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Rule of Law and Modern Administrative Law

An Analysis
The Document discusses the relevance of Rule of Law against Droit Administratif in Modern Administrative System.

Vivek Ranjan RGSOIPL, IIT Kharagpur 11/12/2010

Electronic copy available at: http://ssrn.com/abstract=1761506











Electronic copy available at: http://ssrn.com/abstract=1761506


"The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King" : Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 13521

Rule of law is classical principle of administrative law. As a matter of fact this principle was one of the principles that acted as impediment development of Administrative Law principles. The irony further is that the rule of law is now an important part of modern Administrative Law. Whereas the rule of law is still the one of the very important principles regulating in common law countries and common law derived countries modern laws has denied some of the important parts of rule of law as proposed by Dicey at the start of 19th Century. Dicey defined rule of Law as the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of prerogatives or even wide discretionary power on the part of government.2 Dicey asserted that wherever there is discretion, there is room for arbitrariness which leads to legal insecurity of citizens. Other aspect of Diceys Rule of Law is equality before law or equal subjection of ordinary law to all class of people by ordinary court. Whereas he asserted
1 2

KRISTY J HOOD, Conflicts of Law within The U.K, Oxford University Press, 2007; The Law of Constitution, pg 198;

that the French Droit Administratif is a bad law where there are separate tribunals for different matters, he further insisted that England hadnt any of similar or same system existed.3 The later view of Dicey about the equality and dominance of law over arbitrariness set standard of most civilized Constitutions of world. However, the later views on droit administrative impaired the development of Administrative law at very early stage where it required a support. The Administrative Law was, for almost all the time, including Diceys dominion, was present, but, was never recognized as it should have been for a neat and satisfactory development in common law countries. The presence of Administrative Law and its inevitable nature is clear by the recognition of some of the scholars contemporary to Dicey. Maitland was one of those scholars who have recognized the presence of Administrative Law in England.4 It is also evident that the presence of Administrative Law was substantial but was ignored by Dicey in his early era. The famous case of Board of Education v. Rice5 and Local Government Board v. Arlidge6

affirmed the practice of Administrative Law in England. It is evident that it is after this case that Dicey realized the presence of Administrative Law in a
3 4

M.P JAIN, S.N. JAIN, Principles of Administrative Law, Wadhwa Nagpur, 5th Ed.; Maitland, Constitutional History of Britain, 1908, pg .501; 5 1911 AC 179; 6 1915 AC 129;

positive form. He however maintained that the presence of Droit Administratif in England is no bodys case and that rule of law must be preserved. The rule of law, as propounded by Dicey has its own advantages and disadvantages. Apart from setting the base for all common law country, it has also provided the base for Administrative law principles are set. It is a method by executive in general and government in particular is kept in control against the misuse of wide power vested in them. It also eliminates unreasoned discretion, bias and arbitrariness in governance that emanates from wide power of executive. Moreover, the rule of law gives supremacy of Courts over all other functionaries of State. This leads to the further curbing where government cant be judge in his own cause. Diceys submission of rule of law has its disadvantages as well. Where the Diceys rule of law eliminated presence of arbitrary power in government, it also eliminated the wide discretionary power from the government. The protest of Dicey in presence of wide discretionary power in government would lead to the failure of policies and implementation of law as required apart from bad assessment before the formulation of policy. The biggest mistrust being the efficacy of judiciary in managing affairs of the state in the Diceys Rule of Law.


The Rule of law, in UK, was developed over the centuries as a brake on arbitrary power. The modern concept of Rule of law owes much to the great battles between the English kings and their subjects, the struggle for supremacy between parliament and Stuart kings, and finally the war between the British Empire and its American Colonies.7


On June 15, 1215 in the meadows of Runnymede, 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. These promises were a bargain between the king and the feudal lords dictated by the force of arms. Winston Churchill, in his History of English Speaking peoples, writes about the glorious legend of the charter of an Englishmans liberties.
The original Articles of the barons on which Magna Carta is bases exist today in the British Museum. In the next hundred years it was reissued 38

HARRY W JONES, The Rule Of Law And Welfare State,58 Col LR 143 1958;

times, at first with a few substantial alterations but retaining its original Characteristics.8

He concludes,
Now for the first time the king himself is bound by the law. The root principle was destined to survive across the generations and raise paramount long after the feudal background of 1215 had faded in the past. The charter became in the process of time an enduring witness that the power of the crown was not absolute. And when in subsequent ages the state swollen with its own authority, has attempted to ride roughshod over the rights and liberties of the subject it is to this doctrine that appeal has again and again been made, and never, as yet, without success..There is a law which is above the king and which even he must not break. This reaffirmation of a supreme law and its expression in a general charter is a great work of Magna Carta; and this alone justifies the respect in which men have held it.9


Dicey developed the stuffing of his theory by chirping from a foggy England into a sunny France.10 In France, Dicey observed that the government officials exercised wide discretionary powers and if there was any dispute between a

8 9

WINSTON CHURCHILL, A History Of English Speaking Peoples, 1957; Ibid pg 97; 10 Mohd. Awal Hussain Mullah, The Rule of Law in Bangladesh, The University of Rajshni Press;

government official and private individual it was tried not by an ordinary court but by a special administrative court.11 The law applicable in that case was not ordinary law but a special law developed by the administrative court. From this Dicey concluded that this system spelt the negation of the concept of rule of law which is secret of Englishmans liberty. Therefore, dicey concluded that there was no administrative law in England.12 In England, the doctrine of rule of law was applied in concrete cases. If a man is wrongfully arrested by the police, he can file a suit for damages against them as if the police were private individuals. In Wilkes v. wood it was held that an action for damages for trespass was maintainable even if the action complained of was taken in pursuance of the order of the minister.13 In the leading case of Entick v. Carrington14 a publishers house was ransacked by the kings messengers sent by the secretary of state. In an action for trespass, 300 were awarded to the publisher as damages. In the same matter, if a mans land is compulsorily acquired under an illegal order, he can bring an action for trespass against any person who tries to disturb his possession or attempts to execute the said order.15

11 12

Ibid pg 13; Supra Note (7); 13 KRISTY J HOOD, Conflicts of Law within The U.K, Oxford University Press, 2007; 14 1765, EWHC KB J98; 15 Ibid pg 209;

Diceys formulation of the concept of Rule of law, which according to him forms the basis of the English constitutional law, contains three principles 1. Absence of discretionary power in the hands of the governmental officials. By this Dicey implies that justice must be done through known principles. Discretion implies absence of rules, hence in every exercise of discretion there is room for arbitrariness. 2. No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of land. In this sense, the rule of law implies: a) Absence of special privileges for a government official or any other person b) all the persons irrespective of status must be subjected to the ordinary courts of the land. c) Everyone should be governed by the law passed by the ordinary legislative organs of the state. 3. The rights of the people must flow from the customs and traditions of the people recognized by the courts in the administration of justice

Diceys thesis has its own advantage and merits. The doctrine of rule of law proved to be effective and powerful weapon in keeping administrative authorities within their limits16. It served as a touchstone to test all administrative actions. The broad principle of rule of law was accepted by almost all legal systems as a constitutional safeguard.17 The first principle (Supremacy of law) recognizes a cardinal rule of democracy that every government must be subject to law and not law subject to the government. It rightly opposed arbitrary and unfettered discretion to the governmental authorities, which has tendency to interfere with rights of citizens. The second principle (equality of law) is equally important in a system wedded to democratic polity. It is based on the well known maxim however high you may be, law is above you and all are equal before the law The third principle puts emphasis on the role of judiciary in enforcing individual rights and personal freedoms irrespective of their inclusion in a written constitution.18 Dicey feared that mere declaration of such rights in any statute would be futile if they could not be enforced.19 He was right when he

16 17

CECILL CARR, Conquering English Administrative Law (1941); Yusuf Khan vs Manohar Joshi 1999 SCC (Cri) 577; 18 Ibid pg 598; 19 Ibid;


said that a statute can be amended and fundamental rights can be abrogated.20 We have witnessed such a situation during emergency in 1975 and realized that in absence of strong and powerful judiciary, written constitution is meaningless. Dicey never spoke of equality under the rule of law as rigid. He was not blind to inequalities glaring inequalities in the British legal system, not to the contradictions involved in the supremacy of the parliament and the guarantees of equality of all classes to the ordinary law administered by the courts. 21 His dislike of the French system of administrative tribunals was the most vulnerable in his enunciation. Diceys antagonism was based on his supposition that law meant fixed rules, and administration involved exercise of discretion not controlled or guided by rules. His dislike of exercise of discretionary authority, if literally understood, may appear illogical, for in every decision, judicial or administrative, there is vast field of discretion.22 Administration of justice is not a mechanical process inexorably leading to a set result from a given set of facts. It involves a large area of discretion. It would be a perversion of true quality of justice to attribute to the adjudicator or

20 21

Supra Note (2); Ibid; 22 Ibid;


judge of a mechanical approach.23 There is again no reason to suppose that an administrative authority exercising power vested by law does not do justice merely because have has discretion in formulating his line of action. Dicey contrasted law with administrative action and discretion, and asserted that Rule of law means absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, the existence of arbitrariness, of prerogative or of wide discretionary authority of the government.24 Even in those days discretion as they exercised it now. But what Dicey probably criticized was exercise of discretionary powers not supported by law. He was not wrong in asserting that in Britain the court was not powerless to grant relief, in respect of affairs and disputes in which the government and its servants were concerned, but in France the administrative tribunal alone could grant relief. DEVELOPMENT OF RULE OF LAW IN INDIA The rule of law in India has been a platform for all Administrative Action and judicial review. Supreme Court has propounded the idea in many cases like Bachan Singh v. State of Punjab25 and A.D.M Jabalpur26. A significant

23 24

GRIFFITH & STREET, Principles of Administrative Law, 2(1973) Pg 110; KETTON , The Passing Of Parliament, 56-63 (1954); 25 AIR1982 SC 1325, para 9; 26 AIR 1976 SC 1207,para 220;


derivative of Rule of Law in Administrative Law is Judicial Review. Judicial review is very important part of Indian Administrative system where it is considered as part of Basic Structure Doctrine. The process of judicial review keeps the unreasonable and arbitrariness under control. The absence of arbitrary power is first essential rule of law on which whole Constitutional structure is based.27 In the case of Golaknath v. State of Punjab28 it was held that rule of law under the constitution serves the needs of people without undoubtedly infringing their rights. It recognisessocial reality and adjust to social requirement as required time to time. In A.K. Kraipak v. Union of India29 it was held that under our constitution the rule of law pervades over entire field of administration and every organ of the state is regulated by the rule of law accepted by our Constitution. In State of Punjab v. Khanchand30 it was held that rule of law require that any power of officer is subject to power of Court. In the case of Zahira Habibullah v. State of Gujrat31 it was held that the rule of law win administration is closely related to human rights protection.

27 28

Jaisinghani v. union of india, AIR1967 SC 1643; AIR 1967 SC 1836; 29 AIR 1970 SC 150; 30 AIR 1974 SC 543; 31 AIR 2004 SC 3114;


The binding nature of judgment of court is considered to be essential part of rule of law.32 CRITICISM Diceys first principle (supremacy of regular law as opposed to the influence of arbitrary power) has been seriously challenged, due to the proposition that the rule of law excludes even wide discretionary authority by the government. The modern government depends on many discretionary powers granted to the executive by the large numbers of statutes annually passed by parliament or other legislature. It seems that Diceys theory may be interpreted to reject the thousands of rules in our society made through the discretion of delegated authorities. This first principle also cancel out the fact that, as a matter of essential competence, many present day statutes allow police the power to detain people for a short period of time due only to a reasonable suspicion. Ivor Jennings has also indicated that arbitrary power may be increased in national emergencies, such as war. This was reflected in the drastic powers given to the English government by the Defense of the Realm Act in 1914. Diceys second meaning stresses the equal subjection of all persons to the ordinary law.33 What a constitutional guarantee of equality before law may


Darayo vs State of UP, AIR 1967 Sc 1457;


achieve is to enable legislation to be invalidated which discriminates between citizens on grounds that are considered irrelevant, unacceptable or offensive. These views of Dicey long impeded the proper understanding of administrative law, but today the need for such law in a democracy cannot be denied. Administrative courts as they may exist protect the individual against unlawful acts by public bodies.34 Diceys second principle (equality before the ordinary law of the land) may also be challenged in todays law. Although it is true that public officials who commit crimes or torts are liable before the ordinary courts (except for circumstances of non-justifiability, such as in The Church of Scientology v Woodward, it is not true that those public officials and private citizens have the same rights, and are thus equal. A tax investigator, for example, has powers which the taxpayer does not possess.35 Furthermore, members of the police force may be able to exercise considerably more lawful power over members of society than the average citizen lawfully could.36


SAM KALEN, The transformation of Modern Administrative Law: Changing Administrations and Environmental Guiodence Documents, Regents of University of California, 2008; 34 M.P. JAIN AND S.P. JAIN, Principles of Administrtive Law, Wadhwa Nagpur, 5th Ed., 2007; 35 ARD A EPSTEIN, Why the Modern Administrative Law is inconsistent with Rule of Law, NYU Journal of Law and Liberty, 2008; 36 PILAR DOMINGO, Why Rule of Law Matters for Development, Overseas Development Institute, May, 2009;


The principle of equality before the law has raised significant problems for the rule of law. It would be unjust if the law failed to account for social difference and disadvantage, and simply presumed that everyone was equal and should be treated equally. This led Hayek to attempt to adapt the rule of law in a manner that Joseph Raz thought created exaggerated expectations for it . Hayek stated: The requirement that the rules of true law be general does not mean that sometimes special rules may not apply to different classes of people if they refer to properties that only some people possess... Such distinctions will not be arbitrary; will not subject one group to the will of others, if they are equally recognized as justified by those inside and those outside the group . This statement lead Raz to allege it was a guarantee of freedom and a slippery slope leading to the identification of the rule of law with the rule of good law.37 Diceys third meaning of the rule of law expressed a strong preference for the principles of common law declared by the judges as the basis of the citizens rights and liberties. Dicey had in mind the fundamental political freedomsfreedom of the person, freedom of speech, freedom of association. Today it is difficult to share Diceys faith in common law as the primary legal means of


PETER CANE, An Introduction to Administrative law, Clarendon Press, Oxford, 3rd Ed.


protecting the citizens liberties against the state. First, fundamental liberties at common law may be eroded by Parliament and thus acquire a residual character. Secondly, the common law does not assure the citizens economic and social well-being. Third, while it remains essential that legal remedies are effective, there is value in a declaration of the individuals basic rights and in creating judicial procedures for protecting those rights. Diceyan theory may be further criticized due to his perception of the sovereignty of Parliament and the supremacy of the rule of (ordinary) law. Keith Mason has pointed out that Australian parliaments may be supreme, but they are not sovereign. The rule of law affirms parliaments supremacy while at the same time denying it sovereignty over the Constitution. Criticisms of Diceyan theory have lead to different formulations of the rule of law; but Diceys formulation still reflects some of the fundamental principles of the rule of law. In following his formulation some commentators prefer the narrow term government under law rather than rule of law. However some commentators prefer to formulate the rule of law, not as an actual rule of law in itself, but as a statement o f constitutional and juridical principle, a juristic reserve, an idea of a profound legality superior, and possibly anterior, to positive law. It is not easy to define with precision, because in part it manifests itself more as an absence than a presence, rather like those other great negatives, peace and freedom.

The rule of law is central theme to all democratic and civilized society of this world. The concept forms the basic framework of all legal system. It is one of the tools by which the unfettered power of executive is kept under control through supremacy of Courts. Though the rule derives from common law system, particularly from Dicey and it met terrible opposition due to other option of much efficient system of Droit Administratif, it still forms the backbone of all civilized legal system of world. The rule of law and supremacy therein, however, shouldnt be the only principle engraved in a legal system. This further becomes true when the legal system has large domain of implementation and further when there are expertise require in various domain for the several issues. In conclusion, a fine system and a well homogenized solution of rule of law and Droit Administratif is the most optimum solution for the efficient dispute resolution system. The two systems shouldnt be staged inferior to one another and basic constitutional principles must be followed for the most optimum solution.


KRISTY J HOOD, Conflicts of Law within The U.K, Oxford University Press, 2007; P.P. CRAIG, Administrative Law, Thompson Sweet and Maxwell, South Asian Edition, 5th Ed., 2003; PETER CANE, An Introduction to Administrative law, Clarendon Press, Oxford, 3rd Ed. S.P. SATHE, Administrative Law, Lexis Nexis Butterworths, 7th Ed.; M.P. JAIN AND S.P. JAIN, Principles of Administrtive Law, Wadhwa Nagpur, 5th Ed., 2007;

PROFESSOR DICEY, Professor Dicey, Journal of Society of Comparative Legislation, New Vol. University Press, 1917; SAM KALEN, The transformation of Modern Administrative Law: Changing Administrations and Environmental Guiodence Documents, Regents of University of California, 2008; Vol 17. No. , Cambridge


PROFESSOR DICEY, Conflict of Laws, The Modern law Review, Vol 25, No. 3, May, 1962; PROFESSOR DICEY, Speech of Professor Dicey at Liberal Unionist Meeting, University of Bristol Library; RICHARD A EPSTEIN, Why the Modern Administrative Law is inconsistent with Rule of Law, NYU Journal of Law and Liberty, 2008; PILAR DOMINGO, Why Rule of Law Matters for Development, Overseas Development Institute, May, 2009;