ADMINISTRATIVE LAW

1ST INTERNAL ASSESSMENT

CRITICAL ANALYSIS OF RULE OF LAW IN INDIA

Baibhabi Tripathy
19010126113
3rd Year, Division B
B.B.A. LL.B. (Hons.)
CONCEPT

Sir Edward Coke, the Chief Justice of James I's reign, is credited with coining the phrase
"rule of law." The notion of the rule of law has a long history. Around 350 BC, Greek
philosophers such as Plato and Aristotle debated the notion of rule of law. “Where the law is
subject to some other authority and has none of its own, the state, in my opinion, is not far
away from collapsing; but if law is the master of the government and the government is its
slave, the situation is full of promise, and men enjoy all the blessings that the gods shower on
a state,” wrote Plato. “Law should reign, and those in authority should be servants of the
laws,” stated Aristotle. The term "rule of law" is derived from the French word "la principe
de legalite," which means "principle of legality." This expression alludes to a government
founded on legal principles rather than men's. The rule of law is one of the fundamental
foundations of the Constitution, and it is upheld in both India and the United States.
Administrative law is founded on the idea of the rule of law. The concept of rule of law, as
described by Aristotle, is based on the concepts of justice, fairness, and inclusion. The rule of
law now comprises an elaborate chain of basic principles, including equality before the law,
equal treatment before the law for government, judiciary independence, consistency,
openness, and accountability in administrative law.

Human rights are universal, indivisible, interdependent, and interconnected, and so should be
safeguarded and promoted in a fair and equitable way by something as fundamental and all-
pervasive as the rule of law, according to the UN Vienna Declaration of 1993 1. The term
‘Rule of Law' refers to the rule of law rather than the rule of men, as the name implies. The
term "Rule of Law" comes from the French word "le principe de legalite," which means
"legality principle." Determining what constitutes the rule of law “The rule of law demands
that the government be subject to the law rather than the law being subordinate to the
government,” Prof Wade said. According to Black's legal dictionary, "Rule of Law" is "the
supremacy of law in which decisions are made based on well-established principles or laws,
with no discretionary involvement in the application of such principles or laws." The term
‘Rule of Law' refers to the rule of law rather than the rule of men, as the name implies. Many
academics have described the rule of law as a sign of ultimate power that no one can
override. As Lord Denning remarked in the case of Gouriet v. Union of Post Office Workers 2,
1
UN Vienna Declaration of 1993
2
[1977] 3 All ER 70

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Law shall always be above everyone in the nation, no matter how strong or high in rank they
are. One of the essential and general concepts of the constitution is the rule of law. In the
words of Max Weber, it is defined as "legal dominance as a notion of law government rather
than an idea of mankind." Rule of law, like democracy, is one of the most widely used terms
in political discourse; it is the god of constitutionality "omnipresent"; some scholars find it
useful, while others do not, because it is so widely used with so many different meanings, but
it imbibes golden values and principles. The basic tenant of Dicey's rule of law is that power
is to be derived from law and exercised sacrificially. Even though the Indian judiciary places
a high value on this and uses it frequently, the broad emphasis or sense of rule of law is the
absence of any centre of unchecked, arbitrary power. Even if frequent government
intervention in ordinary citizens' pursuits is on the rise, this may lead to government
arbitrariness, which is contrary to rule of law. They are both subjects and authorities; in the
struggle between state supremacy and state limitation, citizens "we the people" will have to
ensure that government adheres to pre-determined golden benchmarks and strives to
strengthen the spirit of the rule of law. Indian Constitution framers have addressed these
golden principles very sincerely and cavalierly.

EVOLUTION

The beginnings of the Rule of Law idea may be traced back to the Ancient Romans during
the establishment of the first republic; it has subsequently been championed by numerous
mediaeval philosophers in Europe through the social contract theory, including Hobbs,
Locke, and Rousseau. Indian thinkers like Chanakya have supported the rule of law doctrine
in their own unique style, arguing that the King should be ruled by the law. The notion of
Rule of Law states that the state is controlled by the law, not by the monarch or the people's
selected representatives. The term "Rule of Law" is taken from the French phrase "La
Principe De Legality" (the principle of legality), and it is credited to A.V. Dicey, a British
jurist and great constitutional thinker. Dicey's writings on the British Constitution in 1885
gave three kinds of Rule of Law: Absence of Arbitrary Power, Equality before the Law, and
Individual Liberties, while he cautiously ventured through the United States Constitution,
where individual liberties are not a product of a judge-made concept, and that constitution
containing only seven Articles. He discovered in accordance with the principle of rule of law,
because the very core of the concept was being satisfied on a scale of components of
principles. With the passage of time, many more noble values and principles, such as Judicial

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Review, Habeas Corpus, no arbitrary form of government, and so on, have been added to the
modern world.

PRINCIPLES BY DICEY

 Absence of Arbitrary Power – It is to be understood as follows: no man is above the

law, and the law is supreme in regards to man; there must be a similar mechanism for
every individual; no one can be punished based on the government's fiat and
whimsical wishes; where there is discretion, arbitrariness may emerge; discretion
gives power, and power corrupts; however, the application of Absence of Arbitrary
Power, limits the government's or statutory authority's unrestricted discretionary
power, during a time when Dicey was studying the pulse of the British Constitution
based on golden principles that he developed, and discovered the constitution in line
with this same rule of "Rule of law."
 Equality before the law states that every man is equal in the eyes of the law and will
be treated similarly before the law, regardless of what designation he is given or what
political, social, or economic authority he possesses. Articles 14, 15, and 16 of the
Indian Constitution make specific reference to this. There are certain defined
exceptions to this norm in India, such as Article 361 of the Constitution, which grants
protection to the President, Governors, and Rajpramukhs. This is an exemption, but it
is necessary to keep the state machinery running properly.
 Predominance of Legal Spirit: According to Dicey's third principle, general principles
of the Indian Constitution are the consequence of Indian judicial rulings that define
the file rights of private individuals in specific instances. According to him, many
state constitutions give residents specific rights such as the right to personal liberty
and freedom from arrest (countries). Citizens will be allowed to exercise their rights
only when they have been effectively enforced in the courts of law. According to
Dicey's definition of the rule of law, every action taken by the administration must be
justified and carried out in conformity with the law.

RULE OF LAW- INDIAN PERSPECTIVE

The definition of rule of law has been substantially broadened in the Indian setting. The
Supreme Court has, on several instances, further enunciated and demonstrated the rule of law
through its decisions in support of A.V. Dicey's essential principles. It is regarded as part of

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the Constitution's fundamental structure, and as such, it cannot be repealed or repealed even
by Parliament. The preamble established the constitution's values of liberty, equality, and
fraternity. Even if the goal is to maintain and secure peace and order, the rule of law demands
that no one be subjected to harsh, uncivilised, or discriminating treatment. The term "rule of
law" is not defined in the Indian constitution, although it is used by Indian courts in a number
of cases. In India, the adage "The King can do no wrong" does not apply, as all public
officials are subject to the same sets of laws and the authority of regular law courts. The
Indian constitution is the supreme law of the nation, superseding the judiciary, legislature,
and executive. These three governmental agencies must operate in accordance with the ideals
enshrined in the constitution.

The rule of law is integrated into numerous articles of the Indian constitution. The Preamble
of the Indian constitution, for example, expresses the goal of establishing equality, liberty,
and justice. Article 143 ensures the right to equal protection under the law and equality before
the law. It declares that no one should be denied equality before the law or the state's equal
protection under the law. Article 14's immediate implication is that the law is paramount and
that there is no room for arbitrariness because everyone is controlled by the rule of law. The
primary need of Rule of Law is that everyone be treated fairly and without bias. In the case of
Maneka Gandhi v. Union of India4, the Supreme Court said unequivocally that Article 14
prohibits the government from acting arbitrarily and assures justice and equality of treatment.
Arbitrariness is prohibited under the rule of law, which is a fundamental component of the
Indian Constitution. There is a rejection of the Rule of Law where there is arbitrariness.
Protective discrimination as a way of guaranteeing equality among equals was incorporated
into Art 155, 166, 237 to further enhance the ideal of equality.

CASES

Judicial decisions, in addition to constitutional requirements, have played an important role in

the understanding and development of India's Rule of Law. The rule of law is recognised as
an integral component of the Constitution's core framework, and as such, it cannot be
repealed or abolished even by Parliament.

3
Constitution of India, 1950.
4
AIR 1978 SC 597; (1978) 1 SCC 248
5
Constitution of India, 1950
6
Constitution of India, 1950
7
Constitution of India, 1950

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  ADM Jabalpur v. Shivkant Shukla8: This case is often referred to as the "Habeas
Corpus case." When it comes to the rule of law, this is one of the most crucial cases.
Apart from Article 219 of the Indian Constitution, the question before the Hon'ble
Court was whether there was any rule of law in India. It occurred in the framework of
the proclamation of emergency, which postponed the execution of Articles 14 10, 2111,
and 2212.

 Som Raj v. State of Haryana13: The lack of arbitrary authority is the premise of rule
of law upon which the entire constitutional superstructure is based, it was held in this
case.

 Union of India v. Raghubir Singh 14:The court decided in this instance that the
judgement of the higher courts affects the lives of the people and regulates the State
function to a significant extent.

 Chief Settlement Commissioner, Punjab v. Om Prakash 15:In this decision, the

Supreme Court stated, "The idea of rule of law, which implies, in this context, the
ability of law courts to evaluate every administrative activity by the criterion of
legality, is the core and most distinguishing element of our constitutional system." If
the aggrieved person brings the matter to the attention of the court, the administrative
or executive action that does not meet the standard will be reversed.”

 Keshvananda Bharti v. State of Kerela 16:The Supreme Court enunciated the idea of
rule of law as one of the most fundamental components of basic structure doctrine in
this decision.

8
(1976) 2 SCC 521.
9
Constitution of India, 1950
10
Constitution of India, 1950
11
Constitution of India, 1950
12
Constitution of India, 1950.
13
1990 AIR 1176.
14
Decided on 18.09.2013.
15
AIR 1969 SC 33.
16
(1973) 4 SCC 225.

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  Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil 17: If the rule of law is
to be preserved as the essence of democracy, and election purity is a necessary
concomitant, it is the duty of the courts to appreciate the evidence and construe the
law in a manner that would subserve this higher purpose and not even imperceptibly
facilitate acceptance, much less affirmation, of the falling electoral stan Rule of law
must prevail for democracy to exist, and the best possible individuals must be chosen
as people's representatives to ensure good government of the country.

 Secretary, State of Karnataka and Ors. v. Umadevi18: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 19 or in ordering the
overlooking of the need to comply with the requirements of Article 1420 read with
Article 1621 of the Constitution.”

CRITICAL ANALYSIS

The Rule of Law had been enshrined in the soul of our constitution by its framers. The three
branches of government work together to establish the rule of law through a system of checks
and balances. By respecting the laws as put down by the parliament and interpreted by the
court, the judiciary has worked effectively toward the creation of Rule of Law, and has had
equal support from citizens and government. The essential components of legality might be
included by the notion of law, however this identification becomes less credible the more
substantial the concept of the Rule of Law is believed to be. As a result, a governance system
does not qualify as law unless it shows the forms and procedures that we identify with
legality. Otherwise, we lose sight of law's institutional uniqueness as a means of governing a
community. Lon Fuller (1958 and 1964) imagined a link along these lines, as we saw before.
Though there have been several instances where the public has resorted to violence in
response to an Act of Parliament or a judicial pronouncement, or has committed acts contrary
to law that are not, in their opinion, contrary to Law and Justice, resulting in situations where

17
AIR 1994 SC 678.
18
(1992) 3 SCR 826.
19
Constitution of India, 1950.
20
Constitution of India, 1950.
21
Constitution of India, 1950.

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the Rule of Law has only become a de jure concept while the Rule of Men has prevailed in
practise. Several rules have been established by the court to curtail the practise, but several
cases of honour killing have been recorded, and the public has generally ignored the Apex
Court's ruling. The contemporary notion of the rule of law has progressed to the point that it
currently provides an ideal framework for any government to accomplish. The International
Commission of Jurists established the notion, which became known as the Delhi Declaration
in 1959 and was subsequently ratified in Lagos in 1961. The dignity of man as an individual
is preserved in this concept. It means that the rule of law should be administered in such a
way that individual dignity is prioritised. The acknowledgment of civil and political rights, as
well as social, economic, educational, cultural, and developmental rights, are all part of an
individual's dignity. After reviewing the history, facts, and instances involving the
implementation of the "Rule of Law," we may infer that the notion of the "Rule of Law" has
changed over time. The dynamic nature of rules in the world has caused this evolution. There
has been a significant shift in public understanding of the doctrine, with it now serving as a
mandatory foundation for all judicial decisions. When looking at the Indian legal system, one
might argue that the Rule of Law as a theory was not strictly observed. With the Rule of Law
as a doctrine, India has gone a long way, witnessing several judgements that have changed
the concept's implementation. Having said that, it is important to remember that the courts
and Law Commissions are working to ensure that the judiciary runs smoothly in order to
maintain the constitution's integrity and the Rule of Law. To summarise, Rule of law,
according to Dicey, refers to the lack of arbitrary authority and the supremacy of the law. No
one is above the law, and the law cannot be exercised arbitrarily. The law of the country
applies to everyone and everything. Second, everyone is equal before the law, regardless of
their social class or rank, and the law treats everyone similarly, without discrimination or
special treatment. Finally, the courts have the authority to regulate administrative activity,
establishing a system of checks and balances.

CONCLUSION

From the foregoing explanation, it can be inferred that legal supremacy is the goal, and the
rule of law is the greatest weapon for achieving that goal. Some efforts are also made by the
court when the Rule of Law is related to the people's Human Rights. The court is developing
a strategy through which the government can be pushed to not only adhere to the law, but
also to create conditions in which people's capabilities may be developed so that they can
enjoy their rights in a proper and meaningful manner. The rule of law has not produced the

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desired effects in Indian society. A few instances of how our court has preserved the rule of
law and secured justice include the establishment of new avenues for seeking remedies for
human rights abuses through the filing of PIL petitions. The founder of this notion, Sir
Edward Coke, the Chief Justice of King James I's reign, argued that the King should be
subject to God and the law, as well as the supremacy of law over the executive and that there
is nothing higher than law.