Rule of law and droit administratif

1. Dicey's three meanings

A.V. Dicey, in Introduction to the Study of the Law of the Constitution (1885), gave the rule of law three meanings.

• Supremacy of law, absence of arbitrary power. No one can be punished or made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts. Government by law, not by wide, arbitrary or discretionary power.
• Equality before the law. Every person, whatever his rank, is subject to the ordinary law of the land and the jurisdiction of the ordinary courts. Officials are as liable as private citizens for acts done without legal justification. Dicey contrasted this with France, where officials were answerable before separate administrative courts.
• Constitution as the result of ordinary law. In England the rights of the individual are not derived from a written constitution but are the result of judicial decisions in particular cases. The constitution is judge-made.

2. Criticism

• Discretion is unavoidable. Dicey equated discretion with arbitrariness. A modern State cannot work without wide discretionary power; the real question is how to control it, not whether to have it.
• Equality was never complete. Even in Dicey's England the Crown could not be sued in tort until the Crown Proceedings Act, 1947; judges, diplomats and Members of Parliament had immunities; many officials had special powers.
• He misread droit administratif. He thought the French system protected officials. In practice the Conseil d'État became a strong check on the administration and often gave the citizen better remedies than English courts did. Dicey later partly accepted this.
• The third meaning is peculiar to England. Where a written constitution is supreme, as in India or the United States, rights flow from the constitution, not the other way round.

The modern understanding keeps the core of the first two meanings. The rule of law now means that government must act according to law, that power is limited and reviewable, that laws must be reasonably certain and prospective, and that independent courts must be available to enforce those limits.

3. The rule of law in the Indian Constitution

January 2026 asked how the rule of law is “incorporated into the Indian Constitution”. The answer is that it runs through the text even though the phrase is not used.

• Supremacy of the Constitution: every organ derives power from it and is limited by it. Article 13 voids laws inconsistent with fundamental rights.
• Equality before law and equal protection: Article 14, which reproduces Dicey's second meaning and adds the American idea of equal protection.
• No deprivation of life or liberty except by procedure established by law: Article 21, read since Maneka Gandhi (1978) as requiring a procedure that is fair, just and reasonable.
• No punishment except under a law in force: Article 20.
• Remedies: Articles 32 and 226, which make the rule of law enforceable against the State.
• Accountability of officials: Articles 300 and 311, and the absence of any general immunity for public servants other than the President and Governors under Article 361.

The Supreme Court has treated the rule of law as part of the basic structure. In Indira Nehru Gandhi v. Raj Narain, 1975 INSC 272, 1975 Supp SCC 1, judges in the majority described it as a basic feature, and the amendment that put the Prime Minister's election beyond any law and any court was struck down. In Som Raj v. State of Haryana, 1990 INSC 53, (1990) 2 SCC 653, the Court said that the absence of arbitrary power is the first essential of the rule of law upon which the whole constitutional system is based.

The low point was ADM Jabalpur v. Shivkant Shukla, 1976 INSC 129, (1976) 2 SCC 521, where the majority held that during the Emergency no one could move a court for habeas corpus to challenge detention even on the ground that it was illegal or mala fide. Khanna J., dissenting, said that the State has no power to deprive a person of life or liberty without the authority of law, Emergency or not. That dissent is now the law: the nine-judge Bench in K.S. Puttaswamy v. Union of India, 2017 INSC 801, (2017) 10 SCC 1, said that ADM Jabalpur was seriously flawed and stood overruled on this point. The Forty-fourth Amendment, 1978 had already provided that Articles 20 and 21 cannot be suspended during an Emergency (Article 359(1)).

4. Droit administratif

Droit administratif is the French system of administrative law. Its features:

• Separate administrative courts. Disputes between the citizen and the administration go to administrative courts, at the top of which is the Conseil d'État (Council of State), created by Napoleon in 1799. The ordinary courts have no jurisdiction over the administration.
• A separate body of law, largely built by the Conseil d'État through its own decisions, governing the liability of the State, public contracts and the validity of administrative acts.
• Tribunal des Conflits. Where it is unclear whether a case belongs to the ordinary or the administrative courts, this body decides.
• Members drawn from the administration, who therefore understand how government works, yet who have developed a strong tradition of independence.

Dicey's objection was that a separate system for officials denies equality before the law. The answer given by later writers, including Wade, is that the Conseil d'État has been a more effective control than the common law courts in several areas: it developed liability of the State without fault, review for détournement de pouvoir (misuse of power for an improper purpose) and cheap, quick procedure.

India follows the English model: there are no separate administrative courts with general jurisdiction, and the High Courts and Supreme Court review administrative action. Tribunals under Articles 323A and 323B are specialised, but they remain subject to the High Courts (the note on Subordinate judiciary and administrative tribunals, in Constitutional Law II, covers L. Chandra Kumar).

How this is examined

Every year in some form. January 2026: an essay on the rule of law and its incorporation in the Indian Constitution, and a 6-mark note on droit administratif. June 2025: a 6-mark note on the rule of law. For the essay: Dicey's three meanings, the criticism, the constitutional provisions, Indira Gandhi, Som Raj, and ADM Jabalpur with its reversal in Puttaswamy. For the note on droit administratif: the Conseil d'État, the separate law, the Tribunal des Conflits, Dicey's criticism and why it is now thought mistaken.