Liberty is a precious possession of every individual. It needs to be protected, so as to be enjoyed by him. There are several methods of doing so. One of the most important of them is the judiciary. As we have said above, the courts are entrusted with the important task of defining and defending the rights and liberty of the individual. But the question is: How?
In most cases, the rights and liberty of the individual are threatened by his fellow-citizens or by the officials of the State. In the past ages, a rich or an influential person could deny others of their rights and liberty with impunity, because the State was then weak and the courts lacked power to enforce their decisions against powerful individuals. But it is now a thing of the past. The State now maintains a strong administration and its courts are now strong enough to punish even the most powerful individual, if he violates law and encroaches upon the rights and liberty of his fellow- citizens. It was called the “King’s peace”, in English constitutional history. So the first danger to individual liberty is now no longer a political question: it is only a legal matter.
Another source of danger to individual liberty and rights are the government officials from the minister down to a police constable and the like, it may occur in the following ways:
The government may be acting in the higher interest of public good or national welfare. The common good of the people may necessitate a disregard of individual liberty or right, because the rights of the State are superior to the rights and liberty of the individual. In this case, the plea of the State is based on the old Latin adage, Salus populi suprema lex, i.e., the welfare of the people is the supreme law. This is the plea on which dictatorships, authoritarianisms and various kinds of absolutisms and autocracies arise and on which various kinds of restrictions on individual liberty are imposed even in democracies.
More frequently, it is the officials of the State who deny or destroy the rights and liberty of the individual either by their arbitrary action or by exceeding the limits of their official duties and authority. Such official breaches of individual liberty may be due to their bona fide zeal in performing their official functions or due to their neglect of duty or due to their exercise of discretionary powers in arbitrary manner. For instance, a traffic policeman, an income tax officer, a customs official or a factory inspector may either act in good faith or deliberately exceed his authority and thereby injure the rights, interests and liberty of a citizen.
As Justice Brennen says ‘Today, as rarely before, case after case comes to the court which finds the individual battling to vindicate a claim under the Bill of Rights against the powers of government, federal and State,.” Hence the question is: How can the courts defend in such cases the rights and freedoms of the individuals? This question has been solved in two different ways, viz., the Rule of Law, as in Great Britain, Pakistan, etc, and the Administrative Law, as in France. In the Rule of Law, the ordinary courts are entrusted with the task of defending individual rights and liberty against all breaches by the officials or by private citizens. But under the Administrative Law, the official breaches of individual liberty and rights are adjudged by a special kind of courts, called the administrative courts and under a special kind of laws called the administrative laws. We shall now deal with the two judicial systems separately.