SYMBIOSIS LAW SCHOOL, PUNE

ADMINISTRATIVE LAW
(ASSIGNMENT NUMBER:1)

RULE OF LAW IN ADMINISTRATIVE LAW

SUBMITTED TO: BY:

PROF.PALLAVI MISHRA PREETHI KAVILIKATTA
PRN: 14010122025
2nd YEAR, LL.B
 RULE OF LAW IN ADMINISTRATIVE LAW

Index

Serial no Particulars Page no

1 Introduction 3
2 The Rule of Law 2-5
3 The Rule of Law under Indian Constitution 6
4 The Rule of Law-Judicial Review 6-7
5 Conclusion 8
6 Bibliography 9

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Abstract

This paper aims to touch all aspects of administrative law that are interlinked to the concept
of the Rule of Law. To evaluate this concept in totality, this paper has brushed through the
basics, beginning from its origin to its subsequent developments. After which a progression
has been made to the Indian Constitutional and Judicial aspects of this concept, which are of
highest importance.

1. Introduction

Private law is not an unfamiliar notion. It refers to branches of law such as torts and
contract. The focus of private law is mainly on individuals, principally concerned with
their duties and obligations that they owe to one another. However, such a
relationship can also be established between the government and its administrative
bodies1 with the same class of private individuals. Government has certain powers
and functions, for which a separate body of law to regulate such an exercise is
required; this brings into the picture- administrative law.

The central purpose of administrative law is to promote good governance that

includes: efficient and honest action to be taken by administrative bodies for public
good, to consider the opinions of the individuals likely to be affected by their
decisions, taking their view into account, to operate in fair, transparent and unbiased
fashion, to always seek to serve the public interest, to respect the rights of the
individuals.

The above formulation, however, restricts itself to the scope of administrative law as
commonly accepted in common law countries. Administrative law specialists in
England and India mainly focus their attention on various aspects of judicial control
of administrative decisions and actions. Hence, to delve deeper, a better understanding
of “The Rule of Law” as a concept is a necessity.

2. The Rule of Law

2.1 The Rule of Law- History, Evolution and Growth.

Administrative law is a recent phenomenon. The reason for its growth seems to be
the mistrust among people regarding the administrative process. The weapon
which people used to strike at the growth of Administrative law was Dicey’s
formulation of the concept of Rule of Law. But before we get to Dicey’s
interpretation, it is important to know the events that snowballed over time to form
this concrete concept.

1
Administrative body includes corporations, commissions, corporations, boards, departments or divisions; The
Free Dictionary Farlex

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The term ‘The Rule of Law’ is of old origin. The term is derived from the Latin
phrase ‘la legalite,’ which refers to a government based on principles of law and
not of men. In this sense, the concept of ‘la legalite’ was opposed to arbitrary
power. In jurisprudence, Romans called it ‘jus naturale’, Mediaevalists called it
the “Law of God”, Hobbes, Locke and Rousseau called it “social contract” or
“natural law.”

To pinpoint and mention one source as the origin of this concept is difficult. It is
however said that Holy Roman Emperor Konrad II (1024-1039 A.D) first decreed
in his great feudal law compilation of May 28, 1037 that “no holder of a feudal
estate shall be deprived of his fief…, but by laws of the Empire and the judgment
of his peers.” More known is King John Lackland’s English Magna Carta of 1215
which in chapter 39 postulated: “No free man shall be taken or arrested or
disseised or exiled or in some way destroyed, nor will we go upon him nor will we
send for him, except under a lawful judgment of his equals and by the law of the
land.”

In modern times, however, Edward Coke is considered the originator of this

concept when he said that King must be under God and Law and thus vindicated
the supremacy of law over the pretensions of executives. Professor A.V Dicey
later developed on this concept in the course of his lectures at Oxford University.
Dicey wrote the concept of the Rule of Law at the end of the golden Victorian era
of laissez faire in England. That was the reason why Dicey’s concept of the Rule
of Law contemplated the absence of wide powers in the hands of the government
officials because, according to him, whenever there is discretion there is room for
arbitrariness2.

The term Rule of Law can be used in two senses: (i) Formalistic sense; and (b)
Ideological sense. If used in the formalistic sense it refers to organised power as
opposed to a rule by one man and if used in an ideological sense it refers to
regulation of relationship of the citizens and the government.

Dicey’s formulation of the concept of “Rule of Law” which according to him

forms the basis of English Constitutional Law contains three principles:

(a) Absence of discretionary power in the hands of the government officials. By

this Dicey implies that justice must be done through known principles.
Discretion implies absence of rules, hence in every exercise of discretion there
is room for arbitrariness.
(b) No person shall be made to suffer in body or property except for a breach of
law established in the ordinary legal manner before ordinary courts of the
land. In this sense, the Rule of Law implies:

2 th
Dicey: Law of the Constitution, 8 Edition, p.198

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1. Absence of special privileges for a government official or any other

person;
2. All the persons irrespective of status must be subjected to the ordinary
courts of the land;
3. Everyone should be governed by the law passed by the ordinary
legislative organs of the State;
(c) The rights of the people must flow from the customs and traditions of the
people recognised by the Courts in the administration of justice.

2.2 Evaluation of Dicey’s thesis with relation to Administrative Law.

Dicey had a misconception that administrative law was no part of the Rule of
Law. This misconception arose on the ground that Dicey understood
“Administrative Law” as a mere translation of the French Droit Administraif
which spoke of a special system of administrative courts manned by officials who
dealt a queer kind of justice as between States and private individuals. In France,
the disputes between these two parties were tried by a special court and a special
law was applicable. From this Dicey concluded that this spells the negation of the
concept of The Rule of Law which is a secret of Englishman’s liberty. Dicey had
believed that there is no administrative law in England.

2.3 The Rule of Law- Modern perspective

Administrative Law today has been developed not to sanctify arbitrariness of

administration but to check and protect the rights of the people against the
administration’s excesses. The modern concept of the Rule of Law is fairly wide
and, therefore, sets an ideal for any government to achieve. This concept was
developed by the International Commission of Jurists, known as Delhi
Declaration, 1959 which was later on confirmed by Lagos in 1961. The main
focus was to create conditions in which the dignity of a man as an individual is
upheld.

The Commission divided itself into certain working groups which used to give
content to the concept in relation to an individual’s area of activity in society,
which were:

(1) Committee on Individual liberty and Rule of Law.

(2) Committee on Government and Rule of Law.
(3) Committee on Criminal Administration and Rule of Law
(4) Committee on Judicial Process and Rule of Law.

Emphasising on the widespread acceptance of the Rule of Law, Wade and Phillips
stated that “Most countries outside the Communist world accept that the rule of

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law has a positive content, no matter how much that content may differ in the
various countries.”

3. The Rule of Law under the Indian Constitution.

The Rule of Law in a planned society as in India has been discussed by Justice
Ramasamy of the Supreme Court of India3 He has said that in administration there is
an obvious need for individual action; the call for speedy determination, necessity of
direction, guidance and expert advice is required. A large measure of discretion and
freedom is therefore conferred upon Government officials for carrying out
administrative schemes. Hence, unless there is Rule of Law, there is danger that the
administration would become totalitarian.

It may be clearly stated that the Rule of Law in modern India has to be exercised,
fostered and respected within the framework of the Constitution. The fundamental
rights set out in Part III of the Constitution is the charter of such rights to the citizens
such as,

(1) Right to Equality (Articles 1 to 18)

(2) Right to seven freedoms (Article 19 to 22)
(3) Right against exploitation (Article 23- Article 24)
(4) Right to freedom of religion (Article 25-28)
(5) Cultural and Educational Right (Articles 29-30)
(6) Right to property (Article 31)
(7) Right to enforce fundamental rights (Article 32 and 226)

Part IV (Directive Principles of State Policy. Article 36-51) although not justiciable
are mandatory as instruments of instructions to the Government that recognises the
Rule of Law.

4. The Rule of Law- Judicial Review under the Indian Constitution.

There are two models of administrative law which are polar opposites- called the “red
light” and “green light” model. The red light view as elaborated by Harlow and
Rawling4 holds that the ‘primary function of administrative law should be to control
the excess of state power’ and to subject the exercises of such power ‘to the rule of
law courts.’ A different approach is commended by green light theory as explained by
Harlow and Rawlings5 which minimizes the courts’ influence on administration. In
reality, most administrative systems reflect aspects of both traditions, relying upon a
combination of external, court-based control and internal regulation of administrative
process. Harlow and Rawlings6 acknowledges the reality that reality presently lies

3
Journal of the Indian Law Institute (1958-59),pp.31-32
4
Law and Administration (Cambridge 2009), ch1
5
Law and Administration (Cambridge 1997) at pp 67-74
6
Law and Administration (Cambridge 1997) at pp 127

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somewhere between the pure red and green light models, in an “amber light theory”
which recognizes both the “fire watching” and “fire-fighting” functions of this law.
In the words of Sir John Donaldson MR in R Vs Lancashire County Council, ex parte
Huddleston7, “a new relationship [has emerged] between the courts and those who
derive their authority from public law, one of partnership based on a common aim,
namely the maintenance of the highest standards of public administration.’

The Rule of Law in India means the supremacy of the Constitution and the validity of
the enacted law. In the first instance, it binds the Legislature and forbids it from
ignoring the constitutional limitations. A law should be valid law consistent with the
provisions of the Constitution. If in Contravention of the Constitution, it is void.
Some legislations like in India specifically states that if an individual is not content
with a particular administrative decision or act, then a right of appeal lies to a tribunal,
court or Minister. When legislation does not provide for appeal, the decision will still
be open to judicial review. The Supreme Court and State High Court can judicially
review it; can declare it ultra vires the legislative power.

In the opinion of some of the Judges constituting the majority in Keshavanada

Bharati Vs State of Kerala8, the Rule of Law is a basic intent of the Constitution apart
from democracy. This basic element of the Rule of law postulates the pervasiveness
of the spirit of law throughout the whole range of government in the sense of
excluding arbitrary official action in any sphere.

Except during an emergency the executive cannot deny a person his life and personal
liberty, except according to procedure established by law.9 However in A.D.M
Jabalpur Vs Shivkant Shukla10 popularly known as Habeas Corpus case, an attempt
was made to challenge the detention orders during Emergency on the ground that
violates the principles of Rule of Law. However, the contention did not succeed.

A person cannot arbitrarily be arrested, re-arrested, detained or imprisoned. He cannot

be subject to police surveillance or internment unless the officer requiring him to
restrict the movement to any given area can show legal warrant to justify his action11.
He cannot also be prevented from going to any place outside India by an arbitrary
denial of passport12. An authority thus cannot ad arbitrarium order arrest or make
detention of a person on strength of his executive fiat, or under direction of a superior
executive officer13. Deprivation of property save authority of law is forbidden14 The
acquisition or requisition of property should be only for public purposes, and that too
7
[1986] 2 All ER 941 at 945
8
(1973) 4 SCC 225, Mohinder Singh Gill Vs. Chief Election Commissioner (1978) SCC 405 at 431, para 30.
9
Article 21
10
(1976) 2 SCC 521
11
Kharak Singh Vs State of Uttar Pradesh, IR 1963 SC 1295
12
Maneka Gandhi Vs Union of India, AIR 197 SC 597; Satwant Sawhney Vs Passport Officer, AIR 1967 SC 1836.
13
Eshugbayi Eleko Vs Officer Administering Nigeria, AIR 1931 PC 248 (252)
14
Shiv Bahadur Vs State of Vindhya Pradesh, AIR 1953 SC 394

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on condition of payment of compensation fixed by statute, or determined in

accordance with the principles and the manner specified in law15. No tax should be
levied or collected except by authority of law16.

That the Rule of Law is unmistakably proclaimed by the Constitution cannot be

denied. Based on judicial dicta a testament of rule of law may thus be attempted as
follows:-

1. The rule of law is the basis for democracy, which must be an essential feature of
the Constitution.
2. The rule of law postulates the pervasiveness of the spirit of law throughout the
whole range of Government in the sense of excluding arbitrary official action in
any sphere (Mathew J.)
3. The State should not violate the citizens’ rights, liberties and freedoms in any
manner whatever;
4. The power of punishment, deprivation or impairment of citizens’ legal interests
and rights should be exercised, except in accordance with the procedure
established by law, or save by authority of law.
5. The rule of law further requires that exercise of powers of Government shall be
conditioned by law, and that subject of the exceptions to the doctrine of equality,
no one shall be exposed to the arbitrary will of the Government.

The Supreme Court and High Courts have thus been at pains to warn against any
tendency to impair the norms of the Rule of Law.

5. Conclusion

Regardless of the majestic premises of the Rule of Law talk, it is said that not everyone
remains beneficiary. Even in societies where there is Rule of Law, there remains scope for
grave and continuing excesses of power. We have daily examples splashed across media,
where celebrities get away from grave charges of culpable homicide, a Chief Minister of the
opposition party is politically targeted and a raid is conducted, vulnerable social groups are
constantly targeted by police officials (extra-judicial killings) etc. In a book called Politics of
the Judiciary, the author Griffith argues that, judges cannot be politically neutral because
they are forced to make political choices that are inevitably affected by the rather narrow
social, educational, and ethnic backgrounds from which the Judiciary is presently drawn.
Hence, judicial review can also be subject to prejudice.

15
Venkataraman Vs Union of India, AIR 1954 SC 375; Maqbool Hussain Vs State of Bombay, AIR 1953 SC 325
16
Moopil Nair Vs State of Kerala, AIR 1961 SC 552; Basheshar Nath Vs Commissioner of Income Tax, AIR 1959
SC 149; Bengal Immunity Co Ltd Vs State of Bihar, AIR 1955 SC 661; Chatturam Horilram Vs Commisioner of
income Tax, AIR 1955 SC 619

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Bibliography:

-Administrative law: Text, Material, Elliot Mark, 2011, Oxford University Press, 4th
Edition.

-Jain and Kagzi: Indian Administrative Law, Delhi Universal Law Publishing

-Administrative Law by Ramchandra, Eastern Book Company

-Administrative Law, I.P Massey, Eastern Book Company