rule of law

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LEGAL

METHODS

PROJECT

Submitted by:

MANSI KHANNA

3RD

Semester, 2nd

Year

Rule of Law


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It is my imperative duty to thank the following people for the successful

completion of my Legal Methods project,

- Professor Eqbal Husain for the clarity he brings into teaching

thus enabling us to have a better understanding of his subject. I

also feel obliged to thank him for providing us with such easy

topics to choose from.- The very cooperative and friendly staff members in the Central and

Law Library who were instrumental in our finding the necessary

books without wasting much time. It has to be noted that their

contribution is essential as our University is yet to get a fully

functional centralized database for its library.

Mansi Khanna

3rd Semester, 2nd Year


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Introduction

Ar istotle said more than two thousand years ago, " The rule of l aw is better than that of any

individual.

The notion of the rule of law stems from many traditions and continents and is intertwined

with the evolution of the history of law itself. The Code of Hammourabi, promulgated by the

King of Babylon around 1760 BC, is one of the first examples of the codification of law,

presented to the public and applying to the acts of the ruler. In the Arab world, a rich tradition of

Islamic law embraced the notion of the supremacy of law. Core principles of holding

government authority to account and placing the wishes of the populace before the rulers, can be

found amid the main moral and philosophical traditions across the Asian continent, including in

Confucianism. In the Anglo-American context, the Magna Carta of 1215 was a seminal

document, emphasizing the importance of the independence of the judiciary and the role of

judicial process as fundamental characteristics of the rule of law. In continental Europe notions

of rule of law focused on the nature of the State, particularly on the role of constitutionalism.

The term 'rule of law' is not used in the Indian Constitution anywhere. The term is though used

frequently by the Indian courts in their judgments. For instance, an online search of the Supreme

Court's reportable judgments delivered between 1 January 1950 and 1 January 2010 resulted in

1,299 hits of the term 'rule of law'.

COMMENT:

There is no doubt that the rule of law pervades the Constitution as an underlying principle. In

fact, the Supreme Court has declared the rule of law to be one of the 'basic features' of the

Constitution.1So this principle cannot be taken away even by a constitutional amendment.

As this Country Report will outline, the Indian conception of the rule of law is both formal and

substantive. It is also seen as an integral part of good governance. Questions are though raised as

to the extent to which the constitutional promise of the rule of law matches with actual situation

in India.

1(Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2295; SP Gupta v Union of India, AIR 1982 SC 149)


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The rule of law is often stated to be one of the fundamental doctrines of the UK as well as

Indias Constitution

The Rule of Law has been one of the most popular theory employed by Western political & legal

thinkers in the last two decades of the twentieth century that followed the long post- war period.

The expression 'Rule of Law' has been derived from the

French phr ase ' la pri nciple de legalite', i.e. a Government based on the principles of law. In

simple terms a state in the administration of justice. The Rule of law, according to Gamer, is

often used simply to describe the state le words, the term 'rule of law' indicates the state of affairs

in a country where, in main, the law rules. Law may be taken to mean mainly a rule or principle

which governs the external actions of the human beings and which is recognized and application

of affairs in a country where, in main, the law is observed and order is kept. It is an expression

synonymous with law and order. Though it had its significance since early 17th

century. The

Ancient Greek philosophers such as Plato and Aristotle discussed it around 350 BC. Platowrote:

Where the law is subject to some other authority and has none of its own, the collapse of the

state, in my view, is not far off; but if law is the master of the government and the government is

its slave, then the situation is full of promise and men enjoy all the blessings that the gods

shower on a state. Likewise, Aristotlealso endorsed the concept of Rule of law by writing that

"law should govern and those in powers should be servants of the laws.

COMMENT:

In this project, I focus on three broad aspects of the rule of law. First, the rule of law as a check

on governmental powers, including by requiring that laws are clear, predictable, and

prospective. Second, the rule of law as an embodiment of protecting people's human rights.

Among others, this will entail a guarantee for equal treatment. Third, judicial review of

legislative and executive actions by an independent judiciary. In a way, the last two aspects

complement the first aspect in that they limit the power of governmental agencies.


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Concept of Rule of Law

The rule of law is a legal maxim that provides that no person is above the law, that no one can be

punished by the state except for a breach of the law, and that no one can be convicted of

breaching the law except in the manner set forth by the law itself. The rule of law stands in

contrast to the idea that the leader is above the law, a feature of Roman law, Nazi law, and

certain other legal systems. The phrase has been used since the 17th century, but the concept is

older. The rule follows logically from the idea that truth, and therefore law, is based upon

fundamental principles which can be discovered, but which cannot be created through an act of

will. Rule of Law is a principle of general evolution in democratic societies, and is not the

individual product of any state or society. The principle is intended to be a safeguard against

arbitrary governance, whether by a totalitarian leader or by mob rule.

Thus, the rule of law is hostile both to dictatorship and to anarchy.

COMMENT:

A basic tenet of the Rule of Law is: However high you may be, the law is above you. You may be

the Prime Minister or the Speaker or the Imam or the Archbishop or a judge or the

Sankaracharya or whoever, all are equally subject to the law. That imparts the element of non-

discrimination in the concept of the Rule of Law.

It is important not to confuse Rule of Law with rule by law. The existence of a law is necessary

but that is not sufficient. The law must have a certain core component which guarantees the basic

human rights and the human dignity of every person. Nazi Germany put Jews in concentration

camps and thereafter sent them to the gas chambers. The justification offered was that there was

a law which empowered such acts to be done. But that was rule by law, not Rule of Law. During

the apartheid regime in South Africa, repressive and racially discriminatory laws against the black

majority were sought to be justified on the basis of enacted laws. It is a heresy that mere

existence of a law would permit gross violation of human rights at the altar of the Rule of Law.


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Basic Principles of the Rule of Law

Following can be inferred as a few basic principles of rule of law:

Law is Supreme, above everything and everyone & nobody is above law.

All things should be done according to law and not according to whim

No person should be made to suffer except for a distinct breach of law.

Absence of arbitrary power being heartt and sole of rule of law

Equality before law and equal protection of law

Discretionary should be exercised within reasonable limits set by law

Adequate safeguard against executive abuse of powers

Independent and impartial Judiciary

Fair and Justice Procedure

Speedy Trial

Checks on Governmental Powers

The Indian Constitution establishes a limited government. Bring a federal country; both the

central and state legislatures have the power to make laws, but only subject to express and

implicit constitutional limitations. First of all, the constitution specifies and demarcates the

matters on which the central legislature and state legislatures could make law2. Any law that

breaches these limitations (e.g., a state law made on a matter within the exclusive competence of

the central legislature) could be declared unconstitutional by courts.3

Second, the power of executive to make laws by issuing Ordinances is limited - both in terms of

duration and situations triggering the exercise of such power (Arts 123 and 213). The executive,

2(Constitution of India, 1950, arts 246, 248-254 read with Schedule IX)

3(Medical and Educational Charitable Trust v State of Tamil Nadu (1996) 3 SCC 15)


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of course, cannot make a law on a matter on which the corresponding legislature lacks the

competence to legislate.4

Third, although the Indian Constitution - having established a parliamentary form of government

- does not follow any strict separation of powers5

, a system of checks and balances has been putin place. For instance, all the Bills passed by the Parliament require the President's assent to

become law (Art 111). The Parliament, on the other hand, has the power to impeach the

President for violating the Constitution (Art 61).

Fourth, the courts have held that any executive action without the support of a valid law will be

void, more so if it violated fundamental rights6. Similar to the position in many other

jurisdictions, laws cannot generally be retroactive, especially if they seek to impose any penalty

or punishment7

; the judiciary also does not treat vague laws or administrative guidelinesfavorably.

Fifth, in a multi-party democracy, the presence of a free press and the requirement of periodic

elections can be one of mechanisms against the abuse of governmental power. The Constitution

expressly limits the term of legislatures (Arts 83 and 172), and the freedom of speech and

expression under Article 19(1) (a) has been interpreted to include the freedom of press8.

In addition to these checks, the fundamental rights provisions and the power judicial review

provide effective means of checking the power of the legislature and executive. These two

aspects are discussed below.

Equality Guarantee and the Protection of Human Rights

Rule of Law is essential for the protection of human rights. The Universal Declaration of Human

Rights, 1948, the Magna Carta of Mankind, in its third Preamble mentions that human rights should

be protected by the Rule of Law. In its pathbreaking judgment in Keshavanand Bhartis case, our

4(Art 123(3) provides: 'If and so far as an Ordinance under this article makes any provision which Parliament would

not under this Constitution be competent to enact, it shall be void.')5(Article 50 though mandates to separate the judiciary from the executive.)

6(Kharak Singh v State of UP, AIR 1963 SC 1295; Bijoe Emmanuel v State of Kerala, AIR 1987 SC 748)

7(Art 20(1)

8(Express Nespapers v Union of India, AIR 1958 SC 58; Bennett Coleman v Union of India, AIR 1973 SC 106) .


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Supreme Court ruled that there are certain essential features of the Constitution which cannot be

amended by Parliament even if it possesses the requisite majority.

Establishing an egalitarian society was/is one of the main goals of the India Constitution. The

fundamental rights and the directive principles of state policy were the primary tools adopted to

achieve this goal. Part III of the Constitution entitled 'Fundamental Rights' comprises Articles 12

to 35 which lay down various rights, their limitations and remedies for their enforcement. The

rights range from the equality before the law to the freedom of speech and expression, the

protection against double jeopardy, the right to life and personal liberty, the freedom of religion,

prohibition of discrimination, and the protection against arrest and unlawful detention.It will be

useful to analyse a few rights in some detail in order to appreciate the rule of law in operation.

Article 14 prohibits the state from denying 'to any person equality before the law or the equal

protection of the laws'. The guiding principle of equality being that like should be treated alike

and that unlike should be treated differently, Article 14 permits reasonable classification. The

court has invalidated several laws under Article 14 because the classification was without a

difference9, or the basis of classification had no nexus to the object of the law

10, or the law

established special courts for trial of certain cases or types of cases without any reasonable

classification or guidelines11

, or the law singled out a person for giving a special or

discriminatory treatment12

More important, however, has been the judicial employment of Article 14 to develop a broad

principle of reasonableness.

In E P Royappa v State of Tami l Nadu, the Court said that 'Equality is a dynamic concept with

many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional

and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness'.13

9(K Kunhikoman v State of Kerala AIR 1962 SC 723)

10(P Rajendram v State of MadrasAIR 1968 SC 1012)

11(State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75; Northern India Caterers Ltd. v State of Punjab AIR 1967

SC 1581)12

(Ameernnisa Begum v Mehboob Begum AIR 1952 SC 91; Ram Prasad v State of Bihar AIR 1953 SC 215) .13

((1974) 4 SCC 3, 38)


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Later on, the Supreme Court in Maneka Gandhi v Union of I ndiaobserved that 'Article 14

strikes at arbitrariness in state action and ensures fairness and equality of treatment. The

principle of reasonableness, which logically as well as philosophically, is an essential element of

equality or non-arbitrariness pervades Article 14 like a brooding omnipresence'.14

Therefore,

allegation of discrimination vis--vis others is no longer sine qua non for attracting Article 1415

and the Court would strike down any arbitrary executive or legislative action unconstitutional as

ipso facto violating Article 1416

.

Another interesting fundamental right has been Article 21, which lays down that 'no person shall

be deprived of his life or personal liberty except according to the procedure established by law.'

This provision has proved to be a residuary repository of many fundamental rights. 'Life' in this

article has been interpreted by the courts to mean more than mere physical existence17

; it

'includes right to live with human dignity and all that goes along with it'18

.

Ever-widening horizon of Article 21 is illustrated by the fact that the Court has, inter alia, read

into it the right to

health19

,

livelihood20,

free and compulsory education up to the age of 14 years21,

unpolluted environment22,

14((1978) 1 SCC 248, 284, R D Shetty v International Airport Authority AIR 1979 SC 1628; Ajay Hasia v Khalid Mujib

AIR 1981 SC 487).15

(A L Kalra v Project &Equipment Corporation(1984) 3 SCC 316, 328)16

(Mithu v State of Punjab AIR 1983 SC 473; Central Inland Water Corporation v B N Ganguly (1986) 3 SCC 156; DTC

v DTC Mazdoor Congress AIR 1991 SC 101; Common Cause v Union of India (1996) 6 SCC 530; Shivsagar Tiwari v

Union of India (1996) 6 SCC 558.).

17Kharak Singh v State of UP AIR 1963 SC 1295; Sunil Batra v De lhi Administration (1978) 4 SCC 494; Olga Tellis v

Bombay Municipal Corporation AIR 1986 SC 180; Francis Coralie v Union Territory of Delhi AIR 1981 SC 746;

Bandhua Mukti Morcha v Union of India AIR 1984 SC 802; Consumer Education & Research Centre v Union of India

(1995) 3 SCC 42; Bodhisattwa Gautam v Subhra Chakraborty (1996) 1 SCC 490; Visakha v State of Rajasthan AIR

1997 SC 3011. In some of these cases the Court has relied upon the observation of Justice Field in Munn v Illinois 94

US 113)18

(Francis Coralie v Union Territory of Delhi, AIR 1981 SC 746, 75319

(Parmanand Kataria v Union of India AIR 1989 SC 2039; Paschim Banga Khet Mazdoor Samity v State of West

Bengal (1996) 4 SCC 37)20

(Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180; DTC Corporation v DTC Mazdoor Congress AIR

1991 SC 101)21

(Unni Krishnan v State of AP (1993) 1 SCC 645)


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shelter23,

clean drinking water24

,

privacy25,

legal aid26,

speedy trial27, and

various rights of under-trials, convicts and prisoners28

Another innovative use of this provision has been in reaching violation of right to life and

personal liberty by even private persons29

, and to grant compensation for violation of

fundamental rights30

. It should also be noted that although the constitution framers had expressly

rejected the due process requirement in Article 21, the Supreme Court introduced this guarantee

by judicial interpretation31

. Furthermore, by a joint reading of Articles 14 and 21, the courts havebasically developed a substantive model of rule of law - any law or executive action which is not

'just, fair and reasonable' could be declared unconstitutional (Singh 2008:201-04). The Courts,

for example, invalidated a penal provision prescribing the mandatory death sentence for murder

committed by a life convict32

.

22(Indian Council for Enviro Legal Action v Union of India (1996) 3 SCC 212; M C Mehta v Union of India (1996) 6 SCC750; Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647; Narmada Bachao Andolan v Union of India

(2000) 10 SCC 664)23

(Gauri Shankar v Union of India (1994) 6 SCC 349)24

(A P Pollution Control Board II v M V Nayudu (2001) 2 SCC 62) 25

(Kharak Singh v State of UP AIR 1963 SC 1295; Govind v State of MP AIR 1975 SC 1378; R Raj Gopal v State of

Tamil Nadu (1994) 6 SCC 632; PUCL v Union of India AIR 1997 SC 568; 'X' v Hospital Z (1998) 8 SCC 296)26

(M H Hoskot v State of Maharashtra AIR 1978 SC 1548; Hussainara Khatoon v State of Bihar AIR 1979 SC 1369;

Khatri v State of Bihar AIR 1981 SC 928; Suk Das v Union Territory of Arunachal Pradesh AIR 1986 SC 991) 27

(Hussainara Khatoon (I) to (VI) v Home Secretary, Bihar (1980) 1 SCC 81, 91, 93, 98, 108 and 115; Kadra Pahadiya

v State of Bihar AIR 1982 SC 1167; Common Cause v Union of India (1996) 4 SCC 33 and(1996) 6 SCC 775; Rajdeo

Sharma v State of Bihar (1998) 7 SCC 507 and (1999) 7 SCC 604) 28

(Sunil Batra v Delhi Administration AIR 1978 SC 1675; Prem Shankar v Delhi Administration AIR 1980 SC 1535;

Munna v State of UP AIR 1982 SC 806; Sheela Barse v Union of India AIR 1986 SC 1773) .29

M C Mehta v Union of India (1987) 1 SCC 395; Consumer Education & Research Centre v.Union of India (1995) 3

SCC 42; Kirloskar Brothers Ltd. v ESIC (1996) 2 SCC 682; Bodhisattwa Gautam v Subra Chakraborty AIR 1996 SC 922;

Vishaka v State of Rajasthan AIR 1997 SC 3011; 'X' v Hospital 'Z' (1998) 8 SCC 296; M C Mehta v Kamal Nath AIR

2000 SC 1997.)30

(Rudul Sah v State of Bihar (1983) 4 SCC 141; Bhim Singh v State of J & K (1985) 4 SCC 677; Nilabati Behra v State

of Orissa (1993) 2 SCC 746).31

(Maneka Gandhi v Union of India, AIR 1978 SC 97) 32

(Mithu v State Punjab, AIR 1983 SC 473) .


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More recently, the Delhi High Court ruled that Section 377 of the Indian Penal Code 'insofar it

criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of

the Constitution'33

.

Judicial Review by an Independent Judiciary

The power of an independent judiciary to review the decisions of the other two organs of the

government is considered an integral aspect of the rule of law and the Indian Constitution does

everything possible to put in place this mechanism. Judges of the Supreme Court and the High

Courts are appointed by the President in 'consultation' with relevant judges of these courts (Arts

124(2) and 217). Subsequent to the decision in Supreme Court Advocates on Record Association

vUnion of India (4 SCC 441 (1993).I n r e, Presidential Reference, AI R 1999 SC1), judges of

the higher judiciary are in essence appointed by the judiciary itself (Singh/ Deva 2005: 673-74.).

Detailed provisions have also been made to provide judges security of tenure (Arts 124 and 218),

and protect their salaries, allowances and privileges. (Arts 125 and 221) Legislative bodies are

barred from debating the conduct of judges unless dealing with impeachment motions (Arts 121

and 211). In fact, on a closer look, it seems that the Indian judiciary has become over-

independent in that there are not many checks on its powers and the functioning/conduct of

judges. The judiciary, for instance, resists any attempt to introduce accountability measures and

impeaching judges so far has proved to be an almost impossible even in suitable cases.

Although the power of judicial review does not require an express recognition in a constitutional

text, Article 13(2) of the Indian Constitution provides such recognition by laying down that the

state 'shall not make any law which takes away or abridges' the fundamental rights. The remedy

to approach the Supreme Court for violation of fundamental rights under Article 32 is in itself a

fundamental right. (A similar - in fact wider - power is vested with the High Courts under Article

226.)The Court has widened the scope of this power over the years by (1) implying many new

rights within the ambit of Article 21; (2) chartering the course of public interest litigation as a

tool of deepening justice to the masses; (3) declaring judicial review a 'basic feature' of the

33(Naz Foundation v Government of Delhi,WP(C) No.7455/2001 (2 July 2009), para 132).


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Constitution and thus putting this beyond the Parliament's amendment power; and (4) conferring

on itself the power to review the validity of even constitutional amendments.

India

The doctrine of Rule of Law has been adopted in Indian Constitution. The ideals of the

Constitution, justice, liberty & equality are enshrined in the preamble. The Constitution of India

has been made the supreme law of the country and other laws are required to be in conformity

with the Constitution. Any law which is found in violation of any provision of the Constitution is

declared invalid. Part III of the Constitution of India guarantees the Fundamental Rights. Article

13(l) of the

Constitution makes it clear that all laws in force in the territory of India immediately before the

commencement of the Constitution, in so far as they are inconsistent with the provision of Part

III dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be void.

Article 13(2) provides that the State should not make any law which takes away or abridges the

fundamental rights and any law made in contravention of this clause shall, to the extent of the

contravention, be void. The Constitution guarantees equality before law and equal protection of

laws. Article 21 guarantees right to life and personal liberty. It provides that no person shall be

deprived of his life or personal liberty except according to the procedure established by law.

Article 19 (1) (a) guarantees the third principle of rule of law embodies right of freedom of

speech & expression. Article 19 guarantees six Fundamental Freedoms to the citizens of India --

freedom of speech and expression, freedom of assembly, freedom to form associations or unions,

freedom to live in any part of the territory of India and freedom of profession, occupation, trade

or business. The right to these freedoms is not absolute, but subject to the reasonable restrictions

which may be imposed by the State.

Article 20(1) provides that no person shall he convicted of any offence except for violation of a

law in force at the time of the commission of the act charged as an offence not be subject to a

penalty greater than that which might have been inflicted tinder the law in for cc at the time of

the commission of the offence. According to Article 20(2), no person shall be prosecuted and

punished for the same offence more than once. Article 20(3) makes it clear that no person

accused of the offence shall be compelled to be witness against himself. In India, Constitution is


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supreme and the three organs of the Government viz. Legislature, Executive and judiciary are

subordinate to it. The Constitution provided for encroachment of one organ i.e.: Judiciary upon

another the Legislature if its action is mala fide, as the citizen i.e. an individual can challenge

under Article 32 of the Constitution.

In India, the meaning of rule of law has been much expanded. It is regarded as a part of the basic

structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by

Parliament. It is also regarded as a part of natural justice.

According to Dicey, the Rule of Law, as he formulated it, was a principle of the English

Constitution. The preface to the first edition says that the book deals with only two or three

guiding principles which pervade the modern Constitution of England, and the book shows that

the Rule of Law is one such principle. This is important, for the modern version of that rule does

not assert that it is a principle of the English Constitution, but that the rule is an ideal by

reference to which that Constitution must be judged.

Dicey said:

It means, in the first place, the absolute supremacy or predominance of regular law as opposed

to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative,

or even of wide discretionary authority on the part of the government. Englishmen are ruled by

the law, and by the law alone; a man may with us be punished for a breach of law, but he can be

punished for nothing else. It means, again, equality before the law, or the equal subjection of all

classes to the ordinary law courts; the rule of law in this sense excludes the idea of any

exemption of officials or others from the duty of obedience to the law which governs other

citizens or from the jurisdiction of the ordinary tribunals; there can be with us nothing really

corresponding to the administrative law (droit administratif) or the administrative tribunals(tribunaux administratifs) of France. The notion which lies at the bottom of the administrative

law known to foreign countries is, that affairs or disputes in which the Government or its

servants are concerned are beyond the sphere of the civil courts and must be dealt with by

special and more or less official bodies. This idea is utterly unknown to the law of England, and

indeed is fundamentally inconsistent with our traditions and customs.


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According to Constitution of India:

Article 14.Equality before law.The State shall not deny to any person equality before law or

equal protection of laws within the territory of India.34

Diceys Rule of Law has been criticized by eminent writers. I will, however, make certain

observations about Diceys Rule of Law which would be generally accepted today.35

1. Dicey wrote in the hey-day of laissez-faire and he dealt with the rights of individuals not

with the powers of the administration.

2. It is tempting to say that the welfare state has changed public law, and consequently

delegated legislation and the exercise of judicial functions by administrative bodies have

increased. But the true view is that Diceys Rule of Law, which was founded on

the separation of powers, fixed public attention on administrative law and delegated

legislation. Dicey dealt with individual liberty and criticized administrative discretion. But

he did not deal with the administration as such, and he failed to distinguish between

discretion given to public officials by statute and the arbitrary discretion at one time

claimed by the King.

3. Administrative law existed in England when Diceys book was published in 1885. The

prophetic vision of Maitland saw in 1887 that even as a matter of strict law it was not

true the executive power was vested in the King. England, he said, was ruled by means of

statutory powers which could not be described as the powers of the King. All that we

could say was that the King had powers, this Minister had powers and that Minister had

powers. Inoft quoted words, Maitland said that England was becoming a much governed

nation,governed by all manner of councils and boards and officers, central and local, high

and low, exercising the powers which had been committed to them by modern statutes

34H.M. Seervai, The Supreme Court of India and the Shadow of Dicey in The Position of the Judiciary under the

Constitution of India, pp. 83-96 (1970).

35A.V. Dicey, Law of the Constitution (1885).


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And Prof. Wade has come to the same conclusion in his appendix to the ninth edition of

Diceys Law of the Constitution.

4. In his Law of the Constitution, Dicey did not refer to the prerogative writs of mandamus,

prohibition and certiorari by which superior courts exercised control over administrative

action and adjudication. These writs belong to public law and have nothing to do with

private law, and had he noticed those writs he could not have denied the existence of

administrative law in England.

5. Diceys picture of the Englishmen protected by the Rule of Law, and the Frenchmen

deprived of that protection because public authorities in France enjoyed privileges and

immunities is now recognized as a distorted picture. This recognition is not confined to

academic lawyers. An eminent judge, Lord Denning, has said that far from granting

privileges and immunities to public authorities, the French Administrative Courts exercise

a supervision and control over public authorities which is more complete than which the

Courts exercise in

England. And that is also the view of leading writers on Constitutional and

Administrative Law today. Dicey himself showed a change of heart in his long

Introduction to the eighth edition of the Law of the Constitution. There, he doubtedwhether law courts were in all cases best suited to adjudicate upon the mistakes or the

offences of civil servants, and he said that it was for consideration whether a body of men

who combined legal knowledge with official experience, and who were independent of

government, would not enforce official law more effectively than the High Court. It is a

measure of Diceys intellectual integrity that he abandoned the doctrine of a lifetime and

recognized official law, and a special tribunal substantially on the lines of the Couseil

dEtat, as better suited to enforce that law than the High Court. It is unfortunate that

Dicey did not re-write the book in the eighth edition, but contended himself with a long

Introduction which marked a real change in his thinking. The text remained unchanged,

and the Introduction was forgotten or ignored, so that an intemperate judge like Lord

Hewart L.C.J. could speak of the abominable doctrine that, because things are done by

officials, therefore some immunity must be extended to them.


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Coming from a Lord Chief Justice, these words seen ironic, for, on grounds of public

policy, the most malicious words of judges of superior courts in the discharge of their

judicial duties enjoy absolute immunity. But Lord Hewart would have been shocked had

anyone spoken of theabominable doctrine that because things are done by judges in

their judicial capacity, therefore, some immunity must be extended to their most

malicious words.

6. When Dicey maintained that the Rule of Law required the equal subjection of all

classes to the ordinary law of the land administered by ordinary courts and that the Rule of

Law was inconsistent with administrative law and administrative tribunals, he created a false

opposition between ordinary and special law, and between ordinary courts and special

tribunals. The two kinds of laws existed even in his day, and ordinary courts, as well as

special tribunals, determined the rights of parties. His antithesis was false in fact and

untenable in principle. A law administered by the courts and by special tribunals is equally the

law of the land; the determination of courts and of special tribunals are determinations under

the law. As we have seen, Dicey himself came to recognise that it may be necessary to create

a body of persons for adjudicating upon the offences or the errors of civil servants as such

adjudication may be more effective in enforcing official law. This effectively destroyed the

opposition between ordinary law administered by ordinary courts and special law

administered by special tribunals. As Devlin J., speaking of England, put it, it does not matter

where the law comes from: whether from equity, or common law or from some source as yet

untapped. And it is equally immaterial whether the law is made by Parliament, or by judges or

even by ministers, for what matters is the Law of England.

That courts alone are not the best agencies for resolving disputes is shown by the history

of the Commercial Court in England. When it was established, it first proved popular and


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succeeded in arresting the trend in favour of arbitration. After the First World War two judges

were sitting full time on the Commercial List. In 1957, out of twenty-six cases only sixteen

were actually tried, the rest being stayed, withdrawn or settled, and the question arose whether

there was any point in retaining the Commercial Court. In 1960 the Lord Chancellor took an

unusual stephe called a Commercial Court Users Conference. The Conference presented a

Report which is important because it shows why people preferred arbitration to adjudication

by the Commercial Court. Mr. Justice Megaw, who was appointed to the Commercial Court,

gave a practice direction which went back to an earlier and simpler procedure. The calling of

the Commercial Users Conference, and the emphasis in the practice direction on the service

which the court rendered, is a timely reminder that judicial power is not property which

belongs to the law courts and which therefore can be usurped by others, but that judicial

power exists to render a service, and if the service is not good enough it will be ignored.

Prof. Robson has given an even more striking example. Before the Committee on

Ministers Powers evidence was given by the National Federation of Property Owners and

Ratepayers representing the owners of more than 1,000 millions capital invested in

industrial, trading and residential property throughout the United Kingdom. The Federation

demanded that the appellate jurisdiction of ministers and their departments should cease. But

the Federation did not demand the transfer of such jurisdiction to ordinary courts of law but to

a special tribunal consisting of a full-time salaried legal member appointed by the Lord

Chancellor, and two part-time honorary members who could bring administrative experience

to bear on administrative matters. The Federation also suggested that the special tribunal


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should also take over the jurisdiction of the country court judges and the courts of summary

jurisdiction in respect of appeals from the decisions, acts or orders of local authorities, an

appeal from the special tribunal being permitted only on points of law.

7. When Dicey said that wide discretionary authority was inconsistent with the Rule of

Law he might have expressed his political philosophy, but he certainly did not express a

principle of the English Constitution for in fact wide discretionary power existed in England.

A leading modern textbook on English Constitutional law observes that if it is contrary to the

Rule of Law that discretionary authority should be given to government departments or public

officers, then the Rule of Law is inapplicable to any modern Constitution. Diceys dislike of

discretionary power was due, first, to the fear of abuse, and, secondly, to the belief that the

judicial function consists in applying settled principles of law to the facts of a case, and not in

the exercise of discretionary power. Taking the second point first, the exercise of

discretionary power formed then, and forms now, a large part of the work of regular courts.Thus, where an accused pleads guilty, the only question which remains is one of punishment,

and here the judge has a very wide discretion. Again, if discretion is opposed to the Rule of

Law, a final court with discretionary power to admit or reject an appeal or an application,

would contravene the Rule of Law, and yet most final courts, including our Supreme Court,

possess this power, and, what is more, exercise it without assigning any reasons. Again, the

power to adjoin a case, to allow an amendment, to condone delay, to award costs are

discretionary powers, and like all discretionary powers may be abused. But the law confers

all necessary discretionary powers notwithstanding the possibility of abuse, though it is usual

to provide safeguards against abuse. But the safeguards are not always effective. When High

Court judges say, as I have heard them say, We prefer to be wrong: you can go to the SupremeCourt after obtaining special leave from it, judicial power is abused, and the

safeguard of an appeal nullified in a practical sense, for an appeal by special leave is expensive,

and if the amount at stake is small, few persons will spend thousands of rupees to

set right a palpably wrong decision. Nor is it enough to say that the judge is independent and an

administrative tribunal is not. First, there is no reason why an administrative tribunal

cannot be made independent of Government. Secondly, in England, judges of the superior

courts are practically irremoveable, but judges of subordinate courts can be removed by the

Lord Chancellor for inability or misbehaviour, and Justices of the Peace, who are an essential

part of the administration of justice, can be removed by the Lord Chancellor at pleasure.

Again, though in theory, the members of the Conseil dEtat in France are removable by theexecutive, in practice no member has been removed for rendering judgments unpalatable to

the Government, though many such judgments have been rendered. The ultimate guarantee

against abuse of power, legislative, judicial and executive, lies in the political and legal

safeguards against such abuse, in a vigilant public opinion, and in a sense of justice in the

people generally.


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8. The emphasis which Dicey laid on personal freedom from arbitrary arrest and

detention is as true, if not more true, as when Dicey wrote his book. Diceys doctrine that all

classes in the United Kingdom were subject equally to the ordinary law of the land

administered by the ordinary courts was true in the very limited sense that a public servant

was individually liable for a tort or a crime. But equality before the law did not mean equality

of rights and duties. An unpaid tax is a debt due to the State, but the Income-tax authorities have

powers for recovering that debt which private creditors do not have for the recovery of

their debts.

I said earlier that Dicey asserted that his Rule of Law was a principle of the constitution.

The modern version of the Rule of Law takes a different line. In a well-known book on

Constitutional Law, it is said that the Rule of Law demands the payment of compensation

in certain circumstances where a person is injured by a change in the law; discretionary power

should not be arbitrary power. You will notice that this view does not assert that the Rule of

Law is a principle of the English Constitution, and in fact it is not. The Rule of Law thus

formulated belongs to the realm of political and moral philosophy, and can be accepted or

rejected according as one accepts or rejects that philosophy. The Rule of Law becomes a

banner under which opposing armies march to combat says one leading text-book on

Administrative Law. The Rule of Law, which is a fine sonorous phrase, can now be put

alongside the Brotherhood of Man, Human Rights and all the other slogans of mankind on the

march, says Prof. Jackson. And he rightly observes that the doctrines of the separation of

powers and the Rule of Law give little help in determining the practical question: what mattes

should be assigned to special tribunals and what to courts of law.

The State of M.P. v. Bharat Singh [AIR 1967 SC 1170] also did not raise any question


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about Diceys Rule of Law, though it did raise a question about the Rule of Law in the strict

legal sense. In Bharat Singh case, it was contended that as the executive power of the State

was co-extensive with its legislative power, an executive order restricting the movements of a

citizen could be passed without the authority of any law, and the Supreme Courts decision in

Kapur case [Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225] was relied upon to

support the contention. The Supreme Court could have pointed out, but did not, that the

principle of Kapur case directly negatived the contention when that case held that though the

authority of law was not necessary for Government to carry on trade, such authority was

necessary when it became necessary to encroach upon private rights in order to carry on trade.

The Supreme Court distinguished Kapur case on the ground that it involved no action

prejudicial to the rights of others. Even so, Bharat Singh case is really disposed of by the

courts observation that every act done by the Government or by its officers must, if it is to operate to

the prejudice of any person be supported by some legislative authority, for that is

the strict legal meaning of the Rule of Law. For reasons which I have already given, it was

wholly unnecessary to refer to the first meaning which Dicey gave to the Rule of Law, or to

Diceys contrast between the English and the Continental systems.

Speaking for the Privy Council, Lord Atkin formulated that concept in the following oftquoted

words:

As the executive, he (i.e. the Governor) can only act in pursuance of the powers given to him by

law. In accordance with British jurisprudence no member of the executive can interfere with the

liberty or property of a British subject except on the condition that he can support the legality of

his action before a court of justice.


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And this passage has been cited and followed by our Supreme Court.

Is the above discussion merely theoretical? I think not, if we consider Nanavati case and Bharat

Singh case in the light of that discussion. Nanavati case involved no question about Diceys

Rule of Law, nor even of the rule of law, because the Governor did not claim the power to act

without the authority of law. The question was whether the suspension of Nanavatis sentence

by the Governor under Art. 161, which expressly conferred on him the power to grant reprive or

respite, was valid in law. The majority held that it was not, because according to the majority the

power of the Governor did not extend to suspending the sentence after the Supreme Court had

admitted an appeal from it. Sinha, C.J. observed that to uphold the power of the Governor to

suspend the sentence would involve a conflict between the executive and the judiciary, for an

order of the Supreme Court releasing an accused on a bail of Rs. 10,000 could be nullified by

obtaining a simple order of suspension from the

Governor:

Avoidance of such a possible conflict will incidentally prevent any invasion of the rule of law

which is the very foundation of our Constitution.

Here you have the distracting influence of the emotional and political overtones of Diecys Rule

of Law, and of the doctrine of the separation of powers from which it is easy to slip

unconsciously into the belief that judicial power is property. I say unconsciously because

judges may be quite unaware that they are treating judicial power as property. If this appears to

be a fancy of my own, let me give you a delightful passage from Prof. Robson.Discussing Prof.

Morgans remark that the acquisition of judicial functions by the executive was all the more

unwarrantable because courts of law had not in their turn encroached on the functions of the

executive, Prof. Robson said:

(Prof. Morgan) writes as though the executive and the judiciary were riparian ownersbargaining over a strip of land or European powers carving up an African colony.

And he adds

Neither the executive nor the judiciary has any immutable right to a particular province....


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Applying this to Nanavati case, if judicial power were property, the release of a convicted

person on a bail of Rs. 10,000 would be legal exercise of a right of property, and the nullification

of that order by the Governors reprive would violate a legal right and thus appear to be against

the Rule of Law.

The constitution of India declares that we are a Democratic. Secular and a Socialist Republic.

The Rule of law governs our country. 'Equality before law' and 'Equal protection of law' is the

most fundamental right conferred on its citizens. We have a lengthy constitution and some other

wonderful laws. Independence of judiciary and highly qualified bureaucrats are the need of the

hour. In the present situation, many just exist on paper.

The question is about our compliance with the Rule of Law.

Rules of law contain three principles or it has three meanings as stated below:

1. Supremacy of I.aw

2. Equality before Law

3. Predominance of Legal Spirit

The doctrine of Rule of Law has been adopted in Indian Constitution. The ideals of the

Constitution, justice, liberty and equality are enshrined (embodied) in the preamble.

The Constitution of India has been made the supreme law of the country and other laws are

required to be in conformity with the Constitution. Any law which is found in violation of any

provision of the Constitution is declared invalid.

In India, the meaning of rule of law has been much expanded. It is regarded as a part of the basic

structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by

Parliament. It is also regarded as a part of natural justice.

InKeshavanda Bharti vs. State of Kerala(1973) The Supreme Court enunciated the rule of law

as one of the most important aspects of the doctrine of basic structure.

InMenaka Gandhi vs. Union of India, AIR 1978 SC 597 The Supreme Court declared that

Article 14 strikes against arbitrariness.


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COMMENT

How many people respect or pay heed to this fundamental principle? In our country, there are

many innocent people who are held guilty only because of the malicious acts of a few hypocrites.

We know of a number of members of legislature and parliament who are facing criminal

prosecution. It is a farce to talk of a nation ruled by highly qualified excellent men. Politics has

become the refuge of scoundrels, black marketers, corrupt and the mean to wield influence and

for personal exaltation. It is really difficult to find good candidates during elections. Our leaders

are law into themselves.

There is neither justice to the victims nor fairness to the accused. Then what kind of

Rule of Law are we talking about.

The judiciary is not above board, there have been abundant rumors about the adulterous and

extravagant lives led by the judges from the lower to the highest judicial officers.

The police just dont care about thelandmark judgment of D.K. Basu or Section 160 Criminal

Procedure Code or any other judgment. The custodial violence has gone beyond description.

Rape, molestation, murder are all becoming common occurrences in police custody.


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24

The injuries are not noted down scrupulously and valuable evidence is lost because of the

neglect and lethargy of the medical profession. The most recent case being the Arushi Murder

Case in which the investigation was done by the CBI. The actual vaginal swab was not sent

for forensic examination. Is this acceptable negligence or voluntary negligence. We still do not

have an answer.

With the laws in favor of women, is there a legal authority or sanction to check such a misuse? I

am aware that the judiciary has tried to act in this regard but there is no formal structure to

check such an abuse.

The people including public servants just ignore the rule of law, even if it is for acts or omissions

which are not difficult to follow or that they should be a part of the normal routine. Everyone is

in a rush without any kind of concern for the rest. Everyone wants to be first. Majority have

a psyche to bend the law, cross the barricades, whether it be on the road or in any other walk of

life to carve out short cuts for them to pass through and a psyche to justify their wrongs with a

expectation only for others to follow the law and wait for the day when all other subject

themselves to the rule of law so that they could follow suit. There is no initiative by the

government to check such a breach. It is not the rules which are required for such acts but norms

coupled with awareness will suffice. I am not talking about any kind of formal structure to this

but an informal initiative is the need of the hour because people in India just dont believe informal initiatives. From the ordinary traffic constable to the man driving a bicycle on the road,

the pedestrian to the richest all of us as Indian have one psyche to bend the law, cross the

barricades, whether it be on the road or in any other walk of life to carve out short cuts for them

to pass through and a psyche to justify their wrongs with a expectation only for others to follow

the law and wait for the day when all other subject themselves to the rule of law so that

they could follow suit.

So, we still are not ruled by LAW and it will be a long wait without an initiative.

RECENT ARTICLE:


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KM Birla case: India not under"Aurangzeb's rule" but under rule of

law, says MoilyTag: Kumar Mangalam Birla,Coalgate,Coal block allocations,Russia,M Veerappa Moily

Last Updated: Saturday, October 19, 2013, 09:33 ZEE NEWS

New Delhi: As industry voiced concern over the CBI naming industrialist Kumar Mangalam

Birla in a case, Oil Minister M Veerappa Moily on Friday said investigating agencies and the

judiciary must ensure that India does not become like Russia, where investors are not prepared to

go and billionaires are put behind bars.

Moily said India is not under "Aurangzeb's rule" but under rule of law, where action has to be

taken based on cogent evidence, not just on mere perception.

"I am not here to give a value judgement on that, but at the same time I think the time has come

to ensure that whatever we do should be in accordance with strict rule of law. And ultimately, on

mere perception you cannot proceed against anybody unless there is cogent evidence to proceed

with," he told reporters here.

Moily was replying to a question about the CBI naming Hindalco Industries Chairman Birla in

an FIR against the aluminum and copper maker as part of its probe into alleged irregularities in

the allotment of coal-mining licenses.

Moily said the CBI has proceeded in the matter on certain lines, which, if based on evidence,

"nobody can question" but if not, then "we should be careful."

"Because ultimately India cannot become just like Russia, where investors are not prepared to go

and billionaires are put behind the bars. That should not happen here," he said.

The job of ensuring that India does not become like Russia rests not just with the government but
http://zeenews.india.com/tags/Kumar_Mangalam_Birla.htmlhttp://zeenews.india.com/tags/Kumar_Mangalam_Birla.htmlhttp://zeenews.india.com/tags/Coalgate.htmlhttp://zeenews.india.com/tags/Coalgate.htmlhttp://zeenews.india.com/tags/Coalgate.htmlhttp://zeenews.india.com/tags/Coal_block_allocations.htmlhttp://zeenews.india.com/tags/Coal_block_allocations.htmlhttp://zeenews.india.com/tags/Coal_block_allocations.htmlhttp://zeenews.india.com/tags/Russia.htmlhttp://zeenews.india.com/tags/Russia.htmlhttp://zeenews.india.com/tags/Russia.htmlhttp://zeenews.india.com/tags/M_Veerappa_Moily.htmlhttp://zeenews.india.com/tags/M_Veerappa_Moily.htmlhttp://zeenews.india.com/tags/M_Veerappa_Moily.htmlhttp://zeenews.india.com/tags/M_Veerappa_Moily.htmlhttp://zeenews.india.com/tags/Russia.htmlhttp://zeenews.india.com/tags/Coal_block_allocations.htmlhttp://zeenews.india.com/tags/Coalgate.htmlhttp://zeenews.india.com/tags/Kumar_Mangalam_Birla.html


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also with the judiciary and the CBI, he said.

"After all, we are not in the regime of Aurangzeb. We are in the regime of rule of law. When rule

of law is concerned it applies to government, it applies to Supreme Court, it applies to

everybody.

"If all of us work in accordance with rule of law, if rule of law is implemented, we are all safe,

investors are safe, people will be safe," he said.

A joint venture company of Hindalco had received mining licenses for two coal blocks in Odisha

in 2005. The CBI on Tuesday said it plans to probe whether the company and its chairman were

involved in a criminal conspiracy and irregularities.

Birla is the most prominent businessman to be named in the probe by CBI, which has triggered

sharp reactions from the industry. With an estimated wealth of USD 7.9 billion, Birla was ranked

150 on the Forbes list of world billionaires.

RECENT STATISTICS:

India ranks 78th among 97 countries in guaranteeing access to all civil justice, a latest report has said,while its neighbouring country Sri Lanka leads the South Asian nations in most dimensions of the rule of

law.

The 'Rule of Law Index 2012' report by World Justice Project's provides country-by-country scores and

rankings for eight areas of the rule of law.India, the report said, has a robust system of checks and balances (ranked 37 worldwide and second

among lower middle income countries), an independent judiciary, strong protections for freedom of

speech, and a relatively open government (ranking 50th globally and fourth among lower-middle income

countries).


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"Administrative agencies do not perform well (ranking 79th) and the civil court system ranks poorly

(ranking 78) mainly because of deficiencies in the areas of court congestion, enforcement, and delays in

processing cases," the report said.

Conclusion

On a brief overview of the constitutional provisions and judicial decisions, it can be safely

concluded that the Indian Constitution enshrines the rule of law as a fundamental governance

principle, though the term is not mentioned expressly in the text of the Constitution. Having said

this, there are several challenges that pose threat to building a society based on robust rule of

law framework. Continued socio-economic inequalities (despite affirmative active provisions and

programmes), large population, pervasive corruption (including in judiciary), judicial delays,

law and order problems in view of regionalism and Naxalism, and the general apathy of people

towards the rule of law are matters of serious concern. Despite these challenges, there is no

doubt about the constitutional mandate or government's commitment to establishing a rule of

law society.

Above all, it must be remembered that there is nothing western or eastern or northern or

southern about the lofty concept of the Rule of Law. It has a global reach and global dimension.

In the memorable words of late Justice Vivian Bose of our Supreme Court, Rule of Law, is the

heritage of all mankind because its ultimate rationale is belief in the human rights and human

dignity of all individuals everywhere in the world


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BIBLIOGRAPHY

BOOKS

Dr. N.V. Paranjape, STUDIES IN JURISPRUDENCE AND LEGAL THEORY,

Seventh edition, 2013

Dr. Avtar Singh, Dr. Harpreet Kaur, INTRODUCTION TO JURISPRUDENCE ,

Third edition, Reprint 2010

WEBSITES

http://wikis.fu-berlin.de/display/SBprojectrol/India

http://www.du.ac.in/fileadmin/DU/Academics/course_material/2012/5112_Law_4_Adminstrati

veLaw.pdf

http://zeenews.india.com/news/nation/km-birla-case-india-not-under-aurangzeb-s-rule-but-

under-rule-of-law-says-moily_884165.html

http://newindianexpress.com/opinion/Rule-of-law-should-not-be-confused-with-rule-by-

law/2013/09/22/article1796377.ece

http://worldjusticeproject.org

ARTICLES

H.M. Seervai, The Supreme Court of India and the Shadow of Dicey in The Position of the Judiciary

under the Constitution of India, pp. 83-96 (1970).

A.V. Dicey, Law of the Constitution (1885).
http://wikis.fu-berlin.de/display/SBprojectrol/Indiahttp://wikis.fu-berlin.de/display/SBprojectrol/Indiahttp://www.du.ac.in/fileadmin/DU/Academics/course_material/2012/5112_Law_4_AdminstrativeLaw.pdfhttp://www.du.ac.in/fileadmin/DU/Academics/course_material/2012/5112_Law_4_AdminstrativeLaw.pdfhttp://www.du.ac.in/fileadmin/DU/Academics/course_material/2012/5112_Law_4_AdminstrativeLaw.pdfhttp://www.du.ac.in/fileadmin/DU/Academics/course_material/2012/5112_Law_4_AdminstrativeLaw.pdfhttp://www.du.ac.in/fileadmin/DU/Academics/course_material/2012/5112_Law_4_AdminstrativeLaw.pdfhttp://zeenews.india.com/news/nation/km-birla-case-india-not-under-aurangzeb-s-rule-but-under-rule-of-law-says-moily_884165.htmlhttp://zeenews.india.com/news/nation/km-birla-case-india-not-under-aurangzeb-s-rule-but-under-rule-of-law-says-moily_884165.htmlhttp://zeenews.india.com/news/nation/km-birla-case-india-not-under-aurangzeb-s-rule-but-under-rule-of-law-says-moily_884165.htmlhttp://newindianexpress.com/opinion/Rule-of-law-should-not-be-confused-with-rule-by-law/2013/09/22/article1796377.ecehttp://newindianexpress.com/opinion/Rule-of-law-should-not-be-confused-with-rule-by-law/2013/09/22/article1796377.ecehttp://newindianexpress.com/opinion/Rule-of-law-should-not-be-confused-with-rule-by-law/2013/09/22/article1796377.ecehttp://worldjusticeproject.org/http://worldjusticeproject.org/http://worldjusticeproject.org/http://newindianexpress.com/opinion/Rule-of-law-should-not-be-confused-with-rule-by-law/2013/09/22/article1796377.ecehttp://newindianexpress.com/opinion/Rule-of-law-should-not-be-confused-with-rule-by-law/2013/09/22/article1796377.ecehttp://zeenews.india.com/news/nation/km-birla-case-india-not-under-aurangzeb-s-rule-but-under-rule-of-law-says-moily_884165.htmlhttp://zeenews.india.com/news/nation/km-birla-case-india-not-under-aurangzeb-s-rule-but-under-rule-of-law-says-moily_884165.htmlhttp://www.du.ac.in/fileadmin/DU/Academics/course_material/2012/5112_Law_4_AdminstrativeLaw.pdfhttp://www.du.ac.in/fileadmin/DU/Academics/course_material/2012/5112_Law_4_AdminstrativeLaw.pdfhttp://wikis.fu-berlin.de/display/SBprojectrol/India

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