RULE OF LAW AND ADMINISTRATIVE LAW
Meaning and Origin:
• The rule of law is a product of centuries of the struggle of the people for the recognition of their inherent rights. In classical Greece, Aristotle wrote that “law should be the final sovereign”.
• In 1215, the Magna Carta checked in the corrupt and whimsical rule of King John by declaring that the government should not proceed except in accordance with the law of the land.
• During the thirteenth century, Thomas Aquinas argued that the rule of law represents the natural order of God as ascertained through divine inspiration and human resource.
• In the seventeenth century, the English jurist Sir Edward Coke asserted that the “king ought to be under no man, but under God and the law.”
• Despite its ancient history, the rule of law is not celebrated in all quarters.
• The English philosopher Jeremy Bentham described the rule of law “nonsense on stilts.”
• The twentieth century has seen political leaders who have oppressed disfavored persons or groups, without warning or reason, governing as if no such thing as rule of law existed
• The most famous exposition of the concept of rule of law has been laid down by A.V. Dicey (Law of the Constitution) who identifies three principles which together establish the rule of law:
• The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power.
• Equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and
• The law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts
Criticisms:
• Dicey’s concept has been criticized because of the predominance of ordinary laws and the absence of arbitrary power.
• Discretionary power is a must when it comes to the application of laws by governmental agencies like impartial and independent tribunals.
• Due to these limitations, the rule of law still remains a cardinal principle of every democratic government.
• It is true that delegated legislation and administrative jurisdiction are both the worst enemies of the rule of law.
• The development of delegated legislation and administrative justice, however, are not only inevitable but also, with proper modification and safeguards, desirable.
• Dicey’s notions may have been criticized but the main idea behind the rule of law still holds i.e. protection of individual rights and liberties.
• For a democratic government, the rule of law is a basic requirement; and for the maintenance of the rule of law, there must be an independent and impartial judiciary.
• It is embodied in the concept of rule of law that equality before the law or equal protection of laws is ensured to all citizens, and every citizen is protected from the arbitrary exercise of power by the state.
• Thus, in a state professing the rule of law, the aim should be to provide for a system which secures to its citizens’ adequate procedure for the redress of their grievances against the state before forums, which are able to administer justice in an impartial manner without any fear or favour.
• Each country has devised its own system to ensure the maintenance of the rule of law. The rule of law pervades the entire field of administration and regulates every organ of the state.
Rule of law in India:• The Constitution of India specifically provides that the state shall not deny to any person equality before the law or the equal protection of the laws.
• The concept of rule of law would lose all its vitality if the instrumentalities of the State are not charged with the duties of discharging their functions in a fair and just manner.
• It has been held that the rule of law pervades the constitution as its basic feature and cannot be taken away even by an amendment of the constitution.
• In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits.
• This means that decision should be made by the application of known principles and rules and, in general, such decisions should be predictable and citizens should know where he stands.
• The Constitution lays down in Part IV the directive principle of state policy.
• It enjoins the State to bring about a social order in which justice – social, economic and political – shall govern all the institutions of national life.
• The rule of law promotes the lofty ideals enshrined in the directive principles of state policy and draws its sustenance from the higher judiciary, which upholds the constitutionality of laws keeping in view the philosophy of these ideals.
• A growing threat to the rule of law is coming from undue delay in judicial proceedings. In order to ensure the rule of law, the system must, therefore, ensure effective and expeditious remedies against the violation of laws.
Basic Principles of the Rule of Law:
• Law is Supreme, above everything and everyone. Nobody is above the law.
• All things should be done according to law and not according to whim.
• No person should be made to suffer except for a distinct breach of law.
• Absence of arbitrary power being the heart and soul of the rule of law.
• Equality before the law and equal protection of the law.
• Discretionary power should be exercised within reasonable limits set by law.
• Adequate safeguard against executive abuse of powers.
• Independent and impartial Judiciary.
• Fair and Just Procedure.
• Speedy Trial
• The rule of law is a product of centuries of the struggle of the people for the recognition of their inherent rights. In classical Greece, Aristotle wrote that “law should be the final sovereign”.
• In 1215, the Magna Carta checked in the corrupt and whimsical rule of King John by declaring that the government should not proceed except in accordance with the law of the land.
• During the thirteenth century, Thomas Aquinas argued that the rule of law represents the natural order of God as ascertained through divine inspiration and human resource.
• In the seventeenth century, the English jurist Sir Edward Coke asserted that the “king ought to be under no man, but under God and the law.”
• Despite its ancient history, the rule of law is not celebrated in all quarters.
• The English philosopher Jeremy Bentham described the rule of law “nonsense on stilts.”
• The twentieth century has seen political leaders who have oppressed disfavored persons or groups, without warning or reason, governing as if no such thing as rule of law existed
• The most famous exposition of the concept of rule of law has been laid down by A.V. Dicey (Law of the Constitution) who identifies three principles which together establish the rule of law:
• The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power.
• Equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and
• The law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts
Criticisms:
• Dicey’s concept has been criticized because of the predominance of ordinary laws and the absence of arbitrary power.
• Discretionary power is a must when it comes to the application of laws by governmental agencies like impartial and independent tribunals.
• Due to these limitations, the rule of law still remains a cardinal principle of every democratic government.
• It is true that delegated legislation and administrative jurisdiction are both the worst enemies of the rule of law.
• The development of delegated legislation and administrative justice, however, are not only inevitable but also, with proper modification and safeguards, desirable.
• Dicey’s notions may have been criticized but the main idea behind the rule of law still holds i.e. protection of individual rights and liberties.
• For a democratic government, the rule of law is a basic requirement; and for the maintenance of the rule of law, there must be an independent and impartial judiciary.
• It is embodied in the concept of rule of law that equality before the law or equal protection of laws is ensured to all citizens, and every citizen is protected from the arbitrary exercise of power by the state.
• Thus, in a state professing the rule of law, the aim should be to provide for a system which secures to its citizens’ adequate procedure for the redress of their grievances against the state before forums, which are able to administer justice in an impartial manner without any fear or favour.
• Each country has devised its own system to ensure the maintenance of the rule of law. The rule of law pervades the entire field of administration and regulates every organ of the state.
Rule of law in India:• The Constitution of India specifically provides that the state shall not deny to any person equality before the law or the equal protection of the laws.
• The concept of rule of law would lose all its vitality if the instrumentalities of the State are not charged with the duties of discharging their functions in a fair and just manner.
• It has been held that the rule of law pervades the constitution as its basic feature and cannot be taken away even by an amendment of the constitution.
• In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits.
• This means that decision should be made by the application of known principles and rules and, in general, such decisions should be predictable and citizens should know where he stands.
• The Constitution lays down in Part IV the directive principle of state policy.
• It enjoins the State to bring about a social order in which justice – social, economic and political – shall govern all the institutions of national life.
• The rule of law promotes the lofty ideals enshrined in the directive principles of state policy and draws its sustenance from the higher judiciary, which upholds the constitutionality of laws keeping in view the philosophy of these ideals.
• A growing threat to the rule of law is coming from undue delay in judicial proceedings. In order to ensure the rule of law, the system must, therefore, ensure effective and expeditious remedies against the violation of laws.
Basic Principles of the Rule of Law:
• Law is Supreme, above everything and everyone. Nobody is above the law.
• All things should be done according to law and not according to whim.
• No person should be made to suffer except for a distinct breach of law.
• Absence of arbitrary power being the heart and soul of the rule of law.
• Equality before the law and equal protection of the law.
• Discretionary power should be exercised within reasonable limits set by law.
• Adequate safeguard against executive abuse of powers.
• Independent and impartial Judiciary.
• Fair and Just Procedure.
• Speedy Trial
Rule of Law and Indian Constitution:
• In India the Constitution is supreme. The preamble of our Constitution clearly sets out the principle of rule of law.
• It is sometimes said that planning and welfare schemes essentially strike at rule of law because they affect the individual freedoms and liberty in many ways.
• But the rule of law plays an effective role by emphasizing upon fair play and greater accountability of the administration.
• It lays greater emphasis on the principles of natural justice and the rule of speaking order in an administrative process in order to eliminate administrative arbitrariness.
Case laws:
• In an early case, S.G. Jaisinghani V. Union of India and others the Supreme Court portrayed the essentials of rule of law in a very lucid manner.
• It observed: “The absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based.
• In a system governed by rule of law, discretion, when conferred upon executive authorities, must be continued within clearly defined limits.
• The rule of law from this points of view means that decisions should be made by the application of known principles and rules and, in general, such decision should be predictable and the citizen should know where he is.
• If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law”.
The Supreme Court in a case, namely, Supreme Court Advocates on Record Association v. Union of India 10, reiterated that the absence of arbitrariness is one of the essentials of rule of law. The Court observed.
• “For the rule of law to be realistic there have to be rooms for discretionary authority within the operation of rule of law even though it has to be reduced to the minimum extent necessary for proper, governance, and within the area of discretionary authority, the existence of proper guidelines or norms of general application excludes any arbitrary exercise of discretionary authority.
• In such a situation, the exercise of discretionary authority in its application to individuals, according to proper guidelines and norms, further reduces the area of discretion, but to that extent discretionary authority has to be given to make the system workable.
Conclusion:
• The recent expansion of the rule of law in every field of administrative functioning has assigned it is a place of special significance in the Indian administrative law.
• The Supreme Court, in the process of interpretation of rule of law vis-à-vis operation of administrative power, in several cases, emphasized upon the need of fair and just procedure, adequate safeguards against any executive encroachment on personal liberty, free legal aid to the poor and speedy trial in criminal cases as necessary adjuncts to rule of law.
• Giving his dissenting opinion in the Death penalty case, Mr. Justice Bhagwati explains fully the significance of rule of law in the following words:
• The rule of law excludes arbitrariness, its postulate is ‘intelligence without passion’ and reason free from desire.
• Wherever we find arbitrariness or unreasonableness there is a denial of the rule of law.
• Law in the context of rule of law does not mean any law enacted by legislative authority, howsoever arbitrary, despotic it may be, otherwise even in dictatorship it would be possible to say that there is rule of law because every law made by the dictator, however arbitrary and unreasonable, has to be obeyed and every action has to be taken in conformity with such law.
• In such a case too even where the political set-up is dictatorial it is the law that governs the relationship between men.
• The modern concept of the Rule of Law is fairly wide and, therefore, sets up an idea for the government to achieve. This concept was developed by the International Commission of Jurists, known as Delhi Declaration, 1959, which was later on confirmed at Lagos in 1961.
• According to this formulation, the Rule of Law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld.
ADMINISTRATIVE LAW :
Is the law related with the administrative functions of the Government and its Departments.
Definition :
• Administrative law deals with the powers and functions of the administrative authorities , the manner in which the powers are to be exercised by them and the remedies that are available to the aggrieved persons when those powers are abused by these authorities.
• Administrative law deals with :
1. The powers and functions of the administrative authorities
2. The procedure to be followed by these authorities in exercising such powers.
3. The remedies available to the aggrieved persons , when the authorities abuse the powers.
Definition :
• Administrative law deals with the powers and functions of the administrative authorities , the manner in which the powers are to be exercised by them and the remedies that are available to the aggrieved persons when those powers are abused by these authorities.
• Administrative law deals with :
1. The powers and functions of the administrative authorities
2. The procedure to be followed by these authorities in exercising such powers.
3. The remedies available to the aggrieved persons , when the authorities abuse the powers.
Reasons For The Growth Of Administrative Law:
• Change in the philosophy as to the role played by the state .
• Inadequate judicial system
• Judiciary was slow , costly, un expert , complex and formalistic.
• Overburdening of judicial system- speedy disposal was not possible - resulted in strikes and lock out in disputes between employers and employees.
• As a result , industrial tribunals and labor courts were established – they possessed techniques and expertise to handle these complex problems.
• Tribunals are not courts but executive authorities having judicial powers.
• Inadequate legislative process –
• The legislative process was also inadequate. Legislature had no time and technique to deal with all the detailed rules and procedure.
• Detailed procedure made by the legislature were found to be defective and inadequate.
• All these resulted in the delegation of some legislative powers to the administrative authorities.
• When rule making is done by the executive branch it is known as delegated legislation.
Scope for experiments :
• Change in the philosophy as to the role played by the state .
• Inadequate judicial system
• Judiciary was slow , costly, un expert , complex and formalistic.
• Overburdening of judicial system- speedy disposal was not possible - resulted in strikes and lock out in disputes between employers and employees.
• As a result , industrial tribunals and labor courts were established – they possessed techniques and expertise to handle these complex problems.
• Tribunals are not courts but executive authorities having judicial powers.
• Inadequate legislative process –
• The legislative process was also inadequate. Legislature had no time and technique to deal with all the detailed rules and procedure.
• Detailed procedure made by the legislature were found to be defective and inadequate.
• All these resulted in the delegation of some legislative powers to the administrative authorities.
• When rule making is done by the executive branch it is known as delegated legislation.
Scope for experiments :
• There is scope for experiments in administrative process
• A rule can be made , tried for some time and if it is found defective it can be altered or modified within a short period.
Thus , legislation is rigid in character while administrative rule making is flexible.
Preventive measures :
• Administrative authorities can take preventive measures- licensing , rate fixing etc.
• They can also take effective measures for enforcement of preventive measures like, suspension, revocation or cancellation of licenses , destruction of contaminated articles etc. These are not generally available through regular courts of law.
• In most cases , such preventive actions prove to be more effective rather than punishing a person after he has committed a breach of any provision of law.
• A rule can be made , tried for some time and if it is found defective it can be altered or modified within a short period.
Thus , legislation is rigid in character while administrative rule making is flexible.
Preventive measures :
• Administrative authorities can take preventive measures- licensing , rate fixing etc.
• They can also take effective measures for enforcement of preventive measures like, suspension, revocation or cancellation of licenses , destruction of contaminated articles etc. These are not generally available through regular courts of law.
• In most cases , such preventive actions prove to be more effective rather than punishing a person after he has committed a breach of any provision of law.
Administrative Law - Significance :
• It is very significant because if it did not exist then the very concept of having a democracy and a government to work for the people would be self defeating because then there would be no responsibility or accountability of the public officials to anybody and the administration would run arbitrarily thus creating a huge monster that would eat up the very system.
• There would be an upset in the balance in areas such as police law, international trade, manufacturing, environmental, taxation, broadcasting, immigration, and transportation,etc.
Changing Role Of The State And Its Impact On Administrative Law
• Increasing trend towards privatization - resulting in a shrinking of the role of the State.
• Some even argue : “Less Government is Good Government” (which reminds us of the supporters of laissez-faire theory)
• But , even as role of State as service provider is shrinking , its role as a Regulator is retained and reinforced in a liberalized and privatized economy.
• Governmental interventions in the form of price fixation , laying down conditions of license , presence of nominees on the Board of Directors of private enterprises , and regulatory authorities with enormous powers (TRAI , Electricity Regulatory Commissions)
• Exclusive power of Maharashtra Electricity Regulatory Commission to determine the tariff was upheld by the Supreme Court in BSES Ltd. Vs M/s Tata Power Co.
• It is very significant because if it did not exist then the very concept of having a democracy and a government to work for the people would be self defeating because then there would be no responsibility or accountability of the public officials to anybody and the administration would run arbitrarily thus creating a huge monster that would eat up the very system.
• There would be an upset in the balance in areas such as police law, international trade, manufacturing, environmental, taxation, broadcasting, immigration, and transportation,etc.
Changing Role Of The State And Its Impact On Administrative Law
• Increasing trend towards privatization - resulting in a shrinking of the role of the State.
• Some even argue : “Less Government is Good Government” (which reminds us of the supporters of laissez-faire theory)
• But , even as role of State as service provider is shrinking , its role as a Regulator is retained and reinforced in a liberalized and privatized economy.
• Governmental interventions in the form of price fixation , laying down conditions of license , presence of nominees on the Board of Directors of private enterprises , and regulatory authorities with enormous powers (TRAI , Electricity Regulatory Commissions)
• Exclusive power of Maharashtra Electricity Regulatory Commission to determine the tariff was upheld by the Supreme Court in BSES Ltd. Vs M/s Tata Power Co.
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