RULE OF LAW

 To understand the meaning of rule of law, it means that no man is above law and also
that every person is subject to the jurisdiction of ordinary courts of law irrespective of
their position and rank.
 It is an eternal value of constitutionalism and an inherent attribute of democracy and
good governance.
 It is a doctrine of “state political morality” that concentrates on the rule of law in
securing the “correct balance” between “rights” and “powers”, between individuals
and between individuals and the state in any free civil society.
 Rule of proper law balances the needs of the society and the individual.
 According to Dicey, “rule of law is absolute supremacy or predominance of law as
opposed to arbitrariness and excludes the existence of prerogatives or even slight
discretion power on the part of government.”
 Derived from French phrase “la principe de legalite” – the principle of legality – govt
based on principles of law and not of men.
 It is opposed to arbitrary powers.
 Rule of law is located in moral justice.
 It is based on clarity, efficacy, stability, authority and impartial justice.
 It provides a criterion with references to which one can evaluate law and legal
structures of governance of any society.
 It is possible only in democratic societies where it puts restraints against majoritarian
rule.
 It mandates that power must be made accountable, governance progressively just and
equal, and state incrementally ethical.
 In Indian context:
 Can be traced back to Upanishads.
 The Preamble of the Constitution itself prescribes the ideas of Justice, Liberty
and Equality. These concepts are further enunciated in Part III of the
constitution and are made enforceable.
 Indian cases – ADM Jabalpur v Shivkant Shukla; Keshvananda Bharati;
Maneska Gandhi v UOI (SC declared Article 14 strikes arbitrariness)
  Indian Courts are trying to find a technique to not only force the gov to submit
to the law but also create conditions where the people can develop capacities
to exercise their rights properly and meaningfully.
 In a democracy, it means that the holders of power should be able to justify publicly
that the exercise of their power is legally valid and socially just.
 Rule of law means that law rules based on the principles of freedom, equality, non-
discrimination, fraternity, accountability, and non-arbitrariness, and is certain, regular
and predictable.
 Kesavananda Bharati v State of Kerala – the rule of law was accepted as a doctrine
of basic structure of the Consti and even the plenary power of the Parliament cannot
reach to amend.
 According to the Indian judgments, the rule of law does not provide just constraints
on gov action in a negative sense but also imposes an affirmative duty of fairness on
the gov.
 Power should be exercised only for the purposes it has been conferred and not
arbitrarily.
 It can be used in 2 senses:
1. Formalistic sense – organized power as opposed to rule by one man.
2. Ideological sense – regulation of the relationship of citizens and the state.
 According to Dicey, 3 principles to achieve the rule of law:
1. Supremacy of law – absence of Gov’s discretionary powers
2. Equality before the law – everyone should be subjected to the same laws and
courts.
3. Judge-made constitution.
 Exceptions to rule of law:
1. ‘Equality of Law’ does not mean that the powers of private citizens are the same
as the powers of public officials. For e.g. a police officer has the power to arrest
which a private citizen does not have.
2. The rule of law does not prevent certain classes of persons from being subject to
special rules, e.g. the armed forces are governed by military laws.
3. Ministers and other executive bodies are given wide discretionary powers by the
statute.
4. Certain members of society are governed by special rules in their professions like
lawyers, doctors and nurses.
 SEPARATION OF POWER

 It is an attempt to distinguish between legislative, executive and judicial power.

 This concept was first seen in the works of Aristotle, in the 4th century BCE, wherein
he described the three agencies of the government as the General Assembly, Public
Officials and Judiciary.
 The doctrine was made highly systematic and scientific by Montesquieu (book – spirit
of law) and Locke.
 3 features:
1. A person forming a part of one organ should not form part of another organ.
2. One organ should not interfere with the functioning of the other organs
3. One rogan should not exercise the functions belonging to another.
 Indian Context:
 In India, this doctrine has not been given constitutional status.
 Article 50 - separation of Judiciary from the Executive, this article suggests
that the state shall take steps to separate the judiciary from the executive in the
public services of the state.
 Article 123: The president, being the executive head of the country, is
empowered to exercise legislative powers (promulgate ordinances) under
certain conditions.
 There is a system of checks and balances wherein the various organs impose
checks on one another by certain provisions.
 The judiciary has the power to strike down any law passed by the legislature if
it is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental
Rights).
 Although the judiciary is independent, the judges are appointed by the
executive.
 Indira Gandhi v Raj Narain – the doctrine has been given in consti in a broad
sense only and the rigid separation of power system followed in the US does
not follow in India.
 In India, not only is there a functional overlapping but there is a personnel
overlapping as well
 The purpose of the doctrine is not just to promote efficiency in the admin, but to
preclude the exercise of arbitrary power.
  The basic aim of the doctrine is to divide governance against itself by creating distinct
centers of power so that they could prevent each other from threatening tyranny.
 Based on 4 principles:
1. Exclusivity principle – all the three organs should be exclusive of each other
2. Functional principle – prohibits amalgamations and usurpation but not interaction
of all the organs.
3. Check and balance principle – each organ keeping a check on the other
4. Mutuality principle – cooperation between the organs.
 The doctrine cannot be strictly applied to any modern gov because neither the powers
of the gov can be kept in watertight containers nor can any gov run on strict
separation of powers.
 It does not mean that the doctrine has no practical significance. It is still valid on the
basis that it promotes polarity rather than strict classification. It states that the centre
of authority must be dispersed to avoid absolutism.
 Hence, the doctrine can better be appreciated as a doctrine of checks and balances, in
this sense the admin process will not be the antithesis of the doctrine.

PRINCIPLES OF NATURAL JUSTICE

 Based on the principle that justice must not only be done but also seen to be done.
 Principles of natural justice are not precise rules of unchanging content; their scope
varies according to the context.
 Nevertheless, it provides the foundation on which the whole superstructure of judicial
control of administrative action is based
 In India, the principles of natural justice are derived from Article 14 and 21 of the
Constitution.
 PNJ implies fairness, equality, reasonableness, and equity.

Rule against bias:

 According to this rule no person should be made a judge in his own cause. Bias means
an operative prejudice whether conscious or unconscious in relation to a party or
issue.
 A judge must be impartial and must decide the case objectively on the basis of the
evidence on record only.
  It strikes against those factors which might improperly influence the judge at arriving
at a decision.
 3 types:
1. Pecuniary – any pecuniary interest of the adjudicating authority. No matter how
small, if there is pecuniary bias, there need not be an investigation of “real
likelihood of bias”
NB Jeejee Bhoy v District Collector of Thane
2. Personal – judge may be personally related to the parties in any capacity. There
must be real/ reasonable likelihood of bias and not mere suspicion.
3. Subject matter – a judge may be directly connected to the subject matter in some
way. Mere involvement in the case will not vitiate the admin action unless there is
a real likelihood.
R v Deal Justices – Animal Cruelty Case
Sub-Committee on Judicial Accountability v UOI – doctrine of necessity
 Subject matter bias further classified into:
1. Partiality or connection to the issue
2. Departmental bias – it is something that is inherent in the admin process, thus, if it
is not checked effectively, it may negate the very concept of fairness in
administrative proceedings. Gulapalli Nageswar Rao v State of AP
3. Policy notion bias – on one hand a judge is a human who cannot be expected to sit
as a blank sheet of paper and on the other hand, preconceived policy notions may
vitiate a fair trial.
4. Acting under dictation
 K Lohia v Durga Dutt Lohia – the test to be applied is not whether in fact bias has
affected the judgement or not but whether a litigant could reasonably apprehend that a
bias attributable might have operated against him in the final decision.
 AK Kripak v UOI – the Forest Service case. SC held there was bias
 J Mohapatra v State of Orissa – assessment committee in order to recommend and
select books on various school subjects case. SC held there was Bias because
reasonable apprehension.

Rule of fair hearing (Audi Alteram Partem):

 No one should be condemned unheard.

 Both parties are to be heard before passing an award
  Ingredients:
1. Right to notice – until and unless a person knows that there is a case against him,
he will not be able to defend himself thus, notice is important. The notice should
also give the person enough time to prepare his case.
2. Right to present case and evidence – he should be given enough opportunity to
present his case and supporting evidence
3. Right to rebut adverse evidence – adjudicating authority is bound to release the
evidence against him and give him an opportunity to rebut it.
a. Cross examination
b. Legal representation
4. Disclosure of evidence - A party must be given full opportunity to explain every
material that is sought to be relied upon against him. Unless all the material (e.g.
reports, statements, documents, evidence) on which the proceeding is based is
disclosed to the party, he cannot defend himself properly.
5. Speaking orders - he has a right to get a reasoned order.

EXCEPTION TO NATURAL JUSTICE;

1. Exclusion in case of confidentiality Malak Singh v State of Punjab – police records

cannot be revealed.
2. Statutory exclusion: if a statute excludes the application of PNJ then the courts need
to follow that. However, in India, Parliament is not supreme and therefore, the
statutory exclusion inserted by them is not final. It must stand the test of constitutional
provisions.
3. Emergency: in urgent cases where prompt and preventive action is required. Pre-
decisional hearing can be ignored in such emergent situations.
Swadeshi Cotton Mills v UOI – section 18A of Industrial Development and
Regulatory Act. The word “immediate” added does not mean exclusion of PNJ
4. Interim disciplinary action: PNJ is not attracted to interim actions. For example, the
order of suspension of an employee pending hearing
Abhay Kumar Yadav v K Srinivasan – a student was suspended pending a criminal
investigation against him for stabbing a co-student. Delhi HC held this order was
valid since it was preventive in nature.
 5. Exclusion in case of gov policy decisions: unless the decisions are made
capriciously, arbitrarily or in an illegal manner, they cannot be construed to be in
violation of PNJ.
BALCO Employees’ Union v UOI
6. Useless formality theory – if following PNJ will only delay the judgement when
given the facts, only one conclusion is possible and only type of penalty is given then
it can be followed.
7. Exclusion in case of purely administrative matters: Academic evaluation: Where a
student is removed from an educational institution on the grounds of unsatisfactory
academic performance, the rule of natural justice can be ignored.
JNU v BS Narwal
8. Impracticability: Where the authority deals with a large number of person it is not
practicable to give all of them opportunity of being heard and therefore in such
condition the court does not insist on the observance of the rules of natural justice.
R Radhakrishna v Osamnia University - The entire M.B.A. entrance examination
was cancelled on the ground of mass copying. No opportunity of being heard was
given before cancelling the exam.
Judgement: The court held that it was not possible to give all the examinees the
opportunity of being heard before the cancellation of the examination.

POSR DECISIONAL HEARING

 It maintains a balance between admin efficiency and fairness to an individual.

 It was developed in Maneka Gandhi v UOI
 Her passport was impounded and she was not given a fair chance to be heard. The
court did not give her the passport back but held that fair hearing principle cannot be
vitiated just for admin convenience and thus, stated post decisional hearing principle.
According to the court stated that a fair hearing immediately after the impounding of
the passport would satisfy the mandate of PNJ
 The concept of PDH in cases where a pre-decisional hearing is required either
expressly or by necessary implication is itself based on wrong hypothesis that admin
efficiency and fair hearing to an individual are discreet values.
 PDH is mostly merely an empty formal ritual.
 In order to justify PDH, it is said that PDH is better than no hearing at all. This
approach can be accepted where the decision does not have any serious detrimental
effects on a person.
 Since PNJ is excluded in cases of emergent situations, PDH is a good way to keep a
check on the orders passed during such emergencies, after the emergency has ended.
 However, wherever preDH is required but the authority has taken the route of PDH,
he will mostly be judging the case with a pre-conceived mind, thus, failing the entire
PNJ.
 Balancing test to determine where PDH may be acceptable:
1. Public interest is involved;
2. Risks involved in preDH and the values of Consti involved;
3. Gov’s financial and admin implications;
4. Important gov and general public interest
5. Need for prompt decision
6. Quality of control over the force of gov