ASSIGNMENT – ADMINISTRATIVE LAW (RESEARCH PAPER - RULE OF LAW & ADM.

LAW)

DATE – 07.02.2020

ADMINISTRATIVE LAW

ASSIGNMENT - RESEARCH PAPER

RULE OF LAW - THE BASIS OF ADMINISTRATIVE LAW

Submitted by – Srishti Sharma - 03619103818

Aashi Drall - 00119103818
Shraddha - 03219103818
Palak Gaur – 35519103818

Submitted to – Mrs. Mayuri Gupta

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 ASSIGNMENT - ADMINISTRATIVE LAW (RESEARCH PAPER – RULE OF LAW & ADM. LAW)

TABLE OF CONTENTS

[Link]. Contents Pg. No.

1. Equivalent citations Pg no. III

2. Books and Authorities Referred pg no. IV

3. Abstract – Rule of law Pg no. 1-2

4. Introduction – Meaning & origin of Rule of law pg no.

Principles of Rule of law 3-18
Rule of law under Indian Constitution
Role of Indian Judiciary in Rule of law
Rule of law as basis of Administrative law
Meaning of Administrative law
Objectives of Administrative law
Kernels of Administrative law
Administrative law in India
Red & green light theory
Administrative law & constitutional law

5. Conclusion Pg no.
18-19

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EQUIVALENT CITATIONS -:

[Link]. Case Laws Footnote

1. State of West Bengal v. Anwar Ali (1952 AIR 75, 1952 SCR 284)
4
2. Baheshar nath’s case (1959 AIR 149, 1959 SCR (1) 528)
5
3. ADM Jabalpur v. Shivakant Shukla (1976 ) 2 SCC 521)
6, 19
4. Som Raj v. State of Haryana (1990 AIR 1176, 1990 SCR (1) 535)
7
5. Union of India v. Raghubir Singh (1989 AIR 1933, 1989 SCR (3) 316
8
6. Commr; Punjab v. Om Prakash (1969 AIR 33, 1968 SCR (3) 655)
9
7. Keshvanad Bharti Vs. Union of India (1973) 4 SCC 225, AIR 1973 SC
1461) 10, 20

8. Maneka Gandhi v. Union of India (1978 AIR 587, 1978 SCR (2) 621)
11
9. Indira Nehru Gandhi Vs. Raj Narayan (1975 AIR 2299=1976 (2) SCR
347=1975 Suppl. SCC1 C.A No. 887/909) 12

10. Binani Zinc Limited Vs. Kerala State Electricity Board and Ors
(2009) 1 SCC 195) 13

11. Gadakh Yashwantrao Kankarrao v. BalasahebVikhe Patil (AIR 1994

SC 678, JT 1993 (6) SC 345, 1993(3), 1994 1 SCC (682) 14

12. Sukhdev v. Bhagatram (AIR 1975 SC 1331, 1975 (30) FLR 283)_
15
13. Secretary, State of Karnataka and Ors. v. Umadevi and Ors (2006
(1)SCC 667) 16

14. Amlan Jyoti Borooah [Link] of Assam (C.A No. 387 Of 2009)
17
15. Bachan Singh v. state of Punjab (AIR 1980 SC 898)
18

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BOOKS REFERRED -:
1. C.K TAKWANI - Lectures on Administrative Law

WEBSITES REFFERED -:
1. Manupatra Online Resources, [Link]
2. Lexis Nexis Legal, [Link]
3. SCC Online, [Link]
4. Indian Kanoon, [Link]

JOURNALS REFERRED -:
1. International journal of law and legal jurisprudence studies : ISSN:2348-8212;volume
4 issue 3

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RULE OF LAW - THE BASIS OF ADMINISTRATIVE LAW

Abstract- The research topic deals with the concept of Rule of Law & Administrative Law.
The researcher would like to highlight the concept of rule of law & administrative law that
how the rule of law is the basis of administrative law and the evolution of the administrative
law in India or the need of administrative law in India and the scope and development of
administrative law with regard to the rule of law which is considered as the basis of
administrative law in India.

In ancient times there was Monarchy i.e. rule of King or Queen and they were not answerable
and accountable to anyone so the state functioned according to their benefits and rights of the
citizens doesn't recognized properly. So, for the development of state and protect the citizen's
rights the concept of Rule of law and Separation of powers so that no one rules the state
according to their benefits and nowadays, the Goverment doesn't work according to their
whims and fancies, it has to follow principle of law i.e. the Rule of law.

The entire basis of Administrative law is the doctrine of the Rule of law. The Rule of law
embodies the doctrine of supremacy of law. It is the basic and fundamental necessity for a
disciplined and organized society. if a goverment acts according to the principle of rule of
law then individual liberty and right can be protected in a better way. The principle implicit
in the rule of law that executive must act under the law, and not by its own decree. is still
cardinal principle of the common law system. The executive is regarded as not having any
inherent powers of its on but all its powers flow from the law, a principle which plays such a
vital role in all democratic countries of to-day.

Rule of law is classical principle of administrative law. As a matter of fact, this principle was
one of the principles that acted as impediment development of Administrative Law
principles. The irony further is that the rule of law is now an important part of modern
Administrative Law. Whereas the rule of law is still the one of the very important principles
regulating in common law countries and common law derived countries modern laws has
denied some of the important parts of rule of law as proposed by Dicey at the start of 19th
Century.
 ASSIGNMENT - ADMINISTRATIVE LAW (RESEARCH PAPER – RULE OF LAW & ADM. LAW)

The Modern Administrative law is fine mixture of Droit Administratif, the French law system
and Dicey’s rule of law. The sophisticated combination of the two principles has given rise to
powerful and vast body of executive. In fact the development of modern Administrative law
is consequence of development of administration and its side effects.

Dicey’s Rule of Law: The concept of rule of law backs to the time of Aristotle. Aristotle
ruled out the concept of rule under discretion by all means and tried to convey his followers

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that given the choice it is always rule of law that scores over rule of discretion.

In Modern times the rule of law was propounded by the Albert Dicey, a British jurist and
Philosopher. He gave following three postulates of rule of law:

1. Everyone is equal before the law.

2. Sanctions have to be backed by law.

3. Courts are the ultimate body and supremacy of court is ambivalent in civilized society. He
was firm proponent of the concept and very influential thinker of his times.

Though the first two principles are still in almost every legal system of world, the third
principle was protested many of jurists of that time. The Dicey in particular opposed the
principle of French system of Droit Administratif. England at that time was in fact
propounding some quasi legislative and quasi-judicial processes which were taken
cognizance of English thinkers of that time; still the whole common law system of country
was blindfolded with the Dicey's philosophy of “rule of law.”

Dicey's Rule of Law and Modern Administrative Law: Dicey's view and proposition of rule
of law has succeeded in part and wasn’t sustainable on other. Most of the modern legal
system implements the principles of judicial review and similar principles of proportionality
and legitimate expectations. Dicey's views on written and unwritten constitutions are subject
to much debate and discussion.

The clearest way to show what the rule of law means to using everyday life is to recall what
has happened when there is no rule of law. - Dwight D. Eisenhower

The bedrock of our democracy is the rule of law means we have to have an independent
judiciary, judges who can make decisions independent of the political winds that are blowing.

- Caroline kennedy

Basic principles of the Rule of Law -:

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1. Law is supreme, above everything and everyone, nobody is above the law.
2. All things should be done according to law and not according to whim.
3. No person should be made to suffer except for a distinct breach of law.
4. Absence of arbitrary power being the heart and soul of the rule of law.
5. Equality before the law and equal protection of law.
6. Discretionary power should be exercised within reasonable limits sets by law.
7. Adequate safeguard against executive abuse of power.
8. Independent and impartial judiciary.
9. Fair and just procedure.
10. Speedy trial.

INTRODUCTION

RULE OF LAW - No one is above the law & Everyone is subject to law.

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The rule of law is that the state is governed, not by the ruler or the nominated representatives
of the people but by the law. a country that enshrines the rule of law would be one basic and
core law from which all other law derives its authority is the supreme authority of the state
the monarch or the representatives.

The concept of rule of law is the basic principle of English Constitution. This doctrine is
accepted in the U.S and Indian Constitution. The concept of rule of law is the basis of entire
administrative law. Sir Edward coke was the originator of concept of rule of law and he
established the supremacy of law against the executive. Further A.V dicey developed the
concept of rule of law.

A.V dicey said; that the Supremacy of regular law as opposed to influence of arbitrary power.
Equality of all classes to the ordinary law, administered by the ordinary courts. Law of the
Constitution is the consequence of the rights of individuals as defined and enforced by the
courts.

John Rawl said; that similar cases be treated alike, law must be known & laws must abide by
natural justice.

Professor joseph raz said that rule of law can exist without a legal system pursuing moral
good. he said that rule of law must be clear. publicized, stable, not impossible to adhere to,
non contradictory, accessible and independent judiciary.

Professor Lon Fuller said that the legal system must serve the needs of the people; if it is to
be obeyed.

MEANING & ORIGIN 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 taken from England. It means that no man is above the law and that

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every person is subject to the jurisdiction of ordinary courts of law, irrespective of his rank
and position. Rule of Law requires that no person should be subjected to harsh, uncivilized or
arbitrary treatment. Rule of law is associated with the word law which means that man or a
society must not govern by a man or ruler but rather than they must be govern by Law. In
other words we can say that law means law of land which is defined under Article 13 of
Indian Constitution. Rules mean law rules. Since, there is no physical existence of law so law
means government based on principle. It means all the acts of government should be
reasonable and according to the law.

The phrase rule of law is derived from the French phrase ‘la principe de legalite’ (the
principle of legality) which refers to a government based on principles of law and not of men.
Rule of law is one of the basic principles of the English Constitution and the doctrine is
accepted in the constitution of U.S.A and India as well. The entire basis of administrative law
is the doctrine of the rule of law.

The concept of Rule of Law is that the state is governed, not by the ruler or the nominated
representatives of the people but by the law. A country that enshrines the rule of law would
be one where in the Grundnorm1 of the country, or the basic and core law from which all
other law derives its authority is the supreme authority of the state. The monarch or the
representatives of the republic are governed by the laws derived out of the Grundnorm and
their powers are limited by the law. The King is not the law but the law is king.

The originator of the concept of rule of law was Sir Edward Coke the Chief Justice in James
I [Link] 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 doctrine of rule of law is the entire basis of Administrative law. As discussed by
Aristotle, the concept of rule of law is grounded in the ideas of justice, fairness and
inclusiveness. Today, an intricate chain of fundamental ideas is incorporated in rule of law

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which further encompasses equality before law, equal treatment before the law for
government, independence of judiciary, consistency, transparency and accountability in
administrative law.
The term rule of law is nowhere defined in the Indian Constitution. We can find that the term
is though used frequently by the Indian courts in their judgments. For instance, an online
search of the Supreme Court's reportable judgments delivered between 1 January 1950 and 1
January 2010 resulted in 1,299 hits of the term 'rule of law'.

There is no doubt that the rule of law pervades the Constitution as an underlying principle. In
fact, the Supreme Court has declared the rule of law to be one of the basic features of the
Constitution, so this principle cannot be taken away even by a constitutional amendment. As
this Country Report will outline, the Indian conception of the rule of law is both formal and
substantive. It is also seen as an integral part of good governance. The rule of law requires
that people should be governed by accepted rules, rather than by the arbitrary decisions of
rulers. These rules should be general and abstract, known and certain, and apply equally to all
individuals. Constitutional governments are based on a previous commitment to freedom
under the rule of law. The essential attribute of constitutionalism is a legal limitation on
government. Under constitutionalism, rulers are not above the law, government power is
divided with laws enacted by one body and administered by another, and an independent
judiciary exists to ensure laws are administered objectively. An efficient and effective
constitution allows government to function to protect the lives and liberties of citizens
without violating the rights of some to provide gains to others.

The concept of Rule of law is of old origin and is an ancient ideal. It was discussed by ancient
Greek philosophers such as Plato and Aristotle 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”.

Likewise, Aristotle also endorsed the concept of Rule of law by writing that “law should
govern and those who are in power should be servants of the laws”. Rule of law is one of the
basic principles of the English Constitution and the doctrine is accepted in the Constitution of

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U.S.A and India as well. The entire basis of Administrative Law is the doctrine of the rule of
law. Legal historians have amply demonstrated the intrinsic linkage between legal
developments and the historical settings in which they take place. The concept of the Rule of
Law is no exception. It is grounded in the ideas of justice, fairness, and inclusiveness
discussed by Aristotle; in the rules of war addressed in the ancient Indian epics Mahabharatha
and Ramayana; in the foundations of religious thought such as the Ten Commandments and
the Dharma Chakra; and in seminal historical documents such as the Magna Carta, which
embodied the principle that government itself is bound to abide by the law. Since then,
philosophers and jurists from all corners of the world have molded the philosophical
underpinnings and judicial content of the Rule of Law.

Today, the Rule of Law is the foundation of good governance. This requires adherence to
constitutional supremacy, recognition that government and the governed are equal before the
law, acknowledgment that government itself is limited by the law and cannot engage in any
arbitrary exercise of power, and recognition that individuals are endowed with certain
inalienable rights that cannot be denied even by legitimately constituted governments. Today,
the Rule of Law is comprised of an intricate chain of fundamental ideas, which include
equality before the law; equal treatment before the law for government and the governed; the
independence of the judiciary; transparency, consistency, and accountability in the
administration of law; and the notions of equity, justice and fairness. Like all chains, the Rule
of Law is only as strong as its weakest link.

PRINCIPLES 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 identifies three principles which
together establish the rule of law.

According to A.V dicey rule of law has three means or we can say three principles which must
be followed so that that there will be supremacy of rule of law.

The three principles are -:

1. Supremacy of law

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2. Equality before law

3. Predominance of legal spirit

1. SUPREMACY OF LAW

Supremacy of law is one of the important principle among all three principles of rule of law.
Supremacy of law means that the law is the supreme authority on the land i.e. above
everything and no one is above the law.

Supremacy of the law is a fundamental concept in the western democratic order. The rule of
law requires both citizens and governments to be subject to known and standing laws. The
supremacy of law also requires generality in the law. This principle is a further development
of the principle of equality before the law. Laws should not be made in respect of particular
persons. As Dicey postulated, 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. Those laws ought not to be too easily changeable. Stable laws are a
prerequisite of the certainty and confidence which form an essential part of individual
freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot
be achieved if they are framed in too detailed a manner.

The idea of the supremacy of law requires a definition of law (to which the above principles
may go some way). This must include a distinction between law and executive administration
and prerogative decree. A failure to maintain the formal differences between these things
must lead to a conception of law as nothing more than authorisation for power, rather than the
guarantee of liberty, equally to all.

The rule of law ensures that individuals have a secure area of autonomy and have settled
expectations by having their rights and duties pre-established and enforced by law.

According to the first principle, A. V Dicey states that rule of law means there should be
lacking of arbitrariness or wide discretionary power. In other words every act will be
controlled by law. According to Dicey the English men were ruled by the law and law alone.

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In the words of Dicey, “Wherever there is discretion, 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.”

As Wade says the 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 supremacy of law also requires
generality in the law. This principle is a further development of the principle of equality
before the law. Laws should not be made in respect of particular persons.

As Dicey postulated, 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. Those laws ought not to be too easily changeable. Stable laws are a
prerequisite of the certainty and confidence which form an essential part of individual
freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot
be achieved if they are framed in too detailed a manner.

Dicey stated that the rule of law mean the absolute supremacy or pre dominance of regular
law as opposed to the influence of arbitrary power or wide discretionary power. according to
him the English men were ruled by the law and law alone. A man may be punished for breach
of law, but can be punished for nothing else.1

In his words:

Wherever there is discretion, there is a room for arbitrariness and that in a republic no less
the under a monarchy discretionary authority on the part of the government must mean
insecurity for legal freedom on the parts of his subjects.2

As wade3 says, “the rule of law requires that the government should be subject to the law,
rather than the law subject to the government"

According to this doctrine, no man can be arrested, punished or be lawfully made to suffer in
body or goods except by due process of law and for breach of law established in the ordinary
1The law of the constitution (1915) 202.

2IBID 184

3Wade & forsyth, administrative law (2009) 17-21,286-287

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legal matter before the ordinary courts of the land. Dicey described this principle as “the
central and most characteristic feature” of common law.

2. EQUALITY BEFORE LAW

Article 14 of the Indian constitution of India provides that the state shall not deny to any
person Equality before the law or the equal protection of the laws in the Territory of India.
Article 14 uses two expressions "Equality before law "which implies the absence of any
special privileges in favour of individuals and the subject of all classes to the ordinary law
and equal protection of the law which implies "Equal Treatment in Equal Circumstances"

"Equality before law" means that among equals the law should be equal and should be
equally administered, that like should be treated alike. The right to sue and be sued , to
prosecute and be prosecuted for the same kind of action should be same for all the citizens of
full age and understanding without distinction of race, religion, wealth ,social status or
political influence.

Article 14 permits classification but prohibits class legislation. Class legislation is that which
makes an improper discrimination by conferring particular privileges upon a class of person
arbitrarily selected from a large number of persons. Article 14 does not forbid reasonable
classification of persons, Objects, transactions by the legislature for the purpose of achieving
specific ends but the classification should be reasonable.

State of West Bengal v. Anwar Ali4:-

In the leading case the supreme court held that section 5(1) of the west Bengal special court
act 1856 ,contravened article 14 was void since it conferred arbitrary power on the
government to classify offences or cases at its pleasure .the majority held that the procedure

41952 AIR 75, 1952 SCR 284

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laid down by the act for the trial by the special courts varied substantially from the procedure
laid down on the trial of offences generally by the criminal procedure code.

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.

Thus, the simple rule is that the like should be treated alike and not that unlike should be
treated alike. Also, the Supreme court in Baheshar nath’s case5in 1959 observed that the
principle of the rule of law was an essential element of the guarantee of equality.

3. 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.

51959 AIR 149, 1959 SCR (1) 528

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RULE OF LAW UNDER INDIAN CONSTITUTION

In order to develop Indian democracy, rule of law has played a great role. At the time of
framing of Constitution, the framers had two options i.e. USA and England. Some of the
provisions were adopted from USA and some of them were adopted from England. Rule of
law was adopted from England by our constitutional fathers and many provisions were
incorporated in the Indian Constitution. 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’.

The bedrock of our democracy is the rule of law and that means we have to have an
independent judiciary, judges who can make decisions independent of the political winds that
are blowing.” -Caroline Kennedy

In order to understand the concept of rule of law, it is to be comprehended that the state is
governed not by the ruler or the nominated representatives of the people but by the law. The

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term ‘Rule of Law’ is nowhere defined in the Indian Constitution but this term is often used
by the Indian judiciary in their judgments. Rule of law has been declared by the Supreme
Court as one of the basic features of the Constitution so it cannot be amended even by the
constitutional amendment. Rule of law is seen as an integral part of good governance.

As per rule of law, it is required that the people should be governed by the accepted rules
rather than the decisions that are arbitrarily taken by the rulers. For this, it is essential to keep
in mind that the rules that are made should be general and abstract, known and certain and it
should apply equally to all individuals. Legal limitation on government is the essential
attribute of constitutionalism. Rulers are not above law under the concept of
constitutionalism, government power is divided with laws enacted by one body and
administered by another and for that an independent judiciary exists to ensure laws.

ROLE OF INDIAN JUDICIARY

Fundamental rights enshrined in part III of the constitution is a restriction on the law making
power of the Indian Parliament. It includes freedom of speech, expression, association,
movement, residence, property, profession and personal liberty. In its broader sense the
Constitution itself prescribes the basic legal system of the country. To guarantee and promote
fundamental rights and freedoms of the citizens and the respect for the principles of the
democratic State based on rule of law.

The popular habeas corpus case, ADM Jabalpur v. Shivakant Shukla6 is one of the most
important cases when it comes to rule of law.

6 (1976 ) 2 SCC 521

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In this case, the question before the court was “whether there was any rule of law in India
apart from Article 21”. This was in context of suspension of enforcement of Articles 14, 21
and 22 during the proclamation of an emergency. The answer of the majority of the bench
was in negative for the question of law. However Justice H.R. Khanna dissented from the
majority opinion and observed that “Even in absence of Article 21 in the Constitution, the
state has got no power to deprive a person of his life and liberty without the authority of law.
Without such sanctity of life and liberty, the distinction between a lawless society and one
governed by laws would cease to have any meaning…” Applied to the powers of the
government, this requires that every government authority which does some act which would
otherwise be a wrong (such as taking a man’s land), or which infringes a man’s liberty (as by
refusing him planning permission), must be able to justify its action as authorized by law -and
in nearly every case this will mean authorized directly or indirectly by Act of Parliament. The
secondary meaning of rule of law is that the government should be conducted within a
framework of recognized rules and principles which restrict discretionary powers.

The Supreme Court observed in Som Raj v. State of Haryana 7 that the absence of arbitrary
power is the primary postulate of Rule of Law upon which the whole constitutional edifice is
dependant. Discretion being exercised without any rule is a concept which is antithesis of the
concept. The third meaning of rule of law highlights the independence of the judiciary and
the supremacy of courts.

It is rightly reiterated by the Supreme Court in the case Union of India v. Raghubir Singh8
that it is not a matter of doubt that a considerable degree that governs the lives of the people
and regulates the State functions flows from the decision of the superior courts. Although,
complete absence of discretionary powers, or absence of inequality are not possible in this
administrative age, yet the concept of rule of law has been developed and is prevalent in
common law countries such as India. The rule of law has provided a sort of touchstone to
judge and test the administrative law prevailing in the country at a given time.

71990 AIR 1176, 1990 SCR (1) 535

8 1989 AIR 1933, 1989 SCR (3) 316

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Rule of law, traditionally denotes the absence of arbitrary powers, and hence one can
denounce the increase of arbitrary or discretionary powers of the administration and advocate
controlling it through procedures and other means. Rule of law for that matter is also
associated with supremacy of courts. Therefore, in the ultimate analysis, courts should have
the power to control the administrative action and any overt diminution of that power is to be
criticized. The principle implicit in the rule of law that the executive must act under the law
and not by its own fiat is still a cardinal principle of the common law system, which is being
followed by India.

In the common law system the executive is regarded as not having any inherent powers of its
own, but all its powers flow and emanate from the law. It is one of the vital principles playing
an important role in democratic countries like India. There is a thin line between judicial
review and judicial activism. Rule of law serves as the basis of judicial review of
administrative action. The judiciary sees to it that the executive keeps itself within the limits
of law and does not overstep the same. Thus, judicial activism is kept into check. However
there are instances in India where judiciary has tried to infringe upon the territory of the
executive and the legislature. A recent example of this would be the present reservation
scenario for the other backward classes. The judiciary propagated that the creamy layer
should be excluded from the benefits of the reservation policy, whereas the legislature and
the executive were against it.

As mentioned before Dicey’s theory of rule of law has been adopted and incorporated in the
Indian Constitution. The three arms judiciary, legislature and executive work in accordance
with each other. The public can approach the high courts as well as the Supreme Court in
case of violation of their fundamental rights. If the power with the executive or the legislature
is abused in any sorts, its malafide action can be quashed by the ordinary courts of law. This
can be said so since it becomes an opposition to the due process of law. Rule of law also
implies a certain procedure of law to be followed. Anything out of the purview of the relevant
law can be termed as ultra vires. No person shall be deprived of his life or personal liberties
except according to procedure established by law or of his property save by authority of law.
The government officials and the government itself is not above the law.

In India the concept is that of equality before the law and equal protection of laws. Any legal
wrong committed by any person would be punished in a similar pattern. The law adjudicated

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in the ordinary courts of law applies to all the people with equal force and bindingness. In
public service also the doctrine of equality is accepted. The suits for breach of contract etc
against the state government officials, public servants can be filed in the ordinary courts of
law by the public.

In Chief settlement Commr; Punjab v. Om Prakash9, it was observed by the supreme court
that, “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.”

In India, the meaning of rule of law has been much expanded. It is regarded as a part of the
basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by
Parliament. The ideals of constitution; liberty, equality and fraternity have been enshrined in
the preamble. Constitution makes the supreme law of the land and every law enacted should
be in conformity to it. Any violation makes the law ultra vires.

In Keshvanad Bharti Vs. Union of India10, the Supreme Court enunciated the rule of law as
one of the most important aspects of the doctrine of basic structure.

In Maneka Gandhi v. Union of India11, the Supreme Court declared that Article 14 strikes
against arbitrariness.

In Indira Nehru Gandhi Vs. Raj Narayan 12, Article 329-A was inserted in the Constitution
under 39th amendment, which provided certain immunities to the election of office of Prime
Minister from judicial review. The Supreme Court declared Article 329-A as invalid since it
abridges the basic structure of the Constitution.

91969 AIR 33, 1968 SCR (3) 655

101973 (4) SCC 225 AIR 1973 SC 1461

111978 AIR 597, 1978 SCR (2) 621

121975 AIR 2299, 1976 (2) SCR 347

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In the case of Binani Zinc Limited Vs. Kerala State Electricity Board and Ors(2009)13 Justice
S B sinha declare that “It is now a well settled principle of law that the rule of law inter alia
postulates that all laws would be prospective subject of course to enactment an express
provision or intendment to the contrary.”

In the case of Gadakh Yashwantrao Kankarrao v. BalasahebVikhe Patil 14 the ratio laid down
was “If the rule of law has to be preserved as the essence of the democracy of which purity of
elections is a necessary concomitant, it is the duty of the courts to appreciate the evidence
and construe the law in a manner which would sub serve this higher purpose and not even
imperceptibly facilitate acceptance, much less affirmance, of the falling electoral standards.
For democracy to survive, rule of law must prevail, and it is necessary that the best available
men should be chosen as people's representatives for proper governance of the country. This
can be best achieved through men of high moral and ethical values who win the elections on
a positive vote obtained on their own merit and not by the negative vote of process of
elimination based on comparative demerits of the candidates.”

In the case of Sukhdev v. Bhagatram15, Mathew J. declared that “Whatever be the concept of
the rule of law, whether it be the meaning given by Dicey in his The Law of the Constitution
or the definition given by Hayek in his Road to Serfdom and Constitution of liberty or the
exposition set-forth by Harry Jones in his The Rule of Law and the Welfare State, there is, as
pointed out by Mathew, J., in his article on The Welfare State, Rule of Law and Natural
Justice in Democracy, Equality and Freedom, substantial agreement is in juristic thought
that the great purpose of the rule of law notion is the protection of the individual against
arbitrary exercise of power, wherever it is found”. It is indeed unthinkable that in a
democracy governed by the rule of law the executive Government or any of its officers should
possess arbitrary power over the interests of the individual. Every action of the executive
Government must be informed with reason and should be free from arbitrariness. That is the
very essence of the rule of law and its bare minimal requirement. And to the application of
this principle it makes not difference whether the exercise of the power involves affection of
some right or denial of some privilege.”

132009 (1) SCC 195

14AIR 1994 SC 678, JT 1993 (6) SC 345

15AIR 1975 SC 1331, 1975 (30)

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In Secretary, State of Karnataka and Ors. v. Umadeviand Ors16, a Constitution Bench of this
Court has laid down the law in the following terms: “Thus, it is clear that adherence to the
rule of equality in public employment is a basic feature of our Constitution and since the rule
of law is the core of our Constitution, a court would certainly be disabled from passing an
order upholding a violation of Article 14 or in ordering the overlooking of the need to
comply with the requirements of Article 14 read with Article 16 of the Constitution.”

In the case of Amlan Jyoti Borooah [Link] of Assam17, it was held by S B Sinha that:
“Equitymust not be equated with compassion. Equitable principles must emanate from facts
which bythemselves are unusual and peculiar. A balance has to be struck and the Court must
be cautiousto ensure that its endeavour to do equity does not amount to judicial benevolence
oracquiescence of established violation of fundamental rights and the principles of Rule of
law.”

Moreover, In the case of Bachan Singh v. state of Punjab18 Justice Bhagwati has emphasized
that rule of law excludes arbitrariness and unreasonableness. To ensure this, he has suggested
that it is necessary to have a democratic legislature to make laws, but its power should not be
unfettered, and that there should be an independent judiciary to protect the citizens against
the excesses of executive and legislative power.

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 Shukla19

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

162006 (1) SCC 667

17C.A No. 387 Of 2009

18 AIR 1980 SC 898

19(1976) 2 SCC 521

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context relating to the proclamation of emergency where the enforcement of Articles 14, 21
and 22 were suspended.

RULE OF LAW AS THE BASIS OF ADMINISTRATIVE LAW

Rule of law is classical principle of administrative law. As a matter of fact this principle was
one of the principles that acted as impediment development of Administrative Law
principles. The irony further is that the rule of law is now an important part of modern
Administrative Law.

MEANING OF ADMINISTRATIVE LAW

The body of rules and procedures that organizes government and provides mechanisms for
redress of grievances as a result of decisions or actions of government. For lawyers its main
practical manifestation is seen in cases of Judicial review of administrative action.

The most significant and outstanding development of the 20th century is the rapid growth of
administrative law. It does not mean that there was no administrative law before this century.
For many years, in one form or the other, it has very much been in existence. Today, the state
is not merely a police state, exercising sovereign functions, but as a progressive democratic
state, it seeks to ensure social security and social welfare for the common man, regulates
industrial relations, exercises control over activities.

OBJECTIVES OF ADMINISTRATIVE LAW -

The laws of a society are a set of rules and principles that determine a system of society’s do
and don’ts, and the institutions that legislate and enforce the laws. The Administrative
Procedure Act is the governing law for federal administrative agencies. Most states also have
their own governing law for their state administrative agencies. These laws allow for the
creation of the rules and regulations, as well as the procedures necessary for those unhappy

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with the agencies or their decisions to seek remedies via appeal or complaint. They are
carried out with the same authority as the more well-known statutory laws, and so, as with
other areas of law, the skills of an experienced administrative law attorney are often required.

The public’s need for a professional in the administrative law practice area generally exists
when dealing with governmental agencies that provide some type of specific public benefit or
aid to individuals, and particularly when the benefit might be or has been terminated, limited
or outright denied. When an individual wants to appeal an administrative law decision or
determination, he must exhaust all of the options provided by the agency first, before he may
proceed to a non-administrative court.

An administrative law is implements following sub-section like:

Bankruptcy law, Boating Regulations, Business law, Children and the law, civil lawsuits,
cicil rights, Computer security law, customer right and protections, contract law, crime,
criminal law, Divorce and marriage law etc.

Agencies are authorized to enforce their regulations, so they also perform an adjudicatory
function. For example, the Bangladesh Government delegates authority to issue regulations to
independent agencies like ‘Dudok”. Similarly, state legislatures delegate authority to issue
and enforce regulations to state agencies and state departments. Local governments delegate
authority to issue and enforce regulations to local bodies.

KERNELS OF ADMINISTRATIVE LAW -:

1. Rule of law – Supremacy of law

2. Natural justice – Fairness and justness in law

3. Judicial Review – When administrative & legislative authorities are subject of review and
administrative discretion.

ADMINISTRATIVE LAW IN INDIA -:

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In India, the constitution is supreme with descretionary powers at the other side in england
the parliament is supreme. Law enacted by the parliament is authoritative and fully admired.
No person can challenge the validity of such law but only ultra vires statute can challenge
under which it was taken. Besides law enacted by the parliament is the highest form of law
and prevails over every other form of law. In india on the other hand by the written
constituion power of judicial review is on supreme court and high court the same can be
challenged as ultra vires. Testemonies of the validity of such challenges are also defined as;

1. The action must be taken in accordance with rules and regulation.

2. Rules, regulations and parent acts are also to be in consonance to the comnstitution.

3. Rules must be in accordance with relevent statues.

4. If challenge converted and accepted in amendment, such amendment should be confirmity

with basic structure20

RED LIGHT&GREEN LIGHT THEORY -:

The Red light theory and the Green light theory portray contrary views as to the extent and
object of Administrative law, here Red light theory says it is aim of administrative law as
being to control the state activities as to protect of the individuals and Green light theory says
it is an administrative law as existing the state meets certain policy objectives and
administrative law is considered a branch of public law, it deals with the decision-making of
administrative units of government. So an administrative law expanded greatly during the
twentieth century, as legislative bodies worldwide created more government agencies (for
example, tribunals, boards or commissions) to regulate the increasingly complex social,
economic and political spheres of human interaction.

20Kesavananda bharti vs. state of kerala (1973) 4 SC 225

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Red light theory - The Red Light Theories are those which have an aim of administrative law
as being to control the state activities as to protect of the individuals. Here placing the court is
the center of constitution. Court ruling different rules and regulations to protect of the
individual.

Emphasizing on the judicial control over the activities of the authorities it tends to believe
that power conferred may be misused. Approach of this theory is indirect, external and with
fear of action with arbitraries of the authorities.

Objectives of red light theory -The aim of administrative law as being to control the state
activities as to protect of the individuals,it means an administrative law must be set for
providing individual’s or people’s security or protection. Under an administrative law are set
only to ensure how people are more secure. If people affected by any crime or unsafe
situation, this administrative law will implement for judgment and punishment. Here court
sets those different acts (rules and regulations) for administration and court can judge the
crime and punish, if it is proved. And this process is set for protection of an individual.

For example, Fear is good. If from this fear, Supreme Court decision that gives all
Bangladeshis’ has the right to own guns. It helps protect us. But getting guns is risky. So this
decision would not be right. It is stunned to find that the decision is hardly the blanket
protection for gun ownership that the National Rifle Association and adamant gun rights
people claim and it is the sweeping defeat that those who want gun control lament. It offers
some real hope that a reasonable middle ground may be possible as Bangladesh gropes in
these polarized times for a solution to gun violence that protects the rights of gun owners and
public safety. So it is said that administrative law must be set for providing individuals or
people’s security and protection.

Law is superior over politics, For example, Hortal is a political activity of a political party.
It is essential for opponent party to create protection against government. But when opponent
party calls hortal frequently, it creates different problems for different sectors. Education
system hampered, business can not run, transportation system collapse, general public face
different problem regular living standard also hampered. So it has no doubt that hortal should

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not the only solution to create protection against government. In this situation law should be
emphasize over politics.

Green light theory - The Green Light Theory says it is an administrative law exits the state
meets certain policy objectives. It is tend to minimize the role of the courts and underplay the
existence of general principles. It wants to encourage efficiency in the governing process and
policy making.

It emphaisis on the direct and internal action means in total control. As red light theory
powers are given but they are under direct control of upper hands. Green light theory allows
interventions of the state in large public interest ensuring the rights of the citizen and
wellbeing of the state.

Objectives of green light theory - An administrative law as existing the state meets certain
policy objectives it is tend to minimize the role of the courts and underplay the existence of
general principles and it wants to encourage efficiency in the governing process and policy
making. Those policies a government should follow, an administrative law must indicate
those policies because it basically comes down not to resisting interventionism, but to make
the policy efficient and provide justice for individuals. This policy making system does not
want the courts to interfere with functions allocated by statute as this is to substitute in the
court for the rightful decision maker.

The red light theory focuses that law is merely a type of political discourse and is not superior
to administration and public administration is not a necessary evil but a positive good.
Administrative law is not to stop bad practices but to promote and facilitate good
administrative practices and that rule based adjudication is not necessarily the best way to do
this and liberty is to be promoted, but liberty in a collective sense.

In general, the objective for the media sphere is to support freedom of expression, diversity,
the independence and accessibility of the mass media, and to combat harmful elements in the
mass media. Media always follow some general rules and regulation and must remain neutral
for individual. For example, in a garment where thousand female employee works, suddenly

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for fire explosion two hundred workers died but sometimes it seems that media can not
telecast the actual news because of some political and power enforcement.

The public administration is not a necessary evil but a positive good. Administrative law is
not to stop bad practices but to promote and facilitate good administrative practices and that
rule based adjudication is not necessarily the best way to do this and liberty is to be
promoted, but liberty in a collective sense. The liberty that is only possible through
interventionist government action against homelessness. But sometimes politics are superior
to administrative law because of the bad implementation of political power. And the court
never stops this bad practice by ruling administrative law.

For example, In Bangladesh, there are some government retirement laws rules and
regulations for everyone that over 65 years person must take retirement. This situation it is
considered that he/she is not able to serve our country properly. In 2009, the chairman of
Gramen bank, Dr. Mohammad Youns was 67 years old. The government say that he is unable
to lead Gramen bank because government did not want him as a chairman of Gramen bank.
That’s good. But this is a bad implementation of political power when a 80 year old men was
set for president of Bangladesh to lead the whole country. But law says “law is equal for
everyone”. Is it not political powers superior to administrative law?

A government’s state their objectives vary in each country. But most objectives can be
classified as falling into one of five broad groups:

· Independence objectives

· Economic efficiency objectives

· Resource conservation objectives

· Stability objectives

· Equity objectives.

Bangladesh’s independence objectives are concerned with obtaining and preserving a

satisfactory degree of political and economic autonomy and independence implies that
neither depends on foreign aid to meet the basic needs of its population nor is susceptible to

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external political interference. Bangladesh’s economic efficiency objectives are concerned

with increasing the level of real national income and its growth rate over time and it is a very
complex concept and only some aspects of it will be discussed in this manual. Our
government intervention often distorts these signals, resulting in a mix-allocation of resources
within the economy. Bangladesh’s resource conservation objectives are concerned with
preserving the natural resource base in order to ensure long-term efficiency. Bangladesh’s
stability objectives are concerned with avoiding abrupt and large changes in incomes, in the
price and availability of domestically produced basic commodities and inputs, and in the
consequent need for foreign exchange to buy essential imports. Bangladesh’s equity
objectives are concerned with the fair distribution of income and wealth within society. So it
is said that it is an example of an administrative law as existing the state meets certain policy
objectives and is tend to minimize the role of the courts and underplay the existence of
general principles. But the red light theory says that those policy objectives are not superior
over administrative law.

ADMINISTRATIVE LAW & CONSTITUTIONAL LAW

Constitutional law and administrative law are both important legislations that govern the
various affairs of the State. To early English jurists there was virtually no difference between
administrative law and constitutional law. According to Keith, “it’s logically impossible to
distinguish administrative from constitutional law and all attempts to do so are artificial.”
Some jurists like Felix Frankfurter went a step ahead to call this exercise illegitimate and
exotic.

The confusion between administrative law and constitutional law in England is meagre due to
an unwritten constitution. Dicey observed the rules which were part of constitutional code in
other countries, flowed from ordinary law in England. However, in countries with a written
constitution there was an additional source of control over administrative action. A written
constitution yields control over all the organs of the body politic. While one may attempt to
distinguish the scope of administrative law from that of constitutional law but it’s impossible
to dissociate them both.

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Executive action in India is protected in several ways. For instance subordinate legislation is
expressly brought within the fold of Article 13 by including orders, bye-laws, regulations and
notifications within the definition of law. But it would be struck down if it’s ultra vires or in
violation of the Fundamental rights. A purely administrative action having no statutory basis
is void in case it breaches fundamental rights. Therefore the court can strike down any
administrative instruction or policy if it operates in prejudice of the constitutional scheme.

In case of statutory administrative actions there is an additional constitutional ground upon

which its validity may be challenged, especially if the legislative statute under which
administrative order has been made is in itself unconstitutional. Where the order in question
is quasi-judicial, it may be challenged on the orders, inter alia, that the order is
unconstitutional and that the legislative provision under which it has been made is also
against constitutional scheme. Constitution law, thus, is projected into the judicial review
chapter in administrative law. It can be observed that constitutionality of an administrative
provision concerns both administrative law and constitutional law, unlike statutes.

CONCLUSION

On a brief overview of the above discussion we can say that the supremacy of law is the aim,
rule of law is the best tool to achieve this aim. The court is also making efforts to link rule of
law with human rights of the people. The court is evolving strategy by which it can force the
government not only submit to law but also create conditions where people can develop
capacities to enjoy their rights in proper and meaningful way. It is the responsibility of the
public administration for effective implementation of rule of law on constitutional commands
which effectuate fairly the objective standards laid down by law.

Administrative law is a part of Indian constitution and doesn’t have any separate authority or
distinguished power. Jurisdiction of administrative law is within the ambit of constitutional
law only and restricted in certain matters. It derives powers from constitution only and
administers them for public interest.

So it is said that the main object of Administrative law is the operation and control of
administrative authorities. Administrative law deals with the structure, powers and function

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of the organs of administration, the limits of their powers, the methods and procedures
followed by them in exercising their powers and functions. The Red light theories are
implementing on the state activities as to protect of the individuals and Green light theories
are implementing on the state meets certain policy objectives and decision-making.

Every government servant holdingpublic power is as a trustee of the society and accountable
for due effect national goals. Although all the merits are unhurt in the concept of the Rule of
Law, the only Negative aspectsof the concept is that respect for law degenerates into rigidity
of legalism which is injurious tothe nation. 19 The Hon‟ble Supreme Court in number of
cases through its decision establishedJudicial Authority and developed the Principle of
Judicial Review which cannot be amended, curtailed or removed. Our Constitution adopted
the three principle of Rule of Law i.e. Equality before Law, Exclusion of Arbitrariness &
Supremacy of judiciary. In the modern era the discretionary powers is provided to the
authorities for running the society but some time the power are misused by the authorities
which effects and destroys the basic principles of the Society. If some reasonable restriction,
regulations and norms are created in exercise of such powers, these powers will efficiently
and effectively regulates the society. The Dicey concept “Rule of Law” is adopted by our
constitution, and this concept resulted into the success of our judicial system.

In the modern era the use of Discretionary power by the authorities is a need. The
discretionary power is against the Doctrine of Rule of Law. The balance between the two is
to be made and this can be done when the judiciary controls the misuse of discretionary
power by the Administration. The rule of harmonious Construction to remove the imbalance
between “Rule of law” & “Discretionary Power” should be applied. The rule of law in the
Indian society has not achieved the intended results is that the deeply entrenched values of
constitutionalism or abiding by the Constitution of India have not taken roots in the society.
Corruptions, Terrorism etc. are all antithesis to Rule of Law. In recent times, common law
traditions, the Constitution of India, and the perseverant role of the judiciary have contributed
to the development of rule of law. But on occasions we have slipped back into government by
will only to return sadder and wiser to the rule of law when hard facts of human nature
demonstrated the selfishness and egotism of man and the truth of the dictum that power
corrupts and absolute power corrupts absolutely. A few examples of how our judicial system
has upheld the rule of law and ensured justice is clearly seen in the creation of new avenues
seeking remedies for human rights violations through PIL pleas and promotion of genuine

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interventions by the judiciary in the areas of bonded and child labour, prostitution, clean and
healthy environment etc. but on the darker side there have been violations of fundamental
rights as well.

Hence, for maintenance of rule of law administrative law is required. Administrative law is a
custodian of rule of law which administers it by applying its power.

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