Rule Of Law And Judiciary Under Indian Administrative Law

Author: LawSphereX

Category: Administrative & Regulatory Law

Published: 2026-08-23T21:01:37.783Z

Updated: 2026-08-30T07:09:38.017Z

RULE OF LAW AND JUDICIARY UNDER INDIAN

ADMINISTRATIVE LAW Seena B Nair, Research Scholar, School of Legal Studies, VELS Institute of Science, Technology and Advanced Studies Dr. S. Ambika Kumari, Professor and Dean, School of Legal Studies, VELS Institute of Science, Technology and Advanced Studies

ABSTRACT

An independent judiciary forms the important feature of the Constitution of India. Our constitution imposes many important responsibilities on the judiciary like determining the limits of power of the Centre and States, providing a relief in the matters concerning abridgment of the fundamental rights, safeguarding the person’s rights and thereby securing equal justice without any kind of favour or fear. For such purposes we require an impartial and independent judicial setup with power of judicial scrutiny. It is a custodian of the citizen’s rights. Our Constitution maker has imposed the obligation on judiciary to guard the constitution. There are mainly 3 organs of the government viz. , judiciary, executives and law-making organ. The judiciary is obligated to check that both works done by executives and legislature are in consonance with the “Rule of Law (ROL)”.

The term Rule of Law explain that “every act shall be carried out as per the law which means that the concerned State must act according to the law and it must be grounded on the principles relating to law. The emerging idea of ROL has been developed by the judiciary in a manner that the ROL must be opposed to the tyrannical or arbitrary power. Rule of law is a weapon for checking the unjust or arbitrary power of government. If we want government of law and not of man then, every action of government should be according to the rule of law. But if there is no independent judiciary then the problem arises as to who will check that the government action is as per the law. However, the issues can be raised as to whether “Rule of Law is basic structure under basic of the Land? What is check and balance?

Indian judiciary rather than following rule of law, have followed the rule of check and balance? How far it helps to judiciary in safeguarding the individual rights? ” In order to answer these questions, the author will delve into the aspect of rule of law and how it has been utilized by the Court in India to quash the several arbitrary actions of the government. Keywords: Rule of Law, Judiciary, government, arbitrary power.

INTRODUCTION

The expression “Rule of Law” is traced from the French maxim- “la principe de legalite” which implies rule of legality. It signifies that government shall be premised on the rule of law (ROL) and it shall not be governed in accordance with men. 1 The founder of this concept was Sir Edward Coke during King James I Rule. He mentioned that- “the King shall be under the Law and God”. He maintained that law is supreme which will be invoked against the executive. Any democratic nation will have enormous reverence to the concept of Rule of Law. It ensures proper structure, stability and most significantly limits the arbitrary division of control and power. Rule of Law has facilitated the efficient administration which has eventually resulted into everlasting worth to the basic law of the land.

HISTORICAL OVERVIEW Although until now there is no common agreement as to origin of rule of law, it has been firmly believed that it is present from time immemorial: that all person possessing power should be bound by the legislative regime. So, it is of ancient and old origin. Aristotle and Plato, the most leading Greek philosophers discussed this doctrine in the period of 350 BC. It has been mentioned by the Plato that- “The collapse of State is very near where the law is subject to some powerful authority”. Similarly, the concept was described again by Aristotle in following words- “law must govern and those in authority shall be servants of laws. ” Socrates adopted a secular approach towards ROL. Later on, in a book “Introduction to the Study of the Law of the Constitution” authored by AV Dicey described the idea of “Rule of law” in modern perspective.

Position in England Although the Constitution of UK is uncodified and unwritten, the ROL is applied by the judiciary. The said principle imposes an efficient governance over the administrative and executive power. But it is pertinent to note that Dicey’s principle was not incorporated by English government to the fullest extent. In those times, several legislations permitted prioritization of administrative power in several matters and it was not questioned before the judiciary. Moreover, sovereign immunity prevailed based on the principle of “King can do no wrong”. It was abolished in the year 1947 by way of “Crown Proceedings Act”. 2

1 I.P. MASSEY, ADMINISTRATIVE LAW 342 (10th edn., Eastern Book Company, 2023).

2 Tanya Sharma, Rule of Law

A Detailed Analysis, 8(10) IJCRT, 1142, 1149-1150 (2020).

Position in France In France, two sets of laws and courts existed which are called as “droit administratif”. The ordinary courts dealt with the matters related to civil law and disputes between subjects. Whereas, the administrative courts were involved in administering the statute between the government and subjects. Dicey misinterpreted the French legal structure and assumed that special prerogatives and immunities were granted to the State by the administrative courts. But the reality was completely different as the courts followed the concept and subjected the authorities to the “principle of Rule of Law”. Position in USA USA government incorporated ROL from medieval UK, which was described in following manner- “a State governed by law, not by men”.

The federal Constitution which was brought into effect in 1787 has modified the existing idea of constitutional government and adopted the “Principle of Constitutional Supremacy”. Article VI of the US3 basic law of the land declares that “Constitution shall be supreme law”. In a leading decision of Marbury v. Madison4, the Court enunciated that “the authority of judicial review and US Constitution is the extensions of rule of law”. The major standards contained under the Constitution of US relating to ROL are provided below- (i) The basic law mandates that its government shall be answerable politically to both citizens and the state who are regulated by it. (ii) It firmly provides that the legitimate expectation of is derived from the citizens; and (iii) It seeks to encourage supremacy of law.

Position in India Under Indian legal regime, the origin of “Rule of law” can be traced from the Upanishads. In contemporary period also, the entire scheme of basic law is grounded upon the idea of Rule of Law. The drafting committee of the Constitution were well aware of the postulates given by the Dicey and thus they provided recognition of ROL under the Constitution. In the case of Re Arundhati Roy5, the Court opined that- “Rule of law is the fundamental principle with respect to the governance of any democratic

3 U.S. Constitution, Art. VI.

4 5 US (1 Cranch) 137 (1803).

5 AIR 2002 SC 1375.

civilized polity. Our constitutional framework is premised on the idea of rule of law which we have incorporated and given to ourselves. No individual how so ever higher she or he is, cannot be powerful than the law. For establishing the rule of law, the Indian judiciary have been made responsible designated with special task. The judiciary can only unfold and establish such principle. ” RULE OF LAW- MEANING AND CONCEPT The administrative law is based on the principles of “Rule of Law”, which was brought by Edward Coke and was later on shaped and evolved by Prof. A. V. Dicey.

As per Dicey, the concept comprises of 3 major postulates/principles as described in following manner- (i) Supremacy of Law The foremost principle of ROL is “law is supreme and no individual can be subjected to sanction except for a distinct abridgment of law formed in legal manner and brought before the ordinary courts”. It can be inferred that a person can be penalized only after following proper procedure and for violation of law. Under Indian Constitution, the said principle is envisaged under Article 206 which specifies that “accused person is entitled to know the ground for charges and arrest against him”. This principle has been elaborated by the Apex Court in the case of Indira Nehru Gandhi v. Raj Narain7.

It was remarked by the Court that “Rule of Law mandates that the measures and decision shall be adopted by applying the existing norms and principles and generally the said decisions shall be predictable. Where any action is adopted without any rule, it will be deemed as non-predictable and the said action would be contrary to the decision adopted in consonance with the rule of law. ” (ii) Equality before Law This rule provides that “no person is above law”. All person regardless of his condition or position is subjected to ordinary law and fall within the jurisdiction of the tribunals. Dicey mentions that “there shall be equal subjection of every class to the basic law of the country i. e. , there shall be equality before law. ” He observed that in UK, every individual was subjected to one common law and there were no

6 INDIA CONST. Art. 20.

7 AIR 1975 SC 2299.

exclusive or separate forum for adjudicating the matters related to authorities or public servant. He declared- “All the officers from Prime Minister down to collector of taxes or constable is under same liability of each act carried out without lawful justification as any other person or citizens. ” This postulate has been incorporated under Article 14 of the Indian Constitution8 which specifies that “the concerned government must not deny to any individual equality before law”. It can be inferred that the said provision eliminates any kind of special and exclusive privilege favouring any person and assures that everyone is treated equal before the law.

(iii) Constitution’s supremacy- “Pre-dominance of Legal Spirit” The last principle states that- “the general rule of the basic law of the land are the result of juridical decisions recognizing the rights of private individuals in specific matters brought before the concerned judiciary”. The significance of court has been stressed by the Dicey and recommended that the rights shall be guaranteed more sufficiently if they can be enforced before the court than merely declaring those rights in a Constitution because in the later case they could be trampled, curtailed or ignored upon. He noted that- “the constitutional law, the regulations which in foreign national naturally becomes an essential element of constitutional code, are not the source but the outcomes, of the rights of persons, as determined and implemented by the judiciary”9.

SIGNIFICANCE OF RULE OF LAW The ROL plays a vital role in administering the government in several ways which has been mentioned below- (i) Fairness The ROL seeks to promote procedural fairness with respect to the decision taken by the government. It further ensures fairness in adjudication by independent and impartial decision-maker10.

8 INDIA CONST. Art. 14.

9 V.N. SHUKLA, CONSTITUTION OF INDIA 256 (14th edn., Eastern Book Company, 2022).

10 Brain Chacha Sammy, The Doctrine of the Rule of Law, RESEARCHGATE (2022).

(ii) Justification It mandates for justification or reasons from the administrative agencies with respect to their actions and measures. (iii) Authorization As per the principle, the liberty of a person can be restricted only when it is authorized by the respective law. The decisions or actions carried out by the State shall be derived from a legal and valid source like a legislation or basic law of the land. (iv) Notice Notice is another focal point under ROL which aids the law in providing guidance to the actions by persons. Some of the major values related to notice under ROL are clarity, publicity, stability and consistency. RULE OF LAW AND ITS CRITICISMS The Dicey’s principles of “Rule of Law” is criticized on several occasions- (i) Dicey has mentioned in its principle that “discretionary authority implies making of room for arbitrariness”.

But in contemporary era it is quite evident that vesting discretion to the administration is inevitable. (ii) The postulates have failed to differentiate between “arbitrary power and discretionary power”. (iii) It can be witnessed that majority of the nations including India and England, few immunities and privileges are vested on many personalities like Justices, consuls, diplomats, Head of the nation, etc. (iv) The last postulate of the principles is the consequence of judicial precedents and is derived from Britain Constitution and is not sufficiently applicable in India, America and many other nations11. INDIAN CONSTITUTION AND RULE OF LAW India is being praised as the largest and majority active democracy across the globe. The rule of law and democratic liberties, which are exclusive to Indian citizens in South Asia, are highly 11 Nikita Deo Singh & Dr. S. K.

Bose, The Rule of Law and Its Modern Concept- A comparative study, 30 Supremo Amicus 242 (2022). praised around the world. However, despite more than 70 years of independence, the lives of the majority of Indians have yet to be improved. India has a written Constitution, as well as rules and regulations, executive orders and conventions that are all subordinate to the Constitution and addresses with numerous areas or topics. All of them are collectively called as “law” and “Rule of Law” is how they apply to the populace. It has succeeded in adhering to the democratic meaning. It has distinctly outlined judiciary and establishes the boundaries of each institution’s function. It has incorporated the “doctrine of rule of law” under various provisions and are guaranteed through fundamental rights like Article 14, 2112, 1513, 20, 2214, 2515, 31A, and so forth.

Where these rights are contravened, the aggrieved person can approach the Apex Court or concerned High Court under Article 3216 & 22617 respectively. The Preamble and Article 14 of Constitution collectively signifies that the founding fathers have incorporated the concept of “Rule of Law” under Indian Constitution. CONTEMPORARY IDEA OF RULE OF LAW The modern concept of ROL was introduced by “the International Commission of Jurists” in the year 1961 which was also known as Delhi Declaration. As per this, the ROL signifies that “in a free society, the function of the State shall be discharged so as to upheld the dignified life of a man as an individual”. The said Commission bifurcated itself into some working committee viz. , “Committee on Judicial Process and Rule of Law, the Committee on Individual Liberty and the Rule of Law, Committee on Individual liberty and Rule of Law, etc”18.

It has been noted by Committee on government & ROL that- “Rule of Law is not merely a sufficient protection against misuse of authority but also impact the State that is competent to maintain law and order”. Further, the Committee on Individual Liberty and ROL declared that- “the government shall limit itself from passing discriminatory legislations; the concerned government shall restrict itself from interfering with the freedom and religious belief of the people living in the nation”. The principles given by Dicey was not entirely adopted in his period. Several jurists criticized the principles as mentioned above. But later on, Davis gave a set of eight essential elements of

12 INDIA CONST. Art. 21.

13 INDIA CONST. Art. 15.

14 INDIA CONST. Art. 22.

15 INDIA CONST. Art. 25.

16 INDIA CONST. Art. 32.

17 INDIA CONST. Art. 226.

18 Supra note at 1.

the expression “Rule of Law” which is called Modern/contemporary concept of Rule of Law. It has been described below- (i) Maintaining order and law. (ii) Fixed or ascertained norms/rules. (iii) Eliminating discretion. (iv) Lack of element of arbitrariness. (v) Fairness or due process. (vi) Compliance of natural justice. (vii) Giving priority to judiciary instead of administrative tribunals and executives. (viii) Judicial scrutiny of actions undertaken by administration19. ROLE OF JUDICIARY IN IMPLEMENTING RULE OF LAW In plethora number of cases, the Indian Courts have endorsed the concept of “Rule of law” in Indian legal setup. These cases have been examined below- In A. K. Kraipak v.

Union of India20, it was enunciated by the Court that “the rule of law as provided under Indian Constitution pervades over the area of administration and each branch of the government is government by the rule of law”. The Supreme Court in ADM Jabalpur v. Shivkant Shukla21, famously called as “Habeas Corpus Case”, is a leading decision relating to Rule of Law. In the instant matter, the issue raised before the Court was “whether Rule of Law in Indian context is existing other than Article 2122 of the Constitution? ” The Court was of the view that there is no distinct rule of law other than those enshrined under Article 21. However, the dissenting opinion of Justice Khanna was highly praised. He stated that- “even where Article 21 is suspended, the State has no authority to deprive an individual of his life or liberty. This forms a significant element of the rule of law.

” The remarks made by Justice Khanna led to diluting the decision of ADM Jabalpur and strengthened the predominance of legal spirit as enunciated by AV Dicey. The ambit of Rule of Law was expanded by the Apex Court in Veena Seth v. State of Bihar23, wherein it was stressed by the Court that- “Rule of Law extends to the illiterate and ignorant,

19 Esha Gupta, Rule of Law in India, 1(2) IJLSI 1, 3-4 (2019).

20 AIR 1970 SC 150.

21 AIR 1976 SC 1207.

22 INDIA CONST. Art. 21.

23 AIR 1983 SC 339.

downtrodden and poor, who constitute the major proportion of humanity in India. ” It was held that “Rule of Law not only extends to those individuals who have sufficient means to redress their rights, but also to those who are from weaker class of society”. The Apex Court in “A. P. Aggarwal v. Government of NCT of Delhi24” have highlighted that “for validating the action or decision undertaken by State, it shall be subject to the test of arbitrariness which is the core part of Article 14 and is fundamental to rule of law, the mechanism which regulate us”. Further, in the case of Union of India v. President, Madras Bar Association25, the Apex Court outlined that “ROL has many forms, one of which is that issue of people will be determined by the impartial and independent judges; and that issue as to legal sanctity of enactment passed by the State would be dealt by independent judges”26.

In “Keshvananda Bharti v. State of Kerala27”, the Court was of the view that- “rule of law is an essential part of basic structure under Indian Constitution, which cannot be altered by the plenary power of the Union legislature”28. In the case of Som Raj v. State of Haryana29, the Court expressed that “the primary principle of the rule of Law is the absence of arbitrary power upon which the entire constitutional edifice depends. Discretion used without complying with rule is an idea which is antithesis to the concept. ” The Supreme Court in the landmark decision of “Chief Settlement Commr. , Punjab v. Om Prakash30” concluded that “In Indian constitutional setup, the rule of law seems to the most significant part. In contemporary scenario, it has ensured that court would test every action by administration.

Where the action by executives or administrative does not fulfil the requisite standards, then it shall be liable to be set aside”. In the case of “E. P. Royappa v. State of Tamil Nadu31,” Supreme Court has modified the concept and held that “arbitrariness and equality are sworn enemies”. It was noted that rule of law demand that every action of government should be according to the law. Here, judiciary

24 AIR 2000 SC 205.

25 (2010) 6 SCR 857.

26 A. Abhirami, Rule of Law in Indian Constitution- A Critical Legal Analysis, 10 JETIR 655, 657-660 (2014).

27 (1973) 4 SCC 225.

28 Ibid.

29 AIR 1990 SC 1176.

30 AIR 1969 SC 33.

31 AIR 1974 SC 555.

play dual and significant role- firstly, judiciary checks the law whether it is reasonable and fair or not and secondly, it ensures that government use these laws in fair manner and not arbitrarily. In a landmark judgment of Lucknow Development Authority v. M. K. Gupta32, the Apex Court outlined that although the State shall be made liable to pay compensation to a citizen. However, it doesn’t mean that judiciary has license to interfere in each and every action of the other organs of the government. The idea of rule of law also bound the Courts. Judiciary should act within the ambit of its own sphere and as per law and cannot judge any action of government by intruding in sphere of other organs of government. Since the judiciary has responsibility to check the action of legislative and executive bodies, it should be independent and impartial so it can discharge its function fairly.

If there is more intrusion by the government in the formation of judicial system and appointment of the judges then there is possibility that judgment of the judiciary would not be reliable and it will also result into loosing of the faith among citizens. Since India has not adopted strictly the concept of separation of power and our constitution has been framed in such a manner that all the three organs of the government cannot work independently because of that judiciary has evolved the concept of check and balance. The idea of check and balance means all the three organs check the action of other organs with minimum interference and try to strike balance among them.

CONCLUSION

After the aforesaid comprehensive analysis of concept of rule of law in India and UK, it is evident that “the idea of rule of law as enunciated by Dicey is Utopian in nature, making it not easy to apply in a nation like Inda. ” The concept of Rule of Law has yet to perfectly take control over administrative powers. However, it has been adopted by the nations to attain the Supremacy of Law. It has been proved to be a powerful armoury in restricting the tyrannical and arbitrary actions by authorities. It is premised on the phrase- “however high you might be, law is always supreme or above you”. The contemporary idea of ROL as provided by David has widened the ambit of the said concept and it has enabled the State to utilize it gracefully as the primary goal of administrative law is fill the lacunae between liberty and power.

The judiciary have been instrumental in incorporating the concept of rule of law. Therefore, the State under the guidance of Rule of law shapes the norms and rules which doesn’t intercept with a person’s dignity. Hence, it can be concluded by stating that-

32 AIR 1994 SC 243.

“Adequate liberty requires the justice and rule of law and a legislative framework wherein the rights of few are not assured by the refusal of rights to other people”