Rule of Law

One of the most influential concept of the rule of law was by the famous British constitutional theorist A.V. Dicey, in his seminal work, *Introduction to the Study of the Law of the Constitution*. He propounded three core principles as central to this concept. These were:

1. No Arbitrary Power:

He opines that the rule of law is a doctrine that mainly means nobody is above the law; everybody, including governmental officials, is subject to it. It repudiates arbitrary power and provides for any action on the part of the government to be conditioned by pre-established legal rules and principles.

He perceives that the acts of the government should be based upon the laws publicized to all persons and applied equally so that these laws could be predictable and fair.

2. Equality Before the Law:

-Every individual, irrespective of status or position, is equal before the law. Such a principle is what avails that the law treats all with the same status equally.

-Dicey's principle shows that the laws should be neutrally applied to all persons so as to avoid discrimination by rank or authority.

3. Constitutional Evolution Through Judicial Decisions:

According to him, constitutional principles and legal norms are derived from the case law and not in any written document.

Constitutional law therefore develops through judicial precedent and the gradual application of principles, not just by legislative enactment.

Criticisms:

The theory of the rule of law developed by A.V. Dicey has been very influential, not least in the context of British constitutional law. It has, however, been subjected to numerous criticisms, particularly when applied to modern administrative law and contemporary legal systems.

-Dicey's principle of equality before the law has been condemned for being highly formalistic. It usually lent importance to the fact that everybody is to be treated under the same rules, without any privilege or discrimination.

-Dicey's theory does not take into account the impact of administrative discretion. His preoccupation with the judicial and legislative aspects generally neglected the intricacies inherent in contemporary administrative procedures.

-Dicey's framework does not bring in express considerations of human rights, which become very significant in modern legal orders.

-His principles were formulated for a less complex, unregulated legal order and might not befittingly apply to the contemporary multi-layered administrative systems.

-He lays emphasis on judicial review as the chief mechanism to hold on to the rule of law. This framework is criticized because it does not effectively bring out other factors of accountability and transparency of administrative actions.

Rule of law in India

The concept of the 'Rule of law' is fundamental in Indian administrative law, ensuring that public authorities must act within the four corners of established legal norms.

1. Constitutional Foundation

Article 14:

- It guarantees equality before the law and the equal protection of the laws to everyone.

-This provision enshrines the principle of non-discrimination, mandating that all laws must be applied equally to prevent any form of discrimination by the state.

Article 21:

-It guarantees the right to life and personal liberty subject to the condition that these rights could only be curtailed in accordance with procedures established by law.

-Therefore, this article lays down the principle of legality firmly, stating that any deprivation of life or liberty has to be in a procedure laid down according to law, thus upholding the rule of law.

2. Judicial Interpretation

The role of the Supreme Court of India has been of prime importance in interpreting and enforcing the rule of law, making sure that administrative actions are in tandem with legal norms. The leading judgment delivered in 1973 in Kesavananda Bharati v. State of Kerala established that some basic features cannot be altered by constitutional amendments. Among the basic features is the principle of the rule of law.

-Maneka Gandhi v. Union of India, 1978, expanded the ambit of Article 21, stating that laws impinging on personal liberty must be just, fair, and reasonable and therefore strengthened the rule of law.

3. Administrative Actions and Accountability

-Administrative actions must be backed by and enabled in law; the authorities must act within the power conferred upon them by law.

-Decisions taken by administrative authorities be reasonable not arbitrary, and action taken must be fair and not arbitrary.

-Administrative decisions must be taken as per the principles of fair procedures. It includes the right to a hearing before the person affected, an opportunity of openness or transparency, and fairness.

Judicial Review:

-The courts examine the administrative actions taken by the administration for enforcing the legal norms. It does legality or validity, procedural fairness, and reasonableness of the decision are examined.

-It does not extend to the merits of decisions but focuses on whether the making of the decision complied with the legal norms.

4. Administrative Tribunals:

-They are specialized bodies; for instance, the CAT and state administrative tribunals are constituted to adjudicate upon disputes relating to administrative action and service matters.

-The tribunals ensure that the administrative decisions made by the administrative are based on the principles of law and decide on a platform for redressal of grievances.

Exception to rule of law

In Indian administrative law, while the rule of law is a basic principle that requires state action to be in compliance with certain previously declared legal rule, there are exceptions to this general principle where departure from the principle may be permissible-

1. Emergency Powers

-Articles 352-360 of the Constitution of India confer power upon the President to declare several types of emergencies at the national level. These include national, state, and financial emergencies.

-During emergencies, fundamental rights be suspended or restricted, which may have an effect on the full implementation of the rule of law.

-The executive may be clothed with more powers and may issue ordinances, thus may affect the usual check and balances.

2. Sovereign Immunity

-Doctrine of Sovereign Immunity, this principle shields the state and its agencies from being sued without its consent.

- The state is largely immune from processes for acts done in its sovereign capacity. Thus, very limited accountabilities can be enforced through ordinary courts.

-The doctrine does not apply to acts done in a commercial or contractual capacity. In such cases, the state will be liable.

3. Parliamentary Privilege

-Articles 105 and 194 of the Indian Constitution give some privileges and immunities to both members of Parliament and state legislatures.

-Legislators are immune from legal processes pertaining to acts performed in their legislative capacity. Such privilege does not apply to acts outside of legislative functions nor to the abuse of privilege.

4. Judicial Activism and Exceptions

-At times when the judiciary assumes the role of guardian of the rule of law, it tends to act in judicial activism, which may impinge on either the executive or legislative sphere.

-Courts can take administrative matters out of the hands of authorities to protect constitutional fundamentals of liberty and justice, thereby perhaps running into an issue of separation of powers.

-While it is done in furtherance of the rule of law, it often infringes upon the domain of executive and legislature.

5. Legislative Exemptions

-Some laws might make exemptions or create special provisions for some particular person or persons or entities.

-Such exemptions must be justified by public policy or specific needs and are subject to scrutiny to ensure that they do not undermine any fundamental legal principles.

6. Administrative Discretion

-Administrative authorities are granted discretion, which is embedded within their legal mandate about the decisions they make. They shall be exercised within the bounds of reasonableness and fairness. Arbitrary or excessive use of discretion can challenge the rule of law.

Implications for Administrative Action

Administrative acts consisting of decisions and actions taken by public authorities go a long way in ensuring compliance with the rule of law. The rule of law requires that all state actions should be conducted in conformity with relevant rules and principles of law.

1. Legality and Statutory Compliance

-Administrative acts should be carried out in the bounds of their statutory power. Public authorities are authorized to only act within that power conferred by an Act or delegation from that Act. Any action made outside these powers is considered ultra vires and, as a result, invalid.

-Administrative decisions should abide by established procedural norms. If prescribed procedures are followed, it will make sure the decisions are decided on a lawful framework, hence not arbitrary or personal discretion.

-If a competent authority is obliged to adopt certain procedural steps before issuing a licence, its failure to do so will render the decision without effect.

2. Reasonableness and Procedural Fairness

Administrative decisions should be based on rational, logical reasoning and relevant considerations, not on arbitrary judgment.

-Administrative decisions and actions should be conducted to ensure procedural fairness, hence the parties involved be given notice, opportunity to be heard and reasons for that decision.

-Cancellation of a license without giving the person a chance to comment on that decision can successfully be challenged as procedurally unfair.

3. Judicial Review

-The power for the judiciary to review administrative actions, in ensuring that they are in conformity with the rule of law.

The review checks whether the administrative acts were lawful, reasonable, and procedurally fair.

-The court may review an administrative decision for confirmation that it has conformed to the principles of natural justice and falls within the framework of the law.

-It does not cover administrative decisions' merits but questions of legality and process. The Courts do not substitute administrative decisions with their own but see if the procedure followed conforms to the rule of law.

4. Accountability and Transparency

-Administrative authorities are accountable for their actions, and they must give reasons for all their decisions. Devices like audit, review, and official reports ensure that administrative action is subjected to close scrutiny.

-Administrative decisions and their making process should be transparent, and the records should be open to inspection, with reasons clearly and expressly stated, to instill confidence in the minds of people and to enable the stakeholders to know as to why a particular decision has been taken or not taken.

-All policies and decisions shall be duly documented and be made available to public view to show transparency in the making process of the decision.

5. Effecting Fundamental Rights

-Administrative acts should be respectful and protective of the fundamental rights of a person as enshrined in the Constitution. Actions violative of these rights are liable to be challenged and are amenable to judicial review.

-Those whose fundamental rights feel infringed upon due to deviant administrative actions can resort to tools such as judicial review or administrative tribunals, which thus avail the affected persons with opportunities for redress and ensure that the rule of law is observed.

-That a person whose rights have been breached may apply to the High Court or any other relevant tribunal for redress.

6. Principle of Proportionality

-Administrative decisions and also, in general, the measures adopted have to be proportionate to the objectives they intend to realize. This principle warrants that measures adopted are relevant and not excessively restrictive in relation to their aims.

Case Laws

Kesavananda Bharati v. State of Kerala, (AIR 1973 SC 146)

It laid down the "basic structure doctrine," which means some basic principles such as the rule of law form part of the core of the Indian Constitution, and thus constitutional amendments cannot change it. The Supreme Court reiterated that the rule of law is one of the basic features of the Constitution's basic structure, ensuring thereby that legislative and executive actions remain within legal and constitutional limits.

Maneka Gandhi vs Union of India, (AIR 1978 SC 597)

This judgment was the farthest that Article 21 guaranteeing the right to life and personal liberty could be stretched. The Supreme Court held that any procedure established by law had to be "reasonable, fair and just." That was a development which lent formidable support to the rule of law. What has been impressed through this judgment is that the administrative discretionary action affecting personal liberty must be based on principles of fairness and justice so that laws are enforced in a manner in consonance with the fundamental rights.

A.K. Kraipak v. Union of India AIR, (1970 SC 150)

This case was in relation to applying the "natural justice" principle while making any kind of administrative decision. The Supreme Court explained that any type of administrative decision needs to follow all the principles of natural justice that include the right to a fair hearing. According to the court, procedural fairness is part and parcel of the rule of law in administrative actions.

S.P. Gupta v. Union of India, (AIR 1982 SC 149)

This was known as the "Judges' Transfer Case." This judgment dealt with the issue of transparency and accountability in the process of appointment and transfer of Judges. Principles of law have to be followed while undertaking any administrative action concerning judicial appointment. Such administrative actions must be made transparent and fair.

L. Chandra Kumar v. Union of India, (AIR 1997 SC 1125)

The case thus fully reiterated the constitutional role of the judiciary in review mechanisms of administrative acts pertaining to the jurisdiction of administrative tribunals. On this count alone, the Court explicitly stated that the jurisdiction of high courts to review administrative actions is vested constitutionally and cannot be overridden by legislative measures. This ruling stressed the view that judicial review is an important requirement for ensuring the rule of law.