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1 COURSE I ADMINISTRATIVE LAW (CODE: BL 801) Unit I: Unit II: Unit III: Unit IV: Unit v: Definition, Evolution, Nature and Scope of Administrative Law Separation Powers, Rule of Law. Classification of Administrative Action, Quasi-Legislature Administrative Instructions, Administrative Directions rules of Natural Justice- Rule against Bias, Audi Alterm Partem, Reasoned. Legislative Powers of Administration, Delegated Legislation necessity Constitutionality, Requirements for the validity of Quasi-Judic ial Administrative Action, delegated legislation. Control over Delegated Legislation, Sub- legislative powers. Judicial control of Administrative action Writs, PIL (Public Interest Litigation), Injunction, Declaration, Suits for damages, Liability for wrongs Tortuous and Contractual, Ombudsman Lok Pal, Lok Ayukta, Central Vigilance Commission. Corporation and Public Undertaking-legislative and Government tal control, accountability, Committee on Public Undertaking g, Estimate Committee, Judicial Powers of Administrat tive Tribunals and other Adjudicating Authorities, Production of Civil Servants under Constitution of India.

2 NATURE AND SCOPE OF ADMINISTRATIVE LAW INTRODUCTION The growth of administrative law can be attributed to a change of philosophy as to the role and function of the State. The all pervading political gospel of 19th century was" Laissez Faire" which manifested itself in the theories of individualism, individual enterprise and self-help. The doctrine of "Laissez Faire" resulted in human misery. It came to be realised that the bargaining position of every person was not equal and uncontrolled contractual freedom led to exploitation of the weaker by the stronger. The twentieth century witnessed a significant change in the governmental role and it's function. It came to be recognised that State should take active interest in ameliorating the conditions of the downtrodden. This approach gave rise to political dogma of" collectivism" which favoured State's intervention and social control of the nation's natural resources and regulation of individual enterprise. The State started to act in the interest of social justice. It assumed a positive role, as a vehicle of socio-economic regeneration and welfare of the people. The emergence of social-welfare concept has affected democracies very profoundly leading to State activism. There has been a phenomenal increase in the area of State operation. Today the State acting in various capacities pervades every aspect of human life and the functions of modern State are diversified into various categories as:- (l) The Protector

3 (2) The Provider (3) The Entrepreneur (4) The Economic controller (5) The Arbiter The State activism has led to one inevitable result. In its quest to improve physical, moral and economic welfare of the people, the State has assumed more and more power to regulate society. The State consists of three organs and increasing State activities have resulted in increase of work for all organs, yet the largest extension in depth and range of function and power has taken place at the level of the executive cum administrative organ. Today's age is administrative age, administrative organs have become predominant and it is on the ascendancy. It's functions and powers have grown vastly over time and administration has acquired immense importance in progressive societies. Today, administration is discharging multifarious functions by providing technical and effective advice to the legislature, by executing and administering the law and policies, and by taking manifold decisions to implement the legislative policies. With the emerging pattern of global governance as a consequence of globalised interdependence in such fields like trade, development, environment, communication, banking, migration and security, the administrative authorities are exercising not only the traditional function of administration (Le. maintaining law and order) but also exercising their power in relation to rule-making (Quasi-legislative function), decision-making (Quasi-judicial function), application of rules and ministerial action.

4 In the words of Robson: "The hegemony of the executive is now an accomplished fact". The extension of power and functions of the administration has become a desideratum as most of the contemporary complex socia-economic problems could be tackled best, from a practical point of view, only by administrative process instead of the normal legislative or judicial process. Another advantage of the administrative process is that it can evolve new techniques, processes and instrumentalities, and acquire expertise and specialisation, to meet and handle new complex problems of modem society. The administration without making any delay can change a well listed rule according to the rapidly changing situation in a developing' or developed society. Even if it is dealing with the problem case by case (as does the court) it can change it's approach according to the exigency of the situation and demands of justice. Such flexibility of approach is not possible in the case of legislative or judicial process. All this has resulted in proliferation of bureaucracy. Administration has assumed such an extensive sprawling and varied character, that it is not easy to define the term "Administration" or to evolve a general norm to identify an administrative body as one which administers, for the administration does not only put the law into effect, but does more; it legislates and adjudicates. At times, administration is explained in negative manner by saying that what does not fall in the purview of legislature or judiciary is covered by administration.

5 Definition of Administrative Law To evolve a scientific, precise and satisfactory definition of as complex a subject as administrative law is indeed difficult. Many jurists have made attempts, from time to time, to define it but none of the definition has completely demarcated the nature, scope and content of administrative law. Either the definitions are too broad and include much more than necessary or they are too narrow and fails to include all the necessary ingredients. English Approach to Administrative Law Dicey in his "Law of the Constitution" (Pg ) 8th ed. has defined Administrative Law as follows:- Administrative Law relates to that portion of a nation's legal system which determines the legal status and liabilities of all State officials; defines the rights and liabilities of private individuals in their dealings with otlicials and specifies the procedure by which those rights and liabilities are enforced. "Dicey was obsessed with the French "Droit administrative" and so his formulations mainly concentrated on judicial remedies against State officials, and excludes other aspects of administrative law. Sir Ivon Jennings "Administrative Law is the law relating to the administration. It determines the organisation, powers and duties of administrative authorities."

6 Criticism of English Approach According to Griffith & Street; this formulation is too broad and general as there are three shortcomings in this definition:- 1. It does not distinguish administrative law from constitutional law. 2. It is a very wide definition, for the law which determines the powers and functions of administrative authorities may also deal with substantive aspects of such powers. For example:- Legislations relating to public health services, houses, town & country planning etc. Again it does not include the remedies available to an aggrieved person when his rights are adversely affected by the administration. 3. It excludes the manner of exercise of the powers. & duties i.e. procedure of administrative bodies or administration of policies which is emphasised in American Approach. American Approach to Administrative Law The American approach is significantly different from the early English approach in that it recognised administrative law as an independent branch of the legal discipline. According to Kenneth Culp Davis- "Administrative law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action". Within his formulation Davis includes the study of administrative rule making and rule adjudication but excludes rule application which according

7 to him belongs to the domain of public administration. But even this classification, cannot be considered complete because he excludes from this the control mechanism, the control exercised by the legislature, the higher administrative authorities and the mass media representing public opinion and also the vast area of administrative action which is neither quasi legislative nor quasi-judicial. Griffith and Street "The main object of administrative law is the operation and control of administrative authorities." It must deal with following three aspects:- 1. What sort of powers does the administration exercise? 2. What are the limits of those powers? 3. What are the ways in which the administration is kept within those limits? 4. What are the procedures followed by administrative authorities? 5. What are the remedies available to a person affected by administration? Wade-"Administrative Law is the law relating to the control of governmental power." According to him the primary purpose of administrative law is to keep the powers of the government within their legal bounds, so as to protect the citizens against their abuse.

8 General definition of Administrative Law "Administrative law is that body of law which is connected with the activities of all the administrative agencies of the government. It is a branch of public law." A satisfactory and workable definition has been formulated by Jain & Jain:- "Administrative Law deals with the structure, powers and functions of the organs of administration, the limits of their powers, the methods and procedures followed by them in exercising their powers and functions, the methods by which their powers are controlled including the legal-remedies available to a person against them when his rights are infringed by their operation". Above definition has four limbs 1 st limb: It deals with composition and powers of the organs of administration. The expression 'organs of administration' includes all kind of public and administrative authorities. 2nd limb: It fixes the limit on the powers of these authorities. 3rd limb: It prescribes the procedure to be followed by these authorities in exercising such powers. 4th limb: It controls these administrative authorities through judicial and other means. Under this head would fall judicial as well as extra-judicial means of controlling the administration e.g. tribunal, ombudsman etc. According to C.K. Takwani:-

9 Administrative law is that branch of constitution which deals with powers and duties of administrative authorities, the procedure followed by them in exercising the powers and discharging the duties and the remedies available to an aggrieved person when his rights are affected by any action of such authorities. I.P. Massey in the" Administrative Law of India" opines- Administrative Law is that branch of public law which deals with organisation and powers of administrative and quasi-administrative agencies and prescribe principles and rules by which an official action is reached and reviewed in relation to individual liberty and freedom. This definition makes clear the nature & scope of administrative law. Nature and Scope of Administrative Law Administrative Law deals with the powers of the administrative authorities, the manner in which the powers are exercised and the remedies which are available to the aggrieved persons, when those powers are abused by these authorities. The administrative process has come to stay and be accepted as a necessary evil in all progressive societies, specially in welfare state, where many schemes for the progress of the society are prepared and administered by the government. The execution and implementation of these schemes may adversely affect the rights of the citizens. The real problem is to reconcile social welfare with the rights of individual subjects. As has been rightly observed by Lord Denning:-

10 "The main object of the study of administrative law is to unravel the way in which these administrative authorities could be kept within their limits so that the discretionary power may not be turned into arbitrary power." Sources of Administrative Law Administrative law is not a codified, written or well-defined law like Contract Act, Penal Code, Transfer of Property Act, Evidence Act, Constitution of India, etc. It is unwritten, unmodified or 'Judge-made' law. It has developed slowly in the wake off actual situations before courts. In a welfare State, administrative authorities are called upon to perform not only executive acts, but also quasi-legislative and quasi-judicial functions. They generally used to decide rights of parties and has transformed into 'Fourth branch' of Government, a 'Government in miniature'. Ambit of Administrative Law Administrative law though it's a branch of public law, but its ambit cannot be defined with clarity and precision as it stretches over practically all the branches of public law. It is not a codified law. It is not a law in the lawyers sense of term like contract or property law, it is a law in the realist's sense of the term and includes statutory law, administrative rules, regulations, bye-laws or administrative directions and schemes, precedents customs including principles of natural justice and all other matters. Within its ambit are included the following:-

11 a) Administrative law being a science of power of administrative authorities covers, (i) Purely administrative action and power of rule making, (ii) Legislative rule making, & (iii) Quasi judicial or adjudicative organs and bodies, b) Rule making power of administrative agencies and departments, what is compendiously called delegated legislation, c) Safeguard against abuse of administrative power viz. legislative and judicial controls, d) Various administrative bodies, with administrative or judicial or quasi-judicial functions and powers, e) Adjudicative and judicial functions of administrative bodies, such as administrative tribunals, f) Procedure of administrative bodies and tribunals with minimum procedural guarantees of compliance with rules of natural justice, g) Liability of the government, h) Remedies against executive excesses or executive arbitrary action, such as writ jurisdiction of the High Courts and Supreme Court and remedies under Special Relief Act; in short the control mechanisms, and i) Public undertakings, corporations and government companies. Development of Administrative Law Factors leading to the growth of administrative law are:- (1) The radical change of the philosophy as to the role played by the state. The switching over from the negative policy of maintaining "law and

12 order" and of "laissez faire" to the positive policy as a welfare State which has undertaken to perform varied functions. (2) The judicial system already overburdened, it was not possible to expect speedy disposal of important matters e.g. disputes between employees and employers, lock-out, strikes etc. Moreover it proved costly, exerting, complex and formalistic. These burning problems could not be solved merely by literally interpreting the provisions of any statute, but required consideration of various other factors and it could not be done by ordinary courts of law. Therefore, administrative instrumentalities were established thus giving impetus to growth of administrative law. (3) The legislative system being involved in performing varied functions had no time to evolve technique to deal with every aspect of the problem, and even when detailed provisions were made by legislature, they were found to be defective and inadequate and therefore it was felt necessary to delegate some powers to administrative authorities. (4) There is scope for experiments in administrative process. Here unlike legislation, it is not necessary to continue a rule until commencement of the next session of the legislature. Here a rule can be made, tried for some time and if it is found defective, it can be altered or modified because administrative process is flexible. (5) Administrative authorities can take immediate preventive measures e.g. licensing, rate fixing etc as opposed to regular courts. Which have to wait for parties to appear before giving directions. (6) Administrative authorities can take effective steps for enforcement of the, aforesaid preventive measures; e.g. suspension, revocation and

13 cancellation of licenses, destruction of contaminated articles, etc. which are not generally available through regular courts of law Extent of Administrative Law In the last ten years, there has been tremendous growth of Administrative law in India & abroad and two conflicting theories came into existence, viz. (i) Red Light theory, (ii) Green light theory According to 'Red light theory', the primary object of Administrative Law is to control governmental power. It is based on the assumption that every power tends to corrupt and absolute power tends to corrupt absolutely. 'Red light theory' has emerged from a fear of State absolutism. Since State regulates and controls various activities of its subjects, there is every possibility of misuse or abuse Of power. 'Red light theory' seeks to protect private rights and individual interests. Its object is to keep governmental agencies and administrative authorities within the bounds of law through judicial control. Advocates of 'Green light theory', on the other hand, believe in ground-reality and favour regulatory measures. This theory also does not concede arbitrary, unrestricted or absolute power to administrative authorities. But' Red light theory' favours judicial control, whereas 'Green light theory' puts emphasis on political process. Control of administrative agencies under this theory is direct and internal rather than indirect and

14 external. Inbuilt mechanism under 'Green light theory' allows intervention by the State in larger public interest ensuring rights of citizens and well-being of society as a whole. This can be achieved through active involvement, positive deliberation, effective consultation, creative contribution, productive participation, decentralization of power, freedom of information and other similar actions at the level of administration. Both the theories have their own merits and pitfalls. In most of the legal systems, therefore, there is combination of two theories. In other words, reality lies somewhere between the pure 'Red' and 'Green' light models, in an 'amber light theory'. As observed in R. v. Lanchashire County Council, (1986) 2 All ER 941, a new relationship has emerged between the courts and those who derive their authority from the public law. It is one of partnership based on a common aim, viz., maintenance of highest standards of public administration. (Source: Lectures on Administrative Law, C.K. Takwani, 4th edition, p. 7 & 8) ADMINISTRATIVE LAW IN INDIA Administrative law was in existence in India even in ancient times. The rule of Dharma which included the basic principle of natural justice and fair play were followed by the kings and its official as the administration could be run only on those principles accepted by Dharma. But there was no administrative law in existence in the modem sense. In its modem sense, the existence of Administrative law in India can be traced right since the early days of the British rule. However, till the end of the British rule in India, the government was concerned with the most

15 primary duties only e.g. collection of revenue and maintenance of law and order. During this period, many Acts, statutes and regulations were also passed by the British Government to regulate public safety, health, morality, transport, and labour relations but the functions of a Welfare State was not discharged. When India became independent, the philosophy of Welfare State was made the creed of Indian Constitution and provisions were made to secure to all citizens social, economic and political justice equality of status and opportunity. To secure these welfare and socialistic aims and objects, the Constitution has provided an elaborate functional Government and administrative mechanism. All the important aspect of the administrative law like delegated legislation, judicial review tribunals, government liability, has been incorporated in our Constitution. The Constitution also provides for some administrative agencies to regulate a particular field e.g. Inter-State Council, Finance Commission, Inter-State Water Dispute Authority, Public Service Commissions, Election Commissions, etc. Conceptual objections against the growth of administrative law Concept of the Rule of law: The term 'Rule of Law' is derived from the French phrase "Ia principle de legalite" (the principle of legality) which connotes a government based on principle of law and not of men. Sir Edward Coke is said to be the originator of this concept.

16 Simply the Rule of law means that the law should rule, that it should provide a framework within which all citizens act and beyond which no one, neither private citizen nor government official should go. The fundamental purpose of law is to protect individual rights which meant the right to life, liberty and property. The supreme virtue of the rule of law is therefore, that is serves to protect the individual citizen from the State or State officials. It ensures a "government of laws and not of men". Therefore the rule of law means that the law rules using the word "law" in the sense of "jus" and "lex" both. It refers to a government based on the principles of law and not of men. It is modem name for natural law. This concept of rule of law which embraces within its fold legislation and principles of natural justice is so powerful and all prevading that no democratic country could afford to disregard it. It is therefore the sole basis of Administrative Law structure In its ideological sense, the concept of rule of law represent an ethical code for the exercise of public power in any country, the basic postulates of which includes equality, freedom and accountability. These concepts represent values and not institutions. Every executive, legislative and judicial exercise of power must depend on this ideal for its validity. Consequently it is the rule of law which must define laws rather than law defining the rule of law.

17 Dicey's concept of rule law4 Dicey's Rule, of law was founded on the separation of powers, fixed public attention on administrative law & delegated legislation. He attributed the following three meanings to the doctrine of Rule of Law: (i) Supremacy of law, (ii) Equality before law, and (iii) Predominance of legal spirit. Dicey developed this theory of Coke in his classic book "The Law of the Constitution" (published in the year 1885), at the end of the golden Victorian era of laissez-faire in England. That was the reason why Dicey's concept of the rule of law contemplated the absence of wide powers in the hands of government officials because, according to him, wherever there is discretion there is a room for arbitrariness. The concept of Rule of Law developed by him in his famous book "An introduction to the study of law of the Constitution", thus includes the following three ideas: (i) Supremacy of Law (ii) Equality before Law, and (iii) Protection of Individual's Liabilities (i) Supremacy of Law 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 authority on the part of the government. In his words, "wherever there is discretion, there is a room for arbitrariness and that in a republic no less under a monarchy, discretionary authority on the

18 part of government means insecurity for legal freedom on the part of its subjects. It also means that no one should be punished except for breach of law. This is the most fundamental features of the rule of law because it distinguishes between rule bound government and arbitrary government, suggesting that where the rule of law exists government cannot simply act as it please. Eg. It cannot punish citizen merely because it objects to their opinions or disapproves of their behaviours. (ii) Equality before Law Explaining the second principle, Dicey states that there must be equality before the law or equal subjection of all classes to the ordinary law of the land administered by the ordinary courts. He criticized the French legal system of' Droid Administrative in which there were separate administrative tribunals for deciding cases between the officials of the State and the citizens. According to him, exemption of civil servants from the jurisdiction of the ordinary courts of law and providing them with the special tribunals was the negation of equality. It also means that law should not discriminate against people on the grounds of race, gender, religion, creed, social background and so forth. It should apply equally to ordinary citizens and to government officials.

19 (iii) Predominance of Legal Spirit Explaining the third principle, Dicey asserts that rights (e.g. right to personal liberty, freedom from arrest etc) are the result of judicial decision in concrete cases which have actually arisen between the parties. The constitution is not the source but the consequence of the right of the individuals. Thus, Dicey emphasised the role of the courts as guarantors of liberty and suggested that it would be secured more adequately if they were enforceable in the courts of law than by mere declaration of those rights in a document, as in the latter case, they can be ignored curtailed or trampled upon. The Rule of law requires that the right and liberties of the individuals are embodied in the ordinary law of the land. This would ensure that when individual rights are violated citizens can seek redress through courts. Criticism of Dicey's Concept Dicey's concept of rule of law had its own advantages and merits although absence of discretionary power or absence of inequality are not possible in this administrative age, yet the concept has proved to be an effective instrument in confining the administrative authorities within their limits. It served as a kind of touch stone to judge and test administrative law prevailing in the country at a given time. Rule of law articulates the supremacy of courts, and therefore, courts should have the power of judicial review of administrative actions. The thesis of Dicey had tremendous impact on the growth of administrative law in England where people till recently

20 were not ready to accept anything like administrative law for it had not come into being there. People still believe that so long as ordinary courts are there, they can control the administration in all its action. Even in 1885, Dicey was factually wrong in his analysis as:- 1) He ignored the privileges and immunities enjoyed by the crown under the cover of the Constitutional maxim that the king cannot do wrong and also ignored the many statutes which conferred disciplinary powers on the executive. Which could not be called into question in ordinary court. 2) He also ignored the growth of administrative tribunals, quite few which had come into existence by ) While Dicey was denying the existence of administrative law in England, his contemporary, Maitland, perceived its emergence. However Dicey later himself became conscious of the emergence of administrative law in England. 4) Dicey dealt with individual liberty and criticised administrative discretion but he failed to distinguish between discretion given to public officials by statute and the arbitrary discretion claimed by the king. And if it is contrary to the rule of law that discretionary authority should be given to Government departments or public officers, then the rule of law is inapplicable to any modem

21 constitution. Dicey's dislike of discretionary power was due to the fear of abuse and to the belief that the judicial function consists in applying the settled principle of law and not in the exercise.of discretionary power. Thus if discretion is opposed to the rule of law then a final Court like our Supreme Court with discretionary power to admit or reject an appeal or application would contravene the rule of law because it possesses this power and can exercise it without assigning any reasons. Further, the power to adjoin a case, to condone delay, to award costs are discretionary powers and may be abused like all discretionary powers. Thus the ultimate guarantee against abuse of discretionary power lies in the political and legal safeguards against such abuse, in a vigilant public opinion and in a sense of justice in the people generally and not in the exclusion of administrative discretion on the part of government. 5) Dicey created a false opposition between ordinary law and special law and between ordinary courts and special tribunals when he says first that the rule of law required the equal subjection of all classes to the ordinary law of the Courts and secondly that the rule of law was inconsistent with administrative law and administrative tribunals. Because, as Delvin J. put it: 'It does not matter where the law comes from or whether the law is made by parliament or by judges for what matters is the law (of England2 of a country'. Dicey himself recognised that it may be necessary to create a body of person for adjudicating upon the offences or the errors of civil servants as such

22 adjudication may be more effecting in enforcing official law. Thus his antithesis was false in fact and untenable in principle. 6) He misunderstood and miscomprehended the real nature of the French droit administrative i.e., he thought discretion is same as arbitrariness. The notion which lies at the bottom of the Droit administrative is that affairs or administrative law disputes in which the government or its servants are concerned are beyond the sphere of the civil courts and must be dealt with by special and more or less official bodies. In other words by administrative discretion which in the words of Dicey resulted into miscarriage of justice and it could not protect the private citizen from the excesses of the administration. It was not true because researches have shown that the rules of Droit Administrative were made neither to justify the arbitrary powers of administrative officials nor to narrow the field of citizen's liberty but to help citizens against the excesses of the administration. He also failed to notice the actual working of the Council d'etat [the highest administrative Court in France] which shows that it gave protection to the citizen against the arbitrary actions of the administration. The concept advocated by Dicey has been criticised from various angles. According to Dicey (1) there should be no interference by the Government and (2) that the courts were supreme in determination of disputes since everyone was equal before law. But the first meaning was much less true than in Dicey's time and the second meaning has become untrue since Dicey's time. Passing of the Crown Proceedings Act, 1947 (abolishing Crown privilege in litigation), curtailment of liberties,

23 establishment of Tribunals for deciding issues other than the common law, the rise of trade unionism which coerced the English Parliament into granting them immunity from the ordinary rules of law (e.g. immunity from liability is tort} and the increase in lawlessness and the decline in trust in the courts are the proofs in support of the above. Besides, his conception about the third meaning was wholly wrong as it was based on the idea of sovereignty of Parliament. The Judiciary in England according to him was only the interpreter of the Act and nothing more. This was so because in England there are no constitutional guarantees as they exist in the written Constitutions of India and America. However, as observed by Dr. Jain, in substance Dicey's emphasis on the whole, in his enunciation of Rule of Law, is on the absence of arbitrary power, equality before law and legal protection to certain basic human rights, and these ideas remain relevant and significant in every democratic country. It is also true that dictated by needs of practical government, a number of exceptions have been engrafted on these ideas in modem democratic countries, e.g., there is a universal growth of broad discretionary powers of the administration; administrative tribunals have grown; the institution of preventive detention has become the normal feature in many democratic countries. Nevertheless, the basic ideas are worth preserving and promoting.

24 The concept of Rule of Law, which arose and developed in Anglo- American countries and which is the backbone of a welfare State has been accepted in India under Parts III and IV of the Constitution. In order to achieve the objectives outlined in the Constitution of India; Justice, Liberty, Equality and Fraternity: Rule of Law is the only instrument available. Otherwise people will not be able to control and c.urb monopolistic power and madness of political' parties which "drains vitality from the rule of law". As expressed by the Law Commission of India in its Fourteenth Report, where there is no effective opposition in legislature, the legislature and the executive inevitably tend to be intolerant and sometimes even contemptuous of the decisions of the Courts interpreting laws in a manner which they consider to be opposed to their policies. This tendency to trample ruthlessly upon the rights of the individuals with the aid of steamroller majority is to be deprecated. This nation has experienced this truth. As Ramachandran in his treatise says, "Government and their policies may change. What constitutes to the stability of the State is its judiciary. Amidst the strident clamaur of political strife and the tumult of the clash of conflicting classes the Courts of Law remain steadfast and impartial. Only a real and full acceptance of these principles can enable our new born democratic republic to survive." The Indian Law Institute gives the following meaning to Rule of Law;

25 a) Powers of executive may be increased only in unavoidable circumstances. b) Discretionary powers of the executive should be limited. c) Power handed over to executive is not its inherent power, it is granted to it by law. d) Administrative decisions should be subject to judicial review. e) There should be proper publicity in case of delegated legislation and it should be subject to control of Parliament and Judiciary. f) Principles of natural justice should be observed by administration while decisions are taken. The Supreme Court of India explaining this concept said in Soma Raj Case: "The absence of arbitrary power is the first postulate of Rule of Law upon which our constitutional edifice is based. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law." Declaration of International Commission of Jurists The idea of the Rule of Law was formulated in some detail by the International Commission of Jurists, a voluntary body of lawyers, not associated with any governments, in their Declaration of Delhi in January, This declaration may be summarised as follows:- a) The function of the legislature in a free society under the Rule of Law is to create and maintain the conditions which upheld the dignity of man as an individual. The dignity requires not only certain recognition

26 of his civil and political rights but also establishment of the social, economic, educational and cultural conditions which are essential to the full development of his personality. b) The Rule of Law depends. not only on the provisions of adequate safeguards against the abuse of power by the Executive, but also on the existence of effective government capable of maintaining law and order and of ensuring adequate social and economic conditions of life for the society. c) The criminal process and the Rule of Law in criminal matters, according to the third committee, the rule of law requires, interalia, certainty of the criminal law, presumption of innocence, and a public trail with a right to legal remedies, including an appeal. It is also necessary that the arrest is strictly regulated by law; detention pending trial is permitted only in the interest of public security or the administration of justice; counsel of one's choice is permitted; and an accused is not compelled to incriminate himself. d) An independent judiciary and a free legal profession are indispensable requisites for a free society under the Rule of Law. To an Englishman a free judiciary seems self-evident and does not need elaboration, but an independent legal profession is almost as important. The success of the Rule of Law in England was due to the cooperation between the lawyers and the judiciary, on one hand, and Parliament, on the other hand. The Rule of Law and the sovereignty of Parliament worked harmoniously in their common attempt to limit the power of executive. But

27 the basic weakness of the rule of the law based on ordinary law is that the spirit of the rule of law is prevented when legislation results in unjust laws. RULE OF LAW IN INDIA5&6 The concept of Rule of Law in its ordinary sense of supremacy of law, had its groundings in India from the very beginning of its civilization. In ancient times Rule of Dharma prevailed in the form of Dharma Shastras or Neethi Shastras. Even the King was under the Rule of Dharma and was not exempted from it. Brahdaranyaka Upanishad states that: law is the King of Kings. Some of the important rules based on Dharma Sashtra, Neethi Sashtra and Artha Sashtra were as follows: (a) No decision shall be given by a person singly; (b) They must hear both parties to a cause; (c) They must not have any bias or interest in the cause; (d) The hearing must be in the open in public view; (e) They must not be prejudiced against either party for any extraneous reasons; (f) They must pronounce judgement and give their reasons for their findings. Even during Moghul Rule in India, the supremacy of law was recognized. However, when the East India Company stepped in India, the concept of the Rule of Law in England by Dicey, it was not extended to India. The English remained a Privileged community.

28 With the establishment of Supreme Court at Calcutta in 1774 an effort was made to make judiciary independent of the executive. However, the powers of the courts were weakened on the enactment of Settlement Act of Rule of Law in its modem concept was again established in India after independence when in 1950 the Constitution of India was made the supreme law of the land. The Rule of Law was placed on a footing higher than ordinary legislation. Any law inconsistent with the Constitution is null and void. The suppression of liberties by legislation occurred not only in India, but elsewhere also. Post Independence Position Rule of Law in India is established in Habeas Corpus Case, [ADM, Jabalpur v. S.K. Shukla, AIR 1976 SC 1207], in that case Justice Ray said that, "The Constitution is the rule of law" and that "no one can rise above the rule of law in the Constitution." Various Constitutional and other provisions illustrate that a rule of law exists in India: a) The ideal and objective of the Constitution is summed up in its opening words i.e. the Preamble which speaks of justice, liberty, equality, fraternity and dignity of the individual. b) To give content to these ideals the Constitution guarantees the fundamental rights to the individual and imposes some positive obligations on the State in the form of directive principles. c) The fundamental rights can't be abridged or taken away by legislation in a manner that 'affects the 'basic structure' of the Constitution.

29 d) Other provisions in the Constitution-no tax can be collected nor property be taken without the authority of law, freedom of trade, commerce and intercourse throughout the territory of India, protection to SCs, STs and backward classes, etc. e) Provisions for fair trial are provided in the Cr. P. C. The presumption of innocence of the accused is well established in our law. f) Independence of judiciary is fully guaranteed under the Constitution. g) Full autonomy has been ensured to the legal profession. h) Judicial review of the executive and legislative measures keeps the government's actions under proper control. However, there are a number of factors which undermine the rule of law in India: 1) Unguided discretion of administrative officials. 2) Existence of provisions like preventive detention under Article 22 of the Constitution. 3) Erosion of independence of judiciary by frequent transfers of High Courts judges. 4) Suspension of fundamental rights (except Articles 20 and 21) during emergency. 5) Limitations of judicial review. 6) Delays in dispensation of justice and high court-fees which practically denies justice to the poor sections. Nevertheless, we may say that by and large the Indian Legal System provides all the machinery necessary for the development and maintenance

30 of rule of law. In recent years, the Supreme Court has recognized 'right to information' as an implied fundamental right. Under Public Interest Litigation, anyone having sufficient interest in the subject-matter of the dispute, even though he himself is not an aggrieved party may approach the court. These measures have greatly strengthened the rule of law by protecting the liberties of the individual. Thus, rule of law is not a myth but a reality in the Indian legal system. Judicial activism and concept of Rule of Law7 A study of Keshavananda, Indira Gandhi & Habeas corpus cases, writes Prof. Upendra Baxi, provides a distillation of Indian judicial thought on the concept of the rule of law, which has evolved well over a quarter of century. of the rule of law, which has evolved well over a quarter of century." In Keshavanimd's case (AIR 1973 SC 1461) the rule of law was considered as an "aspect of the doctrine of basic structure of Constitution which even the plenary power of Parliament cannot reach to amend." In Indira Nehru Gandhi v. Raj Narain (AIR 1975 SC 2299), the supreme court holding clause (4) of Article 329(A) inserted by 39th Amendment in the constitution as unconstitutional (under this provision, the election of P. M. & Speaker was kept in 9th schedule of constitution could not be challenged in a court of law and Representation of People Act would

31 not be applicable to election of PM & this was given retrospective effect) said that it was volatile of rule of law which was part of basic structure of constitution. Mathew J. was of the view that clause (4) of Article 329(A) offends the rule of law which is pervading spirit of the constitution. The rule of law excludes arbitrary action in any sphere of the government. Beg J. observed that jurisdiction of Supreme Court to try a case on merits cannot be taken away without injury to the basic postulates of the Rule of Law & of justice within a politically dem9cratic constitutional structure. In A.D.M. Jabalpur v. Shiv Kant Shukla (AIR 1976 SC 1207), popularly known as habeas corpus case it was recognised that in spite of the unfortunate order to the effect that the doors of the court during emergency are completely shut for detenus, it is gratifying to note that the concept of rule of law can be used as legal concept. In this case attempt was made to challenge the detention orders during emergency on the ground that it violates the principles of the Rule of Law. In Maneka Gandhi v. Regional Passport Officer [(1978) 1 SCC 248] Section 10 (3) (c) of the passport Act, 1967 was held ultra vires since it provided impounding without procedure. This case also strengthens the rule of law with reference to personal liberty. In S.P. Gupta v. Union of India, 1982 Supp SCC 87, the Supreme Court ruled that "The right to know" has become an integral part of the citizen's right in our democracy. Insofar as "right to equality" is concerned discrimination in payment to employees was held to violate this right and

32 classification of pensioners on unreasonable ground was held to be artificial and arbitrary. In Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, the question was regarding power to amend the Constitution (39th Amendment Act). The Supreme Court held that Article 368 does not enable Parliament to alter the basic structure framework of the Constitution, any Act giving Parliament a vast and undefined power to amend the Constitution is limited and under the exercise of that limited power, it cannot enhance or enlarge that very power' into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution. the donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one. The newly inserted clauses (4) and (5) of Article 368 were therefore held to be unconstitutional. The decision thus fortifies the idea of the rule of law. The modern concept of the Rule of Law is fairly wide and set up an ideal. for any government to achieve. In this sense, the Rule of law 4nplies 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. This dignity requires not Nature and Scope of Administrative Law) only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential 10 the full development of his personality. To achieve this, during last few years the courts have developed some fine principles to

33 establish a rule of law society in India not only by providing constraints on governmental actions but also by imposing and insisting on "fairness" in every aspect of the exercise of power by the State. Thus the efforts of the Courts in legitimizing "due" administrative powers and illegitimizing "undue" powers by operationalizing substantive and procedural norms and standards can be seen as a high bench mark of judicial activism for firmly establishing the concept of the Rule of Law in India. Thus in Sheela Barse v. State of Maharashtra (AIR 1983 SC 378) the court insisted on "fairness" to the women in police lock up and drafted a code of guidelines for the protection of female prisoners. In Veena Seth v. State of Bihar (AIR 1983 SC 339), the S.C. extended the reach of rule of law to the down trodden and the poor. It ruled that rule of law does not exist merely for those who have means to fight for their rights and very often for perpetuation of the status quo which permits them to exploit a large section and community. Thus the efforts of the courts in legitimizing' due' administrative powers and illegitimatizing "undue" powers by operationalizing substantive and procedural norms and standards can be seen as high bench mark of Judicial activism for firmly establishing the concept of rule of Jaw in India. In State of M.P. v. Rameshanker Raghuwanshi the court secured 'fairness' in public employment by holding that reliance on police reports is entirely misplaced in a democratic republic. Thus the efforts of the courts in

34 legitimising "due" administrative powers and illegitimating "undue" powers by operationalizing substantive and procedural norms and standards can be seen as a high bench mark of judicial activism for firmly establishing the concept of the Rule of law in India. In P. Sambamurty v. State of A.P. (1987) I SCC 362 case, stated that Article 371-D(5) (proviso) of the Constitution violated the concept of Rule oflaw which is part of basic structure, and is an essential feature of the constitution. Under the provision, the State of Andhra Pradesh had nullified a decision of the Administrative Services Tribunal. The SC held that the provision was ultra vires as it conferred arbitrary power on the State to encroach on the rights of citizens. Court also held that exercise of power by the executive or by any other authority must not only be conditioned by the Constitution but must also be in accordance with law. In Delhi Transport Corporation V.. D.T.C. Mazdoor Congress (Air 1991 SC 101) Ramaswamy J., Succinctly formulated the meaning of rule of law thus: The absence of arbitrary power is the first essential of rule of law upon which whole constitutional system is based. In a system governed by rule of law, discretion when conferred upon executive authority must be confined within defined limits. The Rule of Law from this point of view means that decisions should be made by application of known principles and rules and, in general such decisions should be predictable and the citizen should know where he is

35 In recent, the Supreme Court has evolved a whole lot of 'human rights jurisprudence' by giving a liberal interpretation to Article 14 (Right to Equality). Article 19 (Freedom of Speech, Expression, etc) and Article 21 (Right to Life and Personal Liberty) of Constitution. Thus, various 'implied' fundamental rights like right to information, right to dignity, right to free legal aid, right to speedy trial, right to clean environment, right to livelihood, etc. have emerged. Further, under public interest litigation, anyone having sufficient interest in the subject-matter of the dispute, even though he himself is not an aggrieved party may approach the court. These measure have greatly strengthened the rule of law by protecting the liberties and ensuring the dignity of the individual. In the final analysis, we may State that the rule of law means; (i) a system of rules; (ii) fixed rules (as opposed to discretionary rules; (iii) due process off fairness of law-law has to be just law; (iv) natural law, i.e. morals universally applicable; and (v) judicial review The modern concept of rule of law is fairly wide and, therefore, sets an ideal for any government to achieve. It is the fullest possible provision by the community of the conditions that enable the individual to develop into a morally and intellectually responsible person. Rule of law cannot be established merely by enacting laws and giving rights to the people. The desire for it must be a goal of every citizen of this country.