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Conceptual Objections against the Growth of Administrative law
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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
trend.
In SHEELA BARSE v. STATE OF MAHARASHTRA:
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
prisoners.
In STATE OF M.P. v. RAMSHANKER RAGHUVANSHI:
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
person;
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.
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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
personality.
In VEENA SETHI v. STATE OF BIHAR:
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.
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Conceptual Objections against the Growth of Administrative law
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Conceptual Objections against the Growth of Administrative law
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