i. CHAPTER 2 Conceptual Objections Against the Growth of Administrative Law 1, CONCEPT OF THE RULE OF LAW While in Europe, administrative law has been, for a century and a half, a separate branch of law and a subject for academic study, it is only during the last few decades that, in the US and the common-law world. it has attained full stature as a “respectable” field of study for the law students and practitioners.' The reason seems to be that the people had a mistrust regarding the growth of administrative process, and hence did not recognise its independent existence. The weapon which the people-in England used to strike at the growth of administrative law was Dicey’s for eal jation of the concept of the rule of law. “Rule of law” is the supreme manifstation of human civilization and culture and is a new “lingua franca”of global moral thought. It is an eternal value of constitutionalism and an inherent attribute of democrac and good governance. The concept of the rule of law is an animation of natural law and remains as a historical ideal which makes a powerful appeal even today to be ruled by law not by a powerful man. “Rule of law” is to _be understood neither as a “rule” nora “law”. It is generally understood as a doctrine of political morality” which concentrates on the rule of law in securing a “correct balance” between “rights” and “powers”, between individuals, and between individuals and the State in any free and civil society. This balance may be drawn by “law” based on freedom, justice, equality, and accountability, Therefore, it infuses law with moral qualities.> “Rule of proper law balances the needs of society and the individual.”* 1, Benjafield and Whitmore, Principles of Australian Administrative Law 2. Alex Carrol, Constitution and Administrati 3. Aharon Barak, “Begin and the Rule of Law Laie, 40 (2nd Edn, all 2005) 10(3) Israel ‘e. >IN, LAW AGAINST GROW TIE OF ADM loa CONCEPTUAL On The term “rule of law” is derived from the French phrase la princjp, K h nciple of legality) which refers (0 a government bay ‘ seats I andl) een, dn this sense the concept of la prin, Te crRORUIOMIEEY OM Toph he concept of the rule of law in “right reason all Strate actions. Aristotle (584-322 BC) made a dif iT jastice and moral justice, Rule of law can hy Thomas Aquinas and St. Augustine located i in Rousseau located it in secular traditions ¢ is formed only to protect the life, on prinelp ipe de leg Barly Greeks whieh must inform ference between procedu Jocated in moral justice, Laws of Gods Hobbes, Locke, ‘of “social contract” in which a Stat i liberty and dignity of the individual. Dicey located it in right-based lib, Modern writers like Richard Fallon locate it | efficacy, stability, authority and ceralism and judicial review, in quality of law which includes elarit heless, Edward Coke is said to be the origina sorted that king must be under God and of law over pretensions of the impartial justice, Nevert tor of this concept when he law and, thus, vindicated the supremacy executive. James M. Buchanan! di law”, All primitive and non-democ eral and progressive societies having “rule of law” are not necessarily lawless societies. According to him “generality” is at the centre of rule of law, besides fairness, prospectivity and due process. Generality as an ingredient of law forecloses many majoritarian options, but classification is still possible provided it is reasonable and in public interest. Generality, as a normative principle of rule of law, makes law more acceptable and there are less chances of oppression and discrimination. Generality pro: vides for more liberty and freedom for action and protects human rights of the people. Rule of law, as a higher law, provides an ideal which societies can emulate. It thus provides a criterion with references to which one can evaluate law and legal structures of governance of any society. Rule 0! law is possible only in democratic societies, where it puts restraints ¢ es ate emilee can be used both in normative Saas buena Tne ce ot D ay, He a rule of law society in normative Bae ee eit fonetional sense of the term. Therefor a ive approach. If putin ctive, * * aca, but in perspective, “rule of law” mandates that power must be ms uuntable, governance progressively mentally ethical. ‘ oe ue concept of the rule of law can be traced to the Upanisha!> aw is the King of Kings. It is more powerful and rigid th" 4. James M. Buchman, Criteria In collected works of, re ard Society: Definition, Diagnosis and Prescri? stinguishes between “law” and the “rule of atic societies had “law”, but all lib just and equal, and State inc’A CONCEPT OF THE RULE OF Law 25 chey (Kings). There is nothing higher than law. By it shall prevail over the strong and justice shal triumph.” the concept of law developed to control the exercise of the monarchs who claimed divine pov WETS to rule, concept has assumed different dimensions public powers must be able to justify publicly thar eke exercise of power is egally valid and socially just. Prof. A.V. Dice, later developed on th concept in the course of his lectures at the Oxted University: Dicey wae an individualist; at the end of the golden Victorian oreo) in England, he wrote about the concept of the rule of law. That was the reason why Dicey’s concept of the rule of lav contemplated the absence of wide powers in the hands of government oferta According to him, wherever there is discretion, there is toom for arbitrariness The rule of law is a viable and dynamic concept and, like many other such concepts, is not capable of any exact definition. This, however not mean that there is no agreement on the basic va resents. The term rule of law is used in conte manbiaptllerhle according itoilaw Maven. in| thaimndstiat Beatin forms of government there is some law according to which the powers of the government are exercised, but it does not mean that there is the rule of law. Therefore, rul f law means that the law rules, which is based on the principles of freedom, equality, non-discrimination, fraternity, accountability and non-arbitrariness, and is ertain, regular and predict- able, using the word “law” in the sense of “jus” and “lex” both. In this sense the “ule of law” is an ideal. It is a modern name for natural law, In history, man has always appealed to something higher than that which is his own creation. 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”; and the modern man calls it the “rule of law”. The basic concept of the rule of law is not a well-defined legal con- "cept. The courts generally would not invalidate any positive law on the 8round that it violates the contents of the rule of law, However, in ADM, - Jab i *, popularly known as Habeas Corpus ase, an attempt was made to challenge the detention orders during the Emer; on the ground that it violates the principles of the rule of ligation to act in accordance with rule of law ...is a cen of our constitutional system and is a basic feature of the Though the contention did not succeed and some jus uggest that during an emergency, the emergency the rule of law, yet if the reasoning of 8 powers the weak Thus in monarchy, of arbitrary powers Ina democracy, the and means that the holders of Dicey was laissez faire wever, does, lues which it rep- adistinction to “rule of5ROW MIN. 26 CONCEPTUAL ‘copy. AGAINST GROWTH OF AD’ IN. LAW ‘ i y- it becomes clear that the ve opinions is closely read, i ; a matter it did not reflect in the final order e unfortunate order to the effec: ergency are completely shur f, was accepted, 10 i the court.’ Therefore, despite i em the doors of the court during an y : detenus, it is gratifying to note that the concept of the rule of law ¢. used as a legal concept. f \ In the opinion of some of the judges constituting the majority _Kesavananda Bharati v. State of Kerala* (Kesavananda Bharat of law was considered as an “aspect of the doctrine of basic struy ich even the plenary power of Parliament ¢ the Constitution, wh reach to amend”.” . In Indira Nehru Gandhi v. Raj Narain™ (Indira Nehru Gandhi which the Supreme Court invalidated clause (4) of Article 329-A in the Constitution by the Constitution (39th Amendment) Act, to immunise the election dispute to the office of the Prime M. from any kind of judicial review, Khanna and Chandrachud JJ held Article 329-A violated the concept of basic structure fice j though did not go to this extent but certainly held that Article 5. Clause (4) offends the concept of the rule of law. Ray CJ held that sinc the validation of the Prime Minister's election was not by applyin law, therefore it offended the rule of law."" According to Mathes clause (4) of Article 329-A offended the rule of law which postula pervasiveness of the spirit of law throughout the whole range of gov: ment in the sense of excluding arbitrary official action in any sp! Referring to the same constitutional provision, Beg J observed that jurisdiction of the Supreme Court to try a case on merits cannot be away without injury to the basic postulates of the rule of law and of je tice within a politically democratic constitutional structure.’ ‘of Kesavananda, Indira Gandhi and other Habeas Corpus cases”, Writ Prof. Baxi, a provides a distillation of Indian judicial thought on the conceptions « Rule of Law, which has evolved well over a quarter century. Refe western theories and thinkers from Dicey onwards abound in these oP 7. See, Upendra Baxi, “Developments in Indian Adi s — ai a in ministrative Law” in A.G. No ey Le Law in India (1982) 134. See also, The Indian Supreme Court 2" P 8. (1973) 4 SCC 225: AIR 1973 SC 1461. See also, Mohinder Singh Gill x. Chie? Commr., (1978) 1 SCC 6 bak Cie | SE AS alam 38: AIR 1978 SC 851. 10. 1975 Supp SCC 1: AIR 1975 SC 2299. 11, Art. 329°A was omitted by the Constitution (Forty-fourth Amendment) Acts! ° 12. See, Upendra Baxi, “1 in Indi < (Bd), Public Law in aoa. Indian Administrative Law” in A.G. S™ 13. See, 1975 Supp SCC 1, para, d Para. 59. ein satiny al Neri r975 op SOC a AIR 975 SC +25CONCEPT OF THE RULE OF LAW 27 r by way of rhetorical flourishes, masking the typically Indian a cue from its earlier decisions, the Supreme Court in P. rthy v. State of A.P." categorically stated that Article 371-Dis vo) of the Constitution clearly violates the rule of law which is 2 pasic structure and essential feature of the Constitution. This provision Z a authorised the Andhra Pradesh State Government to nullify any bat on of the administrative services tribunal. Declaring the provision anconstitutional, the court maintained that it is a basic principle of the rule of law that the exercise of power by the executive or by any other fu pority must not only be conditioned by the Constitution but must also pe in accordance with law and the power of judicial review as conferred py the Constitution with a view to ensuring that the law is observed and there is compliance with the requirement of law on the part of executive and other authorities, and it is through the power of judicial review that the rule of law is maintained and every organ of the State is kept within the limits of law. The Supreme Court rightly observed in Som Raj v. State of Haryana’ that the absence of arbitrary power is the first postulate of the rule of law upon which whole constitutional edifice is based. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of the rule of law. Anyone who surveys the decisional law in this area will come to the conclusion that the concept of the rule of law has developed many fac- ets which are not only negative providing constraints on governmental action but affirmative also imposing an affirmative duty of fairness on the government. These various negative and affirmative facets have been summarised by Prof. Upendra Baxi thus: ‘One is that power should not be exercised arbitrarily. This has meant that "it should be exercised for the purpose for which it has been conferred. It “also means that power should be exercised within the statutory ambit; and purported exercise of it would not just be ultra vires, but in a true sense of term arbitrary. Simple negation of arbitrariness is, however, not enough the Rule of Law values. Indian courts have gone further to insist positive content of the Rule of Law obligations. These include the of natural justice which have to be followed not just in quasi-judicial but often also in purely administrative action. The scope and content requirements of natural justice have varied from time to time accord- ing to the judicial interpretation, but the broad insistence remains. In addi- ion, access to information as to the grounds of decision has remained an portant preoccupation of the Indian judiciary, as any impediments to it the tendency of obstructing judicial review of administrative action. Taking gms Baxi, “Developments in Indian Administrative Law” in A.G, Noorani in India (1982) 134. Eases: 18. (1999) 2 SCC 653, 658-39.CONCEPTUAL OBJ. AGAINST GRowTH OF ADMIN, LAW (ottAs 28 This means that the courts have from} Ty to time insisted that exercise administrative power be Frecompanied by reasons though the exact sta wee obligation co give reasons 1# as Yor indeterminate, The Rule of Lay i has been in addition consistently extt Med to secure for the individua activities. For example, the goverr not fair dealing, by the 5 bound by its The State h ision that it wou In matters involving Ikeen to insist that the ambit of fair play is not ypacity of the y, out of State Ecc tthe scope of tH tate in its economic ransactions h to individuals in busine f the rules of natural justi 5 assurance 1s to follow some O Id not trade government contracts, th ment is held way of estoppel. hefore reaching, a dec or before blacklisting them heen increasingly dominating © risiny with certain contracto courts have State over the individual lessened in view of the In the area of losses and injury function, courts have tended to restric immunity in favour of the affected individuals. -¢ that the courts are making, all concerted efforts to establish a rule of law society in India by insisting on “fairness” in every xercise of power by the State. Some of the recent decisions sar indicators of this trend. In Sheela Barse he court insisted on “fairness” to women 1 of guidelines for the protection of male prisoners. In State of M.P. 1 “fairness” in public pnomic entrepreneurial ne defence of sovereign It is heartening t0 s¢ aspect of the ¢: of the Supreme Court are cle y. State of Maharashtra att in police lock-up and drafted a cod lice custody, especially fe pe Ramashanker Raghuvansbi'', the court securee employment by holding that reliance on police reports is entirely mis placed in a democratic republic, Thus, the efforts of the courts in legiti ‘ic? administrative powers and illegitimising “undue” powers antive and procedural norms and standards can ark of judicial activism for firmly establishing prisoners in po! mising, “dl by operationalising subst be seen as a high benchm the concept of the rule of law in India. The term “rule of law” can be used in two senses: 1) formalistic senses and 2) ideological sense. If used in the formalistic sense, it refers to orga” ised power as opposed t0 a rule by one mans and if used in an ideological sense, it refers to the regulation of the relationship of the citizens and the government and in this sense, it becomes a concept of varied interest and contents. In its ideological sense, the concept of rule of law represents an ethical code for the exercise of public power in any country. Strategies of this code may differ from soci ty to society depending on the societal needs Se ee ae but i basic postulates are universal covering all space . These postulates include equality, freedom and accountability: 19, See, Upendra Baxi, “Developments in Indian Administrative Law” in A,G. Noor"! (8d.), Public Law in India (1982) 20. (1983) 2 SCC 96: AIR 198. SC 378 See : wr ni car hes SC 378. See also, Veena Sethi v. State of Bihar, (1982) |. (1983) 2 8CC 145: AIR 1983 SC 22. See, M.P. jai P. Jain, Changing Face of Administrative Law, India and Abroad (1982) 3- 2 CC| CONCEPT OF THE RULE OF LAW Equality” is not a mechanical and negative concept but ha pei sive and positive contents which oblige ever Y Rovernment to create con ditions: social, economic, and political; where every individual has an equal opportunity to develop his personal 2 - ity to the fullest with dignity. “Freedom” postulates and to live absence of every arbitrary action, free speech, expression and association, personal liberty, and many oth ers. These basic rights of any socie ty may be restricted only on the ground that the claims of these freedoms would be scription. The basic idea behind « with the deference of the people them in the ultimate better served by such circum “accountability” is that the rulers rule and, therefore, must be accountable to analysis. Forms of accountability may differ, but the basic idea must remain the same that the holders of public power must be able publicly to justify the exercise of public power not only as legally valid but also socially just, proper and reasonable. In this manner the concept of the rule of law represents values and not institutions and con- notes a climate of legal order which is just and reasonable, wherein every exercise of public power is chiefly desi u igned to add something more to the quality of life of the people. Every legislative, executive and judicial exercise of power must, therefore, depend on this ideal for its validity. Consequently, it is the rule of law which must define law rather than the law defining the rule of law.2* x Dicey’s formulation of the concept of “rule of law”, which according to him forms the basis of the English constitutional law, contains three principles: "i (1) 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. (2) No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense, the rule of law implies (a) absence of special privileges for a government official or any other person; (6) all the persons irrespective of status must be subjected to the ordinary courts of the land; {c) everyone should be governed by the law passed by the ordi- nary legislative organs of the State. (3) The rights of the people must flow from the customs and tradi __ tions of the people recognised by the courts in the administratior of justice. p) wide vy 23, See, Introduction by Prof. Upendra Baxi to this book. 24, Ibid.ri OF ADMIN. LAW lon ww 30 CONCEPTUAL OBJ. AGAINST GRE «thesis by peeping from a ( | Dicey observed that the yoy dif there wa individual, jp contents of hi In France Dicey developed the England into a sunny Frances ised wide diseretions vernment official and y court but by a special administrative court, ty Mae not the ordinary law but a specially developed by the administrative court, From | at opel = ee orem pelt the negation of the concept of the rule Of Taw which the cccrer of Englishmen's liberty. Therefore, Dicey concluded that ther administrative law in England. of Dicey’s rule of iry powers, a a privat ment officials exe dispute between a 0) tried not by an ordinar law applicable in that case 199 110 y ; Jaw is the recognition of a car he first principle [principle of democratic governments as opposed to arbitrary and hich lays down that no functionary « the poy aeament should have wide arbitrary or discretionary powers to interfer with the liberty and freedom of the people. But here Dicey was not refer ring to a wide measure of discretion which is inescapable in any modern government. He was certainly indicating the position in some countries where police authorities exercised wide arbitrary or discretionary power imprisonment and punishment outside the ordinary legal system. ‘The second principle of Dicey’s rule of law also enunciates a demo cratic prineiple of equal subjection of all persons to the ordinary law of the land as administered by the ordinary courts, This does not mean that the law must be the same for everybody irrespective of functions or ser vice, Dicey’s insistence was that a government officer must be under the same liability for acts done without legal justification as a private indi vidual. Thus, he contrasts the English legal system with that of F where government officials were protected by special rules in special administrative tribunals. ‘The, third principle of Dicey, in fact, does not lay down any legal ru but merely explains one aspect of the British constitutional system where common law is the source of fundamental freedoms of the people. He thus distinguishes the British system from that of many other countries OTTERS SE ra ete aa NaaMMURE RV ArGRE Suid heatoccee rights of the people was an) when the Supreme Court ait th area during the 1975 Emergen) soa pre naeaemne Court ruled that even illegal acts of the govern of personal libecty fp court because it was found that the sour erty in India was Article 21 of the Constitution, whieh ha! been su isan law oe Ae Presidential Proclamation, and not any comme? ding autocratic governments wl nice34 CONCEPTUAL OBJ. AGAINST GROWTH OF ADMIN. LAw The|modern concept of the rule of is fairly wide and, there; sets up an ideal for any government to achieve. oped by the International Commission of Jurists, known 4 Declaration, 1559, which was later on confirmed at Lagos ir According to this formulation, the rule of law implies that the func;,, of the government in a free society should be so exercised as ate conditions in which the dignity of man as an individual This dignity requires not only the recognition of certain civil or p rights but also creation of certain political, social, economica tional and cultural conditions which are essential to the full develog of his personality and the protection of his dignity. For this purpose ¢ Declaration puts emphasis on independence of the judiciary and eff government. During the last few years, the Indian Supreme Court has develo some fine principles of Third World jurisprudence. Developing the s néw constitutionalism further, the Supreme Court in Veena Sethi v. Stat of Bibar’® extended the reach of the rule of law to the poor and th downtrodden, the ignorant and the illiterate, who constitute the bulk of humanity in India, when it ruled that the rule of law does not exis: merely for those who have the means to fight for their rights and yer often do so for the perpetuation of the status quo, which protects and preserves their dominance and permits them to exploit a large section of the community.|The opportunity for this ruling was provided by a letter written by the Free Legal Aid Committee, Hazaribagh, Bihar drawing its ‘attention to unjustified and illegal detention of certain prisoners in ja for almost two or three decades. The Commission divided itself into certain working groups which tried to give content to the concept in relation to an individual's area of activity in a society: 3 (1) Committee on Individual Liberty and the Rule of Law, which laids down eae (a) that the State should not pass discriminatory laws; (b) that the State should not interfere with religious beliets: (c) that the State should not place undue restrictions on freedom (2) Committee on Government and the Rule of Law Under this the rule of law means not only the adequate safegua" against abuse of power but effective government capable of m2!" taining law and order. (3) Committee on Criminal Administration and the Rule of Law Rule of law here means "3 (a) due criminal process; (b) no arrest without the authority of law; This concept wa 435, (1982) 2 SCC 583, 586: AIR 1983 SC 339.ji CONCEPT OF THE RULE OF LAW (c) presumption of innocence: (d) legal aid; (e) public trial and fair hearing. (4) Committee on Judicial Process and the Rule of Law Under this the rule of law means— (a) independent judiciary; (b) independent legal Profession; (c) standard of professional ethics. In 1957, the University of Chicago held as understood in the West. two communist countries. a conference on the rule of law . It was attended by 11 countries inctading The Secretary of the colloquium described the broad areas of agreement as follows: (1) The rule of law is an expression of an endeavour to give reality to something which is not readily expressible; this difficulty is pri- marily due to identification of the rule of law with the concept of rights of man—all countries of the West recognise that the rule of law has a positive content, though that content is different in dif- ferent countries; it is real and must be secured Principally, but not exclusively, by the ordinary courts. (2) The rule of law is based upon the liberty of the individual and has as its object the harmonising of the Opposing notions of individual liberty and public order. The notion of justice maintains a balance between these notions. Justice has a variable content and cannot be strictly defined, but at a given time and place there is an appropri- ate standard by which the balance between Private interest and the common good can be maintained. There is an important difference between the concept of rule of law as the supremacy of law over the government and the concept of rule of law as the supremacy of law in society generally. The first concept is the only feature common to the West, connoting as it does the protection of the individual against arbitrary govern- ifferent techniques can be adopted to achieve the same end st not be conceived of as being linked to any that there must exist to submit to the law; if ernment itself becomes the isis the antithesis of the rule (3)36 CONCEPTUAL OBJ. AGAINST GROWTH OF ADMIN. LAW . it connotes a climate of legality and legal order in which th of the West live and in which they wish to continue to live The Secretary General of the United Nations in its 2004 Re. (5/2084/616) described rule of law to contain principles of gover, and the measures necessary to ensure adherence to those principte 1 (1) Principles of governance include: Accountability of all p institutions and entities, public and private including State, which is publicly promulgated, equally enforced, independ adjudicated and is consistent with the human rights values, nor and standards. (2) Measures necessary to enforce these principles of governance m include: Supremacy of law based on the above principles, equalir before law and equal protection of law, fairness in the applicatio, of law, separation of powers, participation in the decision-making legal certainty, avoidance of arbitrariness, procedural transparenc and accountability to law. In civil law juri jon (Germany), the concept of rule of law is compre Sele amie ed forrest seis ete sense, it implies tha State powers be subjected to substantive basic values of the Constitution (Basic Law) which includes: human dignity; democratic federal and wel- fare order; people participation in government formation; pre-eminence of basic rights of the people; State accountability under law and una- mendability of these values. In formal sense, the rule of law implies pro: cedural fairness; principles of equity, proportionality, contextuality and independence of the judiciary. Thus, rule of law doctrine is a complicated and demanding criteria for evaluating the legitimancy of governance in any State. Nevertheless, cannot be a ground to ignore it if benefits of a constitutional democracy are to be secured for the present and future generations of people. Recent aggressive judicial activism can only be seen as a part of the efforts of the constitutional courts in India to es blish a rule of law society which implies that no matter how high a person may be, the law is always above him. Court is also trying to identify the concept of ruk of law with human rights of the people. The court is developing tech niques by which it can force the government not only to submit to the law but also to create conditions where people can develop capacities © exercise their rights properly and meaningfully. The public administr tion is responsible for effective implementation of the rule of law and constitutional commands which effectuate fairly the objective standards 36. See, Goodhart, “The Rule of Law and Absolute Soy law Review 946-63. Countries which attended the conference were the UK. We Germany, Italy, Canada, Sweden, Turkey, Brazil, Mex: i. 37. See generally, Lord Bingham, Rule of Law pea ere vereignty”, (1958) 106 Pennsylvan(h) Modern concept of rule of law As stated above, Dicey’s concept of the rule of law was not accepted fully in England even in 1885 when he formulated it, as in that period, admin istrative law and administrative authorities were very much there. Today, Dicey’s theory of rule of law cannot be accepted in its totality. Davis? gives 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 fair- ness, 5) natural law or observance of the principles of natural justice, 6) preference for judges and ordinary courts of law to executive authori- ties and administrative tribunals, and 7) judicial review of administrative actions.