Basic Concepts of

Administrative Law
Module 3
Topics to be covered
• Rule of law
• Doctrine of Separation of powers
• Droit Administratiff
Cases to be covered
• Ram Jawaya v. State of Punjab, AIR 1955 SC 549
• Indira N Gandhi v Raj Narain AIR 1975 SC 2299
• ADM Jabalpur v Shivakant Shukla 1976 2 SCC 52
Rule of law
• The originator of the concept of rule of law was Sir Edward Coke the Chief Justice
in James I Reign.
• The concept of rule of law is of old origin. Greek philosophers such as Plato and Aristotle
discussed the concept of rule of law around 350 BC.
• Plato wrote “Where the law is subject to some other authority and has none of its own,
the collapse of the state, in my view, is not far off; but if law is the master of the
government and the government is its slave, then the situation is full of promise and men
enjoy all the blessings that the gods shower on a state”.
• Aristotle wrote “law should govern and those who are in power should be servant of the
laws.”
The derivation of the phrase ‘ Rule of Law’ is from the French phrase ‘la principe de
legalite’ which implies principle of legality.
• By this phrase it refers to a government based on principles of law and not of men.
• One of the basic principles of Constitution is rule of law and this concept is up to standard
in both India and America Constitution.
Meaning of Rule of Law

• To simply understand the meaning of rule of law, it means that no man is above
law and also that every person is subject to the jurisdiction of ordinary courts of
law irrespective of their position and rank.
The term ‘rule of law’ is originated from England and India has taken this concept.
• The concept of rule of law further requires that no person should be subjected to
harsh or arbitrary treatment.
• The word ‘law’ in rule of law means that whether he is a man or a society, he
must not be governed by a man or ruler but by law.
• As per Article 13 of the Indian Constitution rule of law means law of land.
According to Black’s Law Dictionary: “Rule of Law” means legal principles of day
to day application, approved by the governing bodies or authorities and expressed
in the form of logical proposition.
• Postulates of Rule of Law
• In 1885, Professor A.V Dicey developed this concept of Coke and
propounded three principles or postulates of the rule of law in his
classic book ‘Law and the Constitution.’
• According to Professor A.V Dicey, for achieving supremacy of law
three principles of postulates must be followed which are as follows:
·Supremacy of law,
·Equality before law and
·Predominance of Legal Spirit
Supremacy of law
• As per the first postulate, rule of law refers to the lacking of
arbitrariness or wide discretionary power. In order to understand it
simply, every man should be governed by law.
• According to Dicey, English men were ruled by the law and the law
alone and also where there is room for arbitrariness and that in a
republic no less than under a monarchy discretionary authority on
the part of the Government must mean insecurity for legal freedom
on the part of its subjects.
• There must be absence of wide discretionary powers on the rulers so
that they cannot make their own laws but must be governed
according to the established laws.
Equality before law
• According to the second principle of Dicey, equality before law and
equal subjection of all classes to the ordinary law of land to be
administered by the ordinary law courts and this principle emphasizes
everyone which included government as well irrespective of their
position or rank.
• But such element is going through the phase of criticisms and is
misguided. As stated by Dicey, there must be equality before law or
equal subjection of all classes to the ordinary law of land.
• French legal system of Droit Administrative was also criticized by him
as there were separate tribunals for deciding the cases of state
officials and citizens separately.
Predominance of Legal Spirit
• According to the third principle of Dicey, general principles of the Indian
Constitution are the result of the decisions of the Indian judiciary which
determine to file rights of private persons in particular cases.
• According to him, citizens are being guaranteed the certain rights such as right to
personal liberty and freedom from arrest by many constitutions of the states
(countries).
• Only when such rights are properly enforceable in the courts of law, those rights
can be made available to the citizens. Rule of law as established by Dicey requires
that every action of the administration must be backed and done in accordance
with law.
• In modern age, the concept of rule of law oppose the practice of conferring
discretionary powers upon the government and also ensures that every man is
bound by the ordinary laws of the land as well as signifies no deprivation of his
rights and liberties by an administrative action.
Rule of Law Under Indian Constitution

• In order to develop Indian democracy, rule of law has played a great role..
• Some of the provisions were adopted from USA and some of them were adopted from England.
• Indian Constitution is considered to be supreme and no one is above Indian Constitution. Rule of
law is also given impliedly in the preamble and such concept is enshrined in Part III of the Indian
Constitution.
• In case of violation of such rights, one can approach Supreme Court or High Court under Article 32
and 226 of the Indian Constitution. The Constitution of India is enriched with the principles of law
i.e. justice, equality and liberty.
• Any law made by the Central government or State government must be complied in accordance
with the Constitution of India. If any law made by the legislature contravenes with the provisions of
the Constitution then such law will be declared void.
Under Article 32 of the Indian Constitution, the Supreme Court has the power to issue writs in the
nature of Habeas Corpus, mandamus, prohibition, quo warranto, and certiorari.
• The power of judicial review is also given to Supreme Court in order to prevent any ultra vires law
so as to preserve ‘Rule of law’.
Role of Indian Judiciary
• There are a plethora of cases where the concept of rule of law was discussed and came into light. Some of the cases are as
follows:
ADM Jabalpur v. Shivkant Shukla
This case is also known as “Habeas Corpus case”. It is one of the most important case when comes to rule of law. The question
that was raised before the hon’ble court was that whether there was any rule of law in India apart from Article 21 of the Indian
Constitution. It was in context relating to the proclamation of emergency where the enforcement of Articles 14, 21 and 22
were suspended.
Som Raj v. State of Haryana
In this case it was held that the absence of arbitrary power is the postulate of rule of law upon which the whole constitutional
edifice is dependent.
Union of India v. Raghubir Singh
In this case it was held by the court that a considerable degree that governs the lives of the people and regulates the State
function flows from the decision of the superior courts.
Chief Settlement Commissioner, Punjab v. Om Prakash
In this case, Supreme Court observed "In our constitutional system, the central and most characteristic feature is the concept
of rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard
of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person
brings the matter into notice.”
Keshvananda Bharti v. State of Kerela
In this case, the Supreme Court enunciated the concept of rule of law as one of the most important aspects of doctrine of basic
structure.
Doctrine of Separation of Powers
• Power Concentration: Erosion of the doctrine of separation of powers seeks to
protect the centralization of power in one hand as history has repeatedly
demonstrated this can lead to disastrous outcomes.
• Transparency: 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.
• Elimination of Other Administrations: Separation of power 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.
• Natural Justice: The following principle creates a balance of parts inside the
government in which the functions of the government bodies are kept in check by
one another while remaining separate from each other, this assures that the laws
are just fair and adhered to the Natural Justice.
Basics
• Montesquie
• The spirit of laws book, 1748
• Trias politica- three organs
• Montesquieu’s argument that liberty is most effectively safeguarded
by the separation of powers was inspired by the English constitution,
although his interpretation of English political realities has since been
disputed. His work was widely influential, most notably in America,
where it profoundly influenced the framing of the U.S. Constitution.
That document further precluded the concentration of political
power by providing staggered terms of office in the key governmental
bodies.
• Constitutional provisions ensuring the separation of powers are:
• Article 50: It says that states shall take steps to separate the Judiciary from
the executive.
• Articles 121 & 211: These articles states that the judicial conduct of a judge of
the Supreme Court and the High Courts cannot be discussed in Parliament
and the state legislature.
• Articles 122 & 212: The validity of proceedings in Parliament and the
legislatures cannot be called into question in any Court.
• Article 361: The President or the Governor shall not be answerable to any
court for the exercise and performance of the past and duties of his or her
office
What is the Legislature?
• The chief function of the legislature is to enact laws.
• It is the basis for the functioning of the other two organs, the executive and
the judiciary.
• It is also sometimes accorded the first place among the three organs
because until and unless laws are enacted, there can be no implementation
and application of laws.
What is the Executive?
• The executive is the organ that implements the laws enacted by the
legislature and enforces the will of the state.
• It is the administrative head of the government.
• Ministers including the Prime/Chief Ministers and President/Governors
form part of the executive.
What is the Judiciary?
• The judiciary is that branch of the government that interprets the
law, settles disputes and administers justice to all citizens.
• The judiciary is considered the watchdog of democracy, and also the
guardian of the Constitution.
• It comprises of the Supreme Court, the High Courts, District and other
subordinate courts.
Significance of the doctrine

• Why do we need a separation of powers between the various organs of the

State? Whenever there is a concentration of power in one
center/authority, there is bound to be greater chances of
maladministration, corruption, nepotism and abuse of power. This principle
ensures that autocracy does not creep into a democratic system. It protects
citizens from arbitrary rule. Hence, the importance of the Separation of
Powers doctrine can be summed up as follows:
• Keeps away autocracy
• Safeguards individual liberty
• Helps create an efficient administration
• Judiciary’s independence is maintained
• Prevents the legislature from enacting arbitrary or unconstitutional laws
Cases
• The Honourable Supreme Court in Ram Jawaya Kapoor V State of
Punjab held that the Indian Constitution has not indeed recognized
the doctrine of separation of powers in its absolute rigidity but the
functions of the different parts or branches of the government have
been sufficiently differentiated and consequently it can be very well
said that our Constitution does not contemplate assumption by one
organ or part of the state of functions that essentially belong to
another.
• In Indira Nehru Gandhi V Raj Narain, Ray, CJ observed that in the
Indian Constitution there is a separation of powers in a broad sense
only. A rigid separation of powers as under the American Constitution
or under the Australian Constitution does not apply to India.
• The Court further held that adjudication of a specific dispute is a
judicial function that Parliament even acting under a constitutional
amending power cannot exercise.
• Apart from difficulties inherent in the enforcement of the strict
doctrine of separation of powers in the functioning of the modern
government, there is also an inherent difficulty in defining, in
workable terms, the division of powers into executive, legislative and
judicial.
Definition
• Droit administratif, has been defined by French authorities in general terms
as “the body of rules which regulate the relations “of the administration or
of the administrative “authority towards private citizens”; and Aucoc in his
work on droit administratif describes his topic in this very general
language:
• “Administrative law “determines
• (1) the constitution and the relations of “those organs of society which are
charged with the “care of those social interests which “are the object of
public administration, by which “term is meant the different
representatives of society “among which the State is the most important,
and “
• (2) the relation of the administrative authorities “towards the citizens of
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.
• 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.