ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
AMITY LAW SCHOOL LUCKNOW
ADMINISTRATIVE LAW
DOCTRINE OF RULE OF LAW
SUBMITTED TO:
SUBMITTED BY:
MR. ASHUTOSH SHUKLA
MAYURIGUPTA B.A;LL.B(H) ;IV(B) A8111111069
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
ACKNOWLEDGEMENT
The assignment work bears the imprint of many people, and I express my gratitude to all those who have helped me and rendered their help in all the possible ways in a completion of my assignment. No work can be successful without the guidance and blessing of elders and this work is no exception. It is a matter of immense pleasure to express my gratitude to my faculty Hon’ble Mr. Ashutosh Shukla for his guidance and excellent insights which gave direction and focus to this paper. I thank him for lending his precious time in making this assignment an authentic piece of work. I also owe sincere gratitude to the staff at library for always helping in the process of finding material and other sources for research. I am very grateful to my seniors and all the individuals involved in the subgroup for their contributions and assistance in compiling this assignment and the recommendations that go with it: they are the outcome of an open, interactive and creative cooperation. I also thank social networking site for searching the required information in precise and as per needed. How I can forget to give credit and my satisfaction to my friends.. My sense of gratitude is due to AMITY LAW SCHOOL, LUCKNOW. At last, I express my heartfelt gratitude to the God Almighty, without whose blessing and motivation, the completion of this assignment would have been impossible. Thanks to all.......
Mayuri Gupta
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
CONTENTS
INTRODUCTION......................................................................4 SUPREMACY OF LAW...........................................................5 EQUALITY BEFORE LAW.....................................................6 PREDOMINANCE
OF
LEGAL
SPIRIT/JUDGE-MADE
CONSTITUTION.......................................................................7 DEVELOPMENT OF RULE OF LAW IN INDIA...................8 CONCLUSION..........................................................................9
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
INTRODUCTION "The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King"1.
– Sir Edward Coke2
Rule of law is one of the basic principles of English Constitution accepted in the United States and Indian Constitution. Originated by Sir Edward Coke, it is the entire basis of administrative law. Against the King, he maintained successfully that the King should be under God and the Law, and established the supremacy of law against the executive. This theory of Coke was further developed by A.V. Dicey in his classic work on the British Constitution “The Law and the Constitution” published in the year 1885.3 Dicey believed the rule of law to be one of the fundamental principles of the English legal system and in the said book he attributed three distinct meanings/ideas to the doctrine: I. II. III.
Supremacy of Law Equality before Law Predominance of Legal Spirit/Judge-made Constitution
Dicey asserted that the above mentioned features existed in the British Constitution.
1 Proclamations (1610) 77 ER 1352 2 Sir Edward Coke, Chief Justice in King James I’s reign, the originator of the concept of Rule of Law. 3 DICEY, A.V., INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, CHAPTER 4 (X ed.)
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
SUPREMACY OF LAW
According to Dicey, the rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power. It excludes the existence of arbitrariness, of prerogative or even wide discretionary power on the part of the government. According to him, the Englishmen were ruled by the law and law alone. A man may be punished for a breach of law, but can be punished for nothing else.4 In his words: 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 subject.5 As Wade6 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 a breach of law established in the ordinary legal manner before the ordinary courts of the land. Dicey describes this principle as ‘the central and the most characteristic feature’ of common law.7
4 The Law of the Constitution (1915) 202. 5 Ibid, 184. 6 Wade & Forsyth, Administrative Law (2009) 17-21, 286-287. 7 Takwani, C. K; Lectures on Administrative Law; p. 20.
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
EQUALITY BEFORE LAW
Dicey stated that there must be equality before the law or the equal subjection of all the classes to the ordinary law of the land administered by the ordinary law courts. According to him, in England, all persons were subject to one and the same law, and there were no separate tribunals or special courts for officers of the government and other authorities. He criticised the French legal system of droit administratif in which there were distinct administrative tribunals for deciding cases between the officials of the State and the citizens. He believed that the exemption of the civil servants from the jurisdiction of the ordinary courts of law and providing them with special tribunals was the negation of equality. He proclaimed8: With us every official from the Prime Minister down to a constable or a collector of taxes is under the same responsibility of every act done without legal justification as any other citizen. Dicey stated9 that any encroachment on the jurisdiction of the courts and any restriction on the subject’s unimpeded access to them are bound to jeopardise his rights. Lord Dennings observed,“Our English Law does not allow a public officer to shelter behind a droit administratif.”10
8 Supra 4. 9 V.G.Ramachandran, Administrative Law (1984) 6. 10 Ministry of Housing and Local Govt. v. Sharp, (1970)2 QB 223, 226: (1970) 2 WLR 802 (CA).
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
JUDGE-MADE CONSTITUTION
Dicey stated that in many countries rights such as right to personal liberty, freedom from arrest freedom to hold public meetings, etc are guaranteed by a written Constitution; in England, it is not so. Those rights are the result of judicial decisions in concrete cases which have actually arisen between the parties. Thus, Dicey emphasised the role of the courts of law as guarantors of liberty and suggested that the rights would be secured more adequately if they were enforceable in the courts of law than by mere declaration of those rights in document, as in the latter case they can be ignored, curtailed or trampled upon. He stated: The law of the Constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequences, of the rights of individuals, as defined and enforced by the courts. There is in the English Constitution an absence of those declarations or definitions of rights so dear to foreign constitutionalists...Our Constitution, in short, is a judge-made Constitution and it bears on its face all the features, good and bad, of a judge-made law. The British Constitution though largely unwritten, is based on the separation of powers. Mere incorporation or inclusion of certain rights in the written Constitution is of little value in the absence of effective remedies of protection and enforcement. Dicey propounded: Habeas Corpus Acts declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty.11
11 The Law of the Constitution (1915) 195.
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
DEVELOPMENT OF RULE OF LAW IN INDIA
The rule of law in India has been a platform for all Administrative Action and judicial review. Supreme Court has propounded the idea in many cases like Bachan Singh v. State of Punjab12 and A.D.M Jabalpur13. A significant derivative of Rule of Law in Administrative Law is Judicial Review. Judicial review is very important part of Indian Administrative system where it is considered as part of Basic Structure Doctrine. The process of judicial review keeps the unreasonable and arbitrariness under control. The absence of arbitrary power is first essential rule of law on which whole Constitutional structure is based.14 In the case of Golaknath v. State of Punjab15 it was held that rule of law under the constitution serves the needs of people without undoubtedly infringing their rights. It recognises social reality and adjusts to social requirement as required time to time. In A.K. Kraipak v. Union of India16 it was held that under our constitution the rule of law pervades over entire field of administration and every organ of the state is regulated by the rule of law accepted by our Constitution. In State of Punjab v. Khanchand17 it was held that rule of law require that any power of officer is subject to power of Court. In the case of Zahira Habibullah v. State of Gujrat18 it was held that the rule of law win administration is closely related to human rights protection. The binding nature of judgment of court is considered to be essential part of rule of law.19
12 AIR1982 SC 1325, para 9 13 AIR 1976 SC 1207,para 220 14 Jaisinghani v. Union of India, AIR1967 SC 1643 15 AIR 1967 SC 1836 16 AIR 1970 SC 150 17 AIR 1974 SC 543 18 AIR 2004 SC 3114 19 Darayo vs State of UP, AIR 1967 SC 1457.
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ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
CONCLUSION
The rule of law is central theme to all democratic and civilized society of this world. The concept forms the basic framework of all legal system. It is one of the tools by which the unfettered power of executive is kept under control through supremacy of Courts. Though the rule derives from common law system, particularly from Dicey and it met terrible opposition due to other option of much efficient system of Droit Administratif, it still forms the backbone of all civilized legal system of world. The rule of law and supremacy therein, however, shouldn‟t be the only principle engraved in a legal system. This further becomes true when the legal system has large domain of implementation and further when there are expertise require in various domain for the several issues. In conclusion, a fine system and a well homogenized solution of rule of law and Droit Administratif is the most optimum solution for the efficient dispute resolution system. The two systems shouldn‟t be staged inferior to one another and basic constitutional principles must be followed for the most optimum solution.
BIBLIOGRAPHY 9
ASSIGNMENT ON THE DOCTRINE OF RULE OF LAW
C.K.TAKWANI; LECTURES ON ADMINISTRATIVE LAW
M.P.JAIN; ADMINISTRATIVE LAW
M.P.JAIN; INDIAN CONSTITUTIONAL LAW
J.N.PANDEY; THE CONSTITUTIONAL LAW OF INDIA
www.indiankanoon.com
www.scconline.com
www.legaltrigger.com
www.sscnonline.com
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