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RULE OF LAW ON ADMINISTRATIVE LAW
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RULE OF LAW ON ADMINISTRATIVE LAW
AUTHORED BY - TANISHA
TREHAN
ABSTRACT
Administrative law is a distinct branch of law and a subject of academic study, although it has just acquired full recognition as a 'responsible' field of study
for law students
and practitioners. To recognise its autonomous existence, the people of England utilised
Dicey's Concept of Rule of Law as a weapon to strike the rise of
administrative law. The notion of the 'Rule of Law' is a cornerstone of our modern democratic society. This phrase is
not defined in the Indian Constitution,
although it has been often utilised by the Indian judiciary in its decisions.
The 'Rule of Law' is neither a 'rule'
nor a 'law'; rather, it is a philosophy of ‘state political morality' that maintains a 'correct balance'
between the 'rights' and 'powers' of individuals and between individuals and the state in order to
create a free and civil society. It is the consequence of centuries of struggle by people for
acknowledgment of their fundamental rights. The major goal of this study is to provide a complete examination of 'Rule
of Law,' including its genesis, characteristics,
position in the United States Constitution, position in the Indian
Constitution, essential concepts,
and exceptions. Finally,
a conclusion has been offered
in the study. Several journals, books, and articles were
consulted and considered when writing this research work. The internet has also been helpful in this
process. As a consequence, this work is the product of Doctrinal Research
Methodology.
Keywords: rule, law, state political
morality, correct balance,
rights, powers.
INTRODUCTION
Administrative law is a distinct branch of law and a subject of academic study, although it has just acquired full recognition as a "responsible" field of study for law students and practitioners. So, in order to recognise its autonomous
existence, the people of England utilised Dicey's Concept of Rule of Law as a weapon to strike the rise of administrative law. The 'Rule of Law'
is a new 'lingua franca'
of global moral
philosophy, as well as the Supreme expression of human civilization and culture. As a result,
Rule of Law gives everlasting worth to the Constitution and is an essential characteristic of democracy and effective
administration. This notion is a natural
law animation that remains a historical idea that makes a compelling appeal not
by a powerful man but by the Rule of
Law.
MEANING OF RULE. OF LAW
The
notion of the 'Rule of Law' is a cornerstone of our modern
democratic society. This phrase is not defined in the Indian
Constitution, although it has been often utilised by the Indian judiciary in its decisions. The 'Rule
of Law' is neither a 'rule' nor a 'law';
rather, it is a philosophy of'state political morality' that maintains a 'proper balance'
between the 'rights' and 'powers' of individuals and between individuals and the state
in order to create a free and civil society.
The 'right balance' is determined
by 'law,' which is founded on liberty, justice, equality, and accountability. Thus, the Rule of Law
strikes a balance between the requirements of society and the needs of the individual. The term "Rule of
Law" is derived from the French word "la principipe de legalite," which means "law-based
government." The concept of the rule of law is credited to Edward Coke. He stated that the King must be
subject to God and the Law. Edward Coke made three
main statements about the 'Rule of Law'.
First, it is necessary to guarantee
that there is no autocratic control of the monarch; second, it is necessary to ensure that there
is no arbitrary power of the government; and last, it is necessary to defend individuals and their rights. Objects based on
Edward Coke's "Rule of Law" Theory
include restricting government from authoritarian power, to prohibit
arbitrary government authority,
equality in the execution of laws and orders, regardless of status/rank, etc,
act in a legally correct
manner, individuals and their rights must be protected, the rule of law is supreme and administrative acts can be challenged in court.
The Rule of Law, like many other conceptions,
is a viable and dynamic concept that cannot be precisely defined. The term Rule of Law is used in contrast to the terms Rule of Men and Rule of Law. The rule of law indicates
that the law is definite, regular, and predictable and is founded on the
principles of freedom, equality,
non-discrimination, fraternity, accountability, and non-arbitrariness. In
general, the term "Rule of
Law" has two meanings: formatic and ideological. Formatic Sense refers to organised
authority as opposed
to one man's dominance, while
Ideological Sense relates
to the regulation of
people' relationships with the government.
Rule of Law is the outcome of
centuries of struggle by people for acknowledgment of their fundamental rights.
The topic is very old and was debated by the Greek philosophers Aristotle
and Plato around 350 BC. Many authors modified their perceptions and
interpretations of the rule of law as a result of the concept. Plato defined Rule of Law as "it
is supreme in nature, and nobody
is above the law." Aristotle believed that "law should be the final
sovereign of the State." In the mediaeval
time, German customary
law offered the notion that the King is always
subject to the law, and it was the autonomous source of rule of law. The government, according to John
Locke, operates in line with the law. The Rule of Law concept is protected when authorities are not permitted to behave
according to their whims and fancies while exercising their authority. No one may be punished or made to suffer under
the Rule of Law premise unless and
until he has broken the law. Everyone is equal before the law, according to
Rule of Law, which means that aw
cannot be founded on a class of people. Rule of Law is a crucial basis of most democracies since it is universal in its application and has been a feature
of most legal systems across the world.
According to the Rule of Law concept,
a person can be punished
only if he is charged
with a crime and that charge is proven by an independent body, such as a court.
CONCEPT OF RULE OF LAW BY DICEY
The concept of Rule of Law was
conceived by Albert Venn Dicey, a British jurist and constitutional theorist, in his book 'The Law of the
Constitution' (1885). He claims that one should understand the distinction between
administrative law and the Rule of Law. He believes
that the rule of law applies equally to everyone, whether he is a Prime
Minister or a regular bank clerk
working in an office. Thus, the same laws should be made applicable to
everyone, there should
be no discrimination under the rule of law, and the rule of law is ultimate
in nature. According to Dicey's theory,
administrative law's rule of law consists of three basic concepts are the supremacy
of the law, equal before
the law and predominance of the legal
spirit.
THE
SUPREMACY OF LAW
The
Rule of Law states that 'no man is punished
or may legitimately be made to suffer in body or
property except for a specific transgression of law established in the regular
legal manner before the ordinary
courts of the realm'. This has always been a fundamental concept of the law, which goes hand in hand with the notion that the law governs all individuals, even those in charge of
the law. While exercising their
power to make and administer the law, legislators must
offer justifications that are not permitted
by law.
EQUAL BEFORE LAW
No
one is above the law, as the phrase implies.
In the perspective of the law, everyone
is equal. It implies that there should
be no distinction between the affluent and the poor, the official
and the non-official, the
majority and the minority. Everyone should be treated the same way. Nobody
can be degraded, and nobody can be
enhanced.
PREDOMINANCE OF THE LEGAL SPIRIT
There should be some kind of
enforcement authority, and Dicey felt it could be achieved through the courts. The courts are the
enforcers of the rule of law, and they must be unbiased and devoid of any outside pressures. As a result,
judicial independence becomes
a crucial pillar
of the rule of law. Civil freedoms are often assumed to be derived from
a written constitution. This is not
true, however, because Britain has an unwritten Constitution. In England, the
true source of law is the spirit
of the law. Customs, gatherings, and court rulings
all reflect the spirit of the law. Individual rights
and liberties, according to Dicey, are safer in the United
Kingdom than in France.
A V DICEY'S RULE OF LAW CONCEPT'S PROS AND CONS
The
Pros
It
assists in the limitation of administrative authority, it plays a significant role in the formation and implementation of administrative law also assists
in the evaluation of administrative action.
The
Cons
His point of view was also not
universally embraced at the time, it ignored the distinction between free will and uncontrollable power
and he is unfamiliar with the notion of successful Droit administration
in France.
RULE OF LAW IN CONSTITUION
U.S
CONSTITUTION
America inherited the mediaeval
English notion of Rule of Law, which was stated as "a government of laws, not of men." The
federal Constitution of 1787 introduced the "Principle of Constitutional Supremacy" and altered the notion of constitutional governance. "The Constitution
should be the supreme law of the land," states Article VI of the American Constitution. The historic case of Marbury v Madison[1] demonstrates that the American Constitution and the authority
of judicial review are extensions of the rule of law. In this case, Justice
Marshall ruled that a congressional act that violated
the Constitution was not considered a law. Federalism, separation of powers, and the rule of law
are the three main tenets of the American
Constitution. They are also known as the "heart of the American
Constitution" since they
help to accomplish liberty, equality, order,
and justice.
The American Constitution is
based on three
fundamental concepts. The American Constitution mandates that the government be politically accountable to
both the state and the people it governs.
The American Constitution thinks that the legitimate expectation is one that originates with and is controlled by the people, and
the same notion is stated in the Preamble, which declares that the Constitution is founded by the people,
not the government. Political supremacy and the identification of all laws with the legislature are antithetical to the American
Constitution, which declares
it to be the highest law of the land.
INDIAN CONSTITUTION
The Rule of Law principle has played
a significant influence in the development of Indian democracy. The framers
of the Constitution adopted several
provisions from the United States,
as well as some provisions from the United States and England. Our
forefathers accepted the English
notion of Rule of Law, and many of its principles are included into the Indian Constitution. The Constitution of India is
regarded ultimate, and no one is above it. Part III of the Indian Constitution clearly states the Principles of Rule of Law in the Preamble.
The Indian Constitution is supreme over its three
wings, namely Parliament, the Executive, and the Judiciary. It is full of justice, equality, and liberty. Article
14 of the Constitution guarantees equality
before the law and equal protection under the law. Articles 13, 14, 15, 19, 21,
22, 25, 28, and 31A provide
fundamental rights to all Indian citizens. If an individual's rights are violated, he or she may file a complaint with the Supreme
Court or a High Court under Articles
32 and 226 of the Indian Constitution. Any legislation enacted by the
Central Government or a State
Government must be in compliance with the provisions of the Indian
Constitution; nevertheless, if such
law is found to be in conflict with the provisions of the Constitution, it will be deemed void. The Supreme Court has
the authority to grant writs such as Habeas Corpus, Mandamus,
Prohibition, Quo Warranto,
and Certiorari under Article 32 of the Constitution.
Thus, the Supreme Court gains the authority of judicial review in order to safeguard
the Rule of Law and avoid any supra vires laws.
LANDMARK CASES
The
court promulgated the idea of fundamental structure
in the well-known case of Kesavananda
Bharati Sripadagalvaru & Ors v State of Kerala & Anr[2] and concluded that any provision
of the Constitution might be altered without
changing its essential structure.
The court held in the case of Indira
Nehru Gandhi v Raj Narain[3] that the 'Rule of Law' is also a component
of the basic framework of the Constitution and so cannot be altered.
The court concluded in the case of
State of Bihar v Sonawati Kumari[4] that under the idea of 'Rule of Law,' all authorities working
inside the State, including the executive authority, are required to follow
the laws.
In the case of Bachan Singh v State
of Punjab[5], a five-judge bench comprised of
Justice Y Chandrachud, Justice
A Gupta, Justice
N Untwalia, Justice
P Bhagwati, and Justice R Sarkaria held that the concept of Rule of Law is free of arbitrary action, and that any action taken with arbitrary power is considered a denial of Rule of Law. This is also known as the "Death Penalty Case."
In
the case of Som Raj v State of Haryana[6], the Supreme
Court's three-judge bench, comprised of Justice K Puttaswamy, Justice
Raghunath Mishra, and Justice M.M Punchhi, held that the absence of arbitrary power is the absolute goal of the principle
of rule of law, on which the entire Constitution is directly dependent.
One
of the most significant instances
of rule of law is ADM Jabalpur
v Shivkant Shukla[7], also known
as the Habeas Corpus Case. In this case, the court was asked if the Rule of Law in India is separate
from Article 21 of the Indian Constitution. Thus, the five-judge bench of Justice A.N Ray, Justice Hans Raj Khanna,
Justice M Hameedullah, Justice Y.V Chandrachud, and Justice P.N Bhagwati
declared that there is no rule apart from
Article 21 and that no independent rule of
law can ever exist.
In the case of Veena Seth v State of
Bihar[8], the Supreme Court expanded the
scope of Rule of Law, stating
that Rule of Law extends
to the impoverished and oppressed, the uneducated and illiterate, who comprise the bulk of mankind in India. The court held that the Rule of Law does not
exist just for those with the resources to fight for their rights, which they
frequently do in order to maintain the status quo that protects
and sustains their domination and allows them to abuse a huge segment of the
population.
In the case of Union of India v
Raghubir Singh[9], the court stated that the principle
of 'Rule of Law' rules the lives of
the people and regulates the functioning of the state to a significant extent from superior court decisions.
The Supreme Court remarked in the
case of Chief Settlement Commissioner Punjab v Om Prakash & Ors[10] that in the current context, the
authority of the law courts is to assess administrative activities by the criteria of legality.
In
the case of S.G. Jaisinghani v Union of India and Others[11], the Supreme
Court characterised the criteria of rule of law in a very
clear manner. The court remarked that the Rule of Law implies that judgements should be made by using recognised
principles, that such decisions should
be predictable, and that the citizen should know where he stands. However, if a judgement is made without reference to any
principle, it is unexpected, and such a decision is the polar opposite of one made in conformity with the Rule of Law.
The Supreme Court declared in the
case of Supreme Court Advocates on Record Association v Union of India[12], often known as the "Second Judges Case," that the lack of arbitrariness is a fundamental notion of rule of law.
In the case of Secretary, State of
Karnataka and Ors v Umadevi and Ors[13], the Constitution Bench stated that "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 maintaining and infringement of article 14 in
requesting the ignoring of the need to agree
to the necessity of article 14."
MODERN CONCEPT OF RULE OF LAW
The notion of the rule of law is a compelling one. It cannot
be interpreted to suggest that it is a set legal system that does not change.
The International Commission of Jurists convened in New Delhi in 1959 to examine the subject of Legal Law. The key findings are as follows:
The purpose
of the legislation is "to protect and promote the political and social
rights of the individual in a free society.” Creating
the social, economic,
educational, and cultural
circumstances for a person to attain his or her legitimate objectives
and dignity. It should not infringe on religious beliefs
or on freedom of expression or personal freedom.
Minority groups are not discriminated against. The security guards are insufficient to
prevent the authorities from abusing
their power. There should be independent courts that operate
in a secure manner without intervention from the law or
management. The rule of law necessitates the existence of an autonomous
legal profession.
In today's
world, Dicey's idea of Rule of Law is not universally embraced. The current definition of the Rule of Law is quite
broad, and hence it establishes an ideal for any government to strive for. The International Commission of
Jurists developed the current concept of Rule of Law, often known as the Delhi Declaration, in 1959, which was later
ratified in Lagos in 1961. The 'Rule of Law' indicates
that "the functions
of government in a free society should be exercised in such a way that
the dignity of a man as an individual is upheld," according to the Modern Concept. The International Commission of
Jurists was divided into four working
committees: the Committee on Individual Liberty and the Rule of Law, the Committee on Government and the Rule of
Law, the Committee on Criminal Administration
and the Rule of Law, and the Committee on Judicial Process and the Rule
of Law. The Committee on Individual Liberty
and the Rule of Law argued that the state should not establish discriminating legislation, interfere
with religious convictions, or impose unnecessary limits on freedom. According to the Committee on governance and the
Rule of Law, 'Rule of Law' involves
not just strong safeguards against abuse of power, but also effective
governance capable of preserving law and order.
According to the Committee on Criminal Administration and the Rule of Law, 'Rule of Law' entails
due criminal process,
no arrest without
the authority of the law, legal assistance, public
trial and fair hearing, and the presumption of innocence. Finally, the Committee on Judicial Process
and the Rule of Law defined 'Rule of Law' as an independent judiciary, an independent legal profession, and a
norm of professional ethics. According
to Federalist Kim Davis, there are seven types of Modern Law: Law and Orders, Natural
Law Principles, Fixed Rules and Regulations, Due and Fair Process of Law, Preferences for judges and Courts of Law over executive authority and administrative tribunals, and Judicial Review
of Administrative Action.
Thus, the rule of law in the contemporary meaning guarantees that political interest
is encouraged and that criticism of the government is not only permissible but actively rewarded.
CONCLUSION
As a
result, the Rule of Law argues that decisions must be made using recognised
principles and rules, that such decisions must be foreseen, and that
individuals must be aware of their location. It does not involve any form of
violence. According to the preceding debate, the core of the law is the aim; the
rule of law is the finest tool for achieving goals. Some efforts are also being
made by the courts in areas where the Rule of Law is connected to Human Rights.
A court devised a system in which the government could be obliged not only to legislate
but also to create conditions in which the people might acquire the capacity to
enjoy their rights in a fair and understandable manner.
The concept
of Rule of Law was not flawless, but it took charge of administrative
authorities and undercut
them with their measures, which is why the principle
of Rule of Law has been
embraced as the watchdog of the Constitution by numerous countries. It is the
most effective means of achieving
legal supremacy. The court has even attempted to combine the notion of Rule of Law with Human Rights. The current
notion offered by David gives a wide concept
while also allowing the government to wield it gracefully, as the major
job of administrative law is to
bridge the gap between power and liberty. Thus, the government, guided by the
Rule of Law, establishes laws and conditions that do not violate any individual's dignity.
[1] marbury v madison (1803)
5 us (1 cranch) 137
[2] Kesavananda Bharati v. State of Kerala
(1973) 4 SCC 225
[3] Indira Nehru Gandhi v Raj Narain 1975 AIR 865
[4] State of Bihar v Sonawati Kumari 1961
AIR 221
[5]
Bachan Singh v State of Punjab
AIR 1980 SC 898
[6] Som Raj v State of Haryana 1990 AIR
1176
[7] ADM Jabalpur v Shivkant Shukla 1976
AIR 1207
[8] Veena Seth v State of Bihar AIR 1983
SC 339
[9] Union of India v Raghubir Singh 1989
AIR 1933
[10] Chief Settlement Commissioner Punjab
v Om Prakash & Ors 1969 AIR 33
[11] S.G. Jaisinghani v Union of India and
Others 1967 AIR 1427
[12] Supreme Court Advocates on Record Association
v Union of India AIR 1994 SC 268
[13]
Secretary, State of Karnataka
and Ors v Umadevi and Ors AIR 2006 SC 1806
Article Information
RULE OF LAW ON ADMINISTRATIVE LAW
Authors: TANISHA TREHAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/18
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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