ADMINISTRATIVE LAW

RULE OF LAW IN INDIA

INTRODUCTION:
Thomas Paine in his pamphlet Common Sense quoted, THE LAW IS KING. For as in
absolute governments the King is law, so in free countries the law OUGHT to be King; and
there ought to be no other.
Rule of law can be traced back to Aristotle and has been championed by Roman jurists;
medieval natural law thinkers; Enlightenment philosophers such as Hobbes, Locke,
Rousseau, Montesquieu in their theory of social contracts and the American founders;
German philosophers Kant, Hegel and the nineteenth century advocates of the rechtsstaat;
and in this century such ideologically diverse figures as Hayek, Rawls, Scalia, Jiang Zemin
and Lee Kuan Yew. The term Rule of Law is derived from the French phrase la principe de
legalite(the principle of legality) which refers to a government based on principles of law and
not of men. It also means that power should be exercised within the statutory ambit and
purported exercise of it would not just be ultra vires, but in a true sense of term arbitrary.
According to A V Dicey whenever there is discretion there is room for arbitrariness. Even in
the most autocratic form of ruling there is a legal framework according to which the
government works. In a monarch this concept developed to control the power of arbitrary
powers of the monarchs who claims to have divine powers. Same way in a democracy it
ensures that the holders of public policy must be able to justify publicly that the exercise of
powers is socially just and according to law.
Presently, the concept has altered into a new corollary stating that the holders of public
powers must be able to publicly justify that the exercise of power is legally valid and socially
just. It is the present day modernized name for natural law. In jurisprudence, it was known as
jus naturale by the Romans, law of god by the medievalists. Coming ahead in time,
Rousseau, Hobbes and Locke called it social contract or natural law. The modern man
refers to it as the rule of law
Efforts to specify the meaning of the Rule of Law commonly appeal to values and purposes
that the Rule of Law is thought to serve. First, the Rule of Law should protect against anarchy
and the Hobbesian war of all against all. Second, the Rule of Law should allow people to plan
their affairs with reasonable confidence that they can know in advance the legal consequences
of various actions. Third, the Rule of Law should guarantee against at least some types of
official arbitrariness.

Diceys Concept of Rule of Law

In his book, the law and the constitution, published in the year 1885, Dicey attributed three
meanings to the doctrine of rule of law:
1. Supremacy of Law: It implies the absolute power of law, dominance and the
supremacy of it. It is opposed to the influence of arbitrary power and wide
discretionary power. In Diceys words, wherever there is discretion, there is room for
arbitrariness and 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.
2. Equality Before The Law: The law administered should be the ordinary rule of law
applicable to all the people equally irrespective of caste and creed or religion. This
doctrine has been also included in the Indian Constitution in the form of Article 14.
The excerpts of which can also be seen in Article 15. Dicey was of the view that, any
encroachment on the jurisdiction of the courts and any restrictions on the subjects
unimpeded access to them are bound to jeopardize his rights.
3. Predominance Of Legal Spirit: The Constitution is not the source but the consequence
of the rights of the individuals. Here, Dicey emphasized on the role of the courts.
Without an authority to protect and enforce the rights conferred upon citizen, their
inclusion in a document etc. is of little value. Mere inclusion is not authoritative and
its provisions might be abridged, trampled or overlooked.
Rule of Law in India:
The term 'rule of law' is not used in the Indian Constitution anywhere. The term is though
used frequently by the Indian courts in their judgments. For instance, an online search of the
Supreme Court's reportable judgments delivered between 1 January 1950 and 1 January 2010
resulted
in
1,299
hits
of
the
term
'rule
of
law'.
(see
http://judis.nic.in/supremecourt/chejudis.asp). There is no doubt that the rule of law pervades
the Constitution as an underlying principle. In fact, the Supreme Court has declared the rule
of law to be one of the 'basic features' of the Constitution (Indira Nehru Gandhi v Raj Narain,
AIR 1975 SC 2295; SP Gupta v Union of India, AIR 1982 SC 149), so this principle cannot
be taken away even by a constitutional amendment. As this Country Report will outline, the
Indian conception of the rule of law is both formal and substantive. It is also seen as an
integral part of good governance. Questions are though raised as to the extent to which the
constitutional promise of the rule of law matches with actual situation in India.
In this Report, I focus on three broad aspects of the rule of law. First, the rule of law as a
check on governmental powers, including by requiring that laws are clear, predictable, and
prospective. Second, the rule of law as an embodiment of protecting people's human rights.
Among others, this will entail a guarantee for equal treatment. Third, judicial review of
legislative and executive actions by an independent judiciary. In a way, the last two aspects
complement the first aspect in that they limit the power of governmental agencies.
Checks on Governmental Powers
The Indian Constitution establishes a limited government. Bring a federal country, both the
central and state legislatures have the power to make laws, but only subject to express and
implicit constitutional limitations. First of all, the constitution specifies and demarcates the
matters on which the central legislature and state legislatures could make law (Constitution of
India, 1950, arts 246, 248-254 read with Schedule IX). Any law that breaches these
limitations (e.g., a state law made on a matter within the exclusive competence of the central
legislature) could be declared unconstitutional by courts (Medical and Educational Charitable
Trust v State of Tamil Nadu (1996) 3 SCC 15). Second, the power of executive to make laws

by issuing Ordinances is limited - both in terms of duration and situations triggering the
exercise of such power (Arts 123 and 213). The executive, of course, cannot make a law on a
matter on which the corresponding legislature lacks the competence to legislate (Art 123(3)
provides: 'If and so far as an Ordinance under this article makes any provision which
Parliament would not under this Constitution be competent to enact, it shall be void.').
Third, although the Indian Constitution - having established a parliamentary form of
government - does not follow any strict separation of powers (Article 50 though mandates to
separate the judiciary from the executive.), a system of checks and balances has been put in
place. For instance, all the Bills passed by the Parliament require the President's assent to
become law (Art 111). The Parliament, on the other hand, has the power to impeach the
President for violating the Constitution (Art 61).
Fourth, the courts have held that any executive action without the support of a valid law will
be void, more so if it violated fundamental rights (Kharak Singh v State of UP, AIR 1963 SC
1295; Bijoe Emmanuel v State of Kerala, AIR 1987 SC 748). Similar to the position in many
other jurisdictions, laws cannot generally be retroactive, especially if they seek to impose any
penalty or punishment (Art 20(1); see also Singh 2008:177-81). The judiciary also does not
treat vague laws or administrative guidelines favourably.
Fifth, in a multi-party democracy, the presence of a free press and the requirement of periodic
elections can be one of mechanisms against the abuse of governmental power. The
Constitution expressly limits the term of legislatures (Arts 83 and 172), and the freedom of
speech and expression under Article 19(1)(a) has been interpreted to include the freedom of
press (Express Newspapers v Union of India, AIR 1958 SC 58; Bennett Coleman v Union of
India, AIR 1973 SC 106).
In addition to these checks, the fundamental rights provisions and the power judicial review
provide effective means of checking the power of the legislature and executive.
Equality Guarantee and the Protection of Human Rights
Establishing an egalitarian society was/is one of the main goals of the India Constitution. The
fundamental rights and the directive principles of state policy were the primary tools adopted
to achieve this goal. Part III of the Constitution entitled 'Fundamental Rights' comprises
Articles 12 to 35 which lay down various rights, their limitations and remedies for their
enforcement. The rights range from the equality before the law to the freedom of speech and
expression, the protection against double jeopardy, the right to life and personal liberty, the
freedom of religion, prohibition of discrimination, and the protection against arrest and
unlawful detention.
It will be useful to analyse a few rights in some detail in order to appreciate the rule of law in
operation. Article 14 prohibits the state from denying 'to any person equality before the law
or the equal protection of the laws'. The guiding principle of equality being that like should
be treated alike and that unlike should be treated differently, Article 14 permits reasonable
classification. The court has invalidated several laws under Article 14 because the
classification was without a difference (K Kunhikoman v State of Kerala AIR 1962 SC 723),
or the basis of classification had no nexus to the object of the law (P Rajendram v State of

MadrasAIR 1968 SC 1012), or the law established special courts for trial of certain cases or
types of cases without any reasonable classification or guidelines (State of West Bengal v
Anwar Ali Sarkar AIR 1952 SC 75; Northern India Caterers Ltd. v State of Punjab AIR 1967
SC 1581), or the law singled out a person for giving a special or discriminatory
treatment (Ameernnisa Begum v Mehboob Begum AIR 1952 SC 91; Ram Prasad v State of
Bihar AIR 1953 SC 215).
More important, however, has been the judicial employment of Article 14 to develop a broad
principle of reasonableness. In E P Royappa v State of Tamil Naduthe Court said that
'Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed,
cabined and confined" within traditional and doctrinaire limits. From a positivistic point of
view, equality is antithetic to arbitrariness' ((1974) 4 SCC 3, 38). Later on, the Supreme Court
in Maneka Gandhi v Union of India observed that 'Article 14 strikes at arbitrariness in state
action and ensures fairness and equality of treatment. The principle of reasonableness, which
logically as well as philosophically, is an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence' ((1978) 1 SCC 248, 284. See also R D
Shetty v International Airport Authority AIR 1979 SC 1628; Ajay Hasia v Khalid Mujib AIR
1981 SC 487). Therefore, allegation of discrimination vis--vis others is no longer sine qua
non for attracting Article 14 (A L Kalra v Project &Equipment Corporation (1984) 3 SCC
316, 328) and the Court would strike down any arbitrary executive or legislative action
unconstitutional as ipso facto violating Article 14 (Mithu v State of Punjab AIR 1983 SC 473;
Central Inland Water Corporation v B N Ganguly (1986) 3 SCC 156; DTC v DTC Mazdoor
Congress AIR 1991 SC 101; Common Cause v Union of India (1996) 6 SCC 530; Shivsagar
Tiwari v Union of India (1996) 6 SCC 558.).
Another interesting fundamental right has been Article 21, which lays down that 'no person
shall be deprived of his life or personal liberty except according to the procedure established
by law.' This provision has proved to be a residuary repository of many fundamental rights.
'Life' in this article has been interpreted by the courts to mean more than mere physical
existence (see, for the evolution of such an interpretation, Kharak Singh v State of UP AIR
1963 SC 1295; Sunil Batra v Delhi Administration (1978) 4 SCC 494; Olga Tellis v Bombay
Municipal Corporation AIR 1986 SC 180; Francis Coralie v Union Territory of Delhi AIR
1981 SC 746; Bandhua Mukti Morcha v Union of India AIR 1984 SC 802; Consumer
Education & Research Centre v Union of India (1995) 3 SCC 42; Bodhisattwa Gautam v
Subhra Chakraborty (1996) 1 SCC 490; Visakha v State of Rajasthan AIR 1997 SC 3011. In
some of these cases the Court has relied upon the observation of Justice Field in Munn v
Illinois 94 US 113); it 'includes right to live with human dignity and all that goes along with
it' (Francis Coralie v Union Territory of Delhi, AIR 1981 SC 746, 753 (per Justice
Bhagwati)). Ever-widening horizon of Article 21 is illustrated by the fact that the Court has,
inter alia, read into it the right to

health (Parmanand Kataria v Union of India AIR 1989 SC 2039; Paschim

Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 SCC 37),
livelihood(Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180;
DTC Corporation v DTC Mazdoor Congress AIR 1991 SC 101),

free and compulsory education up to the age of 14 years (Unni Krishnan v

State of AP (1993) 1 SCC 645),

unpolluted environment (Indian Council for Enviro Legal Action v Union of

India (1996) 3 SCC 212; M C Mehta v Union of India (1996) 6 SCC 750;
Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647; Narmada
Bachao Andolan v Union of India (2000) 10 SCC 664),

shelter (Gauri Shankar v Union of India (1994) 6 SCC 349),

clean drinking water (A P Pollution Control Board II v M V Nayudu (2001) 2

SCC 62),

privacy (Kharak Singh v State of UP AIR 1963 SC 1295; Govind v State of

MP AIR 1975 SC 1378; R Raj Gopal v State of Tamil Nadu (1994) 6 SCC
632; PUCL v Union of India AIR 1997 SC 568; 'X' v Hospital Z (1998) 8 SCC
296), legal aid (M H Hoskot v State of Maharashtra AIR 1978 SC 1548;
Hussainara Khatoon v State of Bihar AIR 1979 SC 1369; Khatri v State of
Bihar AIR 1981 SC 928; Suk Das v Union Territory of Arunachal Pradesh AIR
1986 SC 991),

speedy trial (Hussainara Khatoon (I) to (VI) v Home Secretary, Bihar (1980) 1
SCC 81, 91, 93, 98, 108 and 115; Kadra Pahadiya v State of Bihar AIR 1982
SC 1167; Common Cause v Union of India (1996) 4 SCC 33 and (1996) 6
SCC 775; Rajdeo Sharma v State of Bihar (1998) 7 SCC 507 and (1999) 7
SCC 604), and

various rights of under-trials, convicts and prisoners (Sunil Batra v Delhi

Administration AIR 1978 SC 1675; Prem Shankar v Delhi Administration AIR
1980 SC 1535; Munna v State of UP AIR 1982 SC 806; Sheela Barse v Union
of India AIR 1986 SC 1773).

Another innovative use of this provision has been in reaching violation of right to life and
personal liberty by even private persons (see, for example, M C Mehta v Union of India
(1987) 1 SCC 395; Consumer Education & Research Centre v.Union of India (1995) 3 SCC
42; Kirloskar Brothers Ltd. v ESIC (1996) 2 SCC 682; Bodhisattwa Gautam v Subra
Chakraborty AIR 1996 SC 922; Vishaka v State of Rajasthan AIR 1997 SC 3011; 'X' v
Hospital 'Z' (1998) 8 SCC 296; M C Mehta v Kamal Nath AIR 2000 SC 1997.), and to grant
compensation for violation of fundamental rights (Rudul Sah v State of Bihar (1983) 4 SCC
141; Bhim Singh v State of J & K (1985) 4 SCC 677; Nilabati Behra v State of Orissa (1993)
2 SCC 746).
It should also be noted that although the constitution framers had expressly rejected the due
process requirement in Article 21, the Supreme Court introduced this guarantee by judicial
interpretation (Maneka Gandhi v Union of India, AIR 1978 SC 97). Furthermore, by a joint
reading of Articles 14 and 21, the courts have basically developed a substantive model of rule
of law - any law or executive action which is not 'just, fair and reasonable' could be declared

unconstitutional (Singh 2008: 201-04). The Courts, for example, invalidated a penal
provision prescribing the mandatory death sentence for murder committed by a life convict
(Mithu v State Punjab, AIR 1983 SC 473). More recently, the Delhi High Court ruled that
Section 377 of the Indian Penal Code 'insofar it criminalises consensual sexual acts of adults
in private, is violative of Articles 21, 14 and 15 of the Constitution' (Naz Foundation v
Government of Delhi, WP(C) No.7455/2001 (2 July 2009), para 132).Naz ruling was later in
reversed by the Supreme Court.
Judicial Review by an Independent Judiciary
The power of an independent judiciary to review the decisions of the other two organs of the
government is considered an integral aspect of the rule of law and the Indian Constitution
does everything possible to put in place this mechanism. Judges of the Supreme Court and the
High Courts are appointed by the President in 'consultation' with relevant judges of these
courts (Arts 124(2) and 217). Subsequent to the decision in Supreme Court Advocates on
Record Association vUnion of India (4 SCC 441 (1993). See also In re, Presidential
Reference, AIR 1999 SC 1), judges of the higher judiciary are in essence appointed by the
judiciary itself (Singh/ Deva 2005: 673-74.). Detailed provisions have also been made to
provide judges security of tenure (Arts 124 and 218), and protect their salaries, allowances
and privileges. (Arts 125 and 221) Legislative bodies are barred from debating the conduct of
judges unless dealing with impeachment motions (Arts 121 and 211). In fact, on a closer
look, it seems that the Indian judiciary has become over-independent in that there are not
many checks on its powers and the functioning/conduct of judges. The judiciary, for instance,
resists any attempt to introduce accountability measures and impeaching judges so far has
proved to be an almost impossible even in suitable cases.
Although the power of judicial review does not require an express recognition in a
constitutional text, Article 13(2) of the Indian Constitution provides such recognition by
laying down that the state 'shall not make any law which takes away or abridges' the
fundamental rights. The remedy to approach the Supreme Court for violation of fundamental
rights under Article 32 is in itself a fundamental right. (A similar - in fact wider - power is
vested with the High Courts under Article 226.) The Court has widened the scope of this
power over the years by (1) implying many new rights within the ambit of Article 21; (2)
chartering the course of public interest litigation as a tool of deepening justice to the masses;
(3) declaring judicial review a 'basic feature' of the Constitution and thus putting this beyond
the Parliament's amendment power; and (4) conferring on itself the power to review the
validity of even constitutional amendments.
Critiques
The opposite of rule of law is rule of person. The rule of law is necessarily rule by men, for
the law is inert. Men are necessary to enforce the law, but all men are prone to interpret the
law through their own knowledge, interpretation, and ethical sense. At best a set of laws are a
well-intended guidebook for the application of justice by the rule of men. In spite of an
apparently enviable position of the subjects in almost all the fields of industry, commerce,
education, transport, banking, insurance etc. there is interference by the administrative
authorities with the actions of the individuals, companies and other corporate and non

corporate bodies, observes Justice Ramaswamy. There is a large amount of discretion

involved in the administrative work. For e.g.: for the purpose of national planning the
executive is armed with vast powers in respect of land ceiling, control of basic industries,
taxation, mobilization of labour etc. Even Parliament passes acts which are opposed to
personal liberty such as preventive detention act or maintenance of Internal Security act 1971,
national security act 1980. Even the simplest thing like discriminate payment of employees
can be termed as inequality, as opposed to rule of law. The case Frank Anthony Employees
Union v. Union of India is concerned with discrimination in payment to employees, which
was held to violate the persons right to equality and unreasonable classification of pensioners
was held to be arbitrary in the case Nakara v. Union of India.

The main characteristic of the concept of rule of law is equality. This itself has been
criticized widely. the government possesses the inherent authority to act purely on its own
volition and without being subject to any checks or limitations. Total equality is possible to
prevail in general conditions, not only in India but in any country for that matter. For e.g.:
No case can be filed against the Bureaucrats and Diplomats in India
No criminal proceedings whatsoever shall be instituted or continued against the President,
or the Governor of a state, in any court during his term of office. No process for the arrest or
imprisonment of the President, or the Governor of a state, shall issue from any court during
his term of office.
The privileges enjoyed by the members of parliament with respect to legal actions against
them.
There are separate tribunals for administrative cases.

Thus, on the basis of these points one can say that equality in India is not prevalent in its
concrete sense. The Diceys concept of rule of law has also been criticized. Law changes with
time. As the society evolves, even the law of the country should develop. Some view the rule
of law as nothing other than a tool of the powerful to maintain the status quo in the legal
system. The general consensus is that the status quo, far from being neutral, serves to protect
the powerful at the expense of the disempowered. This lack of neutrality in the rule of law
runs contrary to the ideal, traced to Aristotle, that in light of the law every person should be
equal; that it is one's humanity, not one's status in society that requires that laws be justly
applied. More extreme critics claim that "[t]he liberal paradigm has destroyed the rule of
law." The rationale behind this statement is that, considering the real state of the world, many
equate the rule of law with legality. However, this is a flawed equation as "[l]egality simply
means that there are laws and says nothing about the quality of those laws." Hence, there are
many lacunas in the concept of rule of law which servers the reason of non-implementation
of the concept properly.
Conclusion

On a brief overview of the constitutional provisions and judicial decisions,

it can be safely concluded that the Indian Constitution enshrines the rule
of law as a fundamental governance principle, though the term is not
mentioned expressly in the text of the Constitution. Having said this, there
are several challenges that pose threat to building a society based on
robust rule of law framework. Continued socio-economic inequalities
(despite affirmative active provisions and programmes), large population,
pervasive corruption (including in judiciary), judicial delays, law and order
problems in view of regionalism and Naxalism, and the general apathy of
people towards the rule of law are matters of serious concern. Despite
these challenges, there is no doubt about the constitutional mandate or
government's commitment to establishing a rule of law society.