HIDAYATULLAH NATIONAL LAW UNIVERSITY

LEGAL METHOD PROJECT

ON
RULE OF LAW- A COMPARATIVE STUDY OF INDIA, US AND UK
SUBMITTED TO
STUTI NANDA
SUBMITTED BY
KHUSHBOO JAIN
SEMESTER 1
Roll. No. 85
SUBMITTED ON : 26/07/15

Declaration
I, Khushboo Jain, hereby declare that, the project work entitled, Rule of Law submitted to
H.N.L.U., Raipur is record of an original work done by me under the able guidance of Ms. Stuti
B. Nanda, Assistant Lecturer, H.N.L.U., Raipur.
Khushboo Jain
Roll no. 85
Semester I

ii

Acknowledgements
I would like to sincerely thank the Legal Method teacher; Ms. Stuti B. Nanda for giving me
this project on Rule Of Law- Study Of India, U.S and U.K which has widened my knowledge
on the scope and relevance of it in the study of Legal Method. Her guidance and support has
been instrumental in the completion of this project.
Id also like to thank all the authors, writers, columnists and social thinkers whose ideas and
works have been made use of in the completion of this project.
My heartfelt gratitude also goes out to the staff and administration of HNLU for the
infrastructure in the form of our library and IT lab that was a source of great help in the
completion of this project.
I also thank my friends for their precious inputs which have been very helpful in the completion
of this project.

iii

CONTENTS

iv

INTRODUCTION
Rule of Law embodies the doctrine of supremacy of law. It is a basic and fundamental necessity
for a disciplined and organized community. Rule of Law, said Dicey in 1885, means the

Introductory
absolute supremacy or predominance of regular
law as opposed to the influence of arbitrary

1 Conceptual Objections against the growth of

power and excludes the existence of arbitrariness,
of prerogative,
orapeven wide discretionary
Administrative
Law [Ch

authority on the part of the government.1

Traditionally, rule of law denotes absence of arbitrary powers, and therefore, one can
denounce the increase of arbitrary or discretionary powers of the Administration and advocate
controlling it through procedures and other means. Similarly, rule of law is also associated
with the supremacy of courts. Therefore, in the ultimate analysis, courts should have the
power to control administrative action and any overt diminution of that power is to be
criticized. Judicial control of administrative action is the pivot of Administrative Law in
Britain even today.
The principle implicit in the rule of law that the executive must act under the law and not by its
own decree or fiat, is still a cardinal principle of the common law system. The executive is
regarded as not having any inherent powers of its own but all its powers flow and emanate from
the law, a principle which plays such a vital role in all democratic countries of today. It also
serves as the basis of judicial review of administrative action for the judiciary sees to it that the
executive keeps itself within the limits of law and does not overstep the same. In many
investigations into the various aspects of Administrative Law in Britain and other common law
countries the concept of rule of law has been invoked. In reality, viewed as a system of control
of administrative power, it can be asserted that Administrative Law does not infringe, but, on
the other hand, promotes rule of law.
The present project attempts to make a comparative study of the above principle with regards
with existing legal scenarios in United Kingdom, United States and India.

Dicey claimed that the Englishmen were ruled by law and law alone; he denied that in Britain
the Government was based on exercise by persons in authority of wide, arbitrary or
1

The Law of the Constitution 198 (8th ed.).

discretionary powers. While in many countries the executive exercised wide discretionary
power and authority, it was not so in Britain. Dicey asserted that wherever there was discretion
there was room for arbitrariness which led to insecurity of legal freedom of the citizens.
Another significance which Dicey attributedIntroductory
to the concept of Rule of Law was equality before
2 Conceptual Objections against the growth of
the law or the equal subjection of all classesAdministrative
to the ordinary law
of the land administered by the
Law [Chap

ordinary law courts.2 In Britain, he maintained, every person was subject to one and the same
body of law. He criticised the system of droit administratif prevailing in France where there
were separate administrative tribunals for deciding cases between the Government and the
citizens. He went on to assert that in Britain there was no Administrative Law.

The idea of

having separate bodies to deal with disputes in which Government is concerned, and keeping
such matters out of the purview of the common courts, asserted Dicey, was unknown to the law
of Britain, and indeed was fundamentally inconsistent with the English traditions and customs.
This thesis of Dicey has had a tremendous impact on the growth of Administrative Law in
Britain where people were not ready till very recently to accept that anything like
Administrative Law had come into being there. Even in 1885, Dicey was factually wrong in his
analysis as he ignored the privileges and immunities enjoyed by the Crown (and, thus, the
whole government) under the cover of the constitutional maxim that the king can do no wrong,
and also ignored the many statutes which conferred discretionary powers on the executive
which could not be called into question in ordinary courts. He also ignored the growth of
administrative tribunals, quite a few of which had come into existence by 1885. Also, Dicey
misunderstood and miscomprehended the real nature of the French droit administratif. He
thought that this system was designed to protect officials from liability for their acts, and, as
such, was inferior to the British system of ordinary courts deciding disputes between the citizen
and the state. But, as later studies have revealed, droit administratif is in certain respects more
effective in controlling the Administration than the common law system. In fact French
Administrative law has a system of compensation fpr the acts of public offers which is in some
respects more generous than that of English law. The reality is that the French Conseil dEtat is
widely admired and has served as model for other countries as well as for court of justice for
European communities.

It is interesting to note that while Dicey was denying the existence $ l Administrative Law in
Britain, his contemporary. Maitland, perceived its emergence. 55 However, by 1915, after the
famous Rice and Arlidge cases, Dicey himself became conscious of the emergence of
Administrative Law in Britain. The law ofIntroductory
Britain was being officialised under the influence of
3 Conceptual Objections against the growth of
socialistic ideas, he said He attributed the judicial
and quasi-judicial powers being conferred on
Administrative Law [Chap

officials to the Government undertaking to perform a large number of duties which earlier had
not been regarded its concern. But even then, Dicey asserted, that so long as the courts dealt
with a breach of law by an official, there could be no droit administratis in Britain and the rule
of law would be preserved.58
Diceys concept of Rule of Law has had its advantages and disadvantages. Although,
complete absence of discretionary powers, or absence of inequality, arc not possible in this
administrative age, yet the concept of the rule of law has been used to spell out many
propositions and deductions to restrain an undue increase in administrative powers and to
create controls over it. The rule of law has given to the countries following the common law
system, a philosophy to curb the governments power and to keep it within bounds; it has
provided a sort of touchstone or standard to judge and test Administrative Law prevailing in
the country at a given time.
But there has been a negative side of the concept of rule of law as well. For long,Diceys
thesis generated a sense of complacency in the British people so that they failed to see the
emergence of Administrative Law as such till they were rudely shaken by some powerful
voices. The result of this has been that Administrative Law as a subject of study came on
the scene quite late in the day. A grave defect in Diceys analysis is his insistence on the
absence not only of arbitrary but even of wide discretionary powers. The needs of the
modem Government make wide discretionary power inescapable.3 Perhaps the greatest
defect of the concept has been its misplaced trust in the efficacy of judicial control as a
panacea for all evils, and somewhat irrational attitude generated towards the French
system. People still believe that so long as courts are there, they can control the
Administration in all its actions. As the later discussion will show, this is not a correct

DA vis, DISCRETIONARY J ustich (1969).

assessment of the situation. Faith in the courts has stood in the way of adopting other more
efficacious means of controlling the Administration outside the judiciary. 1
It will be clear from what is stated below that there is at present widespread I thinking as to

how to improve Administrative Law in the Introductory

common law countries.
4 Conceptual Objections against the growth of
There is a disenchantment now in the Diceys
rule of law. It is widely believed that I mere
Administrative Law [Chap

court review cannot supply an effective control-mechanism over the activities I of the
Administration, and that some principles of droit administratif should be incorporated within
the common law system to have an effective control-mechanism I over the Administration.
On the whole, therefore, one can say that while, on the one I hand, the concept of rule of law
helped in safeguarding and preserving traditions of basic freedoms of the people, and the
independence of the judiciary, on the other hand, it generated an irrational mental attitude
insofar as people did not want to face I the realities of the situation and find correctives to the
problems in the area of I Administrative Law if that involved an overt departure from the
Dicean tradition.
The result of this has been that the Administrative Law did not develop into a neat I and
satisfactory system in the common law countries. But this phase has now passed out and efforts
are being made to improve the system. The courts have shown a high I degree of creativity in
defining and expounding the principles of Administrative Law, apart from the legislative efforts
to improve the machinery for supervision over the administration.

Objectives of the Study

The objectives of the project are as follows:1) To study different theory of justices.
2) To study the critique of theory of justice.
Introductory

5 Conceptual Objections against the growth of

Administrative Law [Chap

Research Methodology and Data Collection

This Project is descriptive and analytical in nature. Secondary and Electronic resources have
been largely used to gather information and data. Books and other reference as guided by Faculty
of legal method have been primarily helpful in giving this project a firm structure. Websites
have also been referred.

CHAPTERISATION
CHAPTER 1- CONCEPT OF RULE OF LAW
While in Europe, administrative law has been, for a century and a half, a separate branch of
law and a subject for academic study, it is Introductory
only during the last few decades that, in the United
6 Conceptual Objections against the growth of
States and the common law world, it has attained
full statureLaw
as a [Ch
respectable
field of study for
Administrative
ap

the law students and practitioners.4 The reason seems to be that the people had a mistrust
regarding the growth of administrative process, and hence did not recognise its independent
existence. The weapon which the people in England used to strike at the growth of
administrative law was Diceys formulation of the concept of the Rule of Law.
Rule of Law is the supreme manifestation of human civilization and culture and is a new
lingua franca of global moral thought. It is an eternal value of constitutionalism and an
inherent attribute of democracy and good governance.
The term Rule of Law is derived from the French phrase la principe de legalite (the
principle of legality) which refers to a government based on principles of law and not of men. In
this sense the concept of la principe de legalite was opposed to arbitrary power.
The concept of the Rule of Law is of old origin. Edward Coke is said to be the originator of this
concept, when he said that the King must be under God and Law and thus vindicated the
supremacy of law over the pretensions of the executives. In India, concept of Rule of Law can be
traced to Upnishad. It providesLaw is the King of Kings. It is more powerful and rigid than
they (Kings). There is nothing higher than law. By its powers the weak shall prevail over the
strong and justice shall triumph. Thus in monarchy, the concept of law developed to control the
exercise of arbitrary powers of the monarchs who claimed divine powers to rule. In a democracy,
the concept has assumed different dimension and means that the holders of public powers must
be able to justify Publically that the exercise of power is legally valid and socially just.
.
A.V. Dicey later developed on this concept in the course of his lectures at the Oxford
University. Dicey was an individualist; he wrote about the concept of the Rule of Law at
the end of the golden Victorian era of laissez-faire in England. That was the reason why
Diceys concept of the Rule of Law contemplated the absence of wide powers in the
4

- Benjafield and Whitmore: Principles or- Australian ADMINISTRATIVE Law, (1971), P-1.

hands of government officials. According to him, wherever there is discretion there is a

room for arbitrariness.5
The Rule of Law is a viable and dynamic concept and, like many other such

Introductory
concepts, is not capable of any exact definition.
This, however, does not mean that there is
7 Conceptual Objections against the growth of
no agreement on the basic values which
it represents. The term Rule of Law is used in
Administrative Law [Chap

contradistinction to rule of man and rule according to law. Even in the most autocratic
forms of government there is some law according to which the powers of the government
are exercised but it does not mean that there is the Rule of Law. Therefore, Rule of Law
means that the law rules, which is based on the principles of freedom, equality, nondiscrimination, fraternity, accountability and non-arbitrariness and is certain, regular and
predictable, using the word law in the sense of jus and lex both. In this sense 'the Rule
of Law is an ideal. It is a modem name for natural ' law. In history man has always
appealed to something higher than that which is his own creation. In jurisprudence,
Romans called it jus naturale, Mediaevalists called it the Law of God, Hobbes, Locke
and Roussueau called it social contract or natural law and the modern man calls it Rule
of Law.
The basic concept of the Rule of Law is not a well-defined legal concept. The
courts would not invalidate any positive law on the ground that it violates the contents of
the Rule of Law. However, in ADM v. Shivakant Shukla 6, popularly known as Habeas
Corpus case , an attempt was made to challenge the detention orders during the
Emergency on the ground that it violates the principles of the Rule of Law as the obligation
to act in accordance with rule of law ... is a central feature of our constitutional system and is
a basic feature of the Constitution Though the contention did not succeed and some
justices even went on to suggest that during an emergency, the emergency provisions
themselves constitute the Rule of Law, yet if the reasoning of all the five opinions is closely
read it becomes clear that the contention was accepted, no matter it did not reflect in the
final order passed by the court.7 Therefore, even in spite of the unfortunate order to the
5

Diccy: Law of the Constitution, 8th Edn p 198

[3. (1976) 2 SCC 521: AIR 1976 SC 1207.

7

See Upendra Baxi: Developments in Indian Administrative Law, in Public LAW IN INDIA , (1982) (A.G.
Noorani, Ed.), p. 134. See also by the same author, T HE I NDIAN S UPREME C OURT AND P OLITICS
(1980).

effect that "ffiedoors of the court during an emergency are completely shut for the detenus,
it is gratifying to note that the concept of Rule of Law can be used as a legal concept.
In the opinion of some of the judges constituting the majority in Kesavananda Bharati

v. State of Kerala8, the Rule of Law wasIntroductory

considered as an aspect of the doctrine of basic
8 Conceptual Objections against the growth of
structure of the Constitution, which evenAdministrative
the plenary power
of Parliament cannot reach to
Law [Chap

amend.9
In Indira Nehru Gandhi v. Raj Narain10. in which the Supreme Court invalidated clause (4)
of Article329-A
inserted in the Constitution by the Constitution (Thirty-ninth Amendment) Act, 1975 11 to
immunise the election dispute to the office of the Prime Minister from any kind of judicial
review, Khanna and Chandrachud, JJ. held that Article 329-A violated the concept of basic
structure.12 Other justices though did not go to this extent but certainly held that Article
329-A, clause (4) offends the concept of the Rule of Law. Ray, C.J. held that since the
validation of the Prime Ministers election was not by applying any law, therefore it
offended the Rule of Law. According to Mathew, J. clause (4) of Article 329-A offended
the Rule of Law which postulates the pervasiveness of the spirit of law throughout the
whole range of government in the sense of excluding arbitrary official action in any
sphere." Referring to the same constitutional provision, Beg, J. observed that the
jurisdiction of the Supreme Court to try a case on merits cannot be taken away without
injury to the basic postulates of the Rule of Law and of justice within a politically
democratic constitutional structure.13 A study of Kesavananda, Indira Gandhi and other
Habeas Corpus cases, writes Prof. Baxi, provides a distillation of Indian judicial thought
on the conceptions of the Rule of Law, which has evolved well over a quarter century.

(1973) 4 SCC 225: AIR 1973 SC 1461. See also Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC
405,431, para 38: AIR 1978 SC 851.

Id., para 133 (SCC).

10

1975 Supp SCC 1: AIR 1975 SC 2299.

11

Article 329-A was omitted by the Constitution (Forty-fourth Amendment) Act,

12

See Upendra Baxi: Developments in Indian Administrative

in
India, (1982) (A.G. Noorani, Ed.), p. 134.

13

1978.
Law, in

Public Law

Id., para 623.

References to western theories and thinkers from Dicey onwards abound in these opinions;
but these occur by way 0r rhetorical flourishes, masking the typically Indian approaches.14
Taking

cue

from

its

earlier

decisions,

the

Supreme

Court

in

5
Sainbanuirthy ,v. State of A.P. 1Introductory
, categorically stated that Article 371-D(5J

9 Conceptual Objections against the growth of

(Proviso) of the .Constitution clearly violates
Rule of Law which is a basic structure and
Administrative Law [Chap

essential feature of the Constitution. This provision had authorized the State Government
of Andhra Pradesh to nullify any decision of the Administrative Services Tribunal.
Declaring the provision unconstitutional, the court maintained that it is a basic principle of
Rule of Law that the exercise of power by the executive or by any other authority must not
only be conditioned by the Constitution but must also be in accordance with law and the
power of judicial review as conferred by the Constitution with a view to ensuring that the
law is observed and there is compliance with the requirement of law on the part of
executive and other authorities, and it is through the power of judicial review that the Rule
of Law is maintained and every organ of the State is kept within the limits of law. The
Supreme Court rightly observed in Spin Raj v. State of Haryana 1 6 that the absence
of arbitary power is the first postulate of Rule, of Law upon which whole constitutional
edifice is based. If the discretion is exercised without any principle or without any rule, it
is a situation amounting to the antithesis of Rule of Law.
Anyone who surveys the decisional law in this area will come to the conclusion that the
concept of Rule of Law has developed many facets which are not only negative providing
constraints on governmental action but affirmative also imposing an affirmative duty of
fairness on the government. These various negative and affirmative facets have been
summarized by Prof. Upendra Baxi thus: One is that power should not be exercised
arbitrarily. This has meant that it should be exercised for the purpose for which it has been
conferred. It also means that power should be exercised within the statutory ambit; and
purported exercise of it would not just be ultra vires, but in a true sense of the term
arbitrary. Simple negation of arbitrariness is, however, not enough to preserve the Rule of
Law values. Indian courts have gone further to insist on specific positive content of the
Rule of Law obligations. These include the rules of natural justice which have to be
14

See supra note 9, p. 134.

15
16

(1987) I SCC 362.

(1990) 2 SCC 653, 658 "*

followed not just in quasi-judicial action but often also in purely administrative action. The
scope and content of the requirements of natural justice have varied from time to time
according to the judicial interpretation, but the broad insistence remains. In addition, access

10

Introductory
to information as to the grounds of decision
has remained an important preoccupation of
10 Conceptual Objections against the growth of
the Indian judiciary, as any impedimentsAdministrative
to it have the Law
tendency
of obstructing judicial
[Chap

review of administrative action. This means that the courts have from time to time insisted
that exercise of administrative power be accompanied by reasons, although the exact status
of the obligation to give reasons is as yet indeterminate. The Rule of Law notion has been
in addition consistently extended to secure for the individual fair dealing by the State in its
economic activities. For example, the government is held bound by its assurance to
individuals in business transactions by way of estoppel. The State has to follow some of the
rules of natural justice before reaching a decision that it would not trade with certain
contractors or before blacklisting them. In matters involving government contracts, the
courts have been increasingly keen to insist that the ambit of fair play is not lessened in
view of the dominating capacity of the State over the individuals. In the area of losses and
injury arising out of State economic entrepreneurial function courts have tended to restrict
the scope of the defence of sovereign immunity in favour of the affected individuals.
It is heartening to see that the courts are making all concerted efforts to establish a rule of
law society in India by insisting on fairness in every aspect of the exercise of power by
the State. Some of the recent decisions of the Supreme Court are clear indicators of this
trend. In Sheela Barse v. State of Maharashtra the on 'fairness to women in police lock-up
and drafted a code of guidelines for the protection of prisoners in police custody, especially
female prisoners. In State of M.P. v. Ramashanker Raghuvanshi]i, the court secured
fairness in public employment by holding that reliance on police reports is entirely
misplaced in a democratic republic. Thus the efforts of the courts in legitimizing due
administrative powers and illegitimizing undue powers17 by operationalizing substantive
and procedural norms and standards can be seen as a high benchmark of judicial activism
for firmly establishing the concept of the Rule of Law in India.

17

See M.P. Jain: C HANGING F ACE

OF

ADMINISTRATIVE L AW

IN I NDIA AND

ABROAD , (1982), p. 3.

10

The term Rule of Law can be used in two senses: (1) formalisti c sense; and (2) ideological
sense. If used in the formalistic sense it refers to organised power as opposed to a rule by one
man and if used in an ideological sense it refers to the regulation of the relationship of the

Introductory
citizens and the government and in this sense
it
becomes a concept of varied interest and
contents.

11 Conceptual Objections against the growth of

Administrative Law [Chap

In its ideological sense, the concept of Rule of Law represents an ethical code for the
exercise of public power in any country. Strategies of this code may differ "from society to
society depending on the societal needs at any given time, but its basic postulates are
universal covering all space and time. These postulates include equality, freedom and
accountability. Equality is not a mechanical and negative concept but has progressive and
positive contents which oblige every government to create conditions social, economic and
political where every individual has an equal opportunity to develop his personality to the
fullest and to live with dignity. Freedom postulates absence of every arbitrary action, free
speech, expression and association, personal liberty and many others. These basic rights of
any society may be restricted only on the ground that the claims of these freedoms would be
better served by such circumscription. The basic idea behind accountability is that the rulers
rule with the Deference of the people, and therefore must be accountable to them in the
ultimate analysis.-Forms of accountability may differ, but he basic idea must remain the same
that the holders of public power must be able publicly to justify the exercise of public power
not only as legally valid but also socially just, proper and reasonable. 18 In this manner the
concept of Rule of Law represents values and not institutions and connotes a climate "of"
legal "order which is just and reasonable wherein every exercise of public power is chiefly
designed to add something mere to the quality of life of the people. Every legislative,
executive and judicial exercise of power must, therefore, depend on this ideal for its validity.
Consequently it is the Rule of Law which must define law rather than the law defining then
Rule of Law.19

18

See Prof. Baxis Introduction to this book.

Ibid.

19

11

11

12

Introductory
12 Conceptual Objections against the growth of
Administrative Law [Chap

CHAPTER 2 - DICEYS CONCEPT OF RULE OF LAW

Diceys formulation of the concept of Rule of Law, which according to him forms the
basis of the English Constitutional Law, contains three principles:

12

(1) Absence of discretionary power in the hands of the government officials. By

this Dicey implies that justice must be done through known principles.
Discretion implies absentee

13

of rules, hence in everyIntroductory

exercise of discretion there is room for
arbitrariness.

13 Conceptual Objections against the growth of

Administrative Law [Chap

(//) No person should be made to suffer in body or deprived of his property except
for a breach of law established in the ordinary legal manner before the
ordinary courts of the land. In this sense, the Rule of Law implies:

(a)

absence of special privileges for a government official or any other

person;

(b)

all the persons irrespective of status must be subjected to the ordinary

courts of the land;

(c)

everyone should be governed by the law passed by the ordinary

legislative organs of the State.

(///) The rights of the people must flow from the customs and traditions of
the people recognised by the courts in the administration of justice.
Dicey developed the contents of his thesis by peeping from a foggy
England into a sunny France. In France, Dicey observed that the
government officials exercised wide discretionary powers and if there
was any dispute between a government official and a private
individual it was tried not by an ordinary court but by a special
administrative court. The law applicable in that case was not the
ordinary law but a special law developed by the administrative court.
From this Dicey concluded that this system spelt the negation of the
concept of the Rule of Law which is the secret of Englishmens
liberty. Therefore, Dicey concluded that there was no administrative
law in England.
The first principle of Diceys Rule of Law is the recognition of a cardinal principle of
democratic governments as opposed to arbitrary and autocratic governments which lays
down that no functionary of the government should have wide arbitrary or discretionary
13

powers to interfere with the liberty and freedom of the people. But here Dicey was not
referring to a wide measure of discretion which is inescapable in any modern government.
He was certainly indicating the position in some countries where police authorities

14

Introductory
exercised wide arbitrary or discretionary power
of imprisonment and punishment outside
the ordinary legal system.

14 Conceptual Objections against the growth of

Administrative Law [Chap

The second principle of Diceys Rule of Law also enunciates a democratic principle of
equal subjection of all persons to the ordinary law of the land as administered by the
ordinary courts. This does not mean that the law must be the same for everybody
irrespective functions or service. Dicey
The third principle of Dicey in fact does not lay down any legal rule but merely explains
one aspect of the British constitutional system where common law is the source of
fundamental freedoms of the people. He thus distinguishes the British system from that
of many other countries which had written Constitutions with a chapter on individual
rights. Dicey feared that if the source of the fundamental rights of the people was any
document, the right could be abrogated at any time by amending the Constitution This is
what happened in India during the 1975 ' Emergency when the Supreme Court ruled that
even illegal act of the government could not be challenged in a court because it was
found that the source of personal liberty in India was Article 21 of the Constitution,
which had been suspended by the Presidential Proclamation, and not any common law of
the people.22

EVALUATION OF DICEYS THESIS

It has become a fashion to criticise Dicey. Sir Ivor Jennings did it most
effectively. But in order to be fair to Dicey, one must understand his personality
14

and the compulsions of the times when he developed his thesis. Until lately,
nothing was known about Diceys inner self. Researches mainly concentrated on
his contribution in the field of Constitutional Law. However, Prof. R.A.

15

Cosgrove23 gives a unique insight intoIntroductory

various facets of Diceys personality. The
15 Conceptual Objections against the growth of
portrait of Dicey which Prof Cosgrove
paints shatters all images which students
Administrative Law [Chap

of constitutional law and administrative law have built of this great scholar. Prof
Cosgrove has explored the voluminous correspondence of Dicey with friends like
Bryce and Strachey. He discovers in Dicey a sombre, uncompromising and
artless figure, lacking in confidence as a scholar and frustrated in his political
ambitions. He is painted as a remote figure for whom passing years brought
increasing disillusionment with the world where politics of party supplants
politics of country, where trade unions are above law and where socialist dogma
is gaining ground. As a lawyer of the Victorian era, he was highly individualistic
and advocated a referendum for giving self-rule to the people of Ireland.This
iconoclastic description of Diceys personality goes a long way in explaining his
attitudes towards Droit Administratif of France and his Rule of Law doctrine. His
total insistence on the institution of judges for the control of administrative action
is clearly referable to his disillusionment with politics and politicians. Letters
also confirm that Dicey never fully grasped the merits of administrative law.
By administrative law Dicey meant only a single aspect of the French Droit
Administratif, namely, administrative jurisdiction to the exclusion of ordinary civil and
criminal process. Dicey admitted, after 1901, that he conceived his idea of the nature
and existence of administrative law from de Tocqueville, who himself later admitted
his ignorance about the actual working of the Droit Administratif in his own days. 20
Therefore, like de Tocqueville, Dicey also viewed the system as a historian rather than
as a lawyer. He thus reached a natural conclusion for he found a similarity between the
system of French administrative law of his days and the institutions of ancient
autocratic monarchy.

20

Dicey: Introduction to the Study of the Law of the Constitution, 9th Edn., (1950) p. 392.

15

Dicey was historically correct up to the time of 1873, when Arrets (Executive
Law) Blanco finally settled the jurisdiction of the Conseil dEtat in all questions
involving administrative matters. Among other things, the Blanco decision firmly laid

16

Introductory
down that questions of administrative liability
would be within the jurisdiction of
16 Conceptual Objections against the growth of
administrative courts and that this liability Administrative
was subject to special
rules different from
Law [Chap

those of droit civil. After the 1789 Revolution the Conseil Du Roi which acted as an
advisor to the King in all executive and judicial matters in France, like the Curia Regis
of England, was replaced by the Conseil dEtat in order to give relief to the people
against the excesses of the administration. In the beginning, its function was only to
resolve difficulties which occurred in the course of administration, but subsequently it
entered the judicial sphere too. Prior to 1873, it was not an independent court but an
appendage to the executive. It did not receive direct complaints from the public but
through ministers. It did not hold open sessions and represented the governments
point of view. In fact, a minister was the judge and the Conseil dEtat thereby merely
administered advisory justice. Therefore, writing against this backdrop at the end of
the nineteenth century, Dicey entertained doubts, which was natural for an
Englishman, and was dubious whether the administrative courts could give protection
to the individual against administration.
However, Dicey misconceived the administrative law because he thought that the French
system is administrative law, when administrative law is more than that. In fact Dicey was
concerned not with the whole body of law relating to administration, but with a single aspect of
it, namely, administrative adjudication. His comparison was between the favourable position of
an Englishman when in conflict with the State in contrast to that of a Frenchman. It may be
emphasized that the difference between judicial and administrative agencies is not
fundamental. Both apply the law to individual cases and thereby exercise discretion. But if the
safeguards which protect the exercise of judicial functions are applied to administrative bodies
the quality of adjudication will be the same. 21 It is not the case that Dicey failed to realize that
all lawful authority within the State is legal authority, but he relied upon one organ, the courts,
to restrain the illegal excesses of the administration and did not examine the latters lawful
power to the full extent. It is upon this limited view of the administration that his interpretation
21

Lauterpacht: Function of L AW

IN THE I NTERNATIONAL

C OMMUNITY , (1933), Ch. XIX, S. 2.

16

of the Rule of Law rests.22 Dicey was also not right when he said that there is no administrative
law in England because even during Diceys time the Crown and its servants enjoyed special
privileges on the basis of the doctrine that the King can do no wrong. There were also in

Introductory
existence special courts in England i.e. ecclesiastical
and admiralty courts. There were special
17 Conceptual Objections against the growth of
tribunals established under the Poor Law Amendment
Act, 1834 where Poor Law Boards were
Administrative Law [Chap

exercising legislative and adjudicatory powers. In the same manner the Constables Protection
Act, 1750 gave special immunity to police officers. Government officials enjoyed wide
discretionary powers under the Public Health Acts to enter private properties. However,
inspired by the decisions of the House of Lords in Local Government Board v. Arlidge23
and Board of Education v. Rice 2 *, wherein the administrative agency was authorised to
decide even a question of law, Dicey himself recognized his mistake and observed that there
exists in England a vast body of administrative law. Even towards the end of his life he
doubted whether official law, i.e. administrative law, could be as effectively enforced by the
courts as by a body of men who combine official experience with legal
knowledge, provided that they are entirely independent of the government.24
Even in the sense in which Dicey used his formulation of the Rule of Law, there is no
essential contradiction between Rule of Law and administrative law. If the central
thesis of Diceys formulation is the absence of arbitrariness and equality before the law
then in that sense there is no contradiction with administrative law.
Administrative law developed not to sanctify executive arbitrariness but to check it
and protect the rights of the people against the administrations excesses. Therefore, the
central theme of administrative law is also the reconciliation of liberty with power.
Administrative law and the Rule of Law are not discrete series. Both aim at the
progressive diminution of arbitrariness and fostering a discipline of fairness and

22

26 Dicey: An Introduction to

THE

STUDY of

THE

LAW of

THE

Constitution (1959), Introduction by E.C.S.

Wade, civ.
23

1915 AC 120.

24

Dicey: The Development of Administrative Law in England, 31 LQR 148 (1915). Though in the final
analysis, Dicey asserted that it is not a true administrative law because the supremacy of ordinary courts
prevails. Wade, Introduction to Dicey: AN Introduction to the Study

OF

CONSTITUTIONAL LAW, 9th Edn.,

LX1X.

17

17

openness in the exercise of public power.25 However, though Diceys distrust of the
administrative process and administrative adjudication has been proved wrong in the
French context, it is still valid in the Indian situation where administrative action is often

18

Introductory
arbitrary and based on extraneous considerations
and administrative justice is an
euphemism for the denial of justice.26

18 Conceptual Objections against the growth of

Administrative Law [Chap

The modem concept of the Rule of Law is fairly wide and, therefore, sets up an
ideal for any government to achieve. This concept was developed by. the
International Commission of Jurists, known as Delhi Declaration, 1959,
whicfi"was TaleFon confirmed at Lagos in 1961. According to this formulation,
the Rule of Law implies that the functions of the government in a free society
should be so exercised as to create conditions in which the dignity of man as an
individual is upheld. This dignity requires not only the recognition of certain
civil or political rights but also creation of certain political, social, economical,
educational and cultural conditions which are essential to the full
development of his personality.
During the last few years the Supreme Court in India has develops
some fine principles of Third World jurisprudence. Developing the same new
constitutionalism further, the Apex Court in Veena Sethi v. State 0 f Bihar 27
extended the reach of the Rule of Law to the poor and the downtrodden, the
ignorant and the illiterate, who constitute the bulk of humanity in India, when it
ruled that the Rule of Law does not exist" merely for those who have the means
to fight for their rights and very often do so for the perpetuation of the status
quo, which protects and preserves their dominance and permits them to exploit a
large section of the community. The opportunity for this ruling was
25

See Baxis Introduction, supra.

26

A classical recent illustration of arbitrary action is provided by the Punjab Engineering College, Chandigarh,
where admissions for vacant seats were made not from the waiting- list according to merit but from amongst
those candidates who perchance were present on the campus. The High Court of Punjab and Haryana
quashed the action with the remark that the judicial bar against arbitrary action could not be outflanked by
instant whimsicality. Indian Express, September 15, 1982, p. 9. (Supreme Court upheld the decision of the
High Court. Indian Express, March 5, 1983.)

27

(1982) 2 SCC 583, 586: AIR 1983 SC 339.

18

provided by a letter written by the Free Legal Aid Committee, Hazaribagh,

Bihar drawing its attention to unjustified and illegal detention of certain
prisoners in jail for almost two or three decades.

19

Introductory
The Commission divided itself
into certain working groups which tried to
19 Conceptual Objections against the growth of
give content to the concept in relationAdministrative
to an individuals
area of activity in a society:
Law [Chap

(1) Committee on Individual Liberty and the Rule of Law:

(/) that the State should not pass discriminatory laws;
(//') State should not interfere with religious beliefs;
ii) State should not place undue restrictions on freedoms.
(2) Committee on Government and the Rule of Law:
Rule of Law means not only the adequate safeguards against abuse of
power but effective government capable of maintaining law and order.
(3) Committee on Criminal Administration and the Rule of Law: Rule
of Law means:
(ii) due criminal process;
(iii)

no arrest without the authority of law;

(iv)presumption of innocence;
(v) legal aid;
(vi)public trial and fair hearing.
(4) Committee on Judicial Process and the Rule of Law:
Rule of Law means;
(1) independent judiciary;
i. (2)independent legal profession;
(iii)

standard of professional ethics.

In 1957, the University of Chicago held a conference on the Rule of iw as understood in

the West. It was attended by eleven countries eluding two communist countries. The
secretary of the colloquium scribed the broad areas of agreement as follows:

(1)

The Rule of Law is an expression of an endeavour to give reality to

something which is not readily expressible; this difficulty is primarily due to

identification of the rule of law with the concept of rights of manall countries of the
West recognize that the rule of law has a positive content, though that content is different
19

in different countries; it is real and must be secured principally, but not exclusively, by
the ordinary courts.

(2)

(1982) 2 SCC 583, 586: AIR 1983 SC 339.

Introductory

(1) The Rule of Law is based upon the 20

liberty
of the individual
and has
as its object
the of
Conceptual
Objections
against
the growth
Administrative
[Chand
ap
harmonising of the opposing notions
of individual Law
liberty
public order. The

notion of justice maintains a balance between these notions. Justice has a variable
content and cannot be strictly defined, but at a given time and place there is an
appropriate standard by which the balance between private interest and the common
good can be maintained.
(3)There is an important difference between the concept of Rule of Law as the
supremacy of law over the government and the concept of rule of law as the supremacy
of law in society generally. The first concept is the only feature common to the West,
connoting as it does the protection of the individual against arbitrary government
different techniques can be adopted to achieve the same end and the Rule of Law must
not be conceived of as being linked to any particular technique. But it is fundamental that
there must exist some technique for forcing the government to submit to the law; if such a
technique does not exist, the government itself becomes the means whereby the law is
achieved. This is the antithesis of the Rule of Law.
(4) Although much emphasis is placed upon the supremacy of the legislature in some
countries of the west , the Rule of Law does not depend upon contemporary positive lawit may be expressed in positive law but essentially it consists of values and not institution;
it connotes a climate of legality and legal order in which the nation of the West live and in
which they wish to continue to live.
Recent aggressive judicial activism can only be seen as a part of the efforts of the
Constitutional Courts in India to establish rule-of-law society which implies that no
matter how high a person may be, the law is always above him. Court is also trying
to identify the concept of rule of law with human rights of the people. The Court is
developing techniques by which it can force the government riot only to submit to
the law but also to create conditions where people can develop capacities to exercise
their rights properly and meaningfully. The public administration is responsible for
20

20

effective implementation of rule of law and constitutional commands which

effectuate fairly the objective standards laid down by law.28 Every public servant is a
trustee of the society and is accountable for due effectuation of constitutional

21

Introductory
goals.29 This makes the concept of Rule
of Law highly relevant to our context.
21 Conceptual Objections against the growth of
Though the concept of Rule of Law
has all the merits, the only negative side of the
Administrative Law [Chap

concept is that respect for law degenerates into legalism which from its very rigidity
works injury to the nation.

CHAPTER 2- RULE OF LAW IN UK

Dicey thus reluctantly recognised the beginning of Administrative Law in Britain I under the
force of circumstances. However, since then, things have changed rather demonstrably.
Alarmed by the large scale assumption of power by the Executive, LORD Hew art in 1929 in his
book, The New Despotism, made a scathing attack on the expansion of administrative powers of
legislation and adjudication, and warned that vast opportunities had come into existence for
misuse of powers by officials. He claimed that bureaucracy had become the true rulers of the
country.
As a result of this criticism, the Committee on Ministers Powers (also known as the
Donoughmore Committee) was appointed in 1929 to consider the powers exercised by or under
the direction of (or by persons or bodies appointed specially by) Ministers of the Crown by way
of: (a) delegated legislation, and (b) judicial or quasi-judicial decision, and to report what
safeguards are desirable or necessary to secure the constitutional principles of parliament and the
supremacy of law.

28

State of Punjab v. G. S. GUI, (1997) 6 SCC 129.

Superintending Engineer v. Kutdeep Singli, (1997) 9 SCC' 199.

29

21

In the words of Carr, the questions posed for the committee were whether fin, had gone off the
Dicey standard and, if so, what was the quickest way back.
The committee submitted its report in 1932. It found nothing fundamentally the
developments which were taking place. It Introductory
accepted, however, that there were opportunities for
22 Conceptual Objections against the growth of
misuse of powers by the AdministrationAdministrative
and, therefore, made
a number of suggestions to
Law [Chap

improve the control and supervisory mechanism. The report calfcj attention to three main
defects in the existing system of Administrative Law, viz.

(1)

the inadequate provision made for publication and control of subordinate legislation;

(2)

the lacuna in the law caused by the inability of a subject to sue the Crown in tort; and

(3)

the extent to which the control and supervision of administrative decisions were

passing out of the hands of the courts and were being entrusted by Parliament to specialist
tribunals and enquiries.
As a result of these findings, the House of Commons came to have a Committee on Statutory
Instruments in 1944. In 1946, the Statutory Instruments Act was enacted to j tidy up, to some
extent, matters relating to subordinate legislation.
This Act has been characterised as purporting to enact a comprehensive procedural code for
the making of subordinate legislation. It formulates rules for publication of statutory
instruments and also regulates the laying procedure before | Parliament.
In 1947, Parliament enacted the Crown Proceedings Act to liberalise the Is* relating to civil
proceedings against the Crown.30
The report of the Donoughmore Committee represents the first attempt made in Britain at
systematisation of Administrative Law.
Then occurred the Crichel Down Affair.31 The Air Ministry compulsorily purchased a piece of
land for use as a bombing range during the war. After the war. the original owner wanted to
repurchase the land as it was no longer required by tb e Air Ministry, but it transferred the land
to the Ministry of Agriculture for use as1 model farm. The claim of the original owner was
handled by the various officii with too litde care and consideration and this was considered as
bad administration.
CECIL CARR, CONCERNING ENGLISH ADM IN IS TR ATIVE LAW (1941).

30

63. Infra, Chap. 6.

31

Cndi^Down Enquiry, Cmd. 9176 (1954).

22

22

This affair led not only to the resignation of the Minister of Agriculture, but also the
appointment of the Franks Committee to look into the system of adjudication by the
Administration. This Committee officially known as the Committee on Administrative
Tribunals and Enquiries was appointed inIntroductory
1955 and it gave its report in 1957- As a result of
23 Conceptual Objections
against the growth of
the committees findings and recommendations,
the Tribunals a*1 Inquiries Act was enacted
Administrative Law [Chap

in 1958. It led to the appointment of a Council

011

Tribunals and the making of various

procedural improvements in the working of the tribunals and inquiries in the country.
After a careful study of the French system, many scholars have concluded that there the
executive is controlled much more effectively an m n in, and that 3 better safeguard against the
excesses of the Administration can be found in adopting some kind of an administrative court
on the lines of the French model. In this respect two proposals were placed before the Franks
Committee: (1) establishment of a general administrative appeal tribunal to hear appeals from
tribunals and quasi- judicial bodies as well as against harsh or unfair administrative decisions;
(2) establishment of a new division of the High Court, called the Administrative Division, to
have general appellate jurisdiction as in (1).
The Franks Committee rejected both these proposals. The committee concluded that in
general the appropriate appeal structure is a general appeal from a tribunal of first instance to an
appellate tribunal, followed by an appeal to the courts on points of law. But the verdict of the
Franks Committee has not quietened the advocates of the above proposals. The Whyatt Report
issued by Justice in 1961 suggested the setting up of a general administrative tribunal to hear
appeals on merits from such discretionary decisions for which no appeal existed. Again, Justice
in 1971 suggested the setting up of an administrative division in the High Court.
Till 1958, the areas of delegated legislation and administrative adjudication had been
investigated and some reforms introduced therein, but the area of the other administrative
powers had not been touched so far. This task was performed by Justice, the English wing of
the International Commission of Jurists, which published a report in 1961 (known as the
Whyatt Report) suggesting the appointment of an Ombudsman in Britain.32 In 1967, Britain
adopted the Ombudsman system as it was felt that the judicial control of administrative powers
was not9 adequate and that it needed to be supplemented by other institutional arrangements.
32

67. JUSTICE, ADMINISTRATION UNDER LAW.

M. JUSTICE. THE CITIZEN AND THE ADMINISTRATION.

23

23

Even with these developments, the feeling persists that the development of Administrative
Law in Britain has been piecemeal and unsystematic and that there is need to reform the law
further. It is felt that Britain needs a comprehensive and coherent system of Administrative Law.
To achieve this goal, the Law CommissionIntroductory
proposed in 1969 to the Lord Chancellor that a full24 Conceptual
Objections against the growth of
fledged inquiry be held into AdministrativeAdministrative
Law.33 But the proposed
inquiry did not materialise
Law [Chap

because the Lord Chancellor thought that it was premature and the time was not yet ripe for
the purpose.
The Commission, however, did hold a limited inquiry into one significant sector of
Administrative Law, i.e. legal remedies. On the report of the Commission, a single procedure,
known as application for judicial review has now been introduced for applying to the High
Court for securing one or more of the following remedies: mandamus, prohibition, certiorari,
declaration and injunction.
The rule of legal standing has also been liberalised to invoke judicial review of administrative
action. The purpose of these reforms is to simplify and strengthen judicial review of
administrative action.
Administrative Law has thus grown into an identifiable branch of law in Britain. Once
characterised as a Continental jargon, it is now accepted that Britain has a developed system
of Administrative Law.

Apart from the developments mentioned above, the courts have

played a very dynamic, creative and constructive role in the development of Administrative Law
in Britain, especially from 1963 onwards. Some of the landmark judicial pronouncements will
be noted in the following pages. However, much still remains to be done in this area. To
channelise ideas for further reform of the British Administrative Law, a joint committee of All
Souls College and Justice has released a discussion paper inviting comments on a number of
proposals for reform of Administrative Law.

The Parliamentary reform agenda broadened

quickly in 1980 to incorporate additional premise for Government accountability to the public
disclosure of Government documents and the control of Government information handling. This
broader theme was implemented by the enactment of Freedom of Information Act, 1982 and the
Privacy Act, 1988. In the 1990s there has been a different reform emphasis but with similar
objectives, best reflected to the development by Government agencies of customer service
charter and complaint procedures.
33

lord Denning, Breen v. A.E.U., (1971) 1 AH ER 1148, 1153.

24

24

These are radical innovations but more changes are in the offing e.g. a code of procedure for all
federal tribunals may be enacted in the near future.
A lot of development in English Law has been brought about by the enforcement of the

Introductory
European Convention on Human Rights from
October 2, 2000 by the Human Rights Act, 1998.
25 Conceptual Objections against the growth of
As provided in s. 6 of the Act it is unlawful
for a public authority to act in a way which is
Administrative Law [Chap

incompatible with a convention right. Remedies against unlawful act of the public authority are
provided in s. 8 of the Act and if the Court finds any act (or proposed act) of a public authority
unlawful it can grant such relief or remedy or make such order within its power as it considers
just and appropriate. In determining whether to award damages and the amount of an award the
court is required to take into account the principles applied by the European Court of Human
Rights. A detailed discussion on this aspect is contained later

CHAPTER 3 RULE OF LAW IN INDIA

The concept of Rule of Law is invoked often to convey the sense that the Administration
cannot exercise arbitrary powers and it should function according to law.
Rule of law permeates the entire fabric of the constitution and indeed forms one of its basic
structures. The necessary element of rule of law is that the law must not be arbitrary or
irrational and it must satisfy the test of reason. KHANNA J, has stated, Rule of law is the
antithesis of arbitrariness. Rule of law is now the accepted norms of all civilized socities.
A significant derivative from Rule of law in the sphere of Administrative Law is
judicial review of administrative action to
ensure that Administration acts according to law.

25

25

We have adopted under our Constitution not the Continental System but the British System
under which Rule of Law prevails. Federal structure of the Indian Constitution is
founded on certain fundamental principles. Undoubtedly, one of them being Rule of Law

26

Introductory
which includes judicial review of arbitrary
executive action.34
26 Conceptual Objections against the growth of
Administrative Law [Chap

Absence of arbitrary power is the first essential of Rule of Law upon which our
whole constitutional system is based. Rule of Law may be said to be the sworn enemy
of caprice. The Supreme Court put a stamp of approval on the observations made by
DOUGLAS J, law has reached its finest moments when it has freed man from unlimited
discretion of some ruler... where discretion is absolute, man has always suffered 35 and
Lord MANSFIELD who stated in classic terms, discretion means sound discretion guided
by law. It must be governed by rule, not humour it must not be arbitrary, vague and
fanciful.
Rule of Law under the Constitution serves the needs of people without undoubtedly infringing
their rights. It recognizes the social reality and tries to adjust itself from time to time avoiding
authoritarian path. Rule of law under the Constitution has the glorious content. It embodies the
concept of law involved over the centuries. Doctrine of equality before the law is necessary
corollary to the high concept of Rule of Law accepted by our Constitution. One of the aspects of
Rule of Law is that every executive action if it operates to the prejudice of any person, must be
supported by some legislative authority.
Under our Constitution the Rule of Law pervades over the entire field of administration and
every organ of the State is regulated by the Rule of Law. In a welfare State it is inevitable that
jurisdiction of administrative bodies I increasing by a rapid if rate. The concept of Rule of Law
would lose its vitality if instumentalities of the State are not charged with the duty of discharging
their function in a fair and just manner.
Rule of Law requires that any abuse of power by public officer should be subject to control of
courts.

34

State ofM.P. v. Thakur Bharat Singh, AIR 1967 SC 1170, para 6: (1967) 2 SL ^ 703-

35

United States v. Wunderlich, (1951) 342 98,

26

Principles of Rule of Law and due process are closely linked with human rights protection.
Such rights can be protected effectively when a citizen has recourse to the courts of law. Failure
to accord fair hearing either to the accused or prosecution violates even minimum standards of
due process of law.36

27

Introductory

27 Conceptual Objections against the growth of

Binding character of judgments pronounced
by courts of competent jurisdiction is essential
Administrative Law [Chap

part of Rule of Law. Rule of Law is obviously such basis of the administration of justice at
which constitution lays so much emphasis.
Wisdom of issuing executive instructions in the matters which are governed by the provisions
of law is doubtful. Even if it be considered necessary to issue instructions in such a matter,
instructions cannot be so framed or utilized so as to override the provisions of law. Such a
method will destroy the very basis of Rule of Law and strike at the very root of orderly
administration of law.
The Rule of Law is basic Rule of governance of any civilized polity. The scheme of
Constitution of India is based on the concept of Rule of Law. Every one whether individually or
collectively is unquestionably under the supremacy of law. It is only through the courts that
Rule of Law unfolds its contents and establishes its concept.
Draconian concept of law had its departure quite some time back and Rule of Law is the order
of the day. It is the Rule of Law which should prompt the law courts to act in a manner, fair and
reasonable having due regard to nature of the offences and vis-a-vis the liberty of the citizens.
Obligation to act fairly on the part of administrative authorities was evolved to ensure Rule of
Law and to prevent failure of justice. This is a doctrine which the quasi-judicial, authorities are
also bound to observe.

36

A.K. Kraipak v. Union of India, AIR 1970 SC 150, para 13 : (1969) 2 SCC 262

87. State of Punjab v. Khanchand, AIR 1974 SC 543, para 37 : (1974) 2 SCR 768.
88. Zahira Habibulla H. Sheikh v. State of Gujarat, AIR 2004 SC 3114 : (2004) 4 SCC 158, para 36 & 39.
89. Daryao v. State ofU.P., AIR 1961 SC 1457, para 11 : (1962) 1 SCR 574.
90- Mannalal Jain v. State of Assam, AIR 1962 SC 386, para 12 : (1962) 3 SCR 936
91. Arundhati Rai, AIR 2002 SC 1375 : (2002) 3 SCC 343, para I.
92. V.C. Mohan v Union of India, AIR 2002 SC 1205 : (2002) 3 SCC 451, para 13.
93. Haryana Finance Corporation v. Jagdamba Oil Mills, AIR 2002 SC 834 : (2002) 3 SCC 496, para 10.
94.
Karnataka State Road Transport Corporation v. Ashrafulla Khan, AIR 2002 SC 629 : (2002) 2
SCC 520.
95. Indira Sawhney II v. Union of India, AIR 2000 SC 498 : (2000) 1 SCC 168, para 87.
p
ancham Chand v. State ofH.P., (2008) 7 SCC 117, 123-24 (para 18).

27

The High Court is required to enforce Rule of Law, it therefore cannot pass order or direction
contrary to what has been injuncted by law.
The Supreme Court criticized the approach of the Government and held that governments

Introductory
today tend to violate Rule of Law as a matter
of political convenience so that burden of striking
28 Conceptual Objections against the growth of
down unconstitutional provisions pass to the
court. Such an approach of the Government was
Administrative Law [Chap

deprecated.
Our Constitution envisages a rule of law and not a rule of men. It recognises that,
howsoever high one may be, he is under the law and the Constitution. All the constitutional functionaries must, therefore, function within the constitutional limits. In a
system governed by rule of law, there is nothing like absolute or unbridled power
exercisable at the whims and fancies of the repository of power. There is nothing jj _ a
power without any limits or constraints. That is so even when a court or Otiv authority
may be vested with wide discretionary power, for such discretion has to exercised only
along well-recognised and sound juristic principles with a viev*

promoting fairness,

inducing transparency and aiding equity.9

Thus, the concept of Rule of Law in India is duly recognized by the Constitute11 and
is firmly established by judicial pronouncements.
CHAPTER 4 RULE OF LAW IN U.S.

CONCLUSION

28

28

Bibliography and References

29

Introductory
29 Conceptual Objections against the growth of
Administrative Law [Chap

29