BabasaheB Bhimrao Ambedkar University

A Central University, Vidya Vihar, Raebareli Road, Lucknow- 226025 || accredited ‘A’ Grade by
NAAC in 2015

ADMINSTRATIVE LAW

DOCTRINES OF “RULE OF LAW” AND “SEPARATIONS OF POWERS”

SUBMITTED TO-

Dr. Sonali Roy Chaudhary

Resource Person, Centre of Post Graduate at Legal Studies
BabaSaheb BhimRao Ambedkar University, Lucknow

SUBMITTED BY-
Samriddhi Mishra
LL.M. (One Year), 1st Semester
CPGLS, BBAU, LucknowSession
2022-23

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 CONTENTS

INTRODUCTION......................................................................................................................3

DOCTRINE OF SEPARATION OF POWER..........................................................................4

I. PRACTICAL APPLICATIONS OF THE DOCTRINE.................................................4

DOCTRINE OF RULE OF LAW..............................................................................................6

I. THE CONSTITUTION AND THE RULE OF LAW.....................................................6

INDIAN CONSTITUTION IN THE VIOLATION OF RULE OF LAW................................8

CONCLUSION........................................................................................................................11

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 INTRODUCTION

The principle of the “separation of powers” refers to the division of a democratic state into
three institutions or branches of government: the legislature, the executive and the judiciary.
The rationale being that each branch acts as a “check and balance” on the others, with no one
branch exercising more power than either of the other two. Such a separation, it has been
argued, limits the possibility of arbitrary excesses by government, since the sanction of all
three branches is required for the making, executing, and administering of laws. Such a
division helps to prevent abuses of power and is essential to a healthy democracy.

The rule of law is the opposite of the rule of power. It stands for the supremacy of law over
the supremacy of individual will. But to say this is to speak only in the most general of terms.
As in the case of all abstract political ideals, the requirements of the rule of law are contested.
The separation of powers doctrine is also a complex and contested notion, and the extent to
which it supports the rule of law therefore depends, in part, on how its requirements are
understood. In contemporary talk, however, Rule of Law goes transnational or global. It is no
longer a bounded conception but is now presented as a universalizing/globalizing notion. In
part, the new “global Rule of Law” relates to the emerging notions of global social policy and
regulation. More specifically, the networks of international trade and investment regimes
promote a view that national constitutions are obstacles that need “elimination” via the
newly-fangled discourses of global economic constitutionalism. The war on “terror” now
altogether redefines even the “thin” Rule of Law notions. The paradigm of Universal
Declaration of Human Rights stands now confronted by a new paradigm of trade-related,
market-friendly human rights.

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 DOCTRINE OF SEPARATION OF POWER

The doctrine of separation of powers has become an integral part of the governmental
structure. But, the practical application of the doctrine differs to a great extent. In theory, the
doctrine of separation of powers is supposed to have a threefold classification of functions
and corresponding organs. But because of the diverse and complex nature of a modern state,
where the process of law making, administration and adjudication cannot be clearly
demarcated or assigned to separate institutions, the application of this doctrine in strict sense
is very difficult.1

It the government’s Rule Of Lawe to protect individual rights, but governments have
historically been the major violators of these rights. Thus, a number of measures have been
derived to reduce this likelihood. The concept of Separation of Powers is one such concept.
The basic assumption behind this is that when a single person or group has a large amount of
power, they can become dangerous to citizens. The Separation of power is a way of removing
the amount of power in any group’s hands, making it more difficult to abuse. According to
the theory of Separation of Powers, the three powers and functions of the Government, i.e.
the legislative, executive and judicial, must, in a free democracy, always be kept separate and
be exercised by three separate organs of the Government2.

I. PRACTICAL APPLICATIONS OF THE DOCTRINE

This question of what amounts to an excess, was the basis for action in the landmark
Kesavananda Bharti3 case of 1973. The question placed before the Supreme Court in this case
was in regard to the extent of the power of the legislature to amend the Constitution as
provided for under the Constitution itself. It was argued that Parliament was “supreme” and
represented the sovereign will of the people. As such, if the people’s representatives in
Parliament decided to change a particular law to curb individual freedom or limit the scope of
judicial scrutiny, the judiciary had no right to question whether it was constitutional or not.
However, the Court did not allow this argument and instead found in favour of the appellant
on the grounds that the doctrine of separation of powers was a part of the “basic structure” of
our Constitution.

1
Takwani, C.K., Lectures on Administrative Law, Eastern Law Company, Lucknow, 4th Ed.
2
Sathe S.P., Administrative Law, LexisNexis Butterworths, New Delhi, 7th Ed.
3
Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., A.I.R. 1973 S.C. 1461.

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The doctrine of separation of powers was further expressly recognized to be a part of the
Constitution in the case of Ram Jawaya Kapur v. State of Punjab 4, where the Court held that
though the doctrine of separation of powers is not expressly mentioned in the Constitution it
stands to be violated when the functions of one organ of Government are performed by
another. This means the Indian constitution had not indeed recognized the doctrine of
separation of powers in its absolute rigidity but the functions of different parts or branches of
the Govt. have been sufficiently differentiated and consequently it can very well be said that
our constitution does not contemplate assumption, by one organ or part of the state, of
functions that essentially belongs to another.

In I.C. Golak Nath v. State of Punjab5, Supreme Court took the help of doctrine of basic
structure as propounded in Kesvananda Bharati case and said that Ninth Schedule is
violative of this doctrine and hence the Ninth Schedule was made amenable to judicial review
which also forms part of the basic structure theory. It was observed: “The Constitution brings
into existence different constitutional entities, namely, the Union, the States and the Union
Territories. It creates three major instruments of power, namely, the Legislature, the
Executive and the Judiciary. It demarcates their jurisdiction minutely and expects them to
exercise their respective powers without overstepping their limits. They should function
within the spheres allotted to them.” Thus, referring to the above content, it proves that
Separation of Power is practiced in India but not that rigidity. It is not embodied in the
Constitution, though practiced. The three main powers do cross their limit and interfere in
each other’s task whenever necessary.

In conclusion, it is evident that governments in their actual operation do not opt for the strict
separation of powers because it is undesirable and impracticable, however, implications of
this concept can be seen in almost all the countries in its diluted form. The discrepancies
between the plan and practice, if any, are based on these very grounds that the ideal plan is
impractical for everyday use. India relies heavily upon the doctrine in order to regulate, check
and contRule Of Law the exercise of power by the three organs of Government. Whether it is
in theory or in practical usage, the Doctrine of Separation of Powers is essential for the
effective functioning of a democracy.

4
Ram Jawaya Kapur v. State of Punjab , A.I.R. 1955 S.C. 549.
5
Golak Nath v. State of Punjab, A.I.R. 1975 S.C. 2299.

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 DOCTRINE OF RULE OF LAW

The doctrines of the Rule Of Law and the Separation of Powers are the cornerstone of the
Australian Constitution, establishing the federalist system under which we are governed. The
Australian Constitutional System is very much a hybrid system, incorporating many of the
nuances of the British Colonial system, as brought to the Australian shores upon colonization.
R also embraces features of the USA constitutional system. This is reflected in the Australian
federal system of states, analogous to the federal system found in the United States of
America.

The Expression “Rule of Law” plays an important Rule of Law in the administrative law. It
provides protection to the people against the arbitrary action of the administrative
authorities. 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, the
term ‘Rule of Law, 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.

The basis of Administrative Law is the 'Doctrine of the Rule Of Law'. It was expounded for
the first time by Sri Edward Coke, and was developed by Prof. A.V. Dicey in his book 'The
law of the Constitution' published in 1885. According Coke, in a battle against King, he
should be under God and the Lank thereby the Supremacy of Law is established.

I. THE CONSTITUTION AND THE RULE OF LAW

The popular habeas corpus case, ADM Jabalpur v. Shivakant Shukla6 is one of the most
important cases when it comes to Rule Of Law. In this case, the question before the court was
‘whether there was any Rule Of Law in India apart from Article 21’. This was in context of
suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an
emergency. The answer of the majority of the bench was in negative for the question of law.
However Justice H.R. Khanna dissented from the majority opinion and observed that “Even
in absence of Article 21 in the Constitution, the state has got no power to deprive a person of

6
A.D.M Jabalpur v. Shivkant Shukla (1976) 2 SCC 521.

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his life and liberty without the authority of law. 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 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.

In Kesavanda Bharti vs. State of Kerala (1973)7 - The Supreme Court enunciated the Rule
Of Law as one of the most important aspects of the doctrine of basic structure. In Menka
Gandhi vs. Union of India8- The Supreme Court declared that Article 14 strikes against
arbitrariness. In Indira Gandhi Nehru vs. Raj Narain 9 - Article 329-A was inserted in the
Constitution under 39th amendment, which provided certain immunities to the election of
office of Prime Minister from judicial review. The Supreme Court declared Article 329-A as
invalid since it abridges the basic structure of the Constitution.

The Courts in India have established Rule Of Law society. The public administration has
effectively implemented Rule Of Law. Today the administrative process has grown so much
that we are not governed but administered.

7
Kesavanda Bharti vs. State of Kerala, (1973) 4 SCC 225.
8
Maneka Gandhi vs. Union of India, 1978 SCR (2) 621.
9
Indira Gandhi Nehru vs. Raj Narain, 1975 SCC (2) 159

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 INDIAN CONSTITUTION IN THE VIOLATION OF RULE OF LAW

The increasing difficulties in securing justice alienate the people from the State and may
drive them to take the law into their own hands, resulting in a further erosion of the justice
system and a vicious circle of violence and retaliation. If unaddressed, such situations may
easily degenerate into a state of anarchy and social disintegration. Human rights protection
and respect for the rule of law are central to lasting peace and stability. It is, therefore, crucial
that conflict prevention strategies and post-conflict peace-building efforts include effective
measures to end the culture of impunity and protect the rule of law.”

AFSPA10, much maligned law, is a piece that stands out because of its misuse and because of
the provisions that give the security forces powers that go against the basic principles of rule
of law.here is no doubt that the armed forces operate in difficult and trying circumstances in
the areas afflicted by internal armed conflicts. It is in these situations that the supremacy of
the judiciary and the primacy of the rule of law need to be upheld. However, if the law
enforcement personnel stoop to the same level as the non-State actors and perpetrate the same
unlawful acts, there will be no difference between the law enforcement personnel and the
non-State actors whom the government calls “terrorists”. There is no doubt that a large
number of armed opposition groups operate in Manipur and elsewhere in the North East and
that they have been responsible for gross human rights abuses. Yet, unlawful law
enforcement only begets contempt for the rule of law and contributes to a vicious cycle of
violence. The third preambular paragraph of the Universal Declaration of Human Rights -
“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny and oppression, that human rights should be protected by the rule of
law” – is prophetic about such situations.

A reckless approach towards human life and liberty in the last 45 years under the AFPSA has
been counter-productive and caused alienation of the people in the North East. The review of
the AFSPA is overdue for many reasons. the strength of any country claiming itself as
“democratic” lies in upholding the supremacy of the judiciary and primacy of the rule of law.
It requires putting in place effective criminal-law provisions to deter the commission of

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Armed Forces (Special Powers) Act, 1958.

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offences against the innocents and punishment for breaches of such provisions while
exercising executive powers; and not in providing the arbitrary powers to the law
enforcement personnel to be law unto themselves. The AFSPA violates basic tenets of
criminal justice system in any civilized society. First, it provides special powers which
tantamount to awarding heavier penalty to the suspects than convicted persons would get
under normal court, a clear violation of the cardinal principle of criminal justice system -
nullumcrimen, nullapoena sine lege.6 Second, non-application of due process of law makes
the armed forces to be their own judge and jury. Most importantly, by giving virtual impunity
to the armed forces under Section 6 of the AFSPA which makes its mandatory to seek prior
permission of the Central government to initiate any legal proceedings, the Executive has
expressed its lack of faith in the judiciary. Otherwise, it would have been left to the judiciary
to decide whether the charges are vexatious, abusive or frivolous.

Rule of law specks for the establishment of human rights, democracy which is the desired
dimension of our constitution. But in Bangladesh, every government has used Special Powers
Act , 1974 as a brutal weapon and a huge number of persons are detained every year without
trial with the view to suppress political opponents for purpose and fundamental rights
guaranteed by article 31,32 (A) 33(1) and (2) of our constitution, namely, right to protection
of law, personal liberty and safe guards ,as to arrest and detention, are not ensured by the
constitution itself for the detainee, detained under preventive detention laws. Thus once a
person is detained illegally under Preventive Detention Act11, he finds his all fundamental
rights except the right to life strangulated in a pincer-like trapping. In our country such law is
exercised by all government always in peace time as a permanent law. So, the provisions
allowing for preventive detention in peace time is contrary to the concept of rule of law.
More over this law empowers the detaining authority to exercise their arbitrary discretion to
detain any person upon their satisfaction that such person shall be detained in order to
prohibit him from doing any prejudicial act against the state. This arbitrary and wide
discretionary power of the detaining authority is contrary to the concept of rule of law.
Excessive exercise reliance on preventive detention laws, tyrannical laws by the government
reduced the government status as adopting `rule by law’ not rule of law. “Rule of law” is
distinct form “Rule by law”. Abuse and excessive use of power by the government may be
designated as “rule by law” when the laws are used as instruments of governments policy.
Rule of law, by contrast, is the use of law making power by the government. The abuse of

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Preventive Detention Act, 1950.

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rule by law manifests itself in the passing of and reliance or unjust laws, it is already
mentioned that in our country preventive detention law used as an ultimate and brutal weapon
to perpetual rule. Form the aforesaid discussion it can be concluded that preventive detention
law is a draconian and obnoxious law which undermines the rule of law and fundamental
principles of human rights.

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 CONCLUSION

It is to be understood from various interpretations that Mahasweta Devi's Bashai Tudu speaks
to us about the constitutive ambiguities of the practices of militarized 'rule of law' governance
and resistance in contemporary India. Rohintoon Mistry's A Fine Balanceeducates us in the
constitutional misery of untouchables caught in the ever-escalating web of "constitutional"
governance. These two paradigmatic literary classics abundantly invite us to pursue a
distinctively Indian law and literature genre of study, outside which it remains almost
impossible to grasp the lived atrocities of Indian ROL in practice.

These also make the vital point (with the remarkable Indian Subaltern Studies series) that the
pathologies of governance are indeed normalizing modes of governance as a means of
controlling (to evoke Hannah Arendt's favourite phrase) "rightless" peoples. The jurispathic
attributes of the Indian Rule of Law at work can be described best in terms of social
reproduction of rightlessness. Indian judicial activism begins to make and mark a modest
reversal.

The Indian story at least situates the significance of the forms of creationist South narratives
for contemporary Rule of Law theory and practice. Time is surely at hand for constructions of
multicultural (despite justified reservation that this term evokes) narratives of the Rule of
Law precisely because it is being loudly said that "history" has now ended, and there remain
on horizons no meaningful "alternatives" to global capitalism.

The authentic quest for renaissance of the Rule of Law has just begun its world historic
career. ROL epistemic communities have choices to make. Our ways of ROL talk may either
wholly abort or aid to a full birth some new ROL conceptions now struggling to find a voice
through multitudinous spaces of people's struggles against global capitalism that presage
alternatives to it.12

12
M. Oakeshott, On Human Conduct, Oxford, Oxford University Press, 1975, pp. 1-31.

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