DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

CONCEPT OF RULE OF LAW

SUBJECT

ADMINISTRATIVE LAW

NAME OF THE FACULTY

Dr. P. SRI DEVI

Name of the Candidate

Roll No. & Semester

Sainaveen.k , 2015053

6rd Semester, Section A

ACKNOWLEDGEMENT:

I would sincerely like to put forward my heartfelt appreciation to our respected Administrative
Law Professor Dr. P. Sri Devi for giving me a golden opportunity to take up this project
regarding Concept Of Rule Of Law. I have tried my best to collect information about the project
in various possible ways to depict clear picture about the given project topic.

TABLE OF CONTENTS:
INTRODUCTION
One of the basic principles of the English Constitution is the rule of law. This doctrine is
accepted in the US and Indian Constitution. The entire basis of administrative law is the doctrine
of the rule of law. Sir Edward Coke, Chief Justice in James I’s reign, was the originator of this
concept. In a battle against the King, he maintained successfully that the King should be under
God and the Law, and he established the supremacy of the law against the executive. Dicey
developed this theory of Coke in his classic work The Law and the Constitution published in the
year 1885.

(b) Meaning

According to Dicey, the rule of law is one of the fundamental principles of the English legal
system. In the aforesaid book, he attributed the following three meanings to the said doctrine:

1. Supremacy of law

2. Equality before law

3. Judge-made Constitution

(1) Supremacy of law

Explaining the first principle, Dicey stated 1 that rule of law means the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power or wide discretionary
power. It excludes the existence of arbitrariness, of prerogative or even wide discretionary power
on the part of the government. According to him, the Englishmen were ruled by the law and law
alone. A man may be punished for a breach of law, but can be punished for nothing else.

In his words: Wherever there is discretion, there is room for arbitrariness and that in a republic
no less than under a monarchy discretionary authority on the part of the government must mean
insecurity for legal freedom on the part of its subjects.

As Wade says, “The rule of law requires that the government should be subject to the law, rather
than the law subject to the government.” According to this doctrine, no man can be arrested,
punished or be lawfully made to suffer in body or goods except by due process of law and for a

1
The law of constitution 1915(202).
breach of law established in the ordinary legal manner before the ordinary courts of the land.
Dicey described this principle as “the central and most characteristic feature” of common law. ‘

(ii) Equality before law

Explaining the second principle of the rule of law, Dicey stated that there must be equality before
the law or the equal subjection of all classes to the ordinary law of the land administered by the
ordinary ’law courts. According to him, in England, all persons were subject to 'one-and the .
same law, and there were no separate tribunals or special courts for of; iicers of the government
and other authorities. He proclaimed:

With us every official from the Prime Minister down to a constable or a collector of taxes is
under the same responsibility of every act done without legal justification as any other citizen.

He criticized the French legal system of droit administratif in which there were distinct
administrative tribunals for deciding cases between the officials of the State and the citizens.
According to 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. Of course, Dicey
himself saw that administrative authorities were exercising “judicial” functions though they were
not “courts”. He, therefore, asserted, “Such transference of authority saps the foundation of that
rule of law which has been for generations a leading feature of the English Constitution.”

According to Dicey‘, any encroachment on the jurisdiction of the courts and any restrictions on
the subject’s unimpeded access to them are bound to jeopardize his rights. In the words of Lord
Denning‘, “Our English law does not allow a public officer to shelter behind a droit
administratifi”

(iii) Judge-made Constitution

Explaining the third principle, Dicey stated that in many countries rights such as right to personal
liberty, freedom from arrest, freedom to hold public meetings, etc. are guaranteed by a written
Constitution; in England, it is not so. Those rights are the result of judicial decisions in concrete
cases, which have actually arisen between the parties. Thus, Dicey emphasized the role of the
courts of law as guarantors of liberty and suggested that the rights would be secured more
adequately if they were enforceable in the courts of law than by mere declaration of those rights
in a document, as in the latter case they can be ignored, curtailed or trampled upon. He stated:

The law of the constitution, the rules which in foreign countries naturally form part of a
constitutional code, are not the source but the consequences, of the rights of individuals, as
defined and enforced by the courts. He said:

There is in the English Constitution an absence of those declarations or definitions of rights so

dear to foreign constitutionalists. Our Constitution, in short, is a judge-made Constitution and it
bears on its face all the features, good and bad, of a judge-made law.

It is in this sense that “the British Constitution, though largely unwritten, is firmly based upon
the separation of powers”. The separation of judicial from executive power is implicit in the very
structure of a Constitution on the Westminster Model.

According to him, mere incorporation or inclusion of certain rights in the written Constitution is
of little value in the absence of effective remedies of protection and enforcement. He
propounded:

Habeas Corpus Acts declare no principle and define no rights, but they are for practical purposes
worth a hundred constitutional articles guaranteeing individual liberty.

APPLICATION OF THE DOCTRINE:

In England, the doctrine of the rule of law was applied in concrete cases. If the police wrongfully
arrests a man, he can file a suit for damages against them as if the police were private
individuals. In Wilkes vs Wood7, it was held that an action for damages for trespass was
maintainable even if the action complained of was taken in pursuance of the order of the
Minister. In the leading case of Entick v. Carrington 2, a publisher’s house was ransacked by the
King’s We Secretary of State. In an action for trespass, £300 were awarded to the publisher as
damages. In the same manner, if a man’s land is compulsorily acquired under an illegal order, he
can bring an action for trespass against any person who tries to disturb his possession or attempts
to execute the said order.

2
1765 19 St Tr 1153.
MERITS OF THE DOCTRINE:

Dicey's thesis has its own advantages and merits. The doctrine of rule of law proved to be an
effective and powerful weapon in keeping administrative authorities within their limits. It served
as a touchstone to test all administrative actions. The broad principle of rule 0 aw was accepted
by almost all legal systems as a constitutional safeguard. The first principle (supremacy of law)
recognizes a cardinal rule of democracy that every government must be subject to law and not
law subject to the government. It rightly opposed arbitrary and unfettered discretion to
governmental authorities, which has a tendency to interfere with rights of citizens.

The second principle (equality before law) is equally important in a system wedded to a
democratic polity. It is based on the well-known maxim, “However high you may be, Law is
above you”, and “All are equal before the law”.

The third principle puts emphasis on the role of judiciary in enforcing individual rights and
personal freedoms irrespective of their inclusion in a written Constitution. Dicey feared that mere
declaration of such rights in any statute or in Constitution would be futile if they could not be
enforced. He was right when he said that a statute or even Constitution can be amended and
“fundamental rights” can be abrogated. We have witnessed such a situation during emergency in
1975 and realized that in absence of strong and powerful judiciary, written Constitution is
meaningless.

DRAWBACKS:

No doubt, Dicey’s rule of law had its good points and the broad principle had been accepted in
several legal systems as a “necessary constitutional safeguard”. But it has its own limitations and
pitfalls as well. It has been said that the rules enunciated by Dicey and accepted in English legal
system was the result of “political struggle” and not “logical deductions from a rule of law.

The first rule was criticized on the ground that dicey equated supremacy of rule of law with
absence of not only arbitrary powers but even of discretionary powers. According to him,
“wherever there is discretion, there is room for arbitrariness”. He thus failed to distinguish
arbitrary power from discretionary power. Though arbitrary power is inconsistent with the
concept of rule of law discretionary power is not, if it is exercised properly. No modern welfare
State can work effectively without exercising discretionary powers.”

Again, it cannot be said that once law ends, necessarily tyranny begins. As Davis said, “where
the law ends, discretion begins”. Exercise of discretion may mean either beneficence or tyranny,
justice or injustice, either reasonableness or arbitrariness. It is impossible to find a government of
laws alone and not of men in the sense of eliminating all discretionary powers. All Government:
are of Laws and of men.

The second principle propounded by Dicey was equally fallacious. Dicey misunderstood the real
nature of droit administratif. He carried an impression that administrative courts of France,
including Conseil d’Etat conferred on government official’s special rights, privileges and
prerogatives as against private citizens. But it was not so. The French system in many respects
proved to be more effective in controlling abuse of administrative powers than the common-law
system. Conseil d’Etat technically speaking was a part of administration, but in substance and in
reality, it was very much a court. The actions of administration were not immune from the
judicial scrutiny of the Conseil, which consisted of “real Judges"

Moreover, even during dicey’s time, several administrative tribunals had come into existence
which adjudicated upon the rights of subjects not according to common law and procedure of
Crown’s Courts but according to special laws applied to specified groups. The Crown enjoyed
immunity under the well-known maxim “The King can do no wrong”. It was, therefore, not
correct to say that there was “equality before law” in stricto sensu even in England.

IMPORTANCE

One thing must be noted. In modern times, Dicey’s rule of law has come to be identified with the
concept of rights of citizens. As Wade and Phillips rightly state, it is accepted in almost all the
countries outside the communist world with some variations. It is invoked in modern democratic
countries to keep control over the oppressive, capricious and arbitrary exercise of powers by the
administrative authorities. 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.
DROIT ADMINISTRATIF:

MEANING

Under the French legal system, known as droit administratif, there are two types of laws and two
sets of courts independent of each other. Whereas ordinary courts administer ordinary civil law
between subjects and subjects, administrative courts administer the law between the sub ject and
the State. An administrative authority or official is not subject

To the jurisdiction of ordinary civil courts exercising powers under the civil law in disputes
between private individuals. All claims and disputes in which these authorities or officials are
parties fall outside the scope of the jurisdiction of ordinary courts and they are dealt with and
decided by special tribunals. Though the system of droit administratif is very old, it was regularly
put into practice by Napoleon in the 18th century.

COMMENTS:

If the French system did not adequately protect individuals against the State, it would be a
serious matter but it was not so. The fact is that this system was able to provide expeditious and
inexpensive relief and better protection to citizens against administrative acts or omissions than
the common-law system. Once rid of the illusion that administrative courts must inevitably be
biased, you can see that they hold the keys to some problems which are insoluble under English
law.

Dicey unfortunately misunderstood the French system and formed an opinion that administrative
courts in France extended government officials special rights, privileges and prerogatives against
private citizens and it had resulted in miscarriage of justice. The real position, however, was
totally different. In France, administration was under the control of “real Judges”, who were
impartial and objective in true sense. Actual study of droit administratif has proved that no single
institution has done so much for the protection of private citizens against the excesses of
administration as has been done by Conseil d’Etat which was considered to be a model for other
countries.“
CASES LAWS:

1) If an employee in a government3 factory is injured by an explosion, according to the

administrative courts in France, the risk should fall on the State, but the English courts will not
hold the State liable unless the injured proves negligence of some servant of the Crown. Thus,
English courts still apply the conservative and traditional approach that there should be no
liability without fault; French administrative courts adopt the pragmatic approach that “justice
requires that the State should be responsible to the work man for the risk which he runs by reason
of his part in the public service”.

2) When a passer-by chased a thief and was stabbed, the Conseil d’Etat held that he was entitled
to recover damages from the State which would not have been done under English law. Similarly,
as the French administrative courts are recognised as guardians of public servants, the latter also
get better protection from their employers. Thus, where a Rector of Strasbourg Academy was
asked to take up some other duties and relieved from his post without in fact new duties being
assigned to him, the administrative court held that he was removed from service and gave him
redress. According to Lord Denning", in England, ordinary courts of law could not have
protected him because as a rule, the Crown at pleasure can dismiss public servants.

3) Under the Act of 1872., the French Government had a right to have a monopoly of
manufacturing matches and for that purpose it could acquire the factories run by private persons.
A provision to pay compensation for compulsory acquisition was also made in the Act. However,
if a factory was ordered to be closed on the ground of improvement of health, no compensation
was required to be paid. In one case, an order to close the factory was passed by a Minister on
the ground of improvement of health, but in reality, the motive was to avoid payment of
compensation to the owner of the factory. An ordinary court could not have given any redress to
the owner in such case, but Conseil d’Etat held that the power was abused by the Minister and
awarded £20,000 to the factory owner.

3
Cases on Administartive law in india, Vol.I (ILI 1965) 56.
4) A, a private gas company entered into an agreement with the Town Planning Council to supply
gas at a particular rate for a period of 30 years. The agreement was made on the basis of the rates
of coal in the year 1904. But after the First World War, the rates shot up. An application was filed
by the gas company before Conseil d’ Etat for revision of rates. A common law court would have
rejected this application and would not have granted the relief prayed for, but the Conseil
accepted it and revised the rates. According to the Conseil, it was in the interest of the public at
large that the company should continue to work rather than be wound up and insistence on
providing gas at the fixed rates would compel the company to go into liquidation.

5) Barel case4:

The Minister in charge did not permit certain candidates to appear at the civil service
examination. It was reported in the newspaper that the government had refused permission to
candidates who were Communists. The Minister, however, denied it. The candidates approached
Conseil d’Etat, which quashed the order, since the Minister for refusing such permission
recorded no reasons. The Conseil presumed that there was no reason which would justify such a
refusal. Thus, the Conseil d’Etat took the view in 1954 which was taken by English courts in
1968.”

6) Fortune case: A wanted to appear at a competitive examination. He was not permitted to

appear on the ground that his confidential file contained certain adverse remarks. In an action by
A,Conseil d’Etat went through the records and called upon the Secretary to justify the order. The
Secretary pleaded that it was an Act de Government (Act of State) and that the court had no
jurisdiction to deal with the matter. He did not produce any document. 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, or with ministerial discretion nor
can they have access to secret documents.

4
Cases on Administartive law in india, Vol.I (ILI 1965).
7) When the decision of Liversidge v. Anderson" 5 (Liversidge), was brought to the notice of the
French administrative courts in which the principle of subjective satisfaction was upheld by an
ordinary court of law even in the case of detention of a person, the Conseil d’Etat was unable to
agree with it. According to French officials, the decision in Liversidge20 cannot be accepted in
any civilized country and more particularly in a country which had evolved the concept of rule of
law.

8) Conseil d’Etat also applied the doctrine of legitimate expectation (protectio de la confiance
Iegitime) recognised by European Court of Justice (ECJ). It held that administration must be
careful not to create a situation adversely affecting innocent persons by unexpected change in the
rules applied, or in its behavior, unless such sudden change is necessitated by public interest.
Administration is entitled to change its decisions, but it must take appropriate steps to ensure that
those likely to be affected are informed beforehand.

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, administrative 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 fairness 5)
natural Iaw or observance of the principles of natural justice. 6) Preference for judges and
ordinary courts of law to executive authorities and administrative tribunals, and 7) judicial
review of administrative actions.

5
Cases on Administartive law in india, Vol.I (ILI 1965).
PRACTICAL APPLICATION OF RULE OF LAW IN INDIA

Critiques have often maintained that the Rule of Law in India is merely a theory with no
practical application. While it cannot be denied that the country is one where corruption runs
rampant and according to 2012 World Justice Project data, India fares well on openness of
government and democratic controls, in the category limited government powers, which
evaluates the checks on government, India ranks 37th of the 97 countries surveyed around the
world, is first among five in its region, and comes in second out of 23 lower-middle-income
countries. Yet the rule of law that exists on paper does not always exist in practice. When it
comes to procedural effectiveness, India fares poorly. In the categories of absence of corruption
and order and security, India ranks 83rd and 96th globally.

In addition to the problem faced in India due to corruption in the law making and justice delivery
systems, there also exists the problem of old laws still being in place. India does not adopt a
‘sunset’ clause in its laws and post independence the Indian Independence Act provided that all
laws existing under the colonial rulers would continue to exist under the new system unless
explicitly revoked by the parliament. While this did provide the nation with a firm basic system
of laws, thereby preventing a situation of anarchy in the immediate aftermath of independence,
some of these laws were drafted to suit the environment of those time and they become hard to
interpret in the current environment. This leads to ambiguity and endless litigation in an attempt
to interpret the provisions.

While these problems persist it is important to note that the constitutional mechanism has
provided enough safe guards to endure that the Rule of Law in some form will always persist.
One of the most important factors contributing to the maintenance of the Rule of Law is the
activity of the courts in the interpretation of the law. It is rightly reiterated by the Supreme Court
in the case Union of India v. Raghubir Singh6 that it is not a matter of doubt that a considerable
degree that governs the lives of the people and regulates the State functions flows from the
decision of the superior courts. Most famously in the case of Maneka Gandhi v. Union7 of
Indiathe court ensured that exercise of power in an arbitrary manner by the government would
6
(1989) 2 SCC 754
7
(1978) AIR 597.
not infringe the rights of the people and in Kesavananda Bharati8 the court ensured that laws
could not be made that essentially go against the Rule of Law by saying that the basic structure
could not be breached.

Apart from judicial decision the constitutional mechanism in itself provides for the protection of
the rule of law through the creation of monitoring agencies. While there have been numerous
scams that have come to light in the last few years, the fact that must also be noted is that these
scams have come to light and the justice delivery mechanism has been set in motion against the
perpetrators. The role of the Central Vigilance Commission and the Comptroller and Auditor
General in the exposure of these discrepancies is commendable and this shows how the law has
provided for its own protection by putting in place multiple levels of safe guards which ensure
that it will be effective at some level. The Election Commission of India, a constitutional body
has also been undertaking the task of ensuring free and fair elections with some degree of
efficiency.

RULE OF LAW UNDER INDIAN CONSTITUTION

Dicey's rule of law has been adopted and incorporated in the Indian Constitution. The Preamble
itself enunciates the ideals of justice, liberty and equality. In Part III of the Constitution these
concepts are enshrined as fundamental rights and are made enforceable. The Constitution is
supreme and all the three organs of the government, viz. legislature, executive and judiciary are
subordinate to and have to act in consonance with the Constitution. The doctrine of judicial
review is embodied in the Constitution and the subjects can approach High Courts and the
Supreme Court for the enforcement of fundamental rights guaranteed under the Constitution. If
the executive or the government abuses the power vested in it or if the action is mala fide, the
same can be quashed by the ordinary courts of law.

All rules, regulations, ordinances, bye-laws, notifications, customs and usages are “laws' within
the meaning of Article 13 of the Constitution and if they are inconsistent with or contrary to any
of the provisions thereof, they can be declared ultra vires by the Supreme Court and by High
Courts. The President is required to take an oath to preserve, protect and defend the Constitution.
No person shall be deprived of his life or personal liberty except according to procedure

8
(1973) 4 SCC 225.
established by law or of his property save by authority of law”. Executive and legislative powers
of States and the Union have to be exercised in accordance with the provisions of the
Constitution. Government and public officials are not above law. The maxim “The King can do
no wrong” does not apply in India. There is equality before the law and equal protection of laws.
Government and public authorities are also subject to the jurisdiction of ordinary courts of law
and for similar wrongs are to be tried and punished similarly. They are not immune from
ordinary legal process nor is any provision made regarding separate administrative courts and
tribunal. In public service also the doctrine of equality is accepted. Suits {or breach of contracts
and torts committed by public authorities can be filed in ordinary law courts and damages can be
recovered from State Government or Union Government for the acts of their employees.” Thus,
it appears that the doctrine of rule of law is embodied in the Indian Constitution, and is treated as
the basic structure of the Constitution.

In spite of such apparently enviable position of subjects, in almost all the fields of industry,
commerce, education, transport, banking, insurance, etc., there is interference by administrative
authorities with actions of individuals, companies and other corporate and non-corporate bodies,
observes Ramaswamy J. From the constitutional point of view there is large scale delegation of
legislative and judicial powers to these administrative authorities. These authorities have been
extending their tentacles into social, economic and political domains. Wide discretionary powers
are conferred on these administrative authorities. For the purpose of national planning, the
executive is armed with vast powers in respect of land ceiling, control of basic industries,
taxation, mobilization of labour, etc. Further, it is also erroneous to believe that individual liberty
can be protected only by the traditional doctrine of rule of law. Experience shows that not only
the executive but even Parliament elected by the people may pass some demonic statutes like the
Preventive Detention Act, or Maintenance of Internal Security Act, 1971 (MISA), National
Security Act, 1980 (NSA) and encroach upon the liberty of subjects. Ultimately, as Prof. Harold
Laski says, “Eternal vigilance is the price of liberty” and not a particular principle or doctrine of
law.

At this juncture, we may consider the position prevailing in India vis-a-vis the third principle of
Dicey’s doctrine of rule of law, viz. judicial independence, judge-made Constitution or
predominance of legal Spirit. Until recently this principle was being studied and examined in the
context of interpreting the provisions of the Constitution.

In Chief Settlement Commissioner v. Om Parka the Supreme Court observed that in our
constitutional system, the central and most characteristic feature is the concept of the rule of law,
which means, in the present context, the authority of the 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 the 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 concern.

HOW ARE FREEDOM OF SPEECH AND EXPRESSION PART OF RULE OF LAW:

Rule of Law is actually the very founding stone on which the platform of democracy stands. It is
considered as the integral part of a democratic setup. The value of democracy lies in respecting
the rights of others and the way they want to express themselves either by speech, writing,
painting, drawing etc. And above all Rule of Law means nonarbitariness which can be ensured
by guarenting freedom and one of such freedom is freedom of speech and expression.
CONCLUSION

The founding fathers of India accomplished what the rest of the world though impossible-
establish a country that would follow the letter of the law and implement the Rule of 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.
Problems such as outdates legislations and overcrowded courts are but small hindrances and
bodies such as the Law Commission of India work towards ironing out these problems with the
aim of achieving a system where there are no barriers to the smooth operation of the Rule of
Law.