Basic Concepts of Administrative Law

Module 3
1) Rule of Law

• What is the need of the Doctrine?

• Govt’s role has been traditionally to protect individual rights. At the same time, history is replete with examples
where govt has become the biggest violators of individual rights.

• A number of measures have been derived to reduce this likelihood – rule of law, separation of powers, public interest
litigation are few examples.

• When a single person or group has a large amount of power, can become dangerous to citizens. The doctrine is a
method of removing the amount of power in any group's hands, making it more difficult to abuse.

• Basic aim it to try to avoid despotism and tyranny by decentralizing power - specific ways in which the branches are
subdivided and the exact ways in which they check and balance each other differ from one jurisdiction to another.

• 2 main objectives – rule of law and independence of judiciary

Rule of Law
• One of the most basic principles of English Constitutional Law; accepted and imbibed in US and Indian
Constitution

• Sir Edward Coke: Law supreme over King

• A V Dicey: 1885: The Law and the Constitution : developed this theory

• ‘Le Principle de Légalité ’. i.e. a government based on the principles of law

• Rule of Law is the foundation of good governance

• Supremacy of law;

• Equality before Law; and

• Predominance of Legal Spirit/Judge made Constitution

1. Supremacy of law :
• rule of law requires that the Government should be subject to the law,
rather than the law subject to the Government
• The rule of law requires both citizens and governments to be subject to
known and standing laws
• The rule of law presupposes the absence of wide discretionary authority in
the rulers, so that they cannot make their own laws but must govern
according to the established laws
• Supremacy of Law over the existence of arbitrariness, of prerogative or
even wide discretionary part of the government
2. Equality before Law
• Equality before law or equal subjection of all classes to the ordinary law
of the law administered by the ordinary law courts
• Dicey criticized the French System of droit administrative in which
there are separate administrative tribunals for deciding cases between the
officials of the state and citizens
3. Predominance of Legal spirits/Judge made constitution
• Rights of individuals would be more secured if they were enforceable in
courts and protected by the judges rather than being documented in
constitutions
• English Constitution is judge made and secures most the rights that the
constitution of other nations guarantee
Significance and Drawbacks of application of Dicey’s ROL

Significance
• Invoked in most modern democracies to keep in check the oppressive and
arbitrary exercise of power

Drawbacks
• Supremacy of Law = No arbitrary as well as discretionary powers. No modern
state can work effectively without exercising discretionary powers
• Misunderstood the functionality of droit administrative and ignored the
presence of maxim such as King can do no wrong and growth of several
administrative tribunals in England
• Misplaced trust in efficacy of judicial control
ROL IN A MODERN SOCIETY
• The International Commission of Jurists – Delhi Declaration (1959) on modern aspects and interpretations of rule of law wrt
Legislature, Executive and the Judiciary, Criminal law, human rights etc.

• Delhi Declaration was an international gathering of around 185 judges, lawyers , professors etc who met to discuss the importance
and implementation of rule of law . Following are the 8 clauses proposed by the Committee on Executive and the Rule of law:

1. Where state has undertaken welfare activities, important that some law making power is delegated to the executive for
smooth functioning.

2. To ensure that the extent, purpose and procedure appropriate to delegated legislation are observed, it is essential that it should be
subject to ultimate review by a judicial body independent of the Executive.

3. Judicial review of delegated legislation may be usefully supplemented by procedure for supervision by the Legislature

4. In general, the acts of the Executive which directly and injuriously affect the person or property or rights of the individual
should be subject to review by the Courts.

https://www.icj.org/wp-content/uploads/1959/01/Rule-of-law-in-a-free-society-conference-report-1959-eng.pdf (Page 245)

5. The judicial review of acts of the Executive may be adequately secured either by a
specialized system of administrative Courts or by the ordinary Courts
6. A citizen who suffers injury as a result of illegal acts of the Executive should have an
adequate remedy
7. Irrespective of the availability of judicial review to correct illegal action by the Executive
after it has occurred, it is generally desirable to institute appropriate antecedent
procedures of hearing, enquiry or consultation
8. It will further the Rule of Law if the Executive is required to formulate its reasons when
reaching its decisions of a judicial or administrative character
Davis 7 principles of Modern ROL
• Law and order
• Fixed rules
• Elimination of discretion
• Due process of law or fairness
• Principles of Natural Justice
• Preference for judges and ordinary courts of law to executive authorities
and administrative tribunals
• Judicial review of Administrative Action
ROL under Indian Constitution
• Supremacy of Constitution
• Doctrine of JR
• Ordinary courts for quashing executive actions
• All delegated Legislation fall within the meaning of Law and therefore
can not be inconsistent with Part III
• Article 14: equality before law and equal protection of Law
• ROL: basic structure
• ROL expanded through judicial interpretation
• Examples of Rule of law in Indian Constitution–
• Preamble – ideals of justice, liberty and equality;
• Supremacy of the Constitution;
• Doctrine of judicial review; All rules and regulations made by way of delegated legislation included in the definition of “law” under Art 13;
• Art 21 says …except by procedure estd by law.
• Fact that State an be held liable under Art 299 and 300.

• Rule of law manifests itself when any Govt action against Art 21 is examined against 14, 19 and 21 to be just fair and reasonable.
• Rule of law in India is also closely linked with human rights protection – cases under Art 21.
• Fact that we insist on fair hearing to an accused of crime is also a manifestation of rule of law in India.
• However, Dicey’s concept not fully accepted.
• Earlier, the 3rd principle of judge-made law was considered to be not accepted in India – as laid down in the ADM Jabapur v
Shivkant Shukla case (1976).
• Majority held that the Constitution is a mandate and the text needs to be respected. If the enforcement of 21 and 22 is denied as result of
the Presidential order, then it is according to the “procedure estd by law” as required under Art 21. (Hence did not agree with Dicey’s 3rd
principle)
• Minority judgement by J Khanna was in consonance with the 3rd principle and held that it doe not mean that if Art 21 is suspended,
there is no right to life remaining. – a position that is now vindicated.
• If too much stress is laid on the letter and not the judicial spirit, even the mass murders in Nazi Germany were also according to the law
made there.
SEPARATION OF POWERS
• 3 functions of the govt and the 3 respective organs of the State must be kept separate in a free democracy.

• French judge Montesquieu first formalised the theory in his book Espirit des Lois “The Spirit of the laws” in
1748.

• Contextual background :

• Absolute monarchy in France – Louis XIV – king and his administrators had absolute powers and acted arbitrarily

• Montesquieu was impressed by the writings of Englishman John Locke and believed that the secret to an English
person’s independence was separation of govt functions in 3 separate organs.

• It was the US Constitution that first implemented the Doctrine in its text in 1787.

• Later, the French Constitution included in 1789 also included the doctrine – however. It did not last long. When
Napoleon came to power, the doctrine was compromised completely. Now inculcated again.
• What is the need of the Doctrine?

• Govt’s role has been traditionally to protect individual rights. At the same time, history is replete with
examples where govt has become the biggest violators of individual rights.

• A number of measures have been derived to reduce this likelihood – rule of law, separation of powers,
public interest litigation are few examples.

• When a single person or group has a large amount of power, can become dangerous to citizens. The
doctrine is a method of removing the amount of power in any group's hands, making it more difficult to
abuse.

• Basic aim it to try to avoid despotism and tyranny by decentralizing power - specific ways in which the
branches are subdivided and the exact ways in which they check and balance each other differ from one
jurisdiction to another.

• 2 main objectives – rule of law and independence of judiciary

Montesquieu’s Theory

• 3 kinds of powers in 3 different bodies.

• If one person exercises more than one power, individual liberty ought to be compromised

• Montesquieu in the following words stated the Doctrine of Separation of Powers “There would be an end of everything, were the same
man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions,
and of trying the causes of individuals.”

• The theory of separation of powers signifies three formulations of structural classification of governmental powers:

• The same person should not form part of more than one of the three organs of the government. For example, ministers
should not sit in Parliament.

• One organ of the government should not interfere with any other organ of the government.

• One organ of the government should not exercise the functions assigned to any other organ
SEPRATION OF POWERS IN PRACTICE
• USA
• Embedded in the American Constitution – in 1787

• Legislative powers – Congress (Art I), Executive powers – President (Art II), and Judicial powers – SC and other subordinate
courts (Art III)

• Presidential form of govt requires complete separation between Legislature and Executive (unlike UK or India)

• Slowly with time and growth of welfare state, implementation relaxed – President can veto a bill passed by the Congress ,
Congress has judicial power of impeachment etc, Tribunals and tax courts now prevalent (executive exercising judicial powers)

• Theory of strict separation of powers has given way to a system of checks and balances to keep a check on the tyrannical use of
power.

• There was not much denial in accepting the existence of Ad law like in England during Dicey’s time – Administrative Procedure
Act, 1946 – lays down procedures to be followed, makes publication of rules compulsory, RTI was included.
ENGLAND

• Even though it was UK polity that inspired Montesquieu to give the theory, Separation of powers
never actually existed in the UK.

• Follows more a theory of “Mixed govt” with checks and balances – Executive responsible to the
Legislature.

• Slowly more manifestation of the theory –

• Constitutional reforms act, 2005 –

• abolished the office of Lord Chancellor (he was head of judiciary and Chairman of House of Lords),

• Law Lords not to be a part of judiciary anymore,

• establishes the SC,

• Thus by and large independence of Judiciary has been ensured by the Constitutional Reforms Act, 2005
INDIA

• In theory, the legislative power is with the Parliament, the executive in the name of the President and the judiciary
is independent in exercising judicial powers

• Art 50

• Deeper study reveals many exceptions –

• Executive is part of the Parliament
• President is also the head of the Parliament – exercises legislative powers – veto, ordinances etc
• Many legislative functions delegated to executive
• SC frames rules for its own procedure.

• Justice Beg in Keshavanand judgement declared that Separation of powers is part of the basic structure.
• Even though there are overlaps, functions essentials to that organ cant be exercised by other organs. . Not a
violation of the theory of separation of powers if only incidental functions are passed from one organ to other
• Concept of Checks and balances ensures that power of own domain is also not abused.
Criticism

• If there is complete separation of powers , the different organs of the government will not be able to work in
co-operation and harmony. As a result, there would be frequent deadlocks which may bring the governmental
machinery to a standstill (Eg – when the US Congress has to extend the credit limit of the US govt)

• This doctrine is based on the assumption that the three functions of the Government viz legislative, executive and
judicial are independent of distinguishable from one another. But in fact, it is not so. There are no watertight
compartments. It is not easy to draw a demarcating line between one power and another with mathematical
precision.

• The very basis that it was inspired from England is incorrect

Important case Laws wrt ROL and SOP
• Indira N Gandhi v Raj Narain AIR 1975 SC 2299
• ADM Jabalpur v Shivakant Shukla 1976 2 SCC 52
• Kesavnanda Bharti v. State of Kerala AIR 1973 SC 1461
• CSC, Punjab v. Om Prakash, AIR 1969 SC 33
• I.C Golak Nath v. State of Punjab, AIR 1967 SC 1643
• Ram Jawaya v. State of Punjab, AIR 1955 SC 5491
• I.C Golak Nath v. State of Punjab, AIR 1967 SC 1643
• The Constitution brings into existence different constitutional entities, namely, the Union, the
States and the Union Territories. It creates three major instruments of power, namely, the
Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely
and expects them to exercise their respective powers without overstepping their
limits. They should function within the spheres allotted to them. Some powers
overlap and some are superseded during emergencies. The mode of resolution of conflicts and
conditions for supersession are also prescribed. In short, the scope of the power and the-manner
of its exercise are regulated by law. No authority created under the Constitution is
supreme; the Constitution is supreme; and all the authorities function under
the supreme law of the land. The rule of law under the Constitution has a
glorious content. It embodies the. modem concept of law evolved over the centuries
• The rule of law under the Constitution serves the needs of the people without
unduly infringing their rights. It recognizes the social reality and tries to adjust
itself to it from-time
• CSC, Punjab v. Om Prakash, AIR 1969 SC 33
• In this context it is essential to emphasise that under our constitutional
system the authority to make the law is vested in the Parliament and
the State Legislatures and other law making bodies and whatever
legislative power the executive administration possesses must be
derived directly from the delegation of the legislature and exercised
validly only within the limits prescribed. The notion of inherent or
autonomous law-making power in the executive administration is a
notion that must be emphatically rejected
• Kesavnanda Bharti v. State of Kerala AIR 1973 SC 1461
• Power to amend the FRs questioned
• Laying down of BASIC STRUCTURE doctrine
• Different judges including different facets under the basic structure
• “Separation of powers between the legislature, the executive and the
judiciary is a part of the basic structure of the Constitution; this structure
cannot be destroyed by any form of amendment.”
• Rai Sahib Ram Jawaya v. State of Punjab AIR 1955 SC 5491
• In 1950, Punjab govt nationalised textbooks – started printing, publishing and
selling textbooks for schools. Earlier, selected textbooks were prescribed.
• In 1952, govt also acquired the copyright of the books and decided to pay a
mere 5% royalty to the authors.
• Challenged – under Art 19 and whether the govt (executive) had the power to
take such decisions by way of an executive order or required a law of the
Legislature.
• Held-
• According to Article 162, the executive power of a State shall extend to the
matters concerning which the Legislature of the State has the power to make
laws. Thus, the powers of the Executive run parallel to the powers of the
legislature. As long as there is umbrella legislation, the executive will have the
power to take decisions.
• Although in the Constitution of India there is no express separation of powers, it is
clear that a legislature is created by the Constitution and detailed provisions are made
for making that legislature pass laws. Is it then too much to say that under the
Constitution the duty to make laws, the duty to exercise its own wisdom, judgment and
patriotism in making law is primarily cast on the legislature? Does it not imply that
unless it can be gathered from other provisions of the Constitution, other bodies
executive or judicial are not intended to discharge legislative functions?”
• The Indian Constitution has not indeed recognised the doctrine of
separation of powers in the absolute rigidity but the functions of the
different parts or branches of the Government have been sufficiently
differentiated and consequently it can very well be said that our
Constitution does not contemplate assumption by one organ or part of
the State of the functions that essentially belong to another.
• The Court held that the modern day interpretation of the doctrine of separation of powers
provides for a distinction to be drawn between ‘essential’ and ‘incidental’ powers. Hence,
the Court made a strict distinction between the powers of the various organs but recognized the
possibility of over-lap between the functions carried out by various organs in exercise of their
powers. The Court concluded that while one organ of the State cannot usurp or encroach
upon the essential functions of another organ, but may exercise the incidental functions
thereof.

• Thus, doctrine not fully accepted in India – rather rely on checks and balances.
• Indira N Gandhi v Raj Narain AIR 1975 SC 2299
• Election questioned on malicious grounds – Allahabad HC upheld the
contention declared her election unlawful for using corrupt practices.
• Appeal to SC by her – decision stayed – meanwhile 39th AA,1971 introduced
Art 329A – challenged in SC
• Held –
• 39 AA,1971 held unconstitutional as Art 329 A destroys basic structure.
• Chandrachud J. found that “The 39th amendment is violative of the principle of
separation of power as it intently transferred a purely judicial function into the
hands of the legislature.
• Ray C.J. found another basic feature violated by the said amendment i.e. rule of
law whereas Justice Khanna found that “The violation of norms of free and fair
elections. The bench also found the said amendment violated the principles of
natural justice i.e. audi altrem partem since it denies the right of fair hearing to
the one who is challenging the election of the members mentioned under the
amendment
ADM Jabalpur v Shivakant Shukla 1976 2 SCC 521
• Presidential order challenged which suspended FRs and therefore persons detained under
MISA were left remedyless
• Majority held that the Constitution is a mandate and the text needs to be respected. If the
enforcement of 21 and 22 is denied as result of the Presidential order, then it is according
to the “procedure
rd
estd by law” as required under Art 21. (Hence did not agree with
Dicey’s 3 principle)
• Sanctity of life and liberty was not something new when the Constitution was drafted.
The principle that no one shall be deprived of his life and liberty without the authority of
law was not the gift of the Constitution. It was a necessary corollary of the concept
relating to the sanctity of life and liberty; it existed and was in force before the coming
into force, of the Constitution
• Even in the absence of Article 21 in the. Constitution, the State has got no power
to deprive a person of his life or liberty without the authority of law. This is the
essential postulate and basic assumption of the rule of law and not of men in all civilised
nations. Without such sanctity of life and liberty, the distinction between a lawless society
and one governed by laws would cease to have any meaning.
 Droit Administratif
• French system of Ad law – inspired from theory of separation of powers – but calls for separation
between the judiciary and the executive

• Non- interference of Courts in the working of the administration – devised a system of Administrative
tribunals – person seeking redress against administration cannot approach the ordinary courts

• One Court of Appeal (Council d’etat) for all tribunals – ordinary courts not involved at all – here judges
are experts in matters relating to administration

• Most European countries have now adopted this dual jurisdiction model of France – Belgium, Italy,
Spain, Netherlands, among others.

• If difficulty or doubt arises as to whether a case falls within the administrative jurisdiction or that of the
ordinary courts, the question is resolved by the Tribunal des Conflits