RULE OF LAW

SUBMITTED TO:
SUBMITTED BY:
DR. SHRUTI BEDI
DHRITI SHARMA

ROLL NO. 14/15

SEC- A BA LLLB (HONS.)

 INDEX

Page no.
1. Acknowledgement 2
2. Table of cases 3
3. Introduction 4
4. Origin of the concept 4
5. Basic features of Rule of Law
6. Diceys Rule of Law 5
i) Supremacy of Law
ii) Equality before law
iii) Predominance of Legal Spirit
7. Rule of law under Indian Constitution 8
8. Significance 12
9. Conclusion 13
10. Bibliography
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 ACKNOWLEDGEMENT

I would like to extend my sincere thanks to Dr. Shruti Bedi for assigning
me this project- RULE OF LAW and lending her endless support and
guidance throughout the completion of the project. I also take this
opportunity to thank my Parents, all my friends and the Library Staff of
UILS for helping me in the successful completion of the project.

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S.N Case Law Citation Pag
o e
no.
1. ADM Jabalpur v. Shivakant (1976) 2 SCC 521 9
Shukla
2. Chief settlement Commr., AIR 1969 SC 33 10
Punjab v. Om Prakash
3. Entick v. Carrington (1765) 19 St Tr 1029: 5
(1558-1774) All ER
Rep 41
4. Indira Gandhi Nehru vs. 1975 Supp SCC 1 10
Raj Narain

5. Kesavanda Bharti vs. State (1973) 4 SCC 521 9

of Kerala
6. Lt. Col. Priti Pal Singh v. 1982 AIR 1413 11
Union of India,
7. Maneka Gandhi v. Union of AIR 1978 SC 597 11
India
8. P. Sambamurthy v. State 1987 AIR 663 10
of Andhra Pradesh
9. S.G. Jaisinghani V. Union of AIR 1967 SC 1427 10
India
10. Sheela Barse v. State of 1983 AIR 378 11
Maharashtra

11. Supreme Court Advocates (1993) 4 SCC 441. 10

on Records Association v.
Union of India
12. Veena Seth v. State of AIR 1983 SC 39 11
Bihar
13. Wilkes v. Wood (1763) 19 St Tr 1153: 5
98 ER 489
13. Yusuf Khan v. Manohar Writ petition (civil) 673 10
Joshi of 1998

TABLE OF CASES

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 INTRODUCTION
The expression rule of law has been derived from the French phrase la
Principle de legality. i.e. a government based on the principles of law. In
simple words, rule of law means 'howsoever high you may be; the Law is
above you. It 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 applied by the State in the administration of justice. Rule of Law

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plays an important role in the administrative law. It provides protection to
the people against the arbitrary action of the administrative authorities

ORIGIN OF THE CONCEPT

One of the basic principle of the English constitution is the rule of law. The
doctrine is accepted in the US and Indian Constitution. Sir Edward Coke
was the originator of this concept. In a battle against the King, he
maintained successfully that the King should be under the law and
established supremacy of the law against the executive. The firm basis for
the Rule of Law theory was expounded by A. V. Dicey and his theory on
the rule of law remains the most popular.

MEANING
Dicey has attributed three meaning to the rule of law.
I. The first meaning is that no man is punishable or can be lawfully
made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts
of the land.
II. The second meaning of the rule of law is that no man is above law.
Every man whatever his rank or condition, is subject to the ordinary
law of the realm and amenable to the jurisdiction of the ordinary
tribunals.
III. The third meaning of the rule of law is that the general principles of
the constitution are a result of judicial decisions determining the
rights of the private persons in particular case before the court.

BASIC FEATURES OF RULE OF LAW

Law is supreme. Above everything and above everyone.
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 the part and parcel of the rule of
law.
Discretionary powers should be exercised within reasonable limits
set by law.
Adequate safeguard against executive abuse of power.
Independent and impartial judiciary.
Fair and justice procedure
Speedy trial

Diceys theory has three pillars based on the concept that a government
should be based on principles of law and not of men, these are:

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 1. SUPREMACY OF LAW:
Dicey describes this principle as the central and most characteristic
feature of the common law. He stated that the rule of law means the
absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary or wide discretionary power. Therefore, it excludes
the existence of arbitrariness, of prerogative or even wide discretionary
power on the part of the government. According to him, Englishmen are
ruled by the law and law alone. According to this doctrine, no man can be
punished except by the due process of law.
In Diceys words, wherever there is discretion, there is room for
arbitrariness.

2. EQUALITY BEFORE LAW

Equality before law means equal subjection of all classes of the land
administered by the ordinary courts. According to him, in England, all
persons were subject to one and the same law and there was no separate
tribunals or special courts for officers of the government and other
authorities. However, he criticised the French legal system of droit
administratif where in there were distinct administrative principles for
deciding cases between the officials of the state and the citizens. For him,
exemption of the civil servants from the jurisdiction of the ordinary courts
of law and providing them with the special tribunals was the negation of
equality.
In the words of Lord Denning1, Our English law does not allow a public
officer to shelter behind a droit administratif.

3. PRE-DOMINANCE OF LEGAL SPIRIT

Explaining the third principle, Dicey stated that in many countries, the
rights such as right to personal liberty, freedom to hold public meetings
etc. are guaranteed by a written constitution. However, it is not so in
England. Those rights are as a result of judicial decisions of the court.
Thus, Dicey emphasised the role of the courts of law as the guarantors of
liberty and believed that the courts are the enforcers of the rule of law
and they must be both impartial and free from all external influences.
In England, the doctrine of rule of law was applied in concrete cases. In
Wilkes v. Wood2, it was held that an action for damages for trespass was
maintainable even if the action complained of was taken in the pursuance
of the order of the minister. In a leading case of Entick v. Carrington3, a
1 Ministry of Housing and Local Govt. v. Sharp, (1970) 2 QB 223.

2 (1763) 19 St Tr 1153: 98 ER 489.

3 (1765) 19 St Tr 1029 (1558-1774) All ER Rep. 41.

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publishers house was ransacked by the Kings messengers sent by the
secretary of the state. In action for trespass, monetary compensation was
awarded to the publisher as damages.
Diceyss thesis has a no. of advantages and merits. The doctrine of rule of
law proved to be efficient and powerful weapon in keeping administrative
authorities within their limits. It served as a touchstone to serve all the
administrative actions. The broad principle of rule of law is accepted by
almost all legal system as a constitutional safeguard. No doubt, Diceys
rule of law has helped in the recognition and growth of administrative law
to a large extent but it has its own limitations and pitfalls as well.
i) The first rule was criticised on the ground that Dicey equated
supremacy of rule of law with absence of not only arbitrary
powers but also with discretionary powers. He thus failed to
distinguish arbitrary power from discretionary power. No modern
welfare state can work effectively without exercising
discretionary powers.4

ii) The second principle propounded by Dicey was equally fallacious.

Dicey misunderstood the real nature of droit administratif. He
carried an expression that administrative courts of France,
including the Counseil dEtat conferred on government officials
special rights, privileges and prerogatives as against private
citizens. But it was not so. The French system in many respect
proved to be more effective in controlling the abuse of
administrative powers than the common-law system and was
considered to be a model for other countries.5

FORTUNE CASE:
A wanted to appear for a competitive examination. He was not permitted
to appear on the ground that his confidential file contains certain adverse
remarks. In an action by A, Counseil dEtat went through the records and
called upon the Secretary to justify the order. The Secretary pleaded that
it was an Act of the State and that the court had no jurisdiction to deal
with the matter. He did not produce any documents. The court passed an
order to produce the entire file relating to the matter, went through it and
quashed the order. In England, governed by the rule of law one cannot
conceive of such a situation, for the ordinary courts of law have no right to
interfere with any Act of State nor they can have access to secret
documents.

4 Wade & Forsyth, Adminstrative Law (2009) 24-25.

5 Brown & Bell, French Administrative Law (1967) 133.

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BAREL CASE:
Them minister in charge did not permit certain candidates to appear at
the civil service examination. It was reported in the newspaper that the
government officials had refused permission to candidates who were
communists. The minister however denied the allegation. The candidates
approached the Counseil dEsat which quashed the order, since no
reasons were recorded by the minister for refusing such permission. Thus,
the Counseil dEtat took a view in 1954 which was taken by English courts
much later.6

Similarly, in an employee in the government factory is injured by an

explosion, according to the administrative courts in France, the risk should
fall on the state, but the English courts will not hold the State liable unless
the injured proves negligence of some servant of the Crown. Thus, English
courts applied the conservative and traditional approach while the French
administrative courts adopted the pragmatic approach.

6 Padfield v. Minister of Agriculture Fishries and Food, 1968 AC 997.

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 RULE OF LAW UNDER INDIAN CONSTITUION

The concept of Rule of Law is that the state is governed, not by the ruler
or the nominated representatives of the people but by the law. The
Constitution of India intended for India to be a country governed by the
rule of law. It provides that the constitution shall be the supreme power in
the land and the legislative and the executive derive their authority from
the constitution.
The rule of law permeates the entire fabric of the Constitution and indeed
forms one of its basic features. 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. The ideals of constitution; liberty, equality and fraternity have
been enshrined in the preamble. 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.
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 ill
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 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 under the law in force 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.

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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.

In India, Constitution is 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 (E.g.: Judiciary) upon
another (E.g.: Legislature) if its action is mala fide, an individual can
challenge under Article 32 of the Constitution.
In Kesavanda Bharti vs. State of Kerala7 : The Supreme Court
enunciated the rule of law as one of the most important aspects of the
doctrine of basic structure and cannot be amended by any Act of
Parliament, thereby showing how the law is superior to all other authority
of men.
Fundamental rights enshrined in part III of the constitution is a restriction
on the law making power of the Indian Parliament. It includes freedom of
speech, expression, association, movement, residence, property,
profession and personal liberty. In its broader sense the Constitution itself
prescribes the basic legal system of the country to guarantee and
promote fundamental rights and freedoms of the citizens and the respect
for the principles of the democratic State based on rule of law. The
popular habeas corpus case, ADM Jabalpur v. Shivakant Shukla8 is
one of the most important cases when it comes to rule of law. In this case,
the supreme court was confronted with the question whether the third
pillar of the Diceys doctrine was an integral part of the Indian concept of
rule of law. The question before the court was whether there was any rule
of law in India apart from Article 21.
On 25th June, emergency was proclaimed by Mrs. Indira Gandhis
government on the grounds of internal disturbances under Article 358.
Large number of persons was arrested under MISA (Maintenance of
Internal Security Act. 1971) without informing the grounds for arrest.
Some of them filed writ petitions in different High Courts challenging the
detention orders as illegal and unconstitutional and praying for the issue
of a writ of Habeus Corpus. The petitioners contended that their detention
is violation of Article 21. It was argued on the other side that the
protection tinder Article 21 is not available since it was suspended during
emergency. The preliminary objection was rejected by various High
Courts. The Madhya Pradesh Government through Additional District

7 AIR 1973 SC 1461

8 (1976) 2 SC 521

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Magistrate. Jabalpur and Government of India filed appeals before
Supreme Court. The case was heard by a five- judge Constitutional Bench
consisting of Ray CJ and Khanna, Beg, Chandrachud and Bhagwati JJ. The
majority of the bench answered the issue in negative and observed that
there cannot be a brooding and omnipotent rule of law drowning in its
effervescence the emergency provisions of the constitution. 9
Khanna J, however, did not agree with the majority view. In a powerful
dissent he observed that even in the absence of Article 21 in the
constitution, the state has got no power to deprive a person of
his life or liberty without the authority of law. The principle that no
one shall be deprive of his life and liberty without the authority of law was
not the gift of the constitution. It was a necessary corollary of the concept
relating to the sanctity of life and liberty, it existed and was in force before
the coming into force of the constitution. Without such sanctity of life and
liberty, the distinction between a lawless society and one governed by
laws would cease to have any meaning.
In Indira Gandhi Nehru vs. Raj Narain10, Article 329-A was inserted in
the Constitution under 39th amendment, which provided certain
immunities to the election of office of Prime Minister from judicial review.
The Supreme Court declared Article 329-A as invalid since it abridges the
basic structure of the Constitution.
In Chief settlement Commr., Punjab v. Om Prakash11, it was observed
by the Supreme Court that, In our constitutional system, the central and
most characteristic feature is the concept of rule of law which means, in
the present context, the authority of law courts to test all administrative
action by the standard of legality. The administrative or executive action
that does not meet the standard will be set aside if the aggrieved person
brings the appropriate action in the competent court. The rule of law
rejects the conception of Dual State in which governmental action is
placed in a privileged position of immunity from control by law. Such a
notion is foreign to our basic constitutional concept.
In P. Sambamurthy v. State of Andhra Pradesh12 the SC has declared
a provision authorizing the executive to interfere with tribunal justice as
unconstitutional characterizing it as violative of the rule of law which is
clearly a basic and essential feature of the constitution.

10 1975 Supp SCC 1.

11 AIR 1969 SC 33.

12 1987 AIR 663.

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Yet another case is of Yusuf Khan v. Manohar Joshi13 in which the SC
laid down the proposition that it is the duty of the state to preserve and
protect the law and the constitution and that it cannot permit any violent
act which may negate the rule of law.
In an early case of S.G. Jaisinghani V. Union of India14, the Supreme
Court portrayed the essentials of rule of law in a very lucid manner. It
observed: The absence of arbitrary power is the first essential of the rule
of law upon which our whole constitutional system is based. In a system
governed by rule of law, discretion when conferred upon executive
authorities must be continued within clearly defined limits. The rule of law
from this points of view means that decisions should be made by the
application of known principles and rules and, in general such decision
should be predictable and the citizen should know where he is. If a
decision is taken without any principle or without any rule it is
unpredictable and such a decision is antithesis of a decision taken in
accordance with the rule of law.
The Supreme Court in a case, namely, Supreme Court Advocates on
Record Association V. Union of India15, reiterated that absence of
arbitrariness is one of the essentials of rule of law.
In Maneka Gandhi vs. Union of India16, the Supreme Court declared
that Article 14 strikes against arbitrariness.
The Apex Court in Veena Seth v. State of Bihar17 extended the reach of
the Rule of Law to the poor and the downtrodden, the ignorant and the
illiterate, who constitute the bulk of humanity in India, when it ruled that
the Rule of Law does not exist merely for those who 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.
In Sheela Barse v. State of Maharashtra,18 the petitioner was a
freelance journalist who sought permission to interview the female
prisoners in the Maharashtra State Jails. The permission was granted by
the Inspector-General of Prisons. The petitioner started tape recording the

13 Writ Petition (civil) 673 of 1998.

14 AIR 1967 SC 1427

15 (1993) 4 SCC 441.

16 1978 AIR 597.

17 AIR 1983 SC 339.

18 1983 AIR 378.

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interview with the prisoners, she was instead advised to keep notes only.
When the petitioner raised objection on this score, her permission to
conduct the interview was cancelled since the grant of permission to
interview was a matter of discretion of the Inspector General and such
interviews are ordinarily allowed to research scholars only. Feeling
aggrieved by the cancellation of the permission, the journalist wrote a
letter to the Supreme Court on the ground that a citizen has a right to
know under Articles 19(1)(a) and 21 of the Constitution, if the Government
is administering the jails in accordance with law, and that the Press has a
special responsibility to collect information on public issues to educate the
people. Her letter was treated as a writ petition under Article 32 of the
constitution.
In certain jails in Bihar, under trial prisoners were kept in the leg iron bar
subjected to inhumane conditions. It was held violative of Article 21 of the
constitution and the basic principle of rule of law.
In Lt. Col. Priti Pal Singh v. Union of India,19 the Army Act did not
contain any provisions regarding the review of the judgement passed and
so was eventually held to be violative of the rule of law.

19 1982 AIR 1413.

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 SIGNIFICANCE OF RULE OF LAW

Rule of law has helped the modern democratic countries to keep

control over the oppressive, capricious and arbitrary exercise of
powers by the administrative authorities.
It empowers individuals with rights which cannot be easily taken-
away.

It treats everyone equally without discrimination.

Its supremacy ensures no person can claim to be above law.

It ensures adherence of principles of natural justice like: giving

reasonable opportunity, impartiality of decision, etc.
It leads to fairness, both substantive and procedural.

It also helps judiciary while interpreting laws.

The international Commission of Jurists in their Delhi Declaration made
in the year 1959 accepted the idea of the rule of law as a modern form of
law of nature.

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 CONCLUSION

The recent expansion of rule of law in every field of administrative

functioning has assigned it as a place of special significance in the Indian
administrative law. In all matters such as the protection of the rights of
the people, equal treatment before the law, protection against excessive
arbitrariness, the Constitution of India has provided enough mechanisms
to ensure that the Rule of Law is followed. Through its decisions the Courts
have strived to reinforce these mechanisms and ensure smooth justice
delivery to all citizens. Recent aggressive judicial activism can be seen as
a part of the efforts of the Constitutional Courts in India to establish rule-
of-law society, which implies that no matter how high a person, may be
the law is always above him.
Court is also trying to identify the concept of rule
of law with human rights of the people. The Court is developing
techniques by which it can force the government not only to submit to the
law but also to create conditions where people can develop capacities to
exercise their rights properly and meaningfully.
The public administration is responsible for effective implementation of
rule of law and constitutional commands, which effectuate fairly the
objective standards laid down by law. Every public servant is a trustee of
the society and is accountable for due effectuation of constitutional goals.
This makes the concept of rule of law highly relevant to our context.

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 BIBLIOGRAPHY
Books:
1. C.K. Takwani, Lectures on Administrative Law (5th edition 2012).
2. Dr. J.J.R. Upadhyaya, Administrative law, 7th edition (Central Law
Agency) 2010.
3. M.P. Jain & S.N. Jain, Principles of Administrative law, 6th edition
2011.
4. S.P. Sathe, Administrative Law, 7th edition (LexisNexis
Butterworth Wadhwa Nagpur), 2012.

Websites:
1. www.manupatra.com
2. www.sscrn.com
3. www.ssc.com
4. www.legalservices.com

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