Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERSITY
Lucknow
Faculty of Law

PROJECT ON
RULE OF LAW IN THE REGULATION OF ADMINISTRATIVE
PROCESS

For
COURSE ON ‘ADMINISTRATIVE LAW’

Submitted by:

ARCHITA DAYAL
LL.M (III SEMESTER)
Academic Session: 2021-22

Under the Guidance of:

Dr. Vijeta Dua

(Assistant professor)

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 ACKNOWLEDGEMENT

I am highly indebted to Dr. Vijeta Dua for her guidance and constant supervision as well as
for providing necessary information regarding the assignment. I am thankful to her for
providing us such an interesting project.
I also want to thank my classmates for helping me in this assignment.

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 TABLE OF CONTENTS

 INTRODUCTION…………………………………………………………….......4

 CONCEPT OF RULE OF LAW…………………………………………………6

 MEANING OF RULE OF LAW…………………………………………….…...7

 MODERN CONCEPT OF RULE OF LAW……………………………………10

 RULE OF LAW AND THE INDIAN JUDICIARY……………………………11

 CONCLUSION……………………………………………………………….......14

 BIBLIOGRAPHY………………………………………………………………...16

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 1. INTRODUCTION
The Expression ‘Rule of Law’ has been derived from the French phrase ‘la Principle
de legality’. i.e., a government based on the principles of law. It plays an important
role in the administrative law. In simple words, it indicates the state of affairs in a
country where the law rules. It provides protection to the people against the arbitrary
action of the administrative authorities. It means supremacy of law or predominance
of law and essentially, it consists of values. The rule of law is a concept that
describes the supreme authority of the law over governmental action and individual
behaviour. It corresponds to a situation where both the government and individuals
are bound by the law and comply with it.
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 government acts
according to the principle of rule of law then individual liberty and right can be
protected in better way. The principle implicit in the rule of law that executive must
act under the law, and not by its own decree or fiat, is still a cardinal principle of 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, a principle which plays
such a vital role in all democratic countries.1
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 grundnorm 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 term ‘rule of Law’ is not defined in the Indian
Constitution.
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, the government power is divided with

1
Shubham Mongia, Rule of Law, available at https://www.legalserviceindia.com, last seen on 15/12/2021

4
 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.
Rule of law is the classical principle of administrative law. As a matter of fact this
principle was one of the principles that acted as an 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 the 19th Century. Dicey defined
Rule of Law as the “absolute supremacy or predominance of regular law as opposed
to the influence of arbitrary power and excludes the existence of prerogatives or even
wide discretionary power on the part of government”. Dicey asserted that wherever
there is discretion, there is room for arbitrariness which leads to legal insecurity of
citizens. Other aspect of Dicey’s Rule of Law is equality before law or equal
subjection of ordinary law to all class of people by ordinary court. Whereas he
asserted that the French Droit Administratif is a bad law where there are separate
tribunals for different matters, he further insisted that England hadn’t any of similar
or same system existed. The view of Dicey about the equality and dominance of law
over arbitrariness sets standard of the most civilized Constitutions of the world.
However, the later views on droit administratif impaired the development of
Administrative law at very early stage where it required a support. The
Administrative Law was, for almost all the time, including Dicey’s dominion, was
present, but, was never recognized as it should have been for a satisfactory
development in common law countries. The presence of Administrative Law and its
inevitable nature is clear by the recognition of some of the scholar’s contemporary to
Dicey. Maitland was one of those scholars who have recognized the presence of
Administrative Law in England. It is also evident that the presence of Administrative
Law was substantial but was ignored by Dicey in his early era. The famous case of
Board of Education v. Rice2 and Local Government Board v. Arlidge3 affirmed the

2
1911 AC 179
3
1915 AC 129

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 practice of Administrative Law in England. It is evident that it is after this case that
Dicey realized the presence of Administrative Law in a positive form. He however
maintained that the rule of law must be preserved. The rule of law, as propounded by
Dicey has its own advantages and disadvantages. Apart from setting the base for all
common law country, it has also provided the base for Administrative law. It is a
method by executive in general and government in particular is kept in control
against the misuse of wide power vested in them. It also eliminates unreasoned
discretion, bias and arbitrariness in governance that emanates from wide power of
executive. Moreover, the rule of law gives Supremacy of Courts over all other
functionaries of State. This leads to the further curbing where government can’t be
judged in his own cause. Dicey’s submission of rule of law has its disadvantages as
well. Where the Dicey’s rule of law eliminated presence of arbitrary power in
government, it also eliminated the “wide discretionary” power from the government.
The protest of Dicey in presence of wide discretionary power in government would
lead to the failure of policies and implementation of law as required apart from bad
assessment before the formulation of policy. The biggest mistrust being the efficacy
of judiciary in managing affairs of the state in the Dicey’s Rule of Law.4

2. CONCEPT OF RULE OF LAW

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.” 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

4
Esh Gupta, Rule of Law in India, 1 International Journal of Legal Science and Innovation (2019), available at
https://www.ijlsi.com, last seen on 15/12/2021

6
 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.
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. 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.

3. MEANING OF RULE OF LAW

The term “Rule of Law” is taken from England. It means that no man is above the
law and that 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 a man or a society must be governed by Law. The
expression “rule of law” explains a state of affairs in which everything must be done
according to the law. It is a state of affairs in which there are legal barriers to
governmental arbitrariness and there are available legal safeguards for the protection
of the individuals. According to Prof. Dicey, rule of law has three principles which
must be followed so that there will be supremacy of rule of law. 5 The three principles
are:

i. Supremacy of law: According to the this 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. In the
words of Dicey, “Wherever there is discretion, there is room for arbitrariness
5
Takwani C.K, “Lectures on Administrative Law” Third Edition Reprinted, 2004, pp17, Eastern Book
Company, Lko

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 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 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.

ii. Equality before Law: The attribute of “Rule of Law” Dicey stated was
“equality before the law and equal subjection of all classes to the ordinary law
of the land administered by the ordinary law courts.” The second principle
emphasizes everyone, including the government, irrespective of rank, shall be
subject to the same law and courts. This element is interpreted to be
misguided and facing bundle of criticisms. In fact, by reason of maintaining
the law and order in the society, there are actually exceptions such as the
Crown, police, Members of Parliament. The Crown may exercise prerogative
powers which may defeat the rights of individuals. The police have powers
over and above the citizen. Members of Parliament have immunity from the
law of defamation. Prof. Dicey states that, there must be equality before the
law or equal subjection of all classes to the ordinary law of the land. He
criticised the French legal system of Droit Administratif in which there were
separate administrative tribunals for deciding the cases of State Officials and
citizens separately.6

iii. Predominance of Legal Spirit: The Third meaning of the rule of law is that
the general principles of the constitution are the result of juridical decisions
determining file rights of private persons in particular cases brought before
the Court. Dicey states that many constitutions of the states (countries)
guarantee their citizens certain rights (fundamental or human or basic rights)
6
Anthony Valcke, The Rule of Law: Its Origins and Meanings (2012), available at SSRN, http://ssrn.com, last
seen on 15/12/2021

8
 such as right to personal liberty, freedom from arrest etc. According to him
documentary guarantee of such rights is not enough. Such rights can be made
available to the citizens only when they are properly enforceable in the
Courts. Rule of law establishes an effective control over the executive and
administrative power. The view of Dicey as to the meaning of the Rule of
Law has been subject of much criticism. The whole criticism may be summed
up as follows. Dicey has opposed the system of providing the discretionary
power to the administration. In his opinion providing the discretionary power
means creating the room for arbitrariness, which may create as serious threat
to individual freedom. Now, it has been clear that providing the discretion to
the administration is inevitable. The opinion of Dicey, thus, appears to be
outdated as it restricts the Government action and fails to take note of the
changed conception of the Government of the State. Dicey has failed to
distinguish discretionary powers from the arbitrary powers. Arbitrary power
may be taken as against the concept of Rule of Law. In modern times in all
the countries including England, America and India, the discretionary powers
are conferred on the Government.7 The present trend is that the discretionary
power is given to the Government or administrative authorities, but the statute
which provides it to the Government or the administrative officers lays down
some guidelines or principles according to which the discretionary power is to
be exercised. The administrative law is much concerned with the control of
the discretionary power of the administration. According to Dicey, the rule of
law requires that every person should be subject to the ordinary courts of the
country. He criticised the system of Droit administratif which is prevailing in
France. In France, there are two types of courts Administrative Court and
Ordinary Civil Courts. The disputes between the citizens and the
Administration are decided by the Administrative courts while the other
cases, i.e. the disputes between the citizens are decided by the Civil Court.
Dicey was very critical to the separation for deciding the disputes between the
administration and the citizens. According to Dicey the Rule of Law requires
equal subjection of all persons to the ordinary law of the country and absence
of special privileges for person including the administrative authority. This

7
Alok Kumar Yadav, Rule of Law, 4 International Journal of Law and Legal Jurisprudence Studies, available at
http://ijlljs.in, last seen on 15/12/2021

9
 proportion of Dicey does not appear to be correct even in England. Several
persons enjoy some privileges and immunities. Third meaning given to the
rule of law by Dicey that the constitution is the result of judicial decisions
determining the rights of private persons in particular cases brought before the
Courts, he developed a philosophy to control the Government and Officers
and to keep them within their powers. The rule of law established by him
requires that every action of the administration must be backed by law or
must have been done in accordance with law. The role of Dicey in the
development and establishment of the concept of fair justice cannot be
denied. The concept of rule of law, in modern age, does not oppose the
practice of conferring discretionary powers upon the government but on the
other hand emphasizing on spelling out the manner of their exercise. It also
ensures that every man is bound by the ordinary laws of the land whether he
is a private citizen or a public officer. Thus the rule of law signifies that
nobody is deprived of his rights and liberties by an administrative action. The
administrative authorities perform their functions according to the law and not
arbitrarily, the laws of the land are not unconstitutional and oppressive and
that the supremacy of courts is upheld and judicial control of administrative
action is fully secured.

4. MODERN CONCEPT OF RULE OF LAW

According to this concept, Rule of Law implies that the functions of government in a
free society should be so exercised as to create conditions in which the dignity of
man as an individual is upheld. For it not only recognition of certain civil or political,
social, economic, educational and cultural conditions which are essential for the full
development of the personality but the modern concept of rule of law is to create
those circumstances in which the dignity of a man can be protected. 8 The modern
concept of rule of law is to make government so effective that it can protect the
individual liberty. K.C Davis gives seven principles of the term rule of law:
i. Law and order
ii. Fixed rule

8
Vivek Ranjan, Rule of Law and Modern Administrative Law, available at http://ssrn.com, last seen on
15/12/2021

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 iii. Due process of law or fairness
iv. Observance of principle of natural justice
v. Elimination of discretionary power
vi. Preference for Judges and Ordinary courts
vii. Judicial Review of administrative actions.

5. RULE OF LAW AND THE INDIAN JUDICIARY

Fundamental rights enshrined in Part III of the Indian 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, i.e. to guarantee and promote fundamental rights and freedoms of the
citizens and the respect for the principles of the democratic State based on the rule of
law. The popular habeas corpus case, ADM Jabalpur v. Shivkant Shukla9 is one of
the most important cases when it comes to rule of law. 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 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.
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 10, 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 Singh 11 that it
9
AIR 1976 SC 1207
10
1990 AIR 1176
11
1989 AIR 1933

11
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. 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. 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 i.e. the 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. The government

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 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. In public service also the doctrine
of equality is accepted. The suits for breach of contract against the state government
officials, public servants can be filed in the ordinary courts of law by the public. In
India, the meaning of rule of law has been 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 i.e. liberty, equality and fraternity have
been enshrined in the preamble. In Kesavananda Bharati v. State of Kerala12, 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 India 13, the Supreme Court
declared that Article 14 strikes against arbitrariness. In Indira Nehru Gandhi (Smt.) v.
Raj Narain & Anr14, Article 329-A was inserted in the Indian 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.
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. In the case of Amlan Jyoti Borooah v.
State of Assam15, it was held by S B Sinha that: “Equity must not be equated with
compassion. Equitable principles must emanate from facts which by themselves are
unusual and peculiar. A balance has to be struck and the Court must be cautious to
ensure that its endeavour to do equity does not amount to judicial benevolence or
acquiescence of established violation of fundamental rights and the principles of Rule
of law.” Moreover, In the case of Bachan Singh v. State of Punjab 16, Singh 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 and there should be an independent judiciary to
12
AIR 1973 SC 1461
13
1978 AIR 597
14
1975 AIR 1590
15
(2009) 3 SCC 227
16
AIR 1980 SC 898

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 protect the citizens against the excesses of executive and legislative power. Hence, it
is quite evident that the concept of rule of law is gaining importance and attention
and judicial efforts are made to make it stronger.

6. CONCLUSION
The rule of law is the central theme to all the democratic and civilized society of this
world. The concept forms the basic framework of all the legal system. It is one of the
tools by which the unfettered power of executive is kept under control through
supremacy of Courts. Supremacy of Law is the aim and 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 to 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 the law. 17
Every government servant holding public power is as a trustee of the society and
accountable for due effect national goals. The Supreme Court in the number of cases
through its decision established Judicial 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 sometimes, these powers 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 regulate the society. A.V
Dicey’s concept of “Rule of Law” is adopted by our constitution, and this concept
resulted into the success of our judicial system. 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 due to the deeply

17
State of Punjab v. G.S.Gill, (1997) 6 SCC 129

14
entrenched values of constitutionalism. 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. 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 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.
Our forefathers envisioned a Constitutional India, where every citizen is treated with
equality before the law and his or her liberty is not infringed upon. They envisioned
an India that is free, open and democratic, rid of arbitrary power and ineffectual
existence of Rule of law. The Constitution and its makers’ vision will stay intact and
face the test of time. It is now upon the generations to come that the vision converts
into a reality. In conclusion, to reflect upon the significance of rule of law, BR
Ambedkar once said “Law and order are the medicine of the body politic and when
the body politic gets sick, medicine must be administered.”

BIBLIOGRAPHY

15
 STATUTE:
1. THE CONSTITUTION OF INDIA, 1949

 BOOK:
1. Takwani C.K, “Lectures on Administrative Law” Third Edition Reprinted, 2004,
pp17, Eastern Book Company, Lko

 JOURNALS:

1. Alok Kumar Yadav, Rule of Law, 4 International Journal of Law and Legal
Jurisprudence Studies, available at http://ijlljs.in, last seen on 15/12/2021
2. Anthony Valcke, The Rule of Law: Its Origins and Meanings (2012), available at
SSRN, http://ssrn.com, last seen on 15/12/2021
3. Esh Gupta, Rule of Law in India, 1 International Journal of Legal Science and
Innovation (2019), available at https://www.ijlsi.com, last seen on 15/12/2021

 WEBSITES:

1. Vivek Ranjan, Rule of Law and Modern Administrative Law, available at

http://ssrn.com, last seen on 15/12/2021
2. Shubham Mongia, Rule of Law, available at
https://www.legalserviceindia.com, last seen on 15/12/2021

16