(..2..)
BASIC CONSTITUTIONAL PRINCIPLES
(The Rule of Law & Droit Administration)
And
(The Doctrine of Separation of Powers)
QUESTION BANK
Q.1. Critically examine “The Doctrine of Separation of Powers” and its application in India.
Q.2. Critically examine “Dicey’s Rule of Law” with Indian reference.
Q.3. Explain the concept of ‘Rule of Law’.
Q.4. Explain the various meanings attributed to ‘Rule of Law’ and its place in Indian Judiciary.
Q.5. Analyze the doctrine of separation of powers and its significance on the functions of present day administration.
Q.6. Explain the Doctrine of Separation of Powers. Is it followed in India? Explain.
Q.7. Explain the Dicen concept of Rule of Law and its operation with reference to the constitution of India.
SHORT NOTES
- Droit Administration in France?
- Rule of Law.
- Separation of Powers.
SYNOPSIS
- Rule of Law and Droit Administratif.
- Dicey’s concept of rule of law-
- Supremacy of the law
- Equality before law
- Predominance of legal spirit.
- Modern concept of rule of law
III) Rule of law in India.
- Criticism on ‘Rule of Law’ doctrine:-
- Droit Administratif.
- Separation of powers: –
- Historical background of the doctrine.
- Meaning of doctrine of separation of powers.
- Practical application of the doctrine.
- In France.
- In U.S.A.
- In India
- Importance of the doctrine of separation of powers.
- Criticism on doctrine of separation of power :-
- Historically incorrect.
- Absolute separation of function not possible
- Practical difficulties.
- Complexity of socio-economic problems:-
Under this topic, we are discussing some of the basic concepts of Constitutional law, also studied under Administrative Law. These concepts are ‘the rule of law’ and ‘the separation of powers,
- RULE OF LAW AND DROIT ADMINISTRATIF[1]–
I] Dicey’s concept of ‘Rule of Law[2]’: –
The rule of law is one of the basic principles of the English Constitution and is accepted by the Constitution of the U.S.A. and the Constitution of India. The doctrine of the rule of law means that every individual, whether a private citizen or a public official, is ruled by ordinary law and is subject to the ordinary court. In other words, the Doctrine of Rule of Law implies the principles of legality, which refers to government based on principles of law and not of men.
According to Wade, “If a man is wrongfully arrested by the policemen, he can file a suit for damages against them as if police were private individuals”. The main propounder of the doctrine of the rule of law is D. C. Dicey (1885). He developed the ‘Rule of Law’ doctrine against the French legal system of Droit- administration (discussed later in this topic) means
separate courts for administrators and ordinary citizens. According to Dicey’s rule of law is the sum total of the following three things: –
- Supremacy of ‘the law[3]’: –
According to Dicey, the law of the land should be supreme and predominant. The rule of law excludes arbitrariness.[4] and vast discretionary powers enjoyed by the government. It implies that “a man should be punished only for the breach of law and for nothing else”. According to him, the discretion given to any authority endangers an individual’s legal freedom, which is against the principle of supremacy of law. So ‘administrative discretion’ and ‘rule of law’ are contrary. Therefore, according to Dicey, the government should be subject to the law rather than the law being subject to the government.
- Equality before the law[5]: –
The second principle of the Rule of Law stated by Dicey is that there must be ‘equality before the law’ or the ‘equal subjection of all classes’ to the ordinary law of the land, administrated by the ordinary law courts.
Dicey criticised the French system of Droit administratif, in which separate administrative tribunals decided cases between state officials and citizens. According to him, the negation of equality was the exemption of civil servants from the jurisdiction of the ordinary courts of law and the provision of them with special tribunals.
In Wilkes V/s. Wood1
It was held:– that an action for damages for trespass by an officer was maintainable even if the action in question was taken in pursuance of the order of the Minister.
- Predominance of legal spirit[6]: –
Explaining the third principle, Dicey States that in many countries, rights such as the right to personal liberty, freedom from arrest, and freedom to hold public meetings are guaranteed by the written Constitution; in England, it is not so. Those rights are the result of judicial decisions in concrete cases which have actually arisen between the parties. The Constitution is not the source but the consequence of the rights of the individual. Thus, according to Dicey, the ‘legal spirit’ concept is ‘the enforceability of rights in the courts of law, rather than a mere declaration of those rights in a document (like the Constitution), because such documents may be ignored, curtailed or amended’.
- II) Modern concept of ‘the rule of law[7]’: –
Dicey’s concept of the rule of law was not accepted fully even in 1885 when he formulated it. Davis gives seven principal meanings of the term the rule of law application in modern times viz-
- Law and order[8].
- Fixed rules[9].
- Elimination of discretion[10]
- Due process of law or fairness[11].
- Observance of principles of natural justice[12].
- Preference for judges and ordinary courts of law over executive authorities and administrative tribunals[13]. And
- Judicial review of administrative action[14].
III] the rule of law in India: –
Dicey’s concept of ‘Rule of Law’ has been incorporated in the Constitution of India in the following ways-
- The ideals of justice, liberty and equality are reflected in the preamble[15] of the Constitution.
- Part III of the Constitution contains a guarantee of fundamental rights and is made enforceable under Art. 32.
- The Constitution is supreme, and all the three organs of the government, viz. legislative, executive and judiciary, are subordinate to and have to act in accordance with it.
- The principle of ‘judicial review[16]’ is embodied in the Constitution, and the subjects can approach High courts (Under Art. 226) or the Supreme Court (Under Art. 32) for the enforcement of fundamental rights guaranteed under the Constitution
In K.P.S Rathi V/s. State of U. P.
(AIR. 2002 ALL 27)
The Court Held: If the executive (or the government) abuses the power vested in it or if the action is malafied, it can be quashed by the ordinary courts of law.
- All rules, regulations, ordinances, bylaws, notifications, customs and usages[17] are laws within the meaning of Art. 13 of the Constitution, and if they are inconsistent with or contrary to any of the provisions of fundamental rights, they can be declared ultra vires by the Supreme Court or the High Courts.
- The President is required to take an oath to preserve, protect and defend the Constitution.
- No person shall be deprived of his life or personal liberty except according to procedure established by law [Art. 21] or his property except by authority of law [Art. 300 A]
- The government and public officials are not above the law. The maxim ‘king can do no wrong’ does not apply in India. Instead, there is equality ‘before the law’ and ‘equal protection of laws.
In C.S.C. Punjab V/s. Om Prakash[18]
Supreme Court observed: – “In our Constitutional system, the central and most characteristic feature is the concept of law”.
Despite the above legal position, administrative authorities interfere in almost all fields of an individual’s life, e.g. industry, commerce, education, transport, banking, insurance, etc. There is a large-scale delegation of legislative and judicial powers to these administrative authorities. Vast discretionary powers are conferred on these administrative authorities. Even individual liberty can be curtailed by some demonic statutes[19] like the Preventive Detention Act or Maintenance of Internal Security Act, 1971 (MISA), Terrorist Activities Disruptive Act (TADA), etc.
In A.D.M. Jabalpur V/s. Shivkant Shukla[20] (Habeas corpus case)
Facts: The petitioners were seeking a Habeas corpus writ to release them from wrongful detention during the national emergency in 1971.
The issue in this case: – Whether the third limb of Dicey’s doctrine, i.e. predominance of legal spirit, was an integral part of the Indian concept of the rule of law apart from the concept of the rule of law enshrined under the Constitution.
Supreme Court held: – The Constitution in India is the rule of law. There can not be any rule of law other than what is stated in the Constitution. Art. 21 is the rule of law regarding life and liberty. Therefore, the life and liberty of a person can only be taken away by the procedure provided under Art.21.
- Criticism of ‘the rule of law’ doctrine[21]:-
The ‘Rule of Law’ doctrine proved to be an effective instrument in confining the administrative authorities within their limits. It served as a kind of touchstone for judging and testing administrative actions.
However, this view of Dicey is criticised on the following grounds-
- The doctrine of ‘Rule of Law’ was never entirely accepted in England in Dicey’s time (1885). The ‘The King can do no wrong’ principle existed at that time.
- He was against giving discretionary powers to the administrative authorities to avoid their arbitrary use. However, in modern times, no administrative authority can function adequately without discretionary powers.
- According to Dicey, the French Droit Administration system is ineffective. However, in practice, this system has proved to be more effective in controlling administrative powers than the concept of the rule of law.
- DROIT ADMINISTRATIF[22]: –
The French Legal system known as Droit administratif envisages two types of laws and two sets of courts independent of each other. The ordinary courts administer the ordinary civil law between subjects and subjects.[23]. The administrative courts (i.e. Council d’ Etat[24]) administer the law between the subject and the State[25]. An administrative authority or officials of the State are not subject to the jurisdiction of the ordinary civil courts, but the administrative courts adjudge them.
The system of Droit administratif is ancient, but Napoleon implemented it in France in the 18th century.
Utility of the system[26]:-
Generally, the Droit administrative system is thought to not adequately protect the individual from the State. However, it was not so. In actual practice, this system could provide expeditious and inexpensive relief and better protection to the citizens against administrative acts and omissions of the governmental authorities than what could be expected from ordinary courts of law. In Liversidge V/s. Anderson[27]
Facts: The secretary of state issued an order to detain Liversidge, and according to the order, he was detained. Liversidge sued the secretary of State for damages for wrongful imprisonment. The secretary argued that he had reasonable cause to believe Liversidge to be a person of ‘hostile associations, and therefore, he ordered detention.
House of Lords, by rejecting Liversidge’s suit, held that the matter was one for the executive discretion of the secretary.
French Administrative Courts criticised the judgement of the above English court and remarked that this case could not be accepted in any civilised country, particularly in a country which had evolved the concept of the rule of law.
Similar instances of protection to administrators are found in recent Indian case law wherein the rule of law doctrine prevails.
In– State Financial Corporation V/s. J. Oil Mills [AIR 2002 SC 834]
The Supreme Court held that administrative authorities have an obligation to act fairly. Therefore, the court cannot interfere with an administrative authority’s action, even if it is wrong unless the action is unfair, unreasonable, or minimal.
- SEPARATION OF POWERS[28]: –
- Historical background of the doctrine:-
The doctrine of separation of powers emerged in several forms during different historical periods. Its origin can be traced back to Plato and Aristotle. It was further developed in the 16th century by John Bodin, a French Philosopher, and in the 17th century by Locke, a British Politician. However, it was Montesquieu who, for the first time, formulated this doctrine systematically, scientifically, and clearly in his book ‘Esprit Des Lois’ (The Spirit of the Law), published in 1748.
- Meaning of the doctrine of ‘separation of powers’:-
According to Montesquieu, the concentration of power in one person or body of persons results in tyranny. Where these three powers are centralised in one person, he becomes ‘Tyrant’ ‘Autocrat’’ and monarch[29]’. Therefore, Lord Action says, ‘Every power tends to corrupt, and absolute power tends to corrupt absolutely.[30]’. Power here means the legislative, executive and judicial powers.
The legislature (i.e. Parliament and State Legislature) makes statutes. The executive (i.e. Government, etc.) enforces the law and conducts administrative affairs. The courts (Supreme Court and its Subordinate Courts) administer justice. No organ can interfere in another’s field.
Abraham Lincon has explained “democracy” as ‘the government of the people, for the people and by the people’. The bedrock of democracy is the separation of powers. No democracy can flourish without the separation of power. So, the principle of separation of power can be stated as follows: –
- Each organ should be independent of the other.
- No one organ should perform functions that belong to the other.
- Practical Application Of The Doctrine[31]:-
In France:-
This theory has different applications in different countries. In France, the principle of separation of powers has resulted in the rejection of the court’s power to review legislative or executive acts. Therefore, a court cannot review the acts of other organs and check their activities. The existence of separate administrative courts (e.g., Council d’ Etat) to adjudicate disputes between citizens and administration owes its origin to the theory of separation of powers.
In the U.S.A: –
The principle is completely accepted in making the Constitution of the United States of America. The executive power is vested in the President, the legislative power in ‘congress’ and the judicial power in the ‘Supreme Court’ and courts subordinate thereto. The President is not a member of Congress; therefore, he cannot participate in the legislative process, unlike the Indian President. The president’s tenure does not depend upon Congress’s confidence in him. He cannot be removed except by following the procedure of impeachment.
However, the Constitution of the U.S.A. departs from the separation of power doctrine in the sense that there is a provision for judicial review and the supremacy of the ordinary courts over the administrative courts or tribunals.
In India: –
A casual glance at the provisions of the Indian constitution may indicate that the doctrine of separation of powers is accepted in India. Under the Indian constitution, the executive powers are vested with the President, the legislative powers with Parliament (or State legislatures), and the judicial powers with the judiciary (the Supreme Court and subordinate courts). However, a close look at the Indian constitution reveals that it is not much different from the constitution of the United Kingdom.
In Golak Nath V/s. State of Punjab[32]
Supreme Court observed: – (C.J. Subba Rao): – “The constitution brings into existence different constitutional entities, namely, the Union, the States, and the Union Territories. It creates three major instruments of powers: legislature, executive and judiciary; the constitution 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”.
However, if we study the Constitution carefully, we will find that the doctrine of separation of powers is not accepted in its strict sense in India. Following are some of the characteristics of the Indian Constitution, which clearly goes against the strict principles of separation of power viz-
- There is no provision in the constitution providing for the division of government functions and the exercise thereof.
- Though President is the executive head, he has vast legislative powers too. He also performs judicial functions, i.e. deciding disputes regarding the age of the judge of a High Court or the Supreme Court for the purpose of retirement etc.
- Similarly, though Parliament exercises legislative functions, it also delegates most of the parts of legislative functions to executives. It sometimes acts as the judiciary in the process of impeachment[33] of the President, etc.
- Likewise, though the judiciary exercises all judicial powers, it also exercises certain executive or administrative functions. The Apex court exercises supervisory power over subordinate courts while making rules to regulate their own procedure. The Supreme Court and High Courts also exercise the power of judicial review of administrative and legislative action.
Thus, the doctrine of separation of powers is not accepted entirely in the Constitution of India.
- Importance of the doctrine of separation of powers[34]:-
Though the doctrine of separation of power is not strictly applicable in any country, it has the following advantages.
- If the power of government is divided among autonomous organs[35], one organ acts as a check upon the other.
- According to almost all jurists, the judiciary must be independent of and separate from the remaining two organs of the government, viz., legislative and executive.
- This principle is the bedrock of the democratic form of Government.
V Criticism of the doctrine of separation of powers[36]:-
Though the ‘Separation of power’ doctrine seems strong, it has the following defects.
- Historically incorrect[37]: –
Although Montesquieu claimed that the ‘doctrine of separation of power’ propounded by him was based on his observations of the working of the government in Great Britain, however, there was no separation of powers under the British constitution. Hence, the observation is misconstrued more than he saw it.
- Absolute separation of Functions not possible[38]: –
The doctrine of separation of powers is based on the assumption that the three functions of the government, viz.-legislative, executive and judicial, are separable from one another. However, in practice, it is not so. It is not practically easy to draw a demarcating line between one power and another with mathematical precision.
- Practical difficulties[39]:-
A strict application of the doctrine would create practical difficulties in governmental actions. The smooth functioning of government would be affected adversely, e.g., if the legislature can only legislate; it cannot punish anyone committing a breach of its privilege, nor can it delegate any legislative function even though it does not possess the technical knowledge and details to legislate on such technical subject matter.
- Complexity of socio-economic problems[40]: –
Since the modern State is a welfare State, it has to solve many complex socio-economic problems. Strict adherence to the doctrine is not possible in such situations.
- Delay and Expensive[41]: –
The doctrine of separation of powers requires the creation of several expensive bodies. These bodies take a long time to decide, and their implementation is dilatory.
*****
[1] प्रशासकीय कायदा [प्रशासनिक कानून]
[2] ‘कायदयाचे राज्य’ डायसची संकल्पना [डाइस की ‘कानून के शासन’ की अवधारणा]
[3] कायदयाचे श्रेश्ठत्व [कानून का श् श्रेष्ठत्व]
[4] जुलमीपणा [अत्याचार]
[5] कायदयापुढे समानता [कानून के समक्ष समानता]
1 (1763) 19 St. Tr. 1158.
[6] कायदेषिर हेतूचे प्राबल्य/वर्चस्व [कानूनी मंशा की प्रबलता / प्रबलता]
[7] कायदयाच्या राज्याची आधुनिक संकल्पना [कानून के शासन की आधुनिक अवधारणा
[8] कायदा व सुव्यवस्था [कानून व्यवस्था]
[9] निष्चित नियम [निश्चित नियम]
[10] विषेशाधिकार नश्ट करणे/नायनाट [विशेषाधिकारों का नाश]
[11] कायदयाची/न्यायाची योग्य पध्दत [विधि/न्याय की उचित प्रक्रिया]
[12] निसर्ग नियमांच्या तत्वाचे पालन [प्रकृति के नियमों के सिद्धांतों का पालन]
[13] कार्यकारी अधिकारी आणि प्रषासकीय न्यायासनापेक्षा न्यायाधिष आणि न्यायालयांना प्राधान्य/महत्व [कार्यकारी अधिकारियों और प्रशासनिक न्यायाधिकरणों पर न्यायाधीशों और अदालतों की प्राथमिकता/महत्व
प्रशासनिक कार्रवाई की न्यायिक समीक्षा]
[14] प्रषासकीय कार्याचे न्यायिक पुर्नअवलोकन [प्रशासनिक कार्रवाई की न्यायिक समीक्षा]
[15] प्रस्तावना [परिचय]
[16] न्यायिक पुनर्विलोकन [न्यायिक समीक्षा]
[17] वटहुकूम, उपनियम, जाहीर खबर, प्रथा आणि रितीरिवाज इ. [वटहुकूम, उपनियम, जाहीर खबर, प्रथा आणि रितीरिवाज इ.]
[18] AIR 1969 SC 33
[19] दुष्ट कायदे [दुष्ट कानून]
[20] (1976) 2 SCC 521
[21] ‘कायदयाचे राज्य’ संकल्पनेचे टिकात्मक परिक्षण [‘कानून के शासन’ की अवधारणा की एक आलोचनात्मक परीक्षा]
[22] स्वतंत्र नागरी व प्रषासकीय कायदे [अलग नागरिक और प्रशासनिक कानून]
[23] प्रजा आणि प्रजा/नागरिक [नागरिक]
[24] प्रशासकीय न्यायालय [प्रशासनिक अदालत]
[25] नागरिक/प्रजा आणि सरकार [नागरिक और सरकार]
[26] पद्धतीचा उपयोग [विधि का प्रयोग]
[27] 1942 AC 206
[28] अधिकारांचे विकेंद्रीकरण/सत्तेची विभागणी [शक्तियों का विकेंद्रीकरण/शक्तियों का पृथक्करण]
[29] जुलूम/एकाधिकारषाही, हुमूमषाही, राजेषाही, जुलूमषाही, एकाधिकारषाही [निरंकुशता/राजशाही]
[30] प्रत्येक अधिकाराचा/सत्तेचा कल हा भ्रश्ट होण्याकडे असतो/कल हा संपूर्णपणे भ्रश्ट होण्याकडे असतो. [प्रत्येक सत्ता/अधिकार का झुकाव भ्रष्ट होणे की प्रवृत्ति रखता है।]
[31] संकल्पनेचा व्यावहारिक वापर [अवधारणा का व्यावहारिक अनुप्रयोग]
[32] AIR 1967 SC 1643
[33] महाभियोग [अभियोग]
[34] संकल्पनेचे महत्व [अवधारणा का महत्व]
[35] स्वायत्त संस्था [स्वायत्त संगठन]
[36] संकल्पनेचे टिकात्मक परिक्षण [अवधारणा की एक आलोचनात्मक परीक्षा]
[37] ऐतिहासिकदृश्टया चूकीची संकल्पना [ऐतिहासिक रूप से, त्रुटि की अवधारणा]
[38] पूर्णपणे कामाची वाटणी षक्य नाही [श्रम का पूर्ण विभाजन संभव नहीं है]
[39] व्यवहारी अडचणी [व्यावहारिक कठिनाइयाँ]
[40] आर्थिक-सामाजिक समस्यांची गुंतागुंत [सामाजिक-आर्थिक समस्याओं की जटिलता]
[41] वेळ काढू आणि महाग [[समय लेने वाली और महंगी]]