GROUP TOPIC: COMPARISON OF DROIT ADMINISTRATIF WITH

DICEY'S RULE OF LAW

PROJECT TOPIC: EVOLUTION OF DICEY’S RULE OF LAW

Administrative Law

Submitted by

Divyaraj Jain

SM0121021

3rd Year & 6th Semester

Submitted to

Kangkana Goswami

Professor-in-Charge

National Law University and Judicial Academy, Assam

 TABLE OF CONTENT
TABLE OF CASES ........................................................................................................................ 3

1. INTRODUCTION ................................................................................................................... 4

Research Question ...................................................................................................................... 4

Research Methodology ............................................................................................................... 5

2. MEANING AND CONCEPT OF ‘RULE OF LAW’ .............................................................. 6

3. DICEY’S CONEPT OF RULE OF LAW ............................................................................... 8

4. RULE OF LAW IN U.S. & INDIAN CONSTITUTION ...................................................... 10

U.S. CONSTITUTION ............................................................................................................. 10

INDIAN CONSTITUTION ...................................................................................................... 10

5. INDIAN JUDICIARY ON ‘RULE OF LAW’ ...................................................................... 13

CONCLUSION ............................................................................................................................. 15

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 TABLE OF CASES

NAME CITATION

ADM Jabalpur v Shivkant Shukla 1976 AIR 1207.

Bachan Singh v State of Punjab AIR 1980 SC 898

Chief Settlement Commissioner Punjab v Om Prakash & 1969 AIR 33.

Ors

Indira Nehru Gandhi v Raj Narain 1976 2 SCR 347.

Kesavananda Bharati Sripadagalvaru & Ors v State of 1973 4 SCC 225.

Kerala & Anr

S.G. Jaisinghani v Union of India and Others. 1967 AIR 1427.

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

Som Raj v State of Haryana 1990 AIR 1176.

State of Bihar v Sonawati Kumari 1961 AIR 221.

Supreme Court Advocates on Record Association v Union of AIR 1994 SC 268.

India

Union of India v Raghubir Singh 1989 AIR 1933.

Veena Seth v State of Bihar AIR 1983 SC 339.

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 INTRODUCTION
Administrative law is a separate branch of law and a subject for academic study but since last few
decades, it has gained full stature as a ‘responsible’ field of study for the law students and
practitioners. So, to recognize its independent existence, the people of England used the weapon
of Dicey’s Concept of Rule of Law to strike the growth of administrative law. The concept of ‘Rule
of Law’ is a building block of our modern democratic society. This term is nowhere defined in the
Indian Constitution but has been often used by the Indian Judiciary in their judgments. ‘Rule of
Law’ is neither a ‘rule’ nor a ‘law’, rather it is a doctrine of ‘state political morality’ which
maintains a ‘correct balance’ between the ‘rights’ and ‘powers’ between the individuals and
between the individuals and the state to make it a free and civil society. It is a result of struggle
made by people since centuries for recognition of their inherent rights. ‘Rule of Law’ is a new
‘lingua franca’ of global moral thought and the Supreme manifestation of human civilization and
culture. Thus, Rule of Law adds eternal value to the Constitution and an inherent attribute for
democracy and good governance. This concept is an animation of natural law and remains a
historical idea which makes a powerful appeal not by a powerful man but by the Rule of Law. So,
it can be well quoted by Lal Bahadur Shashtri that-

“The Rule of Law ought to be respected with the goal that the basic structure of
our democracy is maintained and further reinforced”.

Aim and Objective

The main objective of this paper is to give a detailed analysis of ‘Rule of Law’ namely its origin,
features, position in U.S Constitution, position in Indian Constitution, basic principles and its
exceptions. It also aims to analyze the Indian Judiciary’s interpretation of ‘Rule of Law’.

Research Question

❖ What is the meaning of ‘Rule of Law’?

❖ How did it originate and evolved?
❖ How does different nation’s constitutions use it?
❖ How did the Indian Judiciary interpret it?

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Research Methodology

The project is formulated using doctrinal research methodology composing of a descriptive and
detailed analysis of legal rules found in primary sources (cases, statutes, or regulations). In
primary sources legal statutes and judgements are referred to, while in secondary sources articles
by various academicians are refereed to. In reference style is APA

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 MEANING AND CONCEPT OF ‘RULE OF LAW’
The concept of ‘Rule of Law’ is a building block of our modern democratic society. This term is
nowhere defined in the Indian Constitution but has been often used by the Indian Judiciary in their
judgments. ‘Rule of Law’ is neither a ‘rule’ nor a ‘law’, rather it is a doctrine of ‘state political
morality’ which maintains a ‘correct balance’ between the ‘rights’ and ‘powers’ between the
individuals and between the individuals and the state to make it a free and civil society. The ‘correct
balance’ is made by ‘law’ which is based on freedom, justice, equality and accountability. Thus,
Rule of Law makes equilibrium between the needs of society and the individual.

The Principle of Rule of Law is derived from the French phrase “la prinicipe de legalite” which
means a Government based on the principles of law. Edward Coke is said to be the originator of
the Concept of Rule of Law. He said that the King must be under God and Law. Edward Coke had
three major points regarding ‘Rule of Law’. Firstly, Rule of Law is required to ensure that there is
no authoritarian rule of the crown; Secondly, it ensures that there is no arbitrary authority of the
Government; and lastly, it is required for the protection of Individuals and their Rights. Objects
based on Edward Coke’s Theory of “Rule of Law” are

1. To restrict Government from authoritarian rule.

2. To exclude arbitrary authority of Government.
3. Equal application of laws and orders irrespective of status/rank etc.
4. To do things in legally right way.
5. Protection of Individuals and their Rights.
6. Law is Supreme
7. Administrative actions can be questioned by law.

The Rule of Law is a viable and dynamic concept like many other such concepts, is not capable of
any exact definition. The term Rule of Law is used in contradistinction to Rule of Men and Rule
according to law. Rule of law means that the law rules, which is based on the Principles of
Freedom, Equality, Non-discrimination, Fraternity, Accountability and Non-arbitrariness and it is
certain, regular and predictable. Generally, Rule of Law is used in two senses, i.e. in Formatic
Sense and Ideological Sense. Formatic Sense refers to the organized power as opposed to a rule
by one man and Ideological Sense refers to the regulation of the relationship of the citizens and
the Government. Thus- “Rule of Law is the most important element in any civil society”

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Origin

Rule of Law is a result of struggle made by people since centuries for recognition of their inherent
rights. The concept is very ancient and old and was discussed by the Greek philosophers Aristotle
and Plato at the time of 350 BC. The concept transformed the notions of the society and changed
the perception and interpretation of rule of law by many authors. Plato defined Rule of Law by
stating that ‘it is supreme in nature and nobody is above the law’. According to Aristotle ‘law
should be the final sovereign of the State’. The German Customary law proposed the principle that
the King is always under the law and it is the independent source of rule of law in the medieval
period. According to John Locke, the government acts in accordance with the law.

Features of Rule of Law

1. The principle of Rule of Law is upheld when the authorities while exercising their powers are
not allowed to act according to their whims and fancies.
2. Under the principle of Rule of Law, no person can be punished or made to suffer, unless and
until he has committed the breach of law.
3. According to Rule of Law, everyone is equal before the law, i.e. law cannot be based on a
class of persons.
4. Rule of Law is essential bedrock of most of the democracies as it is universal in its application
and also it has been the part and parcel of most of the legal systems in the world.
5. According to the principle of Rule of Law, a person can be punished only if he is charged of
committing a crime and that charge is proved by an independent tribunal like that of a court.

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 DICEY’S CONEPT OF RULE OF LAW

Albert Venn Dicey (a British jurist and constitutional theorist) developed the Concept of Rule of
Law in his book ‘The Law of the Constitution’ (1885). He states that one should know the
difference between administrative law and the Rule of Law. According to him, Rule of Law is
equal for everyone whether he is a Prime Minister or a normal bank clerk working in an office.
Thus, same laws should be made applicable to everyone, no discrimination should be done under
the rule of law and rule of law is supreme in nature. A.V Dicey propounded three postulates of
Rule of Law, which are-

1. Supremacy of Law

2. Equality before the law

3. Predominance of a legal spirit

Supremacy of Law: The first postulate of AV Dicey states that Rule of Law refers to the lacking of
arbitrariness or wide discretion of power. In other words, every man should be governed by law.
Law is indisputably the incomparable and dominating instead of impact to influence of arbitrary
power and discretionary power. A person can be punished of the rules of law and by nothing else.

Equality before the law: The second postulate of Rule of Law states that there must be equality
before law and equal subjection of all classes to the ordinary law of land administered by ordinary
law courts. Thus, it implies absence of special privileges for a government official or any other
person. It states that there is no need for extraordinary tribunals or special courts to deal with the
cases of Government and its servants.

Predominance of Legal Spirit: The third postulate of Rule of Law states that the Rights such as
Right to Personal Liberty, Freedom from arbitrary arrest etc. are the result of judicial decisions in
England. And the Constitution of England is the result of ordinary law of the land and the
individual rights are established by judicial decisions. The courts are the guarantors of the liberty.

Merits and Demerits

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A.V. Dicey's concept of the Rule of Law has been a cornerstone principle in legal and political
thought. However, like many theories, it has its strengths and weaknesses. Here's a deeper look at
both:
Merits:
1. Limiting Administrative Power: Dicey's theory emphasized that even the government
should operate within the confines of the law. This helped curb the unchecked power of
administrative authorities, preventing them from acting arbitrarily.
2. Growth of Administrative Law: Dicey's focus on the rule of law played a crucial role in
the development of administrative law. As the role of government grew, a legal framework
became necessary to ensure fairness and accountability in administrative decisions.
3. Standard for Scrutiny: Dicey's concept provided a benchmark for evaluating
administrative actions. By emphasizing principles like equality before the law and
procedural fairness, it offered a way to assess if administrative decisions were legitimate
and just.
Demerits:
1. Limited Acceptance: Dicey's theory, developed in the late 19th century, did not fully
account for the complexities of modern governance. As government functions expanded,
the strict separation between regular law and administrative law became less practical.
2. Discretion vs. Arbitrariness: Dicey did not adequately distinguish between legitimate
discretionary power, where officials have some freedom to make decisions, and arbitrary
power, where officials act without legal basis. This lack of distinction made it difficult to
determine the appropriate level of government control.
3. Individual Focus: Dicey's concept primarily focused on protecting individual rights
from government overreach. He did not adequately address the need for administrative
power to effectively carry out government functions and deliver essential services.

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 RULE OF LAW IN U.S. & INDIAN CONSTITUTION

U.S. CONSTITUTION

America adopted the concept of Rule of Law from medieval England, which was expressed as “A
government of laws, not of men”. The federal Constitution of 1787 changed the concept of
constitutional government and introduced the “Principle of Constitutional Supremacy”. According
to Article VI of the American Constitution, “Constitution should be the supreme law of the land”.
It can be observed from the famous case of Marbury v Madison1 that the American Constitution
and the power of judicial review are the extensions of rule of law. In this case, the Justice Marshall
held that an act of Congress contrary to the Constitution was not regarded as a law. The major
essentials of the American Constitution are Federalism, Separation of Powers and Rule of Law.
They are also referred as the heart of the American Constitution as they contribute to achieve
liberty, equality, order and justice.

There are mainly three basic principles of the American Constitution.

1. The American Constitution requires its government to be politically responsible to both the
state and the people who are governed by it.
2. The American Constitution believes that the legitimate expectation is the one which
originates with people and controlled by the people and the same principle is described in
the Preamble which states that the Constitution is established by the people and not by the
government.
3. Political supremacy and identification of all laws with the legislature are hostile to the
American Constitution as it declares it be the supreme law of law.

INDIAN CONSTITUTION

The principle of Rule of Law has played a major role in developing Indian Democracy. At the time
of framing of Constitution, the framers adopted some of the provisions from USA and some of the
provisions from USA and some of the provisions from England. Our constitutional fathers adopted

1
Marbury v Madison, 5 US (1 Cranch) 137 (1803).

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the concept of Rule of Law from England and many of its provisions are incorporated in the Indian
Constitution. In India, the Constitution is considered to be supreme and no one is above it. The
Preamble of Indian Constitution clearly sets out the Principles of Rule of Law in Part III of the
Constitution. The Indian Constitution is supreme than the three wings of it, i.e. Parliament,
Executive and Judiciary. It is enriched with justice, equality and liberty. Article 14 of the
Constitution provides Equality before Law and Equal Protection of Law. Fundamental Rights are
available to every citizen of India through Articles 13, 14, 15, 19, 21, 22, 25, 28 and 31A. In case
an individual faces violation of such rights then he can approach Supreme Court or High Court
under Article 32 and 226 of the Constitution of India. It is compulsory that any law made by the
Central Government or State Government should be complied in accordance with the Constitution
of India but if found contravening with the provisions of the Constitution then such law will be
declared void. According to Article 32 of the Constitution, the Supreme Court has the power to
issue writs namely Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. Thus,
the power of judicial review also comes in the hands of Supreme Court in order to preserve Rule
of Law and to prevent any ultra vires laws.

There are certain basic principles of ‘Rule of Law’ adopted in Indian Constitution, they are:

1. Law is supreme, above everything and everyone. Nobody is above law.

2. All things should be done according to law and not according to whims and fancies.
3. No person should be made to suffer except for a distinct breach of law.
4. Absence of arbitrary power being heart and soul of Rule of Law.
5. Equality before law and Equal Protection of Law.
6. Discretionary powers should be exercised within reasonable limits set by law.
7. Adequate safeguard against executive abuse of powers.
8. Independent and Impartial Judiciary.
9. Fair and Just Procedure.
10. Speedy Trial

There are some exceptions to the principle in Indian Constitution as well:

1. President and Governors are provided with some immunity through Articles 361, 361 (2),
361 (3) and 361 (4) of the Indian Constitution.
2. Immunity to Foreign Diplomats.

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 3. Immunity to Supreme Court and High Court Judges including Article 121 of the Indian
Constitution which restricts the discussion on the conduct of such judges in Parliament.
4. Few laws of land namely maintenance of Internal Security Act (MISA) and National
Security Act, 1980 (NSA).

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 INDIAN JUDICIARY ON ‘RULE OF LAW’

The Indian judiciary has played a pivotal role in shaping the concept of the Rule of Law in the
country. Through landmark judgments, the Supreme Court has established the Rule of Law as a
cornerstone of the Indian Constitution and a core principle guiding the actions of the state. Let's
delve deeper into some key cases and explore how the Rule of Law continues to evolve in the face
of contemporary challenges.
Enshrining the Basic Structure and the Rule of Law:
• Kesavananda Bharati Sripadagalvaru & Ors v State of Kerala & Anr :2 This landmark
case established the "basic structure doctrine."expand_more The court ruled that
Parliament's power to amend the Constitution is not absolute.expand_more The
Constitution itself possesses an unalterable "basic structure" that includes the Rule of Law,
ensuring its enduring character as a core principle of the Indian state.expand_more
• Indira Nehru Gandhi v Raj Narain 3: This case further solidified the concept of the Rule
of Law. The court held that the Rule of Law is an integral part of the Constitution's basic
structure and therefore cannot be amended away.expand_more This judgment emphasized
the paramount importance of the Rule of Law, acting as a safeguard against any attempt to
undermine its principles.exclamation
The Rule of Law and Arbitrary Action:
• State of Bihar v Sonawati Kumari 4: This case linked the Rule of Law to the absence of
arbitrary power. The court held that all authorities operating within the state, including the
executive government, are bound to obey the law.exclamation This judgment established
that the Rule of Law demands not just the existence of laws but also their fair and non-
arbitrary application by all state actors.
• Bachan Singh v State of Punjab 5: Often referred to as the "Death Penalty Case," this
judgment further elaborated on the concept of arbitrary action within the Rule of Law
framework. The five-judge bench declared that the Rule of Law necessitates freedom from

2
Kesavananda Bharati Sripadagalvaru & Ors v State of Kerala & Anr,1973 4 SCC 225.
3
Indira Nehru Gandhi v Raj Narain,1976 2 SCR 347.
4
State of Bihar v Sonawati Kumari,1961 AIR 221.
5
Bachan Singh v State of Punjab, AIR 1980 SC 898

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 arbitrary actions.exclamation Any action taken by the state with arbitrary power, including
the imposition of the death penalty, would be considered a denial of the Rule of Law.
The Rule of Law and Individual Rights:
• ADM Jabalpur v Shivkant Shukla6: Popularly known as the Habeas Corpus Case, this
judgment addressed a crucial question – is the Rule of Law a separate concept from Article
21, which guarantees protection of life and personal liberty? While the court ultimately
held that the Rule of Law cannot exist entirely outside the framework of Article 21, the
case highlighted the centrality of both principles in safeguarding individual rights.
• Som Raj v State of Haryana 7: This three-judge bench judgment emphasized the absence
of arbitrary power as the absolute aim of the Rule of Law, upon which the entire
Constitution rests.
Extending the Reach of the Rule of Law:
• Veena Sethi v State of Bihar 8: This case underscored the importance of extending the
reach of the Rule of Law to marginalized sections of society. The court emphasized that
the Rule of Law is not just for the privileged but for all citizens, ensuring equal access to
justice.
Judicial Review and the Rule of Law:
• Union of India v Raghubir Singh 9: This case highlighted the role of judicial review in
upholding the Rule of Law. The court held that the principle of the Rule of Law governs
the lives of the people and regulates the functions of the state, with the decisions of superior
courts acting as a crucial check.
• Chief Settlement Commissioner Punjab v Om Prakash & Ors 10: The Supreme Court
observed that the authority of law courts lies in testing administrative actions by the
standard of legality, ensuring adherence to the Rule of Law.
Predictability and Transparency:
• S.G. Jaisinghani v Union of India and Others 11: This case linked the Rule of Law to
predictability in decision-making. The court emphasized that decisions based on known

6
ADM Jabalpur v Shivkant Shukla, 1976 AIR 1207.
7
Som Raj v State of Haryana, 1990 AIR 1176.
8
Veena Seth v State of Bihar, AIR 1983 SC 339.
9
Union of India v Raghubir Singh, 1989 AIR 1933.
10
Chief Settlement Commissioner Punjab v Om Prakash & Ors, 1969 AIR 33.
11
S.G. Jaisinghani v Union of India and Others., 1967 AIR 1427.

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 principles and procedures are essential for the Rule of Law to function effectively. This
predictability allows citizens to understand their rights and obligations under the law.
Equality and the Rule of Law:
• Supreme Court Advocates on Record Association v Union of India12 : Also known as
the "Second Judges Case," this judgment reiterated the connection between the Rule of
Law and equality. The court highlighted that the absence of arbitrariness and adherence to
the principle of equality in public employment are both essential aspects of the Rule of
Law.
• Secretary, State of Karnataka and Ors v Umadevi and Ors 13: This case further
emphasized the link between equality and the Rule of Law. The court stated that adherence
to the rule of equality in public employment is a basic feature of the Constitution, and the
Rule of Law is the core of the Constitution. This judgment underscored the importance of
non-discrimination and equal opportunity within the framework of the Rule of Law.
These cases represent a significant journey in defining the Rule of Law in India. Each judgment
has added a layer of understanding to this core principle, shaping how it is interpreted and applied.

CONCLUSION
The concept of Rule of Law forms the bedrock of a just and equitable society. The Indian
Constitution, though not explicitly mentioning the term, enshrines its principles through various
provisions. The Indian judiciary has played a crucial role in interpreting and upholding the Rule
of Law through landmark judgments. These judgments have addressed issues like the basic
structure of the Constitution, protection from arbitrary actions, and ensuring equal access to justice.
However, the journey towards a perfect realization of the Rule of Law is a continuous one.
Challenges like ensuring access to speedy justice and balancing individual rights with national
security concerns remain. As India strives for a more robust democracy, upholding the Rule of
Law will be central to achieving its vision of an empowered and inclusive society.

12
Supreme Court Advocates on Record Association v Union of India, AIR 1994 SC 268.
13
Secretary, State of Karnataka and Ors v Umadevi and Ors, AIR 2006 SC 1806.

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