RULE OF LAW

ADMINISTRATIVE LAW
09 DECEMBER 2015
 Rule of law
Rule of law is a basic principle of the British constitution and has
even been adopted by the Indian and US constitutions. It forms the
entire basis for administrative law.

It was first stated by Sir Edward Coke who stated that the King
cannot be above God and the law and thus upheld the supremacy of
the law over the executive.

It was further developed by Dicey who stated that ‘rule of law means
the absolute supremacy or predominance of regular law as opposed
to influence of arbitrary power and excludes the existence of
arbitrariness of predominance, or even wide discretionary authority
on the part of the government.
 Dicey gave 3 meanings toRule
this doctrine namely-
of law

 supremacy of the law,

 equality before law and

 predominance of legal spirit.

 Supremacy of the law

• Supremacy of the law- This means that no man may be

punished without due process of law for an established breach
of the law in the ordinary legal manner in the ordinary courts
of law. It also means that administrative discretion leads to
arbitrariness and thus the same should be avoided. The law is
supreme and even the administration is under the law
 Equality before law
Equality before law- This means that every citizen must be
subject to one and the same body of law which is the ordinary
law of the land administered by the ordinary courts of the
land. Dicey criticised the principle of Droit Administratiff as in
the French legal system which provided for separate tribunals
for settlement of disputes between the government and
individuals. He saw this as a negation of the principle of the
rule of law as it took away the jurisdiction of the courts and
subject government officials to a law different from that which
the general public was subjected to. Also, it allowed the
administration to adjudicate upon matters which was
primarily a function of the judiciary.
 Predominance of legal spirit

Predominance of legal spirit- As per Dicey it is the

courts which enforce rights of individuals while a
written constitution merely declares such rights.
Thus, the constitution is not the source but only a
consequence of legal rights. It was emphasised that in
order for rights to be secured, enforcement by courts
was required rather than a mere declaration whereby
such rights could easily be trampled upon. He used
the example of the various Habeas Corpus Acts which
actually went ahead to talk of the enforcement of
rights rather than defining them
 Rule of Law

One of the merits of Dicey’s theory was that it helped

exercise a check on executive powers and kept
administrative authorities within their limits. It became a
touchstone to judge administrative acts.
However, even during Dicey’s time in 1885 there were
several acts which conferred wide discretionary powers on
the executive without allowing any sort of judicial review,
thereby contravening this doctrine.
One of the major drawbacks of this theory lies in the fact
that discretionary powers are regarded as being arbitrary
and in a modern welfare state, administrative discretion is
indispensible
 Rule of Law

Another drawback is a presumption made by Dicey about the

judiciary being the solution to all suits. His mistrust over the
system of Droit Administratiff in France was wrong as this
system exercised checks in a much better manner than the
judiciary. The Counseil d’ Etat which exercised judicial
control over the administration was infact a part of the
administration itself while being a court in reality.
Dicey’s rule of law however has been identified in
democracies across the world with rights of the people. The
International Commission of Jurists in their Delhi
Declaration,1959 accepted the idea of rule of law as the
modern form of law of nature
 Rule of Law
Though Dicey’s original rule of law cannot be accepted in
totality, the modern rule of law as given by Davis has the
following 7 connotations-
(a) Law and order
(b) Fixed rules
(c) Due process or fairness
(d) Elimination of discretion
(e) Principles of natural justice
(f) Preference to ordinary courts over administrative
tribunals
(g) Judicial review of administrative actions
 Rule of Law in India
 Rule of law is a part of the basic structure of the Indian constitution. A few
examples of where it may be seen in the constitution are as follows-
 (a) The preamble talks about justice, liberty and equality.
 (b) There is provision for judicial review by the SC and the HCs for the
enforcement of fundamental rights.
 (c) If there is any abuse of power by the executive, the same may be
challenged on the grounds of malafide, etc. before a court of law.
 (d) Art. 21 provides that no person shall be deprived of his life or personal
liberty except in accordance with procedure established by law. This brings
in the principles of natural justice especially after the Maneka Gandhi case.
 (e) Art. 13 provides that all rules, ordinances, by-laws, orders, etc. would
be regarded as ‘law’ and could thus be subjected to judicial review.
 (f) The Constitution is supreme and all three organs of the government are
below the constitution.
 Rule of Law

In India there is no rule of the King can do no wrong.

Art. 14 talks about equality before law and equal
protection of the law. Even the state and its officials
are liable in torts and contracts and if any wrong is
committed by an employee of the state, the state may
be made liable for such act.
 Rule of law
However, in several areas, there exists a great deal of
executive interference. This is primarily due to
excessive delegation of powers by the legislature and
the judiciary to the executive. Also, the executive has
been given wide discretionary powers. Further, it is
not just the executive but even the legislature which by
passing demonic acts such as the Prevent Detention
Act or the Maintenance of Internal Security Act
encroaches upon the rights of the people
 Case Laws

In Chief Commissioner, Punjab v. Om Prakash, it was

held that the rule of law is a characteristic feature of
the constitution by which the judiciary may question
any administrative action on the ground of legality
especially when there is a violation of fundamental
rights
 Case laws

In ADM Jabalpur v. Shivkant Shukla (Habeas Corpus case), the

freedoms under Art.19 were suspended and enforceability of Art.s 14,
21 and 22 was suspended during emergency. Several persons were
detained and they approached the courts by filing writ petitions
asking the courts to issue writs of habeas corpus. The majority held in
this case that Art. 21 of the Constitution is the rule of law as far as the
Indian constitution is considered and as the enforceability of the
same is suspended, it cannot be enforced. This was an erroneous
judgment and J. Khanna in his dissenting judgment stated that the
rule of law is the antithesis of arbitrariness. The right to life and
personal liberty as enshrined in Art. 21 is inherent in all human
beings and thus no person may be deprived of his life and personal
liberty even by state action of suspending such right.