ADMINISTRATIVE LAW

FIRST INTERNAL ASSESSMENT

NAME: SAMARTH DAHIYA

PRN: 19010126043

COURSE: BBA LLB (HONS)

DIV: A

SEMESTER - V
 Critical Analysis of Rule of Law and its Application in India

Abstract – The main subject of this analysis is the Rule of Law and its application mainly from
the Indian perspective. The analysis starts with the introduction of the Rule of Law and how this
concept came into being. Later A.V. Dicey’s theory on the Rule of Law was discussed. The
analysis then shifts towards the evolution and development of the Rule of Law in India. Then the
Rule of Law is discussed from the Indian perspective through various examples and finally, in
the end, an analysis is done.

Introduction - The "Rule of Law" comes from the French phrase "La Principe de Legalite,"
which means "the principle of legality,"1 and refers to a government founded on legal and just
principles as opposed to the whims of the ruler. At the most basic level, the idea of the “Rule of
Law” is what contemporary democratic society stands on and strives to achieve. “Rule of Law”
refers to a state where the laws, not the whims of individuals, are in force. Administrative law
places a high value on the "Rule of Law." It safeguards citizens against the arbitrariness of
administrative authority.

According to the “Rule of Law”, all activities should be conducted in accordance with the law.
Specifically, this implies that any government power doing otherwise illegal or liberty-infringing
conduct must be able to defend its actions as permitted by law, which means approved either
directly or indirectly via legislation passed by parliament in almost every instance or sometimes
via decisions of the courts etc.2 For any act of the government that impacts legal rights,
freedoms, or responsibilities, there must be documented proof of the act's legitimacy.

History of Rule of Law - Although in the 13th century A.D. Henry de Bracton, a judge in
Henry III's court, stated that a king should be subordinate to God and law since it is the law that
has made him the king, the credit for inventing the basic idea of “Rule of Law” goes to Edward
Coke.

A.V. Dicey - A.V. Dicey, in his work "Introduction to the Study of the Law of the Constitution"
published in 1885, attempted to establish the idea of “Rule of Law” in great depth in his

1
Avishek Mehrotra, Rule of Law in India – An Analysis,  Ipleaders (Oct. 17, 2019), https://blog.ipleaders.in/rule-of-
law-india-analysis/
2
M.P. Jain & S.N. Jain, Principles of Administrative Law, 5 (Dr Shakil Ahmad Khan ed, 2014)
research. Unless there is a clear violation of the law established in the usual legal way before the
ordinary courts of the country, no one may be punished or legally forced to suffer, according to
Dicey.3 Dicey argued that the “Rule of Law” should be paramount, and executive branch
officials should have limited discretionary powers since concentrations of authority invite
arbitrary behaviour, such as the abuse of power in ways that violate individual liberties.

A.V. Dicey's idea of the “Rule of Law” is founded on three fundamental principles:

a.       The Supremacy of Law– Dicey thought that the “Rule of Law” enshrined the
ultimate supremacy of law. No one regardless of his or her status whether ordinary man
or government official, is obligated to follow the law. No one should be punished unless
there is a violation of the law and the claimed offence is proven in a regular court
following the proper process.
b.     Equal Treatment under the Law - This refers to all classes of persons being equally
subject to the law of the country as administered by regular courts. No man is above the
law, and regardless of their position in life, they would be treated equally in the eyes of
the law.
c.      The Legal Spirit's Predominance– The term "legal spirit" refers to the spirit of justice.
This notion upholds the premise that legislation should be determined by justice, not the
other way around. Dicey was opposed to including rights such as the right to personal
liberty, freedom, and so on in the country's written constitution. The constitution is not
the source of, but rather the consequence of, individual rights, 4 and therefore these rights
should be determined by court judgments.

History of Rule of Law in India - In India, the law's effect on society's structure was
inextricably linked to the legitimizing framework within which the British invoked the "Rule of
Law." The colonial systems generally tried to preserve certain elements of local law in order to
justify their power, even as the rulers maintained their own legal culture. As in many other
colonial situations, this resulted in the development of a dual legal system in India, with distinct
laws and tribunals/courts, for colonized and colonizers.5
3
A.V. Dicey, Introduction to the study of the law of the constitution, (Liberty Fund ed, 2014)
4
A.V. Dicey, Introduction to the study of the law of the constitution, (Liberty Fund ed, 2014)
5
Jonathan K. Ocko & David Gilmartin, State, Sovereignty, and the People: A Comparison of the "Rule of Law" in
China and India, 68 The Journal of Asian Studies, 55, 66-67 (2009)
In 1949, India's first Prime Minister, Jawaharlal Nehru, said in a speech, "We have emphasized
in our Constitution those basic human rights to which all men who value liberty, equality, and
development aspire, namely individual liberty, gender equality, and the ‘Rule of Law’."6
However, the term "Rule of Law" described a series of enduring conflicts that have defined the
Indian political system.

India's post-independence “Rule of Law” system was consistent with Dicey's definition of the
“Rule of Law”. India's Constitution guaranteed the supremacy of law and equality before the
law. However, a recurring issue throughout the formative days of the Indian Constitution was
whether the legislation had to be fair in order to be classified as law under the Indian
Constitution. A related issue was whether the Constitution was the only repository of the “Rule
of Law”, to the extent that the state may take away an individual's life in the absence of the
Indian Constitution.7 As shown in the instances below, the court initially answered the first
question negatively and the second affirmatively. This indicated that the Constitution protected
only law-based rule, not simply rule.

Certain structural characteristics of the unique form of the "Rule of Law" as an authoritative
colonial ideology, most notably the fundamental difference between procedure and content, were
essential to the development of twentieth-century Indian politics. While the colonial period was
founded on a “Rule of Law” system, the transfer of authority to the Indians resulted in the
establishment of a “Rule of Law” regime. The “Rule of Law” was not a colonial legacy. It grew
out of two strands: the colonial strain and the Indian independence movement strain.8

Rule of Law Indian Perspective

Rule of Law and Indian Judiciary

6
Jonathan K. Ocko & David Gilmartin, State, Sovereignty, and the People: A Comparison of the "Rule of Law" in
China and India, 68 The Journal of Asian Studies, 55, 88-90 (2009)
7
A.V. Dicey, Introduction to the study of the law of the constitution, (Liberty Fund ed, 2014)
8
Ranbir Singh, The March of Law In India-The Long Road from Oppression to Justice, 59(3) Journal of Indian
Institute of Law, 288, 294 (2017)
Apex court of India's legal system was formed on January 26, 1950, when the Supreme Court
was established. In the newly formed nation of India, this institution strengthened the basis for
the “Rule of Law”. Because of its role in interpreting and enforcing India's lengthy and complex
Constitution, the Supreme Court plays an important role in the country's democracy. Since its
inception, the Supreme Court has played a critical role in upholding the “Rule of Law” and
democratic institutions.9 It has maintained and strengthened judicial independence while also
protecting basic rights through its interpretations and judicial review authority.

It has been noted that the Supreme Court's Equity Jurisdiction is broad and unrestricted, giving it
extensive authority. The Supreme Court has been given such broad authority in order to ensure
competent and effective administration of justice in cases of extraordinary public interest so that
trust in the “Rule of Law” may be built and democracy strengthened. 10 This helps ensure law is
treated as supreme existence.

Rule of Law and Legal Education

The development of a law-abiding society relies heavily on legal education. The character of the
“Rule of Law” is shaped in large part by competence in legal research and education. 11 Students
and professors at law schools in India should be given more chances to do innovative and serious
research on legal and justice problems affecting Indian society. They need to establish a
conducive research environment so that academics may discover problems that impede the
efficient and effective administration of justice. This would be feasible if India's legislative
structure and justice delivery systems were thoroughly examined, and the results might lead to
useful suggestions tailored to the country's social and economic requirements as well as
improvement in the “Rule of Law”.

Rule of Law and Indian Constitution

The Indian constitution aims to promote the “Rule of Law” via several Articles. The supremacy
of the law is represented in India's Constitution, which upholds the “Rule of Law”. The “Rule of

9
Dushyant Thakur, Invoking Equity Jurisdiction of the Indian Supreme Court: Scope and Limits, 8 NLIU Law
Review, 97, 97-98 (2018)
10
Manohar Lal Sharma v. Principal Secy & Ors., 2 SCC 532 (2014)
11
C. Raj Kumar, Legal Education, Globalization, and Institutional Excellence: Challenges for the Rule of Law and
Access to Justice in India, 20 Indiana Journal of Global Legal Studies, 221, 241 (2013)
Law” was borrowed by the Indian Constitution's founders from the English. “The right to
equality before the law is guaranteed under Article 14 of the constitution.” 12 “Article 13 of the
Indian Constitution guarantees a system for judicial review of all laws, rules, regulations, orders,
customs, etc.”13 The Supreme Court of India considers judicial review to be a fundamental right
guaranteed by the Indian constitution. Otherwise, the legislation would be ruled null and invalid
since it violates the Indian Constitution. India's Part-III Constitutional Rights, which include
basic freedoms, may be seen as a kind of “Rule of Law” Furthermore, the Indian Constitution
has sufficient safeguards to ensure the independence of the judiciary.

“No individual shall be deprived of his personal liberty or of his life except in accordance with
the process provided by law, according to Article 21 of the Indian Constitution.” 14 Accordingly,
under Article 21, any legislation lawfully passed by the relevant authorities in accordance with
the correct and appropriate stance has legal force. A person's personal life and liberty may be
taken away if the legislation was properly passed and implemented which is against the “Rule of
Law.” Article 21 of the Indian Constitution envisions a legal system based on "process
established by law" as the foundation for Indian society. In the end, the “Rule of Law” is not
only about the process but also 'Procedure established by the law' has as its core component the
due process of law, which necessitates that the legislation whatever is put into effect once the
appropriate process has been followed must be just, fair, and equal for everyone.

The Indian Constitution makes no reference to the Supreme Court having equity jurisdiction or
being a court of equity which is one of the basic principles of the “Rule of Law”. However,
under Article 32, Article 136, and Article 142 of the Indian Constitution, the Supreme Court
exercises implied equitable power. The Supreme Court may be addressed under Article 32 if
one's basic rights have been violated. In accordance with Article 136, the Supreme Court may
give special leave against any decision, order, or judgment of any Indian court and pass any
order or decree for full justice in a pending case in accordance with Article 142. Articles 32, 136,
and 142 of the Indian Constitution provide the Supreme Court equitable power, according to the
Supreme Court.15 For the sake of full justice, the Supreme Court has discretionary authority
under certain laws. The equity jurisdiction revolves around the concept of discretion. Article 141
12
India Const. art. 14
13
India Const. art. 13
14
India Const. art. 21
15
G.M., O.N.G.C. Ltd. v. Sendhabhai Vastram Patel and Ors., Supp 2 SCR 448 (2005)
of the Indian Constitution allows for this. Equity jurisdiction should be used to ensure that justice
is served for both parties.

Rule of Law and Judgments

In Keshwanada Bharti v. State of Kerala,16 the Supreme Court enunciated the concept of “Rule
of Law” as one of the most important aspects of the doctrine of basic structure.

In Shri Kihoto Hollohon v. Mr. Zachillhu, 17 the Supreme Court ruled that democracy is a
fundamental element of our Constitution; the “Rule of Law” and free elections are fundamental
characteristics of democracy.

In Advocates on Record Association v. Union of India, 18 the Supreme Court ruled that the Chief
Justice of India's view had precedence in appointing High Court and Supreme Court judges by a
vote of 7:2. The reasoning went like this: ensuring judicial independence is essential to
upholding the “Rule of Law”.

The Supreme Court ruled in A.K. Kraipak v. U.O.I.,19 that our welfare state is governed and
controlled by the “Rule of Law”.

In Maneka Gandhi v. U.O.I.,20 the court guaranteed that the government's arbitrary use of
authority would not violate the people's rights so no violation of “Rule of Law”.

In Sambamurthy v. State of A.P.,21 the Indian Supreme Court invalidated Article 371-D(5),
finding that Parliament had violated “Rule of Law” and, as a result, the basic structure by
delegating judicial review authority to the State Government rather than the High Court, which
had previously held that authority.

Analysis - India has a written constitution, as well as a plethora of laws that are subservient to
it and cover a wide range of topics. All of these things may be referred to as law, and the way
they apply to the general people is known as the "Rule of Law." Due to the Parliament's inability
to alter Part-III of the Constitution, the judiciary was forced to step in and protect the “Rule of
16
(1973) 4 SCC 225
17
AIR 1993 SC 412
18
(1993) 4 SCC 441
19
AIR 1970 SC 150
20
AIR 1978 SC 597
21
(1987) 1 SCC 362
Law” by abridging away any more basic rights. The extraordinary powers to redress violations of
fundamental rights have been achieved.

The idea is that the “Rule of Law” aims to foster law-abiding governance. The concept of “Rule
of Law” assumes that the government does not have any authority that isn't granted to him by the
law. Freedom under the law implies that no one may exercise arbitrary authority over another
person or group. There isn't anybody who is robbed of his rights, freedom, or property without
the intervention of the legal system. The “Rule of Law” aims to limit the power of the state's
discretion in granting and exercising authority.22

Discretionary authority in administration introduces the subjective aspect of the person doing the
exercise power and it's impossible to keep such a thing under control, therefore there's a
possibility it might be exploited or misapplied. By adhering to this rule, no one will be stripped
of their rights, freedom, or property without first getting permission from the government. 23 To
make sure the government doesn't go beyond its legal authority it guarantees judicial scrutiny of
administrative actions. Even if the “Rule of Law” does not explicitly forbid the use of discretion
and prohibit the use of arbitrary power, this implies limiting the scope of any discretionary
authority that exists it's unlikely that all discretionary authority can be removed. It should not be
overly broad and unrestricted in the present-day environment, but it should be subject to suitable
control against its misuse or abuse.

The Supreme Court ruled that one of the most notable features of India's “Rule of Law” is the
power granted to courts to evaluate the legal standard of administrative decisions. The court will
invalidate any administrative or executive action that does not satisfy the required threshold.24

Rule of Law is a hallmark of civilized societies, and it is only the presence of independent courts
that can maintain the line between citizen and state and force the latter to comply with the law
that allows human rights to be harmonized with public interest needs.

While the “Rule of Law” demands that all authorities be drawn from and used in conformity with
the law, just enforcing the law rigorously is not sufficient to constitute the “Rule of Law”. If that
were the case, the “Rule of Law” would have reached its zenith in totalitarian states and its
22
Halsbury, Law of India – Administrative Law, 4 (Lexis Nexis, 2014)
23
Halsbury, Law of India – Administrative Law, 6 (Lexis Nexis, 2014)
24
State of Punjab v. Om Prakash, 1969 AIR 33
lowest point in a democracy like India. The concept's true meaning is to preserve man's dignity
and fundamental human rights. Thus, both the substance and the manner of enforcing the law
become equally essential. Not only must the law be enforced, but it must be enforced with the
greatest justice, impartiality, and consideration for the dignity of state behaviour.

This doctrine of equality before the law is a necessary corollary to the high concept of the “Rule
of Law” accepted by our Constitution. One of the aspects of “Rule of Law” is that every
executive action if it is to operate to the prejudice of any person must be supported by some
legislative authority. Secondly, such a law would be void, if it discriminates or enables an
authority to discriminate between persons without just classification. 25 The “Rule of Law”
requires the judiciary to be bound only by the law and to follow prescribed processes while
performing its law-applying role.

Indian constitution and judiciary's subsequent role have helped to establish “Rule of Law” more
recently, thanks to common law traditions and the Indian constitution. 26 However, there is room
for improvement when it comes to implementation. Due to the prevalence of flagrant disregard
for the law in Indian culture, there is a pressing need to work hard to create a society that upholds
the “Rule of Law”. Legal systems that are fair, anti-discriminatory, and effective preserve the
“Rule of Law” by providing access to justice for all citizens." 27 The absence of legal enforcement
threatens India's democracy on all fronts, and it is time to take action. While there isn't a single
answer, it's critical to understand that efforts should be made to teach Indian citizens respect for
the “Rule of Law”. Everything from legislation to institutions to courts and constitutions should
be geared at instilling a respect for the law on the premise that it would be applied equitably.

Conclusion - A well-equipped and effective institutional framework are necessary for a

thriving democracy, and law serves as the glue that holds society together. As a result, when all
the institutions of a democratic society operate coherently in accordance with the “Rule of Law”,
the public interest is inevitably served. “Rule of Law” is now widely recognized as being critical
25
Shailendra Kishore Singh, Rhetoric and The “Rule of Law” vis-à-vis The Supreme Court of India, (2) CNLU LJ,
82, 87 (2011)
26
Upendra Baxi, The Rule of Law in India, 6, INT’L J. HUM. RTS., 10, 17-18, 2007
27
C. Raj Kumar, Corruption as a Human Rights Issue in South Asia: Law, Development and Governance, Monash
University (2014), https://www.monash.edu/law/research/centres/castancentre/past-events/conference/conference-
2014/2006/conf-06-kumar-paper
to effective government and achieving policy goals. A concept that helps us clarify what we
mean by law and governance via the law is a way to safeguard ourselves from political power
abuses should be regarded as such.

The “Rule of Law” isn't meant to fix the issue; it's the solution in and of itself. Some of the issues
that impede the effective implementation of the “Rule of Law” include an out-of-date legislature
and overloaded courts. The judicial system has been compromised in the past due to corruption,
and to remedy this, the court must be shielded from executive and administrative influence. In
order to fully execute the Rule of Law, the necessary steps must be taken to guarantee a fast
justice delivery system. Another problem for Rule of Law is the emergence of the Rule of Men
i.e. people taking law into their own hands this includes fake encounters, mob lynching,
naxalism, torture of terrorist suspects, vigilantism, etc. this must be stopped to ensure “Rule of
Law” is not hampered.