6.2 ADMINISTRATIVE LAW.

(Assignment Submission, in lieu of Semester End Examinations).

Submitted by-

Pranoy Goswami;

3rd Year, 6th Semester.

Batch of 2022.

Unique ID- SM0117037.

Faculty-in-Charge-

Dr. Diptimoni Boruah;

Associate Professor of Law.

National Law University and Judicial Academy, Assam.

25th September, 2020.

Answer to Question 1:

It must keenly be observed that we, the milennials, and law-abiding citizens of an ever-expansive
global village- are living in a changed world, a world of new moral concepts but of outworn legal
institutions. The developments of the past few decades have resulted mainly in the establishment
of a system of administrative agencies, tribunals, and law. Administrative law seems to have
developed from a combination of forces, some pressing on the legal system from without, others
from within. From without came the most powerful forces, economic and social; from within
came revolt against the impractical technicalities and rigidity of a structure adapted by and for
older generations, conditions, and institutions, and which, through prerequisites have been
welded too strongly on to the present.

As observed by Aristotle the first of all causes and the principal one is necessity. The
development of administrative agencies and of the law which governs them was a necessity-a
"social necessity," as he has put it,' rather than it being an absolute one.

The growth of administrative justice is, as it were, one of the most simplistic and natural results
of the process of human evolution that we have been going through economically, culturally,
politically and socially; an evolution that has changed us and our institutions, as the change in
census tells us, from a predominantly rural agricultural society to a predominantly urban
industrial society.

According to Dr. F.J. Fort, “Administrative law is made up of all these legal rules, either
formally expressed by statute or implied in the prerogative- which have as their ultimate
objective the fulfillment of public law. It touches first the legislature, in that the formally
expressed rues are mostly laid down by that body; it touches judiciary, in that- (a) there are rules
which govern the judicial action that may be brought by or against administrative person, (b)
administrative bodies are sometimes permitted to exercise judicial powers; thirdly of course, it is
essentially concerned with the practical application of law.”

According to the Indian Law Institute, the following two aspects must be added to have a
complete idea of the present - day administrative law :-

1. What are the procedures followed by the administrative authorities?

 2. What are the remedies available to a person affected by administration?

The Indian Institution of Law has defined Administrative Law in the following words;

“Administrative Law deals with the structure, powers and functions of organs of administration,
the method and procedures followed by them in exercising their powers and functions, the
method by which they are controlled and the remedies which are available to a person against
them when his rights are infringed by their operation.”

According to Garner, administrative law may be described as "Those rules which are
recognised by the court as law and which relates to and regulate the administration of
government."

Austin regarded Administrative Law as determining the ends and modes to and in which the
sovereign powers shall be exercised. They shall be exercised:

1) directly by the monarch or sovereign member or

2) directly by the subordinate political superiors to whom portions of those are delegated or

Holland gave Administrative Law as one of his six divisions of public law, the first was
constitutional law as dealing with structure the second Administrative Law as being concerned
with function.

In the view of Friedman, Administrative Law includes the following.

 The legislative powers of the administration both at common law and under a vast mass
of statutes.
 The administrative powers of the administration.
 Judicial and quasi-judicial powers of the administration, all of them statutory.
  The legal liability of public authorities.
 The powers of the ordinary courts to supervise the administrative authorities.

Administration is the all-pervading feature of life today. The advantage of the administrative
process is that it could evolve new techniques, processes and instrumentalities, acquire expertise
and specialization, to meet and handle new complex problems of modern society.

Administration has become a highly complicated job needing a good deal of technical
knowledge, expertise and know-how. Continuous experimentation and adjustment of detail has
become an essential requisite of modern administration. If a certain rule is found to be unsuitable
in practice, a new rule incorporating the lessons learned from experience has to be supplied.

It is indeed difficult to evolve a scientific precise and satisfactory definition of administrative

law. Many jurists have attempted to define it. But none of the definitions has completely
demarcated the nature, scope and contents of Administrative Law. Either the definitions are too
broad and include much more than what is necessary or they are too narrow and do not include
all the necessary contents.

The Administration can change an unsuitable rule without much delay. Even ifit is dealing with a
problem case by case (as does a court), it could change its approach according to the exigency of
the situation and the demands of justice. Such a flexibility of approach is not possible in the case
of the legislative or the judicial process.

Administration has assumed such an extensive, sprawling and varied character, that it is not now
easy to define the term “administration” or to evolve a general norm to identify an administrative
body. It does not suffice to say that an administrative body is one, which administers, for the
administration does not only put the law into effect, but does much more; it legislates and
adjudicates. At times, administration is explained in a negative manner by saying that what does
not fall within the purview of the legislature or the judiciary is administration.

In such a context, a study of administrative law becomes of great significance. The increase in
administrative functions has created a vast new complex of relations between the administration
and the citizen. The modern administration impinges more and more on the individual; it has
assumed a tremendous capacity to affect the rights and liberties of the people. There is not a
moment of a person’s existence when he is not in contact with the administration in one-way or
the other.

In a nutshell, administrative law deals with the composition and powers of different organs of
administration, the procedure which the administrative authorities shall adopt in the due exercise
of their powers, and the various modes of control including, in particular, judicial control over
the range of powers that are exercised in tandem by the administrative authorities. This definition
is in a lot of ways consonant with A.V. Dicey’s definition, which talks about administrative law
being a “portion of national legal system determining legal status and liabilities of all state
officials, defining rights and liabilities of private individuals in dealing with public officials &
specifying procedure by which such rights and liabilities are enforced.”

Administrative law consists of complaints respecting government action that adversely affects an
individual. Thus, administrative law involves determining the legality of government actions.
There is a two-fold analysis: the legality of the specific law itself and the legality of particular
acts purportedly authorized by the specific law.

Governments cannot perform any act by itself. Governments act through government officials
who must act within certain limitations. A government’s power to act comes from legislation.
Thus, government officials must act within the parameters (or scope) of such legislation which
give their actions lawful authority. These are lawful actions. If government officials act outside
the scope of their lawful authority and individuals are affected by these acts, then the principles
of administrative law provide individuals with the ability to seek judicial review of the
administrative action and possible remedies for the wrongful acts.
THE DYNAMICS OF ADMINISTRATIVE LAWS ACROSS COUNTRIES AND
JURISDICTIONS

ENGLAND

In 1885, Albert Venn Dicey, a British jurist, rejected the whole concept of Administrative law.
Hence, the numerous statutory discretionary powers given to the executives and administrative
authorities and control exercised over them were all disregarded to be able to form a separate
branch of law by the legal thinkers. Until the 20th century, Administrative law was not accepted
as a separate branch of law. It was only later that the existence of Administrative law came to be
recognized.

The Lord Donoughmore Committee, in 1929, recommended for better publication and control of
subordinate legislation. The principle, King can do no wrong, was abolished and the scope of
Administrative law expanded by virtue of the Crown Proceeding Act in 1947 which allowed
initiating civil proceedings against the Crown as against any private person. In 1958, Tribunals
and Inquiries Act was passed for better control and supervision of Administrative Decisions.

Breen v Amalgamated Engineering Union [1971] 2 QB 175 was the first case, wherein the
existence of administrative law in the United Kingdom was declared.

UNITED STATES OF AMERICA

In the United States of America, the existence of administrative law and its growth was ignored
until it grew up to become the fourth branch of the State. By then many legal scholars like Frank
Goodnow and Ernst Freund had already authored a few books on Administrative law.

It was in 1933 that a special committee was appointed to determine how judicial control over
administrative agencies could be exercised. Thereafter, in 1946 The Administrative Procedure
Act was passed which provided for judicial control over administrative actions.

INDIA

 
The Mauryans and the Guptas of ancient India had a centralized administrative system. It was
with the coming of the British that Administrative law in India went through a few changes.
Legislations regulating administrative actions were passed in British India.

After independence, India adopted to become a welfare state, which henceforth increased the
state activities. As the activities and powers of the Government and administrative authorities
increased so did the need for ‘Rule of Law’ and ‘Judicial Review of State actions’.

Henceforth, if rules, regulations and orders passed by the administrative authorities were found
to be beyond the authorities’ legislative powers then such orders, rules and regulations were to be
declared ultra-vires, unconstitutional, illegal and void.

NATURE OF ADMINISTRATIVE LAW

Administrative law determines the organization, powers and duties of administrative authorities.
The emphasis of Administrative Law is on procedures for formal judgment based on the
principles of Natural Justice and for rule making. Administrative law also determines the nature
and scope of the powers deliberated to the government official by the specific legislation.
Through legislation, the Parliament(s) delegate specific powers as well as duties to government
officials to enable them to act on behalf of the government.

The concept of Administrative Law is founded on the following principles:

a) Power is conferred on the administration by law

b) No power is absolute or uncontrolled howsoever broad the nature of the same might be.

c) There should be reasonable restrictions on exercise of such powers depending on the situation.

These characteristics give the body of administrative law doctrine developed by judges a unique
nature which must be understood prior to assessing its legitimacy.
Its openness results from the breadth of legislative grants of power to administrative decision-
makers and the open-textured nature of organizing concepts such as reasonableness and fairness.
Determining the limits of these powers and concepts requires interpretation, a process which in
the common law tradition is infused with value judgments. Its contestability results from the
clash of competing values, such as the rule of law, good administration, democracy and
separation of powers. By giving effect to these values in the context of particular factual
situations, judges decide individual cases and develop administrative law doctrine.
Its dynamism results from the contestable nature of these values. Differing conceptions and
constellations of the values drive doctrinal change, because the values will be differently
conceived and applied by judges from different backgrounds, legal traditions and temporal
periods.

Against this backdrop, common to the whole body of judicial review doctrine, challenges to the
legitimacy of administrative law can be properly assessed. The development of new fetters on
administrative decision-makers has occurred in the absence of express legislative authorization
permitting judges to impose restrictions on discretion. Equally, however, legislatures have
generally not elected to erect barriers to judicial creativity. Given the openness, contestability
and dynamism of administrative law, the question is not whether judicial creativity is
permissible, but how best it can be channelled. To the extent that the values to be found in
decided cases are consistent with the basic commitments of modern liberal democracy, there can
be no objection to judicial application of the rule of law, good administration, democracy and
separation of powers. However, a pluralist approach is preferable, one in which judges strive to
harmonize these values, balancing private rights against public interest while respecting
indicators of legislative intent and ensuring the same.

Thus, the nature of administrative law is all pervasive and one full of broadened bases as it deals
with the structure, functions and hierarchical power seepages of the administrative structures. It
also lays down the methods and procedures which are to be followed by them during the course
of remedies which are available to the persons whose rights and other freedoms are damaged by
their operations. Administrative law specifies the rights and liabilities of private individuals in
their dealings with public officials and also specifies the procedures by which those rights and
liabilities can be enforced by those private individuals. It provides accountability and
responsibility in the administrative functioning. Also there are specified laws and rules and
regulations that guide and direct the internal administration relations like hierarchy, division of
labor etc. In other words, administrative law is marked by three characteristics. It is open,
contestable and dynamic.

The goal of administrative law is to redress this inequality to ensure that, so far as possible, the
individual and the state are placed on a plane of equality before the bar of justice. In reality there
is no antithesis between strong governments and controlling the exercise of Administrative
powers are exercised by thousands of officials and affect millions of people Administrative
efficiency cannot be the end-all of administrative powers. There is also the questions of
protecting individual’s rights against bad administration will lead to good administration.

A democracy will be no better than a mere façade if the rights of the people are infringed with
impunity without proper redressed mechanism. This makes the study of administrative law
important in every country.

For India, however, it is of special significance because of the proclaimed objectives of the
Indian polity to build up a socialistic pattern of society. This has generated administrative
process, and hence administrative law, on a large scale. Administration in India is bound to
multiply further and at a quick pace. If exercised properly, the vast powers of the administration
may lead to the welfare state; but, if abused, they may lead to administrative despotism and a
totalitarian state. A careful and systematic study and development of administrative law becomes
a desideratum as administrative law is an instrument of control of the exercise of administrative
powers.

SCOPE OF ADMINISTRATIVE LAW

There are several branches of the science of law. The Administrative Law is a recent branch of
the science of law. In the political science there are few Administrative organs. Certain functions
have been allotted to these organs in the Administrative Machinery. The Administrative law
deals with the structure, functions and powers of the Administrative organs. It also lays down the
methods and procedures which are to be followed by them during the course of remedies which
are available to the persons whose rights and other privileges are damaged by their operations.

In most modern democratic states, the government consists of three pillars - the Legislature that
makes the laws, the Executive that carries out the actual governance in accordance with the laws
made by the legislature, and Judiciary that reviews all actions of the executive and decides
whether the actions undertaken by them are as per law, apart from deciding disputes and taking
decisions in case of allegation of a crime.

The Executive include all departments of the Government, Federal and State, as well as the
independent agencies like Tribunals, Commissions and Regulatory Bodies.

The departments are the actual executive agencies which carry out most of the governmental
action. Overall, the executive carries out three kinds of functions.

First is the execution of day to day functioning of various regulatory, monitoring or service
responsibilities entrusted to it;

Second pertains to making rules in certain matters where power for doing so is delegated to it by
the legislature;

Third is the prolific and unbiased adjudication of disputes to the extent it is allowed by law.
Independent Regulatory Bodies often indulge in all three, while Tribunals are mainly involved
with the last one. Most departments of the government are usually preoccupied with the first.

Administrative Law deals with the laws and rules governing these actions of the Executive. In a
chunk of major common law countries, a very large proportion of this law is derived from laws
laid down by the Courts. In many countries, the legislature makes most of the laws, but even
there, the Courts have a power of judicial review of administrative actions.

Administrative Law is a new branch of law that deals with the powers of the Administrative
authorities, the manner in which powers are exercised and the remedies which are available to
the aggrieved persons, when those powers are abused by administrative authorities.
The Administrative process has come to stay and it has to be accepted as a necessary evil in all
progressive societies. Particularly in welfare state, where many schemes for the progress of the
society are prepared and administered by the government.

The execution and implementation of these programmes may adversely affect the rights of the
citizens. The actual problem is to reconcile social welfare with rights of the individual subjects.
The main object of the study of Administrative law is to unravel the way in which these
Administrative authorities could be kept within their limits so that the discretionary powers may
not be turned into arbitrary powers.

From the few lines above explaining the meaning of the Administrative law, we can notice the
exact scope of this new branch of Law.

 The scope of Administrative law can be narrated as under :-

 The methods and procedures of these Administrative organs are also studied by this new
branch of law.
 It covers the nature of structure, powers and functions of all these administrative organs.
 It also makes available all the relevant remedies to the persons whose rights are infringed
by the operations of these organs during the course of Administration.
 Why and How the Administrative Organs are to be controlled is also viewed by the
Administrative law.
In this way along with the development in the Political Science and along with the idea of federal
Administration, the separate branch of Administrative law has been developed.

CONCLUDING REMARKS ON THE NATURE AND SCOPE OF ADMINISTRATIVE LAW

The administrative law has come to stay because it provides an instrument of control of the
exercise of administrative powers. The administrative law has to seek balance between the
individual right and public needs. As we know in the society there exists conflict between power
and justice wherever there is power, there exist probabilities of excesses in exercise of the power.

One way is to do nothing about this and let the celebrated Kautilyan Matsanayaya (big fish
eating up little fish) prevail.
The other way is to try and combat this. Administrative law identifies the excesses of power and
endeavors to combat there.

The learned author, Upender Baxi, while commenting on the administrative law has rightly
observed: “to understand the stuff of which administrative law is made one has to understand
relevant domains of substantive law to which courts apply the more general principles of legality
and fairness. In this way a thorough study of administrative law is in effect, a study of the Indian
legal system a whole. More importantly, it is study of the pathology of power in a developing
society.”

Growth in science and technology and modernization has resulted in great structural changes
accompanied with increase in the aspirations of people as to quality of life. We know socio-eco-
politico and multi dimensional problems which people face due to technological development
cannot solved except by the growth of administration and the law regulating administration. No
doubt the principles evolved by the court for the purpose of controlling the misuse of
governmental of power are satisfactory.

Yet it is said that the administrative law in India is an instrument in the hands of middle class
Indians to combat administrative authoritarianism through the instrumentality of the court and
there is need to make administrative law a shield for the majority of Indians living in rural area
and people under poverty line.

Further, the multifarious activities of the state extended to every social problems of man such as
health education employment, old age pension production, control and distribution of
commodities and other operations public utilities. This enjoins a new role for administration and
also for the development of administrative law.

According to Prof. Wade, The organization, the methods, the powers (Whether styled
administrative, legislative or judicial) and the control by the judicial authority of all public
authorities is the ambit of Administrative law in United Kingdom.

This is equally true with regard to scope of Administrative law in India. With the growth of the
powers of the requisite authorities the question as how to control these powers became very
relevant.
If the finally and exclusive character of Administrative action is not subjected to judicial control
and legislative responsibility it would not have in the society and that Hewart described "New
disposition would prevail over".

Freund, has brightly summed up in the following words the main concern of the subject:-

The main problem of Administrative law related to the nature and operation of official powers
(permits and orders, ministerial or discretionary scope and legitimacy of underlying conditions),
the formal procedural conditions for the exercise of powers, official and communal liability, the
specific remedies for the Judicial Control of administrative action (legal, equitable and
statutory) jurisdictional limitations of powers and, questions of Administrative finality.
Answer to Question 2:

The term  "trias politica" or "separation of powers" was coined by Charles-Louis de Secondat,
baron de La Brède et de Montesquieu, an 18th century French social and political
philosopher. His publication, Spirit of the Laws, is considered one of the great works in the
history of political theory and jurisprudence, and it inspired the Declaration of the Rights of Man
and the Constitution of the United States. Under his model, the political authority of the state is
divided into legislative, executive and judicial powers. He asserted that, to most effectively
promote liberty, these three powers must be separate and acting independently. However, it must
be noted that the doctrine of separation of powers emerged long back, in the ancient
era. Aristotle, in his book ‘Politics’, discussed the concept of separation of powers stating that
every constitution should have a heterogeneous form of government consisting of mainly three
branches: the deliberative, public officials and the judiciary. A similar structure of government
was observed in the Roman Republic setting off the principle of checks and balances in the
country.

The pyrotechnic of the separation of powers is one of the key elements for the improved levels of
governance in a democratic country. This principle corroborates fairness, impartiality and
uprightness in the workings of a government. Although it is not followed in its strict sense yet,
most of the democratic countries have adopted its diluted version under their respective
constitutions.

According to Wade and Phillips, the principle of separation of powers meant three things:

1. One person should not be made part of more than one branch of the government.
2. There should not be any interference and control of any organ of the government by the
other.
3. No organ of the government should exercise the functions and powers of the other
organ.
OBJECTIVES OF SEPARATION OF POWERS

The following are the fundamental objectives of the doctrine of separation of powers:-

1. Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an

accountable and democratic form of government.
2. Secondly, it prevents the misuse of powers within the different organs of the
government. The Indian Constitution provides certain limits and boundaries for each
domain of the government and they are supposed to perform their function within such
limits. In India, the Constitution is the ultimate sovereign and if anything goes beyond
the provisions of the constitution, it will automatically be considered as null, void and
unconstitutional.
3. Thirdly, it keeps a check on all the branches of the government by making them
accountable for themselves.
4. Fourthly, separation of powers maintains a balance among the three organs of
government by dividing the powers among them so that powers do not concentrate on
any one branch leading to arbitrariness.
5. Fifthly, this principle allows all the branches to specialize themselves in their
respective field with an intention to enhance and improve the efficiency of the
government.

Separation of Powers in Practice

SEPARATION OF POWERS, AS ENVISAGED IN THE UNITED KINGDOM

The United Kingdom practices the unitary parliamentary constitutional monarchy. The concept
of separation of powers is applied in the UK but not in its rigid sense because the UK has an
unwritten constitution. The Crown is the head of the state whereas the Prime Minister is
recognised as the head of the government. The executive and the legislature are somehow
interconnected to one another.
The executive powers are exercised by the Crown through his government. Thus, the Crown is
the nominal head and the real executive powers vest in the Prime Minister and the other Cabinet
Ministers. The UK parliament is bicameral and divided into two houses – The House of
Commons and House of Lords. The Parliament is the sovereign rule-making body in the UK.
The Prime Minister and the other cabinet ministers are also a part of The House of Commons.
The government is answerable to the Parliament. Practically, the executive is controlled by the
House of Commons. The Judiciary, however, is independent of executive control. But the judges
of the Supreme Court can be removed on the address of both the houses if found with any charge
of corruption.

Thus, we can conclude that the UK constitution has incorporated the separation of powers just to
keep checks and balances among the three organs of the government but there exist some kind of
interference of one organ in the other.

One central feature of that joint action is the requirement of inter-institutional comity." Inter-
institutional comity is 'that respect which one great organ of the State owes to another:" As the
House of Lords (now UK Supreme Court) put it in Jackson v. Attorney General [2005]
UKHL56, 'the delicate balance between the various institutions... is maintained to a large degree
by the mutual respect which each institution has for the other'.'" This is by no means a peculiar
feature of the separation of powers in the United Kingdom. The requirement of reciprocal respect
between the institutional actors is a generalized feature of any constitutional system based on the
separation of powers. How do the various branches of government show respect for decisions of
the other branches as contributions to the joint enterprise of good government? This will vary
depending on the institution and its interrelationship with other institutions. But, in broad terms,
it involves both a leeway requirement and a mutual support requirement. Comity requires each
institution to give the other institutions leeway to carry out their own tasks and functions (the
leeway requirement). They should respect the jurisdiction of other institutions and be alert to the
fact that other institutions may be better placed to carry out a certain task. As the UK Supreme
Court put it, both the courts and legislature must recognize that each institution has 'their own
particular role to play in our constitution and that each must be careful to respect the sphere of
action of the other'. This has been laid down in AXA General Insurance and Ors. v. Lord
Advocate and Ors. [2011] UKSC 46.
SEPARATION OF POWERS, AS ENVISAGED IN THE UNITED STATES OF AMERICA

The US has a written constitution and governed by the Presidential form of government. The
cornerstone of the Constitution of the United States is the doctrine of separation of powers. This
concept is well-defined and clear under the American Constitution.

 Article I – Section 1 of the American Constitution states that –

“All the legislative powers are vested in Congress.”

 Article II – Section 1 of the American Constitution states that –

“All the executive powers are vested in the President.”

 Article III – Section 1 of the American Constitution states that –

“All the judicial powers are vested in the federal courts and the Supreme Court.”

The President and his ministers are the executive authority and they are not members of the
Congress. The ministers are accountable to the President only and not to the Congress. The
tenure of the President is fixed and independent of the majority in Congress.

Congress is the sovereign legislative authority. It consists of two houses- Senate and House of
Representatives. The impeachment of the President can be done by Congress. The treaties
entered by the President are to be approved by the Senate. The Supreme Court of the USA is
independent. It may declare any action of the executive as well as the legislature as
unconstitutional if found so. Thus, it appears as if the powers of the three organs exist in a
watertight compartment but actually it is not so.

1. President interferes in the functioning of Congress by exercising his veto power. He

also makes the appointment of the Judges thus, interfering in judicial powers.
 2. Similarly, Congress interferes in the powers of the Courts by passing procedural laws,
making special courts and by approving the appointment of the judges.
3. The judiciary, by exercising the power of judicial review interferes in the powers of
Congress and the President.

In Panama Refining Company v. Ryan Justice Cardozo observed that:-

“The doctrine of separation of power is not a dogmatic concept. It cannot be imposed with
strictness. There must be elasticity in its application with respect to the needs of the government.
Therefore, a practical approach to this theory is required.”

The American systems of separation of powers, in essence, derives its authority from a
Madisonian system of checks and balances (as enunciated in the landmark case of Marbury v.
Madison) has its origins in the Aristotelian idea of a Mixed Regime whereby the King, the
Lords, and the Commons all checked and balanced one another. The framers of the U.S.
Constitution in totality replaced the elitist and oligarchic mixed regime with a democracy and a
move toward a pure functional separation of powers.

The most decisive case towards the end of the last millennium was that of City of Boerne v.
Flores, 521 U.S. 507 (1997): This case is both a vertical and horizontal separation of powers
case; vertical in the sense that it involves Congress’s power over the States, and horizontal in the
sense that it involves the political branches’ relationship with the Supreme Court. Here is Justice
Kennedy’s conclusion: “It is for Congress in the first instance to ‘determine whether and what
legislation is needed to secure the guarantees of the Fourteenth Amendment,’ and its conclusions
are entitled too much deference. Congress’ discretion is not unlimited, however, and the courts
retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded
its authority under the Constitution. Broad as the power of Congress is under the Enforcement
Clause of the Fourteenth Amendment, it actually contradicts vital principles necessary to
maintain separation of powers and the federal balance.”

SEPARATION OF POWERS, AS ENVISAGED IN AUSTRALIA

Australia is governed by a federal parliamentary constitutional monarchy system. The Australian
Constitution had borrowed the concept of separation of power from the U.S. Constitution. The
first three chapters of the Australian Constitution defines the three different organs of the
government- the legislative, the executive and the judiciary. The legislative branch includes the
Parliament of Australia, the executive comprises of the Queen, Governor-General, Prime
Minister and other ministers.

Australia has a bicameral parliament consisting of the Queen (represented by the governor-
general), the Senate and the House of Representatives. The executive powers vest in the
Governor-General who is advised by the Federal Executive Council. The judicial power lies in
the hands of the federal courts and the High Court of Australia which is the supreme judicial
authority.

Like the U.S. and U.K., Australia also does not have complete separation of powers. Though, a
system of checks and balances has been evolved. Some roles and powers of the three organs
overlap-

 The judges, Prime Minister and other ministers are appointed by the Governor-General.
 The Prime Minister and other ministers are members of the parliament as well as the
executive.

It was held by the High Court of Australia in the case of Victorian Stevedoring v. Dignan
[1931] HCA 34, that-

“It was not at all possible to maintain the consistency of the British tradition of strict
classification of the organs of the government. The legislative and the executive branch cannot
work independently. A responsible government can’t be established by the strict separation of
legislature and executive. The legislature can delegate its lawmaking power to the executive
whenever required.”

Boilermakers’{R v. Kirby, Ex-parte Boilermakers’ Society of Australia (1956) 94 CLR

254} was the high point of the separation of judicial power in Australia. Its strict interpretation
has been progressively relaxed over the last 60 years. The biggest exception to
the Boilermakers’ principle is the “persona designata” rule. This rule allows non-judicial
functions to be conferred onto federal judges in their personal capacity, rather than in their
capacity as a judge. This is the exception that allows federal judges to act as the head of
administrative tribunals, or authorize telephone interceptions.
Although this rule has been criticized as artificial and confusing, it still provides an important
exception from the strict Boilermakers’ principle. State courts have also been immune from the
strictness of Boilermakers. Since the Court’s reasoning in that case was based on the
Constitution, it follows that the States, which have their own constitutions, do not necessarily
have to abide by the same principle.

SEPARATION OF POWERS, AS ENVISAGED IN SOUTH AFRICA

The Constitution of the Republic of South Africa generally provides for separation of powers
that demarcates the powers and roles of all the three branches of government. The pre-1994
separation of powers model in South Africa was based on a Westminster model that centralized
power in an elected parliament. Although there was distinction between the three arms of
government in pre-democratic South Africa, the distinction was only formal. The pre-1994
Parliament incorporated a fused executive and legislature which institutionalized power in
Parliament.
Although the doctrine of separation of powers was incorporated in the post-1994 Constitutions, it
was neither expressly stated in the Interim Constitution nor in the Final Constitution. The CC
nevertheless gave the structure and the provisions of the Final Constitution its stamp of approval
by certifying its compliance with the separation of powers doctrine as mandated by the
constitutional principles. The CC justified the arrangement in the Final Constitution by asserting
that there was no universal model of separation of powers as the power and influence that one
branch has on another as a means of checks and balances differs from one country to the other.
The judiciary determines the pre-eminent domain of the relevant branches of government when
there is a dispute as it is the final arbiter in matters regarding the Constitution. The irony in this is
that the judiciary, in this particular regard, regulates itself as it not only defines the mandate and
boundaries of the executive and legislature but also its own. Moreover, the power of the courts to
check the other branches of government is so wide that it carries an inherent danger of abuse if
not restrained in its reach. Therefore, even though the power granted to the Constitutional Court
(CC) is an incident of the checks and balances under the separation of powers doctrine, the scope
and extent the CC’s power as outlined in Chapter 8 of the Constitution is not easily defined and
has the effect of testing the relationship of the judiciary with the other two branches of
government.
It is clear from the court’s jurisprudence that the principle of non-intrusion is an important aspect
of our doctrine of separation of powers, if not absolute. In Pharmaceutical Manufacturers
Association of SA and Others: in re: Ex parte Application of the President of the RSA and
Others CCT 31/1999, the court was concerned with the power of the President to bring
legislation into force. Section 55 of the South African Medicines and Medical Devices
Regulatory Authority Act 132 of 1998, provided that the act would come into operation on a date
to be determined by the President in the Gazette. On 30 April, 1999, the President issued a
proclamation purporting to bring the legislation into force. However, it subsequently became
clear that the purported promulgation had been premature in that the necessary regulations to
ensure that the act would function had not been prepared or issued by the Minister of Health.
Accordingly, the President and the Minister of Health applied to have the proclamation bringing
the legislation into force set aside. The court observed that there was a question of justiciability
which arose: courts in other jurisdictions have been reluctant to review the exercise of an
executive decision to bring legislation into force because it is so close to the legislative process.

In the last case which I wish to mention, the court had to consider a series of wide-ranging
challenges to the legislation regulating magistrates’ courts on the grounds that it fell short of
protecting the independence of the judiciary as the Constitution requires. This occurred in the
case of Van Rooyen v S [2002] ZACC 8; 2002 (8) BCLR 810 (CC); 2002 (5) SA 246  (CC).
The most important aspect of the case was its conclusion that the protection of the independence
of the judiciary, crucial as it is to our doctrine of separation of powers, requires more than
preventing interference with the task of judicial decision-making. As Chaskalson CJ reasoned:

“Judicial officers must act independently and impartially in the discharge of their duties.
In addition … the courts in which they hold office must exhibit institutional
independence. This involves independence in the relationship between the courts and the
other arms of government.”
SEPARATION OF POWERS, AS ENVISAGED IN INDIA

Like the United Kingdom, India also practices the parliamentary form of government in which
executive and legislature are linked to each other. So, the doctrine of separation of powers is not
implemented in its strict sense. However, the composition of our constitution creates no doubt
that the Indian Constitution is bound by the separation of powers. There are various provisions
under the Indian Constitution that clearly demonstrate the existence of the doctrine of separation
of powers. This principle is followed both at the centre and the state level.

Provisions that Substantiate Separation of Power

 Article 53(1) and Article 154 of the Indian Constitution clearly say that the Executive
powers of the Union and the States are vest in the President and Governor respectively
and shall only be exercised directly by him or through his subordinate officers.
 Article 122 and Article 212 of the Indian Constitution state that the courts cannot inquire
in the proceedings of Parliament and the State Legislature. This ensures that there will
be no interference of the judiciary in the legislature.
 Article 105 and Article 194  of the Indian Constitution specify that the MPs and MLAs
cannot be called by the court for whatever they speak in the session.
 Article 50 of the Indian Constitution encourages the separation of judiciary from the
executive in the states.
 Article 245 of the Indian Constitution gives authority to Parliament and State Legislature
for making laws for the whole country and the states respectively.
 Article 121 and Article 211 of the Indian Constitution state that the judicial conduct of
any judge of the Supreme Court or High Court shall not be discussed in Parliament or
State Legislature.
 Article 361 of the Indian Constitution specifies that the President and the Governor are
not accountable to any court for exercising their powers and performance of duties in
his office.
 Article 213 of the Indian Constitution gives power to the Governor to issue ordinance
when state legislative assembly is not in session.

 Article 356 of the Indian Constitution lays the provision of Presidential Rule in case of
state emergency.
 Article 73 of the Indian Constitution specifies that the powers of the executive shall be
co-extensive with that of the legislature.
 Article 74 of the Indian Constitution states that the council of ministers shall aid the
President in the exercise of his executive functions.
 Article 75(3) of the Indian Constitution makes the Council of Ministers collectively
responsible to the House of the People.
 Article 61 of the Indian Constitution lays the provision of Impeachment of the President
by passing a resolution from both the houses in order to remove the President.
 Article 66 of the Indian Constitution states that the election of Vice-President is done by
the electoral members of both the houses.
 Article 145 of the Indian Constitution allows the Supreme Court to make laws with
approval of the President for the court proceedings and the practices.
 Article 146 of the Indian Constitution lays the provisions for the appointment of the
servants and officers of the Supreme Court by the Chief Justice of India with
consultation from President and the Union Public Service Commission.
 Article 229 of the Indian Constitution lays the provision for the appointment of the
servants and officers of the High Courts with the consultation of the Governor and the
State Public Service Commission.
 Article 124 of the Indian Constitution gives the President the power to appoint the judges
of the Supreme Court.
 Article 72 of the Indian Constitution empowers President to grant a pardon or suspend the
sentence of any person who is convicted by the Supreme Court of India.
  Article 32, Article 226 and Article 136 of the Indian Constitution provide the power of
judicial review to the Supreme Court to strike down any law made by the Parliament or
any administrative action which is found to be unconstitutional.

Judicial Approach towards Separation of Power in India

The court has interpreted the applicability of the doctrine of separation of power in India in many
case laws.

 The very first judgment with relation to the separation of powers was given by Mukherjee
J. in the case of Ram Jawaya Kapur v. State of Punjab AIR 1955 SC 549. He
concluded that-

“The Constitution of India has not acknowledged the doctrine of separation of power
emphatically but the functions and powers of all the organs have been adequately distinguished.
Thus it would not be wrong to say that Indian constitution does not behold assumptions rather it
works in a flexible manner considering the needs of the country. So, the executive can exercise
the law-making power only when delegated by the legislature and it is also empowered to
exercise judicial powers within the limits. But on an all, no organ should exercise its power
beyond the provision of the constitution.”

 In the case of Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299, Ray C. J. said:-

“A rigid sense of separation of powers which has been given under the American and Australian
constitution does not apply to India.”

Beg J. further added that:-

“The separation of power is a part of the basic structure of the constitution. So, the schemes of
the constitution cannot be changed even after restoring Article 368 of the Indian Constitution.”

 In Golak Nath v. State of Punjab AIR 1967 SC 1643, it was observed by Subba Rao C.J.
that:-
“The three organs of the government have to exercise their functions keeping in mind certain
encroachments assigned by the constitution. The constitution demarcates the jurisdiction of the
three organs minutely and expects them to be exercised within their respective powers without
overstepping their limits. All the organs must function within the spheres allotted to them by the
constitution. No authority which is created by the constitution is supreme. The constitution of
India is sovereign and all the authorities must function under the supreme law of the land i.e. the
Constitution.”

 Das J. talked about separation of powers in the case of AK Gopalan v. State of Madras
1950 AIR 27 -

“Although the constitution has imposed some limitations on the three organs of the government,
it has left our parliament and state legislature supreme in their respective fields. In the main,
subject to the limitations, our constitution has preferred the supremacy of legislature to that of
the judiciary and the court has no authority to question the wisdom or policy of the law duly
made by the appropriate legislature and this is the basic fact which the court must not outlook.”

 In Asif Hameed v. State of Jammu and Kashmir AIR 1989 SC 1899, the Supreme Court
observed that:-

“Though the constitution has not recognized the doctrine of separation of powers in its absolute
rigidity, the drafters of the constitution have diligently defined the powers and functions of
various organs. The legislature, executive and judiciary have to function within their own
domain prescribed by the constitution. No organ may arrogate the functions allotted to
another.”

The principle of separation of power creates a demarcation among the three organs of the
government. But in the present scenario, administrative law is antithetical to this principle. With
the emerging pattern of globalized interdependence, the administrative agencies are not just
exercising the administrative functions but also practices quasi-legislative and quasi-judicial
powers, thus, violating the principle of separation of powers.
Contemporarily, it is a compulsive necessity to delegate the additional legislative and judicial
powers to the administrative agencies to establish efficient and adroit governance and to ensure
proper enforcement of the laws. The creation of administrative tribunals and delegation
legislation took place with the aim to reduce the load of the legislation and judiciary and to
expedite the lawmaking and justice giving process with expertise. This cannot be achieved with
strict implementation of the doctrine of separation of powers. Therefore, the separation of
powers acts as an important limitation on administrative law. This theory is not operative in its
absolute sense but yes, it is very advantageous if applied correlatively. Thus, not impenetrable
barriers and unalterable frontiers but mutual curtailment in the exercise of powers by the three
organs of the state is the spirit of the doctrine of separation of powers.
Answer to Question 3:

(a)

The concept of Rule of Law is that the state is governed, not by the ruler or the nominated
representatives of the people but by the law. A county that enshrines the rule of law would be
one wherein the Grundnorm of the country, or the basic and core law from which all other law
derives its authority is the supreme authority of the state. The monarch or the representatives of
the republic are governed by the laws derived out of the Grundnorm and their powers are limited
by the law. The King is not the law but the law is king.

The origins of the Rule of Law theory can be traced back to the Ancient Romans during the
formation of the first republic; it has since been championed by several medieval thinkers in
Europe such as Hobbs, Locke, and Rousseau through the social contract theory. Indian
philosophers such as Chanakya have also espoused the rule of law theory in their own way, by
maintaining that the King should be governed by the word of law.

The formal origin of the word is attributed to Sir. Edward Coke, and is derived from French
phase ‘la principe de legalite’ which means the principle of legality. The firm basis for the Rule
of Law theory was expounded by A. V. Dicey and his theory on the rule of law remains the most
popular. Dicey’s theory has three pillars based on the concept that “a government should be
based on principles of law and not of men”, these are:
Supremacy of Law: 

This has always been the basic understanding of the rule of law that propounds that the law rules
over all people including the persons administering the law. The lawmakers need to give reasons
that can be justified under the law while exercising their powers to make and administer the law.

Equality before the Law: 

While the principle of supremacy of law sets in place checks and balances over the government
on making and administering the law, the principle of equality before the law seeks to ensure that
the law is administered and enforced in a just manner. It is not enough to have a fair law but the
law must be applied in a just manner as well. The law cannot discriminate between people in
matters of sex, religion, race etc. This concept of the rule of law has been codified in the Indian
Constitution under Article 14 and the Universal Declaration of Human Rights under the
Preamble and Article 7.

Pre-dominance of legal spirit: 

In including this as a requirement for the rule of law, Dicey’s belief was that it was insufficient
to simply include the above two principles in the constitution of the country or in its other laws
for the state to be one in which the principles of rule of law are being followed. There must be an
enforcing authority and Dicey believed that this authority could be found in the courts. The
courts are the enforcers of the rule of law and they must be both impartial and free from all
external influences. Thus the freedom of the judiciary becomes an important pillar to the rule of
law.

In modern parlance, Rule of Law has come to be understood as a system which has safeguards
against official arbitrariness, prevents anarchy and allows people to plan the legal consequences
of their actions.

The Romans brought both positive and negative elements to the idea of rule of law, although the
negative elements proved to be of much greater consequence. On the positive side, there was the
work of Cicero, who continued the Greek tradition of Plato and Aristotle in The Republic, his
masterpiece produced in the first Century B.C. There, Cicero commented that the king who does
not abide by the law is a despot, “the foulest and most repellent creature imaginable.

Dicey delivered a series of lectures at Oxford which were first published in 1885 under the title,
Introduction of the Study of the Law of the Constitution, with the aim to introduce students to
“two or three guiding principles” of the constitution. Foremost, among these guiding principles
was “the rule of law,” an expression introduced in English law by W.E. Hearn in 1867. The
treatise written by Dicey is remarkably clear, and represents the first strictly legal approach to
English public law which, up to then, had been dominated by historical studies. The treatise
expressed the general doctrine of the rule of law in the form of several detailed statements
describing the English constitution. Some of these derived from authors who immediately
preceded Dicey. Dicey gave three meanings to the rule of law: First, the rule of law means the
absolute supremacy or predominance of regular law as opposed to the influence of arbitrary
power, and excludes the existence of arbitrariness; a man may with us be punished for a breach
of law, but he can be punished for nothing else.

In present day Britain the meanings of the rule of law proposed by Dicey and Hayek have been
said to “raise considerable problems.” With regard to 108 the supremacy of the law, the first
meaning of rule of law proposed by Dicey discussed above, the emphasis on the attacks against
the existence of discretionary powers has been displaced in favor of the establishment of a
system of legal and political safeguards by which the exercise of discretionary powers may be
controlled. The second meaning of the rule of law given by Dicey relating to the equal subjection
of all persons to the ordinary law is similar to that of the Fourteenth Amendment to the United
States Constitution, which provides, inter alia, that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” It is also similar to the multifarious provisions laid
down in the constitutions of India, Germany, and Canada. But today, any legal system, including
the English system, distinguishes between different categories of persons by reference to
economic or social considerations or their legal status. Furthermore, although Dicey proclaimed
the illegitimacy of administrative law, today it is accepted across a swarm of countries swearing
indirectly to the adage of rule of law that the legal protection of the citizens against unlawful
official conduct can be secured by separate administrative courts. Finally, today it is difficult to
share Dicey’s faith in the common law.
Rule of Law vis-à-vis Legal Cultures and Socio-Legal Institutions

 The rule of law is best seen not as a blueprint for institutional design but as a value, or cluster of
values, that might inform such a design and that can therefore be pursued in a variety of ways.
Nonetheless, several rather simple and generalized institutional insights follow from the idea that
those who judge the legality of exercises of power should not be the same as those who exercise
it. For instance, a typical rule-of-law state will institutionalize some means of shielding legal
officials from interference, political or otherwise, that threatens their independence. Accordingly,
the institutional separation of the judiciary from other branches of government is commonly
thought to be an important feature of rule-of-law states. Other measures to ensure fair access to
legal institutions may also be important for rule-of-law regimes. In addition, a binding
written constitution is widely believed to aid the tenets of Rule of Law and has been adopted by
most states of the world.

While certain institutional traditions and conventions, as well as written laws, may be important
to ensure that judicial decisions are grounded within plausible interpretations of existing laws, no
single institutional character of a state should be seen as necessary or sufficient to the rule-of-law
ideal. The rule of law is tied neither to any one national experience nor to any set of institutions
in particular, although it may be better served in certain countries and by some institutions.
Moreover, the institutional arrangements that ensure the rule of law in one polity might not be
easily duplicated in or transplanted to another. Different polities embody their own judgments
about how to implement specific rule-of-law ideals given their particular legal and cultural
traditions, which naturally influence the character of their institutions. Nonetheless, the initial
sociological condition for the rule of law is shared across cultures: for the rule of law to be more
than an empty principle, most people in a society, including those whose profession it is to
administer the law, must believe that no individual or group should be above the law.

Anyone who holds that what matters most in politics is having the right people in power and not
how power should be constrained will be unconvinced of the value of the rule of law. Neither
will anyone who believes that institutions of public power are merely instruments of the ruling
class that need to be dismantled rather than merely constrained. For the majority of
modern democratic societies, however, the rule of law’s requirement that both rulers and the
ruled be accountable to the law is of unquestionable value. To be sure, in the modern world, it is
the liberal tradition that values the rule of law most highly. Liberals who are concerned with
ways of protecting (and realizing) liberty in some form and averting threats to it view the rule of
law as an overarching source of security. Nonetheless, there is substantial disagreement even
among liberals over what exactly counts as a faithful application of the term and, even when that
is pinned down, how it is to be accomplished.

Some argue that the rule of law has nothing to do with human rights and that even a legal system
where slavery was allowed could still uphold the rule of law. There is some logic to this
argument; in theory, a publicly available law, which applied to everyone, was enforced by the
courts, and did not apply to past events, could be a law that legalized slavery. It is difficult to
drum up widespread, grassroots political support for the rule of law.  In the eyes of many people,
the rule of law does not put food on the table.  Worse still, the law can be a source of
oppression.  Governments and law-enforcement officials can and do commit crimes. The rule of
law is therefore an empty concept without human rights; it does not really protect anyone. And
so protecting our fundamental human rights must be another key part of the definition of the rule
of law.

Hypothetical Analysis of a Society without Rule of Law

Nonetheless, the rule of law is of huge importance.  It is a political ideal that we should all be
fighting for.  To see why, imagine a hypothetical society where the rule of law is failing. 
Plainclothes police officers shoot dead a man they claim was acting suspiciously, but the routine
criminal investigation of the killing that would normally follow is obstructed by the police chief. 
Legislation is passed conferring broad, vague powers on government officials for ‘the
furtherance of national security’, while public scrutiny of their use in the ordinary courts is
denied; objections to the breadth and vagueness of these measures are met with responses that
the authorities can be trusted to wield their powers fairly. Officials start to disobey court orders
systematically.  Magistrates receive anonymous death-threats.  Independently-minded judges are
lambasted by high-powered government officials.  Corporate property developers circumvent
regulations to protect precious environmental areas, without consistent official response.  Laws
designed to protect employees in dangerous workplaces are widely flouted.  Bribes are
commonplace.  There is little protection for the honest, hardworking entrepreneur.  Some
wrongdoers are prosecuted for their crimes, while others – apparently well-connected – are not. 
People start to rely largely on the patronage or mercy of officials to receive state-sponsored
benefits. There is a clampdown on free speech:  investigative journalists and editors are jailed for
stories claiming to expose corruption.  Most chilling is the lawless violence.  Murderers are not
brought to book.  Worse yet, there are rumors of nameless officials knocking on doors at night,
and of people disappearing without arrest warrants.

That is what a society without the rule of law looks like. Surely none of us, as citizens and
members of the developing society would want to live there? To make sure we never do in the
world’s largest democracy, India’s future, we all need to do our bit to protect and promote the
rule of law.

Road Ahead for the Rule of Law to be Relevant

Firstly, the ideas of Separation of powers and the Rule of Law must co-exist harmoniously, so
that both these doctrines can fulfill their own, distinct roles in the constitution and law-making
processes. The rule of law ensures law is above everyone, and the separation of powers enhances
the check and balance functions of the legislature, executive and the judiciary.

Secondly, only by itself, the Rule of Law is not enough to promote justice in twenty-first century
India, or for that matter, in other countries like the UK and the USA.  We should be careful not
to place over-exaggerated faith in the capacity of law alone to improve the various segments of
the society.  It is crucial to respect and promote other political ideals through judicial precedents
and legislative construction too, like the ideas of distributive fairness, freedom of speech, and
environmental sustainability.

As James E. Hickey Jr. rightly asserted in his book ‘The Legal Doctrines of the Rule of Law
and the Legal State’:

“The rule of law may be difficult to obtain, but its absence is never hard to perceive. Whenever
power and naked self-interest can prevail against reason and the common good, the rule of law
is not complete. The ultimate goal of every society and every legal system should be equal and
impartial justice for all, free from oppression and arbitrary power. For that, rule of law needs to
systematically prevail and reinvent itself in a rapidly changing globalised environment”.

(b)

RULE OF LAW AND ITS CURRENT POSITION IN INDIA

The concept of Rule of Law permeates into the Indian Legal System through the Constitution.
Part III of the Constitution of India acts as a restraint on the various organs exercising powers.
While conferring the rights on the citizens, it imposes restrictions on the power that can be
exercised. Under our Constitution, we have adopted the British System of Rule of Law. Absence
of arbitrary power is the first essential of Rule of Law upon which our whole constitutional
system is based. Governance must be by rule, and not arbitrary, vague and fanciful, as it had
been held by the Hon.’ble Supreme Court in Godavarman v. Ashok Khot, (2006) 5 SCC 1.
Under our Constitution, the Rule of Law pervades over the entire field of administration and
every organ of the state is regulated by Rule of Law. The concept of Rule of Law cannot be
upheld in spirit and letter- if the varying degrees of rational nexus and instrumentalities of the
state are not charged with the duty of discharging their functions in a just and effective manner.

The Indian judiciary has played a massive role in shaping and preserving the ethos of the idea of
Rule of Law in India. By adopting a straight-batted approach, coupled with a dynamic reading of
the manifold constitutional provisions, the courts have ensured that the Rule of Law and respect
for citizens’ rights do not remain only on paper but are incorporated in spirit too.
In the case of Maneka Gandhi v. Union of India 1978 AIR 597, the Hon’ble Supreme Court
established the Rule of Law that no person can be deprived of his life and personal liberty except
procedure establish by law under Article 21 of the Constitution. Thus, Article 21 requires the
following conditions to be fulfilled before a person is deprived to his life and liberty:

1. That there must be a valid law.

2. The law must provide procedure.
3. The procedure must be just, fair and reasonable.
4. The law must satisfy the requirement of Article 14 and 19.

The Supreme Court observed in Som Raj v. State of Haryana II (1994) ACC 36, that the
absence of arbitrary power is the primary postulate of Rule of Law upon which the whole
constitutional edifice is dependant. Discretion being exercised without any rule is a concept
which is antithesis of the concept.

The case of ADM Jabalpur v. Shivakant Shukla 1976 SCR 172, is one of the most important
cases when it comes to rule of law. In this case, the question before the court was ‘whether there
was any rule of law in India apart from Article 21’. This was in the context of suspension of
enforcement of Articles 14, 21 and 22 during the proclamation of an emergency. The answer of
the majority of the bench was in negative for the question of law. However Justice H.R. Khanna
dissented from the majority opinion and observed that “Even in the absence of Article 21 in the
Constitution, the state has got no power to deprive a person of his life and liberty without the
authority of law. Without such sanctity of life and liberty, the distinction between a lawless
society and one governed by laws would cease to have any meaning…” The majority judges
could not take a firm stand and interpreted the supremacy of law to mean supremacy of the law
of the land and not supremacy of the constitutional spirit which is rule of law.

In the last few decades, the principle has found a definitive voice and reasons for a more holistic
extension through some crucial pronouncements by the Supreme Court. Mention must be made
of Vishaka v. State of Rajasthan (1997) 2 CHRLD 202, where Vishaka and other women
groups filed a Public Interest Litigation (PIL) against State of Rajasthan and Union of India to
enforce fundamental rights for working women under Articles 14, 19 and 21 of the Constitution.
This resulted in the introduction of Vishaka Guidelines. The judgment of August 1997 also
provided basic definitions of sexual harassment at the workplace and provided guidelines to deal
with it. Hence, one understands the importance of the case as a landmark judgment towards
upholding the flexibility of Rule of Law in India.

In the case of State (N.C.T. of Delhi) v. Navjot Sadhu @ Afzal Guru (2005) 11 SCC 600, Afzal
Guru’s hanging raised certain procedural questions which later burden the popular
consciousness. Afzal Guru was, in 2002, sentenced to death by the Trial Court and in 2003 Delhi
High Court upheld the death sentence. Later in 2005, the Apex court confirmed the death
sentence.19 His sentence was confirmed by all the levels of judicial hierarchy. India strictly
follows the ‘rarest of the rare doctrine’ as laid down in Bachan Singh v. State of Punjab AIR
1980 SC 898. After all, suspected Indian Mujahideen (IM) terrorist Shahzad Ahmad, convicted
in the 2008 Batla House encounter case, was sentenced to life imprisonment by a Delhi court,
which said the case does not fall under the rarest of rare category warranting death penalty. Afzal
Guru in his clemency petition to the then President of India, A P J Abdul Kalam had stated that
the all crucial witnesses in the case have not been cross examined and a close reading of the
court records clarifies and establishes this. This was procedurally a gross violation of all the
standards of fair trial. Furthermore, the Supreme Court in para 250 of the judgment has admitted
to the fact that it is doubtful whether Afzal Guru was part of a terrorist organization, when it
concurred:

“The conviction under Section 2 of Prevention of Terrorist Activities Act (POTA) is set aside.
The conviction under Section 3 (5) of POTA is also set aside because there is no evidence, once
the confessional statement is excluded. Incidentally, we may mention that even going by the
confessional statement, it is doubtful whether the membership of a terrorist gang or organisation
is established.”

This case is one of the few impediments to the causa prima of Rule of Law in contemporary
India.

The Supreme Court, in PUCL v. Union of India (2013) 10 SCC 1, upheld the constitutional
right of citizens to cast a negative vote in elections. The exact political ramifications of this
judgment will probably become clear once the Election Commission comes up with the
modalities of its implementation; from a constitutional point of view, this judgment is important
as it further underscores the centrality of Article 19(1) (a) to election disputes. The constitutional
validity of Rules 41(2), (3) and 49-O of the Conduct of Election Rules, 1961, was impugned.
Both sides agreed on the fact that the combined effect of these rules was that persons who did not
vote in elections were recorded (by the presiding officer) as having not voted. The petitioners
argued that this was a violation of the right to secret balloting, protected by Articles 19(1) (a) and
21 of the Constitution. Relying upon Kuldip Nayar  v. Union of India, the State had raised a
preliminary objection on the ground that since voting was not a fundamental or constitutional
right, but only a “statutory right” brought into existence by the Representation of Peoples Act,
this wasn’t an Article 32 fundamental rights petition in the first place. Rejecting this contention,
the Court distinguished between the “right to vote” and the “freedom of voting as a species of the
freedom of expression“. This conclusion follows inexorably from Article 19(1) (a) and from the
structure of the Constitution itself. This judgment again sounded the superiority of the Rule of
Law and systemic division of power structures to guarantee individual and collective rights in
India.
In Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors. Writ Petition
(Civil) No. 373 of 2006, the recent majority judgment of the Supreme Court on a batch of review
petitions and fresh writ petitions that had been filed against its judgment to allow the entry of
women of all age groups into the Sabarimala temple in Kerala not only undermines the rule of
law, it also opens a floodgate to writ petitions that could be filed challenging the court’s order –
ordinarily not permissible in law. “While deciding the questions delineated above, the larger
bench may also consider it appropriate to decide all issues, including the question as to whether
the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the
temple in question at all. Whether the aforesaid consideration will require the grant of a fresh
opportunity to all interested parties may also have to be considered”, the majority judgment said.
In the Sabarimala case, the majority judgment failed to distinguish between the review petitions
and the writ petitions and heard both categories of cases together, leading to an outcome that
violates the rule of law.
In the case of Justice (Retd.) K.S. Puttaswamy v. Union of India Writ Petition (Civil) No. 494
of 2012, a nine Judge bench of the Supreme Court observed that fundamental rights emanate
from basic notions of liberty and dignity. Although Article 19 expansively enumerates some
facets of liberty, this does not denude Article 21 of its wide scope and ambit. Privacy is
a concomitant of an individual’s right to exercise control over his own personality and finds its
origin in the notion that certain natural or inherent rights are inseparable from the human
personality. Like other rights in Part III of the Constitution, privacy too cannot be an absolute
right and its violation must, in addition to the tests of due process and procedure established by
law, also a factor in legitimate State interests. Although unanimous, the verdict saw six separate
concurring decisions. This case further strengthened the position of Rule of Law in India.
The Constitution must in all circumstances be considered supreme, and the laws made by the
legislature should pass the test of reasonableness and the objectives of the Constitution. If any
organ of the Government crosses its limits or encroaches upon the powers of the other organs or
exceeds its jurisdiction, the act shall be considered as invalid and any abuse of law or any action
shall be termed as void ab initio; and the principle of checks and balance will come into play to
ensure the sustenance of the principle of Rule of Law in our country.

RULE OF LAW AND ITS CURRENT POSITION IN THE UNITED STATES OF AMERICA

The U.S. Constitution is the nation's fundamental law.  It codifies the core values of the people. 
Courts have the responsibility to interpret the Constitution's meaning, as well as the meaning of
any laws passed by Congress. Pundits state further that, if any law passed by Congress conflicts
with the Constitution, "the Constitution ought to be preferred to the statute, the intention of the
people to the intention of their agents." 

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative
power.  It only supposed that the power of the people is superior to both; and that where the will
of the legislature, declared in its statutes, stands in opposition to that of the people, declared in
the Constitution, the judges ought to be governed by the latter rather than the former.  They
ought to regulate their decisions by the fundamental laws, rather than by those which are not
fundamental."

The American democratic system is not always based upon simple majority rule.  There are
certain principles that are so important to the nation that the majority has agreed not to interfere
in these areas.  For instance, the Bill of Rights was passed because concepts such as freedom of
 religion, speech, equal treatment, and due process of law were deemed so important that, barring
a Constitutional Amendment, not even a majority should be allowed to change them.

Rule of law is a principle under which all persons, institutions, and entities are accountable to
laws that are:

 Publicly promulgated

 Equally enforced

 Independently adjudicated

 And consistent with international human rights principles.

The courts play an integral role in maintaining the rule of law, particularly when they hear the
grievances voiced by minority groups or by those who may hold minority opinions.  Equality
before the law is such an essential part of the American system of government that, when a
majority, whether acting intentionally or unintentionally, infringes upon the rights of a minority,
the Court may see fit to hear both sides of the controversy in court.

In the case of J.E.B. v. Alabama 511 US 127 (1994), the State of Alabama, acting on behalf of
the child, J.T., filed a complaint for paternity and child support against J.E.B. The state used its
peremptory challenges to strike nine of 10 potential male jurors from the jury. J.E.B., the
defendant, used one challenge to strike the remaining male juror. As a result, all the selected
jurors were female. J.E.B. claimed that the state's use of the peremptory challenge to exclude
nearly all male jurors violated the Equal Protection Clause of the Fourteenth Amendment. The
court rejected petitioner's claim. The jury found petitioner to be the father of the child, and the
court entered an order directing him to pay child support.  In a 6–3 decision, the Court ruled that
the Equal Protection Clause prohibits striking potential jurors not only because of their race or
ethnicity, but also because of their gender. The Court concluded that discrimination on the basis
of gender in jury selection does not substantially further the state's legitimate interest in
achieving a fair and impartial trial, hence becoming violative of the Rule of Law.

In Synder v. Phelps 131 S. Ct. 1207 (2011), The Supreme Court's holding turned largely on its
determination that the church was speaking on "matters of public concern" as opposed to
"matters of purely private significance." The Court explained that "speech deals with matters of
public concern when it can 'be fairly considered as relating to any matter of political, social, or
other concern to the community' or when it 'is a subject of general interest and of value and
concern to the public.'" Speech on public issues is entitled to special protection under the First
Amendment because it serves the "the principle that debate on public issues should be
uninhibited, robust, and wide-open."To determine whether the speech dealt with matters of
public concern, the Court examined the "content, form, and context" of the speech. The court
noted that none of these factors would determine the outcome of the case and that a court must
evaluate all the circumstances of the speech, to preserve the Rule of Law from slipping into a
delectable abyss, and for that a test had to ensue, "including what was said, where it was said,
and how it was said."

In Bank Markazi v. Peterson et al 136 S. Ct. 1310 (2016), the Supreme Court held that 22
U.S.C.S. § 8772, which the Congress had enacted as part of the Iran Threat Reduction and Syria
Human Rights Act of 2012, did not violate rule of law by purporting to change the law for, and
directing a particular result in, a single pending case. Furthermore, the Court maintained that the
statute, which made available for post-judgment execution a set of assets held at a New York
bank for the Central Bank of Iran to partially satisfy judgments obtained by over 1,000 victims of
terrorist acts sponsored by Iran, did not offend separation of powers and rule of law principles,
since it sought to protect the role of the independent Judiciary within the constitutional design.

In Masterpiece Cake Shop Limited v. Colorado Civil Rights Commission 138 S. Ct. 1719
(2018), the Supreme Court produced the melted remnant for rule of law across the USA
jurisdiction, and how it might differ from a case-to-case basis. By a whooping majority of 7–2,
the Court held for the religious baker, Jack Phillips, who had refused to sell a cake to same-sex
couple, Charlie Craig and Dave Mullins, for a post-hoc celebration of their out-of-state wedding.
The Court decided the case, on the narrowest grounds imaginable—that the Colorado Civil
Rights Commission during its consideration of the case had shown anti-religious bias. The result
was a decision that provides almost no guidance for lower courts facing similar cases which
involve questions pertaining to rule of law and free speech, besides the issues of freedom of
religion and freedom to marry. “In this case,” Kennedy wrote, “the adjudication concerned a
context that may well be different going forward.” Thus, “the outcome of cases like this in other
circumstances must await further elaboration in the courts.”It used a rationale applicable only to
this particular case, which sheds no light on the larger civil-rights issues and how the rule of law
is supposed to be preserved.

Federalism, separation of powers, and rule of law are the heart of the American Constitution. But
there are other fundamental principles of the system as well, all of which contribute significantly
toward the achievement of liberty, order, and justice. To conclude through John Patrick’s words
in ‘Understanding Democracy: A Hip Pocket Guide’:

“When rule of law shall not prevail in the United States, it leads to the emergence of some form
of despotism in which power shall be wielded arbitrarily by a single leader, person or a party. “

(c)

Article 1 of the Charter of the United Nations states that one of the purposes of the United
Nations is to “bring about by peaceful means, and in conformity with the principles of justice
and international law, adjustment or settlement of international disputes or situations which
might lead to a breach of the peace.” The United Nations has served as a mechanism of
coordinating a multitude of international lawmaking activities and provided diverse information
not only to governments and international or national institutions but also to the general public.
The rule of law ensures that international law and the principles of justice apply equally to all
States and are equally adhered to. Respect for the rule of law generates an enabling environment
for achieving the purposes of the Charter.

Article 33 of the Charter is absolutely sacrosanct for the prevention of conflict and the peaceful
settlement of disputes. Parties to an international dispute have access to diverse measures and
mechanisms for dispute resolution, including negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement and resort to regional agencies or arrangements.

A strong rule of law, which protects human rights , helps prevent and lower the rates and
repetitions of violent crime(s) and conflict(s) by adducing legitimate processes for the resolution
of various types of grievances and disincentives for crime and violence. On the other hand, weak
economic development and inequality can be a trigger for crime and violence. In this context, the
principle of protection, adopted by the General Assembly in the 2005 World Summit Outcome, is
relevant. It highlights the importance of supporting national rule of law and human rights
institutions to ensure that Governments have all the tools necessary to comply with their
obligations to protect their populations from genocide, crimes against humanity, war crimes and
ethnic cleansing, and calls upon the international community to support such efforts.

The definition of International Rule of Law given by Arbitrator Huber in the Island of Palmas
case (1928) 2 RIAA 829, still remains very relevant indeed for the present discussion: ‘Rule of
Law, with regards to external and cross-jurisdictional sovereignty is important- in the relations
between states which signify independence. Independence in regard to a portion of the globe is
the right to exercise therein, to the exclusion of any other State, the functions of a State. Rule of
Law is cohesive and paramount.”

To borrow from international jurist Joseph Raz, this rule of law value concerns the making of
laws, which should be guided by open, stable, clear and general principles, which govern the
actions of the United Nations. In the context of domestic law, the activity studied under this
heading is legislation, the main source of written legal norms, with the analysis scrutinizing the
parliamentary process of legislative enactment. In the context of international law, the
(imperfect) parallel is with treaties, one of the three formal sources of law under Article 38(1) of
the Statute of the International Court of Justice and the source of written legal norms on the
international plane, as opposed to customs that constitute the source of international non-written
rules. The general principles of law are also of less interest because, by definition, they are
extracted from domestic legal systems (in foro domestico) and, accordingly, should be deemed to
pursue rule of law values.

Since the signing of the Charter of the United Nations, we speak of the sovereign equality of
states, which constitutes one of the seven principles of the organization as set out in Article 2.
With the Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation among States in accordance with the Charter of the United Nations, a General
Assembly resolution adopted by the United Nations in 1970, sovereign equality became one of
the basic principles of international law. ‘All States enjoy sovereign equality,’ it reads. ‘They
have equal rights and duties and are equal members of the international community,
notwithstanding differences of an economic, social, political or other nature.’ In particular, it
provides that sovereign equality entails that states are ‘juridically equal’, that is to say, all
members of the international community are equal in the eyes of the laws proclaimed by the
United Nations.

Article 6 of the Vienna Convention on the Law of Treaties provides: ‘Every State possesses the
capacity to conclude treaties.’ It is also significant that treaty-making conferences generally
favor an egalitarian procedure of one state, one vote for the negotiation and adoption of treaty
texts. Moreover, the systems of reservations, entry into force, modification and termination of
treaties, found in the Vienna Convention, assume that states participate equally in conventional
regimes. As regards customary international law, a similar reasoning based on the ideal of
sovereign equality is adopted. Indeed, the practice of every state with an interest in the legal
issue (see the example of the law of the sea, above) as well as their opinio juris are both
significant in the process of determining whether a custom has formed. This equal role in the
formulation of international normativity provides further strength to the claim that the value of
the rule of law relating to equality is projected globally by the dynamic United Nations bodies.

In theory, the jurisdiction of the International Court of Justice over contentious matters is
plenary, as far as states are concerned. With respect to ratione personae jurisdiction, Article
34(1) of the ICJ Statute is clear: ‘Only states may be parties in cases before the Court.’ In regard
to ratione materiae jurisdiction, Article 36(1) provides: ‘The jurisdiction of the Court comprises
all cases which the parties refer to it and all matters specially provided for in the Charter of the
United Nations or in treaties and conventions in force.’ Under Article 65(1) of the ICJ Statute,
the Court also has jurisdiction to give advisory opinions in non-contentious matters, a procedure
that can be initiated not only by states, but also by ‘whatever body [that] may be authorized by or
in accordance with the Charter of the United Nations to make such a request’. At first glance,
therefore, the jurisdiction of the International Court of Justice seems to be comprehensive;
however there are bigger challenges for the ICJ to try and uphold an international rule of law.

Most importantly, Article 94(2) of the Charter of the United Nations provides that:

“If any party to a case fails to perform the obligations incumbent upon it under a judgment
rendered by the Court, the other party may have recourse to the Security Council, which may, if
it deems necessary, make recommendations or decide upon measures to be taken to give effect to
the judgment. “

Of course, it must be acknowledged that the Security Council has discretion in this process of
enforcement, which makes some say that Article 94(2) ‘should not be overestimated as a means
for executing judgments of the ICJ, in particular if “veto-powers” [that is, of the five permanent
members of the Security Council] are concerned’. It is also true, however, that the full potential
of the judicial enforcement provision of the UN Charter has not been really tested just because,
on the ground, judgments of the International Court of Justice are complied with unreservedly in
almost all instances. De facto, therefore, this last element of the rule of law value relating to the
enforcement of legal norms is undoubtedly reflected in a satisfactory fashion onto the
international plane, at least as regards the principal judicial organ of the UN system.

Paragraph 7 of the General Assembly Declaration on the Rule of Law, 2012 called for the
consideration of a strong rule of law perspective in the post-2015 international development agenda.
The ongoing debate on the post-2015 perspectives provides a unique opportunity to stress the
interlinkages between democracy, human rights and the rule of law. To ensure domestic
accountability within democratic ownership frameworks, it is essential to take into account both the
democracy and rule of law dimensions of the next generation of Millennium Development
Goals/Sustainable Development Goals (SDGs) and the potential value of a voluntary goal on
democracy, human rights and the rule of law to help drive the development agenda. Particularly,
Goal 16 of the SDGS is an enabling goal for Member States to generate national-level policy
changes that advance progress on other SDGs. The development of inclusive and accountable
justice systems and rule of law reforms will provide quality services to people and build trust in
the legitimacy of their government. This approach should respond to the needs of individuals and
groups and their meaningfully participation from the outset, paying particular attention to those
historically marginalized and at risk of being left behind. It includes prevention of serious
violations of human rights, achieving credible accountability for those responsible at national
and international levels and empowering individuals and communities to make use of justice
mechanisms to protect their fundamental human rights.

The focus on the rule of law by the United Nations has come at a time when conflicting
jurisdictional claims, competing demands for living and nonliving resources, increasing
globalization of the various industries, and spreading complexities and downsizing in the quality
of human life were threatening to transform the oceans, the air, the space et al- over , above and
even beneath the surface of the earth, into an arena for chaos, conflict, and unilateralism.
Notwithstanding the variations in semantics and flow of intellectual rhetoric, the drafters of the
UN Charter, along with those who sustain and implement the idea across the length and breadth
of the Member States would still subscribe to Nicholas Upton’s thought:

“The annoying and hurtful appetite of man for power and gains must be controlled by the rule of
law which informs mankind of how to live honestly and peacefully. “

The fight for the rule of law in human relations is long and never-ending. To that end, the UN
Charter has been, and shall continue to be an ever-evolving, significant milestone.