Question:- What is rule of law? Distinguish between Rule of Law and Administrative Law.

Answer:- Rule of Law– According Prof. Dicey, Rule of Law has three meanings: It means, in the first place, the absolute supremacy or predominance  of regular law as opposed to the influence of arbitrary power. It excludes the existence of arbitrariness or even of wide discretion authority on the part of the government.

Secondly, it means equality before the law or equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. Everyone, whatever his position, right from State Minister to policeman, is governed by the ordinary law of the land and personally liable for anything done by him contrary to that law, and is subject to the jurisdiction of the ordinary courts of justice, civil or criminal. On this point Dicey distinguished ‘Droit Administratiff from ‘Rule of Law’. He criticized the system of Droit Administratiff in France where there were separate administrative tribunals for deciding cases between the government and the citizen. On the basis of above analysis he said that in England Administrative law does not exist.

Thirdly, rule of law may be used as formula for expressing the fact that with us the law of the Constitution, is not the source but the consequences of the rights of individuals, as defined and enforced by the courts.

According to Dicey Administrative law is based on two ideas which are repugnant to the spirit of Rule of Law, viz.:

1. That the Government and its servants possess special rights, privileges and prerogatives as against private citizens. An individual in his dealings with the State, does not stand on the same footing as that on which he stands in dealings with his neighbor.
2. That Government and its officials should be independent of and free from the jurisdiction of ordinary courts.

With the combination of these two basic assumptions the characteristics of administrative law may be traced as under:

The first of these characteristics is that the relation of the Government and its officials towards private citizens must be regulated by a body of rules which are in reality laws, but which may differ considerably from the laws which govern the relation of one private person to another person.

The second characteristic is that ordinary judicial tribunals have no concern whatever with matters at issue between a private person and the State, i.e., with questions of administrative law but that such questions must be determined by administrative courts.

Thirdly, the questions relating to jurisdiction of ordinary Judicial Courts and Administrative Courts are determinable only by administrative bodies.

The fourth characteristics of administrative law lies in its tendency to protect from supervision or control of the ordinary court of law/ any servant of the State who is guilty of an act, however illegal, which acting in bona fide obedience to the orders of his superiors. Thus, according to Dicey under administrative law wide discretionary powers have been given to administrative authorities and they are not subjected to ordinary law of the land. British rule of law is opposed to such arbitrary powers. Code spoke of it as opposed to the ‘crooked cord of discretion’. The rule of law requires that the Government should be subject to the law. Therefore, Dicey  maintained the administrative law was foreign to British Constitution, it was incompatible with the rule of law, with the Common law and with constitutional  liberty as we understand it.

Dicey work for long threw chilly shadow over administrative law. For him administrative law was a translation of the French ‘Droit administratiff’ an institution which he denounced very much. And his denunciation of this institution was based on mistaken conclusion. It has been admitted that this picture was wrong and French administrative courts have been striven to impose effective control on officials and to raise the standard of administration. The very function of administrative law in modern times is “to control executive power by law and colonize it by fair and proper procedure”. The Conuseil d’Etat in France, an administrative court, in its judicial and controlling functions has achieved a high degree of objectively. They concern themselves with the merits and with the legality of an administrative act.

In simple words rule of law is not opposed to administrative law. Like rule of law administrative law checks and controls the discretionary powers of administrative authorities. Under administrative law, as it is conceived today, courts can restrain excesses of administrative authorities and courts are independent of executive. Although there is no denial of equal protection or subjection to law under administrative law, but in carrying out the welfare activities of the State, the administration had to be armed with greater power and in this process a large measure of personal freedoms was bound to be eclipsed. “The intention of administrative law like that of rule is to guarantee the liberty to people and oppose the arbitrariness of administrative authorities.” Justice Frankfurter has rightly put it that “Administrative Law has grown largely like spray. There is no contradiction between it and rule of law of which Dicey spoke. It has not come to establish Despotism but to make it impossible. It ensures proper and orderly exercise of the administrative powers and softens the rigours of administrative process.”         

Administrative Law developed not to sanctify executive arbitrariness but to check it and to protect the rights of the people against the administration’s excesses. Therefore the central theme of administrative law is also the reconciliation of liberty with power. Thus administrative law and rule of law are not opposed to each other.

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Courtesy:- Dr. Deepak Miglani

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