INTRODUCTION:
Administrative law is a recent phenomenon. The reason for its growth seems to be, the mistrust among people regarding the then ongoing administrative process. The weapon, people used to strike at the growth of administrative law was Dicey’s formulation of the concept of “Rule of Law”. But before that it becomes crucial to count the events, snowball the whole concept.
MEANING:
Term “Rule of Law” is of old origin. It derived from the Latin phrase ‘la legalitre’, which refers to the government based on principles of law and not of men, which even opposed to the arbitrary power.
DIFFERENT NAMES, SAME CONCEPT:
In jurisprudence-
- Romans called it ‘jus naturale’.
- Mediaevalists called it ‘Law of God’.
- Hobbes, Locke and Rousseau called it ‘social contract’ or ‘natural law’.
CONCEPT’S TWO IMPRESSIONS:
FORMAL SENSE-
It means no more than organized public power, norm based on hierarchy of orders.
IDEOLOGICAL SENSE–
In this, rule of law sets an idea for any government to achieve.
DICEY’S CONCEPT:
- Professor A.V.Dicey developed, this concept in course of his lectures at Oxford University.
- Dicey wrote the concept of Rule of Law at the end of golden Victorian era of laissez fair in England.
- This being the reason, why Dicey’s concept of “Rule of Law” contemplated the absence of wide powers in the hands of government officials because according to him, ‘whenever there is discretion there is room for arbitrariness’.
- Dicey’s formulation of concept of “Rule of Law” which according to him forms the basis of English Constitutional law, contains 3 principles:
- Supremacy of law
- Equality before law
- Predominance of law
I.SUPREMACY OF LAW:
Absence of discretionary power in the hands of the government official, means the justice must be done through known principles. Discretion implied absence of rules, here.
II.EQUALITY BEFORE LAW
- No person shall be made to suffer in body or property except for a breach of law established in ordinary legal manner before court of justice. It implies;
- Absence of special privileges for a government official or any other person
- All persons irrespective of status must be subject to the courts of the land,
- Everyone should be governed by law passed by ordinary legislative organs of the state.
III.PREDOMINANCE OF LAW:
The rights of the people must flow customs and traditions of people recognized by courts in administration of justice.
APPLICABILITY OF RULE OF LAW:
Relevance is demonstrated by application of following principles in practice-
- The separation of powers between the legislature, the executive and the judiciary.
- Law is made by representative of the people in an open and transparent way.
- Law and its administration are subject to open and free criticism by the people, who may assemble without fear.
- Law is applied equally and fairly, so that no one is above the law.
- Law is capable of being known to everyone, so then everyone can comply.
- No one is subject to any action by any government agent other than in accordance with the law and the model litigant rules, no one is subject to any torture.
- The judicial system is independent, impartial, open and transparent a fair and prompt trail.
- All people are presumed to be innocent until proven otherwise and are entitled to remain silent and are not required to incriminate themselves.
- No one can be prosecuted, civilly or criminally, for any offence not known to the law when committed.
- No one is subject adversely to a retrospective change of the law.
MODERN PERSPECTIVE:
Developed by the International Commission of Jurist, known as Delhi Declaration, 1959, which was later on is confirmed by Lagos in 1961. The main focus was to create conditions in which the dignity of man as an individual is upheld. Commission divided itself into contain working groups-
- Committee on Individual liberty and Rule of Law.
- Committee on Government and Rule of Law.
- Committee on Criminal Administration and Rule of Law.
- Committee on Judicial Process and Rule of Law.
RULE OF LAW IN INDIA:
- According to Justice Ramasamy of Supreme Court of India:
- In administration there is an obvious need for individual action.
- Call for speedy determination.
- Necessity of direction.
- Guidance and expert advice required.
- Then, a large measure of discretion and freedom is therefore conferred upon Government officials for carrying out administrative schemes.
Relevant Case laws:
I.Shankari Prasad V Union of India (1951)
Where the question of amenability of Fundamental Rights arose, the question lingered and after witnessing the game play between the government and the judiciary, it got finally settled in the Kesavanandan Bharti V State of Kerala.
II. Kesavanandan Bharti V State of Kerala ( 1973)
In this case Supreme Court held that the rule of law is the basic structure of the constitution. Supreme Court in majority overruled the decision given in the Golaknath V State of Punjab case and held that the Parliament has wide powers of amending the Constitution and this power extends to all the articles.
But the amending power is unlimited and does not include the power to destroy or abrogate the basic structure of the constitution. There are implied limitations on the power of amendment under Article 368, which are imposed by the Rule of Law, within these limits only Parliament can amend every Article of the Constitution.
III. Indira Nehru Gandhi V Raj Narain (1975)
- After which 43Articles were amended and 42nd Amendment Act, 1978 was introduced in the Constitution of India, known as Mini Constitution.
- The Apex Court held that Rule of Law embedded in the article 14 of the Constitution is the basic feature of the Constitution. Hence, cannot be destroyed even by the amendment of the Constitution under Article 368 of the Constitution.
- Further, the Article 329A which was inserted in the Constitution under the 39th amendment which provide certain amenities to the election of the office of Prime Minister from judicial review, it was held to be invalid by the supreme Court as it was against the concept of Rule of Law, which is supreme and will prevail over the will of one person.
IV. Maneka Gandhi V Union of India (1978)
Supreme Court in this case once again established Rule of Law and held under article 21 of the Constitution, thus article 21 requires following conditions to be fulfilled before a person is deprived of his life and liberty:
- There must be a valid law.
- Law must provide procedure.
- Procedure must be fair, just and reasonable.
- Law must satisfy the requirements of Article 14 and 19.
V. Som Raj and Ors. Ect v State of Haryana (1990)
It was observed that absence of arbitrary power is the primary postulate of rule of law, upon which the whole constitutional edifices is dependent.
VI. Additional District Magistrate (ADM) Jabalpur V Shivakant Shukla (1976)
Supreme Court observed that Rule of Law is antithesis of arbitrariness. Rule of Law is now the accepted norm of all civilized societies. Further, every where it is identified with the liberty of individual and it seeks to maintain a balance between the opposing notion of individual liberty and public order.
VII. Bachan Singh v State of Punjab (1980)
Supreme Court held that Rule of Law has 3 basis and Fundamental assumptions:
- Law making must be essentially in the hands of democratic enacted legislature.
- Even in the hands of the democratically elected legislature, there should not be unfettered legislative power.
- There must be the independent judiciary to protect the citizens against the excessive exercise of executive and legislative powers.
CONCLUSION:
Thus in India, Rule of Law has been expended it is regarded as a part of the basic structure of the Constitution and it cannot be abrogated or destroyed by the Parliament. The ideas of the constitution i.e. liberty, equality and fraternity have been enshrined in the Preamble. The constitution makes the Supreme Law of the land and every law enacted should be in conformity to it. Any violation makes the law ultra vires which ultimately enthrones the law.
Farheen Dhanjal 