A Rule of Law: Administrative Law Notes
This article is divided under following headings:
- Meaning of Rule of Law
- Origin of Rule of Law
- Views of Dicey on Rule of Law
- Exceptions to the Rule
- Professor Razz Eight Postulates / Elements
- Cases Related to Rule of Law
Meaning of Rule of Law
“Rule of Law” comes from a French phrase, ‘la principe de legalite‘. It translates to ‘Principle of legality’ which means a government that has its basis on principles of law and not on principles of men. Main element of rule of law is “everyone is equal before the law”. India is a democratic country so it can be said that India is against the concept of dictatorship. Rule of Law does not only govern the state but also maintain the peace in the Country.
Origin of Rule of Law
The Concept of Rule of Law is very old. In 13th century Bracton a Judge in the regime of Henry III introduced this concept. Sir Edward Coke, the English jurist is known as originator of Rule of Law. After him, in 1885 A.V. Dicey made this concept more popular.
Views of Dicey on Rule of Law
The modern concept of rule of law was expounded by Dicey and his exposition has three important factors:
- Absence of Arbitrary Power or Supremacy of Law
- Equality before law
- Predominance of the law of the land. Or Predominance of Legal Spirit
- The rule against arbitrariness :-
This means that Administrative officers should not exercise their powers arbitrarily and even act of an officer must have some basis in the “Act” of the legislature or the rule authorizing him to do it. Hence, the Executive officer should exercise only those powers which are authorized by legislature. This is what Dicey meant when he said that the rule of law is in operation. Further, it should be noted that no discriminatory power should be given to the executive officials by Act or by rules. Ultimately all the powers are to be controlled by the Constitution. This is the effective part of the rule of law. Administrative powers are limited by legislation. But the Parliament itself is controlled by the people.
The second part of the rule of law is that among equals law should be equal and should be equally administered. It means that the like should be treated alike. To Dicey, this is ‘equality before the law’ He declared that “no one should be made to suffer in body or goods except for a distinct breach of law. It also means that “all persons must be amendable to the ordinary jurisdiction of the court”. Rule of law contains the guiding principles to the administrators. They should exercise their powers without making discrimination between persons and persons in society. If they exercise this power arbitrarily or by making discrimination, then, it should be controlled or corrected by judicial scrutiny. In India the Supreme Court and the High Courts have powers to issue writs in the nature of Habeus corpus., Mandamus, quo warranto, prohibition and certiorari under Art. 32 & 226. Rule of law according to Dicey does not accept the French “droit-administrative”, as, it makes special provisions and provides for special treatment to the Government officials who exercise their power in the colour of their office.
In India, the courts have held that such exercise of power by the Govt officials –Central and States- is subject to judicial scrutiny. Administration of Justice has the rule of law as its basic foundation. It means Justice should be available to all. It should be equal and should not favour any particular individual in the society. It also means ‘No-individual shall be given preference on the grounds of his religion, race, caste, place of birth, political influence etc. Hence, Justice under the rule of law is free from discrimination and bias.
- Common Law Rights:
According to Dicey, the third limb of the rule of law is that the Constitution of England is the consequence of the common law right of the individuals, and hence common law is the source of the freedom of the people.
If the rights are based on a document like the Constitution, by amending the constitution, by the Parliament, the rights can be abrogated or denied. In A.D.M. Jabalpur V. Shukla our Supreme Court erred in holding that Art 21 of the Constitution can be suspended & there was no remedy by writ under an emergency. This was corrected by the 44th Amendment under which habeas corpus cannot be suspended even in emergency. The Supreme Court held that Rule of law is the basic structure of the constitution and, cannot be amended under Act, 368 of the constitution. (Minerva Mill’s Case), Rule of law is explained in Indira Gandhi V. Raj Narain & Keshavananda Baharathi’s case. In Miss Veena Seth V, State of Bihar, the Supreme Court extended Rule of Law to the poor, the downtrodden, he ignorant, and the illiterate-against exploitation.
Exception of Rule of Law
- Equality before law: Everyone is equal before law.
- Public & Private person: Police has right to arrest an accused person but on the other side private person does not have the right to arrest any accused person. But this is not against the Rule of Law
Proff. Raz 8 Postulates
- Law and the effect of the law should be general. Whatever law is passed by legislature it should be prospective not retrospective.
- Nature of law should be stable- no frequent changes.
- There should be clear rule and procedure for making law.
- Independence has to be granted.
- Principle of Natural justice must be followed by the administrative officers.
- Court should have power of Judicial Review.
- Court should be accessible and no man should be denied Justice.
- Use of discretionary power in fair and reasonable manner.
B.P Singhal vs UOI
- The court said the supreme quality of Rule of law is to maintain fairness and reasonableness.
- Administrative Officer cannot perform his power arbitrary.
Dr. Subramaniam Swami vs Director CBI (AIR 2014)
The Criminal Justice system mandates any investigation should be fair, according to law and should not be arbitrary in nature.
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