COURSE- ADMISTRATIVE LAW

TITLE- RULE OF LAW IN ADMINISTRATIVE LAW

SUBMITTED BY

VAIBHAV BANGAR

2019-2020 {B.COM LLB/ SEM IV}

R. NO. – 02

{INTERNAL ASSIGNMENT}

COURSE CO-ORDINATOR

PROF. POORNIMA SURVE

D. Y. PATIL deemed to be UNIVERSITY SCHOOL OF LAW

AFFILIATED TO D.Y. PATIL UNIVERSITY, NERUL

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 I
CERTIFICATE

This is to certify that VAIBHAV BANGAR, has successfully completed his

course- LAW OF TORTS, CONSUMER PROTECTION ACT AND
MOTORS VEHICLE ACT assignment on ADMINISTRATIVE LAW.

In partial fulfilment of third semester of degree course in law, in the

academic year 2019-2020.

Date:

Place: Nerul, Navi Mumbai.

Director Course Co-

ordinator School of law
School of law

Nerul Nerul

SCHOOL OF LAW

D.Y. PATIL deemed to be UNIVERSITY, NERUL

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 II
ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher PROF.

POORNIMA SURVE as well as our DIRECTOR DR. AJAY.W. PATIL, D.
Y. PATIL SCHOOL OF LAW, D. Y. PATIL deemed to be UNIVERSITY
who gave me the golden opportunity to do this wonderful project on the topic
RULE OF LAW IN ADMINISTRATIVE LAW, which also helped me in
doing a lot of Research and I came to know about so many new things I am
really thankful to them.

Secondly, I would also like to thank my parents and friends who helped me a
lot in finalizing this project within the limited time frame.

- VAIBHAV BANGAR

B.COM LLB

SCHOOL OF LAW

D.Y. PATIL deemed to be UNIVERSITY, NERUL

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 ABSTRACT

This paper aims to touch all aspects of administrative law that are interlinked to the concept
of the Rule of Law. To evaluate this concept in totality, this paper has brushed through the
basics, beginning from its origin to its subsequent developments. After which a progression
has been made to the Indian Constitutional and Judicial aspects of this concept, which are of
highest importance.

The concept of “Rule of Law” is the building block on which the modern democratic society
is founded. For the successful functioning of the polity it is imperative that there is
enforcement of law and of all contracts based on law. Laws are made for the welfare of the
people to maintain harmony between the conflicting forces in society.

One of the prime objects of making laws is to maintain law and order in society and develop
a peaceful environment for the progress of the people, the concept of Rule of Law plays an
important role in this process.

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 INDEX

Sr.no. Topics Page .no

1. 6
INTRODUCTION
THE RULE OF LAW
2. ITS HISTORY, EVOLUTION AND GROWTH. 7

THE RULE OF LAW

3. UNDER THE INDIAN CONSTITUTION 10

THE RULE OF LAW

4. JUDICIAL REVIEW UNDER THE INDIAN 11
CONSTITUTION.

5. CONCLUSION 13

6. REFERENCE 14

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 INTRODUCTION

Private law is not an unfamiliar notion. It refers to branches of law such as torts and contract.
The focus of private law is mainly on individuals, principally concerned with their duties and
obligations that they owe to one another. However, such a relationship can also be
established between the government and its administrative bodies with the same class of
private individuals. Government has certain powers and functions, for which a separate body
of law to regulate such an exercise is required; this brings into the picture- administrative
law. The central purpose of administrative law is to promote good governance that includes:
efficient and honest action to be taken by administrative bodies for public good, to consider
the opinions of the individuals likely to be affected by their decisions, taking their view into
account, to operate in fair, transparent and unbiased fashion, to always seek to serve the
public interest, to respect the rights of the individuals. The above formulation, however,
restricts itself to the scope of administrative law as commonly accepted in common law
countries. Administrative law specialists in England and India mainly focus their attention on
various aspects of judicial control of administrative decisions and actions. Hence, to delve
deeper, a better understanding of “The Rule of Law” as a concept is a necessity.

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 THE RULE OF LAW

ITS HISTORY, EVOLUTION AND GROWTH.

Administrative law is a recent phenomenon. The reason for its growth seems to be the
mistrust among people regarding the administrative process. The weapon which people used
to strike at the growth of Administrative law was Dicey’s formulation of the concept of Rule
of Law. But before we get to Dicey’s interpretation, it is important to know the events that
snowballed over time to form this concrete concept.

The term ‘The Rule of Law’ is of old origin. The term is derived from the Latin phrase ‘la
legalite,’ which refers to a government based on principles of law and not of men. In this
sense, the concept of ‘la legalite’ was opposed to arbitrary power. In jurisprudence, Romans
called it ‘jus naturale’, Mediaevalists called it the “Law of God”, Hobbes, Locke and
Rousseau called it “social contract” or “natural law.” To pinpoint and mention one source as
the origin of this concept is difficult. It is however said that Holy Roman Emperor Konrad II
(1024-1039 A.D) first decreed in his great feudal law compilation of May 28, 1037 that “no
holder of a feudal estate shall be deprived of his fief…, but by laws of the Empire and the
judgment of his peers.” More known is King John Lackland’s English Magna Carta of 1215
which in chapter 39 postulated: “No free man shall be taken or arrested or disseised or exiled
or in some way destroyed, nor will we go upon him nor will we send for him, except under a
lawful judgment of his equals and by the law of the land.” In modern times, however,
Edward Coke is considered the originator of this concept when he said that King must be
under God and Law and thus vindicated the supremacy of law over the pretensions of
executives. Professor A.V Dicey later developed on this concept in the course of his lectures
at Oxford University. Dicey wrote the concept of the Rule of Law at the end of the golden
Victorian era of laissez faire in England. That was the reason why Dicey’s concept of the
Rule of Law contemplated the absence of wide powers in the hands of the government
officials because, according to him, whenever there is discretion there is room for
arbitrariness . The term Rule of Law can be used in two senses: (a) Formalistic sense; and (b)
Ideological sense. If used in the formalistic sense it refers to organized power as opposed to a
rule by one man and if used in an ideological sense it refers to regulation of relationship of
the citizens and the government. Dicey’s formulation of the concept of “Rule of Law” which

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according to him forms the basis of English Constitutional Law contains three principles: (a)
Absence of discretionary power in the hands of the government officials. By this Dicey
implies that justice must be done through known principles.

Discretion implies absence of rules, hence in every exercise of discretion there is room for
arbitrariness. (b) No person shall be made to suffer in body or property except for a breach of
law established in the ordinary legal manner before ordinary courts of the land. In this sense,
the Rule of Law implies:

1. Absence of special privileges for a government official or any other person;

2. All the persons irrespective of status must be subjected to the ordinary courts of the
land;
3. Everyone should be governed by the law passed by the ordinary legislative organs of
the State; (c) The rights of the people must flow from the customs and traditions of
the people recognized by the Courts in the administration of justice.

Evaluation of Dicey’s thesis with relation to Administrative Law.

Dicey had a misconception that administrative law was no part of the Rule of Law. This
misconception arose on the ground that Dicey understood “Administrative Law” as a mere
translation of the French Droit Administrative which spoke of a special system of
administrative courts manned by officials who dealt a queer kind of justice as between States
and private individuals. In France, the disputes between these two parties were tried by a
special court and a special law was applicable. From this Dicey concluded that this spells the
negation of the concept of The Rule of Law which is a secret of Englishman’s liberty. Dicey
had believed that there is no administrative law in England.1

Modern perspective Administrative Law

today has been developed not to sanctify arbitrariness of administration but to check and
protect the rights of the people against the administration’s excesses. The modern concept of
the Rule of Law is fairly wide and, therefore, sets an ideal for any government to achieve.

1
Ranjan, Vivek, Rule of Law and Modern Administrative Law (November 12, 2010).

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This concept was developed by the International Commission of Jurists, known as Delhi
Declaration, 1959 which was later on confirmed by Lagos in 1961.

The main focus was to create conditions in which the dignity of a man as an individual is
upheld. The Commission divided itself into certain working groups which used to give
content to the concept in relation to an individual’s area of activity in society, which were:

(1) Committee on Individual liberty and Rule of Law.

(2) Committee on Government and Rule of Law.
(3) Committee on Criminal Administration and Rule of Law
(4) Committee on Judicial Process and Rule of Law.

Emphasizing on the widespread acceptance of the Rule of Law, Wade and Phillips stated that
“Most countries outside the Communist world accept that the rule of law has a positive
content, no matter how much that content may differ in the various countries.” 2

2
www.lawteacher.net/free-law-essays/administrative-law/origin-and-concept-of-rule-of-law-administrative

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 THE RULE OF LAW

UNDER THE INDIAN CONSTITUTION

The Rule of Law in a planned society as in India has been discussed by Justice Ramasamy of
the Supreme Court of India. He has said that in administration there is an obvious need for
individual action; the call for speedy determination, necessity of direction, guidance and
expert advice is required. A large measure of discretion and freedom is therefore conferred
upon Government officials for carrying out administrative schemes. Hence, unless there is
Rule of Law, there is danger that the administration would become totalitarian. It may be
clearly stated that the Rule of Law in modern India has to be exercised, fostered and
respected within the framework of the Constitution.

The fundamental rights set out in Part III of the Constitution is the charter of such rights to
the citizens such as,

(1) Right to Equality (Articles 1 to 18)

(2) Right to seven freedoms (Article 19 to 22)
(3) Right against exploitation (Article 23- Article 24)
(4) Right to freedom of religion (Article 25-28)
(5) Cultural and Educational Right (Articles 29-30) 3
(6) Right to property (Article 31)
(7) Right to enforce fundamental rights (Article 32 and 226)

3
AIR 1978 SC 597

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 THE RULE OF LAW

JUDICIAL REVIEW UNDER THE INDIAN CONSTITUTION.

There are two models of administrative law which polar opposites- are called the “red light
and green light” model. The red light view as elaborated by Harlow and Rawling4 holds that
the ‘primary function of administrative law should be to control the excess of state power’
and to subject the exercises of such power ‘to the rule of law courts.’ A different approach is
commended by green light theory as explained by Harlow and Rawlings which minimizes
the courts’ influence on administration. In reality, most administrative systems reflect aspects
of both traditions, relying upon a combination of external, court-based control and internal
regulation of administrative process. Harlow and Rawlings acknowledges the reality that
reality presently lies somewhere between the pure red and green light models, in an “amber
light theory” which recognizes both the “fire watching” and “fire-fighting” functions of this
law. In the words of Sir John Donaldson MR in R Vs Lancashire County Council, ex parte
Huddleston , “a new relationship [has emerged] between the courts and those who derive
their authority from public law, one of partnership based on a common aim, namely the
maintenance of the highest standards of public administration.’ The Rule of Law in India
means the supremacy of the Constitution and the validity of the enacted law. In the first
instance, it binds the Legislature and forbids it from ignoring the constitutional limitations. A
law should be valid law consistent with the provisions of the Constitution. If in
Contravention of the Constitution, it is void. Some legislations like in India specifically states
that if an individual is not content with a particular administrative decision or act, then a right
of appeal lies to a tribunal, court or Minister. When legislation does not provide for appeal,
the decision will still be open to judicial review. The Supreme Court and State High Court
can judicially review it; can declare it ultra vires the legislative power. In the opinion of some
of the Judges constituting the majority in Keshavanada Bharati Vs State of Kerala , the Rule
of Law is a basic intent of the Constitution apart from democracy. This basic element of the
Rule of law postulates the pervasiveness of the spirit of law throughout the whole range of
government in the sense of excluding arbitrary official action in any sphere. Except during an
emergency the executive cannot deny a person his life and personal liberty, except according
to procedure established by law. However in A.D.M Jabalpur Vs Shivkant Shukla popularly

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known as Habeas Corpus case, an attempt was made to challenge the detention orders during
Emergency on the ground that violates the principles of Rule of Law. However, the
contention did not succeed. A person cannot arbitrarily be arrested, re-arrested, detained or
imprisoned. He cannot be subject to police surveillance or internment unless the officer
requiring him to restrict the movement to any given area can show legal warrant to justify his
action. He cannot also be prevented from going to any place outside India by an arbitrary
denial of passport. An authority thus cannot add arbitrarium order arrest or make detention of
a person on strength of his executive fiat, or under direction of a superior executive officer.
Deprivation of property save authority of law is forbidden. The acquisition or requisition of
property should be only for public purposes, and that too on condition of payment of
compensation fixed by statute, or determined in accordance with the principles and the
manner specified in law. No tax should be levied or collected except by authority of law.

That the Rule of Law is unmistakably proclaimed by the Constitution cannot be denied.
Based on judicial dicta a testament of rule of law may thus be attempted as follows:-

1. The rule of law is the basis for democracy, which must be an essential feature of the
Constitution.

2. The rule of law postulates the pervasiveness of the spirit of law throughout the whole
range of Government in the sense of excluding arbitrary official action in any sphere
(Mathew J.)

3. The State should not violate the citizens’ rights, liberties and freedoms in any manner
whatever;

4. The power of punishment, deprivation or impairment of citizens’ legal interests and rights
should be exercised, except in accordance with the procedure established by law, or save by
authority of law. 4

5. The rule of law further requires that exercise of powers of Government shall be
conditioned by law, and that subject of the exceptions to the doctrine of equality, no one shall
be exposed to the arbitrary will of the Government. The Supreme Court and High Courts
have thus been at pains to warn against any tendency to impair the norms of the Rule of
Law.5

4
AIR 1969 SC 33.
5
AIR 1994 SC 678.

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 CONCLUSION

Regardless of the majestic premises of the Rule of Law talk, it is said that not everyone
remains beneficiary. Even in societies where there is Rule of Law, there remains scope for
grave and continuing excesses of power. We have daily examples splashed across media,
where celebrities get away from grave charges of culpable homicide, a Chief Minister of the
opposition party is politically targeted and a raid is conducted, vulnerable social groups are
constantly targeted by police officials (extra-judicial killings) etc.

In a book called Politics of the Judiciary, the author Griffith argues that, judges cannot be
politically neutral because they are forced to make political choices that are inevitably
affected by the rather narrow social, educational, and ethnic backgrounds from which the
Judiciary is presently drawn. Hence, judicial review can also be subject to prejudice.

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 REFERENCE

Bibliography:

 Administrative law: Text, Material, Elliot Mark, 2011, Oxford University

Press, 4th Edition.
 Jain and Kagzi: Indian Administrative Law, Delhi Universal Law Publishing
 Administrative Law by Ramchandra, Eastern Book Company
 Administrative Law, I.P Massey, Eastern Book Company\

Webliography:
 https://www.iilj.org/wp-content/uploads/2016/10/Dyzenhaus_The-Rule-of-
Administrative-Law-in-International-Law.pdf
 https://columbialawreview.org/content/an-administrative-jurisprudence-the-
rule-of-law-in-the-administrative-state-2/
 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1761506

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