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ADMINISTRATIVE LAW
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
ACKNOWLEDGEMENT
The assignment work bears the imprint of many people, and I express my
gratitude to all those who have helped me and rendered their help in all the
possible ways in a completion of my assignment.
No work can be successful without the guidance and blessing of elders and this
work is no exception. It is a matter of immense pleasure to express my gratitude
to my faculty Hon’ble Mr. Ashutosh Shukla for his guidance and excellent
insights which gave direction and focus to this paper. I thank him for lending his
precious time in making this assignment an authentic piece of work.
I also owe sincere gratitude to the staff at library for always helping in the process
of finding material and other sources for research. I am very grateful to my
seniors and all the individuals involved in the subgroup for their contributions and
assistance in compiling this assignment and the recommendations that go with it:
they are the outcome of an open, interactive and creative cooperation.
I also thank social networking site for searching the required information in
precise and as per needed. How I can forget to give credit and my satisfaction to
my friends.. My sense of gratitude is due to AMITY LAW SCHOOL,
LUCKNOW.
Thanks to all.......
Mayuri Gupta
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
CONTENTS
INTRODUCTION......................................................................4
SUPREMACY OF LAW...........................................................5
EQUALITY BEFORE LAW.....................................................6
PREDOMINANCE OF LEGAL SPIRIT/JUDGE-MADE
CONSTITUTION.......................................................................7
DEVELOPMENT OF RULE OF LAW IN INDIA...................8
CONCLUSION..........................................................................9
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
INTRODUCTION
"The King himself ought not to be subject to man, but subject to God and the law,
because the law makes him King"1. – Sir Edward Coke2
Rule of law is one of the basic principles of English Constitution accepted in the
United States and Indian Constitution. Originated by Sir Edward Coke, it is the
entire basis of administrative law. Against the King, he maintained successfully
that the King should be under God and the Law, and established the supremacy of
law against the executive. This theory of Coke was further developed by A.V.
Dicey in his classic work on the British Constitution “The Law and the
Constitution” published in the year 1885.3
I. Supremacy of Law
II. Equality before Law
III. Predominance of Legal Spirit/Judge-made Constitution
Dicey asserted that the above mentioned features existed in the British
Constitution.
1
Proclamations (1610) 77 ER 1352
2
Sir Edward Coke, Chief Justice in King James I’s reign, the originator of the concept of Rule of Law.
3
DICEY, A.V., INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, CHAPTER
4 (X ed.)
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
SUPREMACY OF LAW
In his words:
As Wade6 says, ‘The rule of law requires that the government should be subject
to the law, rather than the law subject to the government.’
4
The Law of the Constitution (1915) 202.
5
Ibid, 184.
6
Wade & Forsyth, Administrative Law (2009) 17-21, 286-287.
7
Takwani, C. K; Lectures on Administrative Law; p. 20.
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
Dicey stated that there must be equality before the law or the equal subjection of
all the 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 officers of the
government and other authorities.
He criticised 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. He believed that the exemption of the civil servants from
the jurisdiction of the ordinary courts of law and providing them with special
tribunals was the negation of equality.
He proclaimed8:
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.
Dicey stated9 that any encroachment on the jurisdiction of the courts and any
restriction on the subject’s unimpeded access to them are bound to jeopardise his
rights. Lord Dennings observed,“Our English Law does not allow a public officer
to shelter behind a droit administratif.”10
8
Supra 4.
9
V.G.Ramachandran, Administrative Law (1984) 6.
10
Ministry of Housing and Local Govt. v. Sharp, (1970)2 QB 223, 226: (1970) 2 WLR 802 (CA).
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
JUDGE-MADE CONSTITUTION
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 emphasised 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
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.
Dicey 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.11
11
The Law of the Constitution (1915) 195.
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
The rule of law in India has been a platform for all Administrative Action and
judicial review. Supreme Court has propounded the idea in many cases like
Bachan Singh v. State of Punjab12 and A.D.M Jabalpur13. A significant
derivative of Rule of Law in Administrative Law is Judicial Review. Judicial
review is very important part of Indian Administrative system where it is
considered as part of Basic Structure Doctrine. The process of judicial review
keeps the unreasonable and arbitrariness under control. The absence of arbitrary
power is first essential rule of law on which whole Constitutional structure is
based.14
In the case of Golaknath v. State of Punjab15 it was held that rule of law under
the constitution serves the needs of people without undoubtedly infringing their
rights. It recognises social reality and adjusts to social requirement as required
time to time. In A.K. Kraipak v. Union of India 16 it was held that under our
constitution the rule of law pervades over entire field of administration and every
organ of the state is regulated by the rule of law accepted by our Constitution.
In State of Punjab v. Khanchand17 it was held that rule of law require that any
power of officer is subject to power of Court. In the case of Zahira Habibullah v.
State of Gujrat18 it was held that the rule of law win administration is closely
related to human rights protection. The binding nature of judgment of court is
considered to be essential part of rule of law.19
12
AIR1982 SC 1325, para 9
13
AIR 1976 SC 1207,para 220
14
Jaisinghani v. Union of India, AIR1967 SC 1643
15
AIR 1967 SC 1836
16
AIR 1970 SC 150
17
AIR 1974 SC 543
18
AIR 2004 SC 3114
19
Darayo vs State of UP, AIR 1967 SC 1457.
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
CONCLUSION
The rule of law is central theme to all democratic and civilized society of this
world. The concept forms the basic framework of all legal system. It is one of the
tools by which the unfettered power of executive is kept under control through
supremacy of Courts. Though the rule derives from common law system,
particularly from Dicey and it met terrible opposition due to other option of much
efficient system of Droit Administratif, it still forms the backbone of all civilized
legal system of world. The rule of law and supremacy therein, however,
shouldn‟t be the only principle engraved in a legal system. This further becomes
true when the legal system has large domain of implementation and further when
there are expertise require in various domain for the several issues.
In conclusion, a fine system and a well homogenized solution of rule of law and
Droit Administratif is the most optimum solution for the efficient dispute
resolution system. The two systems shouldn‟t be staged inferior to one another
and basic constitutional principles must be followed for the most optimum
solution.
BIBLIOGRAPHY
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
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