Rule of law of Administrative Law

Rule of Law is important topic for all entrance examination. Here we comparison of Rule of Law in India with U.S.A & England. It is very useful all law students.

1. Legal Help Desk By- Keshav Choudhary Rule of law The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic; it has since been championed by several medieval thinkers in Europe such as Hobbs, Locke and Rousseau through the social contract theory. Indian philosophers such as Chanakya have also espoused the rule of law theory in their own way, by maintain that the King should be governed by the word of law. 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. The Constitution of India intended for India to be a country governed by the rule of law. It provides that the constitution shall be the supreme power in the land and the legislative and the executive derive their authority from the constitution .

2. Legal Help Desk By- Keshav Choudhary The doctrine of rule of law has its origin in England. The term “Rule of Law” is derived from the French phrase la pricipe de legalite (the principle of legality) which refers to a government based on principle of law and not men. In this sense the concept of la principe de legalite was opposed to arbitrary powers (subject to individual will or judgment without restriction; contingent solely upon one's discretion). The concept of the Rule of Law is old origin. Edward Coke is said to be originator of this concept. In India, concept of Rule of law can be traced to Upnishad . It provides Law is the Kings of Kings. There is nothing higher than law. By the power of law weak shall prevail over the strong and justice shall Trumph .

3. Legal Help Desk By- Keshav Choudhary The English philosopher Jeremy Bentham described the rule of law “nonsense on stilts. The King is not the law but the law is king. A V Dicey in his book The Law of the Constitution (1885) has given the following three implications of the doctrine of rule of law. Supremacy of Law or Absence of arbitrary power- This has always been the basic understanding of rule of law that propounds that the law rules over all people including the persons administering the law. The law makers need to give reasons that can be justified under the law while exercising their powers to make and administer law.

4. Legal Help Desk By- Keshav Choudhary Equality before the Law-Article 14 & 17- The law cannot discriminate between people in matters of sex, religion, race etc. This concept of the rule of law has been codified in the Indian Constitution under Article 14 and the Universal Declaration of Human Rights under the preamble and Article 7. Predominance of legal spirit:- The courts are the enforcers of the rule of law and they must be both impartial and free from all external influences. Thus the freedom of the judicial becomes an important pillar to the rule of law .

5. Legal Help Desk By- Keshav Choudhary Application of Rule of law in Indian context- The Constitution of India provides that the constitution shall be the supreme power in the land and the legislative and the executive derive their authority from the constitution. Any law that is made by the legislative has to be in conformity with the Constitute failing which it will be declared invalid, this is provided for under Article 13 (1). Article 21 provides a further check against arbitrary executive action by stating that no person shall be deprived of his life or liberty except in accordance with the procedure established by law .

6. Legal Help Desk By- Keshav Choudhary Article 14 ensures that all citizens are equal and that no person shall be discriminated on the basis of sex, religion, race or place of birth, finally it ensures that there is separation of power between the three wings of the government and the executive and the legislature have no influence on the judiciary. By these methods, the constitution fulfils all the requirements of Dicey’s theory to be recognized as a country following the Rule of Law. In France, Dicey observed that the government officials exercised wide discretionary powers and if there was any dispute between a government official and a private individual, it was tried not by an ordinary court but by a special administrative court. The law applicable in that case was not ordinary law but a special law developed by the administrative court. From this, Dicey concluded that this system spelt the negation of the concept of rule of law. He felt that this was against the principle of equality before the law. He also stated that all English are bound by the Rule of Law and there is no external mechanism required to regulate them. Therefore, he concluded that there was no administrative law in England.

7. Legal Help Desk By- Keshav Choudhary Dicey’s concept of Rule of Law had its advantages and disadvantages. Rule of Law imposed and helped in imbibing a sense of restraint on administration. The government was bound to work within the legal framework. Further, by stating that the law is supreme, he made every law made by the legislature supreme, thus, promoting parliamentary supremacy. There cannot be self-conferment of power as even an ordinary law is supreme. All laws, public or private, are being administered by the same set of independent and impartial judiciary. This ensures adequate check on the other two organs. Nonetheless, on the other hand, Dicey completely misunderstood the real nature of the French  droit administratif . He thought that this system was designed to protect officials, but the later studies revealed that in certain respects it was more effective in controlling the administration than the common law system. The reality is that French  Conseil d’ Etat is widely admired and has served as model for other countries as well as for court of justice for European communities. He also did not realise the need for codification of laws which could lead to more discretion, thus hampering Rule of Law.

8. Legal Help Desk By- Keshav Choudhary 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 heart and soul of rule of law.    Equality before law and equal protection of 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 Tri al

9. Legal Help Desk By- Keshav Choudhary Judiciary and Rule of Law The Indian Judiciary has played an instrumental role in shaping Rule of Law in India. By adopting a positive approach and dynamically interpreting the constitutional provisions, the courts have ensured that the Rule of Law and respect for citizens’ rights do not remain only on paper but it is also avalaible in the society. In  Bachhan Singh  v.  State of Punjab , it was held that the Rule of Law has three basic and fundamental assumptions. They are:- 1) Law making must be essentially in the hands of a democratically elected legislature; 2) Even in the hands of the democratically elected legislature, there should not be unfettered legislative power; and 3) There must be independent judiciary to protect the citizens against excesses of executive and legislative power.

10. Legal Help Desk By- Keshav Choudhary The Darker Side of Rule of Law The case of  ADM Jabalpur   Shivakant Shukla  is one of the most important cases when it comes to rule of law.