings and
their subjects, the struggle for supremacy between parliament and Stuart kings, and finally the
war between the British Empire and its American Colonies. The rule of law is one of the
fundamental principles of UK 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. Thus, in the words of the
19-century constitution expert, A.V.Dicey ensures a ‘government of law’ and not a ‘government
of men’.

THE GREAT CHARTER: MAGNA CARTA

On June 15, 1215 in the meadows of Runnymede, King John and his rebellious barons agreed to
the great charter known as Magna Carta. The great charter was the first significant written
instrument limiting the power of the king and confining him to what the barons regarded as good
governance. These promises were a bargain between the king and the feudal lords dictated by the
force of arms.

Winston Churchill, in his History of English Speaking peoples, writes about the glorious legend
of the charter of an Englishman’s liberties.

“The original Articles of the barons on which Magna Carta is bases exist today
in the British Museum. In the next hundred years it was reissued times, at first with a few
substantial alterations but retaining its original characteristics”.

He concludes,

“Now for the first time the king himself is bound by the law. The root principle was destined to
survive across the generations and raise paramount long after the feudal background of 1215 had
faded in the past.

The charter became in the process of time an enduring witness that the power of the crown was
not absolute.... And when in subsequent ages the state swollen with its own authority, has
attempted to ride roughshod over the rights and liberties of the subject it is to this doctrine that
appeal has again and again been made, and never, as yet, without success.....There is a law which
is above the king and which even he must not break. This reaffirmation of a supreme law and its
expression in a general charter is a great work of Magna Carta; and this alone justifies the respect
in which men have held it”.

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The British Constitution, it is said, is founded on the “rule of law". It has been accepted as a
necessary constitutional safeguard.” The doctrine of rule of law” puts an effective control over
the increase of executive and administrative powers and keeps those authorities within their
bounds. The supremacy of the ordinary courts has been accepted a cardinal principle of law.
They, therefore, are vested with, power to control the actions taken by the administrative
authorities. What the “rule of law" requires is that the executive should not enjoy unnecessary
privileges or exemptions from ordinary law. The Judiciary, in England, it is said accept a
responsibility for the maintenance of the rule of law that embraces a willingness to oversee
executive action and to refuse to countenance behaviour that threatens either, basic human rights
of rule of law.

In Britain, the disputes between citizen and government are adjudicated by ordinary courts of
law. The right to carry a dispute with the Government before the ordinary courts is said to be an
important element in the Anglo-American concept of the rule of law.

Since a dictatorial government may confer arbitrary powers on the Executive or the Legislature,
a representative democracy is claimed to be a necessary condition for “rule of law", which
implies beneficial social and economic services and conditions. Lord Steyn, in R. v. .Home
Secretary ex. p. Pierson,55 observed:

Unless there is the clearest provision to the contrary, Parliament must be presumed not
to legislate contrary to the rule of law. And the rule of law e forces minimum standards of
fairness, both substantive and procedural.

Rule of law, as stated above, implies absence of arbitrary powers. However, the needs of the
modern functional Government make wide discretionary power inescapable. In Britain, as well,
many statutes conferred wide discretionary powers on the Executive which could not be called
into question in the Courts. The fact was brought to light by Lord Hewart in 1929 in his classic
book "The New Despotism". He had made a scathing attack on the expansion of administrative
powers of legislation and adjudication and warned that the vast opportunity had come into
existence for misuse of powers by officials. It led to the appointment of the Committee on
Ministers' Powers in 1929. As result of this criticism, the Committee on Ministers’ Powers (also
known as the Donoughmore Committee) was appointed in 1929 “to consider the powers
exercised by or under the direction of (or by persons or bodies appointed specially by) Ministers
of the Crown by way of: (a) delegated legislation, and (b) judicial or quasi-judicial decision, and
to report what safeguards are desirable or necessary to secure the constitutional principles of the
sovereignty of Parliament and the supremacy of the Law.”

55
R. v. Home Secretary ex. p. Pierson, (1998) AC 539

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In the words of Carr, the questions posed for the committee were whether Britain had gone off
the Dicey standard and, if so, what was the quickest way back.

The committee submitted its report in 1932. It found nothing fundamentally wrong in the
developments which were taking place. It accepted, however, that there were opportunities for
misuse of powers by the Administration and, therefore, made a number of suggestions to
improve the control and supervisory mechanism. The report called attention to three main defects
in the existing system of Administrative Law, viz,

(1) The inadequate provision made for publication and control of subordinate legislation;

(2) The lacuna in the law caused by the inability of a subject to sue the Crown in tort; and

(3) the extent to which the control and supervision of administrative decisions were passing out
of the hands of the courts and were being entrusted by Parliament to specialist tribunals and
enquiries.

As a result of these findings, the House of Commons came to have a Committee on Statutory
Instruments in 1944. In 1946, the Statutory Instruments Act was enacted to tidy up, to some
extent, matters relating to subordinate legislation.

This Act has been characterised as purporting to enact a “comprehensive procedural code for the
making of subordinate legislation.” It formulates rules for publication of statutory instruments
and also regulates the laying procedure before Parliament.

In 1947, Parliament enacted the Crown Proceedings Act to liberalise the law relating to civil
proceedings against the Crown. The report of the Donoughmore Committee represents the first
attempt made in Britain at systematisation of Administrative Law.

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 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, shouldn’t 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 shouldn’t be staged inferior to one another and basic constitutional principles must be
followed for the most optimum solution.

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 STUDY OF CASE: MANEKA GANDHI VS. UNION OF INDIA

INTRODUCTION
The principle of Rule of Law is indispensable to any legal and political system. It imbibes the
notions of fairness, equality and non-arbitrariness. In India, Rule of Law is embodied in
the Constitution- in the ideals enshrined in the Preamble and in Part III. Over time, the
Constitution has been interpreted by the judiciary in a manner so as to afford a liberal
interpretation to the principle. Rule of Law has been held to mean due process and a just, fair
and non-arbitrary procedure.

According to Dicey, - “The right to personal liberty as understood in England means in substance
a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any
manner that does not admit of legal justification.”

In other words, ‘personal liberty’ means freedom from physical restraint and coercion which is
not authorized by law.

Article 21 of the Constitution says, “No person shall be deprived of his life or personal liberty
except according to procedure established by law.”

Maneka Gandhi’s case is not only a landmark case for the interpretation of Article 21 but it also
gave an entirely new viewpoint to look at the Chapter III of the Constitution. Prior to Maneka
Gandhi’s decision, Article 21 guaranteed the right to life and personal liberty only against the
arbitrary action of the executive and not from the legislative action. Broadly speaking, what this
case did was extend this protection against legislative action too.56

LEGISLATIVE HISTORY OF ARTICLE 21:

Draft Article 15 (now Article 21) as originally passed by the Constituent Assembly provided
that:

“No person shall be deprived of his life or liberty without due process of law.” The Drafting
Committee introduced two changes in this Article: “(i) the addition of the word ‘personal’ before
the word ‘liberty’, and

(ii) the substitution of the expression ‘except according to procedure established by law’ for the
words ‘without due process of law’.”

56
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at 7:00 p.m.

47 | P a g e
The reason given for the first change was that “otherwise (liberty) might be construed very
widely so as to include even the freedoms already dealt with in Article 13” (now Article 19). The
reason given for the second change was that “the (substituted) expression was more specific.
They followed (8) the Japanese Constitution. ‘ The reason given for the first change was clearly
right, for Draft Article 13 (now Article 19) conferred certain freedoms only on citizens, whereas
Article 15 (now Article 21) applied to citizens and non-citizens alike, and it was wise to
foreclose the argument that the word “liberty” included the freedoms which had been denied to
non-citizens by Draft Article 13.

In Gopalan’s case the attention of the Supreme Court was drawn to the legislative history of
Article 21 which showed why the expression’ ‘due process of law’ was replaced by the
expression ‘procedure established by law’. However, it is unfortunate that legislative history of
Article 22 particularly of clauses (I) and (2), whereby the substance of ‘due process’ was
reintroduced, was not brought to the attention of the Supreme Court.57

Pre-Maneka Gandhi: Old Position

The concept of ‘personal liberty’ first came up for consideration of the Supreme Court in A.K.
Gopalan’s case.

In this case, the Petitioner had been detained under Preventive Detention Act, 1950. The
petitioner challenged the validity of his detention on the ground that it was violative of his Right
to freedom of movement under Art. 19(1)(d), which is the very essence of personal liberty
guaranteed by Art. 21 of the Constitution. He argued that the words ‘personal liberty’ include the
freedom of movement also and therefore the Preventive Detention Act, 1950 must also satisfy
the requirements of Art. 19(5). It was further argued that Art. 21 and Art. 19 should be read
together as Art. 19 laid out the substantive rights while Art. 21 provided procedural rights. It was
also argued that the words “procedure established by law” actually meant “due process of law”
from the American Constitution which includes principles of natural justice and the impugned
law does not satisfy that requirement.

Rejecting both the contentions, Supreme Court, by the majority, using the meaning given to the
phrase ‘personal liberty’ by Dicey, held that the phrase ‘personal liberty’ in Art. 21 meant
nothing more than the liberty of the physical body, that is, freedom from arrest and detention
without the authority of law. According to majority, the term ‘liberty’ was wider in meaning and
scope than ‘personal liberty’. Hence, while ‘liberty’ could be said to include Art. 19 within its
ambit, ‘personal liberty’ had the same meaning as given to the expression “liberty of the person”

57
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7:20 p.m.

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under English law. Hence, the majority took the view that Art. 19 and Art. 21 deal with different
aspects of liberty. The Court further interpreted the term ‘law’ as ‘State made law’ and rejected
the plea that the term ‘law’ in Art. 21 meant jus naturale or principles of natural justice.58

It is pertinent to mention here that in A.K. Gopalan’s case, the attention of the Supreme Court
was drawn to the legislative history of Art. 21 which showed why the expression “due process of
law” was replaced by “procedure established by law”. However, it is unfortunate that the
legislative history of Art. 22, and particularly of clauses (1) and (2), whereby the substance of
“due process” was reintroduced, was not brought to the attention of the Supreme Court.

But this restrictive interpretation of the expression ‘personal liberty’ has not been followed by
the Supreme Court in its later decisions. Like for example, in Kharak Singh’s case, it was held
that “personal liberty” was not only limited to bodily restraint but was used as compendious term
including within itself all the varieties of rights which go to make up the personal liberty of man
other than those dealt withinArt.19(1).59

MANEKA GANDHI VS. UNION OF INDIA

BRIEF FACTS OF THE CASE –

On the 4th of July, 1977, Smt. Maneka Gandhi received a letter from the Regional Passport
Office, Delhi, asking her to submit her passport (No. K-869668) within seven days from the day
on which she had received such letter, i.e. before 11th July 1977. The letter stated that it had been
the decision of the Government of India to impound her passport under Section 10(3)©of the
Passport Act 1967. The grounds for such an impounding, as told to her, was “public interest.”
Smt. Maneka Gandhi immediately sent a letter to the Regional Passport Officer, inquiring about
the grounds on which her passport had been impounded. She also requested him to provide a
copy of the ‘Statement of Reasons’ for making of such an order. The reply sent by the Ministry
of External Affairs was that it was the decision of the Government of India to impound the
passport in the interest of the general public. Also, there were orders to not issue her a copy of
the Statement of Reasons. Smt. Maneka Gandhi thus filed a petition with regards to the matter.60

ISSUE

1. Is there any nexus between the provisions mentioned under Articles 14, 19 &21.
2. Scope of the word “Procedure Established by Law.”

58
http://www.legalservicesindia.com/article/717/Maneka-Gandhi.html accessed on 12 April 2019 at 8:15p.m.
59
Ibid
60
https://www.lawfarm.in/blogs/a-case-analysis-of-the-maneka-gandhi-case accessed on 12 April 2019 at 11:00
a.m.

49 | P a g e
 3. Whether right to travel abroad resides in Article 21.
4. Whether a legislative law that takes away Right to life is reasonable.61

PETITIONER’s ARGUMENTS

1. By the administrative order of impoundment of the passport on 4th July, 1977 the
respondent has infringed Petitioner’s Fundamental Right to Freedom of Speech &
Expression, Right to travel abroad, Right to life and personal liberty & Right to
freedom of movement.
2. The provisions of Article 14, 19 & 21 are to be read in synchronization and they are
not mutually exclusive. These provisions in itself though not explicitly constitutes in
itself principles of natural justice. A combined reading of the three provisions will
give effect to the spirit of the constitution and constitution makers.
3. Even though India has not adopted American “due process of law” in its constitution,
the procedure established by law must be reasonable, fair & just free from any sort of
arbitrariness.
4. Section 10(3)© is violative of Article 21 of the constitution in the sense that it violates
the right to life and personal liberty guaranteed under the said constitutional provision.
By the virtue of this provision the petitioner was restrained from travelling abroad.
This restrain on the petitioner was unconstitutional since it was generally accepted that
right to travel abroad was within the right to life & personal liberty u/a 21.

Audi Altrem Partem . opportunity to be heard is universally recognized as an

essential ingredient of principles of natural justice. These principles of natural
justice find no explicit place in any constitutional provisions. However, the spirit
of Fundamental Rights constitutes in itself the essence of these principles. Further,
Article 32 provides an opportunity to the affected parties to directly approach Apex
Court in case there is any violation of Part III provisions. This provision of Article
32 was coined as Heart & Soul of the Constitution is equivalent to Audi Altrem
Partem. Therefore, it cannot be said that Principle of Natural Justice are separate
and exclusive to the Constitution.62

61
https://lawtimesjournal.in/maneka-gandhi-vs-union-of-india/ accessed on 11 April 2019 at 11:15 a.m.
62
Ibid

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RESPONDENT’s ARGUMENTS

1. The respondent contended before the court that the passport was impounded because
the petitioner was required to appear before some committee’s for enquiry. The
Attorney General further promised the court to do away with all the appearances in the
said committee’s as soon as possible.
2. The respondent reiterating the principle laid down in Gopalan contended that the
word law u/a 21 cannot be comprehended in the light fundamental rules of natural
justice.
3. The respondent further contended that the principles of natural justice are vague and
full of ambiguities. Therefore, the constitution should not read such vague and
ambiguous provisions as a part of it.
4. The ambit of Article 21 is very wide and it generally contains the provisions of
Articles 14 & 19. However, any law can only be termed unconstitutional to Article 21
when it directly infringes Article 14 & 19.
5. Article 21 in its language contains “procedure established by law” & such procedure
need not pass the test of reasonability. Further the said provision need not necessarily
be in conformity with the Articles 14 & 19.
6. The constitution makers while drafting this constitution had debated at length on
American “due process of law” & British “procedure established by law”. The
conspicuous absence of due process of law from the Constitutional provisions reflects
the mind of framers of this constitution. The mind and spirit of the framers must be
protected and respected.63

RATIO DECIDENDI OF THE CASE –

Ratio Decidendi is commonly defined as the reasons for the judgement. It basically refers to the
material part of the judgement without which the judge would have been unable to reach to the
present conclusion of the case.

Before stating the ratio of the case and the reasons for the same, let’s first look at Section
10(3)(c) of the Passports Act 1967 – “if the passport authority deems it necessary so to do in the
interests of the sovereignty and integrity of India, the security of India, friendly relations of India
with any foreign country, or in the interests of the general public;”

Following is the ratio of the case, with an analysis of the same –

63
Supra Note1

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Section 10(3)(c) of the Passport Act is violative of Article 14 of the Indian Constitution –

Article 14 of the Constitution talks about equality before law. This provision is absolutely
against arbitrariness or vagueness of any sort as far as the actions of the executive are concerned.
Section 10(3)(c) of the Passports Act confers unlimited powers on the passport authorities. Since
it is vague in its wordings, the application of such a provision has not been very clearly defined
in the Act. Thus, this leaves a lot of scope for the executive to interpret it in whichever way they
want, and hence get away with a lot of actions under the guise of varied interpretation.64

The provision also leads to arbitrariness in the actions of the executive. The arbitrariness comes
from the fact that it is completely in the hands of the passport authorities to decide whether or
not, and how to proceed in a particular case. The words ‘deems it necessary’ give the passport
authorities complete freedom to act in whichever manner they want, and in whichever cases they
want. Thus there is no uniformity or reasonableness in the actions of the passport authorities, and
their actions could differ from case to case.

E.P Royappa v. State of Tamil Nadu & Another,[1974] 2 SCR 348, was the judgement applied
by the Supreme Court to further justify their views. It was held in this case that Article 14 is one
of the pillars of the Indian Constitution and hence cannot be bound by a narrow and inflexible
interpretation. Article 14 should thus be given the widest interpretation possible, which also
includes reasonableness and arbitrariness of certain provisions of the legislations.

Based on these observations the Court held Section 10(3)(c) of The Passport Act violative of
Article 14 of the Constitution.

Violation Of The Principle Of Natural Justice: The Audi AlteramPartem Rule –

The audialterampartem rule is one of the three principles of natural justice, and forms an
important part in defining the constitutionality and fairness of any procedure. The literal
translation of audialterampartem is “hear the other side”. In a layman’s language it basically
means that both the sides should be given the opportunity to present their case before a decision
is formulated for the case. In the present case, Maneka Gandhi was denied reasons for the
impounding of her passport, which is unfair since every person has the right to know the grounds
on which any executive action is being taken against him/her. Also, she was never given a
chance to present her own case before the authorities.

The principle of audialterampartem requires that before the final order for the impounding of her
passport was passed, Smt. Maneka Gandhi should have been given a chance to approach the
authorities and to bring to light her part of the story so that the order for impounding of the

64
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p.m.

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passport would have been just. There is always the possibility of arriving at a one sided
conclusion when only one party has been heard and the other is denied that opportunity. Thus to
keep the orders completely objective and free from bias, it is absolutely imperative that both
parties to a situation must be given a chance to put forward their side of the story.

In the present case, during the Court proceedings itself, the passport authorities ultimately ceded
to the fact that they had been wrong in not providing Smt. Maneka Gandhi a chance to present
her case. Thus, they ultimately agreed to withhold the order and give her a chance to present her
case before the concerned authorities. But what is important to note is that the authorities had
been held wrong in the first place, and only to mitigate the blame had they accepted to let her
present her case. The final change of events prevented them from being held liable. Otherwise,
they were definitely in the wrong and even the Court had held that their action had been arbitrary
and contrary to the principles of natural justice.

Section 10(3)(c) not Violative of Article 19(1)(A) and Article 19(1)(g) of the Constitution –

Article 19(1)(a) of the Constitution talks about the freedom of speech and expression guaranteed
to all citizens of the country. Article 19(1)(g), on the other hand, talks about freedom to carry out
any trade and profession. Smt. Maneka Gandhi had alleged that the order to impound her
passport also violates these two rights of hers. She alleged that the freedom of speech and
expression also includes in its ambit the right to travel abroad to express oneself among the
people of other nations. Thus according to her, the freedom of speech and expression also
included the right to go abroad to mingle with people, to carry out an exchange of ideas, to be
able to converse with the people of other nations, and thus to be able to freely speak and express
oneself outside India as well. Now since she had been denied the right to travel out of India due
to the impounding of her passport, she alleged that her right to freedom of speech and expression
had been violated. The same way, she said that since she was a journalist, it was part of her
profession to travel to different parts of the world, to cover news issues. Thus by denying her the
opportunity to travel abroad, the passport authorities had violated her right of trade and
profession.

It was held by the Court that even though the above mentioned contentions were correct and that
such an order would in fact amount to violations of Article 19(1)(a) and 19(1)(g), there was
nothing to prove that Ms. Gandhi was scheduled to travel on an official tour at the time the
impugned order was passed and her passport was impounded. Neither was there anything to
prove that she had some earnest need to travel abroad towards realization of her right of
expression under article 19(1), for eg. Public speaking, dancing, literature, art, etc.Thus this
argument was rejected and the order was not held to be violative of Articles 19(1)(a) and
19(1)(g).

53 | P a g e
However, the Court did go on to clarify that if at any point of time in the future she was denied
her passport from the government when she needed or wanted to travel abroad to exercise either
of the two rights under 19(1)(a) and 19(1)(g) and the government denied such rights it would be
considered to be an infringement of these two fundamental rights.

The order is violative of Article 21 of the Indian Constitution:

In the case of Satwant Singh Sawhney v D. Ramarathnam, Assistant Passport Officer,

Government of India, New Delhi & Ors, the Supreme Court held by a majority judgement that
the expression 'personal liberty' in Article 21 takes in the right of locomotion and travel abroad,
and under Article 21 no person can be deprived of his right to go abroad except according to the
procedure established by law. This decision was accepted by the Parliament and the infirmity
pointed out by it was set right by the enactment of the Passports Act, 1967.

Keeping in mind this right, Smt. Maneka Gandhi alleged that her right to travel abroad had been
violated by the passport authorities. Also, the clause talking about ‘procedure established by law’
was contended in that the procedure adopted in this case was arbitrary and unfair. Maneka
Gandhi contested that the procedure in this particular case was violative of the audi alteram
partem rule; it was arbitrary in that she was denied the statement of reasons for the impounding
of her passport; and it was also violative of her fundamental rights because she was being denied
the right to travel abroad under Article 21, without being given valid reasons for the same.

As far as the procedural discrepancy was concerned, the attorney for the government accepted
the fact that the actions had been arbitrary and hence she was given the chance to put forward her
contentions. Thus that anomaly was taken care of. As far as the question of her fundamental
rights was concerned, it was held that true her fundamental right had been violated, but it was in
the interest of the general public. The Court has adopted a liberal interpretation of Article 21 in
the case, and expanded its ambit by leaps and bounds. However, the Court has refrained from
outrightly commenting on this issue in this particular case.

OBITER DICTA OF THE CASE –

Freedom of Speech and Expression {Article 19(1)(a)} is not bound only to the national
territories of India –

This was a landmark opinion of the Court and one that was highly celebrated by the entire
country. The Court in the course of this case opined that the right to freedom of speech and
expression, as guaranteed to all the citizens of the country, was limitless in that it had given to
the citizens a vast number of rights irrespective of whether they were in India or abroad. The

54 | P a g e
Court held that if the Constitution makers had intended this right to be bound by the territories of
the country, then they would have expressly mentioned so as they have done for various other
rights, such as the right to settle down freely, or the right to assemble freely. However, since no
65
such words had been added at the end of this provision, the Court felt that it was its duty to
give it the widest interpretation possible.

Also, supporting this view was the fact that the Universal Declaration of Human Rights was
adopted by the General Assembly of the United Nations on 10th December, 1948 and most of
the fundamental rights which we find included in Part III were recognised and adopted by the
United Nations as the inalienable rights of man in the Universal Declaration of Human Rights.
This further supported the view of the Court in that even though Indian Courts may not have

jurisdiction outside the territory of India, but these rights as guaranteed by the Indian
Constitution would still be maintained since they were now fortified by the Universal
Declaration of Human Rights which was adopted by almost all the countries around the globe.

Giving this kind of an opinion was a landmark judgement and even though it may not have the
value of a precedent (since it is an obiter),Courts all over the country have adopted this view of
the Supreme Court, and used it in their judgements.

Article 21 is not to be read in isolation; all violations and procedural requirement under Article
21 are to be tested forArticle 14 and Article 19 also.

The Supreme Court in the present case had adopted the widest possible interpretation of the right
to life and personal liberty, guaranteed under Article 21 of the Constitution. Bhagwati, J.
observed:

“The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of
rights which go to constitute the personal liberty of man and some of them have raised to the
status of distinct fundamental rights and given additional protection under Article 19.”

Also, with respect to the relationship between Article 19 and Article 21, the Court held that
Article 21 is controlled by Article 19, i.e., it must satisfy the requirement of Article 19. The
Court observed:“The law must therefore now be settled that Article 21 does not exclude Article
19 and that even if there is a law prescribing a procedure for depriving a person of personal
liberty, and there is consequently no infringement of the fundamental right conferred by Article
21 such a law in so far as it abridges or takes away any fundamental right under Article 19 would
have to meet the challenges of that Article.”Thus a law “depriving a person of ‘personal liberty’

55 | P a g e
has not only to stand the test” of Article 21, but it must stand the test of Article 19 and Article 14
of the Constitution as well.66

JUDGEMENT

This landmark judgment came on 25th January 1978 and changed the landscape of the
Constitution of India. This judgment expanded the scope of Article 21 exponentially and this
judgment truly & really made India a welfare state as promised in the Preamble. The seven judge
bench gave a unanimous decision except some judges concurring on some points.

There were seven separate opinions in which the majority opinion was written by Justice
Bhagwati for himself, Untwalia& Fazal Ali jj. while Chandrachud, Iyer& Beg (CJ) wrote
separate but concurring opinions.

The major findings of the court were as follows:

The court while delivering this landmark judgment changed the landscape of the Constitution by
holding that though the phrase used in Article 21 is “procedure established by law” instead of
“due process of law” however, the procedure must be free from arbitrariness and irrationality.

Even though the Constitution makers must be respected, but they never intended to plant such a
self – destructive bomb in the heart if the Constitution. They were never of the mind that the
procedure need not necessarily be reasonable, just and fair. They drafted this Constitution for the
protection of the “people of India” and such interpretation of Article 21 will be counter-
productive to the protection offered by the Constitution.

The court overruled Gopalan by stating that there is a unique relationship between the provisions
of Article 14, 19 & 21 and every law must pass the tests of the said provisions. Earlier
in Gopalan the majority held that these provisions in itself are mutually exclusive. Therefore, to
correct its earlier mistake the court held that these provisions are not mutually exclusive and
dependent on each other.

The court held that the scope of “personal liberty” is not be construed in narrow and stricter
sense. The court said that personal liberty has to be understood in the broader and liberal sense.
Therefore, Article 21 was given an expansive interpretation. The court obligated the future courts
to expand the horizons of Article 21 to cover all the Fundamental Rights and avoid construing it
in narrower sense.

The right to travel abroad as held in Satwant Singh is within the scope of guarantees mentioned
under Article 21.

66
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Section 10(3)(c) of Passport Act 1967 is not violative of neither Article 21 nor Article 19(1)(a) or
19 (1)(g). The court further held that the said 1967 provision also not in contradiction of Article
14. Since the said provision provides for an opportunity to be heard. The court rejected the
contention of petitioner that the phrase “in the interests of the general public” is not vague.

The court held that Section 10(3)(c) & 10(5) is an administrative order therefore, open to
challenge on the grounds of mala fide, unreasonable, denial of natural justice and ultra vires.

The court also suggested government to ordinarily provide reasons in every case and should
rarely use the prerogative of Section 10(5) of the 1967 act.

The rights discussed under 19(1)(a) & 19(1)(g) are not confined to the territorial limits of India.67

CRITICAL ANALYSIS
The court in commendable way overruled the regressive decision of Gopalan. The court by
delivering this judgment has served the common people. The court unanimously came harshly
upon the contention of the respondent when it contended that the procedure established by law
need not necessarily be just, fair and reasonable. The respondent’s argument that the law is valid
as long as it is not repealed by the legislature. The court rightly rejected this faulty argument of
the respondent and gave the Right to Life and Personal Liberty a new expansive and liberal
interpretation.

The court held that though the phrase used in Article 21 is “procedure established by law”
instead of “due process of law” however, the procedure must be free from arbitrariness and
irrationality. The court also managed to respect and protect the sanctity of the Constitution
makers by this black stain that the legislature was trying to portray. The procedure established by
law must satisfy certain requisites in the sense of being reasonable and just and it cannot be
arbitrary depriving the citizens the Fundamental rights.

The court also for once and for all rested the debate by holding that each Fundamental Rights are
not distinct from each other whereas they are mutually dependent on each other. In this regard
Justice Iyer has very well opined that no Article in the Constitution is an island in itself.
Bhagwati j. held that the procedural law has to meet the requirements of Articles 14 & 19 to be a
valid law under Article 21The importance of Maneka Gandhi is limitless and the way the apex
court grabbed the opportunity to expand the horizons of Article 21 is commendable. The benefits
that accrued to Indian citizens can be very well understood by the aftermath of Maneka
Gandhi when courts begin to insert every possible socio-economic and cultural right in the scope
of Article 21. The court in a catena of cases applying the ratio of this judgment have held Right

67
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to clean Air, Right to Clean Water, Right to freedom from Noise Pollution, Speedy Trial, Legal
Ai, Right to Livelihood, Right to Food, Right to Medical Care, Right to Clean Environment]etc.,
as a part of Right to Life & Personal liberty mentioned u/a 2168.

In all these above cases it is this judgment which has paved the way for the courts to interpret
Article 21 in a manner which is beneficial for the common people. The judiciary has through this
judgment installed a new weapon of fulfilling the objective set out in the Preamble in its arsenal.

 DUE PROCESS OF LAW

The origin of the "Due Process of Law" can be traced from the English common law - it was
stressed first during the reigns of Henry I (1100-1135) and Henry 11(1154-1189) due process has
its basis also in Magna Carta of 1215. This is confirmed from the following proposition : "No
man shall be taken or imprisoned, disseized or in any way destroyed, save by the lawful
judgement of his peers and by the law of the land. "

Due process of law is a unique clause of the American Constitution. It is a very broad and
flexible concept and it is difficult to give a precise definition of due process. The literal meaning
of due process is the 'guarantee of fair procedure'.

Due process of law has two aspects. Both these aspects together constitute due process in its
entirety. But these two aspects of due process sometimes overlap each other and it becomes
virtually difficult to demarcate them independently. The two aspects of due process are :
Substantive Due Process and Procedural Due Process. These two aspects cannot be defined and
they are not separable from one another, they overlap each other. Substantive due process refers
to the content or subject matter of a law or an ordinance, whereas procedural due process refers
to the manner in which a law, an ordinance, an administrative practice or a judicial task is carried
out. In both the substantive and procedural due process concepts the judicial test of
constitutionality or legality is the same.69

 PROCEDURE ESTABLISHED BY LAW:

Article 21 of our Constitution lays down that no person shall be deprived of his life or personal
liberty except according to procedure established (19) by law. Two expressions are important in
Article 21 : (1) life and (2) Personal liberty . They are guaranteed and can be affected only by
'procedure established by law' . This article is not intended to be constitutional limitation upon
the power of the Legislature. Its object is mainly to serve as a restraint upon the Executive so that

68
Ibid
69
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12:00p.m.

58 | P a g e
it may not proceed against life or personal liberty of an individual except under the authority of
some law and in conformity with the procedure laid down therein.70

 DUE PROCESS: THE INDIAN CONTROVERSY:

During the drafting process of the Indian Constitution there was a great controversy over the
adoption of right to liberty from the Fifth and Fourteenth Amendments to the American
Constitution. The Advisory Committee on Fundamental Rights had recommended:

"No person shall be deprived of his life or liberty without due process of law."

The Drafting Committee changed it to the present form with 'procedure established by law,' a
term taken from the Japanese Constitution. Some members opposed this change; some
favoured. The elimination of `due process' may be said to be the result of the influence of B. N.
Rau, the Constitutional Advisor at the time of drafting the Constitution." In fact the aim of the
change from 'due process' to 'procedure established by law' was to shield the vital social
legislation from judicial attack on the basis of Fundamental Rights. To include the due process in
the constitution, B. N. Rau warned, "might open to litigation tenancy and property laws as well
as laws concerning debt, moneylenders, and miniumum wages." He made a vain attempt to
amend the draft Constitution in order to give predominance of Directive Principles of State.
Policy over Fundamental Rights but tried to obtain the same result by suggesting elimination of
due process clause. Commentators observe that it was not clear precisely what happened when
this change has been done. The change has been severely criticised by some founding fathers"
and meekly followed by some others. The repercussions among the public on the change were
most unfavourable during the period.

The justification for deleting the due process according to the Drafting Committee. was merely
that the procedure established by law is more specific and finds a place in Article 31 of the
Japanese Constitution of 1946. This looks to be silly. The rationale behind the removal of due
process seems to have been the conviction that preventive detention was necessary for public
safety, especially to tackle the problems of communal violence which was acute at that time.
Probably the founding fathers did not know in which direction the ship of democracy which they
were christening would go and which heavy weather it would be meeting in the future. They
wanted to have a built-in control mechanism of checking unhealthy and indiscriminate use of
democratic process.71

70
Ibid
71
Supra note 1

59 | P a g e
Post-Maneka Gandhi: New Dimension
In Maneka Gandhi’s case, the meaning and content of the words ‘personal liberty’ again came up
for the consideration of the Supreme Court. In this case, the petitioner’s passport had been
impounded by the Central Government u/s 10(3)(c) of the Passport Act, 1967. Here, the Supreme
Court not only overruled A.K. Gopalan’s case but also widened the scope of words ‘personal
liberty’ considerably. Bhagwati, J. observed:

“The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of
rights which go to constitute the personal liberty of man and some of them have raised to the
status of distinct fundamental rights and given additional protection under Article 19.”

With respect to the relationship between Art. 19 and Art. 21, the Court held that Art. 21 is
controlled by Art. 19, i.e., it must satisfy the requirement of Art. 19. The Court observed:

“The law must therefore now be settled that Article 21 does not exclude Article 19 and that even
if there is a law prescribing a procedure for depriving a person of personal liberty, and there is
consequently no infringement of the fundamental right conferred by Article 21 such a law in so
far as it abridges or takes away any fundamental right under Article 19 would have to meet the
challenges of that Article.”

Thus a law “depriving a person of ‘personal liberty’ has not only to stand the test” of Article 21
but it must stand the test of A.14 and A.19 of the Constitution.72

CONCLUSION
The Maneka Gandhi judgment was a balanced judgment and is one of the best judgments that
Indian Supreme Court has ever given. The judgment’s greatest feature was the interlinking it
established between the provisions of Article 14, 19 & 21. By the virtue of this link the court
made these provisions inseparable and a single entity. Now any procedure to be valid has to meet
all the requirements mentioned under Article 14, 19 & 21. Therefore, it expanded the scope of
personal liberty exponentially and protected the constitutional and fundamental right to life to a
great extent.

The judgment while saved the citizens from unquestionable actions of Executive also saved the
sanctity of Parliamentary law when it did not strike down Section 10(3)(c) & 10(5) of 1967 Act.
The court also reminded the authorities to only rarely use the prerogative of section 10(5) so as
to satisfy that their actions were rational and well thought. The court held that Section 10(3)(c) &

72
http://www.legalservicesindia.com/article/717/Maneka-Gandhi.html accessed on 12 April 2019 at 12:15 p.m.

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10(5) is an administrative order therefore, open to challenge on the grounds of mala fide,
unreasonable, denial of natural justice and ultra vires.

The judgment’s importance can be seen today also because the way in which the bench
construed Article 21 and expanded its horizons has given way for the resolving of problems left
unsolved by the Parliament. It’s quite evident that this judgment has played an imperative role in
construing Right to clean Air, Right to Clean Water, Right to freedom from Noise Pollution,
Speedy Trial, Standard Education, Fair Trial, Legal Aid, Right to Livelihood, Right to Food,
Right to Medical Care, Right to Clean Environment etc., as a part of Right to Life & Personal
liberty mentioned u/a 2173.

The Constitution must in all circumstances be considered supreme, and the laws made by the
legislature should pass the test of reasonableness and the objectives of the Constitution. If any
organ of the Government crosses its limits or encroaches upon the powers of the other organs or
exceeds its jurisdiction, the act shall be considered as invalid and any abuse of law or any action
shall be termed as void ab initio; and the principle of checks and balance will come into play to
ensure the sustenance of the principle of Rule of Law.74

73
https://lawtimesjournal.in/maneka-gandhi-vs-union-of-india/ accessed on 12 April 2019 at 12:20 a.m.
74
http://shodhganga.inflibnet.ac.in/bitstream/10603/175021/7/06_chapter%202.pdf accessed on 12 April 2019 at
12:30 a.m.

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 BIBLIOGRAPHY
Books referred:

 Dr. J.J.R. Upadhyaya, Administrative Law, Central Law Agency, Allahabad, 2015.
 Dr. Aditya Kesari, Lectures on administrative law,Central law publications, Allahabad, 2014.
 Dr. Narendra Kumar, nature and concepts of administrative law, Allahabad law agency,
Faridabad.

Websites referred:

 https://www.lawteacher.net/free-law-essays/administrative-law/origin-and-concept-of-rule-of-
law-administrative-law-essay.php
 http://www.aidiaasia.org/research-article/sanctity-of-judiciary-must-for-maintaining-rule-of-law-
constitutionalism
 http://shodhganga.inflibnet.ac.in/bitstream/10603/175021/7/06_chapter%202.pdf
 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1761506
 https://iasscore.in/national-issues/concept-of-rule-of-law
 https://lawtimesjournal.in/maneka-gandhi-vs-union-of-india/
 http://shodhganga.inflibnet.ac.in/bitstream/10603/175021/7/06_chapter%202.pdf
 https://www.lawfarm.in/blogs/a-case-analysis-of-the-maneka-gandhi-case
 http://www.legalservicesindia.com/article/717/Maneka-Gandhi.html
 https://idjca.org/wp-content/uploads/2015/04/White-Paper.pdf
 https://oll.libertyfund.org/pages/rule-of-law-us-constitutionalism
 https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law
 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1761506

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