Unit-1

Rule of Law

“Critical Analysis of Rule of Law” (Unit-I)

ADMINISTRATIVE LAW Project

Under the Supervision of Prof. Bhawna Sharma (Assistant Professor) Faculty of Law

Submitted by Shivam Dalmia Semester X (5th year) sec-B

FACULTY of LAW JAMIA MILLIA ISLAMIA, NEW DELHI-25

Acknowledgement I convey my hearty affection to all those people who helped and supported me, for completion of my project.

My deepest thanks to our subject Professor (Prof. Bhawna Sharma) for guiding and correcting various topics of mine with attention and care. She has taken pain to go through the project and make necessary correction as and when needed

Shivam Dalmia 27th May 2020

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Table of Contents Acknowledgement................................................................................................1 TABLE OF CASES..............................................................................................3 INTRODUCTION................................................................................................4 ORIGIN OF THE CONCEPT..............................................................................4 MEANING...........................................................................................................4 BASIC FEATURES OF RULE OF LAW............................................................4 SUPREMACY OF LAW:.................................................................................5 EQUALITY BEFORE LAW.............................................................................5 PRE-DOMINANCE OF LEGAL SPIRIT.........................................................5 FORTUNE CASE:................................................................................................6 BAREL CASE:.....................................................................................................6 RULE OF LAW UNDER INDIAN CONSTITUION..........................................8 SIGNIFICANCE OF RULE OF LAW...........................................................12 CONCLUSION...................................................................................................13 BIBLIOGRAPHY...............................................................................................14

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TABLE OF CASES

S.No

Case Law

Citation

Page no.

1.

ADM Jabalpur v. Shivakant Shukla

(1976) 2 SCC 521

9

2.

Chief settlement Commr., Punjab  v.  Om Prakash

AIR 1969 SC 33

10

3.

Entick v. Carrington

(1765) 19 St Tr 1029: (15581774) All ER Rep 41

5

4.

Indira Gandhi Nehru vs. Raj Narain

1975 Supp SCC 1

10

5.

Kesavanda Bharti vs. State of Kerala

(1973) 4 SCC 521

9

6.

Lt. Col. Priti Pal Singh v. Union of India,

1982 AIR 1413

11

7.

Maneka Gandhi v. Union of India

AIR 1978 SC 597

11

8.

P. Sambamurthy v. State of Andhra Pradesh

1987 AIR 663

10

9.

S.G. Jaisinghani V. Union of India

AIR 1967 SC 1427

10

10.

Sheela Barse v. State of Maharashtra

1983 AIR 378

11

11.

(1993) 4 SCC 441.

10

12.

Supreme Court Advocates on Records Association v. Union of India Veena Seth v. State  of Bihar

AIR 1983 SC 39

11

13.

Wilkes v. Wood

(1763) 19 St Tr 1153: 98 ER 489

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13.

Yusuf Khan v. Manohar Joshi

Writ petition (civil) 673 of 1998

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INTRODUCTION 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, rule of law means 'howsoever high you may be; the Law is above you.  It 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. “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

ORIGIN OF THE CONCEPT One of the basic principle of the English constitution is the rule of law. The doctrine is accepted in the US and Indian Constitution. Sir Edward Coke was the originator of this concept. In a battle against the King, he maintained successfully that the King should be under the law and established supremacy of the law against the executive. The firm basis for the Rule of Law theory was expounded by A. V. Dicey and his theory on the rule of law remains the most popular.

MEANING Dicey has attributed three meaning to the rule of law. I.

The first meaning is that no man is punishable or can be lawfully 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 second meaning of the rule of law is that no man is above law. Every man whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. The third meaning of the rule of law is that the general principles of the constitution are a result of judicial decisions determining the rights of the private persons in particular case before the court.

II.

III.

BASIC FEATURES OF RULE OF LAW         

Law is supreme. Above everything and above everyone. All things should be done according to law and not according to whim. No person should be made to suffer except for a distinct breach of law. Absence of arbitrary power being the part and parcel of the rule of law. Discretionary powers should be exercised within reasonable limits set by law. Adequate safeguard against executive abuse of power. Independent and impartial judiciary. Fair and justice procedure Speedy trial 4

Dicey’s theory has three pillars based on the concept that “a government should be based on principles of law and not of men”, these are:

SUPREMACY OF LAW: Dicey describes this principle as the central and most characteristic feature of the common law. He stated that the rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary or wide discretionary power. Therefore, it excludes the existence of arbitrariness, of prerogative or even wide discretionary power on the part of the government. According to him, Englishmen are ruled by the law and law alone. According to this doctrine, no man can be punished except by the due process of law. In Dicey’s words, “wherever there is discretion, there is room for arbitrariness.

EQUALITY BEFORE LAW Equality before law means equal subjection of all classes of the land administered by the ordinary courts. According to him, in England, all persons were subject to one and the same law and there was no separate tribunals or special courts for officers of the government and other authorities. However, he criticised the French legal system of droit administratif where in there were distinct administrative principles for deciding cases between the officials of the state and the citizens. For him, exemption of the civil servants from the jurisdiction of the ordinary courts of law and providing them with the special tribunals was the negation of equality. In the words of Lord Denning1, “Our English law does not allow a public officer to shelter behind a droit administratif.”

PRE-DOMINANCE OF LEGAL SPIRIT Explaining the third principle, Dicey stated that in many countries, the rights such as right to personal liberty, freedom to hold public meetings etc. are guaranteed by a written constitution. However, it is not so in England. Those rights are as a result of judicial decisions of the court. Thus, Dicey emphasised the role of the courts of law as the guarantors of liberty and believed that the courts are the enforcers of the rule of law and they must be both impartial and free from all external influences. In England, the doctrine of rule of law was applied in concrete cases. In Wilkes v. Wood2, it was held that an action for damages for trespass was maintainable even if the action complained of was taken in the pursuance of the order of the minister. In a leading case of Entick v. Carrington3, a publisher’s house was ransacked by the King’s messengers sent by the secretary of the state. In action for trespass, monetary compensation was awarded to the publisher as damages.

1

Ministry of Housing and Local Govt. v. Sharp, (1970) 2 QB 223. (1763) 19 St Tr 1153: 98 ER 489. 3 (1765) 19 St Tr 1029 (1558-1774) All ER Rep. 41. 2

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Diceys’s thesis has a no. of advantages and merits. The doctrine of rule of law proved to be efficient and powerful weapon in keeping administrative authorities within their limits. It served as a touchstone to serve all the administrative actions. The broad principle of rule of law is accepted by almost all legal system as a constitutional safeguard. No doubt, Dicey’s rule of law has helped in the recognition and growth of administrative law to a large extent but it has its own limitations and pitfalls as well. i)

The first rule was criticised on the ground that Dicey equated supremacy of rule of law with absence of not only arbitrary powers but also with discretionary powers. He thus failed to distinguish arbitrary power from discretionary power. No modern welfare state can work effectively without exercising discretionary powers.4

ii)

The second principle propounded by Dicey was equally fallacious. Dicey misunderstood the real nature of droit administratif. He carried an expression that administrative courts of France, including the Counseil d’Etat conferred on government officials’ special rights, privileges and prerogatives as against private citizens. But it was not so. The French system in many respect proved to be more effective in controlling the abuse of administrative powers than the common-law system and was considered to be a model for other countries.5

FORTUNE CASE: A wanted to appear for a competitive examination. He was not permitted to appear on the ground that his confidential file contains certain adverse remarks. In an action by A, Counseil d’Etat went through the records and called upon the Secretary to justify the order. The Secretary pleaded that it was an Act of the State and that the court had no jurisdiction to deal with the matter. He did not produce any documents. The court passed an order to produce the entire file relating to the matter, went through it and quashed the order. In England, governed by the rule of law one cannot conceive of such a situation, for the ordinary courts of law have no right to interfere with any Act of State nor they can have access to secret documents.

BAREL CASE: Them minister in charge did not permit certain candidates to appear at the civil service examination. It was reported in the newspaper that the government officials had refused permission to candidates who were communists. The minister however denied the allegation. The candidates approached the Counseil d’Esat which quashed the order, since no reasons were recorded by the minister for refusing such permission. Thus, the Counseil d’Etat took a view in 1954 which was taken by English courts much later.6

Similarly, in an employee in the government factory is injured by an explosion, according to the administrative courts in France, the risk should fall on the state, but the English courts 4

Wade & Forsyth, Adminstrative Law (2009) 24-25. Brown & Bell, French Administrative Law (1967) 133. 6 Padfield v. Minister of Agriculture Fishries and Food, 1968 AC 997. 5

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will not hold the State liable unless the injured proves negligence of some servant of the Crown. Thus, English courts applied the conservative and traditional approach while the French administrative courts adopted the pragmatic approach.

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RULE OF LAW UNDER INDIAN CONSTITUION The concept of Rule of Law is that the state is governed, not by the ruler or the nominated representatives of the people but by the law. The Constitution of India intended for India to be a country governed by the rule of law. It provides that the constitution shall be the supreme power in the land and the legislative and the executive derive their authority from the constitution. The rule of law permeates the entire fabric of the Constitution and indeed forms one of its basic features. In India, the meaning of rule of law has been much expanded. It is regarded as a part of the basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by Parliament. The ideals of constitution; liberty, equality and fraternity have been enshrined in the preamble. Constitution makes the supreme law of the land and every law enacted should be in conformity to it. Any violation makes the law ultra vires. Part III of the Constitution of India guarantees the Fundamental Rights. Article 13(l) of the Constitution makes it clear that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provision of Part ill dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be void. Article 13(2) provides that the State should not make any law which takes away or abridges the fundamental rights and any law made in contravention of this clause shall, to the extent of the contravention, be void. The Constitution guarantees equality before law and equal protection of laws. Article 19 guarantees six Fundamental Freedoms to the citizens of India — freedom of speech and expression, freedom of assembly, freedom to form associations or unions, freedom to live in any part of the territory of India and freedom of profession, occupation, trade or business. The right to these freedoms is not absolute, but subject to the reasonable restrictions which may be imposed by the State. Article 20(1) provides that no person shall he convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence not be subject to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. According to Article 20(2), no person shall be prosecuted and punished for the same offence more than once. Article 20(3) makes it clear that no person accused of the offence shall be compelled to be witness against himself. Article 21 guarantees right to life and personal liberty. It provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law.

In India, Constitution is supreme and the three organs of the Government viz. Legislature, Executive and judiciary are subordinate to it. The Constitution provided for encroachment of

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one organ (E.g.: Judiciary) upon another (E.g.: Legislature) if its action is mala fide, an individual can challenge under Article 32 of the Constitution. In Kesavanda Bharti vs. State of Kerala7 : The Supreme Court enunciated the rule of law as one of the most important aspects of the doctrine of basic structure and cannot be amended by any Act of Parliament, thereby showing how the law is superior to all other authority of men. Fundamental rights enshrined in part III of the constitution is a restriction on the law making power of the Indian Parliament. It includes freedom of speech, expression, association, movement, residence, property, profession and personal liberty. In its broader sense the Constitution itself prescribes the basic legal system of the country to guarantee and promote fundamental rights and freedoms of the citizens and the respect for the principles of the democratic State based on rule of law. The popular habeas corpus case, ADM Jabalpur v. Shivakant Shukla8 is one of the most important cases when it comes to rule of law. In this case, the supreme court was confronted with the question whether the third pillar of the Dicey’s doctrine was an integral part of the Indian concept of rule of law. The question before the court was ‘whether there was any rule of law in India apart from Article 21’. On 25th June, emergency was proclaimed by Mrs. Indira Gandhi’s government on the grounds of “internal disturbances” under Article 358. Large number of persons was arrested under MISA (Maintenance of Internal Security Act. 1971) without informing the grounds for arrest. Some of them filed writ petitions in different High Courts challenging the detention orders as illegal and unconstitutional and praying for the issue of a writ of Habeus Corpus. The petitioners contended that their detention is violation of Article 21. It was argued on the other side that the protection tinder Article 21 is not available since it was suspended during emergency. The preliminary objection was rejected by various High Courts. The Madhya Pradesh Government through Additional District Magistrate. Jabalpur and Government of India filed appeals before Supreme Court. The case was heard by a five- judge Constitutional Bench consisting of Ray CJ and Khanna, Beg, Chandrachud and Bhagwati JJ. The majority of the bench answered the issue in negative and observed that there cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of the constitution.9 Khanna J, however, did not agree with the majority view. In a powerful dissent he observed that even in the absence of Article 21 in the constitution, the state has got no power to deprive a person of his life or liberty without the authority of law. The principle that no one shall be deprive of his life and liberty without the authority of law was not the gift of the constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty, it existed and was in force before the coming into force of the constitution. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning. In Indira Gandhi Nehru vs. Raj Narain10, Article 329-A was inserted in the Constitution under 39th amendment, which provided certain immunities to the election of office of Prime 7 8

AIR 1973 SC 1461 (1976) 2 SC 521

9

10

1975 Supp SCC 1.

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Minister from judicial review. The Supreme Court declared Article 329-A as invalid since it abridges the basic structure of the Constitution. In Chief settlement Commr., Punjab  v.  Om Prakash11, 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 appropriate action in the competent court. The rule of law rejects the conception of Dual State in which governmental action is placed in a privileged position of immunity from control by law. Such a notion is foreign to our basic constitutional concept. In P. Sambamurthy v. State of Andhra Pradesh12 the SC has declared a provision authorizing the executive to interfere with tribunal justice as unconstitutional characterizing it as “violative of the rule of law which is clearly a basic and essential feature of the constitution”. Yet another case is of Yusuf Khan v. Manohar Joshi13  in which the SC laid down the proposition that it is the duty of the state to preserve and protect the law and the constitution and that it cannot permit any violent act which may negate the rule of law. In an early case of S.G. Jaisinghani V. Union of India14, the Supreme Court portrayed the essentials of rule of law in a very lucid manner. It observed: “The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion when conferred upon executive authorities must be continued within clearly defined limits. The rule of law from this points of view means that decisions should be made by the application of known principles and rules and, in general such decision should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is antithesis of a decision taken in accordance with the rule of law”. The Supreme Court in a case, namely, Supreme Court Advocates on Record Association V. Union of India15, reiterated that absence of arbitrariness is one of the essentials of rule of law. In Maneka Gandhi vs. Union of India16, the Supreme Court declared that Article 14 strikes against arbitrariness. The Apex Court in Veena Seth v. State  of Bihar17 extended the reach of the Rule of Law to the poor and the downtrodden, the ignorant and the illiterate, who constitute the bulk of humanity in India, when it ruled that the Rule of Law does not exist merely for those who have the means to fight for their rights and very 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.  11

AIR 1969 SC 33. 1987 AIR 663. 13 Writ Petition (civil) 673 of 1998. 14 AIR 1967 SC 1427 15 (1993) 4 SCC 441. 16 1978 AIR 597. 17 AIR 1983 SC 339. 12

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In Sheela Barse v. State of Maharashtra,18 the petitioner was a freelance journalist who sought permission to interview the female prisoners in the Maharashtra State Jails. The permission was granted by the Inspector-General of Prisons. The petitioner started tape recording the interview with the prisoners, she was instead advised to keep notes only. When the petitioner raised objection on this score, her permission to conduct the interview was cancelled since the grant of permission to interview was a matter of discretion of the Inspector General and such interviews are ordinarily allowed to research scholars only. Feeling aggrieved by the cancellation of the permission, the journalist wrote a letter to the Supreme Court on the ground that a citizen has a right to know under Articles 19(1)(a) and 21 of the Constitution, if the Government is administering the jails in accordance with law, and that the Press has a special responsibility to collect information on public issues to educate the people. Her letter was treated as a writ petition under Article 32 of the constitution. In certain jails in Bihar, under trial prisoners were kept in the leg iron bar subjected to inhumane conditions. It was held violative of Article 21 of the constitution and the basic principle of rule of law. In Lt. Col. Priti Pal Singh v. Union of India,19 the Army Act did not contain any provisions regarding the review of the judgement passed and so was eventually held to be violative of the rule of law.

18 19

1983 AIR 378. 1982 AIR 1413.

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SIGNIFICANCE OF RULE OF LAW 

Rule of law has helped the modern democratic countries to keep control over the oppressive, capricious and arbitrary exercise of powers by the administrative authorities.



It empowers individuals with rights which cannot be easily taken-away.



It treats everyone equally without discrimination.



Its supremacy ensures no person can claim to be above law.



It ensures adherence of principles of natural justice like: giving reasonable opportunity, impartiality of decision, etc.



It leads to fairness, both substantive and procedural.



It also helps judiciary while interpreting laws.

The international Commission of Jurists in their “Delhi Declaration” made in the year 1959 accepted the idea of the rule of law as a modern form of law of nature.

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CONCLUSION The recent expansion of rule of law in every field of administrative functioning has assigned it as a place of special significance in the Indian administrative law. In all matters such as the protection of the rights of the people, equal treatment before the law, protection against excessive arbitrariness, the Constitution of India has provided enough mechanisms to ensure that the Rule of Law is followed. Through its decisions the Courts have strived to reinforce these mechanisms and ensure smooth justice delivery to all citizens. Recent aggressive judicial activism can be seen as a part of the efforts of the Constitutional Courts in India to establish 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 rule of law with human rights of the people. The Court is developing techniques by which it can force the government not only to submit to the law but also to create conditions where people can develop capacities to exercise their rights properly and meaningfully. The public administration is responsible for effective implementation of rule of law and constitutional commands, which effectuate fairly the objective standards laid down by law. Every public servant is a trustee of the society and is accountable for due effectuation of constitutional goals. This makes the concept of rule of law highly relevant to our context.

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BIBLIOGRAPHY Books: 1. 2. 3. 4.

C.K. Takwani, Lectures on Administrative Law (5th edition 2012). Dr. J.J.R. Upadhyaya, Administrative law, 7th edition (Central Law Agency) 2010. M.P. Jain & S.N. Jain, Principles of Administrative law, 6th edition 2011. S.P. Sathe, Administrative Law, 7th edition (LexisNexis Butterworth Wadhwa Nagpur), 2012.

Websites: 1. 2. 3. 4.

www.manupatra.com www.sscrn.com www.ssc.com www.legalservices.com

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