NAME: MOHNISH KHANDALE

PRN: 19010126031

DIVISION: A

BATCH : B.B.A-L.L. B- 3RD YEAR

SUBJECT: ADMINISTRATIVE LAW

CONTENT: INTERNAL I
 INTRODUCTION

“Rule of Law is the antithesis of arbitrariness”

: Justice Khanna in ADM Jabalpur v. Shivkant Shukla.1

Freedom of expression and rule of law are the primary requisites of a free democratic nation.
They form the bedrock of an open and stable society. Without the presence of these ideals
and their enforcement, we get to witness a largely polarized world surrounded by conflict and
chaos. The current situation of the country demonstrates this adequately, with political unrest
and protests happening all over the nation, the one ideal that brings peace and stability, is the
rule of law. Rule of Law helps protect the democratic ideals and the democratic system of the
country and proves itself to be the cornerstone of an efficient functioning democracy like
India.

According to Tom Bingham, the essence of the Rule of Law can be understood by the
words:2

“All persons and authorities within the state, whether public or private, should be bound by
and entitled to the benefit of laws publicly and prospectively promulgated and publicly
administrated.”

Although, the meaning of the phrase is historically contested, rule of Law basically means the
supremacy of law of the land over any elected representative authority in the nation. The
French phrase “la principe de legalite” which implies that the government should be guided
by law and not the people is the source of the Rule of Law. Rule of law implies how the king
is not the law of the land but how the law is the king of the land. It makes sure that every
particular individual including lawmakers, enforcement officials and judges is a subject to
law.3

The concept of Rule of Law has been in existence since times of the ancient Greek
civilization where philosophers like Plato and Aristotle deliberated on it. Aristotle, famously
exclaimed, that “law should govern and those who are in power should be the servants of the
laws”.

1
ADM Jabalpur v. Shivkant Shukla (1976), AIR 1976 SC 1207
2
Tom Bingham, The Rule of Law (London: Allen Lane, 2010) p.8
3
Blandine Kriegal, The State and the Rule of Law (Princeton University Press, 1995).
Rule of law is the basis of the study of the subject of Administrative Law and Constitutional
Law in India. It is a part of the basic structure of the Indian Constitution. According to Justice
V. Dhanapalan, “no individual whether if rich or poor or of any background is above law”.4

CONCEPT OF RULE OF LAW

The rule of law is a dynamic term that, like many others, cannot be precisely defined.
However, this does not imply that there is no consensus on fundamental values, it stands for.
The term "Rule of Law" refers to the rules that are based on the concepts of liberty, equality,
non-discrimination, fraternity, responsibility, and non-arbitrariness is certain, consistent, and
predictable.5 "The idea has a common English ancestry, and it encompasses a body of precise
material aside from the presentation of generalities." 6 It serves as the foundation for a
practical governing system. The rule of law necessitates that the government be subject to the
law rather than the law being subordinate to the government.7

Primarily, it was Edward Coke was the first to say that the King must be subject to God and
law, so establishing the primacy of the rule of law above presidential pretensions which gave
rise to the doctrine of Rule of Law. But it was revived and discussed in detail by AV Dicey. 8

According to Dicey, the doctrine of Rule of Law is kindred through three distinct ideals:

a. Absence of Arbitrary Power

b. Equality before Law
c. Predominance of Legal Spirit

According to Dicey’s doctrine of Rule of Law, no man is above the law of the land. A man
can only be punished through a proper legal manner by a court of law for a breach of law and
no individual can be punished by the government by its own fiat. A person in charge is not in
possession of any wide, arbitrary or discretionary powers. Because Dicey believed that when
there is room for any kind of discretion, there is also room for an arbitrary decision.9

He also believed that every particular individual irrespective of their ranking should be a
subject to law.10 He believed that the rights of individuals should be determined based on the
4
Justice V. Dhanapalan, Basic Structure of the Indian Constitution- An Analysis, (2014) 8 SCC J-1
5
De Smith, et al: Judicial Review of Administrative Action, 5th Ed., pg. 14, 1995
6
Justice J.S. Verma, 50 Years of Freedom under Rule of Law: Indian Experience, Ed. Soli J. Sorabjee, Law &
Justice: An Anthology, Pg. 325, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2003
7
Wade & Forsyth, Administrative Law (2005) at pp. 20-25, 343- 344.
8
Dicey, AV, Introduction to the Study of the Law of the Constitution, 8th Edition (Macmillan, London 1914)
9
Cosgrove, The Rule of Law, 66-113 (1980)
10
Wade and Phillips, Constitutional and Administrative Law, (ed.Bradley, 9th edn.)
progression of the judicial decisions of the Court from time to time and that the liberties of an
individual should be judge-made.11

INCEPTION AND EVOLUTION OF RULE OF LAW IN INDIA

Rule of law can be thought of as a contemporary term for Natural Law. Jurisprudentially,
Romans referred to it as 'Jus Naturale,' Medievalists referred to it as the 'Law of God,' and
Hobbes, Locke, and others referred to it as the 'Law of God.' Rousseau referred to it as a
"Social Contract" or "Natural Law," and modern jurists refer to it as "Rule of Law'. However,
in India, the concept of Rule of Law can be traced back to the Upanishads where it is stated
that Law is Kings of Kings. 12 The doctrine of rule of law has possessed this imprint of natural
justice, which makes it social justice, from the fabled days of Adam and Kautilya's
Arthasastra.13

India has adopted the concept of Rule of Law from British jurisprudence into its Constitution.
The doctrine of Rule of Law is reflected from the rule of the Constitution over the nation. The
Constitution is held to the supreme law of the land and is the source of power for the
legislature, executive and the judiciary. The rule of law has been in place in the country due
to the acceptance of it by all the actors of the state which confer the power to the Constitution
to execute the implementation of law in a fair and just manner.

The journey of the concept of Rule of Law has been a tale of various fluctuations. In the pre-
independence period, the rule of law instead of being progressive towards the citizens of the
country, turned out to be a oppressive source that granted power to the colonial machinery for
the exploitation of the country’s citizens. This was demonstrated through the Raja
Nandkumar case (1775) which is famously referred to as the first judicial murder of India. In
this case, Raja Nand Kumar was hanged to death by the colonial government because of a
conspiracy initiated by the then governor-general Warren Hastings against him to fulfill his
grudge and to take revenge for the trial conducted against him because of a report presented
by Raja Nand Kumar.

This started to change in post-independence India, where the rule of law was strengthened
and used progressively for the development of India as a newly democratic nation. The
importance of rule of law was such that even the theme of the New Delhi Congress was the

11
Jain, M.P, (1996) A Treatise on Administrative Law. Agra, India: Wadhwa and Co
12
Upendra Baxi, The Rule of Law in India, 2007
13
Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405
rule of law. The principles and the procedures related to rule of law were developed in this
particular time, where it was decided that the rule of law would be used to advance the
respect for fundamental freedoms and for the recognition of the civil and the political rights
of an individual”.14

RULE OF LAW IN INDIA- JUDICIAL EVOLUTION

Rule of Law is an indirect part of the Constitution where the principles of Dicey are present
in Part III of the Constitution through the medium of Article 14 and 21. 15 It is in force in the
country through its powers of institutionalizing the checks and balances in the country,
furthering the ideal of equality before law and through the introduction of the concept of
Judicial Review where the judiciary is given the power to strike out unconstitutional
legislation.

The Indian judiciary has played a key role in shaping the doctrine of rule of law in India. It
has done so by adopting a positive outlook and taking dynamic actions in regards to the
implementation of rule of law across the country. Through the judicial decisions, the
judiciary has ensured that the doctrine forms the spirit of the Constitution and incorporated
properly.

In the case of ADM Jabalpur v. Shrikant Shukla, the issue that arose was “whether there was
any Rule of Law in the nation apart from the Article 21 of the Constitution”. 16 The issue arose
due to the severe crackdown on constitutional rights of individuals of Article 14, 19 and 21 of
the Constitution during the Emergency declared by then Prime Minister Indira Gandhi. 17

The 5-judge bench that adjudicated on this particular issue, rendered a judgment in favor of
the government but there was one judge who dissented. Justice H.R Khanna while he
delivered his dissenting judgment made the observation that despite the absence of the Article
21, the state has no power to deprive an individual of his life and liberty without the authority
of law.18 He observed how Rule of Law is the norm of a civilized society and how without
sanctity of life and liberty, the distinction between a lawless society and a lawful society will
be non-existent.

14
Norman S. Marsh, The Rule of law in a Free Society, 5-14.
15
INDIA CONSTI, Part III, Art. 14 & 21
16
ADM Jabalpur v. Shivkant Shukla (1976), AIR 1976 SC 1207
17
INDIA CONSTI, Art. 14, 19 & 21
18
INDIA CONSTI, Art. 21
In the case of Shankari Prasad v. Union of India, the question arose if the fundamental rights
can be amended.19 But the question wasn’t satisfactorily answered which gave rise too
various judgments deliberating on this. Finally, in the case of Kesavananda Bharati v. State
of Kerala, the Court answered negatively and asserted how Rule of Law is part of the basic
structure of the Indian Constitution and cannot be amended. 20 This was then further
elaborated on in the landmark case of Indira Gandhi v. Raj Narain.21

Further, in the case of the Chief Settlement Commissioner of Punjab v. Om Prakash, the
Supreme Court asserted on how the doctrine of Rule of Law is the most prominent feature of
the Indian Constitution and is the primary force that gives the judiciary the authority and the
power to determine the legality of the decisions made by the administration where a decision
that’s not in accordance with the law can be set aside by the Court. 22 In the case of Somraj v.
State of Haryana, the Court highlighted the ideal of the lack of arbitrary powers of the
doctrine of Rule of Law. The Court held that any arbitrary decision will violate the doctrine
of Rule of Law which is a part of the basic structure of the Constitution and thus be
unconstitutional.23

Rule of Law also gave birth to the concept of Judicial Review in India. In the case of Union
of India v. Raghubir Singh, the Court held that the decisions of the superior courts govern the
lives of the people and the State functions. It asserted how the concept of Judicial Review is
the crux of maintaining the law and order in the nation and that any provision which aims to
curtail the power of the Court in doing so will be violative of the doctrine of Rule of Law. 24
Further, in the case of S.P Sampath Kumar v Union of India, this doctrine of judicial review
was held to be part of the basic structure of the Constitution like the doctrine of Rule of
Law.25

In the case of P. Sambhamurthy v. State of Andhra Pradesh, the Court held a provision that
gave the power to the executive to interfere in the working of an independent tribunal, to be
unconstitutional, thereby, asserting the importance of Rule of Law and the need for the
absence of arbitrary powers.26 In the case of Secretary, State of Karnataka & Ors. V.

19
Shankari Prasad v. Union of India (1951), AIR 1951 SC 455
20
Kesavananda Bharati v. State of Kerala (1973), AIR 1973 SC 1461
21
Indira Gandhi v. Raj Narain (1975), AIR 1975 SCC (2) 159
22
Chief Settlement Commissioner of Punjab v. Om Prakash (1968), 1968 SCR 3 655
23
Somraj v. State of Haryana (1990), AIR 1990 SCR (1) 535
24
Union of India v. Raghubir Singh (1989), AIR 1989 SCR (3) 216
25
S.P Sampath Kumar v Union of India (1987), AIR 1987 SCR (3) 233
26
P. Sambhamurthy v. State of Andhra Pradesh (1987), 1987 AIR 663
Umadevi and Ors, the Court held Rule of Law to be the core of the Constitution. 27 Then, in
the case of Union of India v. President, Madras Bar Association, the Court emphasized how
an impartial judge should be presiding over any issue to keep up with the spirit of the
doctrine of Rule of Law.28

The Indian Courts have also tried to inculcate the doctrine of Rule of Law through its judicial
decisions by stressing on the importance of fairness and non-arbitrariness which are its
primary ideals of the doctrine of the Rule of Law, through the decisions of the Supreme Court
in the case of Sheela Barse v. State of Maharashtra29 and the case of Veena Sethi v. State of
Bihar.30

CRITICAL ANALYSIS OF RULE OF LAW

It has been observed how the framers of the Constitution have embodied the doctrine of Rule
of Law into the Indian Constitution. It has ensured the smooth functioning of the three
branches of government in the country efficiently while maintaining checks and balances
through the system that has been established by the Rule of Law. In a similar manner, the
judiciary has stressed the importance of the doctrine through its various judicial decisions and
has asserted it to be the core of the Constitution which is the supreme law of the land in India.

But yet, it’s interesting to observe how, there have been several instances where there have
been major protests and display of violence against certain provisions and statutes that have
been enacted by the Indian legislature and the administrative and held to be constitutional by
the judiciary. When a law that has been enacted with the spirit of maintaining the peace of
land has an exactly opposite result, it becomes clear how the Rule of Law has been arbitrarily
used by authorities for their own advantage and is turned indirectly into the Rule of Men in
power.

This is observed through various discriminatory statutes that are regularly used by the
Government in an arbitrary manner and the constitutionality of those is asserted by the
judiciary in its decisions. A particular example for this instance is the surveillance statute
referred to as “established procedures for lawful interception by the competent
authorities” in the form of Section 69 of the IT Act that authorizes the government to

27
Secretary, State of Karnataka & Ors. V. Umadevi and Ors (2006), AIR 2006 SC 1806
28
Union of India v. President, Madras Bar Association (2015), 2015 SCC Online SC 1094
29
Sheela Barse v. State of Maharashtra (1988), JT 1988 (3) 15
30
Veena Sethi v. State of Bihar (1983), AIR 1983 SC 339
interpret, monitor or decrypt any information without the pre-requisites of “public
emergency” and “interest of public safety”.31

The heinous tradition of honor killing is widespread in Indian society, particularly in the
country's north. This practice includes the murder of a family member because the
perpetrators believe the victim has brought shame or dishonor upon the family by violating
the principles of a community or a religion, typically for reasons such as divorcing or
separating from their spouse or engaging in inter-caste marriage. The decision is made by an
extra-constitutional entity by the appellation of Khap Panchayat, which engages in feudalistic
activities and has no qualms about committing such crimes, which are offences under the
Indian Penal Code, 1860.32

As seen in the cases of Shakti Vahini v. Union of India33 and Asha Ranjan v. State of Bihar,34
in these decisions, no regard is paid to the fundamental human right of "right to life and
liberty." The right of a woman to choose her life partner is a fundamental constitutional right.
It is based on individual choice, which is recognized in the Constitution under Article 19, and
such a right is not expected to yield to the concepts of "class honor" or "group mentality."
The collective concept of class honor has no legitimacy, even if it is practiced under some
guise. Although, restrictions have been established to curtail the practice, but countless cases
of honor killing have been documented, and the public has generally ignored the Apex
Court's judgement.

In a similar manner, the Sabarimala case judgement sheds light on men's discretion in
following the Supreme Court's directives only if they are similar to the belief they have. 35 The
court had authorized women of menstrual age, i.e. between the ages of 10 and 50, to access
the temple grounds for worship. All women of menstrual age have always been prevented
from accessing the Lord Ayyappa temple. Following the ruling, there were widespread
protests, as well as incidents of violence against women attempting to enter the shrine. Even
after the practice was deemed unconstitutional by the Supreme Court, women were still
denied their constitutional right to worship, and equality standards set by the Constitution
were breached.

31
The Information Technology Act, 2000, Section 69
32
Indian Penal Code, 1860
33
Shakti Vahini v. Union of India (2018), AIR 2018 SC 1601
34
Asha Ranjan v. State of Bihar (2017), 4 SCC 397
35
Indian Young Lawyers Association and Ors v. State of Kerala & Ors (2017), 10 SCC 689
Mob lynching is another terrible activity that exists in society. Lynching is a form of violence
in which a crowd executes a presumed perpetrator under the guise of administering justice
without trial, generally after torturing and mutilating the victim. Lynch law refers to a self-
contained court that sentences a person without due process of law. The Supreme Court
called it "horrible acts of mobocracy"36 and noted that "the law is sovereign in a civilized
society".37

The majesty of the law cannot be tainted simply because an individual or a group develops
the attitude that they have been empowered by the principles outlined in the law to take its
enforcement into their own hands and gradually become law unto themselves, punishing the
violator on their own assumption and in the manner that they deem fit.38 Typically, religious
and caste-based minority are the victims of this heinous practice. This practice is a modern-
day illustration of a lawless society in which basic human rights and fundamental rights are
denied.

Surprisingly, these cases only form the tip of the various instances that display the
adulteration of this ancient doctrine for the selfish motives of the administration that are
supported by the judiciary which is supposed to keep a check on their actions and illustrate
the need for change.

36
Tehseen S. Poonawalla v. Union of India (2018), AIR 2018 SC 3354
37
Krishnamoorthy v. Sivakumar and Ors (2015), AIR 2015 SC 1921
38
Supra Note 32
 CONCLUSION AND RECOMMENDATIONS

“Law and order are the medicine of the body politic and when the body politic gets sick,
medicine must be administered.”: Dr. B.R Ambedkar

The implementation of this doctrine isn’t perfect which is evident through the cases of mass
surveillance, mob lynching and honor killings which are legislatively justified. The rule of
law has also been inefficient in its function due to other reasons like the overburdening and
the outdated functioning mechanism of the Courts which are the sole decision-makers of the
land.

These shortcomings can be changed through progressive steps where the Judiciary is updated
with the current reality of the nation and through introduction of more courts and more
justices to facilitate the implementation of the rule of law. There’s also a growing need to
clear out the corrupt and nepotistic practices of the Judiciary that contribute towards these
shortcomings. There’s also a need for the legislature and the executive to listen to the general
public’s wants.

Despite the aforementioned disruptions to the doctrine, rule of law has been a significant
force in the development of post-independence India. Irrespective of its origin in the British
Jurisprudence, it has made its importance known in the Indian jurisprudence. The framers of
the Constitution had a vision in mind and this doctrine was part of their vision for the future
of the country. The doctrine was made a part of the Part III for the Constitution for a reason
and the usage of the doctrine in the various judicial decisions displays the progression of the
vision.

The doctrine has cleared out the arbitrary powers of the three branches of governance and has
made sure that proper checks and balances are in place while any legislative, administrative
or judicial action is taken. This doctrine has also been responsible for the doctrine of judicial
review which has kept the unconstitutional legislations at bay through judicial decisions. Rule
of Law has helped structure India into a real functioning democracy where the Constitution is
the supreme rule of land and everyone irrespective of their position has to abide by it.

On a conclusionary note, it’s important to note that the Constituent Assembly members
envisioned a Constitutional India, where each and every individual is treated with equality
before the law and their liberty is not infringed upon. They envisioned an India that is free,
open and democratic and void of any kind of arbitrary power. Till date, the implementations
of the doctrine of the Rule of Law has made this vision has progress into reality till a certain
extent. Now it’s dependent on the generations to come to make adequate necessary changes
to the mechanism in place to ensure that it turns into a reality with no shortcomings in this
regard.