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Conceptual Objections against the Growth of Administrative law

Concept of Rule of Law

 The weapon which the people in England used to strike at the growth of
administrative law was Dicey’s formulation of the concept of rule of law.
 ‘Rule of law’ is the supreme manifestation of human civilization and culture and is a
new lingua franca of the global moral thought. It is an eternal value of
constitutionalism and an inherent attribute of democracy and good governance.
 ‘Rule of law’ is to be understood neither as a ‘rule’ nor a ‘law’. It is generally
understood as a doctrine of ‘State of political morality’ which concentrates on the rule
of law in securing a ‘correct balance’ between ‘right’ and ‘power’, between
individuals and the state in any free and civil society.
 This balance may be drawn by ‘law’ based on freedom, justice, equality, and
accountability. Therefore, it infuses law with moral qualities. Thus, the rule of law is a
‘law of rules/principles.
 The term ‘rule of law’ is derived from the French Phrase LA PRINCIPE DE
LEGALITE (the principle of legality) which refers to a government based on
principles of law and not of me.
 Aristotle (384-322 BC) made a difference between procedural justice and moral
justice. Tule of law can be located in moral justice.
 Hobbes, Locke, Rousseau located it in secular traditions of ‘social contract’ in which
a state is formed only to protect the life, liberty and dignity of the individual. Dicey
located it is right-based liberalism and judicial review.
 Nevertheless, Edward Coke is said to be the originator of this concept when he
asserted that king must be under God and law and, thus, vindicated the supremacy of
law over pretensions of the executive.
 James M. Buchanan- According to him,
o Generality is at the centre of rule of law, besides fairness, prospectivity and
due process.
o Generality as an ingredient of law forecloses many majoritarian options, but
classification is still possible provided it is reasonable and in public interest.
Generality, as a normative principle of rule of law, makes law more acceptable
and there are less chances of oppression and discrimination. Generality
provides for more liberty and freedom for action and protects HR of the
 If put in perspective, ‘rule of law’ mandates that power must be made accountable,
governance progressively just and equal, and state incrementally ethical.
 In India, the concept of the rule of law can be traced to the Upanishads. It provides:
‘law is the king of kings’. It is more powerful and rigid than they (kings)’.
 In a democracy, the concept has assumed different dimensions and means that the
holders of public powers must be able to justify publicly that the exercise of power is
legally valid and socially just.

Conceptual Objections against the Growth of Administrative law

 A. V. Dicey, according to him, wherever there is discretion, there is room for

 The term rule of law is used in contradistinction to ‘rule of man’ and ‘rule according
to law’.
 Rule of law means that the law rules, which is based on the principles of freedom,
equality, non-discrimination, fraternity, accountability, non-arbitrariness, and is
certain, regular and predictable, using the word ‘law’ in the sense of ‘jus’ and ‘lex’
o An attempt was made to challenge the detention order during the Emergency
on the ground that it violates the principles of rule of law as the ‘obligation to
act in accordance with the rule of law.... is a central feature of out
constitutional system and is a basic feature of the constitution’.
o Though the contention did not succeed and some justices seven went on to
suggest that during an emergency, the emergency provisions themselves
constitute the rule of law, yet if the reasoning of all the five opinions is closely
read, it become clear that the contention was accepted, no matter it did not
reflect in the final order passed by the court.
o The rule of law was considered as an ‘aspect of doctrine of basic structure of
the constitution, which even the plenary power of the parliament cannot reach
to amend’.
o The SC invalidated clause (4) of Article 329-A inserted in the Constitution by
the constitution (39th amendment) Act, 1975 to immunise the election dispute
to the office of the PM from any kind of judicial review, KANNA and
CHANDRACHUD JJ held that Art. 329A violated the concept of basic
o Other justices though did not go to this extent but certainly held that Art. 329-
A, clause (4) offends the concept of rule of law.
o RAJ CJ held that since the validation of the PM’s election was not by applying
any law, there it offended the rule of law.
o BEG J observed that the jurisdiction of the SC to try a case on merits cannot
be taken away without injury to the basic postulates of the rule of law and of
justice within a politically democratic constitutional structure.
o That the absence of arbitrary power is the first postulate of the rule of law
upon which whole constitutional edifice is based. If the discretion is exercise
without any principle of without any rule, it is a situation amounting to the
antithesis of the rule of law.
 These various negative and affirmative facets have been summarised by Prof.
o One is that power should not be exercise arbitrarily.

Conceptual Objections against the Growth of Administrative law

 It is heartening to see that the courts are making all concerted efforts to establish a
rule-of- society in India by insisting on ‘fairness’ in every aspect of the exercise of
power by the state. Some of the recent decisions of the SC are clear indicators of this
o The court insisted on ‘fairness’ to women in police lock-up and drafted a code
of guideline for the protection of prisoners in police custody, especially female
o The court secured ‘fairness’ in public employment by holding that reliance on
police reports is entirely misplaced in a democratic republic.
 The term of rule of law can be used in two senses:
o Formalistic sense,
 If used in formalistic sense, it refers to organised power as opposed to
a rule by one man
o Ideological sense,
 If used in ideological sense, it refers to the regulation of the
relationship of the citizens and the government and in this sense; it
becomes a concepts of varied interest and contents.
 In its ideological sense, the concept of rule of law represents an ethical code for the
exercise of public power in any country. Its basic postulates are universal covering all
space and time. These postulates include equality, freedom and accountability,
 The basic idea behind ‘accountability’ is that the rulers rule with the deference of the
people, and therefore, must be accountable to them in the ultimate analysis.
 Dicey’s formulation of the concept of ‘rule of law’, which according to him forms the
basis of the English constitutional law, contains three principles:
o Absence of discretionary power in the hands of the government officials.
Discretion implies absence of rules, hence in every exercise of discretion there
is room for arbitrariness.
o 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 the land. In this sense, the rule of law implies-
 Absence of special privileges for a government official or any other
 All the persons irrespective of status must be subjected to the ordinary
courts of the land;
 Everyone should be governed by the law passed by the ordinary
legislative organ of the state.
o The rights of the people must flow from the customs and traditions of the
people recognised by the courts in the administration of justice.
 Administrative law and the rule of law are not discrete series. Both aim at the
‘progressive diminution of arbitrariness and fostering a discipline of fairness and
openness in the exercise of public power.

Conceptual Objections against the Growth of Administrative law

 The modern concept of the rule of law is fairly wide and, therefore, sets up an ideal
for any government to achieve. This concept was developed by the International
Commission of Jurists, known as Delhi Declaration, 1959, which was later on
confirmed at Lagos in 1961.
o According to this formulation, the rule of law implies that the functions of the
government in a free society should be so exercised as to create conditions in
which the dignity of man as an individual is upheld.
o This dignity requires not only the recognition of certain civil or political rights
but also creation of certain political, social, economical, educational and
cultural conditions which are essential to the full development of his
o The SC extended the reach of the rule of law to the poor and the downtrodden,
the ignorant and the literate, who constitute the bulk of humanity in India,
when it ruled that the rule of law does not exist merely for those how have the
means to fight for their rights and very often do so for the perpetuation of the
status quo, which protects and preserves their dominance and permits them to
exploit a large section of the community.
 The commission divided itself into certain working groups which tried to give content
to the concept in relation to an individual’s area of activity in a society:
o Committee on Individual Liberty and the Rule of Law, which lays down:
 That the state should not pass discriminatory laws;
 That the state should not interfere with religious beliefs;
 That the state should not place undue restrictions on freedoms;
o Committee on Government and the Rule of law:
 Under this the rule of law means not only the adequate safeguards
against abuse of power but effective government capable of
maintaining law and order.
o Committee on Criminal administration and the rule of law:
 Rule of law here means
 due criminal process;
 no arrest without the authority of law
 presumption of innocence;
 legal aid;
 public trial and fair hearing;
o committee on judicial process and the rule of law
 under this the rule of law means
 independent judiciary;
 independent legal profession
 Standard of professional ethics.

Conceptual Objections against the Growth of Administrative law

Doctrine of Separation of Powers

 Though the doctrine is traceable to Aristotle, but the writings of Locke and
Montesquieu gave it a base on which modern attempts to distinguish between
legislative, executive and judicial power is grounded.
 Locke distinguished between what he called
o Discontinuous legislative power
 Included the general rule making power called into action from time to
time and not continuously
o Continuous executive power, and
 Included all those powers which we now call by executive and judicial.
o Federative power
 He meant the power of conducting foreign affairs.
 Montesquieu division of power included a general legislative power and two
executive power; an executive power in the nature of Locke’s federative power, and a
civil law executive power including executive and judicial power.
 BRANDEIS J scientifically explained the purpose of this doctrine when he said that
the purpose of the separation of powers doctrine is not to promote efficiency in the
administration of powers doctrine is not to promote efficiency in the administration
but to preclude the exercise of arbitrary power.
 The doctrine of SOP is based on four different principles-
o Exclusivity principle:
 Which suggests structural division in all the three organs of the state,
as it is in the US
o Functional principle
 This prohibits amalgamation and usurpation but not interaction of the
organs of state.
o Check and balance principle:
 Meaning, thereby, that each organ of state may check the other to keep
it within constitutional bounds.
o Mutuality principle:
 Aims at creating concord not discord, cooperation not confrontation,
engagement not estrangement amongst different organs of the state to
create a society of constitutional image, which is free, equalitarian,
inclusive and rule of law society
 This doctrine can be further used in two senses:
o Negative sense, in which this doctrine put limits on the exercise of power by
each organ of state; and
o Positive sense, in which it not only demarcates limits but also defines the
minimum contents of power within those limits which a court can enforce to
achieve constitutional values.

Conceptual Objections against the Growth of Administrative law

 The theory of separation of powers signifies three formulations of structural

classification of governmental powers:
o The same person should not form part of more than one of the three organs of
the government.
o One organ of the government should not interfere with any other organ of the
o One organ of the government should not exercise the functions assigned to any
to other organ.
 In India, the doctrine of SOP has not been accorded a constitutional status. Apart from
the DPSP laid down in Art. 50 which enjoin separation of judiciary from executive,
the constitutional scheme does not embody any formalistic and dogmatic division of
o Indian Constitution has not indeed recognised the doctrine of SOP in its
absolute rigidity but the functions of different parts or branches of the
government have been sufficiently differentiated and consequently it can very
well be said that out constitution does not contemplate assumption, by one
organ or part of the state, of functions that essentially belong to another.
o BEJ J said
 That SOP is a part of the basic structure of the constitution. None of
the three separate organs of the Republic can take over the functions
assigned to the other. This scheme of the constitution cannot be
changed even by resorting to Art. 368 of the constitution.