DICEY’S RULE OF LAW

Rule of law
One of the very basic principles of the English Constitution is the concept of the Rule of Law.
The concept is well established in all legal systems in the world which include the
constitutions of the United States of America and India
Chief Justice Edward Coke of England, who held office during the reign of King James I,
is considered to be the originator of this doctrine. Justice Coke while emphasizing the
supremacy of law against the executive stated that the King should be under God and Law.
The theory of Justice Coke was developed by Dicey in his classic work “The Law and the
Constitution” which was published in the year 1885.
Rule of law is a product of struggle by the people from centuries for recognition of their
inherent rights and the concept of a rule is very ancient and old. During the ancient times, the
concept of rule of law was discussed by the Greek philosopher Aristotle and Plato at the time
of 350 BC so now you can imagine how old this concept. Plato has written that if rule of law
under the supervision of any law than it doesn’t have any value and the concept of state will
get collapsed and if the law is master of government and government work as a slave for law
then the concept of state will work effectively and humans can enjoy their rights.
According to Plato the meaning of rule of law is that it is supreme in nature and nobody is
above the law.
According to Aristotle has written that law should be the final sovereign of the state.
According to Sir Edward Coke “Rule of Law” means the absence of arbitrary power on the
part of Government.

Rule of Law – Meaning & Scope

Dicey in his work stated that the Rule of Law is fundamental to the English legal system and
gives the following three meanings to the doctrine:
1. Supremacy of Law
a. Rule of law according to Dicey means the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power or
wide discretionary power.
b. It means the exclusion of the existence of arbitrariness on the part of the
government.
c. This in essence means that no man can be arrested, punished or be lawfully
made to suffer in body or in goods except by the due process of law and for
breach of a law established in the ordinary legal manner before the ordinary
courts of the land.
2. Equality before Law
a. While explaining this aspect of the doctrine, Dicey stated that there must be
equality before the law or equal subjection of all classes to the ordinary law of
the land administered by the ordinary law courts.
 b. Dicey believed that the exemption of civil servants from the jurisdiction of the
ordinary courts of law and providing them with special tribunals was the
negation of equality.
c. He stated that any encroachments on the jurisdiction of the courts and any
restriction on the subject’s unimpeded access to them are bound to jeopardise
his rights.
3. Judge-made Constitution
a. Dicey observed that in many countries rights such as the right to personal
liberty, freedom from arrest, freedom to hold public meetings, etc. are
guaranteed by a written Constitution; in England, it is not so.
b. In England, those rights are the result of judicial decisions in concrete cases
that have actually arisen between the parties.
c. Thus he emphasized the role of the courts of law as guarantors of liberty and
suggested that the rights would be secured more adequately if they were
enforceable in the courts of law than by mere declaration of those rights in a
document.
Rule of Law and Indian Constitution
The Preamble of the Constitution itself prescribes the ideas of Justice, Liberty and Equality.
These concepts are further enunciated in Part III of the Constitution and are made
enforceable. All three branches of the government are subordinate i.e. the Judiciary,
Legislature and the Executive are not only subordinate to the Constitution but are bound to
act according to the provisions of the Constitution. The doctrine of judicial review is
embodied in the Constitution and the subjects can approach the High Court and the Supreme
Court for the enforcement of fundamental rights. If the Executive or the government abuses
the power vested in it or if the action is mala fide, the same can be quashed by the ordinary
courts of law.
The Supreme Court of India in Chief Settlement Commissioner Punjab v. Om Prakash
observed that in our constitutional system, the central and most characteristic feature is the
concept of the rule of law which means, in the present context, the authority of the law courts
to test all administrative action by the standard of legality. The Court added that the doctrine
of rule of law rejects the conception of the dual state in which government action is paced in
a privileged position of immunity from control by law.
This phrase was derived from the French phrase “la Principe de legality” which means that
the principle of legality whatever the legal system principle is called a rule of law. Which
refers to government is based on the principles not on any individuals and according to the
law everything will move. Rule of law is the basic principle of the English constitution and
this doctrine is accepted by the US and as well as India also.
The entire basis of Administrative law is the Rule of law and delegated legislation is the
backbone of administrative law.
Basic Principles of Rule of Law
 Law is supreme and nobody is above the law.
 All the things should be done according to a law not as per whim.
 No person should be suffered except for the breach of law.
  Absence of arbitrary is the soul of the rule of law.
 Equality before the law and equal protection of the law.
 Speedy trial.
 The fair and just procedure should be conducted.
 Independent and impartial judiciary.
Kesavananda Bharati vs. the State of Kerala under this case the principle of Basic
Structure was propounded and it was said that any part of the Constitution can be amended
without disturbing the basic structure of it.
Indira Nehru Gandhi vs. Raj Narain, the court held that rule of law is also part of the basic
structure and in the list rule of law was also added and it means that no amendment can be
done in rule of law.
The State of Bihar vs. Sonawati Kumari, it is an integral part of Rule of law that all the
authority within the State including executive government should be bound to obey the rules.
In case of Bachan Singh vs. the State of Punjab, popularly known as “Death Penalty Case”
the rule of law is free from arbitrary action if anywhere any action is done with arbitrary
power then it will be considered as the denial of the concept of Rule of Law.
In case of Som Raj vs. State of Haryana, that absence of arbitrary power is absolute motive
of the principle of rule of law upon which directly the whole Constitution is dependent.

Exceptions to Rule of Law

Some exceptions to the concept of the rule of law are discussed below.
 ‘Equality of Law’ does not mean that the powers of private citizens are the same as
the powers of public officials. e.g. a police officer has the power to arrest which the
private citizen does not have.
 The rule of law does not prevent certain classes of persons from being subject to
special rules, for example, the armed forces are governed by military laws.
 Ministers and other executive bodies are given wide discretionary powers by the
statute.
 Certain members of society are governed by special rules in their professions like
lawyers, doctors and nurses.
Critical Analysis of Rule of Law
Dicey’s principle of “Rule of Law”forms a crucial tenet for upholding democracy and
fundamental human rights, but in order to successfully implement it, we must first understand
its benefits and shortcomings as well as how it has been implemented in other democracies
throughout the world..
Excellencies of “Rule of Law”
1. Ensures independence of the judiciary– The protection of the judiciary’s freedom is the
third Dicey principle, which is crucial for upholding peoples’ fundamental rights. The
judiciary is the third pillar/state of democracy, and Montesquieu stressed the significance of
this institution in his theory of “Separation of Powers” in order to establish a system of
checks and balances on the legislative and executive branches. This can be achieved by
auditing the various laws and statutes that violate the fundamental principles of the
constitution, such as any law that violates fundamental human rights or promotes
discrimination on the basis of any category, and by closely examining the executive bodies’
actions to stop them from engaging in any extrajudicial actions or failing to follow the rules
of law.
2. Endorses the freedom of people– The foundation of “Rule of Law” is the law of the land,
but Dicey’s principle ensures that the laws do not hamper with human rights including
freedom to speech and expression, freedom to have a decent life, etc., as the obligatory
obedience and equal application of unjust laws will not make any difference in society.
Therefore, through the illustration of the independence of the judiciary, Dicey throws light on
its role in securing the rights of private citizens.Through various landmark judgements, courts
have set precedents that will prevent any government or private agency from impeding the
rights of any individual. For example, in Kesavananda Bharati v. State of Kerala, the
unlimited power of the legislature to amend any part of the Constitution was circumscribed
by recognising the ‘rule of law’ as part of the basic structure of the constitution. Through this,
the rampant misuse of the power of amending the Constitution came to a halt as no amend
amendment could be brought if it hampers the basic structure of the Constitution (including
human rights).
3. Dissuades arbitrariness on the part of administrative authority– Laws are intended to
be implemented equally in a just society to all people to the same extent and in the same way,
without straying from the letter of the law. This demands a significant reduction in arbitrary
behaviour or broad discretionary power, which is protected by the “Rule of Law.” The laws
become meaningless when they are abused or used arbitrarily by any authority, hence it is
essential to distinguish between the will of the law and the will of the authority by giving the
former supreme authority. Lex terrae thereby supersedes all governmental authorities, and
any action that conflicts with it is prohibited. According to this theory, there is no locus standi
for any form of arbitrary conduct, such as granting immunity from all liability to a particular
class of persons or applying the law harshly to another class.
In P. Royappa v. State of Tamil Nadu, the Supreme Court observed, “Where an act is arbitrary
it is implicit in it that it is unethical both according to political logic and constitutional law
and is, therefore, violative of Article 14. Article 14 has a pervasive processual potency and
versatile quality, equalitarian in its soul and allergic to discriminatory diktats”. This was
further repeated in the case of D.S. Nakara & Others v.Union of India[
4. Preservation of the Constitution– A constitution is created with the hope that it will
define and distinguish the nature of each state, as well as its goals, objectives, rights,
and benefits to citizens. It also serves as a framework and guide for how the
government and legal system should function, allocating each entity’s specific powers
and responsibilities.
The idea of “rule of law,” whose fundamental tenet is to uphold and obey the law of the
nation, aids in the preservation of the Constitution and its objectives because the Constitution
serves as the state’s legal code. By maintaining its goals, this principle thwarts attempts to
violate anyone’s fundamental rights and forbids the extrajudicial use of power. As a result, it
ensures that laws remain stable and consistent and that they are not altered frequently or just
to the advantage of one person or group of people.
5. Advocates a qualitative standard of life– Rule of law champions the qualitative
standard of living if it operates to the letter. In the present scenario, the purview of
 ‘rule of law’ has broadened and apart from strictly abiding to the ordinary laws, this
principle now also endorses the creation of the social conditions that would make it
possible for the citizens to enjoy the social order.
Demerits of Rule of Law
1 .Categorizing discretionary power along with arbitrary power–
Dicey mistakenly believed that being flexible meant being capricious. He argued that all
administrative decisions should be made in exact accordance with the law, without any room
for discretion. Dicey was unable to draw the conclusion that slavish adherence to the law
does not ensure justice or the principles of a democratic and contemporary constitution. Laws
must occasionally be re-interpreted, changed, and replaced, which demands judgement and
conscience. Ratification and achieving consensus over laws do not determine their credibility
and applicability for eternity. Use of judgement and conscience is the best course of action if
we want to put the goals of the laws into practise.
In Satbir v. Surat Singh & Ors, the court held that ordinarily, this Court does not interfere
with an order of acquittal recorded by the High Court; but if the High Court arrives at its
findings overlooking important facts and relying upon few circumstances which do not in any
way impair the probative value of the evidence adduced during the trial, this Court would be
failing in its obligation to do complete justice if no intervention is done with such order of
acquittal.
2. Contradictory– Dicey gave the judiciary’s function in establishing and defending
individual rights a great deal of weight. However, this admirable objective is in conflict with
the law’s stringent requirement of compliance, which leaves little room for discretion.
Because the possibility of any contingent situation cannot be completely eliminated by
ratifying the laws, the judiciary’s role in upholding and ensuring human rights cannot always
be fulfilled by strictly adhering to the law. As a result, giving administrative authorities
discretion helps to ensure the goals and motivations of the lex loci.
In I. C. Golaknath and Others v. State of Punjab and Anr., Chief Justice Koka Subba Rao for
the first time invoked the doctrine of Prospective overruling and by a thin majority of 6:5
ratio overturned the earlier precedents and made Fundamental Rights out of the ambit of the
government’s amending power. The judges, in this case, employed the power of their
discretion and conscience in considering the earlier precedents set in Shankari Prasad v.
UOI and Sajjan Singh v. State of Rajasthan as not fit to be followed in the future
judgements as the earlier judgements did not safeguard the fundamental rights and therefore
had to be remedied leading to the introduction of Prospective Overruling.
3. Overemphasis of the role of Judicial Decisions– Dicey exaggerated the importance of
judicial decisions in ensuring the rights of private persons or bringing reformation in society.
The rationale given by Dicey completely disregard the role of the legislature in securing the
rights of people but in fact over the centuries when the judiciary’s role was not well-defined
and it did not possess any autonomy, the legislature had not taken a back seat in ensuring the
rights of people. For example, in IIndia, the promulgation of the Equal Remuneration Act,
1976, prevented discrimination against women in receiving equal recompense as provided to
men. Similarly, through the Hindu Succession Act, 2005 a daughter’s right to be an equal
coparcener as a son in claiming her share in the ancestral property of the Hindu Undivided
Family was established and any sort of discrimination in claiming her right was deemed to be
unlawful. In Britain, the right to Unemployment Insurance has been given to the people under
the Parliamentary Acts. Similarly, the Libel Act of 1888 gave certain special rights to the
press.
In the USA, the ratification of the Civil Rights Act (1964) prohibited discriminatory
behaviour in public places along with employment discrimination based on race, colour,
religion, sex or national origin, in the same way, the Voting Rights Act (1965) ensured the
voting rights of blacks and abolished any discrimination that blacks faced during voting.
Therefore, the legislature has also contributed to maintaining people’s rights and curing any
kind of oppression.
4. Allotting undue moral superiority to Judiciary–The judiciary’s position as the protector
of human rights or as an inspector, vetting the legislature’s and the executive’s extra-
constitutional behaviour, is a dominant aspect of defining the relative power between the
three organs in the modern era. The judiciary has frequently performed admirably in
upholding democracy, upholding human rights, and ensuring justice, yet it is a sad fact that
sometimes the judiciary has fallen short of its moral and ethical obligations. Dicey believed
that the only institution capable of ensuring justice and human rights was the judicial system.
A particular body gains too much authority and too little responsibility when this moral
superiority is given to a structure that isn’t even subject to adequate auditing or review.
On one occasion, former Chief Justice JS Verma acknowledged this reality: “These days,
judges are instructing everyone what to do, but who is to tell us? Although it is our
responsibility to uphold the law, that does not absolve or excuse us from doing so. In order to
secure the true meaning of “rule of law,” the judiciary should also be subject to some form of
inspection (without any interference in its independence). This is because a system of checks
and balances on the legislature and executive by the judiciary is insufficient to prevent
authoritarian behaviour.

Conclusion
The founding fathers of India accomplished what the rest of the world thought impossible –
establish a country that would follow the letter of the law and implement the Rule of Law. In
all matters such as the protection of the rights of the people, equal treatment before the law,
and protection against excessive arbitrariness, the Constitution of India has provided enough
mechanisms to ensure that the Rule of Law is followed. Through its decisions, the Courts
have strived to reinforce these mechanisms and ensure smooth justice delivery to all citizens.
Problems such as outdated legislation and overcrowded courts are but small hindrances and
bodies such as the Law Commission of India work towards ironing out these problems with
the aim of achieving a system where there are no barriers to the smooth operation of the Rule
of Law.
DELEGATED LEGISLATION
The Constitution of India empowers Legislature to make laws for the country and it is the
power of the executive to administer and execute the law made by the legislature. This is in
accordance with the doctrine of the separation of power. However, frequently enacts
legislation containing provisions which empower the executive government, or specified
bodies or office-holders, or the judiciary, to make regulations or other forms of instruments
which, provided that they are properly made, have the effect of law. This form of law is
referred to as “delegated legislation”, “secondary legislation”, “subordinate legislation” or
“legislative instruments”. Another definition is that legislation by any statutory authority or
local or another body other than the Legislature but under the authority of the competent
legislature is called Delegated legislation. The delegated legislation has the same legal
standing as the Act of Parliament from which it was created.
This arrangement has the appearance of a considerable violation of the doctrine of the
separation of powers. This doctrine of the separation of powers has been largely preserved by
a system for the parliamentary control of executive law-making. In short, delegated
legislation means the exercise of legislative power by an agency that is subordinate to the
legislature. This subordinate body acquires power from the act of the legislature. Power is
transferred from the principal lawmaker to the lower body, which may be the executive,
cabinet, council of minister, or a specific administrative agency, by the mechanism of
delegation.
Regulations and Statutory Rules are the most common forms of Delegated Legislation. They
are made by the Executive or a Minister and apply to the general population. By-laws, and
sometimes Ordinances are made by a Local Government Authority and apply to the people
who live in that area. Rules commonly describe the procedure to be followed in Courts.
In Devi Das Gopal Krishan v. State of Punjab, AIR 1967 SC 1895 case, Subba Rao, CJ.
provided another justification for delegated legislation that the Constitution confers a power
and imposes a duty on the legislature to make laws, but in view of the multifarious activities
of a welfare State, it cannot presumably work out all the details to suit the varying aspects of
a complex situation. The legislature must necessarily delegate the working out of details to
the executive or any other agency.
In D. S. Gerewal v. State of Punjab, 1959 AIR SC 512 case, the Court held that Article 312
of the Constitution of India deals with the powers of delegated legislation. Justice K.N.
Wanchoo observed, “There is nothing in the words of Article 312 which takes away the usual
Criticism of Delegated Legislation:

The maxim potestas non potest delegari which means that a delegate cannot further delegates
his power i.e. the power that has been delegated originally may not be redelegated. The main
constitutional objection raised against delegation of rule-making power to administrative
agencies has been the doctrine of the non-delegability of power, which holds that power
delegated to one branch may not be re-delegated to another. People elect their representatives
based on their fitness, knowledge, and ability to represent their interests. Hence, it is a
generally accepted rule that this mandate bestowed by the people cannot be delegated to
another individual or organ, which does not stand in direct relation to the people. The U.S.
Supreme Court has observed that the doctrine of separation of power has been considered to
be an essential principle underlying the constitution and that the powers entrusted to one
department should be exercised exclusively by that department without encroaching upon the
power of another. The criticism of delegated legislation is as follows:
 The delegated legislation enables authorities other than Legislation to make and
amend laws thus resulting in overlapping of functions.
 It is subjected to less scrutiny and less parliamentary control and this can lead to
inconsistencies in the law.
 It is against the spirit of democracy as too much-delegated legislation is made by
unelected people.
 The law made by a statutory authority not notified to the public, hence the delegated
legislation generally suffers from a lack of publicity.
Need of Delegated Legislation
 It enables the Government to make a law without having to wait for a new Act of
Parliament to be passed.
 It saves time and avoids overloading of the Parliament. Parliament delegates the
power by which the delegated legislation can be amended and/or made without having
to pass an Act through Parliament. As the long procedure of enactment of law trough,
the Parliament is avoided and time is saved. At the same time resources are also
saved.
 Many times the local authority knows the ground situation correctly and objectively.
Thus the local authority can make law in accordance with what their locality needs.
Thus delegated legislation allows law to be made by those who have the relevant
expert knowledge.
 Delegated legislation is very important in dealing with an emergency situation as it
arises without having to wait for an Act to be passed through Parliament to resolve the
particular situation.
 Many times a situation arises that Parliament had not anticipated at the time it enacted
the piece of legislation. In such situation delegated legislation can be used to cover the
loopholes in the Act.
 It empowers the authority to modify or alter sanctions under a given statute or make
technical changes relating to law.
 It enables the Government to meet the changing needs of society at the earliest.power
of delegation, which ordinarily resides in the legislature.”
Factors Leading to the Growth of Delegated Legislation
Pressure Upon Parliamentary Time
As there is a marvellous increment in the functions of the state, the main part of enactment is
great to the point that it isn’t feasible for the council to dedicate adequate time to examine
every one of the issues in detail. Accordingly, the governing body passes skeleton enactment
containing general approach and enables the executive to fill in the subtleties in this way
giving fragile living creature and blood to the skeleton with the goal that it might live by
making vital guidelines, guidelines, bye-laws and so forth.
Technicality
Sometimes the topic of enactment is of a specialized sort and requires meeting of specialists.
Individuals from Parliament might be best legislators however they are not specialists to
manage very specialized issues which are required to be taken care of by specialists. In such
cases, the administrative power might be appointed to specialists to manage the specialized
issues. Enactment concerning nuclear vitality, atomic vitality, gas, medications or power
might be cited as delineations of such details. Some things are best handled by people who
have great experience in their respective domains, not always can our politicians think like
people who have been committed to their craft for a really long time.
Flexibility
Parliament does not work constantly. At the season of passing any administrative
establishment, it is preposterous to expect to anticipate every one of the possibilities
beforehand. In this manner, control is essentially required to be given to the Executive to
meet the unanticipated possibilities. In this manner, control is fundamentally required to be
given to the Executive to meet the unanticipated possibilities or to modify new conditions
emerging often. While parliamentary procedure includes delays, assigned enactment offers
quick apparatus for correction. Police guidelines and certain financial guidelines identifying
with bank rate, imports and fares, outside trade and so on are cases of such circumstances.
Experimentation
Ordinary legislative process suffers from the limitation of lack of viability and
experimentation. Delegated Legislation enables the executive to experiment. The method
permits rapid utilisation of experience and implementation of necessary changes in the
application of the provisions in the light of such experience. If the rules and regulations are
found to be satisfactory, they can be implemented successfully. On the other hand if they are
found to be defective, the defects can be cured immediately.
Emergency
In the midst of crisis, fast activity is required to be taken. A crisis may ascend by virtue of
war, rebellion, floods, pandemics, financial downturn and preferences. Administrative
procedure isn’t prepared to accommodate earnest answer for meeting the circumstance. It is,
along these lines, that the official must have a control that might be utilized in a flash.
Appointed Legislation is the main helpful cure.
Confidential Matters
In some situations, the public interest demands that the law must not be known to anybody
until it comes into operation. Rationing schemes or imposition of import duty or exchange
control are such matters.
Sub-Delegation
When a statute confers legislative powers on an administrative authority and that authority
further delegates those powers to another subordinate authority or agency, it is called sub-
delegation. Thus, what happens in sub-delegation is that a delegate further delegates. This
process of sub-delegation may go through one stage to another stage. If the enabling Act is
called the ‘Parent’ then the delegated and the sub-delegated act is called the Children.
Illustration
A good illustration of the process of sub-delegation is provided by the Essential Commodities
Act, 1955. Section 3 of the Act confers rule-making power on the Central Government. This
can be called as the first stage of Delegation. Under Section 5, the Central Government is
empowered to delegate powers to its officers, the State Governments and their officers.
Frequently under this provision, the powers are delegated to State Governments.

SEPERATION OF POWERS

Wade and Phillips provide three definitions of the separation of powers:

 That one branch of government should not carry out the duties of another, such as
giving ministers legislative authority;
 That one branch of the government should not exert control over or interfere with
another branch’s performance of its duties, such as when the judiciary is separate from
the executive branch or when ministers are not answerable to Parliament;
  That the same individuals should not serve in more than one of the three branches of
government, such as sitting as Ministers in Parliament.
Three formulations of structural classification of governmental powers are included in the
separation of powers theory:

 A single person should not serve in more than one of the government’s three
branches. Ministers, for instance, should not be allowed to sit in the House of
Commons.
 A government organ should not be allowed to meddle with another government
organ.
 The functions of one organ of government should not be performed by another.
The definition of separation of power is given by different authors. But in general, the
meaning of separation of power can be categorized into three features:
 A person forming a part of one organ should not form part of another organ.
 One organ should not interfere with the functioning of the other organs.
 One organ should not exercise the function belonging to another organ.
The separation of power is based on the concept of trias-politica. This principle visualizes a
tripartite system where the powers are delegated and distributed among three organs outlining
their jurisdiction each.
Three-tier machinery of state government
It is impossible for any of the organs to perform all the functions systematically and
appropriately. So for the proper functioning of the powers, the powers are distributed among
the legislature, executive and judiciary. Now let’s go into the further details of the functioning
of each organ.
Legislative
The main function of the legislature is to enact a law. Enacting a law expresses the will of the
State and it also acts as the wain to the autonomy of the State. It is the basis for the
functioning of executive and judiciary. It is spotted as the first place among the three organs
because until and unless the law is framed the functioning of implementing and applying the
law can be exercised. The judiciary act as the advisory body which means that it can give the
suggestions to the legislature about the framing of new laws and amendment of certain
legislation but cannot function it.
Executive
It is the organs which are responsible for implementing, carrying out or enforcing the will of
the state as explicit by the constituent assembly and the legislature. The executive is the
administrative head of the government. It is called as the mainspring of the government
because if the executive crack-up, the government exhaust as it gets imbalanced. In the
limited sense, executive includes head of the minister, advisors, departmental head and his
ministers.
Judiciary
It refers to those public officers whose responsibility is to apply the law framed by the
legislature to individual cases by taking into consideration the principle of natural justice,
fairness.
Impact of the doctrine of separation of powers on democracy
The doctrine of separation of powers seeks to protect the centralization of power in one hand;
as history has repeatedly demonstrated, centralisation of power in one or a few hands can lead
to disastrous outcomes. The application of this principle makes the government liable,
accountable, and answerable to its citizens for its actions, thereby aiding in the promotion and
protection of human rights. This eliminates one of the most serious weaknesses of other
forms of administration, such as monarchy or dictatorship, in which the king is not
accountable to his people. When applied, the principle creates a balance of powers inside the
government, in which each of the government’s bodies’ functions are kept in check by the
others while remaining independent of one another. This assures that the laws are just, fair,
and adhere to the natural justice ideal. Furthermore, because it is independent of the other
departments, the court can administer equitable justice. Democracy is flawed without
Separation of Power.
In the case of I.C Golakhnath vs State of Punjab, the Constitution brings in actuality the
distinct constitutional entities i.e namely, the Union territories, Union and State. It also has
three major instruments namely, judiciary, executive and legislature. It demarcates their
jurisdiction minutely and expects them to exercise their function without interfering with
others functions. They should function within their scope.
Going through the provisions of Constitution of India one may be ready to say that it has
been accepted in India. Under the Indian Constitution:

Parliament ( Lok Sabha and Rajya Sabha)

Legislature
State legislative bodies

At the central level- President

Executive
At the state level- Governor

Judiciary Supreme Court, High Court and all other subordinate courts

ULTRA VIRES
Introduction
Intra-vires means “within the powers” and Ultra-vires means “beyond the powers”. The
power to make laws, rules, and regulations and to legislate; are conferred with the legislative
body. Over the years, the state functions have undergone many changes in the aspects of
quantity and quality. So some of the legislative (law-making) functions are performed; by the
executive body also. This type of legislation function by the executive body; is known as
“delegated legislation”. The judicial review of such delegated legislation can be done at two
stages; conferment stage and exercise stage.
In case, the discretionary power is exceeded then it will be considered as ultra vires. If the
subordinate legislation falls outside the purview of the power conferred, then it is ultra vires
to the constitution. If the action of the delegated legislation body affects the fundamental
rights guaranteed to the people, then it is said to be ultra vires to the constitution. Ultra vires
is an error apparent on the face of the record. The lack of jurisdiction of any delegated body
forms the error on record. Some of the elements which are present in an ultra vires act:
 Error or excess of Initial jurisdiction
 Error or loss of jurisdiction on the way of proceedings or in the pending proceedings
 Mala fide intention or improper motive
 Mixed consideration or irrelevant considerations
 An error apparent on the face of the record
The doctrine of ultra vires is frequently used; in the constitutional law, administrative law,
and corporate law. It is applied in cases where the government bodies exceed their limit; or
when the subordinate legislation crosses their legal authority. Also, in companies when legal
persons go beyond their legal capacity, then the doctrine of ultra vires comes into play. In this
article, the author deals with the role played by doctrine of ultra vires in the Administrative
law and the Constitutional law.
Abuse of Powers by the Authority
The courts have developed effective ways to control the abuse of administrative functions. If
a law crosses the discretionary power then it is held ultra vires and unconstitutional as per
Article 14, Article 19, and other relevant provisions. Then the control mechanism can be at
the initial stage of delegation or during the exercise of discretion. An act can become ultra
vires when there is mala fide intention or improper purpose.
Mala fide
When an authority exceeds the power conferred due to the mala fide intention, that is to have
a dishonest or corrupt intention, then such an act is considered as ultra vires. It is difficult to
point out the motive, so the courts generally term them in a broad sense as the abuse or
improper exercise of power. Mala fide intention does not imply only moral turpitude as a
matter of law, in other words, it is said that the power conferred is used for indirect purpose
without any nexus to the objective to be achieved and is completely foreign to the stated law.
[1]
In C.S. Rowjee v. Andhra Pradesh State Road Transport Corporation[2], schemes to
nationalize certain transport routes were initiated by the corporation. The Chief Minister gave
directions only to specific routes and other routes were not selected because of the vengeance
towards his political opponents. In the absence of an affidavit from the minister, it was held
by the court that there was mala fide intention present in the part of the act done by the Chief
Minister.
Improper purpose/consideration:
When the power conferred is exercised with a different purpose deviating from the actual
purpose, then it is considered invalid. The improper purpose is wider than mala fide. The
question of good or bad intention is not questioned here, only the purpose of the action is
questioned. In Lal Kamal Das v. State of West Bengal[3], it was held that the power of
ordering prevention detention cannot be used for simple theft of railway property. There
should be a proper purpose to prosecute such a person in the criminal court.
If an administrative power is exercised by improper/irrelevant or extraneous consideration
then such action is ultra vires and it will be quashed. The general terms and conditions of the
statute decide that the considerations are relevant or irrelevant. The court struck down the
impugned order and held that the “law and order” concept is not the same as the “public
order” concept.[4] Sometimes there can be mixed considerations, so the court should apply
the principle clearly.
Judicial Control
In administrative law, the doctrine of ultra vires forms the base. It questions the authority
exercised by the various authorities. The court has to decide whether the actions are within
the limit or exceeds the limit. The first step in the control mechanism of power is judicial
control. \
Questions
1. Whether there is any violation of fundamental rights or any procedural provision?
2. Whether; the provisions of the parent Act are satisfied or the parent act has been
violated?
3. Whether the power of delegated legislation has been exceeded?
4. Where the action conforms with the said procedural provisions?
5. Whether the test of reasonableness is satisfied?
6. Whether the action by the authority is arbitrary?
Once, these questions are answered then the control can be applied in places where there is an
excess of power. If a parent act or legislation is declared as void and unconstitutional, then
the delegated legislation is also considered as void and unconstitutional. It is the court’s
decision about the scope of powers given to the delegated legislation.
If it goes beyond the scope of the parent act, then it is ultra vires. Also, the sub-ordinate
legislation can be questioned for their action based on unreasonableness.[5] The court fails to
apply judicial control in cases where the powers of delegated authority are not clear. If there
is no precise limit imposed for the authority and the power given is in a broad sense[6], then
it becomes difficult to apply the doctrine of ultra vires as they turn into an uncontrolled
authority.
Parent Act and Delegation.
Article 13(2) of the Indian Constitution states that a law made by the state is held void if it
abridges or takes away the fundamental rights conferred under Part III of the constitution.
This Article makes it clear that law includes order, ordinance, bye-law or ay regulation or
notification, etc. Article 245 limits the extent of powers conferred by Parliament and
legislatures of states to make laws.
The laws made under Article 245 are subject to other constitutional provisions. In
Chintaman Rao v. State of Madhya Pradesh[7], it was held that the parent act was
unconstitutional as it allowed the Deputy Commissioner to prohibit the manufacture of bidis
in few areas, which was a violation of Article 19(1) (g) of the constitution. Therefore, the
order was held to be ultra vires and it was struck down.
The Parent act cannot delegate the essential functions to the subordinated delegated
legislation. The subordinate delegated legislation should not be inconsistent with the parent
act. There should be no conflict between the delegated legislation and the enabling
legislation. A rule made by the parent act for ensuring the safety of passengers in ferry does
not confer the subordinate delegated legislation to frame a rule to prohibit all private ferries.
Therefore the court held that the rule was out of the scope of powers conferred by applying
the doctrine ultra vires and hence void.[8]
In Tahir Hussain v. District Board Muzzaffar Nagar[9], the parent law allowed the District
Board to frame bye-laws for public health and safety. The board framed a bye-law prohibiting
the cattle market. The court held there was reasonable nexus and applying the ultra vires
principle the scope of the delegation authority was exceeding the parent act.
The court held that the rule which imposed a bar on the people for enrollment in bar council
of age 45 years as invalid and ultra vires.[10] A delegated body cannot sub-delegate further
his power to another body as per the maxim “potestas non potest delegari”. Another
important aspect is that a delegated legislation can be given a retrospective effect also.
However, such power cannot be used in the cases of sovereign legislature[11], unless it is
expressed by the State.

Droit Administratif
A body of public law as commonly referred to in many sources, Droit Administratif lays
down the obligations of public administrative organs along with which it helps in regulating
the administrative relations between the State and its citizens. The body which is structured
with the rules brought in by the administrative courts is attached to the name of Napoleon
Bonaparte. The atmosphere surrounding the French revolution of 1789 was mainly associated
with the chaos between the traditionalist Bonapartists and the reformist Parliaments. While
the former was in support of the supremacy of executive powers, the latter preferred the
jurisdiction of ordinary courts only. The two bodies that overtook authority from one another
during the pre and post-revolutionary France were then recognized as the Conseil du Roi and
Conseil d’Etat respectively.

Conseil du Roi was the product of pre-revolutionary France. This body acted as an advisor
in legal and administrative subjects for the King. Along with the executive function,
Conseil du Roi also performed judicial activities which included settling disputes between
the nobles of the nation. It was in the 16th century that the judiciary was slowly being
overshadowed by the growing power of the executive in form of the Conseil du Roi.
Autonomy on the part of Conseil du Roi proved to be detrimental for the ordinary courts.
Such discriminatory excess of power in the hands of the executive was limited as the
atmosphere slowly changed from pre to post-revolution in 1789.

The revolutionary change that was brought about during the post-revolution is the restriction
of power confined in the hands of the executive. Such change was regulated by the concept of
separation of power. This subsequently resulted in the abolition of the Conseil du Roi under
the governance of Napoleon Bonaparte who was a supporter of reforms and freedom on part
of administrative actions. It was this thought that gave birth to Conseil d’Etat in 1799 with
an objective to eliminate difficulties in administrative courses. In the course of time,
Conseil d’Etat started looking after judicial matters as well. Although the motive behind the
formation of Conseil d’Etat was to remove suppression of the judiciary by the executive, the
influence of the executive could not be totally done away with in this case also.

The appointment of the members was carried out by the decree issued by the executive which
required the consent of the council of ministers. Therefore, the judiciary till then was unable
to access its freedom and authority by itself. The jurisdiction of the Conseil d’Etat was
decided to be final in all administrative matters by the Arrents Blanco which was the
executive law during 1873. It was decided that if any conflict would have arisen between the
ordinary courts and that of the administrative courts, the same was supposed to be settled by
the Tribunal des Conflicts which was presided over by the Ministry of Justice and involved
an equal number of judges from both courts. The development of Conseil d’Etat was on the
basis of its own doctrines with the function of regulation of excessive amounts of
administration against the citizens.
Rules of Droit Administratif
Droit Administratif is a representation of judge-made rules decided in a court of law and not
of the rules carved out from the French Parliament. The series of rules that, if compiled
together, will result in the Droit Administratif are as follows:
 Rules that deal with administrative authorities and officials associated with the same.
 Rules that deal with public service operations to fulfil citizens’ needs.
 Rules that deal with administrative adjudication.
While the first rule applies to appointment, removal, allowances, obligations, the second rule
was made to focus on the welfare of the public which was to be operated directly by the
public officials or could have been delegated by them and carried out under their authority.
Private agencies could also have been appointed to execute such rules. The third rule makes it
clear that the highest administrative court in the land is Conseil d’Etat. Infringement of any
rights or causing of injury associated with the private citizens of the land would directly be
handled by the administrative courts.
Characteristics of Droit Administratif
From the above highlights about Droit Administratif, what can be inferred are some of the
characteristic features that this administrative law possesses. They are listed below :
 The matters that are associated with the State and administration oriented litigation
are to be decided by the administrative courts and not by the ordinary courts of the
land.
 While deciding matters concerning litigation as mentioned above, the rules that are
applied in the same are developed from the courts itself.
 The deciding agency in matters of jurisdiction conflicts between the two courts,
namely the administrative and ordinary, is known as Tribunal des Conflicts.
 The Droit Administratif acts as a safeguard for the government officials from the
authority of the ordinary courts.
 The development of Conseil d’Etat is not a one day plan but the product of a long
going process surrounding the French Revolution. It played the role of both a
consulting and an adjudicating body.
The characteristics mentioned above give a summary as to the application of Droit
Administratif. They separate the French administrative structure with that of other common
law countries. French administrative law includes activities more than just delegation and
adjudication that affects public administration. The separation of courts for two classes of
people, as the Droit Administratif lays down, supports specificity in carrying out the
adjudicating procedure. The explanation it provides is that the government officials carry
with them the knowledge of the process in any administrative action hence, they are eligible
to be ruled by administrative courts.
In the case of citizens, such things do not apply hence, they are subjected to ordinary courts.
The French administrative system also lacks the usage or the principle of natural justice on
aspects that there lies no application of the rule of Audi Alteram Partem for the French system
believes that requirement of defending oneself is not required in the adjudicating procedure.
France also abandoned the immunity of the State from tort liability as is there in English
jurisprudence. The interference of the administrative courts with that of ordinary courts is
also not permitted in the atmosphere of France. The burden of precedent laws does not apply
in the case of the French administrative system for it is based on the judge-made laws only.
According to Dicey, the Droit Administratif was based on two beliefs:
1. The government and its servants possess special and privileged rights as compared to
any normal citizen of the nation. Thus, there lies no equality as to the rights available
to government officials and the citizens of the same nation.
2. Government officials are not subjected to the jurisdiction of the courts in the nation.
What Dicey claims is that the essence of the establishment of the judiciary is lost if rule of
law is opposed. The administrative law which fails to abide by the same and evolved on the
basis of its own formulated rule, would play a significant role in suppressing the executive
and therefore, the administrative set up in England is much more developed compared to that
of France. The Droit Administratif established different rules for different levels of people in
society. To go along with what Dicey suggested, this division in society was against equality.
The perception of Dicey and that of the Droit Administratif were completely opposite to each
other. While one promotes equality in every stratum of the society, the other wants an
established administrative system providing specific power to some leaving behind the other.
Both have their own merits and demerits as several scholars observed. The presence of
administrative law was there in England and France. The idea behind the evolution of the
branch of law is different for both.