RULE OF LAW

INTRODUCTION
 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.
 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.

EVOLUTION OF RULE OF LAW

The concept of Rule of law is old-fashioned and ancient. Ancient Greek philosophers, such as
Plato and Aristotle, lived about 350 BC.

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”.

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

As per Prof. 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.”
Edward Coke is the originator of concept of Rule of Law. But the credit of developing the
concept of rule of Law goes to Prof. A.V. Dicey who in his old book “Introduction to the
Study of the Law of the Constitution” published in 1885 tried to develop the concept of
Rule of Law. According to Dicey;
1. No person shall be liable on conviction or to be liable to physical or material suffering
for any reason other than a breach of law established in the ordinary course of legal
proceedings before the Supreme Court of the country.
2. This proves the fact that the law is absolutely supreme and does not include the
existence of oppression in any way.
3. He held that everyone, regardless of his or her position or status, was subject to the
general law of the state and could not be governed by ordinary courts.
DICEY’S CONCEPT OF RULE OF LAW
Professor A.V. Dicey is known to be the main exponent of the concept of the rule of law. In
1885, he propounded three principles of the rule of law in his classic book ‘Law and the
Constitution’. According to Professor A.V. Dicey, to achieve the supremacy of law the
following three principles must be followed:
1. Supremacy of Law
 This is the first pillar of Dicey’s concept of rule of law.
 The Rule of Law rejects all kinds of arbitrary and discretionary powers of the
government or public officials.
 It implies that a man may be punished for a breach of law, but he cannot be
punished for anything else.
2. Equality Before Law
 The second important pillar of Dicey’s concept of Rule of Law is Equality before Law.
 Dicey emphasizes the impartiality of law.
 It means that there shall be no distinction between the rich and the poor, officials
and non-officials, majority and minority, no one can be degraded, and no one can
be upgraded.
 Law gives equal justice to all.
 He is of the view that there should be the same set of laws for all the people, and
they should be adjudicated by the same courts.
3. 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 enforcers 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
the rule of law.

CRITICISM OF DICEY’S CONCEPT

1. Dicey has ignored the importance of the codification of laws.
2. Codification of laws is important to ensure the rights of an individual as it
provides certainty, anything which is codified is certain and thus, could be followed
more effectively.
3. He has misunderstood the concept of Droit administratif (the body of rules which
regulate the relations of the administration or of the administrative authority
towards private citizens).
4. According to him, the system was designed to protect the officials but in certain
respects, it was specifically effective in controlling the administration than the
common law system.
BASIC ASPECTS OF THE A V DICEY’S RULE OF LAW
UNDER ADMINISTRATIVE LAW
According to A.V. Dicey, the basic aspects of the Rule of Law rule of law in Administrative
Law are :-
 The law does not respect the special rights of any person or group of people.
 The law does not accept differences between individuals on the basis of religion,
race, gender, etc.
 No one is punished without a fair trial.
 All will be heard by the same court under the same law.
 The rule of law does not give absolute and contradictory powers to management.

MODERN CONCEPT OF RULE OF LAW IN

ADMINISTRATIVE LAW
The rule of law is a powerful concept. It cannot be taken to mean that it is a fixed legal
system from which it does not move. The concept of Legal Law discussed by the
International Commission of Jurists met in 1959 in New Delhi are :
 The law is “to protect and promote the political and social rights of the individual in
a free society”.
 Establishing social, economic, educational and cultural conditions in which a person
can achieve his or her rightful aspirations and dignity.
 It should not interfere with religious belief and should not interfere with freedom of
speech or personal freedom.
 There is no discrimination against minority groups.
 The security guards are not enough to abuse the power by the authorities. There
should be independent courts with safe operation without interference from the law
and management.
 The rule of law requires an independent legal profession.

APPLICABILITY OF CONCEPT OF RULE OF LAW IN

ADMINISTRATIVE LAW IN PRE CONSTITUTIONAL ERA
The doctrine of the rule of law in Administrative Law in India was unknown in ancient and
medieval India. The king was the source of the justice and the protector of all laws. He was
considered lawless. During the British rule, the principle of the Rule of Law was ignored even
though this law was followed in Britain. The East India Company has been interested in
expanding its trade, revenue and expansion of its territory. It gave little importance to law
enforcement and fair justice.

THEORETICAL APPLICATION OF RULE OF LAW IN

ADMINISTRATIVE LAW IN INDIA (RELEVANCE IN INDIA)
Foundational Principle of Governance
 The rule of law is a cornerstone of the Indian constitutional framework, ensuring that
the Constitution is the supreme law of the land. All legislative, executive, and
 judicial authorities derive their powers from the Constitution and are bound by its
provisions.
 The rule of law is not explicitly mentioned in the Constitution but is deeply
embedded in its provisions and recognized as a basic feature by the Supreme Court,
making it immune even to constitutional amendments.
Protection of Rights and Prevention of Arbitrariness
 The rule of law upholds the fundamental rights of citizens, as enshrined
in Part III of the Constitution, including equality before law (Article 14),
protection of life and personal liberty (Article 21), and protection against
discrimination (Articles 15 and 16).
 Article 14 specifically guarantees equality before the law and equal
protection of the laws, striking at arbitrariness in state actions and
ensuring fairness and justice in governance.
 The Supreme Court, in landmark cases like Kesavananda Bharati v.
State of Kerala and Maneka Gandhi v. Union of India, has affirmed
that the rule of law is a basic feature of the Constitution and cannot be
abrogated or amended away.
Judicial Review and Checks on Power
 The judiciary has the power of judicial review under Articles 13, 32, 136,
142, and 226, allowing it to strike down laws and executive actions
that violate the Constitution or fundamental rights.
 This power acts as a crucial check on legislative and executive
excesses, ensuring that no authority acts beyond the scope of its
constitutional mandate.
Ensuring Accountability and Limiting Government Power
 The rule of law requires that all public authorities, including the
government, are subject to the law and can be held accountable in
ordinary courts.
 It prevents the concentration of arbitrary power and ensures that
decisions are made according to established legal procedures, promoting
transparency and accountability.
Building a Democratic and Just Society
 The rule of law is fundamental for the functioning of a democratic society,
safeguarding civil and political rights, and ensuring the dignity and
equality of all individuals.
 It acts as the foundation for justice, liberty, and equality, as reflected in
the Preamble of the Constitution.

PRACTICAL APPLICATION OF RULE OF LAW UNDER

ADMINISTRATIVE LAW IN INDIA
 The critiques have always maintained that the Rule of Law in India is simply a myth
that cannot be applied in reality.
 In addition to the problem facing India due to corruption in law-making and justice
delivery systems, there is the problem of old laws that still exist. India no longer
accepts the ‘sunset’ clause in its laws and after independence the Indian
Independence Act provided that all existing laws under colonial rule would continue
to exist under the new system unless directed to revoke by parliament.
  Although this provided the nation with a solid foundation of laws, thus preventing
post-independence tensions, some of these laws were drafted to fit the current
environment and make it difficult to interpret in the present. This leads to
misunderstandings and endless arguments in an attempt to interpret the provisions.
ROLE OF JUDICIARY IN CONCEPT OF RULE OF LAW
UNDER ADMINISTRATIVE LAW IN INDIA
There are a number of cases where the concept of the rule of law in Administrative Law in
India was discussed. Some of the cases are as follows:

Additional District Magistrate, Jabalpur Vs. Shivkant Shukla

The case is also known as Habeas Corpus. It is one of the most important case when it
comes to the rule of law. The question raised before the court is whether there is any legal
law in India other than Article 21 of the Constitution of India. It was in the context of the
declaration of emergency that the enforcement of articles 14, 21 and 22 was suspended.

Keshavnanda Bharti Vs. State of Kerala

In this regard, the Supreme Court has ruled that the rule of law is one of the most
important aspects of the doctrine of the constitution.

Chief Settlement Commissioner, Punjab v. Om Prakash

In this regard, the Supreme Court considered our Constitutional system, the most important
and most notable is the concept of the rule of law which means, in the current context, the
authority of the courts of law to examine all administrative actions at a legal level. An
administrative or administrative action that does not meet the standard will be set aside if
the victim brings the matter to the notice.

Secretary, State of Karnataka and Ors. Vs. Umadevi

The Constitutional Bench of the Court set out the law as follows: “It is clear, therefore, that
compliance with the principle of equality in public service is a fundamental element of our
Constitution and that the rule of law is the basis of our Constitutional law. Disregarding the
need to comply with the requirements of Article 14 read by Article 16 of the Constitution.”
Rule of Law states that decisions must be made using known principles and laws, such
decisions must be predicted and citizens must know where they are.
The essence of the law is the goal; the rule of law is the best tool to achieve goals. Some of
the efforts are also taken up by the court where the Rule of Law is linked to Human Rights.
The strategy was developed by a court in which the government could be forced not only to
legislate but also to create conditions in which the power could be developed by the people
to enjoy their rights in a fair and understandable way. In Indian society, the concept of rule
of law in Administrative Law in India did not achieve the intended results. A few examples
where the law was upheld by our court and ensured that justice could be clearly seen in
creating new mechanisms that seek solutions to human rights violations by applying for PIL.
 SEPERATION OF POWER
INTRODUCTION
The separation of powers is imitable for the administration of federative and democratic
states. Under this rule the state is divided into three different branches - legislative,
executive and judiciary each having different independent power and responsibility on
them so that one branch may not interfere with the working of the others two branches.
Basically, it is the rule which every state government should follow in order to enact,
implement the law, apply to specific case appropriately. If this principle is not followed then
there will be more chances of misuse of power and corruption If this doctrine is followed
then there will be less chance of enacting a tyrannical law as they will know that it will be
checked by another branch. It aims at the strict demarcation of power and tries to bring the
exclusiveness in the functioning of each organ. Separation of power prevents misuse of
power of accumulation of power in a few hands, separation of power safeguards the society
from arbitrary and irrational power of the state. Although the theory of separation of
powers is not expressly recognised in the Constitution in its absolute form, the Constitution
does provide provisions for a fair division of duties and authority among the three branches
of government.

BACKGROUND
The term “separation of powers” or “trias–politica” was initiated by Charles de
Montesquieu. For the first time, it was accepted by Greece and then it was widely used by
the Roman Republic as the Constitution of the Roman Republic.
Montesquieu, a French scientist, originally proposed the doctrine of separation of powers in
his book “Espirit des Louis” published in 1747 (The spirit of the laws). Montesquieu
discovered that when power is concentrated in the hands of a single person or a group of
people, a despotic government emerges. To avoid this predicament and to limit the
government’s arbitrary nature, he argued that the three organs of the state, the Executive,
Legislative, and Judiciary, should have a clear distribution of power.

Wade and Phillips provide three definitions of the separation of powers:

1. That one branch of government should not carry out the duties of another, such as
giving Minister’s legislative authority;
2. That one branch of the government should not exert control over or interfere with
another branch’s performance of its duties, such as when the judiciary is separate from the
executive branch or when ministers are not answerable to Parliament;
3. That the same individuals should not serve in more than one of the three branches of
government.

MEANING
The definition of separation of power is given by different authors. But in general, the
meaning of separation of power can be categorized into three features:
 A person forming a part of one organ should not form part of another organ.
 One organ should not interfere with the functioning of the other organs.
  One organ should not exercise the function belonging to another organ.
It is impossible for any of the organs to perform all the functions systematically and
appropriately. So for the proper functioning of the powers, the powers are distributed
among the legislature, executive and judiciary. The functioning of each organ are;

Legislative
The main function of the legislature is to enact a law. Enacting a law expresses the will of
the State and it also acts as the wain to the autonomy of the State. It is the basis for the
functioning of executive and judiciary. It is spotted as the first place among the three organs
because until and unless the law is framed the functioning of implementing and applying the
law can be exercised. The judiciary act as the advisory body which means that it can give the
suggestions to the legislature about the framing of new laws and amendment of certain
legislation but cannot function it.
Executive
It is the organs which are responsible for implementing, carrying out or enforcing the will of
the state as explicit by the constituent assembly and the legislature. The executive is the
administrative head of the government. It is called as the mainspring of the government
because if the executive crack-up, the government exhaust as it gets imbalanced. In the
limited sense, executive includes head of the minister, advisors, departmental head and his
ministers.
Judiciary
It refers to those public officers whose responsibility is to apply the law framed by the
legislature to individual cases by taking into consideration the principle of natural justice,
fairness etc.

SIGNIFICANCE
Concentration of power in one centre/authority, can lead to mal-administration, corruption,
nepotism and abuse of power. Separation of powers helps in;
 By Preventing autocracy, it protects the liberty of the individual.
 It not only safeguards the liberty of the individual but also maintains the efficiency of
the administration.
 It Focus on the requirement of independence of the judiciary
 It prevents the legislature from enacting an arbitrary or unconstitutional law.

CONSTITUTIONAL STATUS OF SEPARATION OF POWER

IN INDIA
Going through the provisions of Constitution of India one may be ready to say that it has
been accepted in India. Under the Indian Constitution:
 Legislature Parliament (Lok Sabha and Rajya Sabha), State legislative bodies
 Executive At the central level- President, At the state level- Governor
 Judiciary Supreme Court, High Court and all other subordinate courts

 The doctrine of separation of power in a rigid sense means that when there is a
proper distinction between three organs and their functions and also there should
be a system of check and balance.
 The doctrine of separation of power in a broad sense means that when there is no
proper distinction between three organs and their functions.
In the case of I. C. Golakhnath Vs. State of Punjab, the Constitution brings in actuality the
distinct constitutional entities i.e. namely, the Union territories, Union and State. It also has
three major instruments namely, judiciary, executive and legislature. It demarcates their
jurisdiction minutely and expects them to exercise their function without interfering with
others functions. They should function within their scope. If we go through the
constitutional provision, we can find that the doctrine of separation of
power has not been accepted in a rigid sense in India. There are personnel overlapping
along with the functional overlapping. The Supreme Court can declare any law framed by
the legislature and executive void if they violate the provisions of the Constitution. Executive
also has an impact on the functioning of the judiciary as they appoint the judges and Chief
justice. The list is so exhaustive.

In the case of Indira Gandhi Vs. Raj Narain, the court held that “In our Constitution the
doctrine of separation of power has been accepted in a broader sense”.
Justice Chandrachud also expressed his views by stating:
“The political purpose of the doctrine of separation of power is not widely recognized. No
provision can be properly implemented without a check and balance system. This is the
principle of restraining which has in its precept, innate in the prudence of self- preservation
that discretion is better than its valor.”

CONSTITUTIONAL STATUS ON SEPARATION OF POWERS

IN INDIA
Separation of powers is a part of the basic structure of the Constitution, Let us take a look at
some of the articles of the Constitution which suggest separation of
powers-

Article 50
Separation of judiciary from executive, this article suggests that the State shall take steps to
separate the judiciary from the executive in the public services of the State.
Article 123
The President, being the executive head of the country, is empowered to exercise legislative
powers (Promulgate ordinances) in certain conditions.
Articles 121 and 211
These provide that the legislatures cannot discuss the conduct of a judge of the Supreme
Court or High Court. They can do so only in case of impeachment.
Article 361
The President and Governors enjoy immunity from court proceedings.
Judiciary also performs the administrative actions while formulating the regulations and
giving guidance for the subordinate court as well as perform legislative powers by framing
the rules regulating their own procedure. So it is presumed from the provisions of the
constitution that India being a parliamentary form of government does not follow the
absolute separation there is an amalgamation of the powers where the connections
between the different wings are inevitable and it can be drawn from the constitution itself.
Every organ performs all types of functions in one or other form subject to the check and
balance by other organs. All three organs are interdependent because India has a
Parliamentary democracy. This does not mean that it is not accepted in India it has been
accepted up to a certain extent. Although strict separation of power is not followed in India
like the American Constitution, the system of check and balance is followed. However, no
organs are to take over the essential functions of other organs which is the part of the basic
structure, not even by amending and if it is amended, such amendment will be declared as
unconstitutional.

IMPACT OF THE DOCTRINE OF SEPARATION OF POWERS

ON DEMOCRACY
The doctrine of separation of powers seeks to protect the centralization of power in one
hand; as history has repeatedly demonstrated, centralisation of power in one or a few hands
can lead to disastrous outcomes. The application of this principle makes the government
liable, accountable, and answerable to its citizens for its actions, thereby aiding in the
promotion and protection of human rights. This eliminates one of the most serious
weaknesses of other forms of administration, such as monarchy or dictatorship, in which the
king is not accountable to his people. When applied, the principle creates a balance of
powers inside the government, in which each of the government’s bodies’ functions are
kept in check by the others while remaining independent of one another. This assures that
the laws are just, fair, and adhere to the natural justice ideal. Furthermore, because it is
independent of the other departments, the court can administer equitable justice.
Democracy is flawed without Separation of Power.

MERITS
1. Protection of Liberty and Rights:
The theory of separation of powers protection to the liberty and rights of the individual,
and protects him from different of despotism and oppression.
2. Increase in Government’s Efficiency:
As powers are distributed among the government departments, these departments gain
deep knowledge of the matters they with, and become more efficient.
3. Limited Government:
As powers are distributed among different depart these departments enjoy only limited
powers. This prevents rise of dictatorship.
4. Prevents Abuse of Power:
Separation of powers accompanied by check and bal is an effective check against abuse
of power and arrogance of power.

DEMERITS
This theory, though adopted by most countries, has not escaped criticism. It has criticized
not only as impossible but also as undesirable. According to Sabine, “Montes was guilty of
oversimplification. He united his theory to a hasty and superficial analysis the constitutional
principles of liberty.” The theory of separation of powers has been attacked on the following
grounds.
1. Wrong Reading of British System:
By the time Montesquieu developed his theory of separation of powers, there had come
into being the Cabinet system of govern” There was not in Britain then separation of
powers. On the contrary, there was ‘concentration of responsibility.’ Having witnessed
the British people enjoying liberty, Montesquieu wrongly concluded that in Britain
there was separation of powers. He misread British politics.
2. Not Fully Possible:
This theory is not fully possible. The executive has some role in rule-making, and the
legislature also performs some judicial functions. For example, impeachment which is
judicial in nature is done by the legislature.
3. Administrative Complications:
Separation of powers results in administrative complications. It becomes difficult to
forge cooperation, coordination and harmony among the organs of government. The
smooth working of modem governments demands not so much separation of powers as
‘co-ordination’ of powers.
4. Confusion and Deadlock:
Separation of powers leads to jealousy, suspicion and friction among the organs of
government. While producing disharmony and confusion, it may paralyse the
administration. As a result, the administration often fails to take quick decisions even
at a time of crisis.
5. Inequality of Powers:
This theory is based on the principle of equality of powers, but this principle is flawed.
In the parliamentary system, the legislature which represents the people is most
powerful while the executive is most powerful in the presidential system.
6. Not the Sole Factor of Liberty:
Separation of powers may contribute to liberty, but it is not the only factor of liberty.
Liberty also depends a lot on the psyche of people, their outlook, their political
awareness, customs and traditions, fundamental rights, rule of law, independence of
judiciary and economic equality.
7. Balance Disturbed:
The government, performing various important functions, has become increasingly
powerful. Besides being the problem-solver and crisis-manager, it is also required to
provide welfare to people. All this has made the executive very powerful, and disturbed
the balance among the three organs of government. Planning, security and welfare
demand not so much separation of powers as their ‘fusion’.
8. A Misnomer:
This theory is a misnomer, because what it means is separation of function, not
separation of powers. The theory of separation of powers in its strictest form is considered
undesirable and unworkable. As a result, it is not entirely acknowledged in any nation on
earth. However, its importance resides in emphasising the checks and balances that are
required to avoid abuse of the vast executive powers.

OVERLAPPING POWERS OF LEGISLATURE

With the Judiciary
1. Impeachment and dismissal of judges
2. Authority to revalidate legislation that the Court had deemed ultra vires and amend
them.
3. If its privilege is violated, it has the authority to penalise the offending party.
With the Executive
1. Members of the legislature serve as the leaders of each governmental ministry.
2. It can dissolve the government with a vote of no confidence.
3. The ability to evaluate the executive’s job.
4. President’s impeachment.
5. Members of the legislature are chosen to the council of ministers, on whose advice the
President and Governor act.

OVERLAPPING POWERS OF EXECUTIVE

With the Judiciary
1. Selecting candidates for the Chief Justice and other judicial positions.
2. The authority to commute sentences, reprieves, respites, or pardons for those found
guilty
of crimes.
3. The tribunals and other quasi-judicial organisations of the executive carry out judicial
duties as well.
With the Legislative
1. The authority to enact an ordinance that carries the same weight as a law passed by the
state
legislature or the parliament.
2. Subject to the limitations of this Constitution, they have the power to enact rules
governing
their particular process and conduct of business.
3. Powers are granted by a delegated law.

OVERLAPPING POWERS OF JUDICIARY

With the Legislative
1. The Supreme Court serves as an Executive under Article 142 in order to ensure full justice.
With the Executive
1. Legal review, or the authority to examine executive action to see if the Constitution is
being violated.
2. The basic structure of the Constitution cannot be changed.