Rule of Law | Administrative Law - CLAT PG PDF Download

Rule of Law

• The Rule of Law is a vital principle in the field of Justice, representing the idea that everyone is subject to the law, and that the law applies equally to all individuals, regardless of their status or power.
• It stands in opposition to arbitrary and autocratic uses of power, ensuring that governance is conducted according to established laws rather than personal whims.
• The concept has historical roots, dating back to Roman times when it was known as 'Just Law' or 'Jus Naturale.' Over time, it has evolved through different interpretations, such as 'Law of God' in medieval times and 'Contract Law' or 'Natural Law' by social contract theorists like Hobbes, Locke, and Rousseau.

• In modern times, the Rule of Law emphasizes the supremacy of regular law over arbitrary power, advocating for a legal framework that is certain, regular, and predictable.
• Dicey, a prominent figure in this discourse, highlighted key aspects of the Rule of Law, including the supremacy of law,equality before the law, and the predominance of legal spirit. He argued against excessive discretionary powers in governance, advocating for a system where individuals are subject to the same legal standards without special privileges.
• The Rule of Law is not just about legal frameworks; it embodies principles of freedom, equality,non-discrimination,accountability, and non-arbitrariness. It calls for a legal order that is just, reasonable, and aimed at enhancing the quality of life for all citizens.

Supremacy of Law

• Dicey emphasized the absence of excessive discretionary power in the hands of government officials.
• He believed that justice should be administered through known principles, and that discretion often leads to arbitrariness.
• According to Dicey, the Rule of Law signifies the supremacy of regular law over arbitrary power or wide discretionary authority.
• He argued that English citizens were governed by law alone, and could only be punished for breaches of law, not for other reasons.
• Dicey’s principle of supremacy of law aligns with the democratic ideal that no government official should have unchecked power to infringe upon individual liberties.

Equality Before Law

• Dicey’s second principle of the Rule of Law emphasizes equality before the law, meaning all individuals are subject to the same legal standards.
• In England, according to Dicey, there were no special courts or privileges for government officials; everyone was subject to the ordinary law.
• This principle ensures that no one is above the law, and all individuals, regardless of their status, are held accountable by the same legal framework.
• Dicey contrasted the British legal system with the French system, where government officials had special protections and were judged by different rules.
• He argued that in Britain, government officials could be held liable for illegal actions just like private individuals, promoting a democratic principle of equal accountability.

Predominance of Legal Spirit

• Dicey noted that in countries with written constitutions, individual rights are often guaranteed by the document itself.
• However, in England, rights such as personal liberty and freedom from arrest are established through judicial decisions in specific cases.
• Dicey valued the role of courts in protecting individual liberties and believed that rights are better secured through judicial enforcement than mere declarations in a document.
• He argued that fundamental rights should not be based on any document because documents can be amended, and rights can be revoked, as seen during the 1975 emergency in India.
• Dicey criticized the French system of droit-administratif, where administrative tribunals handled cases involving state officials, arguing that this undermined the principle of equality before the law.
• He believed exempting civil servants from ordinary courts and having special tribunals for them violated the rule of law.

Analysis on Dicey's Rule of Law

Dicey's Perspective on Administrative Law

• Dicey viewed administrative law as a narrow aspect of the French droit administratif, focusing on administrative jurisdiction and excluding ordinary civil and criminal processes.
• He acknowledged, after 1901, that his understanding of administrative law's nature and existence was not shared by De Tocqueville, who admitted his lack of knowledge about the workings of droit administratif in his time.
• Dicey was historically accurate until 1873 when executive law established the Council d'Etat's jurisdiction over administrative matters.
• Dicey's Misconceptions
• Dicey misunderstood the French system of administrative law, believing it encompassed more than it did.
• His focus was on administrative adjudication, comparing the English and French systems regarding conflicts between individuals and the state.
• Dicey failed to recognize that judicial and administrative agencies are not fundamentally different; both apply the law to individual cases with discretion.
• He incorrectly asserted that there was no administrative law in England, ignoring the special privileges enjoyed by the Crown and its servants based on the doctrine that "the King can do no wrong."

Rule of Law and Administrative Law

• Dicey's formulation of the rule of law does not contradict administrative law if interpreted as the absence of arbitrariness and equality before the law.

Merits of Dicey's Thesis

• The doctrine of Rule of Law was instrumental in keeping administrative authorities within their limits and served as a benchmark for testing administrative actions.
• It was widely accepted as a Constitutional safeguard across various legal systems.
• The first principle of supremacy of law ensures that every Government is subject to law, opposing arbitrary discretion by governmental authorities.
• The second principle of equality before law embodies the maxim that all individuals are equal before the law, regardless of their status.

Demerits of Dicey's Rule of Law

• Dicey's Rule of Law, despite its merits, has limitations and pitfalls. Critics argue that the rules established by Dicey in the English legal system were the outcome of political struggle rather than logical deductions from the Rule of Law.
• The first rule faced criticism because Dicey equated the supremacy of the Rule of Law with the absence of arbitrary and discretionary powers. He argued that wherever there is discretion, there is room for arbitrariness, failing to distinguish between arbitrary power and discretionary power. While arbitrary power is inconsistent with the Rule of Law, discretionary power is acceptable if exercised properly. Modern welfare states rely on the proper exercise of discretionary powers.
• Moreover, it is not accurate to claim that the end of law necessarily leads to tyranny. As David pointed out, "where the law ends, discretion begins." The exercise of discretion can lead to beneficence or tyranny, justice or injustice, reasonableness or arbitrariness. It is impossible to envision a government solely of laws and not of men by eliminating all discretionary powers.
• The second principle proposed by Dicey was equally flawed. He misunderstood the nature of droit administratif, believing that administrative courts in France, including the Conseil d'Etat, granted special rights, privileges, and prerogatives to government officials over private citizens. However, the French system was often more effective in controlling administrative abuses than the Common Law system. Although the Conseil d'Etat was technically part of the administration, it functioned as a court and subjected administrative actions to judicial scrutiny by real judges.
• Furthermore, during Dicey's time, various administrative tribunals existed that adjudicated the rights of subjects based on special laws rather than Common Law and Crown Court procedures. The Crown enjoyed immunity under the maxim "The King can do no wrong," making it inaccurate to claim strict equality before the law in England.
• Administrative law developed not to legitimize executive arbitrariness but to check it and safeguard people's rights against administrative excesses. The central theme of administrative law is the reconciliation of liberty with power. Administrative law and the Rule of Law are not separate entities; both aim to reduce arbitrariness and promote fairness and transparency in the exercise of public power.
• While the distrust of the administrative process and education has been disproven in the French context, it remains relevant in the Indian scenario, where administrative actions are often arbitrary and based on extraneous factors, and administrative justice is often a denial of justice.

Developments in Britain

• In Britain, the administration was predominantly under the control of the executive, and the concept of the rule of law did not align well with governance affecting the general populace.
• Lord Hewart, in his 1929 book The New Despotism, criticized the expanding administrative powers of legislation and adjudication, warning of potential misuse by officials and highlighting the bureaucracy as the true rulers of the country.
• The Donoughmore Committee, established in 1929, examined the powers exercised by ministers through delegated legislation, judicial, and quasi-judicial decisions, aiming to uphold the constitutional principles of parliamentary sovereignty and supremacy of law.
• The committee identified three major flaws in the existing Administrative Law system:Inadequate publication and control of subordinate legislation,Inability of subjects to sue the Crown in tort, and Loss of control and supervision of administrative decisions from courts to specialist tribunals and commissions of inquiry.
• Changes were deemed necessary, leading to the establishment of the Tribunals and Enquiry committee. The Crichel Down affair, a political scandal in 1954, prompted the Franks committee to review the adjudication system by administrative tribunals and inquiries.
• The Franks Committee made two key recommendations:Creation of a General Administrative Tribunal to address appeals from various tribunals and quasi-judicial bodies, and Establishment of a new High Court division for administrative discretion with general appellate jurisdiction.
• The Franks committee rejected both proposals, advocating for a general appeal structure from first-instance tribunals to appellate tribunals, followed by appeals to the court on legal points.
• The Whayatt Report proposed the appointment of an ombudsman, emphasizing that judicial control over administrative powers needed to be supplemented by other institutional arrangements.

Developments in Australia

• Australia's framework for law and government features a comprehensive administrative law system developed over three decades, including judicial review by courts,merit review by administrative tribunals, investigations by the ombudsman and human rights agencies, and rights conferred under freedom of information and privacy legislation.
• The Administrative Decision (Judicial Review) Act, 1977 granted judicial review power to the federal court, established in 1976, and an administrative review council, similar to the British council on tribunals but with broader terms of reference, to oversee administrative procedures in Australia.