3. Predominance of legal spirit: - By this Dicey means that the general principles of the Constitution are the result of judicial decisions of the Courts in England. In many countries rights 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. In this way he emphasized on role of Courts as the guarantor of liberty. Dicey apprehended that if the source of the rights of people is any written Constitution, the rights can be abrogated at any time by amending the Constitution. According to him without enforcement machinery there is little value of rights in documents. In this way Dicey’s ‘Rule of Law’ postulates judicial supremacy.
Evaluation of Dicey’s Rule of Law
Dicey’s ‘Rule of Law’ is a standard to judge the action of the government departments concerning the individual citizens. It proved to be a powerful instrument in controlling the administrative authorities within their limits and saves the citizens from arbitrary exercise of powers, provides equality before Law and therefore, legal spirit predominantly prevails.
According to Wade, the British Constitution is founded on the doctrine of Rule of Law. Similar is the view of Yardley that in broad principle the ‘Rule of Law’ is accepted by all as a necessary Constitutional safeguard.
Criticism
Dicey’s ‘Rule of Law’ is not free from criticism. His views about ‘Rule of Law’ have been criticized by many writers. It is observed that Dicey ignored the realities in England and misinterpreted the situation in France. The criticism can be summarized in the following manner:-
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Dicey denied the existence of Administrative Law in England but it is interesting to note that his contemporary, Maitland, perceived its emergence. By 1915 Dicey himself asserted the emergence of Administrative Law in England, though in the final analysis he asserted that it is not a true Administrative Law because the supremacy of ordinary Courts prevails.
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According to Dicey, where there is discretion there is room for arbitrariness. Thus he failed to distinguish between discretionary power and arbitrary power. While the arbitrary power is repugnant to the rule of law, discretion, unless exercised improperly is not. The modern welfare state can not function without discretionary power as the functions of the modern welfare state are so complex, varied and multifarious that the legislature can’t anticipate and to provide for the same. Wade and Phillips observed: “If it is contrary to the ‘Rule of Law’ that discretionary authority should be given to Government or public officers, then the ‘Rule of Law’ is inapplicable to any modern Constitution”. As per Wade, if Dicey had chosen to examine the scope of Administrative Law in England, he would have to admit that even in 1885 there existed a long list of Statutes which permit the exercise of the discretionary powers, such as Public Health Act which gave wide discretionary powers to the Government officials to enter upon private properties. In reality the Administrative Law is much concerned with the control of the discretionary power of the administration. The present trend is that the discretionary power is given to the government or administrative authorities but according to the guidelines or principles laid down by the concerned Statute.
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Dicey supported equality before law, but in practice it is not possible to have absolute equality. Even during Dicey’s time the Crown and its servants enjoyed special privileges, immunities and vast discretionary powers on the basis of the doctrine that ‘The King can do no wrong’. Some Acts such as Constable Protection Act, 1750 gave special immunity and protection to police officers.
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According to Dicey no person should be arrested or punished except in case he breaches the law but the law does not really ensure that this fortunate state of affairs shall continue; as it was during two world wars. In time of emergency there is nothing to stop the legislature from empowering the executive to imprison any person suspected of having enemy association.
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According to Dicey the Constitution is the result of the judicial decisions determining the rights of individuals in particular cases brought before the Courts. This is true for England as its Constitution is unwritten and contains the principles evolved through judicial decisions. But this does not hold good in India, USA etc. For example, the Indian Constitution is not the result of judicial decisions. The ordinary law is governed by the Constitution and any law which is against the Constitution of India is declared void by the Courts.
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Dicey said that there were no extraordinary tribunals or special Courts in England, but at his time there were special Courts present in England such as Admiralty Courts. Moreover special tribunals were not totally absent in England when Dicey wrote his thesis. The Poor Law Amendment Act, 1834 created the Poor Law Board which had wide powers of rule making and adjudication of disputes. John Dickenson says: “In so far as administrative adjudication is coming in certain fields to take the place of adjudication by the law Courts, the supremacy of law as formulated by Dicey is overridden.”
7 Dicey misunderstood the real nature of the French system of ‘droit administratif’. He thought that this system was designed to protect public officials from liability for their acts, and as such, was inferior to the British system of ordinary Courts deciding disputes between the citizens and the State. Even today English Judges speak as if ‘droit administratif’ is a system for putting the executive above the law. Thus Lord Denning has said: “Our English law does not allow a public officer to shelter behind droit administratif.” But in fact the French Administrative Law has a system of compensation for the wrongs of public officers which is in some respects more generous and effective in controlling the administration than that of English law and it is widely admired and followed by other countries.
Formalistic and Ideological Sense of Rule of Law
The term ‘Rule of Law’ can be used in two senses:-
- Formalistic sense; and
- Ideological Sense.
1. Formalistic Sense: ‘Rule of Law’ in formalistic sense refers to the organized power as opposed to a rule by one man.
2. Ideological Sense: ‘Rule of Law’ in ideological sense refers to the regulation of relationship of the citizens and the Government and in this sense it becomes a concept of varied interest and contents. In its ideological sense, the concept of ‘Rule of Law’ represents an ethical code for the exercise of public power in any country. Strategies of this code may differ from society to society, but its basic postulates are universal. These postulates include equality, freedom and accountability.
a) Equality: It is not a mechanical or negative concept but has progressive and positive contents which oblige every Government to create social, economic and political conditions where an individual has an equal opportunity to develop his personality to the fullest and to live with dignity.
b) Freedom: Freedom refers to the absence of any arbitrary action, free speech, expression and association, personal liberty etc.
c) Accountability: The basic idea behind accountability is that the rulers rule with the sufferance of the people and therefore they must be accountable towards the people in the ultimate analysis. Forms of accountability may differ but the basic idea must remain the same that holders of public power must be able to publicly justify that the exercise of public power is not only legally valid but also socially just, fair and wise.
In this manner the concept of ‘Rule of Law’ represents a climate of legal order which is just and reasonable wherein every exercise of public power is chiefly designed to add something more to the quality of life of the people.
Modern Concept of Rule of Law
The modern concept of ‘Rule of Law’ is fairly wide and set ideals for the Government to achieve. This concept was developed by the International Commission of Jurists met in 1959 at New Delhi. This Commission is known as Delhi Declaration, 1959. According to this formulation the ‘Rule of Law’ implies that the functions of Government should be so exercised as to create such social, economic and political conditions in which the dignity of an individual is upheld.
The Commission divided itself into certain working groups which tried to give content to the concept in relation to an individual’s area of activity in a society:
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Committee on Individual Liberty and ‘Rule of Law’:
- that the state should not pass the discriminatory laws;
- State should not interfere with religious beliefs; and
- State should not place undue restriction on freedoms.
- Committee on Government and ‘Rule of Law’:
‘Rule of Law’ means not only the adequate safeguards against abuse of power but effective Government capable of maintaining law and order.
- Committee on Criminal Administration and ‘Rule of Law’:
‘Rule of Law’ means:
- due criminal process;
- no arrest without the authority of law;
- presumption of innocence ;
- legal aid; and
- public trial and fair hearing.
- Committee on Judicial Process and ‘Rule of Law’:
‘Rule of Law’ means:
- independent judiciary;
- independent legal profession; and
- standard of professional ethics.
Rule of Law under Indian Constitution
Dicey’s ‘Rule of Law’ has been adopted and incorporated in Indian Constitution. In India every organ of the administration is regulated by the ‘Rule of Law’. The concept of ‘Rule of Law’ exists in India by virtue of the following features:-
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Supremacy of the Constitution: Indian Constitution starts with the Preamble which secures to all its citizens, justice, liberty and equality. These concepts are enshrined in Part III of the Constitution as fundamental rights. In India the Constitution is supreme and all the three organs of the Government, i.e., legislature, executive and the judiciary are subordinate to it. If executive abuses the powers conferred on it or if the action is malafide then the same can be quashed by the Courts.
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Judicial Review (Article 13): Article 13 provides for the judicial review of all laws whether past or future. This power is exercisable by the Supreme Court as well as by the High Courts under Articles 32 and 226 respectively. The Courts can declare a law unconstitutional if it is inconsistent with the rights conferred by Part III of the Constitution. In Indira Nehru Gandhi Vs. Raj Narain, the Supreme Court invalidated clause (4) of Article 329-A inserted in the Constitution by 39th Amendment to immunize the election dispute of the office of Prime Minister from any kind of judicial review. Khanna and Chandrachud JJ. held that Article 329-A (4) violated the concept of basic structure. Mathew, Ray and Beg, JJ. also held that Article 329-A (4) offends the concept of ‘Rule of Law’.
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Equality before Law (Article 14): Article 14 provides that the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. Equality before law implies the absence of any special privilege in favour of any individual. Equal protection of laws implies equal protection of all alike in the same situation and under like circumstances. If the State action is arbitrary or irrational, it would be treated as being against Article 14. In Maneka Gandhi Vs. Union of India, Supreme Court held that equality is antithetic to arbitrariness. Article 14 permits reasonable classification but prohibits class legislation. The Government and public authorities are subject to the jurisdiction of ordinary Courts of law and suits for breach of contract and torts committed by any public authority can be filed in ordinary Courts to claim damages from the State Government or the Union Government for acts of their employees. In Kalyan Chandra Sarkar Vs. Rajesh Rajan, a Three Judge Bench of Apex Court ruled that MPs/ influential politicians were not above the law and while in custody they were to be kept in a prison cell like any other normal prisoner.
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Six Fundamental Freedoms (Article 19): Article 19 guarantees six fundamental freedoms to the citizens of India—freedom of speech and expression, freedom to assemble peacefully and without arms, freedom to form associations or unions, freedom to move freely throughout the territory of India, freedom to reside and settle in any part of the territory of India and freedom to practice any profession, or to carry on any occupation, trade or business. But these freedoms are not absolute. These are subject to reasonable restrictions which may be imposed by the State provided these restrictions have been imposed under a valid law and on the grounds mentioned in clauses 2 to 6 of Article 19.
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Right to Life and Personal Liberty (Article 21): It provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The scope of this Article is very wide. It includes right to live with human dignity, right to reputation, right to shelter, right to livelihood, right to privacy, right against telephone tapping, right to go abroad etc. The whole concept of ‘Prison Jurisprudence’ is based upon Article 21.
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Rule of Law as a feature of Basic Structure: In Kesvananda Bharti Vs. State of Kerala, some of the Judges constituting majority were of the opinion that the ‘Rule of Law’ is an “aspect of the doctrine of basic structure of the Constitution, which even the plenary power of Parliament can not reach to amend.”
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Public Interest in Security of Social Welfare: The ‘Rule of Law’ notion as evolved by the Indian Courts extends to the protection of social welfare as well. In People’s Union for Democratic Rights Vs. Union of India (Asiad Case), Supreme Court held that the ‘Rule of Law’ does not mean that the protection of law must be available to a fortunate few but the poor too have civil and political rights and ‘Rule of Law’ is meant for them also in reality. In this way, under the concept of ‘Rule of Law’, the idea of justice is no more confined to the rights of individual only but has been extended to the socio-economic spheres as well.
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National Policy of Reservation for Backward Classes and Constitutional viability of creamy layer: In the Mandal Commission Case the Supreme Court has upheld the national policy of reservation in favour of socially and educationally backward classes but at the same time has also required identification and exclusion of creamy layer for extension of the reach of ‘Rule of Law’ to the disadvantaged section of people.
The position of the concept of ‘Rule of Law’ in India is very accurately summarized by Prof. Upendra Baxi. According to him, “The ‘Rule of Law’ means that the Government should not exercise arbitrary power. The power should be used for the purposes for which it has been conferred. It also means that the power should be exercised within the statutory ambit. Mere negation of arbitrariness is not enough to preserve ‘Rule of Law’ values. Indian Courts have gone further to preserve and insist on specific positive contents of the ‘Rule of Law’ obligations. These obligations include the principles of natural justice which have to be followed not only in quasi-judicial actions but also in purely administrative actions. In addition, access to information as to the grounds of decision has an important place in Indian Judiciary. The Courts have insisted from time to time that the administrative powers should be accompanied by reasons, although the exact status of the obligation to give reasons is as yet indeterminate.” The Courts are making concrete efforts to establish a society based on ‘Rule of Law’ in India by insisting on the ‘fairness’ in every aspect of the exercise of power by the State. Some of the decisions of the Supreme Court are clear indicators of this trend. In Sheela Barse Vs. State of Maharashtra, the Court insisted on fairness to women in police lock-up and drafted a code of guidelines for the protection of prisoners in police custody, specially female prisoners. Such efforts by Courts can be seen as a high benchmark of judicial activism for firmly establishing the concept of the ‘Rule of Law’ in India.
Conclusion
We can say that in a democratic society ‘Rule of Law’ is an accepted principle. With the emergence of welfare state the increase in the powers of administration is inevitable. Therefore, it appears that there is a conflict between ‘Rule of Law’ and Administrative Law. However, this conflict is more apparent than real. Administrative Law provides for delegation of powers to administration. Further administration enjoys vast discretionary powers. So the people need protection against any arbitrary use of these powers. There arises the problem to bring the administrative powers under the ‘Rule of Law’ and the main function of the Administrative Law is not to exclude the ‘Rule of Law’, rather it is to bring the modern administration under the principle of ‘Rule of Law’ along with its various functions. Apart from this we can’t ignore that the controlled economy has come to stay with us, whatever be the extent of controls. It will lead to multifarious, varied and complex administrative actions. In the light of all these facts the ‘Rule of Law’ becomes all the more important. The same idea was very beautifully expressed by Mr. Justice P.B.Mukerjee (Judge of Calcutta High Court) in the following words: “A nation that does not know how to respect the ‘Rule of Law’ and the judiciary as its final interpreter, is a nation that is not fit for the democratic way of life.”
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Bibliography
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INDEX
V.G.Ramachandran, Administrative Law, 1969, p-10.
Dr. Kailash Rai, Principles of Administrative Law, 2006, pp-31, 32.
V.G.Ramachandran, Administrative Law, 1969, pp 14, 15.
Government abstention from interference with individual action, especially in commerce.
Natural Law means those rules and principles which are considered to have emanated from some supreme source and applied in all societies.
It means a contract under which men surrender some of their rights to the state for protection of their life, freedom and property.
H.W.R.Wade, Administrative Law, 1988, p-23.
Kailash Rai, Principles of Administrative Law, 2006, p-32.
Devinder Singh, An Introduction to the Administrative Law, 2007, p-13.
J.J.R. Upadhayaya, Administrative Law, 2004, p-28.
Devinder Singh, An Introduction to the Administrative Law, 2007, p-14.
J.J.R. Upadhayaya, Administrative Law, 2004, p-28.
M.P.Jain, Principles of Administrative Law, 1986, p-15.
I.P.Massey, Administrative Law, 1990, p-32.
Paras Diwan, Administrative Law towards New Despotism, 1995, p-50.
J.F. Garner, Administrative Law, 1970, p-18.
J.F. Garner, Administrative Law, 1970, p-18.
Kailash Rai, Principles of Administrative Law, 2006, p-35.
S.P.Sathe, Administrative Law, 1974, pp-6, 7.
C.K. Takwan, Lectures on Administrative Law, 1980, p-19.
M.P.Jain, Principles of Administrative Law, 1986, pp-14, 15.
H.W.R. Wade, Administrative Law, 1988, p-26, 27.
I.P.Massey, Administrative Law, 1990, pp-27, 28.
People’s Union for Democratic Rights Vs. Union of India, A.I.R. (1982) S.C. 1473.
State of Bihar Vs. Lal Krishna Advani, A.I.R. (2003) S.C. 3357.
Chameli Singh Vs. State of U.P., A.I.R. (1996) S.C. 1051.
Olga Tellis Vs. Bombay Municipal Corporation, A.I.R. (1986) S.C. 180.
Malak Singh Vs. State of Punjab, A.I.R. (1981) S.C. 760.
People’s Union for Civil Liberties Vs. Union of India, A.I.R. (1997), S.C. 2363.
Maneka Gandhi Vs. Union of India, A.I.R. (1978) S.C. 597.
Indra Sawhney Vs. Union of India, A.I.R (1993) S.C. 477.
I.P. Massey, Administrative Law, 1990, p-26.
V.G. Ramachandran, Administrative Law, 1969, p-35.