CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

ASSIGNMENT : ADMINISTRATIVE LAW

ASSIGNMENT SUBMISSION ON THE TOPIC :- “ RULE OF LAW ”

Under the Supervision of :- Prof. P.K Mishra sir

(professor , school of law and governance , cusb)

Submitted by : Aditya kumar

Subject : Administrative law.
B.A LLB , 4th semester
Enrolment no:- cusb 2213125010
Section :- B
 ACKNOWLEDGEMENT

My sincere efforts have made me to accomplish the task of completing this assignment. I
have given my best efforts in making of this assignment. However, it would not have been
possible without the kind support and help of many people. I would like to express my
sincere gratitude to the HEAD AND DEAN Prof.(Dr). S.P Srivastava and the university for
providing me with facilities required to do my assignment.
I am highly indebted to my
Administrative law Prof.(Dr) P.K Mishra sir for his valuable guidance which has promoted
my efforts in all the stages of making of this assignment. My thanks and appreciation also
goes to my classmates and librarians in developing different stages which are a important part
of this assignment and also to the people who have willingly helped me out with their
abilities.
Finally, words are not sufficient to express my gratitude to the family
member for supporting and encouraging me and without which I could not reach this level.

Thank you
 Table of content

1. Introduction
2. Concept and definition of rule of law
3. Origin of rule of law
4. Dicey concept of rule of law
5. Rule of law and the Indian constitution
6. Rule of law and the Indian judiciary with landmark cases
7. Conclusion
8. Bibliography.
 INTRODUCTION
1
“The bedrock of our democracy is the rule of law and that means we have to have an
independent judiciary, judges who can make decisions independent of the political winds that
are blowing.”-Caroline Kennedy
In order to understand the concept of rule of law, it is to be comprehended that the state is
governed not by the ruler or the nominated representatives of the people but by the law. The
term ‘Rule of Law’ is nowhere defined in the Indian Constitution but this term is often used
by the Indian judiciary in their judgments. Rule of law has been declared by the Supreme
Court as one of the basic features of the Constitution so it cannot be amended even by the
constitutional amendment. Rule of law is seen as an integral part of good governance.

As per rule of law, it is required that the people should be governed by the accepted rules
rather than the decisions that are arbitrarily taken by the rulers. For this, it is essential to keep
in mind that the rules that are made should be general and abstract, known and certain and it
should apply equally to all individuals. Legal limitation on government is the essential
attribute of constitutionalism. Rulers are not above law under the concept of
constitutionalism, government power is divided with laws enacted by one body and
administered by another and for that an independent judiciary exists to ensure laws.It One of
the very basic principles of the English Constitution is the concept of the Rule of Law. The
concept is well established in all legal systems in the world which include the constitutions of
the United States of America and India. In this article, you can read all about the concept of
the rule of law, its meaning, origins, relation to the Indian Constitution and exceptions to the
rule of law for the polity and governance segment.

Chief Justice Edward Coke of England, who held office during the reign of King James I, is
considered to be the originator of this doctrine. Justice Coke while emphasizing the
supremacy of law against the executive stated that the King should be under God and Law.
The theory of Justice Coke was developed by Dicey in his classic work “The Law and the
Constitution” which was published in the year 1885.

1
https://legalserviceindia.com/legal/article-719-rule-of-law.html#google_vignette
 Concept and Definitions of rule of law

The term “Rule of Law” is derived from the French expression ‘La Principe de
Legalite’ (the principle of legitimacy) referring to a government based on the rule of law and
justice in contrast to the dictatorship.2

 Rule of law is one of the basic principles of the English Constitution and the doctrine
is accepted in the Constitution of U.S.A and India as well.
 The entire basis of Administrative Law is the doctrine of the rule of law.
 Sir Edward Coke, the Chief Justice of King James I’s reign was the originator of this
concept. He maintained that the King should be subject to God and the Law and
established the supremacy of the law against the Supreme Court and that nothing
could be against the law.
The concept of Rule of law is old-fashioned and ancient. Ancient Greek philosophers, such as
Plato and Aristotle, lived about 350 BC.

Definitions by various scholars3 :-

Plato wrote: “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.

Aristotle further underwrites the concept of the Rule of Law that “law should govern and that
in power should be servants of the laws.”

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”

Max Weber as – “legal domination as an idea of government of law rather than an idea of
men.’’

2
https://lawbhoomi.com/rule-of-law-and-its-applicability-in-india/#What_Is_Rule_of_Law
3
https://blog.ipleaders.in/rule-law-relevance/#Rule_of_Law_And_Indian_Constitution
A.V.Dicey, “the rule of law means the absolute supremacy or predominance of the regular
law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness
or even of wide discretionary authority on the part of the government.”

Origin of 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 falls 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 Carta 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 (U.S.A.) 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 Dicey4.

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 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

4
https://blog.ipleaders.in/rule-law-relevance/#Origin_of_the_Rule_of_Law
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 concept of rule of law

In 1885, Professor A.V Diceydeveloped this concept of Coke and propounded three
principles or postulates of the rule of law in his classic book ‘Law and the Constitution.’
According to Professor A.V Dicey, for achieving supremacy of law three principles of
postulates must be followed which are as follows5:
·Supremacy of law,
·Equality before law and
·Predominance of Legal Spirit

1. Supremacy of law
As per the first postulate, rule of law refers to the lacking of arbitrariness or wide
discretionary power. In order to understand it simply, every man should be governed by law.
According to Dicey, English men were ruled by the law and the law alone and also where
there is room for arbitrarinessand that in a republic no less than under a monarchy
discretionary authority on the part of the Government must mean insecurity for legal freedom
on the part of its subjects. There must be absence of wide discretionary powers on the rulers
so that they cannot make their own laws but must be governed according to the established
laws.

2. Equality before law

According to the second principle of Dicey, equality before law and equal subjection of all
classes to the ordinary law of land to be administered by the ordinary law courts and this
principle emphasizes everyone which included government as well irrespective of their
position or rank. But such element is going through the phase of criticisms and is misguided.
As stated by Dicey, there must be equality before law or equal subjection of all classes to the
ordinary law of land. French legal system of Droit Administrative was also criticized by him

5
https://byjus.com/free-ias-prep/rule-of-law-upsc-notes/
as there were separate tribunals for deciding the cases of state officials and citizens
separately.

3.Predominance of Legal Spirit

According to the third principle of Dicey, general principles of the Indian Constitution are the
result of the decisions of the Indian judiciary which determine to file rights of private persons
in particular cases. According to him, citizens are being guaranteed the certain rights such as
right to personal liberty and freedom from arrest by many constitutions of the states
(countries). Only when such rights are properly enforceable in the courts of law, those rights
can be made available to the citizens. Rule of law as established by Dicey requires that every
action of the administration must be backed and done in accordance with law. In modern age,
the concept of rule of law oppose the practice of conferring discretionary powers upon the
government and also ensures that every man is bound by the ordinary laws of the land as well
as signifies no deprivation of his rights and liberties by an administrative action.[4]

Merits and Demerits of Dicey’s Concept6

Merits
1. The theory developed by A.V. Dicey helped in making limits to the power of administrative
authorities.
2. Dicey’s theory of Rule of Law played a major role in growth and recognition of administrative law.
3. The theory acts as a scale for the test of administrative action.
Demerits
1. Dicey’s theory of Rule of Law was not completely accepted during that era also.
2. Dicey, through his theory, failed to distinguish between discretionary and arbitrary power.
3. Dicey dealt with the right of individual only and ignored powers of administration.

6
https://www.ijcrt.org/papers/IJCRT2010155.pdf
 Rule of law and the Indian constitution

The principle of Rule of Law has played a major role in developing Indian Democracy. At the
time of framing of Constitution, the framers adopted some of the provisions from USA and
some of the provisions from USA and some of the provisions from England. Our
constitutional fathers adopted the concept of Rule of Law from England and many of its
provisions are incorporated in the Indian Constitution. In India, the Constitution is considered
to be supreme and no one is above it. The Preamble of Indian Constitution clearly sets out the
Principles of Rule of Law in Part III of the Constitution. The Indian Constitution is supreme
than the three wings of it, i.e. Parliament, Executive and Judiciary. It is enriched with justice,
equality and liberty. Article 14 of the Constitution provides Equality before Law and Equal
Protection of Law. Fundamental Rights are available to every citizen of India through
Articles 13, 14, 15, 19, 21, 22, 25, 28 and 31A. In case an individual faces violation of such
rights then he can approach Supreme Court or High Court under Article 32 and 226 of the
Constitution of India. It is compulsory that any law made by the Central Government or State
Government should be complied in accordance with the Constitution of India but if found
contravening with the provisions of the Constitution then such law will be declared void.
According to Article 32 of the Constitution, the Supreme Court has the power to issue writs
namely Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari7.
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.

7
https://www.ijcrt.org/papers/IJCRT2010155.pdf
 Rule of law and the Indian judiciary with landmark cases:-

1. ADM Jabalpur v. Shivkant Shukla 8

This case is also known as “Habeas Corpus case”. It is one of the most importantcase when
comes to rule of law. The question that was raised before the hon’ble court was that whether
there was any rule of law in India apart from Article 21 of the Indian Constitution. It was in
context relating to the proclamation of emergency where the enforcement of Articles 14, 21
and 22 were suspended.

2. Som Raj v. State of Haryana 9

In this case it was held that the absence of arbitrary power is the postulate of rule of law upon
which the whole constitutional edifice is dependent.

3. Union of India v. Raghubir Singh

In this case it was held by the court that a considerable degree that governs the lives of the
people and regulates the State function flows from the decision of the superior courts.

4. Chief Settlement Commissioner, Punjab v. Om Prakash10

In this case, Supreme Court observed“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 matter into notice.”

5. Keshvananda Bharti v. State of Kerela 11

In this case, the Supreme Court enunciated the concept of rule of law as one of the most
important aspects of doctrine of basic structure
8
AIR 1976, 2 SCC 521.
9
AIR 1990 SC 1176
10
AIR 1969 SC 33
11
AIR 1973 SCC 225
 6. Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil 12

In this case, the ration laid down was “If the rule of law has to be preserved as the essence of
the democracy of which purity of elections is a necessary concomitant, it is the duty of the
courts to appreciate the evidence and construe the law in a manner which would sub serve
this higher purpose and not even imperceptibly facilitate acceptance, much less affirmance, of
the falling electoral standards. For democracy to survive, rule of law must prevail, and it is
necessary that the best available men should be chosen as people's representatives for proper
governance of the country. This can be best achieved through men of high moral and ethical
values who win the elections on a positive vote obtained on their own merit and not by the
negative vote of process of elimination based on comparative demerits of the candidates.”

7. Secretary, State of Karnataka and Ors. v. Umadevi 13

A Constitution Bench of this Court has laid down the law in the following terms:“Thus, it is
clear that adherence to the rule of equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our Constitution, a court would certainly
be disabled from passing an order upholding a violation of Article 14 or in ordering the
overlooking of the need to comply with the requirements of Article 14 read with Article 16 of
the Constitution.”

12
AIR 1994 SC 678.
13
AIR 1992 SCR 826.
 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
is the antithesis of arbitrariness. 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 defense.

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.
 Bibliography

Books:-

1. Administrative Law (7th edition) – M.P.Jain&S.N.Jain – LexisNexis Butterworth

Wadhwa.

2. Administrative Law – D.D.Basu – Kamal Law House, Kolkata

3. Administrative Laws (8th edition 2012) - I.P.Massey – Eastern Book Company, Lucknow
4. Administrative Law (10th edition 2009) – Wade & Forsyth – Oxford University Press

Websites:-

1. https://legalserviceindia.com/legal/article-719-rule-of-law.html#google_vignette
2. https://byjus.com/free-ias-prep/rule-of-law-upsc-notes/
3. https://lawbhoomi.com/rule-of-law-and-its-applicability-in-india