ADMINISTRATIVE LAW

ASSIGNMENT II

TOPIC: DISCUSS THE ADMINISTRATIVE APPLICATION OF RULE OF

LAW UNDER INDIAN CONSTITUTION AND SUPPORT YOUR ANSWER WITH
THE HELP OF PROVISIONS AND CASE LAWS AND EXPLAIN THE LEGAL
ASPECTS.

SUBMITTED BY: - SUBMITTED TO:-

KHYATI Mr. EESH SINGH SIR

SECOND YEAR – B (ASST. PROF. IN IIMT

ROLL NO. – 42513403818 AND SCHOOL OF LAW)

  INTRODUCTION TO RULE OF LAW

The Rule of Law is among the major principles of the English Constitution. The
doctrine was further adopted in the constitution of USA and India. The
administrative law is totally based on the doctrine of the Rule of Law.

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 doctrine of the Rule of Law is said to have its origin from Sir Edward Coke. He
made a statement saying that God and the Law are what must stand above the
King. This brought forth a supremacy law against the King. The King is not the law
but the law is king.

Professor A. V. Dicey later built on Sir Edward Coke’s doctrine. He did this through
his book, “The Law and the Constitution” which was published in 1885.

Indian philosophers such as Chanakya have also espoused the rule of law theory
in their own way, by maintaining that the King should be governed by the word of
law.

 DEFINITION OF RULE OF LAW

Dicey maintains that the Rule of Law stands to be among the basic principles of
the legal system in England. The doctrine of the Rule of Law has been accorded
three meanings in Dicey’s book.

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:

I. Supremacy of Law
II. Equality before law
III. The predominance of legal spirit
 I. SUPREMACY OF LAW :

 This has always been the basic understanding of the rule of law that
propounds that the law rules over all people including the persons
administering the law.
 The lawmakers need to give reasons that can be justified under the law
while exercising their powers to make and administer the law.
 Dicey interprets that the Rule of Law is the universal supremacy of the
regular law.
 No human being will be and is above the law. Punishment should only
be made when someone goes contrary to the law.
 No punishment should be given to a suspected wrong doer except by
the process of the law before a court.

II. EQUALITY BEFORE THE LAW:

 The principle of equality before the law seeks to ensure that the law is
administered and enforced in a just manner.
 It is not enough to have a fair law but the law must be applied in a just
manner as well. The law cannot discriminate between people in matters of
sex, religion, race etc.
 This concept of the rule of law has been codified in the Indian Constitution
under Article 14 and the Universal Declaration of Human Rights under the
Preamble and Article 7.

III. JUDGE MADE CONSTITUTION:

 Dicey stated that in many countries rights such as rights to personal liberty,
freedom from arrest, freedom to hold public meetings, etc. are guaranteed
by a written Constitution.
  Those rights are the result of judicial decisions in concrete cases which are
actually arisen between the parties.
 Dicey emphasized the role of the Court of Laws 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.

 SEVEN PRINCIPLES OF RULE OF LAW

Davis in his classic work “Administrative Law” gives seven principles to 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 law or observance of the principles of natural justice.
6. Preference for judges and ordinary courts of law to execute authorities and
administrative tribunals.
7. Judicial review of administrative action.

 RULE OF LAW UNDER INDIAN CONSTITUTION

 Dicey’s rule adopted in Constitution :

The Indian constitution took up and makes use of Dicey’s rule of law. It is
comprised of the key factors of justice, liberty, and equality.
  Part III provides fundamental rights which are guaranteed :

The third part of the constitution of India puts forward basic rights that are
guaranteed, as subject to the protection and forcible action of the court.

 Supremacy of the constitution accepted :

The superior nature of the constitution is recognized by the three arms of the
government: Executive, Legislature and the judiciary which renders the three
subject to it.

 Principle of judicial review embodied in Constitution :

The principle of judicial review is incorporated in the Constitution and the

Supreme Court which is the guard over fundamental rights.

 Any person aggrieved may go to Supreme Court (Art.32) :

Art. 32 give an individual who has been grieved by the administration the right
to head to the Supreme Court. The Supreme Court is obligated to give the right
orders thereafter.

 All rules, regulations, by laws, notifications and customs and usages are
laws within Art. 13 & if they are inconsistent, contrary to any provisions
thereof they are declared ultra virus by SC/HC

The Courts of the law have the power to subdue the government to the
provisions of the law if it wrongfully makes use of its authority. Every rule,
regulation, ordinances, bye-laws, notifications, customs, and usages are laws
in some way and can be named as ultra virus if they become unreliable and
defiant to any provisions by the Supreme Court as stated in Art. 13.

 Art. 21 “no person shall be deprived of his life or personal liberty except
according to procedure established by law”

Individuals are not supposed to be robbed of their lives and liberty if procedures
do not require of it as stated in Art.21 of the constitution. The same is declared
about his property in Art. 300-A except if it is required through the authority of
the law.

 The maxim “King can do no wrong” not applicable :

The maxim has three important implications –

Firstly, it means that the king is above law and cannot be tried in any court of England
for any wrongful act done by him.

Secondly, the Maxim means that the king is above all responsible for the acts done in his
name. No person can plead the orders of the king in defense of any wrongful act by
him.

Thirdly, the maximum implies that all the intents and purposes it is the Minister-in-
charge who is legally responsible for every act of the British government performed in
the name of the king.

 Rule of law basic structure of Constitution as laid down in Keshavnanda

Bharti Case, 1973 :

The Supreme Court held that the Rule of Law is an essential part of the basic
structure of the constitution and as such cannot be amended by any Act of
Parliament, thereby showing how the law is superior to all other authority of
men.

 Art.14 – equality before law and equal protection of law :

The government and its officials are subject to questioning by the law for acts
committed against the law hence rendering nobody above the law. This is
because of the Indian Constitution in Art. 14 contend for equality before the
law. They are also subject to the jurisdiction of ordinary courts of law.

 Art.16 – equal opportunity in public employment :

Equal opportunities are to be granted in public employment as given in Art. 16.

The above provisions indicate how the concept of the rule of law is riveted in
the Indian Constitution. Keshvanand Bharti’s case, 1973 set that as the
primary structure of the Constitution.

 Role of Indian Judiciary :

There are many cases where the concept of rule of law was discussed and
came into light. Some of the cases are as follows:

o ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521

This case is also known as “Habeas Corpus case”. It is one of the most
important case when comes to rule of law. The question that was raised
before the hon’ble court was that whether there was any rule of law in
India apart from Article 21 of the Indian Constitution. It was in context
relating to the proclamation of emergency where the enforcement of
Articles 14, 21 and 22 were suspended.

o Som Raj v. State of Haryana 1990 AIR 1176

In this case it was held that the absence of arbitrary power is the
postulate of rule of law upon which the whole constitutional edifice is
dependent.

o Union of India v. Raghubir Singh 1989 AIR 1933

In this case it was held by the court that a considerable degree that
governs the lives of the people and regulates the State function flows
from the decision of the superior courts.

o Chief Settlement Commissioner, Punjab v. Om Prakash AIR 1969 SC 33

In this case, Supreme Court observed “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 matter into notice.”

o Keshvananda Bharti v. State of Kerela (1973) 4 SCC 225

In this case, the Supreme Court enunciated the concept of rule of law as
one of the most important aspects of doctrine of basic structure.

o Maneka Gandhi v. Union of India AIR 1978 SC 597

In this case Supreme Court declared that Article 14 strikes against
arbitrariness.

o Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil AIR 1994 SC

678
In this case, the ration laid down was “If the rule of law has to be
preserved as the essence of the democracy of which purity of elections
is a necessary concomitant, it is the duty of the courts to appreciate the
evidence and construe the law in a manner which would sub serve this
higher purpose and not even imperceptibly facilitate acceptance, much
less affirmance, of the falling electoral standards. For democracy to
survive, rule of law must prevail, and it is necessary that the best
available men should be chosen as people's representatives for proper
governance of the country. This can be best achieved through men of
high moral and ethical values who win the elections on a positive vote
obtained on their own merit and not by the negative vote of process of
elimination based on comparative demerits of the candidates.”

o Secretary, State of Karnataka and Ors. v. Umadevi (1992) 3 SCR 826

A Constitution Bench of this Court has laid down the law in the following
terms: “Thus, it is clear that adherence to the rule of equality in public
employment is a basic feature of our Constitution and since the rule of
law is the core of our Constitution, a court would certainly be disabled
from passing an order upholding a violation of Article 14 or in ordering
 the overlooking of the need to comply with the requirements of Article
14 read with Article 16 of the Constitution.”
 The Constitution lays down in Part IV the directive principle of state policy
:

It enjoys the state to bring about a social order in which justice – social,
economic and political – shall govern all the institutions of national life. The
Rule of Law promotes the lofty ideals enshrined in the directive principles of
state policy and draws its sustenance from the higher judiciary, which upholds
the constitutionality of laws keeping in view the philosophy of these ideals.

 Supreme Court’s principles regarding the Rule of Law :

When it comes to individual liberty and the rule of law, the Supreme Court
of India has come up with the following principles:

 The State should not pass a discriminatory law.

 The State should not interfere with religious beliefs.
 The State should not place a new influence on freedom.

In criminal administration, the rule of law entails:

 Proper criminal process.

 Arrests should not be made without the jurisdiction of the law.
 Nobody should be presumed innocent.
 The legal aid which means everyone has the right to a fair hearing and
public trial.
 Independent judiciary.
 Independent legal profession.
 Standard of professional ethics.
  CONCLUSION

 The work of the administrative law is not to contribute to executive

arbitrariness, rather, its work is to monitor and guard the rights of people
from excessive administration. In other words, the objective of the
administrative law is to bring power and liberty to the same table.
 The objective of the administrative law is to bridge the gap between liberty
and power.
 The Rule of Law guides governments to create conditions that do not
interfere with the dignity of man.
 It goes further to explain that dignity is not all about opening the platform
of civil and political rights but more of developing political, social,
economic, educational and cultural atmospheres which are with no doubt,
necessary for the growth of man’s personality.
 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.
 It can be concluded that Supremacy of law is the Aim; Rule of Law is the
best tool to achieve the Aim.