ALIGARH MUSLIM

UNIVERSITY
MALAPPURAM CENTRE,
KERALA

ADMINISTRATIVE LAW
1st G.C.T
Topic- Concept of Rule of Law

Submitted to, Submitted by,

Mr.Shahnawaz Ahmad Malik Kunjali Singh
Assistant Professor GK7931
Department of law 18BALLB34
Topic Page no.
Introduction 3
Rule of law 3-4
Postulates of rule of 4
law
Criticism of dicey's 4-5
Concept
Basic Principles of 5
Rule of law
Rule of law and Indian 5-8
Constitution
Rule of law and Indian 8-9
Judiciary
Practical Approach of 9-10
Rule of law
Conclusion 10
References 11
Introduction
Rule of Law- The term “The Rule of Law” is derived from the Latin phrase “La legalite”, which
refers to a government based on principles of law and not of man. In this sense the concept of ‘la
legalite’ was opposed to arbitrary powers. Edward Coke originated this concept when he said
that the king must be under the God and Law and thus vindicated the supremacy of law over the
pretensions of the executive.

The Expression “Rule of Law” plays an important role in the administrative law. It provides
protection to the people against the arbitrary action of the administrative authorities. The
expression ‘rule of law’ has been derived from the French phrase ‘la Principle de legality’. i.e. a
government based on the principles of law. In simple words, the term ‘rule of law, indicates the
state of affairs in a country where, in main, the law rules. Law may be taken to mean mainly a
rule or principle which governs the external actions of the human beings and which is recognized
and applied by the State in the administration of justice. 1 The term Rule of Law does not provide
any thing about how the laws are to be made, or anything specific like the Fundamental Rights
or the Directive principles or equality etc. but it provides for two basic concepts that is 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. 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. Within legal theory, these two approaches to the rule of law are seen as the two
basic alternatives, respectively labeled the formal and substantive approaches.

1
https://iasscore.in/national-issues/concept-of-rule-of-law
Rule of law- A Dynamic Concept

The concept of the rule of Law is of old origin. Edward Coke is said to be the originator of this
concept, when he said that the King must be under God and Law and thus vindicated the
supremacy of law over the pretensions of the executives. does not admit of being readily
expressed. Hence, it is difficult to define it. Simply speaking, it means supremacy of law or
predominance of law and essentially, it consists of values.

Prof. A.V. Dicey later developed on this concept in the course of his lectures at the Oxford
University. Dicey was an individualist; he wrote about 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 government
officials.2

2
Ananya Jain, Rule of Law and It’s application to Indian Polity, Volume 1 issue3, 2018,
Postulates of rule of law( Dicey's Concept of Rule of law)
According to him, wherever there is discretion there is room for arbitrariness. Further he
attributed three meanings to Rule of Law.

(1) The First meaning of the Rule of Law is that ‘no man is punishable or can lawfully be made
to suffer in body or goods except for a distinct breach of law established in the ordinary legal
manner before the ordinary courts of the land. (The view of Dicey, quoted by Garner in his Book
on ‘Administrative Law’.)
(2) The Second Meaning of the Rule of Law is that no man is above law. Every man whatever
be his rank or condition. is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals. While the principle of supremacy of law sets in place
cheques and balances over the government on making and administering the law, the principle of
equality before the law seeks to ensure that the law is administered and enforced in a just
manner. It is not enough to have a fair law but the law must be applied in a just manner as well.
The law cannot discriminate between people in matters of sex, religion, race etc. This concept of
the rule of law has been codified in the Indian Constitution under Article 14 and the Universal
Declaration of Human Rights under the Preamble and Article 7.
(3) The Third meaning of the rule of law is that the general principle of the constitution are the
result of judicial decisions determining the rights of private persons in particular cases brought
before the court.3

RULE OF LAW IN MODERN SENSE:

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, economical, educational and cultural conditions which
are essential to the full development of his personality”.
According to Davis, there are seven principal meanings of the term “Rule of law: (1) law and
order; (2) fixed rules; (3) elimination of discretion; (4) due process of law or fairness; (5) natural

2.Jain, M.P ,Principles of administrative law, LexisNexis, 7th Edition.

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 actions. 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”.

Criticism of Dicey's Concept of Rule of Law

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 a 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.4

Basic principles of rule of law

The relevance of the rule of law is demonstrated by application of the following principles in
practice:
 The separation of powers between the legislature, the executive and the judiciary.

4
Supra Note 2
  The law is made by representatives of the people in an open and transparent way.
 The law and its administration is subject to open and free criticism by the people, who
may assemble without fear.
 The law is applied equally and fairly, so that no one is above the law.
 The law is capable of being known to everyone, so that everyone can comply.
 No one is subject to any action by any government agency other than in accordance with
the law and the model litigant rules, no one is subject to any torture.
 The judicial system is independent, impartial, open and transparent and provides a fair
and prompt trial.
 All people are presumed to be innocent until proven otherwise and are entitled to remain
silent and are not required to incriminate themselves.
 No one can be prosecuted, civilly or criminally, for any offence not known to the law
when committed.
 No one is subject adversely to a retrospective change of the law.5

Rule of law and Indian Constitution

In India the Constitution is supreme. The preamble of our Constitution clearly sets out the
principle of rule of law. It is sometimes said that planning and welfare schemes essentially strike
at rule of law because they affect the individual freedoms and liberty in may ways. But rule of
law plays an effective role by emphasizing upon fair play and greater accountability of the
administration. It lays greater emphasis upon the principles of natural justice and the rule of
speaking order in administrative process in order to eliminate administrative arbitrariness.

When the term Rule of Law is used in formalistic

sense, it denotes to an Rule of law can be used organized power as
opposed to a rule by one in two senses: man. When it is used in
ideological sense, it denotes to the regulation
of the citizens and the 1. Formalistic government.
2. Idealistic
The Constitution of India provides that the
constitution shall be the supreme power in the land
and the legislative and the executive derive their authority from the constitution. Any law that is
made by the legislative has to be in conformity with the Constitute failing which it will be
declared invalid, this is provided for under Article 13 (1).

5
Massey IP, Administrative Law, Eastern Book Company, 9th edition, 2017.
 Article 21 provides a further check against arbitrary executive action by stating that no person
shall be deprived of his life or liberty except in accordance with the procedure established by law
Article 14 ensures that all citizens are equal and that no person shall be discriminated on the
basis of sex, religion, race or place of birth, finally it ensures that there is separation of power
between the three wings of the government and the executive and the legislature have no
influence on the judiciary. By these methods, the constitution fulfils all the requirements of
Dicey’s theory to be recognized as a country following the Rule of Law.

Rule of Law and Indian Judiciary

The Indian Judiciary has played an instrumental role in shaping Rule of Law in India. By
adopting a positive approach and dynamically interpreting the constitutional provisions, the
courts have ensured that the Rule of Law and respect for citizens’ rights do not remain only on
paper but it is also avalaible in the society.

In  Secretary, State of Karnataka and Ors. v. Umadevi 6Constitution 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 Chief Settlement Commr; Punjab  v.  Om Prakash7, 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
the case of Satvant Singh Sawhney  v.  D Ramarathanana8 the Supreme Court has held that
every executive action, if it operates to the prejudice of any person, must be supported by some
legislative authority

In Bachhan Singh v. State of Punjab9, it was held that the Rule of Law has three basic and
fundamental assumptions. They are-
1) There must be independent judiciary to protect the citizens against excesses of executive and

6
10th April,2006. Case no. Appeal(civil) 3595-3612 of 1999
7
1969 AIR 33,1968 SCR (3) 655
8
1967 AIR 1836,1967 SCR (2) 525
9
AIR 1980 SC 898, 1980 CRILJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 684, 1983 1 SCR 145
legislative power.
2) Even in the hands of the democratically elected legislature, there should not be unfettered
legislative power; and Law making must be essentially in the hands of a democratically elected
legislature;

In Kesavanand Bharati Vs State of Kerala 10, the view was that the Rule of Law is a basic intent
of the ‘Constitution apart from democracy.

In Indra Gandhi Vs RAJ Narain 11. Mathew. J. observed: ‘The rule of law postulates the
pervasiveness of the spirit of law that throughout the whole range of government is the sense of
excluding arbitrary official action in the sphere….. The provisions of the Constitution were
enacted with a view to ensure the rule of law.

PRACTICAL APPLICATION OF RULE OF LAW

IN INDIA
Critiques have often maintained that the Rule of Law in India is merely a theory with no
practical application. While it cannot be denied that the country is one where corruption runs
rampant and according to 2012 World Justice Project data, India fares well on openness of
government and democratic controls, in the category limited government powers, which
evaluates the checks on government, India ranks 37th of the 97 countries surveyed around the
world, is first among five in its region and comes in second out of 23 lower-middle-income
countries. Yet the rule of law that exists on paper does not always exist in practice. When it
comes to procedural effectiveness, India fares poorly. In the categories of the absence of
corruption and order and security, India ranks 83rd and 96th globally.12
In addition to the problem faced in India due to corruption in the law-making and justice
delivery systems, there also exists the problem of old laws still being in place. India does not
adopt a ‘sunset’ clause in its laws and post-independence the Indian Independence Act provided
that all laws existing under the colonial rulers would continue to exist under the new system
unless explicitly revoked by the parliament.

While this did provide the nation with a firm basic system of laws, thereby preventing a situation
of anarchy in the immediate aftermath of independence, some of these laws were drafted to suit
the environment of those time and they become hard to interpret in the current environment. This
leads to ambiguity and endless litigation in an attempt to interpret the provisions.

While these problems persist it is important to note that the constitutional mechanism has
provided enough safeguards to endure that the Rule of Law in some form will always persist.
One of the most important factors contributing to the maintenance of the Rule of Law is the
10
(1973) 4 SCC 225, AIR 1973 SC 1461
11
(1975) AIR 865, 1975 SCR(3) 333
12
http://manupatra.com/roundup/330/Articles/Article%201.pdf
activity of the courts in the interpretation of the law. It is rightly reiterated by the Supreme Court
in the case Union of India v. Raghubir Singh 13that 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.

Most famously in the case of Maneka Gandhi v. Union of India14 the court ensured that
exercise of power in an arbitrary manner by the government would not infringe the rights of the
people and in Kesavananda Bharati 15the court ensured that laws could not be made that
essentially go against the Rule of Law by saying that the basic structure could not be breached.
Apart from the judicial decision, the constitutional mechanism in itself provides for the
protection of the rule of law through the creation of monitoring agencies. While there have been
numerous scams that have come to light in the last few years, the fact that must also be noted is
that these scams have come to light and the justice delivery mechanism has been set in motion
against the perpetrators.16

The role of the Central Vigilance Commission and the Comptroller and Auditor General in the
exposure of these discrepancies is commendable and this shows how the law has provided for its
own protection by putting in place multiple levels of safeguards which ensure that it will be
effective at some level. The Election Commission of India, a constitutional body has also been
undertaking the task of ensuring free and fair elections with some degree of efficiency.

CONCLUSION
From the above mentioned discussion, it can be concluded that Supremacy of law is the Aim,
Rule of Law is the best tool to achieve the Aim. Some of the efforts are also taken by the court
where the Rule of Law is linked with Human Rights of the people. Strategy is being evolved by
the court by which government can be forced not only to submit to law but also to create
conditions where capacities can be developed by the people so as to enjoy their rights in proper
and meaningful manner.

In the Indian society, the rule of law has not achieved the intended results. A few examples
where rule of law was upheld by our judiciary and ensured justice can be clearly seen in the
creation of new avenues seeking remedies for human rights violations by filing of PIL pleas.

The originator of this concept i.e. Sir Edward Coke, the Chief Justice of King James reign
maintained that the King should be under God and the law and also he established the supremacy
of law against the executive and that there is nothing higher than law.
13
1989 AIR 1933,1989 SCR (3) 316
14
1973) 4 SCC 225, AIR 1973 SC 1461
15
1978 AIR 597, 1978 SCR (2) 621
16
Supra Note 3
REFERENCES

Books-
1. Jain, M.P ,Principles of administrative law, LexisNexis, 7th Edition.
2. Massey IP, Administrative Law, Eastern Book Company, 9th edition, 2017.

Websites
1. https://www.ruleoflaw.org.au/principles/
2. http://www.legalserviceindia.com/legal/article-719-rule-of-law.html

Articles
1-Ananya Jain, Rule of Law and It’s application to Indian Polity, Volume 1 issue3,
2018, www.iljhm.com.