This article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. In this article, she has written about the principle of rule of law in administrative law and it’s the position under Indian Constitution.
Dicey is one of the well known jurists of England and he has written a famous book “Law of the Constitution”. One should know the difference between administrative law and the rule of law. People who are in government job have different law from ordinary citizens and the rule of law is equal for everyone whether he is Prime minister of India or a normal clerk working in an office. The same law will be applicable to both of them, no discrimination will be done under the rule of law and rule of law is supreme in nature.
Dicey was against making different rules for a different class of people so he stood by against this concept and promoted the idea of Rule of law. Here a term is used “Droit administrative” was introduced by Napoleon and in France, it was known as Droit Administratif. France was having separate administrative court for dealing with the matter. According to this action by the citizens against an official for a wrongful act committed in their official capacity will be dealt by the special court not by the ordinary courts of law. Droit administratif does not consist of rules and law made by the French parliament but it includes a rule which is developed by the judges of the administrative court.
The doctrine of Rule of law has 3 meaning in Dicey book.
- Supremacy of law.
- Equality before the law.
- The predominance of a legal spirit.
Merit and Demerits of the Dicey Concept
- Help in making limits to the power of administrative authorities.
- A major role in growth and recognition of administrative law.
- Act as a scale for the test of administrative action.
- His theory was not fully accepted during that era also.
- Failed to distinguish between discretionary and arbitrary power.
- He misunderstood the concept of Droit administration which was actually successful in France.
Rule of law
Rule of law is a product of struggle by the people from centuries for recognition of their inherent rights and the concept of a rule is very ancient and old. During the ancient times, the concept of rule of law was discussed by the Greek philosopher Aristotle and Plato at the time of 350 BC so now you can imagine how old this concept. Plato has written that if rule of law under the supervision of any law than it doesn’t have any value and the concept of state will get collapsed and if the law is master of government and government work as a slave for law then the concept of state will work effectively and humans can enjoy their rights.
According to Plato the meaning of rule of law is that it is supreme in nature and nobody is above the law.
According to Aristotle has written that law should be the final sovereign of the state.
According to Sir Edward Coke “Rule of Law” means the absence of arbitrary power on the part of Government.
This phrase was derived from the French phrase “la Principe de legality” which means that the principle of legality whatever the legal system principle is called a rule of law. Which refers to government is based on the principles not on any individuals and according to the law everything will move. Rule of law is the basic principle of the English constitution and this doctrine is accepted by the US and as well as India also.
The entire basis of Administrative law is the Rule of law and delegated legislation is the backbone of administrative law.
Rule of law was developed by a British jurist Albert Venn Dicey in his book called “The Law of the Constitution” 1885. In this book, he develops this concept and he identifies 3 principles while establishing the rule of law.
According to Albert Venn Dicey rule of law first meaning is “No man is punishable except for a Distinct breach of Law” established in the ordinary legal manner before the ordinary court. The government or any high-class authority cannot punish any individual on the personal ground till the time an individual has committed an offence and if the offence is committed then proper procedure and trail will be conducted and in case the final verdict is that the offence is committed then physical or economic punishment will be given to the accused person. This clearly indicates that even if 100 criminals are not arrested is ok rather than punishing one innocent person.
“No man is above the law” every man, whether he is from a higher rank or whatever his position is subjected to ordinary law under the jurisdiction of the ordinary court. No man will be derived from his personal property until the time he has breached any law established by the ordinary court. Article 14 of The Constitution of India also talk about that “Every Man is equal before the law, no one is above”.
Constitutional rights are the source of a judicial decision it means that the source of rights is not the constitution but the rules or law enforcement by the court. The British constitution is the result of judicial result and all the rights are given under the Constitution is decided and framed from some or the other judicial decisions.
The principle of Rule of law is accepted by Article 14 of the Constitution and it has 2 main rule that no man is above the law and no man is punishable except for a breach of law and the last rule given above is not accepted by our constitution. So, the first and second rule applies to the constitution but the third rule of dicey is not accepted by our Indian system. All rules passed by the legislature must be within the provision of the Constitution and if any law is made which encroached any of the provisions of the constitution then it will be declared as void by the Supreme Court.
Basic Principles of Rule of Law
- Law is supreme and nobody is above the law.
- All the things should be done according to a law not as per whim.
- No person should be suffered except for the breach of law.
- Absence of arbitrary is the soul of the rule of law.
- Equality before the law and equal protection of the law.
- Speedy trial.
- The fair and just procedure should be conducted.
- Independent and impartial judiciary.
Kesavananda Bharati vs. the State of Kerala under this case the principle of Basic Structure was propounded and it was said that any part of the Constitution can be amended without disturbing the basic structure of it.
Indira Nehru Gandhi vs. Raj Narain, the court held that rule of law is also part of the basic structure and in the list rule of law was also added and it means that no amendment can be done in rule of law.
The State of Bihar vs. Sonawati Kumari, it is an integral part of Rule of law that all the authority within the State including executive government should be bound to obey the rules.
In case of Bachan Singh vs. the State of Punjab, popularly known as “Death Penalty Case” the rule of law is free from arbitrary action if anywhere any action is done with arbitrary power then it will be considered as the denial of the concept of Rule of Law.
In case of Som Raj vs. State of Haryana, that absence of arbitrary power is absolute motive of the principle of rule of law upon which directly the whole Constitution is dependent.
Rule of law in modern Sense
Today the dicey theory of Rule of law cannot be accepted in total. The modern concept of rule of law is very wide and therefore set up an example for the government to achieve and this concept was developed by the International Commission of Jurists which is also known as Delhi Declaration, 1959.
According to this, the Rule of the law says that the function of the government in a free society is to exercise and create a condition in which the dignity and respect of an individual are increased or upheld. It does not only recognize civil or political rights but the introduction of certain social, political, economic, and educational etc. which are necessary for the full development of personality.
According to Davis, there are 7 types of Modern law
- Law and orders.
- Principle of Natural law.
- Fixed rules and regulations.
- Eliminate the idea discretion.
- Due and fair process of law.
- Preferences for judges and court of law to executive authority and administrative tribunals.
- Judicial review of administrative action.
So, in proper manner rule of the law say that it silent on the democratic system, where the political interest is encouraged and criticism of the government is not only permitted but given positive merit.
How Freedom of Speech and Expression is an integral part of the Rule of law
Rule of law is very founding stone of stage of democratic stands that’s why it is considered as an important and integral part of Rule of Law. To ask for the right of others and the way they are expressed can be either by speaking, writing, drawing, etc. and above all rule of law does not go with arbitrariness which can be established by fiving freedom and one of such freedoms is freedom of Speech and expression.
Now, let’s understand about Freedom of Speech and expression is one of the important fundamental rights given under the Constitution for every individual to enjoy it fully. Freedom of speech and expression should be used in a very delicate manner because while expressing the idea, thought it should not defame or hurt the sentiments of any individual or religion view and without the fear of getting punished for any offensive act. As per UDHR (Universal Declaration of Human Resources) every individual has the right to freedom of expression and opinion. The right involves the right to hold the information without any interference from any media or other sources. Right to freedom of speech and expression is recognized as an essential human right under Article 19 of the UDHR as well as in ICCPR (International Covenant on Civil and Political Rights).
Freedom of Speech and Expression in the Indian Constitution
Article 19(1) of the Indian Constitution says the Freedom of Speech and expression means the right to express one’s ideas by the help of words, gesture, painting, writing etc. or by any other specified mode. It also includes the publication of articles, books etc. so the freedom of the press is also included under this category.
- It also helps individuals to be well informed about the current situation of highlights of society or nation.
- Help the individual to the development of ideas, thoughts, opinions etc. which will help in decision making.
- Varieties of ideas help in maintaining a balance between stability and social changes.
- Help in achieving of Self-fulfilment.
In Shivkant Shukla vs. ADM Jabalpur the government of M.P. appealed against the High Court ruling in the Supreme Court. The problem arises that whether Rule of law aside from Article 21 of the Constitution of India. There is no rule apart from Article 21 and there can never be separate rule of law.
It was very clear that the idea of the Rule of law was not totally perfect. Rule of law has taken charge of administrative powers and understated them with their measures and this concept was adopted by various countries as a watchdog of the constitution. The modern concept given by David was a broad concept as well as possible for the government to use it in a graceful manner and administrative law main task was to fulfil the gap between power and liberty. The government under the guideline of Rule of law make to rule or conditions that do not intercept with any individual dignity.