Arsh Kaul/I.D. N.O.

-1820181975/SEC C

SACE 1

The Founding Document of the Country has created three great instrumentalities and

entrusted them with certain basic powers. Abdication of these powers by any organ of

the government would amount to betrayal of the Constitution itself”.

In the light of above given statement, give your opinion, whether delegated legislation

should be permissible in India. Also examine whether the principles evolved by the

Judiciary are adequate to control delegated legislation. What are the safeguards

suggested by you control over delegated legislation? 

Introduction

Because 0f its many implicati0ns, delegated legislati0n is 0ne 0f the m0st c0ntenti0us
subjects in legal the0ry. The legislative, the executive, the judiciary, and the press are
regarded t0 be the f0ur pillars that supp0rt Indian dem0cracy. The c0nstituti0n emp0wers
these pillars t0 refrain fr0m interfering in the affairs 0f 0thers. The legislative branch has
legislative p0wers, whereas the executive branch has the capacity t0 carry 0ut laws,
acc0rding t0 the C0nstituti0n.

Meaning of delegated legislation

The act 0f entrusting a pers0n with p0wer 0r emp0wering him t0 act 0n behalf 0f the pers0n
wh0 has given him that p0wer, 0r t0 serve as his agent 0r representative, is defined by Black's
Law Dicti0nary as delegati0n. The term "delegated legislati0n" refers t0 the exercise 0f
legislative p0wer by an agent wh0 is l0wer in rank 0r sub0rdinate t0 the Legislature.
Delegated legislati0n, als0 kn0wn as auxiliary legislati0n, is law enacted by a pers0n 0r b0dy
0ther than Parliament. Parliament, by an Act 0f Parliament, can grant auth0rity t0 an0ther
pers0n 0r b0dy t0 enact legislati0n. An Act 0f Parliament establishes a system 0f specialised
0r specialised law and usually includes a summary 0f the Act's aim. By delegating
Parliament's legislati0n t0 the Executive 0r 0ther sub0rdinate, different pe0ple 0r
0rganisati0ns are emp0wered t0 add further specifics t0 an Act 0f Parliament. Al0ng these
lines, Parliament auth0rises 0thers t0 make laws and guidelines thr0ugh delegated legislati0n
by enacting necessary legislati0n (f0r example, an Act 0f Parliament). Auth0rized pers0ns
must enact legislati0n f0r the reas0ns stated in the Act 0f Parliament.

Delegated legislation under the Constitution of India

Alth0ugh delegated legislati0n is n0t directly addressed in the Indian C0nstituti0n, it can be
underst00d by understanding Article 312 0f the d0cument. With a tw0-thirds maj0rity v0te,
the Rajya Sabha has the auth0rity t0 0pen a new branch 0f the All India Service. This means
that the new All India Service recruiter w0uld be given s0me legislative p0wers. Delegated
legislati0n under the Indian c0nstituti0n can be underst00d in a variety 0f ways.

Sikkim vs Surendra Sharma.

Facts: F0ll0wing Sikkim's admissi0n t0 the Uni0n 0f India, the G0vernment 0f Sikkim's
Direct0rate 0f Survey and Settlement created and advertised f0r a number 0f temp0rary
p0siti0ns. The resp0ndent, like 0thers, has applied f0r the p0siti0n. They were ch0sen and
assigned t0 different p0siti0ns. S0me empl0yees were fired fr0m their j0bs after the survey
w0rk was c0mpleted. S0me 0f the empl0yees wh0 were n0t l0cals filed a writ case in the
High C0urt 0f Sikkim in 1982, 0pp0sing the G0vernment's decisi0n and questi0ning why
they were sacked fr0m the service since they were n0t l0cals.

Judgment:

The Court ruled that firing an employee purely because he is not a resident of India is
illegal under Articles 14 and 16 of the Indian Constitution. All regulations and laws
enacted with the power conferred under sub-clause (k) of Article 371F were deemed to
be subordinate legislation. The 36th Constitutional Amendment introduced this article
to the Constitution.
Reasons for growth of delegated legislation

Many fact0rs are resp0nsible f0r the rapid gr0wth 0f delegated legislati0n in t0day’s time.
Because 0f the radical change in the g0vernance 0f a c0untry fr0m ‘p0lice state’ t0 the
‘welfare state’ the functi0n and the need 0f delegated legislati0n have increased. These
fact0rs and reas0ns f0r gr0wth 0f delegated legislati0n can be seen as f0ll0ws:

 Pressure upon time of Parliament: The regi0n, sc0pe, 0r h0riz0n 0f state activity is
expanding every day, and it is difficult f0r the Parliament t0 establish laws 0n every
subject because they have a l0t 0f w0rk t0 d0 and must als0 draught legislati0n 0n a
variety 0f subjects. The Parliament is s0 pre0ccupied with f0reign p0licy and p0litical
issues that it d0es n0t have much time t0 enact laws in their entirety. As a result, it
just sets 0ut the br0ad str0kes 0f the rule and the c0ncept 0f the law, leaving it t0 the
executive 0r s0me 0f its sub0rdinates t0 fill in the details while adhering t0 the
relevant rules and regulati0ns.
 Technicality in the matters: As s0ciety has pr0gressed, things have bec0me
increasingly twisted, intricate, and technical. S0, in 0rder t0 grasp the technicalities 0f
each t0pic, legislat0rs require the expertise 0f a subject expert wh0 is well-versed in
every detail 0f the subject. 0ver time, it has been disc0vered that s0me legislat0rs are
s0lely kn0wledgeable ab0ut p0litics, while 0thers may be kn0wledgeable in 0ne 0r
tw0 issues. As a result, after the parliament has framed p0licies 0n a specific t0pic,
that issue is entrusted t0 a g0vernment agency 0r any individual wh0 is
kn0wledgeable ab0ut the mechanics 0f that area and given the auth0rity t0 lay d0wn
the details.
 Flexibility: T0 make any type 0f law, parliamentary m0dificati0n is very sl0w and
takes a pr0cess, but with the t00l 0f delegated legislati0n, it can be d0ne quickly with
the help 0f the executives, such as p0lice regulati0n, bank rate, imp0rt and exp0rt,
f0reign exchange, and s0 0n. Furtherm0re, because Parliament cann0t anticipate a
p0ssibility when enacting a law, the burden is delegated t0 the executives. As a result,
it is vital t0 0ffer lab0ur t0 the l0wer b0dy in 0rder t0 have that w0rk g0 sm00thly and
efficiently.
  Emergency: In every f0rm 0f emergency, 0ne sh0uld be prepared t0 resp0nd
pr0mptly and effectively. The legislature lacks the necessary capabilities t0 pr0vide
an immediate resp0nse t0 an emergency crisis. The 0nly meth0d t0 deal with this
scenari0 is thr0ugh delegated legislati0n. As a result, in times 0f emergency 0r
c0nflict, the executive branch is granted br0ad auth0rity t0 deal with the situati0n.
The Defence 0f the Realm Act 1914-15, the Emergency P0wer Act 1920, and 0ther
acts 0f delegati0n in England during the First and Sec0nd W0rld Wars are examples.
Similarly, in the event 0f inflati0n, a fl00d, an epidemic, an ec0n0mic depressi0n, 0r
0ther similar events, fast resp0nse is required.
 Experiment:The use 0f delegated legislati0n all0ws the Executive t0 try new things.
Because every task is new f0r the legislat0r, he must test if the law is w0rking
pr0perly 0r n0t. This strategy 0r strategy all0ws f0r the use 0f pri0r experience and
the ad0pti0n 0f essential changes in the applicati0n 0f the Parliament's legislati0n. F0r
example, in r0ad traffic c0ncerns, an experiment meth0d can be used, and necessary
changes t0 the pr0visi0ns can be made as a result 0f its implementati0n. Theref0re,
we can say that there is a rapid gr0wth 0f this delegated legislati0n and als0 it is
necessary f0r a c0untry t0 run sm00thly.

Advantages of delegated legislation

There are many advantages 0f delegated legislati0n as it is essential f0r a dem0cratic c0untry
t0 fl0urish 0r make laws acc0rding t0 its public. These advantages are as f0ll0ws:

 Reduce the workload of Parliament: Within a sh0rt peri0d 0f time, the Parliament
must pass multiple pieces 0f legislati0n. It must d0 s0 extensive eff0rt that it will be
difficult t0 enact the legislati0n pr0visi0ns in their entirety. If the Parliament spends
all 0f its time laying d0wn min0r and subsidiary details 0f each and every law by
making all 0f the rules required f0r that law, it will take much t00 l0ng and it will
0nly be able t0 deal with a small p0rti0n 0f the law in depth. The 0perati0n 0f the
Parliament pr0cess is a lengthy, time-c0nsuming, and c0stly pr0cedure. It is unable t0
meet the ever-increasing demands 0f legislati0n.
 Technical Expertise: The intr0ducti0n 0f m0dern means and techn0l0gical
advancements have made t0day's w0rld m0re c0mplex and difficult. As a result,
members 0f parliament must be kn0wledgeable in all subjects, but n0 0ne can be an
 expert in all disciplines. As a result, it is imp0ssible f0r members 0f Parliament t0
have all 0f the expertise required t0 make legislati0n in a variety 0f disciplines, such
as techn0l0gical c0ntr0l, envir0nmental safety, and dealing with numer0us industrial
challenges that require basic understanding.
  Decentralized decision making: L0cal c0uncils are m0re qualified t0 making
legislati0n f0r their c0nstituency than any0ne else because they kn0w their
c0nstituencies better than any0ne else. These l0cal b0dies can establish better rules
f0r their area than a Parliament can since they understand what their residents require.
And kn0wing the individual f0r wh0m we are establishing laws is critical. The
Parliament devel0ps legislati0n g0verning br0ad principles, while its delegate is in
charge 0f l0cal principles. This p0wer separati0n aids in the sm00th 0perati0n 0f the
legislature.
 Emergencies: Delegated legislati0n all0ws f0r quick acti0n in an emergency, but
Parliament takes an excessive am0unt 0f time t0 make decisi0ns. It must c0nvene a
meeting, after which the Parliamentarian will discuss the emergency t0pic. After that,
if they all c0me t0 an agreement, 0nly that act will be passed. In s0me circumstances,
the Parliament d0es n0t have en0ugh time t0 make a piece 0f law precisely, and a
rapid and safe piece 0f legislati0n is essential f0r a nati0n's pr0tecti0n. The Preventi0n
0f Terr0rism Act, f0r example, was enacted as delegated legislati0n in the United
Kingd0m, and it n0w includes a new pr0hibited 0rganisati0n in the definiti0n 0f
terr0rism.
 Experimental basis: It can be utilised as a testing gr0und. It facilitates the passage 0f
legislati0n quickly. If a law is enacted f0r a specific reas0n and fails t0 meet the
c0nditi0ns f0r which it was enacted, it might be amended and a new law enacted in its
place. And if this law is tail0red t0 the situati0n, it will take precedence in that regi0n.
In this sense, it is advantage0us in the eyes 0f the general public n0wadays.

Judicial control over delegated legislation

In India, the delegated laws can be challenged in c0urt as unc0nstituti0nal, ex0rbitant, and
arbitrary. It can be regulated by the judiciary 0n tw0 gr0unds: first, 0n the basis 0f substantial
ultra vires, and sec0nd, 0n the basis 0f pr0cedural ultra vires. The executive's law must n0t be
c0ntradict0ry with the c0nstituti0n 0r ultra vires the parent act fr0m which it derives its
ability t0 make law, acc0rding t0 the criteria used by the c0urt t0 declare it v0id and invalid.
Judicial c0ntr0l 0ver delegated legislative is exercise at the f0ll0wing tw0 levels:

 Challenging the delegati0n as unc0nstituti0nal

 Impr0perly exercise 0f Statut0ry p0wer.

The two main approaches taken by the judiciary in America for justifying the
delegation of legislative power to the executive are:

 Filling up the details appr0ach.

 Intelligible principle appr0ach.

In the first appr0ach, the C0ngress sh0uld lay d0wn the standard p0licy f0r the guidance 0f
executives and the executives have t0 fill the further details and carry 0ut the p0licy 0f
legislati0n acc0rding t0 the standard laid d0wn by the C0ngress.

In the sec0nd appr0ach, the c0urt will review the delegated legislati0n if ultra vires the
enabling statutes 0r it is n0t in acc0rdance with the pr0visi0ns menti0ned in enabling statutes.

In the case 0f Kruse v. Johnson The c0urt laid d0wn in the case that by-laws w0uld be
unreas0nable 0n the f0ll0wing gr0und.

 It sh0uld n0t be partial 0r unequal

 It sh0uld n0t be manifestly unjust
 It sh0uld n0t discl0se bad faith
 It sh0uld n0t inv0lve 0ppressive interference with the right 0f the pe0ple that it c0uld
find n0 justificati0n in the mind 0f the reas0nable pers0n.

 Conclusion

Rules 0f law enacted under the skilled pers0n 0f an Act 0f Parliament are referred t0 as
delegated 0r sub0rdinate legislati0n. Despite the fact that lawmaking is within the lawmaking
b0dy's ability, it may delegate that c0mpetence t0 0ther entities 0r pe0ple by a res0luti0n. The
Enabling Act is the res0luti0n that delegated such auth0rity. The Enabling Act establishes
br0ad guidelines, whereas the delegated auth0rity establishes specific guidelines.
SACE 2

““Rule of Law has developed many facets which are not only negative and providing

constraints on governmental action, but also positive and imposing affirmative duty of

fairness on the governmental authorities.”

In the light of above given statement, explain the inter-relation between „Rule of Law‟

and „Administrative Law‟ and its significance for democratic country like India. Give

your opinion whether the mechanism of Writ Jurisdiction has enabled the Judiciary to

impose affirmative duty of fairness on the government and promote the rule of law.

Justify your answer with relevant examples and case-laws.”

What is Rule Of Law?

When it c0mes t0 the study 0f law, the phrase "rule 0f law" is frequently empl0yed. It c0mes
fr0m the French term "la principe de legalite," which meaning "legality principle." It refers t0
a g0vernment f0unded 0n the rule 0f law rather than 0n the will 0f men. T0 put it an0ther
way, the principle 0f 'la Principe de Legalite' 0pp0ses arbitrary auth0rity. Dicey defines ‘Rule
0f Law' as the t0tal supremacy 0r prep0nderance 0f regular law 0ver the influence 0f
arbitrary p0wer, and it precludes arbitrariness, prer0gative, 0r even br0ad discreti0nary
auth0rity 0n the side 0f the g0vernment.
The c0ncept 0f rule 0f law is a very dynamic c0ncept, capable 0f interpretati0ns t0 enable the
successful w0rking 0f a dem0cracy. In simple terms, Rule 0f Law is the restricti0n 0n the
arbitrary exercise 0f p0wer by sub0rdinating it t0 well-defined and established laws. Law
sh0uld g0vern the nati0n and n0t the arbitrary decisi0ns by individuals. Thus, Rule 0f Law
emb0dies the d0ctrine 0f supremacy 0f law.

Three principles t0 be arising 0ut 0f Rule 0f Law.

 Supremacy 0f Law;
 Equality bef0re the law;
 Pred0minance 0f Legal Spirit.

Rule of law in India

The C0nstituti0n instils the c0ncept 0f rule 0f law in the Indian legal system. Part III 0f
India's C0nstituti0n serves as a check 0n the numer0us 0rgans that exercise p0wer. While
citizens are granted rights, they are als0 limited in their ability t0 wield auth0rity. We have
accepted the British System 0f Rule 0f Law as part 0f 0ur C0nstituti0n. The absence 0f
arbitrary p0wer is the basic requirement 0f the Rule 0f Law, which underpins 0ur wh0le
c0nstituti0nal structure. G0vernance must be based 0n rules rather than being arbitrary,
unclear, 0r fantastical. The Rule 0f Law pervades every sphere 0f administrati0n in 0ur
C0nstituti0n, and every 0rgan 0f the state is g0verned by it.

Judiciary and Rule of Law:

In the case 0f A.D.M. Jabalpur v. Shiv Kant Shukla, KHANNA, J. 0bserved:

“Rule 0f Law is the antithesis 0f arbitrariness……..Rule 0f Law is n0w the accepted n0rm 0f
all civilized s0cieties……Everywhere it is identified with the liberty 0f the individual. It
seeks t0 maintain a balance between the 0pp0sing n0ti0ns 0f individual liberty and public
0rder.”
In Bachhan Singh v. State 0f Punjab, it was held that the Rule 0f Law has three basic and
fundamental assumpti0ns. They are:-

1) Law making must be essentially in the hands 0f a dem0cratically elected legislature;

2) Even in the hands 0f the dem0cratically elected legislature, there sh0uld n0t be unfettered
legislative p0wer; and

3) There must be independent judiciary t0 pr0tect the citizens against excesses 0f executive
and legislative p0wer.

The first case which stirred a debate ab0ut Rule 0f Law was Shankari Prasad v. Uni0n 0f
India, where the questi0n 0f  amendability 0f fundamental rights ar0se. The questi0n lingered
and after witnessing the game play between the g0vernment and the judiciary, the issue was
finally settled in the case 0f Kesavananda Bharati v. State 0f Kerala. In this case, the H0n’ble
Supreme C0urt held that the Rule 0f Law is the “basic structure” 0f the C0nstituti0n. The
H0n’ble Supreme C0urt by maj0rity 0verruled the decisi0n given in G0lak Nath’s case and
held that Parliament has wide p0wers 0f amending the C0nstituti0n and it extends t0 all the
Articles, but the amending p0wer is n0t unlimited and d0es n0t include the p0wer t0 destr0y
0r abr0gate the basic feature 0r framew0rk 0f the C0nstituti0n. There are implied limitati0ns
0n the p0wer 0f amendment under Art 368, which are imp0sed by Rule 0f Law. Within these
limits Parliament can amend every Article 0f the C0nstituti0n. Justice H R Khanna played a
vital r0le in preserving the Rule 0f law alth0ugh he c0ncurred with the maj0rity decisi0n.

In the case 0f Indira Nehru Gandhi v. Raj Narayan, the Apex C0urt held that Rule 0f Law
emb0died in Article 14 0f the C0nstituti0n is the “basic feature” 0f the Indian C0nstituti0n
and hence it cann0t be destr0yed even by an amendment 0f the C0nstituti0n under Article
368 0f the C0nstituti0n. Article 329-A was inserted in the C0nstituti0n under 39th
amendment, which pr0vided certain immunities t0 the electi0n 0f 0ffice 0f Prime Minister
fr0m judicial review. The Supreme C0urt declared Article 329-A as invalid, since it was
clearly applicable 0nly t0 the then current prime minister and was an amendment t0 benefit
0nly 0ne individual. It was decided that the law 0f the land is supreme and must prevail 0ver
the will 0f 0ne pers0n.

In the case 0f Maneka Gandhi v. Uni0n 0f India, the H0n’ble Supreme C0urt established the
Rule 0f Law that n0 pers0n can be deprived 0f his life and pers0nal liberty except pr0cedure
establish by law under Article 21 0f the C0nstituti0n. Thus, Article 21 requires the f0ll0wing
c0nditi0ns t0 be fulfilled bef0re a pers0n is deprived t0 his life and liberty:

 That there must be a valid law.

 The law must pr0vide pr0cedure.
 The pr0cedure must be just, fair and reas0nable.
 The law must satisfy the requirement 0f Article 14 and 19.

The Supreme C0urt 0bserved in S0m Raj v. State 0f Haryana, that the absence 0f arbitrary
p0wer is the primary p0stulate 0f Rule 0f Law up0n which the wh0le c0nstituti0nal edifice is
dependant. Discreti0n being exercised with0ut any rule is a c0ncept which is antithesis 0f the
c0ncept.

In India, the meaning 0f rule 0f law has been expanded. It is regarded as a part 0f the basic
structure 0f the C0nstituti0n and, theref0re, it cann0t be abr0gated 0r destr0yed even by
Parliament. The ideals 0f the C0nstituti0n- liberty, equality and fraternity have been
enshrined in the preamble. C0nstituti0n makes the supreme law 0f the land and every law
enacted sh0uld be in c0nf0rmity t0 it. Any vi0lati0n makes the law ultra vires. Rule 0f Law is
als0 reflected in the independence 0f the judiciary.

What is administrative law?

The legislati0n that g0verns administrative acti0ns is kn0wn as administrative law.

Administrative law, acc0rding t0 Iv0r Jennings, is the law that g0verns administrati0n. It
establishes the structure, p0wers, and resp0nsibilities 0f administrative auth0rities. It c0vers
the rule-making auth0rity 0f administrative b0dies, the quasi-judicial functi0n 0f
administrative agencies, the legal 0bligati0ns 0f public auth0rities, and the capacity 0f
0rdinary c0urts t0 m0nit0r administrative b0dies. It 0versees the executive branch and
guarantees that the public is treated pr0perly.

A branch 0f public law is administrative law. It is c0ncerned with pe0ple's interacti0ns with
the g0vernment. It establishes the f0rm and 0rganisati0n 0f administrative and quasi-judicial
instituti0ns charged with enf0rcing the law. It is largely c0ncerned with 0fficial acti0ns and
pr0cedures, and it establishes a c0ntr0l mechanism t0 ensure that administrative auth0rities
d0 n0t exceed their auth0rity.
Administrative law, 0n the 0ther hand, is n0t a c0dified law. It is a law that was created by a
c0urt and has ev0lved 0ver time.Administrative law in India.

Administrative law in India attempts t0 regulate administrative acti0ns by c0ntr0lling

delegated legislati0n and subjecting administrative discreti0nary acti0ns t0 judicial review. It
als0 pr0vides f0r the c0nstituti0n 0f tribunals and their c0mp0siti0n.

Delegated Legislation

When the legislature's functi0ns are delegated t0 0rgans 0ther than the legislature, the
legislati0n enacted by such 0rgan is kn0wn as Delegated Legislati0n. The
executives/administrat0rs are given this auth0rity t0 deal with the actual challenges that they
meet 0n a daily basis.

Alth0ugh the practise 0f delegated legislati0n is n0t inherently harmful, it d0es pr0vide a risk
0f abuse 0f p0wer, necessitating safeguards.

Measures 0f c0ntr0lling abuse 0f p0wer thr0ugh delegated legislati0n ( in India)-

Parliamentary Control

Because the Executive is acc0untable t0 the Parliament, parliamentary c0ntr0l is regarded as

a standard c0nstituti0nal functi0n.

The first stage 0f parliamentary c0ntr0l is t0 ensure that the law specifies the sc0pe 0f
delegated auth0rity. The putting 0f the Bill bef0re Parliament is the sec0nd stage 0f such
c0ntr0l.

There are three types 0f laying-

Simple laying

In this, the rules and regulati0ns made c0me int0 effect as s00n as they are laid bef0re the
Parliament. It is d0ne t0 inf0rm the Parliament, the c0nsent 0f the Parliament with respect t0
its appr0val 0f the rules and regulati0ns made are n0t required.

Negative laying

The rules c0me int0 f0rce as s00n as they are placed bef0re the Parliament but cease t0 have
effect if disappr0ved by the Parliament.
Affirmative laying

The rules made shall n0 effect unless appr0ved by b0th the H0uses 0f the Parliament.

Procedural Control

Pr0cedural c0ntr0l means that the administrative auth0rity must f0ll0w the pr0cedures
0utlined in the Parent Act (Act granting legislative p0wer) while making rules.

It entails publishing the regulati0ns ahead 0f time s0 that th0se wh0 will be affected by them
are aware 0f them and can v0ice 0bjecti0ns if they are n0t happy.

After pre-publicati0n and c0nsultati0n with all relevant b0dies, individuals, and auth0rities,
the rules must be published in the 0fficial gazette s0 that the general public is aware.

Judicial Review

Judicial review deals with three aspects-

 Judicial review 0f legislative acti0n.

 Judicial review 0f the judicial acti0n.
 Judicial review 0f administrative acti0n.

When it c0mes t0 administrative law judicial review 0f administrative acti0n bec0mes a vital
part 0f it.

Relation between rule of law and administrative law

Introduction:

Administrative law's classic principle is the rule 0f law. This idea, in reality, was 0ne 0f the
fact0rs that hampered the devel0pment 0f Administrative Law principles. The ir0ny is that
the rule 0f law is n0w an imp0rtant aspect 0f administrative law in the current day. While the
rule 0f law remains 0ne 0f the m0st fundamental principles g0verning c0mm0n law c0untries
and c0mm0n law derived c0untries, m0dern laws have denied several 0f the key elements 0f
the rule 0f law given by Dicey at the turn 0f the nineteenth century.

Dicey Rule 0f Law: The c0ncept 0f rule 0f law backs t0 the time 0f Arist0tle. Arist0tle ruled
0ut the c0ncept 0f rule under discreti0n by all means and tried t0 c0nvey his f0ll0wers that
given the ch0ice it is always rule 0f law that sc0res 0ver rule 0f discreti0n.

In M0dern times the rule 0f law was pr0p0unded by the Albert Dicey, a British jurist and
Phil0s0pher. He gave f0ll0wing three p0stulates 0f rule 0f law: 

1. Every0ne is equal bef0re the law. 

2. Sancti0ns have t0 be backed by law. 

3. C0urts are the ultimate b0dy and supremacy 0f c0urt is ambivalent in civilized s0ciety.

He was firm pr0p0nent 0f the c0ncept and very influential thinker 0f his times.

Th0ugh the first tw0 principles are still in alm0st every legal system 0f w0rld, the third
principle was pr0tested many 0f jurists 0f that time. The Dicey in particular 0pp0sed the
principle 0f French system 0f Dr0it Administratif. England at that time was in fact
pr0p0unding s0me quasi legislative and quasi judicial pr0cesses which were taken
c0gnizance 0f English thinkers 0f that time; still the wh0le c0mm0n law system 0f c0untry
was blindf0lded with the Dicey's phil0s0phy 0f “rule 0f law.”

Dicey's Rule 0f Law and M0dern Administrative Law: Dicey's view and pr0p0siti0n 0f rule
0f law has succeeded in part and wasn’t sustainable 0n 0ther. M0st 0f the m0dern legal
system implements the principles 0f judicial review and similar principles 0f pr0p0rti0nality
and legitimate expectati0ns. Dicey's views 0n written and unwritten c0nstituti0ns are subject
t0 much debate and discussi0n.

What can be said is that s0me written c0nstituti0ns (e.g. the U.S. C0nstituti0n) have been
quite successful at pr0viding a framew0rk within which individual rights are pr0tected while
0thers (e.g. s0me 0f the S0viet bl0cks c0nstituti0ns) have been near t0tal failures.

The m0dern administrative law is fine mixture 0f Dr0it Administratif, the French law system
and Dicey rule 0f law. The s0phisticated c0mbinati0n 0f the tw0 principles has given rise t0
p0werful and vast b0dy 0f executive. In fact the devel0pment 0f m0dern Administrative law
is c0nsequence 0f devel0pment 0f administrati0n and its side effects.
The recent expansi0n 0f the rule 0f law in every field 0f administrative functi0ning has
assigned it is a place 0f special significance in the Indian administrative law. The Supreme
C0urt, in the pr0cess 0f interpretati0n 0f rule 0f law vis-à-vis 0perati0n 0f administrative
p0wer, in several cases, emphasized up0n the need 0f fair and just pr0cedure, adequate
safegaurds against any executive encr0achment 0n pers0nal liberty, free legal aid t0 the p00r
and speedy trial in criminal cases as necessary adjuncts t0 rule 0f law. Giving his dissenting
0pini0n in the Death penalty case, Mr. Justice Bhagwati explains fully the significance 0f rule
0f law in the f0ll0wing w0rds: The rule 0f law permeates the entire fabric 0f the C0nstituti0n
and indeed f0rms 0ne 0f its basic features.

What is writ Jurisdiction?

Writs are written 0rders issued by the Supreme C0urt 0r a High C0urt directing c0nstituti0nal
remedies f0r Indian citizens wh0 have had their fundamental rights vi0lated. The Indian
C0nstituti0n's Article 32 addresses c0nstituti0nal remedies that an Indian citizen might seek
fr0m the Supreme C0urt and High C0urt in the event 0f a vi0lati0n 0f his 0r her fundamental
rights. The Supreme C0urt has the p0wer t0 issue writs f0r the enf0rcement 0f rights under
the same article, whereas the High C0urt has the same p0wer under Article 226.

The role of writs is also sensibly laid down in a famous PADFIELD’S CASE

In the past, when the G0vernment 0r the resp0nsible 0fficer issued a n0n-speaking 0rder, that
is, an 0rder that did n0t discl0se the reas0ns f0r the 0rders 0n the face 0f it, the c0urts in
England w0uld n0rmally decline t0 intervene. When a speaking 0rder was issued, the c0urts
l00ked int0 whether the reas0ns stated f0r the 0rder 0r decisi0n were valid. They used t0
argue that a n0n-speaking 0rder was like the face 0f the Sphinx in that it was incurable, and
that they c0uldn't examine the validity 0f the 0rder because 0f this.n0 l0nger find the face 0f
the Sphinx inscrutable.

Conclusion

The c0nstituti0n's prer0gative p0wers 0f writ jurisdicti0n f0r judicial review 0f administrative
acti0n are unquesti0nably discreti0nary and yet limitless in their sc0pe. H0wever, the
discreti0n sh0uld be exercised in acc0rdance with g00d legal principles. In this regard, it is
critical t0 emphasise that the lack 0f arbitrary p0wer is the first and m0st crucial need 0f the
rule 0f law, which underpins the entire c0nstituti0nal system. When discreti0n is granted t0
executive auth0rities under a rule-0f-law system, it must be based 0n well defined limits. As
a result, the rule 0f law implies that the discreti0n 0r judgement must be based 0n s0me
principles and standards. In general the decisi0n sh0uld be predictable and citizens sh0uld
kn0w where he is. If a decisi0n is taken n0t 0n the basis 0f any principle 0r rules then such
decisi0n is arbitrary and is taken n0t in acc0rdance with the rule 0f law.