Rule of Law

The phrase Rule of Law originated from the latin phrase, “la legalite” which represents rule
based on principle of law and not on a man. Thus, rule of law is averse to arbitrary powers.
Edward Coke is said to have originated this concept when he said that the King must be
under the God and the Law, thereby emphasizing the supremacy of law over the pretentions
of the executive.

For AV Dicey, an individualist, rule of law constitutes

1. Supremacy of law
2. Equality before law
3. Law as a result of human rights
He further said that there exists no Administrative law in England. But later, he realized his
mistake and went on to profess that there is a wide subject of administrative law in England
and that the executants of the king enjoy special privileges because of the perception that the
kind could do no wrong.

Doctrine of separation of powers

Although doctrine of separation of powers could be traced back to Aristotle, it could formally
be said to have been developed by the French philosopher Montes Eviu.
The doctrine of separation of powers consists 3 things:
1. No one person can at one point of time, hold offices in more than one of the three
organs of the government,
2. One organ cannot interfere in the duties of another organ
3. One organ cannot undertake to perform the duties meant to be performed by another
organ
The doctrine does not hold any constitutional value in India. The closest that the constitution
gets to the doctrine of separation of powers is when Article 50 urges immunization of
Judiciary from interference of other two organs. Although K.T. Shah, member of constituent
assembly proposed induction of the doctrine into the constitution, the same was not favoured
by the assembly.

Example, the President exercises

Legislative power under Art. 123
Judicial power under Art. 103
Executive power under being an executive head

It has been held in Ram Jawaya Kapur that India does not contemplate doctrine of separation
of powers stricto sensu and only adopted a functional doctrine where the functions of each of
the three organs are sufficiently differentiated and assumption of functions of an organ by
another organ is not contemplated.

The Indira Gandhi v Raj Narain case too held that India does not have the doctrine in strict
sense as in the United States or Australia.

However, the case of Keshavananada Bharati has held that the doctrine of separation of
powers is of the nature of basic structure and hence cannot be distanced from even by the
usage of Art. 368.
However, in the current globalization, liberalization and privatization era, doctrine of
separation of powers cannot merely be restricted in understanding to checks and balances but
a community of powers exercised in the spirit of cooperation by various organs of the state in
the best interest of the people.

Marbury v Madison: The Supreme Court case of Marbury v. Madison (1803) was the first
case in which the court declared an act of Congress to be unconstitutional. The ruling
established the Supreme Court's power of judicial review and solidified the court as a coequal
branch of government, reinforcing the doctrine of the separation of powers.

Delegated legislation

Austin says that there can be no legislation without a legislative act. However, under
pressure, when the Legislature delegates the power to legislate, the result is delegated
legislation.

The term delegated legislation is used in two senses

1. Delegated legislation means the exercise of power of rule-making, delegated to the
executive by the legislature. Here, the emphasis is on limits of the constitutionality of
exercise of such power.
2. Delegated legislation means the output of the exercise of that power, such as rules,
regulations, orders, ordinances, etc. Here, the emphasis is on the output of the
concrete terms.

In simple words, delegated legislation refers to all law making done by authorities other than
the legislature.

Regarding the scope of delegated legislation, it could stretch as far as the Parliament passing
only a skeleton and the rest of the legislation is left to the discretion of the administrative
agencies. For example, the Import and Export Act, 1947 consists only eight sections and
leaves the rest of the rule-making functions totally to the administrative. Although wide
legislative powers could be granted to the executive, the executive, in exercise of delegated
legislation, cannot change the essential features of the law. The meaning of essential features
is unclear. However, it at least involves that the executive cannot change the policy of the
Legislature.

CASES

ADM Jabalpur v Sivakant Shukla

Majority opinion
 There is only one rule of law and that is the constitution. There is no rule of law that is
so brooding and omnipotent drowning in its effervescence, the emergency provisions
of the constitution. The very existence of the emergency provisions in the constitution
qualify them to apply over any other article. Rule of law is not a catch phrase to be
used according to convenience of the situation. Hence, during the emergency such
suspension of rights of the citizens is valid in law.
Khanna J.
 Rule of law is by its very nature an antithesis to arbitrariness. This ideal establishes
the necessary balance between state order and morality and individual and personal
liberty.
 The sanctity of life and liberty is not a new concept during the drafting of the
constitution. It represents the fact of higher values that the mankind has come about to
embrace during its evolution from a primitive society of tooth and claw to that of a
civilized existence.
 The principle that none shall be denied his/her right to life and personal liberty
without prior authority of law is not a gift of the constitution. The principle existed
even before the constitution has come into existence and will continue to exist even
after the constitution ceases to be in force, should that happen.
 This is the essential postulate and basic assumption of existence of rule of law in any
civilized society. Without the sanctity of life and liberty, the difference between a
lawless society and that which is governed by laws ceases to have any meaning.
 Argument has been made that the suspension of citizens’ right to move the courts of
law in the country to enforce their right to life and liberty under article 21 has been
done through constitution provisions and hence, it could not be said that the rule of
law has been negated. However, this argument is fundamentally wrong because if
accepted, hundreds of lives will be put in jeopardy without due process of law.
Further, the argument would lead to illogical conclusions such as that even the mass
murders committed by the Nazi regime are valid in law. The principle that what
pleases the prince is the rule of law should have no place in a democratic country like
India.
 It is incorrect to say that the rule of law is a vague and nebulous concept because it
has been described by Ivor Jennings as a unruly horse. Jennings himself demands law
not just to prescribe the powers of the executive but also to limit the same. In fact, he
defines the object of study of administrative law as an endeavor to unravel the way in
which administrative agencies could be put within their limits so that discretionary
powers may not turn into arbitrary power.
 The judicial system of the country cannot be reduced to a powerless spectator during
the emergency when blatant and glaring violations of life and liberty of people take
place. This starkly violates the doctrine of separation of powers as explained in the
case of Ram Jawaya Kapur v State of Punjab.
 It has been held by the Supreme Court in several future cases that the minority
opinion of Khanna J. is correct, sound and in consonance with law and the majority
opinion to be unjust, unsound and in contradiction to the concept of rule of law.
Bhagwati J. even came forward later to apologize for the incorrect judgment that he
has delivered along with his “much learned friends”.

Ram Jawaya Kapur v State of Punjab

 The constitution of India does not contemplate a doctrine of separation of powers

stricto sensu. What is does offer is separation of functions and hence, in the words of
 Mukerjea J., it could very well be said that each organs powers have been delineated
in the constitution and the constitution does not permit assumption of powers
belonging to one organ by another.
 It is the police states of the olden days whose functions were restricted only to mere
tax collection and maintenance of law and order. The modern welfare state is
burdened with the duty also to attempt to provide the people with social and political
justice.
 The constitution does not clearly define the powers of the executive but it could be
sufficiently inferred that the the residual functions after the legislative and judicial
ones are separated belong to the executive.
 Argument has been made that for the state to undertake such a business by itself, it
requires a legislative mandate is wrong. As long as the executive acts not in an
arbitrary and capricious manner, it could conduct such business.

In Re Delhi Laws

Previously, Indian states were divided into 3 categories: Part A, Part B & Part C. Government
wished to do away with such classification and hence, several sections under 3 different acts:
Delhi Laws Act, Ajmer Marwah Act and Part C States Act have come under question. The
President, pursuant to his powers under article 149, sought the Supreme Court’s opinion over
the issue.
 It is the first leading case on the issue of delegated legislation decided by the Supreme
Court after the constitution has come into existence.
 Regarding the question of how far the Legislature could venture in delegating its
powers to the executive, 7 judges have given different opinions, leading to a
“cleavage of judicial opinion”.
 However, it could be said that the case has arrived at three particular broad
conclusions. They are as follows:
1. The court held that the legislature could only delegate non-essential functions
of the legislation. The essential functions need to necessarily be performed by
the Legislature itself.
 Kania: Kania J. has opined that the legislature cannot delegate its
power to create a policy or framework to the executive.
 Fazal Ali: Ali J. has opined that the legislature could not abdicate its
powers or efface itself in an attempt to create a parallel legislative
body.
2. Modification: The court held that the executive did possess the power to
modify the delegated legislation.
 Khanna J took an opposing view and a pro-legislature centric view by
stating that it should only be the legislature which should possess the
power to modify legislation in any substantive sense.
 Fazal Ali J took a concurrent view by stating that the executive had an
inherent power to modify, provided that such alteration respects the
framework of the legislation and does not modify the scope and
structure.
3. Repeal: The power to repeal a legislation was unanimously held to be an
essential feature. Since essential functions cannot be delegated by the
legislature, it was held that the executive does not possess the power to repeal
a legislation.
  The judgment achieved 2 objectives:
1. Legitimized the practice of delegated legislation
2. Put forward the contours in which the legislature could delegate its legislative
powers to non-legislative bodies.
 The judgment could have broadly said to have laid down that the legislature is
mandated to chart out the policy and broad framework before delegating to the
executive and that the legislature will necessarily have to explicate the limits within
which the executive could proceed under the authority of delegated legislation,
overstepping which should lead to excessive legislation.

“Obligation to act in accordance with the rule of law is the central feature of our
constitutional system and basic feature of our constitution.”

“When the executive and legislative features are united in one body, there can be no
liberty…”

“The Parliament, in theory is the legislative master, but in fact surrenders a very
substantial portion of its nominal sovereignty to its own servants.”

1.      Ram Jawaya Kapoor [SOP] +Theories

2.      ADM Jabalpur [Ray, CJ., Khanna, J. on ROL] + Theory
3.      In Re Delhi [Kania, Fazal A., JJ.-Essential legislative functions etc.]
4.       Harishankar Bagla [Extent of DL]
5.      Hamdard Dawakhana [Extent of DL]
6.      Rajnarain Singh [Extent of DL]
7.      Gwalior Rayon [Khanna, J., (majority) & Mathew, J., (minority)]
8.      DS Garewal [Extent of DL]
9.      Kerela Samasthan[Extent of DL]
10. BS Yadav [retrospective application]
11. Atlas cycle [Laying]
12. Harla  [Ante natal publicity]
13. Raza Buland [Ante & Post natal publicity & consultation]
14. Sonik Industries [Publication]
15. Govind Lal [Publication]
16. Chintaman Rao [Where DL is unconstitutional]
17. Dwarka Prasad [Where DL is unconstitutional]
18. Narendra Kumar [Where DL is unconstitutional & Publication]
19. Himmat Lal [Where DL is unconstitutional]
20. Prag Ice [Where Parent Act is placed under IX Schedule, will DL also enjoy
immunity?]
21. AK Banerjee [Where DL is invalid the Parent Act]
22. Paritosh Sheth [Where DL is invalid the Parent Act]
23. Indian Council for Legal Aid + V Sudheer v. BCI [Where DL is invalid the
Parent Act]
24. Nargesh Mirza [Where DL is arbitrary, unreasonable]
25. AK Kraipak [personal bias]
26. Ashok Yadav [personal bias]
27. J Mohapatra [pecuniary bias subject to doctrine of necessity]
28. Pinochet [pecuniary bias-reasonable likelihood of bias]
29. Gullapalli I&II [official bias-one who hear must decide]
30. St. of WB v. Shivananda Pathak [judicial obstinacy]
31. Tata Cellular [doctrine of necessity]
32. Ridge v. Baldwin [right to fair hearing & other PNJs]
33. Al Rawi Deghayes [disclosure of materials]
34. Harendra Arora [disclosure of materials]
35. Hira Nath [cross examination]
36. St. of UP v. Mohammed Nooh [hearing at appellate stage]
37. Maneka Gandhi v. UOI [post-decisional hearing]
38. SN Mukherjee [Reasoned/Speaking Order-Army]
39. Dev Dutt v. UOI [Reasoned/Speaking Order-Civil Services]
40. SK Bhatija v. Collector [Exceptions-Application of PNJ to Legislative
activity]
41. UOI v. Cyanamide India [Exception- Application of PNJ to Legislative
action]
42. BALCO v UOI [Exceptions to PNJ-Govt. Policy] Read pp.34-35
43. Barium Chemicals [consideration of irrelevant factors]
44. Associated Pictures v. Wednesbury Corp. [JR-Unreasonableness]
45. Daly v. Secy of State [JR-Unreasonableness/DOP]
46. Belfast City Council [JR-Unreasonableness/DOP]
47. Smith & Grady [JR-Unreasonableness/DOP]
48. Om Kumar v. UOI [DOP in administrative adjudication]
49. Coimbatore Distt. Coop Bank [DOP in administrative adjudication]
50. NLC Officers Assn. v. GOI [Legitimate expectations]
51. Jasbir Singh & Ors. [LE & Promissory estoppel]
52. Nadarajah v. Secy. of St. [LE]
53. CPIL v. UOI [focus only on exercise administrative discretion in allocation of
public resources]
54. L. Chandra [status of Tribunals vis-à-vis High Courts]
55. Madras Bar Assn. [focus only on issues concerning status of Tribunal(s) &
manner of selection to Tribunals]