Basic Concepts of

Administrative Law
Module 3
1) Rule of Law

• What is the need of the Doctrine?

• Govt’s role has been traditionally to protect individual rights. At the same time, history is
replete with examples where govt has become the biggest violators of individual rights.

• A number of measures have been derived to reduce this likelihood – rule of law, separation
of powers, public interest litigation are few examples.

• When a single person or group has a large amount of power, can become dangerous to
citizens. The doctrine is a method of removing the amount of power in any group's hands,
making it more difficult to abuse.

• Basic aim it to try to avoid despotism and tyranny by decentralizing power - specific ways
in which the branches are subdivided and the exact ways in which they check and balance
each other differ from one jurisdiction to another.

• 2 main objectives – rule of law and independence of judiciary

Rule of Law

• One of the most basic principles of English Constitutional Law; accepted and
imbibed in US and Indian Constitution

• Sir Edward Coke: Law supreme over King

• A V Dicey: 1885: The Law and the Constitution : developed this theory

• ‘Le Principle de Légalité ’. i.e. a government based on the principles of law

• Rule of Law is the foundation of good governance

• Supremacy of law;

• Equality before Law; and

• Predominance of Legal Spirit/Judge made Constitution

1. Supremacy of law :
• rule of law requires that the Government should be
subject to the law, rather than the law subject to the
Government
• The rule of law requires both citizens and governments
to be subject to known and standing laws
• The rule of law presupposes the absence of wide
discretionary authority in the rulers, so that they cannot
make their own laws but must govern according to the
established laws
• Supremacy of Law over the existence of arbitrariness,
of prerogative or even wide discretionary part of the
government
2. Equality before Law
• Equality before law or equal subjection of all classes to
the ordinary law of the law administered by the
ordinary law courts
• Dicey criticized the French System of droit
administrative in which there are separate
administrative tribunals for deciding cases between the
officials of the state and citizens
3. Predominance of Legal spirits/Judge made
constitution
• Rights of individuals would be more secured if they
were enforceable in courts and protected by the judges
rather than being documented in constitutions
• English Constitution is judge made and secures most
the rights that the constitution of other nations
Significance and Drawbacks of application of
Dicey’s ROL
Significance
• Invoked in most modern democracies to keep in check the
oppressive and arbitrary exercise of power

Drawbacks
• Supremacy of Law = No arbitrary as well as discretionary powers.
No modern state can work effectively without exercising
discretionary powers
• Misunderstood the functionality of droit administrative and ignored
the presence of maxim such as King can do no wrong and growth of
several administrative tribunals in England
• Misplaced trust in efficacy of judicial control
ROL IN A MODERN SOCIETY
• The International Commission of Jurists – Delhi Declaration (1959) on modern aspects and interpretations of rule
of law wrt Legislature, Executive and the Judiciary, Criminal law, human rights etc.

• Delhi Declaration was an international gathering of around 185 judges, lawyers , professors etc who met to discuss
the importance and implementation of rule of law . Following are the 8 clauses proposed by the Committee on
Executive and the Rule of law:

1. Where state has undertaken welfare activities, important that some law making power is delegated to the
executive for smooth functioning.

2. To ensure that the extent, purpose and procedure appropriate to delegated legislation are observed, it is essential
that it should be subject to ultimate review by a judicial body independent of the Executive.

3. Judicial review of delegated legislation may be usefully supplemented by procedure for supervision by the
Legislature

4. In general, the acts of the Executive which directly and injuriously affect the person or property or rights of
the individual should be subject to review by the Courts.

[Link] 245)
5. The judicial review of acts of the Executive may be adequately
secured either by a specialized system of administrative Courts or
by the ordinary Courts
6. A citizen who suffers injury as a result of illegal acts of the
Executive should have an adequate remedy
7. Irrespective of the availability of judicial review to correct illegal
action by the Executive after it has occurred, it is generally
desirable to institute appropriate antecedent procedures of
hearing, enquiry or consultation
8. It will further the Rule of Law if the Executive is required to
formulate its reasons when reaching its decisions of a judicial or
administrative character
Davis 7 principles of Modern ROL
• Law and order
• Fixed rules
• Elimination of discretion
• Due process of law or fairness
• Principles of Natural Justice
• Preference for judges and ordinary courts of law to
executive authorities and administrative tribunals
• Judicial review of Administrative Action
ROL under Indian Constitution
• Supremacy of Constitution
• Doctrine of JR
• Ordinary courts for quashing executive actions
• All delegated Legislation fall within the meaning of
Law and therefore can not be inconsistent with Part III
• Article 14: equality before law and equal protection of
Law
• ROL: basic structure
• ROL expanded through judicial interpretation
• Examples of Rule of law in Indian Constitution–
• Preamble – ideals of justice, liberty and equality;

• Supremacy of the Constitution;

• Doctrine of judicial review; All rules and regulations made by way of delegated legislation included in the definition of “law”
under Art 13;

• Art 21 says …except by procedure estd by law.

• Fact that State an be held liable under Art 299 and 300.

• Rule of law manifests itself when any Govt action against Art 21 is examined against 14, 19 and 21 to be just fair
and reasonable.
• Rule of law in India is also closely linked with human rights protection – cases under Art 21.
• Fact that we insist on fair hearing to an accused of crime is also a manifestation of rule of law in India.
• However, Dicey’s concept not fully accepted.
• Earlier, the 3rd principle of judge-made law was considered to be not accepted in India – as laid down in the ADM
Jabapur v Shivkant Shukla case (1976).
• Majority held that the Constitution is a mandate and the text needs to be respected. If the enforcement of 21 and 22
is denied as result of the Presidential order, then it is according to the “procedure estd by law” as required under
Art 21. (Hence did not agree with Dicey’s 3rd principle)
• Minority judgement by J Khanna was in consonance with the 3 rd principle and held that it does not mean that if Art
21 is suspended, there is no right to life remaining. – a position that is now vindicated. If too much stress is laid on
the letter and not the judicial spirit, even the mass murders in Nazi Germany were also according to the law made
there.
SEPARATION OF POWERS
• 3 functions of the govt and the 3 respective organs of the State must be kept separate in a free
democracy.

• Doctrine traceable to Aristotle but the formalised version can be credited to the writings of Locke
(The second treatise of Civil Government )and French judge Montesquieu (Espirit des Lois “The
Spirit of the laws” in 1748)

• Contextual background :

• Derived on their understanding of British constitutional history in early 18 th century

• Long war between the Parliament and the King , Triumph of Parliament in 1688 give legislative
supremacy to parliament and passage of Bill of Right. King exercised executive powers and
courts were given judicial powers. Absolute monarchy in France – Louis XIV – king and his
administrators had absolute powers and acted arbitrarily

• Montesquieu was impressed by the writings of Englishman John Locke and believed that the
secret to an English person’s independence was separation of govt functions in 3 separate
organs.
• What is the need of the Doctrine?

• The purpose of the doctrine is to divide governance and therefore create

diff centers of power who could prevent each other from becoming
tyrannical

• When a single person or group has a large amount of power, can become
dangerous to citizens. The doctrine is a method of removing the amount
of power in any group's hands, making it more difficult to abuse.

• Basic aim it to try to avoid despotism and tyranny by decentralizing

power - specific ways in which the branches are subdivided and the
exact ways in which they check and balance each other differ from one
jurisdiction to another.
Montesquieu’s Theory

• 3 kinds of powers in 3 different bodies.

• If one person exercises more than one power, individual liberty ought to be compromised

• Montesquieu in the following words stated the Doctrine of Separation of Powers “There would be
an end of everything, were the same man or same body, whether of the nobles or of the people, to
exercise those three powers, that of enacting laws, that of executing the public resolutions, and of
trying the causes of individuals.”

• The theory of separation of powers signifies three formulations of structural classification of

governmental powers:

• The same person should not form part of more than one of the three organs of the
government. For example, ministers should not sit in Parliament.

• One organ of the government should not interfere with any other organ of the government.

• One organ of the government should not exercise the functions assigned to any other
organ
SEPRATION OF POWERS IN PRACTICE

• USA

• Jefferson : “Accumulation of Power, legislative, executive and judicial powers in the same hand is
precisely the definition of a despotic govt. 173 despots would surely be as oppressive as one”

• Embedded in the American Constitution – in 1787

• Legislative powers – Congress (Art I), Executive powers – President (Art II), and Judicial powers
– SC and other subordinate courts (Art III)

• Presidential form of govt requires complete separation between Legislature and Executive
(unlike UK or India)

• The President is both the head of the state as well as its chief executive. He appoints and
dismisses other executive officers and thus controls the policies and actions of government
departments. The persons in charge of the various departments, designated as the Secretaries
of State, hold office at his pleasure, are responsible to him and are more like his personal
advisers. The President is not bound to accept the advice of a Secretary and the ultimate
decision rests with the President. Neither the President nor any member of the executive is a
• This system of government is fundamentally different from the parliamentary system prevailing in many common-law countries, like
England, India, Malaysia, Singapore, Australia etc., where the system of government works on the basis of co-ordination between the
executive and the legislative organs.

• Slowly with time and growth of welfare state, implementation relaxed – President can veto a bill passed by the Congress , Congress has
judicial power of impeachment etc, Tribunals and tax courts now prevalent (executive exercising judicial powers)

• A significant breach in the doctrine occurred when the courts conceded that legislative power could be conferred on administrative authorities,
and, thus, the system of delegated legislation came in vogue. But, in a bid to reconcile the separation doctrine with the new institution, the
courts laid down that Congress cannot confer an unlimited legislative power on an administrative authority, that the Congress must not give up
its position of primary legislator and that the Congress should therefore lay down the policy which the delegate is to follow while' making the
rules.

• Many lawyers criticized the growth of administrative process as doing violence to the purism of the separation doctrine. There was an
insistent demand that a full-fledged investigation be carried out into the growth of administrative process, and that due safeguards be
devised against abuse of powers by administrative authorities. As a result of this demand, the U.S. Attorney-General appointed a committee
in 1939 to review the entire administrative process and to recommend improvements therein. The committee conducted a thorough probe
into the administrative procedures followed by the various agencies of the Federal Government and made a report in 1941. The Committee
came out with a number of recommendations to reduce the chances of abuse of power. Thus, the principle has been accepted that the
delegating statute must contain a framework within which the administrative-delegate has to operate. Theory of strict separation of powers has
given way to a system of checks and balances to keep a check on the tyrannical use of power. The result was the enactment of the
Administrative Procedure Act, 1946.

• There was not much denial in accepting the existence of Ad law like in England during Dicey’s time – Administrative Procedure Act, 1946 –
lays down procedures to be followed, makes publication of rules compulsory, RTI was included.
ENGLAND
• Even though it was UK polity that inspired Montesquieu to give the theory,
Separation of powers never actually existed in the UK.

• Follows more a theory of “Mixed govt” with checks and balances – Executive
responsible to the Legislature.

• Slowly more manifestation of the theory –

• Constitutional reforms act, 2005 –

• abolished the office of Lord Chancellor (he was head of judiciary and Chairman of House of
Lords),

• Law Lords not to be a part of judiciary anymore,

• establishes the SC,

• Thus by and large independence of Judiciary has been ensured by the Constitutional
Reforms Act, 2005
INDIA

• In theory, the legislative power is with the Parliament, the executive in the name of the President
and the judiciary is independent in exercising judicial powers

• Art 50

• Deeper study reveals many exceptions –

• Executive is part of the Parliament

• President is also the head of the Parliament – exercises legislative powers – veto, ordinances etc

• Many legislative functions delegated to executive

• SC frames rules for its own procedure.

• Justice Beg in Keshavanand judgement declared that Separation of powers is part of the basic
structure.
• Even though there are overlaps, functions essentials to that organ cant be exercised by other
organs. . Not a violation of the theory of separation of powers if only incidental functions are passed
from one organ to other
• Concept of Checks and balances ensures that power of own domain is also not abused.
Criticism

• If there is complete separation of powers , the different organs of the government will not be able to
work in co-operation and harmony. As a result, there would be frequent deadlocks which may bring
the governmental machinery to a standstill (Eg – when the US Congress has to extend the credit
limit of the US govt)

• This doctrine is based on the assumption that the three functions of the Government viz legislative,
executive and judicial are independent of distinguishable from one another. But in fact, it is not so.
There are no watertight compartments. It is not easy to draw a demarcating line between one
power and another with mathematical precision.

• The very basis that it was inspired from England is incorrect

 Droit Administratif
• French system of Ad law – inspired from theory of separation of powers – but
calls for separation between the judiciary and the executive

• Non- interference of Courts in the working of the administration – devised a

system of Administrative tribunals – person seeking redress against
administration cannot approach the ordinary courts

• In France, a person has no avenue for redress of grievances against the

administration through the courts. This is the important point of deviance
between the Droit Administratif and the British or the Common-law system of
Administrative Law

• Autonomy of the Administration from judicial control does not however mean
that it is despotic or is free from all control. Administration has been able to
• One Court of Appeal (Council d’etat) for all tribunals – ordinary courts not involved at all – here judges are
experts in matters relating to administration
• Most European countries have now adopted this dual jurisdiction model of France – Belgium, Italy, Spain,
Netherlands, among others.
• If difficulty or doubt arises as to whether a case falls within the administrative jurisdiction or that of the
ordinary courts, the question is resolved by the Tribunal des Conflicts
• The Conseil d'Etat has been characterised as the "bulwark of civil liberties," and also as the
"guardian of administrative morality." This system has now come to be regarded as providing better
protection to individual rights against the despotism of public administration than the Common-law
system provides at present.
• It permits of a much deeper and broader range of control over the Administration than the courts in Britain can
exercise.
• There is no longer any doubt that in criticising the Droit Administratif the way DICEY did, he displayed lack of
perception into the system. DICEY was a great believer in ordinary courts. Any transfer of judicial power to any
other agency was anathema to him. But it is now realized that that cannot the sole test of the efficacy of the
system of Administrative Law of a country.
• The crucial test is how effectively Administration is controlled in exercising its powers and whether
or not a citizen has an adequate redressals mechanism in case he is hurt by the Administration.
• From both these tests, Droit Administratif is found to be more satisfactory than the common-law system of
Administrative Law. DICEY had believed that administrative tribunals would be partial to the Administration.
But the truth is that the Conseil d'Etat in discharging its judicial and controlling functions has achieved a high
degree of objectivity
• (Read examples of cases from text book supporting the activist role of Droit administrative)
Important case Laws wrt ROL and
SOP
• Indira N Gandhi v Raj Narain AIR 1975 SC 2299
• ADM Jabalpur v Shivakant Shukla 1976 2 SCC 52
• Kesavnanda Bharti v. State of Kerala AIR 1973 SC 1461
• CSC, Punjab v. Om Prakash, AIR 1969 SC 33
• I.C Golak Nath v. State of Punjab, AIR 1967 SC 1643
• Ram Jawaya v. State of Punjab, AIR 1955 SC 5491
• Deepal Ananda Patil v. State of Maharashtra AIR 2023 SC 533
• Orissa Administrative Tribunal Bar Association v. Union of
India 2023 INSC 271
• State of W.B. v. Committee for Protection of Democratic
Rights, (2010) 3 SCC 571
• I.C Golak Nath v. State of Punjab, AIR 1967 SC 1643
• The Constitution brings into existence different constitutional entities,
namely, the Union, the States and the Union Territories. It creates three
major instruments of power, namely, the Legislature, the Executive and
the Judiciary. It demarcates their jurisdiction minutely and expects
them to exercise their respective powers without overstepping
their limits. They should function within the spheres allotted to
them. Some powers overlap and some are superseded during
emergencies. The mode of resolution of conflicts and conditions for
supersession are also prescribed. In short, the scope of the power and
the-manner of its exercise are regulated by law. No authority created
under the Constitution is supreme; the Constitution is supreme;
and all the authorities function under the supreme law of the land.
The rule of law under the Constitution has a glorious content. It
embodies the. modem concept of law evolved over the centuries
• The rule of law under the Constitution serves the needs of the people
without unduly infringing their rights. It recognizes the social reality and
tries to adjust itself to it from-time
• CSC, Punjab v. Om Prakash, AIR 1969 SC 33
• In this context it is essential to emphasise that under our constitutional
system the authority to make the law is vested in the Parliament and
the State Legislatures and other law making bodies and whatever
legislative power the executive administration possesses must be
derived directly from the delegation of the legislature and exercised
validly only within the limits prescribed. The notion of inherent or
autonomous law-making power in the executive administration is a
notion that must be emphatically rejected
• Kesavnanda Bharti v. State of Kerala AIR 1973 SC 1461
• Power to amend the FRs questioned
• Laying down of BASIC STRUCTURE doctrine
• Different judges including different facets under the
basic structure
• “Separation of powers between the legislature, the
executive and the judiciary is a part of the basic
structure of the Constitution; this structure cannot be
destroyed by any form of amendment.”
• Rai Sahib Ram Jawaya v. State of Punjab AIR 1955 SC 5491
• In 1950, Punjab govt nationalised textbooks – started printing,
publishing and selling textbooks for schools. Earlier, selected
textbooks were prescribed.
• In 1952, govt also acquired the copyright of the books and decided
to pay a mere 5% royalty to the authors.
• Challenged – under Art 19 and whether the govt (executive) had
the power to take such decisions by way of an executive order or
required a law of the Legislature.
• Held-
• According to Article 162, the executive power of a State shall
extend to the matters concerning which the Legislature of the
State has the power to make laws. Thus, the powers of the
Executive run parallel to the powers of the legislature. As long as
there is umbrella legislation, the executive will have the power to
take decisions.
• Although in the Constitution of India there is no express
separation of powers, it is clear that a legislature is created by
the Constitution and detailed provisions are made for making
that legislature pass laws. Is it then too much to say that under
the Constitution the duty to make laws, the duty to exercise its
own wisdom, judgment and patriotism in making law is
primarily cast on the legislature? Does it not imply that unless it
can be gathered from other provisions of the Constitution, other
bodies executive or judicial are not intended to discharge
legislative functions?”
• The Indian Constitution has not indeed recognised the
doctrine of separation of powers in the absolute rigidity
but the functions of the different parts or branches of the
Government have been sufficiently differentiated and
consequently it can very well be said that our Constitution does
not contemplate assumption by one organ or part of the State of
the functions that essentially belong to another.
• The Court held that the modern day interpretation of the doctrine of
separation of powers provides for a distinction to be drawn between
‘essential’ and ‘incidental’ powers. Hence, the Court made a strict
distinction between the powers of the various organs but recognized the
possibility of over-lap between the functions carried out by various organs
in exercise of their powers. The Court concluded that while one organ
of the State cannot usurp or encroach upon the essential functions
of another organ, but may exercise the incidental functions thereof.

• Thus, doctrine not fully accepted in India – rather rely on checks and
balances.
• Indira N Gandhi v Raj Narain AIR 1975 SC 2299
• Election questioned on malicious grounds – Allahabad HC upheld the
contention declared her election unlawful for using corrupt practices.
• Appeal to SC by her – decision stayed – meanwhile 39 th AA,1971
introduced Art 329A – challenged in SC
• Held –
• 39 AA,1971 held unconstitutional as Art 329 A destroys basic structure.
• Chandrachud J. found that “The 39th amendment is violative of the
principle of separation of power as it intently transferred a purely
judicial function into the hands of the legislature.
• Ray C.J. found another basic feature violated by the said amendment i.e.
rule of law whereas Justice Khanna found that “The violation of norms of
free and fair elections. The bench also found the said amendment
violated the principles of natural justice i.e. audi altrem partem since it
denies the right of fair hearing to the one who is challenging the
election of the members mentioned under the amendment
ADM Jabalpur v Shivakant Shukla 1976 2 SCC 521
• Presidential order challenged which suspended FRs and therefore persons
detained under MISA were left remedyless
• Majority held that the Constitution is a mandate and the text needs to be
respected. If the enforcement of 21 and 22 is denied as result of the
Presidential order, then it is according to the “procedure estd by law” as
required under Art 21. (Hence did not agree with Dicey’s 3rd principle)
• Sanctity of life and liberty was not something new when the Constitution was
drafted. The principle that no one shall be deprived of his life and liberty
without the authority of law was not the gift of the Constitution. It was a
necessary corollary of the concept relating to the sanctity of life and liberty; it
existed and was in force before the coming into force, of the Constitution
• Even in the absence of Article 21 in the. Constitution, the State has got
no power to deprive a person of his life or liberty without the authority
of law. This is the essential postulate and basic assumption of the rule of law
and not of men in all civilised nations. Without such sanctity of life and liberty,
the distinction between a lawless society and one governed by laws would
cease to have any meaning.
Deepal Ananda Patil v. State of Maharashtra AIR
2023 SC 533

• It is a well-established principle of administrative law

that an adjudicatory body cannot base its decision on
any material unless the person against whom it is
sought to be utilized has been apprised of it and given
an opportunity to respond to it
• The judgement revolved around breach of principles of
natural justice.
State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571

• The issue which has been referred for the opinion of the Constitution
Bench is whether the High Court, in exercise of its jurisdiction under
Article 226 of the Constitution of India, can direct the Central Bureau
of Investigation (for short "the CBI"), established under the Delhi
Special Police Establishment Act, 1946 (for short "the Special Police
Act"), to investigate a cognizable offence, which is alleged to have
taken place within the territorial jurisdiction of a State, without the
consent of the State Government.
• It is manifest that in essence the objection of the appellant to the CBI's
role in police investigation in a State without its consent, proceeds on
the doctrine of distribution of legislative powers as between the Union
and the State Legislatures particularly with reference to the three Lists
in the Seventh Schedule of the Constitution and the distribution of
powers between the said three organs of the State.
• The Court after perusal of arguments held Equality, rule of law, judicial review and
separation of powers form parts of the basic structure of the Constitution. Each of
these concepts are intimately connected. There can be no rule of law, if there is no
equality before the law. These would be meaningless if the violation was not subject to
the judicial review. All these would be redundant if the legislative, executive and
judicial powers are vested in one organ. Therefore, the duty to decide whether the
limits have been transgressed has been placed on the judiciary.
• It is trite that in the Constitutional Scheme adopted in India, besides supremacy of the
Constitution, the separation of powers between the legislature, the executive and the
judiciary constitutes the basic features of the Constitution. In fact, the importance of
separation of powers in our system of governance has been upheld multiple times.
• Apart from the fact that our Constitution does not envisage a rigid and strict separation
of powers between the said three organs of the State, the power of judicial review
stands entirely on a different pedestal. Being itself part of the basic structure of the
Constitution, it cannot be ousted or abridged by even a Constitutional
amendment. Besides, judicial review is otherwise essential for resolving the disputes
regarding the limits of Constitutional power and entering the Constitutional limitations
as an ultimate interpreter of the Constitution.
• In Special Reference No.1 of 1964 (supra), it was observed that whether or not there is
distinct and rigid separation of powers under the Indian Constitution, there is no doubt
that the Constitution has entrusted to the judicature in this country the task of
construing the provisions of the Constitution and of safeguarding the fundamental
rights of the citizens.