JAMIA MILLIA ISLAMIA

RULE OF LAW IN
ADMINISTRATIVE LAW

Submitted By,
Name :- Hritikka Kak
Student ID :- 201901747
B.A. L.L.B. (6th Semester) (Regular)
Faculty Of Law, Jamia Millia Islamia
Submitted To :- Prof. Alisha Khatun
 CONTENTS

 Acknowledgement
 Introduction
 Rule of Law : Meaning
 Origin of the Rule of Law
 Dicey’s Concept of Rule of Law
 Basic Principles of Rule of Law
 Exceptions to Rule of Law
 Rule of Law in Modern Sense
 How Freedom of Speech and Expression is an Integral Part
of the Rule of Law
 Rule of Law and Indian Constitution
 Some of the Indian Case Laws
 A.K. Gopalan Vs State
 A.K. Kraipak Vs Union of India
 Indra Nehru Gandhi Vs Raj Narayan
 Bachan Singh Vs State of Punjab Singh
 Sambamurthy Vs State of Andhra Pradesh
 Yusuf Khan Vs Manohar Joshi
 Conclusion
 AKNOWLEDGNMENT

First and foremost, I would like to thank our subject teacher Prof.
Alisha Khatun, for the valuable guidance and advice. She inspired
us greatly to work on this interesting assignment. Her willingness to
motivate us contributed tremendously to our assignment. Besides, I
would like to thank the faculty staff for providing us with a good
environment and facilities for completing this assignment. In
addition, I would also like to thank my seniors who provided me
with the valuable information acting as a source of guidance in
making the assignment. Finally, an honourable mention goes to my
family and friends for their understandings and supports in
completing this assignment. Without the help of the particulars
mentioned above, making of this assignment would not have been
possible.
Thank You.
 RULE OF LAW
INTRODUCTION
In the words of the UN Vienna Declaration of 1993 “human rights are universal,
indivisible, interdependent and interrelated and therefore should be protected and
promoted in a fair and equitable manner by something as fundamental and all-
pervasive as the rule of law.’’ The latest encounter of the gangster Vikas Dubey has
sparked the debate regarding rule of law and has also raised questions on the exercise
of violence by the institutions of the state. Criticisms have been coming from across
the nation especially from the opposition that such an act is against the fundamentals
of law, that is, against the rule of law. In the present context where incidences like
encounters and mob lynching have started to become obvious for people it gets
necessary to indicate what importance the rule of law has in such situations and hence
the main focus of this article is dedicated towards what does rule of law exactly means
and how it has developed through time to meet with the present scenario.

RULE OF LAW : MEANING

The expression “Rule of Law” is derived from the French phrase ‘le principe de
legalite’1 meaning the principle of legality. The Rule of law is a product of struggle by
the people from centuries for recognition of their inherent rights and the concept of a
rule is very ancient and old. During the ancient times, the concept of rule of law was
discussed by the Greek philosopher Aristotle and Plato at the time of 350 BC so now
you can imagine how old this concept. Plato has written that if rule of law under the
supervision of any law than it doesn’t have any value and the concept of state will get
collapsed and if the law is master of government and government work as a slave for
law then the concept of state will work effectively and humans can enjoy their rights.
The entire basis of the administrative law is the Rule of law and delegated legislation
is the backbone of administrative law2.
 According to Plato, the meaning of rule of law is that it is supreme in nature and
nobody is above the law.
 According to Aristotle, has written that law should be the final sovereign of the
state.
 According to Sir Edward Coke, “Rule of Law” means the absence of arbitrary
power on the part of Government.

1
Andrei Marmor, "The Rule of Law and its Limits" 23(1) Law and Philosophy (2004).
2
Adriaan Bedner, "An Elementary Approach to the Rule of Law" 2 *Hague Journal on the Rule of Law" (2010).
 According to Prof. Wade expressed, “The rule of law requires that the government
should be subject to the law rather than the law subject to the government”
 According to Black’s law dictionary, Rule of Law may be specifically defined as
supremacy of law where decision is made by applying known principles or laws,
where there is no intervention of discretion in application of such principles or
laws.
In the Indian context3, the meaning of rule of law has somewhat been much expanded.
The Supreme Court has in various occasions further enunciated and illustrated the rule
of law through its judgement in furtherance of the basic principles as laid down by
A.V. Dicey. It is considered as a part of the basic structure of the Constitution and,
hence, it cannot be abrogated or destroyed even by the Parliament. The ideals of
constitution; liberty, equality and fraternity have been enshrined in the preamble. Rule
of law mandates that no person shall be subjected to harsh, uncivilised or
discriminatory treatment even if the object is to protect and secure law and order.

ORIGIN OF THE RULE OF LAW

The first proponents of the doctrine of the Rule of Law are believed to be Greek
philosophers including Aristotle, Plato, Cicero. For instance, Plato in his book known
as ‘Complete Works of Plato’ is found to have written that the collapse of the state is
not far where the law is made subjective to the authorities but the states where the law
is considered as supreme all the blessings of the god fall on such state and it flourishes
through all times. The rule of law is an ancient ideal first posited by Aristotle, a Greek
scholar, as a system of rules inherent in the natural order.
In England, Rule of law began sometimes around 1215, when King John of England
signed the Magna Carta4 of 1215. The signing of Magna Carta indicated the consent of
the Monarchy of England to be under the law and the law to be supreme. The doctrine
of rule of law in England took a new look after the conflict between the parliament and
monarchy or king aroused. In this conflict the parliament and the monarchy were
struggling to be supreme authority. This conflict was resolved in favour of the
parliament. After parliament became supreme over the monarchy it started making the
laws which controlled and limited power of the monarchy. Hence executive organs in
England became subjected to the law of the parliament and that was the beginning of
the rule of law in England.
In the United States of America (USA) the doctrine of Rule of Law was first
introduced in 1776 by the constitutional lawyers known as Paine. He is of the view
that America being a free country considers Law as the king because in every country
which is free law should be the king and no one else. More ideas of Rule of law were
further developed by the renowned English constitutional lawyer by the name of
Dicey.
In the modern sense, the most famous exposition of the concept of rule of law was
given by Prof. Albert Venn Dicey in his book ‘THE LAW OF THE

3
B. N. Mani Tripathi, Jurisprudence (The Legal Theory) 67 (Allahabad Law Agency, Allahabad, 2018).
4
https://www.britannica.com/topic/Magna-Carta
CONSTITUTION’ in respect to the powers which the government must exercise in
accordance to the law. Rule of law consists of several basic principles which law and
policy makers, judges and law enforcement agencies should consider while exercising
authority in a democratic society. This means all duties, power and functions of
government, including its organs and authorities are done in accordance with the law.

DICEY’S CONCEPT OF RULE OF LAW

Rule of law was developed by a British Jurist : Albert Venn Dicey5 in his book called
“The Law of the Constitution” in 1885. In this book, he develops this concept and
identifies 3 principles while establishing the rule of law. According to Albert Venn
Dicey rule of law first meaning is “No man is punishable except for a Distinct breach
of Law” established in the ordinary legal manner before the ordinary court. The
government or any high-class authority cannot punish any individual on the personal
ground till the time an individual has committed an offence and if the offence is
committed then proper procedure and trail will be conducted and in case the final
verdict is that the offence is committed then physical or economic punishment will be
given to the accused person. This clearly indicates that even if 100 criminals are not
arrested is ok rather than punishing one innocent person. “No man is above the law”
every man, whether he is from a higher rank or whatever his position is subjected to
ordinary law under the jurisdiction of the ordinary court. No man will be derived from
his personal property until the time he has breached any law established by the
ordinary court. Article 14 of The Constitution of India also talk about that “Every Man
is equal before the law, no one is above”. The principle of Rule of law is accepted by
Article 14 of the Constitution and it has 2 main rule that no man is above the law and
no man is punishable except for a breach of law and the last rule given above is not
accepted by our constitution.
According to Dicey’s theory, rule of law has three pillars 6 based on the concept that “a
government should be based on principles of law and not of men”, these are-
 Supremacy of Law
This is the first pillar of Dicey’s concept of rule of law. It means that the law rules
over all people including the persons administering the law. According to Dicey the
absolute supremacy of the law as opposed to the arbitrary power of the government is
what constitutes the rule of law. In other words, a man should only be punished for the
distinct breach of law, and not for anything else. The person cannot be punished by the
government merely by its own fiat but only according to the established law. Further,
Dicey asserted that discretion has no place where there is supremacy of law.
According to him discretion is a link to arbitrariness. Dicey says that wherever there is
discretion, there is room for arbitrariness and discretionary authority on the part of the
government to jeopardize the legal freedom of the people. 
 Equality before Law
5
IP Massey, Administrative Law (Eastern Book Company, Delhi, 9th ed., 2017).
6
B. N. Mani Tripathi, Jurisprudence (The Legal Theory) 67 (Allahabad Law Agency, Allahabad, 2018).
The second important pillar of Dicey’s concept of Rule of Law is Equality before Law.
In other words, every man irrespective of his rank or position is subject to the ordinary
law and jurisdiction of the ordinary court and not to any special court. According to
him special law and special courts is a threat to the principles of equality. Therefore,
he is of the view that there should be the same set of laws for all the people and should
be adjudicated by the same civil courts.
 Predominance of the legal spirit
The third pillar of Dicey’s concept of Rule of Law is predominance of legal spirit.
According to Dicey, for the prevalence of the rule of law there should be an enforcing
authority and that authority he found in the courts. He believed that the courts are the
enforcer of the rule of law and hence it should be free from impartiality and external
influence. Independence of the judiciary is therefore an important pillar for the
existence of rule of law. He asserted that the courts of law and not the written
constitution are the ultimate protector of an individual’s fundamentals.
Dicey’s theory has been criticised by many from various angles but the basic tenet
expressed by him is that power is derived from, and is to be exercised according to
law. In substance, Dicey’s emphasis, on the whole, in his enunciation of rule of law is
on the absence of arbitrary power, and discretionary power, equality before law, and
legal protection to basic human rights and these ideals remain relevant and significant
in every democratic country even today.

BASIC PRINCIPLES OF RULE OF LAW

These are the following principles7 of Rule of Law :-
 Law is supreme and nobody is above the law.
 All the things should be done according to a law not as per whim.
 No person should be suffered except for the breach of law.
 Absence of arbitrary is the soul of the rule of law.
 Equality before the law and equal protection of the law.
 Speedy trial.
 The fair and just procedure should be conducted.
 Independent and impartial judiciary.
EXCEPTIONS TO RULE OF LAW
In order to cope up with the need of practical government, a number of exceptions 8
have been engrafted on these ideals of rule of law provided be Dicey in modern
democratic countries, e.g., there is a universal growth of broad discretionary powers of
the administration; many administrative tribunals have developed; the institution of
preventive detention has now become the normal feature in many democratic

7
Joseph Raz, "The Politics of the Rule of Law" 3 *Ratio Juris" (1990).
8
Martin Krygier, "The Rule of Law and Its Rivals" 9 Hague Journal on the Rule of Law (2017).
countries. Nevertheless, even after incorporating certain exceptions the basic ideas of
rule of law are still preserved and promoted.
In India, Dicey’s concept of rule of law cannot be said to be followed in strict sense,
there are certain exceptions provided under the Indian Constitution and other laws.
 Existence of wide discretionary power to the executive
President and governor of this state are given wide discretionary power in relation to
certain matters under the Indian Constitution. Under Article 72 and 161, the president
and the governor respectively have a prerogative to grant pardons, reprieves, respite or
remissions of punishment or to suspend, remit or commute the sentence of any person
convicted of any offence. Article 85 provides the president with discretion in relation
to the prorogation of either house of the parliament and the dissolution of the house of
people. The governor on the other hand has discretion in sending the report to the
president under Article 356 of the constitution and in reserving bills for consideration
under Article 200.
Police which are a part of the executive are given wide power of arrest without warrant
in case of cognizable offences. Criminal courts in India have wide discretionary power
in providing sentences.
 Immunities and privileges
Under Indian constitution equality before law doesn’t mean that the power of a private
citizen should be the same as public official. Public officials like ministers, local
authorities, public officers and others of like have many powers, immunities and
privileges which ordinary citizens don’t have. For example here are some of them
mentioned below :
 The President/Governor is not answerable to the court of law in discharge of his
executive functions.
 No criminal proceedings whatsoever can be instituted against President or
Governor of state, while he is in office.
 No civil proceedings in which relief is claimed can be filed against the President or
Governor except after an expiration of a 2 month notice that is served on him.
 Under International laws, the visiting heads of state, heads of government,
ministers, officials and foreign diplomats who are posted in the country are not
subjected to jurisdiction of local courts in discharge of their official functions.

RULE OF LAW IN MODERN SENSE

It is clear that there has been a constant alteration and modifications in the concept of
Rule of Law to suit the need of the present scenario. According to Prof. Baxi A study
of Keshvananda9, Indira Gandhi and other Habeas corpus cases provides a distribution
of Indian Judicial thought on the conception of the rule of law which has evolved well
over a quarter century. The Concept of Rule of Law has been given a new dimension
by the liberal interpretation of the Supreme Court of India. Rule of law today
envisages not arbitrary power but controlled power. Today, the Dicey theory of Rule
9
https://blog.ipleaders.in/kbharatikerala/
of law cannot be accepted in total. The modern concept of rule of law is very wide and
therefore set up an example for the government to achieve and this concept was
developed by the International Commission of Jurists which is also known as Delhi
Declaration, 1959.
According to this, the Rule of the law says that the function of the government 10 in a
free society is to exercise and create a condition in which the dignity and respect of an
individual are increased or upheld. It does not only recognize civil or political rights
but the introduction of certain social, political, economic, and educational etc. which
are necessary for the full development of personality.
Moderating the Dicey’s meaning in the present day context Prof. Wade has included,
effective control of and proper publicity for delegated legislation under the concept of
Rule of Law, particularly when it imposes penalties that should as far as practicable be
defined; every man should be responsible to, the ordinary laws whether he be a private
citizen are public official, the private man’s right should be determined by impartial
and independent tribunals and fundamental private rights are safeguards by ordinary
laws of England.

HOW FREEDOM OF SPEECH AND EXPRESSION IS AN

INTEGRAL PART OF THE RULE OF LAW
Rule of law is very founding stone of stage of democratic stands that’s why it is
considered as an important and integral part of Rule of Law. To ask for the right of
others and the way they are expressed can be either by speaking, writing, drawing, etc.
and above all rule of law does not go with arbitrariness which can be established by
fiving freedom and one of such freedoms is freedom of Speech and expression.
Now, let’s understand about Freedom of Speech and expression is one of the important
fundamental rights given under the Constitution for every individual to enjoy it fully.
Freedom of speech and expression should be used in a very delicate manner because
while expressing the idea, thought it should not defame or hurt the sentiments of any
individual or religion view and without the fear of getting punished for any offensive
act. As per UDHR (Universal Declaration of Human Resources) every individual has
the right to freedom of expression and opinion. The right involves the right to hold the
information without any interference from any media or other sources. Right to
freedom of speech and expression is recognized as an essential human right
under Article 19 of the UDHR as well as in ICCPR (International Covenant on Civil
and Political Rights).

RULE OF LAW AND INDIAN CONSTITUTION

Rule of law has no fixed articulation in the Indian constitution though the Indian courts
refer to this phrase in variety of its judgements. The maxim ‘The King can do no
wrong’ has no application in India and all public authorities are made subject to
jurisdiction of ordinary law courts and to the same sets of laws. In Indian constitution
10
C. K. Tamwani, Lectures on Administrative Law by CK Takwani (Eastern Book Company, Delhi, 2016).
is the law of the land and prevails over Judiciary, the Legislature and the Executive.
These three organs of the state have to act according to the principles engraved in the
constitution.
Under the Indian constitution the rule of law is incorporated in many of its provisions.
For example, the object of achieving equality, liberty and justice is reflected in the
Preamble to the Indian constitution. Article 14 guarantees right to equality before law
and equal protection of law. It states that no one shall be denied the equality before
law and the equal protection of the law by the state. The direct connotation of these
words provided under Article 14 is that the law is supreme and there is no scope of
arbitrariness as everybody is governed by the rule of law. Law treats everybody
equally without any biases, which is the basic requirement of Rule of Law. In the case
of Maneka Gandhi v. Union of India 11 the Supreme court in clear words observed
that Article 14 strikes at arbitrariness in state actions and ensures fairness and equality
in treatment. Rule of law which is the basic feature of the Indian Constitution excludes
arbitrariness. Where there is arbitrariness there is denial of Rule of Law. Article 15,
16, 23 further strengthened the ideal of equality by the incorporation of protective
discrimination as a means of ensuring equality amongst equals.
Article 13 of the Indian Constitution is another example which upheld the doctrine of
Rule of Law in India. The “laws’’ defined under Article 13 as rules, regulations, bye-
laws and ordinances can be struck down if they are contrary to the constitution of
India. In Keshavananda Bharti v. State of Kerala 12, the Supreme Court has included
the Rule of Law as the basic feature of the Constitution. In this case, though the
Supreme Court upheld the amending power of the Parliament which extends to every
Article provided under the Constitution but has limited that power by providing that
such power cannot be used in amending the basic feature of the Constitution.
Fundamental rights are universal and inalienable rights. Such fundamental rights can
only be protected by the state that respects the Rule of Law. Fundamental rights are
provided under Part III of the Indian Constitution. Such Fundamental Rights cannot be
abrogated and can be enforced under Article 32 and 226 of the Constitution. The
Indian Constitution is the supreme law of the land and every law has to be in
conformity with the Constitution. If any law is in violation of any of the provision of
the Constitution, especially the fundamental rights shall be declared void. One of the
basic postulates of the Rule of Law besides justice and equality is Liberty. The
fundamental right to life and personal liberty is provided under Article 21 of the
Constitution. This Article postulates that no person shall be deprived of his life and
liberty except by the procedure established by law, thus making the law supreme. Such
right also guarantees that no person is convicted except for the violation of law which
is in force at the time of commission of an offence and not for any other act. The
principle of double jeopardy and self-incrimination is also well recognized in the
Indian Constitution. 
Article 19 which provides various freedoms to the individual is again something which
runs on the principles of Rule of Law as these freedoms can only be curtailed on the
11
https://lawlex.org/lex-bulletin/case-summary-maneka-gandhi-vs-union-of-india-1978/19368
12
https://blog.ipleaders.in/kbharatikerala/
grounds of reasonableness which should be satisfied on the basis of Article 14, 19 and
21 of the Constitution. These three articles are so essential to the Indian Constitution
that they are often called as the Golden Triangle Articles of the Constitution. In E.P
Royappa v. State of Tamil Nadu & Another13. The Supreme Court held that for the
state to justify its action of curtailment of fundamental right it has to fulfil all the
requirements provided under Article 14, 19 and 21. 
Another significant derivative of rule of law is judicial review. Judicial review is the
essential part of the rule of law. It not only protects the constitutional principles but
also checks administrative actions and its legality. All actions of the state authorities
and bureaucracy are all subject to judicial review and are accountable to the courts for
the reasonableness of their actions. These are the essential ingredients and the basic
assumption of rule of law and not of men in all civilized nations. The Indian
constitution has also provided adequate provision for the independence of judiciary as
it is the guardian of the constitution and fundamental rights of the citizens. Judicial
review is considered as one of the basic features of the constitution. Hence the
principles of rule of law run entirely through the fabric of the Indian Constitution.

SOME OF THE INDIAN CASE LAWS

As mentioned earlier, rule of law is not expressly provided under the Indian
Constitution but it has been assertively pronounced as the essential part of the
Constitution by the Supreme Court through several judgements. Some of them are as
under :
 A.K. Gopalan Vs State14
Also known as the Habeas Corpus case, the order of detention passed during
emergency was challenged in this case on the grounds that such order is violative of
the principles of rule of law which is the basic feature of the Indian Constitution. The
issue that was before the Supreme Court to decide was whether there is any rule of law
in India apart from Article 21 of the Constitution. The majority bench in the case
decided the matter in the negative while Justice Khanna gave a dissenting Judgement.
He observed that the Rule of Law is accepted in all civilised society and is considered
as a symbol of society being free. He further observed that Rule of Law is the only
means of archiving the balance between individual liberty and public order. Hence, he
was of the opinion that even if there was no such Article like Article 21 in the Indian
Constitution the state has no power to deprive a person of his life and liberty without
the authority of law.
 A.K. Kraipak Vs Union of India15
Supreme Court on the question whether the principle of natural justice can be followed
in administrative function held that every instrumentality of the state is bound by the
doctrine of rule of law and is charged with the duty of discharging their functions in a
just, fair and reasonable manner, which forms the basic principle of Rule of Law

13
https://lawbhoomi.com/e-p-royappa-v-state-of-tamil-nadu-and-anr-air-1974-sc-555/
14
https://indiankanoon.org/doc/1857950/
15
https://indiankanoon.org/doc/1857950/
without which the concept of Rule of Law has no validity. The rule of law is
applicable to the entire field of the administration as every organ of the state is
regulated by the rule of law.
 Indra Nehru Gandhi Vs Raj Narayan16
In this case the 39th amendment to the Constitution was challenged which has placed
the election of President, Prime Minister, Vice-President and the Speaker of Lok
Sabha unjustifiable in the courts of law. Holding the amendment as unconstitutional
chief justice Ray found the amendment as violative of the basic structure of the
Constitution i.e., Rule of Law. Rule of Law being anti thesis to arbitrariness does not
empower the parliament to pass a retrospective law validating an invalid election.
Such exercise of power is opposed to the basic principles of Rule of Law.
 Bachan Singh Vs State of Punjab Singh17
This a landmark judgement on death penalty. The question whether death penalty can
be imposed under Section 302 of IPC was discussed in this case. While the majority of
the judges held that the death penalty can be imposed under rearrest of the rare
situation, justice Bhagwati dissented with the majority opinion and said that imposition
of the death penalty under Section 302 of IPC is ultra vires and void as it violates
Articles 14 and 21 of the Constitution. Justice Bhagwati has emphasized that rule of
law denies any room for arbitrariness and unreasonableness. To ensure this, he has
suggested that the power of the parliament to make law should not be unfettered and
the excesses of executive and legislative power should be brought under the check by
the independent judiciary so that the rights of the citizen can be protected. 
 Sambamurthy Vs State of Andhra Pradesh18
In this case the Supreme Court upheld the principles of rule of law as the basic
structure of the Indian Constitution. Clause 5 of Article 371-D was challenged before
this court which provided the government with the power to modify or annul the
administrative tribunal’s order. Chief Justice Bhagwati in this case held Clause 5 of
Article 371-D as unconstitutional on the basis of doctrine of basic structure. He held
that clause 5 is contrary to the principle of rule of law which is the basic structure of
the Constitution and is thus unconstitutional. Judicial review which is one of the tenets
of rule of law is provided to the courts under the constitution to ensure that the law is
observed and is complied with by the executive and other authorities and such power
of judicial review cannot be taken away from the court. Any such attempt would be
against the Rule of law and thus ultra vires.
 Yusuf Khan Vs Manohar Joshi19
The SC laid down that the constitution places a duty over the state to maintain and
preserve law and order and to see that no act violence overpasses the mandate
provided by the rule of law. Hence, it is quite evident that the concept of rule of law is
gaining importance and attention and judicial efforts are made to make it stronger.

16
https://indiankanoon.org/doc/1857950/
17
https://indiankanoon.org/doc/1857950/
18
https://indiankanoon.org/doc/1857950/
19
https://indiankanoon.org/doc/1857950/
CONCLUSION
The above-mentioned judgement clearly states the evolution in the concept of rule of
law in India. The basic principles of rule of law are not followed stricto-sensu in the
Indian context. It has modified the application of rule of law from time to time to meet
the exigency of the situation. Rule of law is the fundamental principle of governance
in any civilized democratic country. It's the polar opposite of injustice. A democratic
country like India prides itself on the rule of law. When a crime is committed a process
is followed. The perpetrator is arrested, contingent on judicial sanction. Suspects are
questioned. Evidence is collected. Interrogations are conducted. A case is built up. The
court examines the testimonies and evidence. The defendant has a right to legal
defence. The judiciary after scrutinizing the whole case, based on the law, hands down
its decision, which can then be appealed against. In every civilized society, this
process is undertaken, not just because the criminal jurisprudence provides that the
guilty is presumed to be innocent until convicted, but because this is the only way to
provide the system with legitimacy so as to provide the arbitrary exercise of power.
The fundamental principle of the rule of law is that every human being, even if he is a
criminal, is entitled to basic human rights and due process. Encounter killings are the
complete denial of such due process which forms the essential part of rule of
law. Observing rule of law is the true basis of a democratic society. Without it,
democracy is nothing but an empty phrase.