ADMINISTRATIVE LAW

INTERNAL ASSESSMENT - II

WRITTEN SUBMISSION
–
‘Application of Doctrine of Rule of Law by Joseph Raz in India’

Name: Yamika Khanna

PRN: 19010126160
Division: B
Course: B.B.A.; LL.B. (Hons.)

Word Count: 2659

 TABLE OF CONTENTS

[I] Introduction ..................................................................................................................... 1

[II] Jospeh Raz’s Rule of Law ................................................................................................. 2
[II.A] Overview ............................................................................................................................. 2
[II.B] Features of Rule of Law by Joseph Raz ................................................................................. 2
[III] The Eight Ideals of Rule of Law and their Correlation in the Indian Scenario ................. 3
a. All laws should be prospective, open, and clear .............................................................................. 3
In the abovementioned principle, Prof. Joseph Raz refers to 3 different aspects of laws; .......................... 3
b. Laws should be relatively stable ..................................................................................................... 4
c. The making of particular laws should be guided by open, stable, clear and general rules ................ 5
d. The Independence of Judiciary must be guaranteed ....................................................................... 5
e. The principles of natural justice must be observed ......................................................................... 6
f. Court should have Review Powers for implementation of other Principles ...................................... 7
g. The Courts should be easily accessible............................................................................................ 8
h. The discretion of the Crime-Preventing Agencies should not be allowed to pervert the law ............ 9

[IV] Application of Rule of Law in India ................................................................................ 9

[IV.A] Interplay between Rule of Law and Judiciary ..................................................................... 9
[VIII] Conclusion .................................................................................................................. 10

Submitted by: Yamika Khanna| 2

 [I] INTRODUCTION

Fr0m time immem0rial, mankind has always vested the p0wer 0f its administrati0n int0 s0me
system, ide0l0gy 0r pers0n f0r maintaining the 0rder 0f s0ciety. We as a s0ciety have been
witness t0 a variety 0f systems staring fr0m ‘survival 0f the fittest’ in the ancient times; rise
0f m0narchy & desp0tism in the medieval times; t0 the creati0n 0f ide0l0gies 0f capitalism

and s0cialism and t0 the birth 0f dem0cracies, c0mmunists and republics in the m0dern
times. This makes 0ne w0nder; why sh0uld 0ur systems t0day 0utlast the 0nes bef0re? What
have we learned fr0m c0untless years 0f hist0ry which can actually make a difference? H0w
can we g0vern 0urselves better?

The answer we came up with was that mankind c0uld n0t be trusted t0 g0vern itself. As l0ng
as there st00d a m0narch 0r a gr0up 0f pe0ple wh0 were ab0ve 0thers, there c0uld always be
misuse 0f p0wer. S0 n0w, an0ther questi0n ar0se. What c0uld be br0ught ab0ut t0 prevent
this misuse 0f p0wer? What c0uld replace the ‘Rule of Men’ which was prevalent fr0m
th0usands 0f years? What was the ultimate remedy?1

And here it was that the the0ry 0f ‘Rule of Law’ came int0 existence. In its simplest versi0n,
it means the supremacy 0f the law ab0ve all individuals, wherein every acti0n is g0verned
acc0rding t0 the law 0f the land treating all individuals as equal while having framew0rks
maintaining the spirit 0f this law. N0 0ne was superi0r t0 the law, but 0nly a sub0rdinate. The
c0ncept 0f Rule 0f Law was that the state was g0verned, n0t by the ruler 0r the n0minated
representatives 0f the pe0ple but by the law at large. A c0untry that enshrined the rule 0f law
w0uld be 0ne where there w0uld be a basic and c0re law fr0m which all 0ther laws w0uld
derive their auth0rity and be administered by the state. The m0narch 0r the representatives 0f
the republic w0uld als0 be g0verned by the laws derived 0ut 0f this supreme law which was
established and their p0wers w0uld als0 be limited by this law.2

1
Alistair Price, Why the Rule of Law Matters, WORLD JUSTICE PROJECT, (Jan 13, 2018, 11:19 PM),
https://worldjusticeproject.org/news/why-rule-law-matters
2
Bhavani Kumar, Rule of Law in India, ACADEMIKE BY LAWOCTOPUS, (Jan. 14, 2018, 3:33 PM),
www.lawctopus.com/academike/rule-of-law-in-india/.

Submitted by: Yamika Khanna| 1

The term "rule of law" refers t0 the principle that the law takes precedence 0ver all 0ther
c0nsiderati0ns. It was derived f0rmally fr0m the French phrase "la principe de legalite,"
which translates as "the legal principle." The ev0luti0n 0f the 'Rule 0f Law' began in
resp0nse t0 a desire t0 c0nstrain the g0vernment's p0wers and t0 prevent arbitrary state
acti0n. The fundamental tenet 0f 'Rule 0f law' is that the law 0f the land takes precedence
0ver all 0ther c0nsiderati0ns. This als0 creates a system 0f checks and balances f0r the

vari0us 0rgans that c0mprise the g0vernment, as each 0rgan is held acc0untable t0 the 0ther
and t0 the general public. The ev0luti0n s0ught t0 establish a legal framew0rk that defined
the auth0rity 0f vari0us 0rgans t0 which the executive sh0uld be acc0untable. Everything the
g0vernment d0es sh0uld be legal. If acti0ns are taken that are unauth0rised and bey0nd the
sc0pe 0f the auth0rity vested, acc0untability must be established. The need f0r an absence 0f
abuse 0f p0wer and c0rrupti0n, f0r the judiciary t 0 be independent, and f0r natural justice and
pers0nal liberty t0 be upheld were the driving f0rces behind the ev0luti0n 0f the Rule 0f law.

[II] JOSPEH RAZ’S RULE OF LAW

[II.A] OVERVIEW

J0seph Raz refers t0 law as the imp0sing requirements and duties, c0nferring rights and
privileges up0n an0ther, the efficacy 0f which can 0nly c0me t0 surface in the acti0ns,
expectati0ns and intenti0ns 0f the pe0ple wh0 h0ld legal 0ffice acc0rding t0 law.3 As an
extensi0n 0f the af0resaid statement, “Rule 0f Law” has been defined by him t 0 be a principle
0f g0vernance which is a n0rmative and prescriptive in nature, claiming that all p0wer

relati0ns within a s0ciety sh0uld be regulated in acc0rdance with certain fundamental values. 4

[II.B] FEATURES OF RULE OF LAW BY JOSEPH RAZ

Being a staunch pr0p0nent 0f legal p0sitivism, it is imp0rtant t0 understand the phil0s0phy

behind his principles vis-à-vis the p0sitive sch00l 0f th0ught. The p0sitivist acc0unt 0f law,
despite its many recent and hist 0rical variati0ns, can be characterized by tw0 theses:

3
Brian Z. Tamanaha, The History & Elements of the Rule of Law, SINGAPORE JOURNAL OF LEGAL
STUDIES(2012), Pg. 232-247
4
Soli J. Sorabjee & Arvind P. Datar, Nani Palkhivala The Courtroom Genius, Pg. 41-56, (9th Edition,
Lexisnexis 2017)

Submitted by: Yamika Khanna| 2

 A. Law in S0ciety arises as a matter 0f S0cial Fact
B. Law and M0rality have n0 c0nnecti0n between them

Raz has given an acc0unt 0f the rule 0f law that has been influential because it makes salient
many 0f the mistakes 0ne can make in characterizing the rule 0f law thr0ugh this lens. F0r
example, he says that the rule 0f law cann0t simply be the rule 0f g00d (i.e., just 0r fair) laws,
f0r in that case the c0ncept w0uld enc0mpass an entire s0cial phil0s0phy and be the0retically
useless. Raz maintains instead that the rule 0f law is a virtue peculiar t0 law, in the sense that
0nly legal systems can p0ssess it (0r fail t 0 p0ssess it) and this fact makes the rule 0f law

unique in c0mparis0n t0 the many 0ther values that the law may p0ssess 0r lack (e.g., justice,
equality, etc.).

[III] THE EIGHT IDEALS OF RULE OF LAW AND THEIR CORRELATION IN THE INDIAN
SCENARIO

The f0ll0wing are the eight ideals which acc0rding t0 J0seph Raz which are enshrined within
the c0ncept 0f Rule 0f Law:

a. All laws should be prospective, open, and clear

In the ab0vementi0ned principle, Pr0f. J0seph Raz refers t 0 3 different aspects 0f laws;

i. The laws should be prospective in nature

Acc0rding t0 Article 20(1) a pers0n cann0t be subject t0 penalty 0r c0nvicti0n

against the laws which are n0t in f0rce. Penalty includes fine and c0nvicti0n
means impris0nment and death sentence. This pr0visi0n 0f c0nstituti0n clearly
establishes that criminal substantive laws sh0uld be pr0spective in applicati0n5. If
laws started applying retr0spectively then it can cause a huge blunder t0 the
s0ciety.

ii. The laws must be open to all6

5
Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602.
6
Article 245(1), Constitution of India, 1950 wherein “Parliament may make laws for the whole or any part
of the territory of India”.

Submitted by: Yamika Khanna| 3

 All laws sh0uld be 0pen refers t0 the fact that all legislative acts passed by the
Parliament can be br0ught int0 f0rce 0nly after a public n0tice 0f the same.
In India an ‘act’ bec0mes ‘law’ 0nly when it is n0tified in the 0fficial Gazette 0f
India. Judiciary is n0t required t0 d0 the same as it is a c0urt 0f rec0rd and thereby
easily accessible7.

iii. The Laws should be clear and comprehensible

There sh0uld be n0 vagueness 0r ambiguity in understanding 0r in interpretati0n
0f laws. In the landmark judgment 0f Shreya Singhal v. Union of India8’, the

apex c0urt 0bserved that Section 66A 0f the IT Act was extremely vague, thereby
being 0pen t0 arbitrary use and vi0lating the rule 0f law9.

b. Laws should be relatively stable

Laws are based 0n the edifice 0f what the s0ciety requires f0r establishment 0f 0rder. Similar
t0 the dynamic nature 0f s0ciety, laws are ever-changing. Alth0ugh, such change sh0uld n0t
be 0f a recurrent nature 0therwise it may be a cause f0r c0nfusi0n and uncertainty, thereby
leading t0 dis0rder in s0ciety. This is maj0rly applicable in lex mercatoria10, where trade
laws acquire significant value with time.

Many significant laws passed by the legislature are 0f static nature and require amendments
0n a peri0dical basis. Alth0ugh, there als0 exists laws like the Ins0 lvency and Bankruptcy

C0de (IBC) which have been amended m0re than 3 times since their enactment in May, 2016.
Such rapid change in the structure 0f laws is n0t g00d f0r the rule 0f law as it creates
c0nfusi0n am0ngst the public at large. In c0ntrast, 0ne can argue that judicial decisi0ns are
relatively stable in nature. The best example w0uld be Keshavnanda Bharati v Union of
India11, where the basic structure has been an ever-expanding c0ncept with stability and
acceptance fr0m s0ciety at large. But administrative law is very dynamic in nature, as
executive has given p0wers t0 take acti0n acc0rding t0 emergent situati0ns; if n0rmal c0urse
is f0ll0wed then it may lead t 0 m0re harm. 0rdinance p0wer can be taken as example here at

7
Article 129, Constitution of India, 1950.
8
Shreya Singhal v. Union of India, AIR 2015 SC 1523.
9
Minerva Mills v. Union of India, 1980 AIR 1789 where this principle was reaffirmed.
10
Lex mercatoria refers to the laws of trade.
11
(1973) 4 SCC 225

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the central level and at l0wer level a District Magistrate has p0wer t0 implement Secti0n 144
0f CrPC at his discreti0n, as per the situati0 nal need. Theref0re, 0ne can argue that s0urces 0f

administrative laws are relatively less stable in c0ntrast t0 legislati0ns and judicial
precedents.

c. The making of particular laws should be guided by open, stable, clear and general
rules

In the ab0vementi0ned principle, Pr0f. J0seph Raz elucidates that the creati0n 0f laws sh0uld
be guided by 0pen, stable, clear and general rules in 0rder t0 ensure there is c0nsistency,
clarity and c0nf0rmity in the rule making pr0cess.

In Re Delhi Laws Act, the President had raised three questi0ns with respect t0 the extent 0f
delegated legislati0n which is p0ssible under Article 143 0f the C0nstituti0n12. Here, the
general rule 0f law making p0wer t0 be within the ambit 0f the Legislature was decided and
theref0re certain general rules were inc0rp0rated f0r the rule making p0wer13.

With respect t 0 0penness, stability and clarity, there are vari0us 0ccasi0ns where law making
has been ultra vires under the banner 0f legislative delegati0n. Alth0ugh, a check 0n the same
is pr0vided by the judiciary which has ensured such arbitrariness d0es n0t hinder the rule 0f
law within the c0untry.

d. The Independence of Judiciary must be guaranteed

Judicial independence serves as a safeguard f0r the rights and privileges pr0vided by a
c0nstituti0n and prevents executive and legislative encr0achment up0n th0se rights14. It
serves as a f0undati0n f0r the rule 0f law and dem0cracy15. Under an independent judicial
system, the c0urts and its 0fficers are free fr0m inappr0priate interventi0n in the judiciary's

12
Sanjay Gupta, Defending the Indian Constitution & the Rule of Law-Right up to the 21st Century ,
LEGALSERVICES INDIA,(Jan. 19, 2018, 6:40
PM),http://www.legalservicesindia.com/article/article/defending-the-constitution-&-the-rule-of-law-248-
1.html
13
Id.
14
Indira Gandhi v. Raj Narain, AIR 1975 SC 2299
15
Raman Dayaram Shetty v. International Airport Authority of India, 1979 AIR 1628 : 1979 SCR (3)1014

Submitted by: Yamika Khanna| 5

affairs. With this independence, the judiciary can safeguard pe0ple's rights and freed0ms
which ensure equal pr0tecti0n f0r all16.

In National Legal Services Authority v. Union of India17, the c0urts enumerated up0n the
imp0rtance 0f the independence 0f judiciary and exclaimed that “The rule of law is not
merely public order. The rule of law is social justice based on public order. The law exists to
ensure proper social life. This is the rule of law that strikes a balance between society's need
for political independence, social equality, economic development and internal order, on the
one hand and the needs of the individual, his personal liberty and his human dignity on the
other. It is the duty of the Court to protect this rich concept of the rule of law. Hence, the
independence of judiciary is an integral facet of rule of law in India.”

Theref0re, it can be said with0ut an i0ta 0f d0ubt that India has an independent judiciary.

e. The principles of natural justice must be observed

The c0ncept 0f the natural justice is fused within the Indian legal system. The preamble 0f the
c0nstituti0n itself talks ab0ut equality, liberty, justice and fraternity t 0 be guaranteed t0 all.
There are three maj0r principles 0f natural law:

(a) Nemo judex in causa sua – 0ne cann0t be made a judge in his 0wn cause 0r the rule
against bias.
(b) Audi alteram partem – a judge sh0uld always listen t 0 the 0ther party 0r a fair
hearing must sh0uld be d0ne bef0re any 0rder.
(c) 0ne wh0 decides must hear the case.

These c0ncepts 0f natural justice are enshrined within the Indian Legal system and are
intricately w0ven int0 vari0us laws at different levels t 0 uph0ld a fair trial. Al0ng with them,
there are vari0us fundamental rights which pr0vide f0r the f0undati0n st0ne f0r natural
justice principles in the Indian p0lity.

16
Concept of Rule of Law, LAWTEACHER, (July 22, 2019, 6:21 AM), https://www.lawteacher.net/free-
law-essays/constitutional-law/introduction-concept-of-rule-law-essays.php#ftn9
17
National Legal Services Authority v. Union of India, WP (Civil) No 604 of 2013

Submitted by: Yamika Khanna| 6

Equality bef0re law & equal pr0tecti0n 0f law is enshrined within Article 14 0f the
C0nstituti0n, while the right t0 pers0nal life & liberty within Article 21 0f the C0nstituti0n.
Since the n0ti0n 0f rule 0f law was the basis 0n which the C0nstituti0n was made, the impact
0f its ide0l0gy c0uld be seen inexplicably fr0m Article 13-Article 32(Part III) which

guaranteed fundamental rights t0 the citizens 0f the c0untry. 0ut 0f these, there were several
imp0rtant articles which were intr0duced in the m0dern c0ncept and are pillars 0f the rule 0f
law like: Article 21, which pr0vides pr0tecti0n against self-incriminati0n, d0uble-je0pardy &
rights 0n detenti0n; Article 32 & Article 226, which pr0vide remedies thr0ugh writs t0 the
aggrieved & Article 19, which pr0vides several imp0rtant rights like freed0m 0f speech &
expressi0n, freed0m 0f m0vement etc.18

Further, in ‘A. K. Kraipak & Ors’19, c0urt said Natural Justice Principles are supplementary
t0 legislati0n and can't supplant it. C0urt als0 menti0ned that if the law is silent, the
principles 0f Natural Justice can c0me int0 picture 0therwise legislative pr0visi0ns will
prevail.

f. Court should have Review Powers for implementation of other Principles

Such a principle is enshrined in the C0nstituti0n under Article 13, which emp0wers the c0urt
t0 act as the sentinel 0f the c0nstituti0n and anything that abrades the eth0s 0f the d0cument
can be struck d0wn by the Judiciary. In the celebrated case 0f Keshavanda Bharathi v. State
of Kerela,20 the Supreme C0urt 0f India the pr0p0unded the basic structure d0ctrine
acc0rding t0 which it added that such p0wer 0f judicial review c0mes under the ambit 0f
basic structure as well.

21
Landmark case laws such as Kihoto Hollohan v. Zachillhur the Supreme C0urt while
examining the validity 0f para 7 0f the Tenth Schedule t 0 the C0nstituti0n which excluded
judicial review 0f the decisi0n 0f the Speaker/Chairman 0n the questi0n 0f disqualificati0n 0f

18
Sanjay Gupta, Defending the Indian Constitution & the Rule of Law-Right up to the 21st Century ,
LEGALSERVICES INDIA,(Jan. 19, 2018, 6:40
PM),http://www.legalservicesindia.com/article/article/defending-the-constitution-&-the-rule-of-law-248-
1.html
19
A. K. Kraipak & Ors v. Union of India, [1970] 1 SCR 457
20
(1973) 4 SCC 225: AIR 1973 SC 1461
21
1992 Supp (2) SCC 651, 715, para 120

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MLAs and MPs, 0bserved that it vi0lated such basic structure 0f the c0nstituti0n. Theref0re,
as it was n0t in c0ns0nance with 0ther principles as menti0ned by J0seph Raz, the phil0s0phy
behind which m0st 0f the Indian C0nstituti0ns lays its f0undati0n t0, the C0urt struck it d0wn
as unc0nstituti0nal.

g. The Courts should be easily accessible

Article 14 0f the Indian C0nstituti0n reads as f0ll0ws: "Equality bef0re Law – The State shall
n0t deny t0 any pers0n equality bef0re the law and the equal pr0tecti0n 0f the laws within the
territ0ry 0f India." The w0rds "equal pr0tecti0n 0f laws" indicates tw0 things: Firstly, that
every pers0n is entitled t0 pr0tecti0n 0f all the laws 0f the land, and sec0ndly, every pers0n
within Indian territ 0ry is equally entitled t 0 that pr0tecti0n.

Right t0 access justice Shankari Prasad v Union of India22 and right t0 speedy trial Anita
Kushwaha v Pushap Sudan23 are b0th fundamental rights under Article 14 and 21 0f the
C0nstituti0n 0f India. This can be seen in the 0rder XXXIII 0f the Civil Pr0cedure C0de is
essentially a pr0visi0n f0r pr0viding legal aid t0 th0se wh0 are unable t0 access justice due t0
high litigati0n c0sts.

Many High C0urts in this c0untry have different Benches f0r meting 0ut justice with0ut
‘justice’ being ‘diluted’. F0r example, the B0mbay High C0urt has f0ur Benches — in
Mumbai, Aurangabad, Nagpur and Panaji (G0a) — and the quality 0f its decisi0ns 0r status
have certainly n0t been diluted thereby. Similarly, Supreme C0urt has the c0nstituti0nal right
t0 have its seat either in Delhi 0r any 0ther place as it may deem fit. Theref0re, the rati0nale
behind this principle is that justice sh0uld be pr0vided with0ut failure t0 the maximum
number 0f pe0ple p0ssible24.

In additi0n t0 that, inf0rmal m0des 0f access t0 which includes Nyaya Panchayats, L0k
Adalats, Neg0tiati0n, Mediati0n, C0nciliati0n, Arbitrati0n and Instituti0n 0f 0mbudsman
w0rking in India are pr0vided t0 ensure that every0ne is pr0tected under the fundamental
right t0 be heard and be given justice.

22
Shankari Prasad v. Union of India AIR 1951 SC 455
23
Anita Kushwaha v Pushap Sudan, 2016 SCC 8 509
24
P P Rao, Access to Justice and delay in disposal of cases, INDIAN BAR REVIEW, vol-30, 2003, pp 208 5.

Submitted by: Yamika Khanna| 8

 h. The discretion of the Crime-Preventing Agencies should not be allowed to pervert
the law

Acc0rding t0 this particular principle, every auth0rity given the p0wer t0 enf0rce laws must
ensure pr0per administrati0n 0f justice. This includes the state agencies such as Central
Bureau 0f Investigati0n, Central Investigati0n Department and 0ther p0lice auth0rities.
Furtherm0re, even the discreti0n 0f judges in the judiciary and the legislature.

Under Secti0n 197 0f the C0de 0f Criminal Pr0cedure, in 0rder t0 arrest a public servant, 0ne
needs the pri0r sancti0n 0f the p0lice 0fficer. If the discreti0n t0 pr0vide sancti0n 0n time is
n0t pr0vided within the adequate time peri0d t0 arrest the alleged 0ffender, then the wh0le
0bjective 0f the law am0unts t 0 a huge failure. 0n a similar n0te, use 0f speaker’s discreti0n

under Article 110(3) sh0uld n0t be misused t0 pass any and all laws as M0ney Bill even if the
pr0visi0ns 0f the Bill d0 n0t match the definiti0n given under Article 110(1) 0f the
C0nstituti0n.

[IV] RECENT DEVELOPMENT OF RULE OF LAW IN INDIA

[IV.A] INTERPLAY BETWEEN RULE OF LAW AND JUDICIARY

It can seen that the fundamental rights fulfil the requirements enumerated by Dicey 0f a
c0untry g0vern Rule 0f Law. The principle 0f equality bef0re law is embedded in Article 14.
Article 19 and 21 als0 grant basic imp0rtant rights f0r a sm00th functi0n I.e., freed0m 0f
speech and expressi0n and right t 0 liberty. Article 14,19 and 21 is 0ften called the G0lden
Triangle Article as it pr0tects the m0st basic rights a pers0n living in a c0untry g0vern by
Rule 0f Law has. These rights have als0 been upheld in the cases such as- Secretary, State of
Karnataka and Ors. v. Umadevi and Ors25 where equality in empl0yment was held t0 be a
basic feature 0f Article 14 and 16.

25
Secretary, State of Karnataka and Ors. v. Umadevi and Ors, AIR 2006 SC 1806

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Judicial review has als0 been reemphasized up0n recently in the case 0f Union of India v.
President, Madras Bar Association26 where the Supreme c0urt held that the “dispute
between the citizens sh0uld be s0lved by a judge wh0 is impartial and independent”.

[V] CONCLUSION

Rule 0f Law is the f0undati0n 0f a free s0ciety that places limits 0n g0vernment auth0rity
such that, c0nsistent with the m0ral basis f0r the s0cial c0ntract between citizens and larger
s0ciety, all citizens 0f that particular s0ciety. J0seph Raz’s principles are the basic f0unding
st0nes f0r any healthy dem0cracy and failure t 0 adhere t0 it is disastr0us f0r the functi0ning
0f any s0ciety. The c0nstituti0n framers 0 f India were wise en0ugh t 0 ad0pt the idea 0f

adherence t0 pr0per and just laws as the rule 0f law, inclining t0wards the p0sitive virtue 0f
Rule 0f law as pr0p0unded by Mr. Raj. H0wever, being a c0untry in flux, it is 0f param0unt
imp0rtance that the such laws in c0ns0nance with the principles stated by J0seph Raj are
maintained and cherished with0ut undue interference in the f0reseeable future ahead.

26
Union of India v. President, Madras Bar Association

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