Open Access Research Article
“Comparative Analysis of Application of Rule of Law in India &UK” (By- Ritvik Joshi )
Abstract
“Comparative Analysis of Application of Rule of Law in India &UK”
Authored By- Ritvik Joshi
Modern Law College, Ganeshkhind Pune LL.M
Administrative Law: Development,
Growth,
Nature And Scope
The development of Administrative law
started in the twentieth century. That doesn’t mean there was no Administrative
law before the twentieth Century. Administrative law governs, and its
application is done by the executive branch of the government. This logically
would mean that the law is as old as the executive branch of the government. It
wont be wrong to say that the law is as old as administration itself.
However, in accordance with the
opening statement, the development of administrative law was rapid in the
twentieth century. It became more articulate, accurate and definitive. It
become the cornerstone of administration in the developing countries.
The state, in order to improve the
physical, moral and economic life of its subjects, assumed more and more powers
to regulate the society. The truth is that the state, in a modern democratic
state has acquired an immense accession of power and has come to discharge
functions which are varied and malfunctions in scope, nature and ambit.[1]
Dicey has defined Administrative Law
as denoting that portion of a nation’s legal system which determines the legal
system which determines the legal status and the liabilities of all the state
officials, which defines the rights and liabilities private individuals in their
dealings with the public officials, and which specifies the procedure by which
those rights and liabilities are enforced.[2]
In Administrative Law, procedure has
great significance. This is because procedure is necessary for discharge of
duty. Evolution of procedure is necessary to curb the abuse of administrative
power.
The British Administrative Law
doesn’t lay so much emphasis on procedure of administrative bodies. In a
democracy, the procedure has to democratic and in the interest of the people.
Thus administrative law deals with
the structure, functions and powers of the organs of the administration; limits
to the powers and procedure to be followed.
Rule Of Law
The concept of Rule of Law is derived
from the derived from the French phrase ‘la principe de legalite’. The govt.
based on the principles of law.
The purpose of Rule of Law is :
·
Protect
against anarchy
·
Plan
the affairs of the state with reasonable confidence
·
Against
official arbitration
The principle of Rule of Law has many
meanings and interpretations. Rule of Law embodies the doctrine of supremacy of
law and it a fundamental and basic necessity for an organized and disciplined
community.
The work of Aristotle on this
principle is influential in understanding the development of its concept.
Aristotle preferred administration by the law compared to a regime though both
of them were subject to the type. He was of the opinion that laws are brought
in after long discussions and considerations and shouldn’t be over-ruled by a
single person sitting in a court-room.
The contribution of AV Dicey is
paramount on this principle. Dicey said “Rule of Law is the supremacy or
predominance of regular law as opposed to the influence of arbitrary power and
excludes the existence of arbitrariness, of prerogative, or even wide
discretion authority on the part of the government.”[3]’
Its primary meaning is that
everything must be done according to law. [4]
Taken in its broadest sense this
means that people should obey the law and be ruled by it[5].
But in political and legal theory it has come to be read in a narrower sense,
that the government shall be ruled by the law and subject to it. The ideal of
the rule of law in this sense is often expressed by the phrase ‘government by
law and not by men’.[6]
According to Dicey, law alone rules over Englishmen. In many countries, the
executive held wide and discretionary powers and in Britain, subjects were
ruled by law. According to Dicey, wherever there was discretion, there is a
room for arbitrariness which led to insecurity of legal freedom of the
citizens.
Another concept attributed to Dicey’s
Rule of Law was “equality before law or equal subjection of all classes to the
ordinary law of the land administered by the ordinary law courts.”[7]
The third aspect of Dicey’s principle
of Rule of Law is for common law protection of rights and freedoms. Dicey
believed that people’s rights are best protected under Common Law rather than a
formal Bill of Rights.[8]
So, according to Dicey, the foremost
principle of rule of law is that it administration or the executive does not
enjoy any power outside law. Supremacy of rule of law is an another aspect of
rule of law. Dicey was in favour of Judicial Control as he thought it was the
basis of Rule of Law. He was of the opinion that Judicial review of
administrative actions helps the administration to remain within the ambit of
law. The distinction should be drawn between discretionary powers and arbitrary
powers. [9]
The administration should be granted discretionary powers and not arbitrary
powers, however, such discretionary powers should be limited and subject to
safeguards in order to avoid miscarriage of justice and order.
Every act of the Parliament, every
act passed, every right upheld or curtailed must have a strict legal pedigree.
According to Joseph Raz , the nature
of the law and its offices is complex. In his widely referenced
article The Rule of Law and Its Virtue (1977 )published in The Law
Quarterly Review, he stated ..
If the rule of law is the rule of the
good law then to explain its nature is to propound a complete social
philosophy. But if so the term lacks any useful function. We have no need to be
converted to the rule of law just in order to discover that to believe in it is
to believe that good should triumph. The rule of law is a political ideal which
a legal system may lack or possess to a greater or lesser degree. That much is
common ground. It is also to be insisted that the rule of law is just one of
the virtues by which a legal system may be judged and by which it is to be
judged....[10]
The core of Raz’s idea is that the
law should be capable of providing effective guidance. Raz agrees that the
government, that is the executive need some discretionary powers but he also is
of the opinion that they should be subject to clear and stable rule to govern
these decisions and should be subject to judicial review.
Rule of law has given the common law
countries a definite, articulate philosophy to restrict the government powers
and keep the administration within bounds.
Rule Of Law In England
King John and his rebellious barons
agreed to the great charter known as Magna Carta. The great charter was the
first significant written instrument limiting the power of the king and
confining him to what the barons regarded as good governance.[11]
Dicey, earlier denied the existence
of administrative law in England. While his contemporary Maitland, thought
Administrative law was emerging in England in the same period. Dicey thus
reluctantly accepted and recognized Administrative Law after the famous Rice[12] and
Arlidge[13]
cases.
Lord Hewart,
in his book The New Despotism[14]
, claimed that the true rulers of the country were bureaucrats. He was alarmed
by the large-scale assumption of power by the executive and newly expanded
powers of legislation and adjudication. He warned in his book the misuse of
theses powers by the officials.[15]
This criticism led to formation of
the Committee of Minister’s Power
also known as The Donoughmore Committee
was appointed in 1929.The object of the committee was to consider the powers of
the ministers and the crown. The objective of the committee was also to secure
sovereignty of Parliament and the supremacy of law.
In the submission of its report in
1932, the committee highlighted, the opportunities misuse of power by the
executive and the crown and laid down certain suggestions. The report brought
into the highlight three main defects in the system of Administration.
1) The inadequate provision made for
publication and control of subordinate legislation
2) Lacuna caused by the inability to sue
the Crown for tort[16]
3) The extent to which the control and
supervision of administrative decisions were passing out f the hands of the
courts and were being entrusted by Parliament to specialist tribunals and
enquiries.[17]
As a result, The House of Commons
formed a committee on Statutory Investments
1944 to tidy up matters regarding subordinate legislation.
The Parliament enacted Crown Proceeding Act, 1947 to
liberalize the law relating civil proceeding against the Crown.[18]
The occurrence of the Crichel Down
Affair[19]
in 1954 brought into the picture many lacunas in the administration. This led
to the formation of the Frank’s
Committee.
The Frank’s Committee (1955) was
officially known as the Committee on Administrative Tribunals and Enquiries.
The suggestions (1957) of this committee led to the appointment of Council of Tribunals
which was responsible for improving the procedure and improvement in the
tribunals and enquiries in the country.
The Franks Committee concluded that
in general that the appropriate appeal structure is a general appeal structure
is a general appeal from a tribunal of first instance to an appellate tribunal,
followed by an appeal to the courts on points of law.[20]
Till 1958, the areas of delegated
legislation and administrative adjudication had been investigated and some
reforms introduced therein, but the area of the other administrative powers had
not been touched so far.[21]
The International Commission of
Jurists , published a report in 1961 suggesting the government of appointment
of an ombudsman. The report was later called as the Wyhatt report. Even the appointment of an
ombudsman was not adequate it was supplemented with other institutional
arrangements.
These
recommendations did not make the Administration full-proof. The developments
were not full-proof. The development was not systematic the need to further
amend the law was felt. The need for coherent and comprehensive law was felt.
In 1969, the Law Commission recommended a full-fledged inquiry into
Administrative Law. Even the suggestions did not materialize, a single enquiry
was held on legal remedies.
On
the report of the Commission, a single procedure, known as “application for
judicial review” has now been introduced for applying to the High Court for
securing one or more of the following remedies: mandamus, certiorari,
prohibition, declaration and injunction.
Rule Of Law
In India
The
concept of rule of law has been invoked in India from time to time not in a
Dicean sense but as a means to discipline the administration and to infuse some
constitutional values therein. [22]
Our
constitution creates or forms the rule of law and not rule of men. Our
constitution recognizes that all men are under law and all constitutional
functionaries must work within the constitutional limits. Our constitution
doesn’t permit absolute power without any limitations. It is against power
without restraints or unbridled power.
Rule
of law in India has been concretized in the constitution by the Article
14. Article 14 guarantees every
individual “equal protection of law” and “equality before law”. Thus, the
principle is not vague and abstract but articulate and definitive. The Principle of rule of law is one of the
pillars of the constitution. The Courts through Article 14 have achieved a very
activist dimension and has laid down decisions invalidating unreasonable,
arbitrary decisions.[23]
Under Indian legal system, Article 21 guarantees life and personal liberty
which cannot be taken except by the procedure established by law. But it is not
the sole depository of Rule of law under the constitution. The whole constitution
enumerates he principles of rule of law.
The
concept of rule of law has been invoked to convey the sense that the
administration cannot exercise arbitrary powers and should function according
to law.[24]
The decisions based upon discretion must satisfy the test of reasonability and
equity. The whole principle of rule of law in India is that law should not
arbitrary, irrational.
In
ADM Jabalpur vs Shivkant Shukla, Justice
Khanna in the dissenting judgment said that rule of law is anti-thesis of
arbitrariness. It helps maintain a balance between individual liberty and
public order. Justice Khanna said “rule of law means government under the law,
supremacy of law over government as distinct from government by law. It also
mean supremacy of law over society even in totalitarian state.” [25]
The
judgment of this case is widely regarded as an error, but the judgment hasn’t
been over-ruled yet. Justice Khanna’s dissenting judgment holds much relevance
today and explaining the concept of rule of law.
Thus,
in today’s context, the theoretical formulation of Dicey on the Rule of Law, as
explained by Justice H.R. Khanna, would hold much greater force than in
1976.
He
further went and stated that rule of law was then the accepted norm of
civilized societies. The concept of independent judiciary, which enumerated
from rule of law is important to maintain the problem arising out of conflict
between human rights and public order[26].
He
further added, ““Even in the absence of Article 21 in the Constitution, the
State has got no power to deprive a person of his life or liberty without the
authority of law. The principle that no one shall be deprived of his life or
liberty without the authority of law is rooted in the consideration that life,
and liberty are priceless possessions which cannot be made the plaything of
individual whim and caprice and that any act which has the effect of tampering
with life and liberty must receive sustenance from and sanction of the laws of
the land[27]”.
He
brought into the light the difference between rule of law and mere illusion of
rule of law. He said, “ A state of negation of rule of law would not cease
to be such a state because of the fact that such a state of negation of rule of
law has been brought about by a statute.[28]”
In Golaknath vs State of Punjab[29] ,
the court held that rule of law under the constitution serves the needs of the
people without undoubtedly infringing their rights. It is capable of
recognizing the social reality and tries to adjust itself from time to time
avoiding authoritarian path.[30]
Under the Indian legal system every statutory body and
organ is regulated by Rule of Law. In Zahira
Habibulla Sheikh vs State of Gujrat, the court said “ Principles of Rule of
Law and due process are closely related with human rights protection. Such
rights can be protected effectively when a citizen has resource to the court of
law.”[31]
The concept of Basic Structure of the constitution was
laid down in Indira Gandhi Nehru vs Raj
Narain.[32] Along
with five other principles, rule of law was regarded in the basic structure of
the constitution making it immune to amendment.
Comparitive Analysis: Differences And The
Similarities Between The Two Legal Systems
1)
Sources of the Rule of Law :
The principle of Rule of Law was coined and
established by AV Dicey in 1885 in United Kingdom. United Kingdom has its
source of Rule of Law from AV Dicey the various , committee’s appointed by the
Government to improve the administration, the various acts of parliaments such
as amendments and the judicial pronouncements.
The Sources of Rule of Law in India include the Dicean
philosophy, the Preamble of the constitution which talks about justice,
equality and fraternity. Article 14 of the constitution gives all the citizens
equality before the law and equal protection of the law. The most important
source of rule of law in India are the Judicial pronouncements which have made
the ambit of rule of law flexible and inclusive.
2)
Conceptualization of Rule of Law
In
the United Kingdom, the rule of law has been developed in the Dicean sense to
ensure that,
·
No
one is above law
·
Equality
before law
·
Law
is always applied’
·
Independence
of Judges
·
To
put curb on the vast administrative powers
In the United Kingdom, there is no bill of rights to
protect the fundamental rights and the Bill of Human Rights can be set aside by
the Parliament. Thus, the Parliament is the supreme and above the law in the
United Kingdom. The development of rule of law in United Kingdom is limited to
check the behavior of the public officials and eradication of arbitrary
decision of the administration.
In
India, the Rule of Law has been developed not in a Dicean sense;
·
To
discipline the vast administrative powers & curb arbitrariness
·
To
infuse some values in the administration
·
To
serve the needs of the people and protection of fundamental human rights
·
Independence
of judiciary
·
Uphold
the concept of equality envisaged in Article 14 of the constitution
In India, the law is supreme. No one is above law. Not
even the Parliament. The Court can strike down the changes and bills passed in
the parliament if it violates the Fundamental rights or hampers the Basic
Structure of the constitution.[33]
Rule of Law has no definitive connotation in India and
thus can be used against any source of arbitrariness in the country. The
Judicial review is the basic structure of the constitution thus cannot be
abrogated or amended[34].
3)
Concept of Equality
The principle of equality in United Kingdom and India
is similar. AV Dicey’s concept of Rule of Law is equality before law and equal
subjection towards law is similar to the contents of Article 14 of the Indian
Constitution which provides for equality before law and equal protection of the
law. Principle of equality is of paramount importance and form the cornerstone
of the two legal systems.
Both the countries maintain the principle that no man
is above the law. Irrespective of his position and rank he was amenable to the
jurisdiction of the court.
However, AV Dicey was criticized for omitting the
perks given to the crown, state officials and bureaucrats in 1885.
Vague or Definitive
United Kingdom has an unwritten constitution, so the
principle of rule of law is not codified but is base in thesis, committee
reports and legislations. This makes the principle indefinite and vague. The concept of Rule of Law is abstract in
England. The Indian Constitution has not defined the principle of rule of law.
Justice Khanna, said “ The article 21 is not sole repository of rule of law but
the whole constitution.[35]” Inference can be drawn the preamble of the
constitution which contains the principle of equality , justice , fraternity
and secularism. These principles are corner-stone of modern administration and
rule of law.
Conclusion
The development of Rule of Law started as a brake to
arbitrary rule of the administration. Dicey explained Rule of Law which was
very idealistic in nature. A developing country needs Rule of Law in its
administration to avoid discretion and arbitrariness. Each country needs to
develop their concept and version of rule of law according to the prevalent
situation. Dicey was of the opinion that justice should be achieved by rules by
law and not by principles of men. However, the situation adopted in India is different
than Dicean philosophy.
Justice Khanna upheld the principles of justices,
equity, good conscience in a dissenting Judgment. He gave a judgment against
the illusion of rule of law. In India, rule of doesn’t mean blindly following
the law. It means enforcement of democratic order. Rule of Law is needed to
punish those who deviate from the established order or constitutional
morality.
The researcher is of the opinion that the development
of Rule of law should develop in all the countries at the nations own pace and
social situation. The law governs the people of the state and all the laws
should be focused on overall development of an individual. The Rule of Law
plays an important role in the development of an individual as he has the
chance to progress without facing arbitrariness of the administration.
The researcher suggests that, in India, were rule of
law is hampered and there is miscarriage of justice, efforts should be made to
improve such maladministration. In such situations, the common subjects are
stake holders. The Administration and the judiciary should try and win back
their faith in the system. The Supreme Court in Indra Sawney II vs Union of India[36]
, criticized the government for violating rule of law for political
convenience. Such incidents should not be taken lightly and strict action
should be taken against them.
AUTHOR
RITVIK
JOSHI
MODERN
LAW COLLEGE, LL.M (II)
GANESHKHIND
PUNE
BIBLIOGRAPHY
BOOKS REFERRED
·
MP
Jain & SN Jain , Principles of Administrative Law , 6th Edition
·
MP
Jain, Administrative Law , Volume 1
·
Joseph
Raz. The Rule of Law and its Virtue, The Law Quarterly Review, PP 195-209
·
Khanna H R. ‘Rule of Law &
democracy-friends or foes?
·
Pandey
J N (2008). The Constitutional Law of India, Allahabad: Central Law Agency
Published Paper
Author Details
Author Name: Ritvik Joshi
Title: “Comparative Analysis of Application of Rule of Law in India &UK”
Email Id: ritvikjoshi96@gmail.com
Article Information
“Comparative Analysis of Application of Rule of Law in India &UK” (By- Ritvik Joshi )
Authors: Author Name: Ritvik JoshiTitle: “Comparative Analysis of Application of Rule of Law in India, UK”
- Journal IJLRA
- ISSN 2582-6433
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International Journal for Legal Research and Analysis
- AbbreviationIJLRA
- ISSN2582-6433
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