RULE OF

LAW

SUBMITTED TO: SUBMITTED BY:

Dr Jasneet Kaur Shubham Chandel

B.A. LLB (Hons) 4th semester

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Roll No. – 213/11

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ACKNOWLEDGEMENT

I have put my sincere efforts in this project. However, it would not have been possible
without the kind support and help of many individuals and organizations. I would like to
extend my sincere thanks to all of them.

I am highly indebted to Dr. Jasneet Kaur for their guidance and constant supervision
as well as for providing necessary information regarding the project & also for their support
in completing the project.

I would like to express my gratitude towards my parents, seniors and my classmates for
their kind co-operation and encouragement which help me in completion of this project.

My thanks and appreciations also go to my friends in developing the project and people
who have willingly helped me out with their abilities.
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Shubham Chandel
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The concepts of the rule of law and the separation of powers are associated with the liberal
notion of ‘constitutionalism’. Hunt (1997 at 22) describes the notion of constitutionalism
thus: ‘in any democratic system there are certain transcendental values that which enjoy a
“constitutional” status, in the sense that they embody fundamental ideas or aspirations which
democracy itself presupposes and which therefore cut across the political programmes of
particular governments ... the bare minimum that is required of a commitment to
constitutionalism is a rejection of the instrumentalist conception of law which sees it as a
mere tool to be used by governments in order to achieve their political goals.’ Fuller (1969)
identifies features necessarily associated with the idea of law such as openness, clarity and
coherence that give a moral quality to a state. The rule of law is therefore a set of moral and
political values. They support democracy but are not necessarily connected with democracy,
being important whatever the complexion of the government.
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GENERAL INTRODUCTION

The term 'rule of law* means the principled of legality which refers to a government based on
principles of and not of men. In this sense the concept of the rule of law is opposed to
arbitrary powers.

Rule of law is one of the basic principles of the English Constitution: This doctrine has been
enshrined in the Constitution of U.S.A. and in the Constitution of India as well. The entire
basis of administrative law is the concept of rule of law. Sir Edward Coke, The Chief Justice
in James I's reign is said to be the originator, of this great principled. In a battle against the
King, he succeeded in maintaining that the King must be under the God and the law and thus
vindicated the supremacy of law against the executive. Dicey developed, this doctrine of
Coke in his classic book, 'The Law and the Constitution' published in the year 1885.

Origin of the Rule of Law

The first proponents of the doctrine of the rule of law are believed to be Greek philosophers
including Aristotle, Plato, Cicero. For instance Plato in his book known as ‘Complete Works
of Plato’ is found to have written that the collapse of the state is not far where the law is made
subjective to the authorities but the states where the law is considered as supreme all the
blessings of the god falls on such state and it flourishes through all times.

The rule of law is an ancient ideal first posited by Aristotle, a Greek scholar, as a system of
rules inherent in the natural order.

In England, Rule of law began sometimes around 1215 when King John of England signed
the Magna Carta of 1215. The signing of Magna Carta indicated the consent of the Monarchy
of England to be under the law and the law to be supreme. The doctrine of rule of law in
England took a new look after the conflict between the parliament and monarchy or king
aroused. In this conflict the parliament and the monarchy were struggling to be supreme
authority. This conflict was resolved in favour of the parliament. After parliament became
supreme over the monarchy it started making the laws which controlled and limited power of
the monarchy. Hence executive organs in England became subjected to the law of the
parliament and that was the beginning of the rule of law in England.
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In the United States of America (U.S.A.) the doctrine of rule of law was first introduced in
1776 by the constitutional lawyers known as Paine. He is of the view that America being a
free country considers Law as the king because in every country which is free law should be
the king and no one else.  

More ideas of Rule of law were further developed by the renowned English constitutional
lawyer by the name of Dicey.

In the modern sense, the most famous exposition of the concept of rule of law was given by
Prof. Albert Venn Dicey in his book ‘THE LAW OF THE CONSTITUTION’ in respect to
the powers which the government must exercise in accordance to the law. Rule of law
consists of several basic principles which law and policy makers, judges and law enforcement
agencies should consider while exercising authority in a democratic society. This means all
duties, power and functions of government, including its organs and authorities are done in
accordance with the law.

RULE OF LAW- A STATE OF AFFAIRS

The expression "rule of law" explains a state of affairs in which everything must be done
according to law. It is a state of affairs in which there are legal barriers to governmental
arbitrariness and there are available legal safeguards for the protection of the individuals. In
simple words, it is the reverse of tyranny, the antithesis of the rule of anarchy and fear.1

Garner2 holds that the expression "Rule of Law" is often used simply to describe the state of
affairs in a country where, in main, the law is observed and order is kept. It is thus
synonymous with "law and order".

The expression "Rule of Laio" is said to have been derived from the French maxim "la
principe de legalite", which broadly means "government based on principles of law and not
of men". "Ride of Law" in this sense, is a concept opposed to arbitrary or tyrannical power.

1
Ex-Attorney General Mr. Mannigham Buller, quoted in S. Rajagopalan, Administrative Law, 1970, 57.
22
Administrative Law, 1983, 9.
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RULE OF LAW- GOVERNMENT UNDER THE LAW

It signifies that nobody should be deprived of his rights and liberties by - any administrative
action; that the administration should perform its functions according to law and not
arbitrarily; that the supremacy of the Courts be upheld, to fully secure the judicial control of
Administrative Law.

According to Prof. Goodhart,3 the essence of "Rule of law" is that "public officers are
governed by law, which limits their powers. It means government under law—the supremacy
of law over the government is distinct from government by law—the mere supremacy of law
in society generally which would apply also, to totalitarian States."

To put it in short, "Rule of Law" implies a state of affairs, where there is absence of arbitrary
powers, where law is observed by everyone including the Government and its officers, where
the action of the administration is backed by law, where every man is equal before law and
assured that he will not be punished except for violation of law, where cases relating to
violation of law or disputes as to rights and duties, are decided by impartial and independent
Courts or Tribunals.4

WADE’S INTERPRETATION OF RULE OF LAW

Wade & Forsyth,5 assign four meanings to "rule of law". Its primary meaning is that
"everything must be done according to law". It requires that every government authority must
be able to justify its action as authorized by law. And, that the affected person may always
resort to the Court of law and if the legal pedigree is not found to be perfectly in order, the
Court will invalidate the act. It is called the principle of legality.

Therefore, "rule of law" means that "government should be conducted within a framework of
recognized rules and principles which restrict discretionary power." It is the secondary
meaning of the rule of law, say the learned writers. They refer to Edward Coke's description
of "rule of law" as "the golden and straight metwand of law, as opposed to the uncertain and
crooked cord of discretion."6

3
Prof. A.L. Goodhart, “The Rule of Law and Absolute Sovereignty”, 106 UPLR, (1958), 943.
4
See also K.C. Davis, supra, note 11.
5
Administrative Law, 2007, 20-24.
6
Sir Edward Coke was the Chief Justice in the Court of James I. He was credited with being the originator of the concept of “rule of law”.
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The third meaning of "rule of law", a corollary drawn from its first meaning, Wade & Forsyth
say, is that disputes as to the legality of acts of government, are to be decided by Judges who
are independent of the Executive. The right to carry a dispute with the government before the
ordinary Courts, manned by Judges of the highest independence, is, according to the learned
writers, an important element in the Anglo-American concept of the rule of law.7

The law should be even-handed between the Government and citizen. That, the Government
should not enjoy unnecessary privileges or exemptions from ordinary law. That, "all public
authorities", in principle, "should be subject to all normal legal duties and liabilities which are
not inconsistent with their governmental functions". It is the fourth meaning assigned to the
concept of "rule of law."8

Besides the above four meanings of "rule of law" which may be said to be the principles for
the maintenance of the "rule of law", what is most essential is the establishment of
"representative democracy", providing for beneficial social and economic services and
conditions, personal independence, along with the principle of "minimal interference."8

In England, Sir Edward Coke, the Chief Justice during James I reign, was credited with being
the originator of the concept of 'rule of law'. In the battle royal which he waged against the
King, Coke maintained successfully that the King must be under God and the Law and thus
vindicated the supremacy of law over the pretensions of the Executive.

DICEY’S FORMULATION OF RULE OF LAW

A.V. Dicey developed the concept in the course of his lectures at the Oxford University. He
laid stress on the fact that Englishman could be punished for a breach of the law and for
nothing else. Dicey developed his thesis in his classic work entitled “The Law and the
Constitution" published in the year 1885.

In his formulation, Dicey attributed to the concept of "rule of law", the following three
meanings:

Supremacy of law
7
Id., 22.
8
Id., 22.
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Explaining the first principle, Dicey states that rule of law means the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power or wide
discretionary power. It excludes the existence of arbitrariness of prerogative or even wide
discretionary authority on the part of the Government. According to him the Englishmen
were ruled by the law and law alone. A man may be punished for a breach of law, but can be
punished for nothing else.9 He denied that in England the government was based on exercise
by persons in authority of wide arbitrary or discretionary powers. In his words, ' 'Wherever
there is discretion, there is room for arbitrariness and that in a republic no less than under a
monarchy discretionary authority on the part of the Government must mean insecurity for
legal freedom on the part of its subjects."10 As Wade11 says the rule of law requires that the
Government should be subject to the law, rather than the law subject to the Government.

In other words, according to this doctrine, no man can be arrested, punished or be lawfully
made to suffer in body or goods except by due process of law and for a breach of law
established in the ordinary legal manner before the ordinary courts of the land. Dicey
described this principle as 'the central and most characteristic feature' of Common Law.

Equality before law

The attribute of "Rule of Law" Dicey stated was "equality before the law and equal
subjection of all classes to the ordinary law of the land administered by the ordinary law
courts."12

Explaining the second principle of the rule of law, Dicey states that there must be equality
before the law or the equal subjection of all classes to the ordinary law of the land
administered by the ordinary law courts. According to him, in England, all persons were
subject to one and the same law, and there were no extraordinary tribunals or special courts
for officers of the Government and other authorities. According to him Courts are supreme
throughout the state. He criticised the French legal system of droit administratif in which there
were separate administrative tribunals for deciding cases between the officials of the State
and the citizens. According to him, exemption of the civil servants from the jurisdiction of
the ordinary courts of law and providing them with the special tribunals was the negation of
9
The Law and the Constitution, 1915, p. 202.
10
Id., p. 184.
11
Administrative Law, 1994, pp. 34-36.
12
Dicey, supra, note 16.
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equality. Of course, Dicey himself saw that administrative authorities were exercising 'judicial'
functions though they were not 'courts'. He, therefore, asserted: "Such transference of
authority saps the foundation of the rule of law which has been for generations a leading
feature of the English Constitution."

According to Dicey13, any encroachment on the jurisdiction of the courts and any restrictions
on the subject's unimpeded access to them are bound to jeopardize his rights. In the words of
Lord Denning14: "Our English law does not allow a public officer to shelter behind a droit
administratif.''

Meaning of droit Administratif- Under the French Legal System, known as droit administratif,
there are two types of laws and two sets of courts independent of each other. The ordinary
courts administer the ordinary civil law as between subjects and subjects. The administrative
courts administer the law as between the subject and the State. An administrative authority or
official is not subject to the jurisdiction of the ordinary civil courts exercising powers under
the civil ldfw in disputes between the private individuals. All claims and disputes in which
these authorities or officials are parties fall outside the scope of the jurisdiction of ordinary
courts and they must be dealt with and decided by the special tribunals. Though the system of
droit administratif is very old, it was regularly put into practice by Napoleon in the 18th
century.

Predominance of legal spirit

Explaining his third exposition of "Rule of Law", Dicey asserted that the general principles of
the Constitution were the result of judicial decisions of the Courts in England. in many
countries rights such as right to personal liberty, freedom from arrest, freedom to hold public
meetings are guaranteed by a 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 indi-
viduals. Thus, Dicey emphasised the role of the courts of law as guarantors of liberty and
suggested that the rights would be secured more adequately if they were enforceable in the
courts of law than by mere declaration of those rights in a document, as in the latter case, they
can be ignored, curtailed or trampled upon. He stated: “the Law of the Constitution, the rules

Cited by V.G. Ramachandran: Administrative Law, 1984.

13

Ministry of housing v. Sharp, (1970) 2 QB 223(226)

14
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which in foreign countries naturally form part of a constitutional Code, are not the source but
the consequences of the rights of individuals, as defined and enforced by the courts.”

EVALUATION OF DICEY’S CONCEPT OF RULE OF LAW

Dicey's formulation of the concept of "rule of law" has been subjected to criticism on various
counts.

While explaining the contents of his doctrine of "Rule of Law", Dicey not only excluded
"discretionary powers" but also insisted that the administrative authorities should not be given
wide discretionary powers. He believed that "wherever there is discretion there is room for
arbitrariness."

Dicey, thus, failed to distinguish arbitrary powers from discretionary powers. While arbitrary
power is said to be inconsistent with the concept of "Rule of Law", discretionary power would
not be, if it is exercised properly. Intensive Government as it exists in modem times, say
Wade & Forsyth15 "cannot be carried on without a great deal of discretionary power" and that
this power "is often conferred in excessively sweeping language".

Besides, Dicey ignored the privileges and immunities enjoyed by the Crown (which term
stood for the Executive) under the cover of the Constitutional maxim "King can do no wrong".
Dicey, therefore, say Jain & Jain, was factually wrong in his analysis, though his exposition
of "Rule of Law" has had a tremendous impact on the growth of Administrative Law in
England.16

Dicey's criticism of French system of Administrative Courts is said to be based on his

mistaken conclusion. He misunderstood and miscomprehended the real nature of the system.
He held that Droit Administratif was designed for the purpose of giving to officials "a whole
body of special rights, privileges or prerogatives as against private citizens",17 so as to make
them a law unto themselves.

The French Administrative Law, the learned authors assert, "has a system of compensation
for the acts of public officers which is in some respect more generous than that of English
Law.”18 It is that, the French Conseil d’ Etat is widely admired and has served as a model for
other countries.19
15
Supra note 3, 23.
16
Jain and Jain, Principles of Administrative Law, 2008, 13-14.
17
A.V. Dicey, The Law of The Constitution, X, 336.
18
Ibid.
19
See Brown and Bell, French Administrative Law, V, quoted Ibid.
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Besides, Dicey also ignored the growth of administrative tribunals,20 quite a few of which had
come into existence when he propounded his concept of "rule of law".

Later, Dicey himself became conscious of the emergence of Administrative Law in England.

The principle implicit in Dicey's "rule of law" thesis is that the Executive must act under the
law and not by its own decree or fiat. It is still the core principle of the Common Law system.

One thing must be noted. In modern times, Dicey's rule of law has come to be identified with
the concept of rights of citizens. As Wade and Phillips16 rightly state, it is accepted in almost
all the countries outside the Communist world with some variations. It is invoked in modern
democratic countries to keep control over the oppressive, capricious and arbitrary exercise of
powers by the administrative authorities. The International Commission of Jurists, in their
'Delhi Declaration' made in the year 1959 accepted the idea of the rule of law as a modern
form of law of nature. In the ultimate analysis it may be concluded that Dicey’s contribution
to the study of Administrative Law must be acknowledged.

MODERN MEANING OF RULE OF LAW

The modern concept of "Rule of Law" was developed by the International Commission of
jurists in 1959,21 which was later on confirmed at Lagos in 1961. The Jurists22 recorded that
"rule of law" depended not only on the existence of adequate safeguards against the abuse of
power by the executive but also on the existence of effective Government capable of
maintaining law and order and ensuring social and economic conditions of life for society.

Stating that an independent legal profession was the sine qua non of the "Rule of Law", the
Jurists expressed that there should be independent judiciary with the security of tenure free
from legislative and executive interference.23

The modern concept of the Rule of Law is fairly wide. Davis24 gives seven principal
meanings of the term Rule of Law:—

Law and Order,

Fixed rules;

20
For instance, special tribunals were established under the Poor Law Amendment Act, 1834, whereunder poor law boards exercised legislative and adjucatory
powers. Besides, there were Ecclesiastical and Admiralty Courts exercising special jurisdiction.
21
It is known as Delhi Declaration, 1959.
22
Ibid.
23
Ibid.
24
Administrative Law, 1959, pp. 24-27.
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Elimination of discretion;

Due Process of law or fairness;

Natural Law or observance of the principles of natural justice;

Preference for judges and ordinary courts of law to executive authorities and administrative
tribunals; and

Judicial review of administrative action.

RULE OF LAW IN INDIA

For a democratic government, rule of law is a basic requirement. The rule of law runs like a
golden thread through every provision of the Constitution and indisputably constitutes one of
its basic features, which requires that every organ of the state must act within the confines of
powers conferred upon it by the Constitution and the law. The rule of law pervades over the
entire field of administration.25

Rule of law permeates the entire fabric of the Indian Constitution and indeed forms one of its
basic features.26 Law in the context of the rule of law does not mean any law enacted by the
legislative authorities, however arbitrary or despotic it may be ...............what is necessary
element of the rule of law is that law must not be arbitrary or irrational and it must satisfy the
test of reason and the democratic form if the polity seeks to ensure this element by making
the frame of law accountable to the people."27

Even law can promote arbitrary power. Law and rule of law are two different concepts. As
Justice Khanna emphasised in his celebrated dissenting opinion in the Habeas corpus case,28
"A state of negation of rule of law would not cease to be such a state because of the fact that
such a state of negation of rule of law has been brought about by statute.”

Every organ of the administration is regulated by the rule of law. The Indian Constitution
embodies the modern concept of the rule of law. The concept of the rule of law exists in this
country by virtue of the following features:

25
A.K. Kraipak v. Union of India, AIR 1970 SC 150.
26
Bachan Singh v. State of Punjab, AIR 1982 SC 1336.
27
Bachan Singh v. State of Punjab, AIR 1982 SC 1336.
28
ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.
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Supremacy of the constitution. - Dicey’s doctrine of the rule of law has been accepted and
embodied in the Constitution of India. In the Preamble are enunciated the ideals of justice,
liberty and equality. These concepts are enshrined in the Part III as fundamental rights and
are made enforceable. The Constitution is supreme29 and all the three organs of the
government, that is legislature, executive and judiciary are subordinate to and have to act in
accordance with it. The principle of judicial review is enshrined in the Constitution and
subject can approach High Courts and Supreme Court for enforcement of Fundamental
Rights guaranteed under the Constitution. Supreme Court under Art. 32 and High Court
under Art. 226 can issue writs for enforcement of the Fundamental Rights.

If the executive or the government abuses the powers conferred on it or if the action is mala
fide, the same can be quashed by the ordinary courts. All rules, regulations, ordinances, bye-
laws, notifications, customs and usages are laws within the meaning of Art.13 of the
Constitution. If they are Inconsistent or contrary to any provision of the Constitution, they
can be declared ultra vires by the Supreme Court and the High Courts. No person shall be
deprived of his life or personal liberty except according to the procedure established by law.30
The executive and legislative powers of the State and the Union are required to be exercised
according to the provisions of the Constitution. The government and public officials are not
above law.

Constitutional requirement of equality. - Equality before law as a postulate of rule of law has
been accepted and adopted under Art 14 of the Constitution. The maxim ‘the king can do no
wrong' has no application in India. The government and public authorities are subject to the
jurisdiction of ordinary courts of law and for similar wrongs are to be tried and penalized
similarly.

In Som Raj v. State of Haryana31 it was held by the Supreme Court that normally, the order of
appointment would be in order of merit of candidates from the select list. Even when the
discretion is conferred on an executive authority, it must be exercised in a reasonable, manner
and should not be exercised arbitrarily. "The absence of arbitrary power is the first postulate
of the rule of law upon which our whole constitutional edifice is based. If the discretion is
exercised without any principle or without any rule, it is a situation amounting to the
antithesis of rule of law.”

29
AK Gopalan v. State of Madras, AIR 1950 SC 27.
30
Art. 21.
31
(1990) 2 SCC 653.
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Rule of law as a feature of basic structure. - In Kesvananda Bharti v. State of Kerala32

some of the judges constituting majority were of the opinion that the Rule of law was an
"aspect of the doctrine of basic structure of the Constitution, which even the plenary power of
Parliament cannot reach to amend."

In Indira Nehru Gandhi v. Raj Narain,33 wherein the Apex Court invalidated Clause (4) of
Article 329-A, inserted in the Constitution by the Constitution (39th Amendment) Act,
1975, to immunize the election dispute to the office of the Prime Minister from any kind of
judicial review, the following facets of "Rule of Law" may be culled out—

—that, the Rule of Law postulates the pervasiveness of the spirit of law throughout
the whole range of government in the sense of excluding arbitrary official action in any
sphere,34
—that, the jurisdiction of the Supreme Court to try a case on merits cannot be taken away
without injury to the basic postulates of "the Rule of Law" and of justice within a politically
democratic constitutional structure,35

—that, since the validation of the Prime Minister's election was not by applying any
law, therefore, clause (4) of Article 329-A, offended the Rule of Law.36

Elimination of arbitrariness, and not of discretion. - Expounding the concept of rule of law in
Supreme Court Advocate-on-Record Association v. Union of India37, the Supreme Court
laid down that rule of law does not rule out existence of discretionary power completely. In
this case the court held the view that vesting of absolute power in one individual is not
warranted under the constitutional scheme. For the rule of law to become realistic, there has
to be room for discretionary authority within the operation of the rule of law, even though it
has to be reduced to the minimum extent necessary for proper governance and within the
areas of discretionary authority, the existence of proper guidelines or norms of general
application excludes any arbitrary exercise of discretionary authority. In such a situation, the
exercise of discretionary authority in its application to individuals, according to proper
guidelines, or norms further reduces the area of discretion, but to that extent discretionary
authority has to be given to make the system workable.

32
AIR 1973 SC 1461.
33
AIR 1975 SC 2299.
34
Id., para 336, per Mathew, J. (Emphasis added).
35
Id., para 623, per Beg, J. (Emphasis added).
36
Id., para 59, per Ray, C.J.
37
AIR 1994 SC 268.
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Judicial activism as valiant enterprise is seen as a part of the efforts of Constitutional Courts
in India to establish rule of law society which postulates that no matter how high a person
may be the law is always above him. The Court is also making efforts to link rule of law with
human rights of the people. The Court is evolving strategy by which it can force the
government not only submit to law but also create conditions where people can develop
capacities to enjoy their rights in proper and meaningful way. It is the responsibility of the
public administration for effective implementation of rule of law and constitutional
commands which effectuate fairly the objective standards laid down by law. Every
government servant holding public power is a trustee of the society and accountable for due
effect national goals.

Although all the merits are unhurt in the concept of the Rule of law, the only negative aspect
of the concept is that respect for law degenerates into rigidity of legalism which is injurious
to the nation.

Exceptions to Rule of Law

It order to cope up with the need of practical government, a number of exceptions have been
engrafted on these ideals of rule of law provided be Dicey in modern democratic countries,
e.g., there is a universal growth of broad discretionary powers of the administration; many
administrative tribunals have developed; the institution of preventive detention has now
become the normal feature in many democratic countries. Nevertheless even after
incorporating certain exceptions the basic ideas of rule of law are still preserved and
promoted.

In India, dicey’s concept of rule of law cannot be said to be followed in strict sense, there are
certain exceptions provided under the Indian Constitution and other laws. For example:

 Existence of wide discretionary power to the executive-

President and governor of this state are given wide discretionary power in relation to certain
matters under the Indian Constitution. Under Article 72 and 161, the president and the
governor respectively have a prerogative to grant pardons, reprieves, respite or remissions of
punishment or to suspend, remit or  commute the sentence of any person convicted of any
offence. Article 85 provides the president with discretion in relation to the prorogation of
either house of the parliament and the dissolution of the house of people. The governor on the
other hand has discretion in sending the report to the president under Article 356 of the
constitution and in reserving bills for consideration under Article 200.
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Police which are a part of the executive are given wide power of arrest without warrant in
case of cognizable offences. Criminal courts in India have wide discretionary power in
providing sentences.

Immunities and privileges-

Under Indian constitution equality before law doesn’t mean that the power of a private citizen
should be the same as public official. Public officials like ministers, local authorities, public
officers and others of the like have many powers, immunities and privileges which ordinary
citizens don’t have. For example-

The President/Governor is not answerable to the court of law in discharge of his executive
functions.

No criminal proceedings whatsoever can be instituted against President or Governor of state,

while he is in office.

No civil proceedings in which relief is claimed can be filed against the President or Governor
except after an expiration of a 2 month notice that is served on him.

Under International laws, the visiting heads of state, heads of government, ministers, officials
and foreign diplomats who are posted in the country are not subjected to jurisdiction of local
courts in discharge of their official functions.

RULE OF LAW AND INDIAN CONSTITUTION

Rule of law has no fixed articulation in the Indian constitution though the Indian courts refer
to this phrase in variety of its judgements. The maxim ‘The King can do no wrong’ has no
application in India and all public authorities are made subject to jurisdiction of ordinary law
courts and to the same sets of laws. In Indian constitution is the law of the land and prevails
over Judiciary, the Legislature and the Executive. These three organs of the state have to act
according to the principles engraved in the constitution.

Under the Indian constitution the rule of law is incorporated in many of its provisions. For
example the object of achieving equality, liberty and justice are reflected in the Preamble to
the Indian constitution. Article 14 guarantees right to equality before law and equal
protection of law. It states that no one shall be denied the equality before law and the  equal
 P a g e | 19

protection of the law by the state. The direct connotation of these words provided under
Article 14 is that the law is supreme and there is no scope of arbitrariness as everybody is
governed by the rule of law. Law treats everybody equally without any biases, which is the
basic requirement of Rule of Law. In the case of Maneka Gandhi v. Union of India the
Supreme court in clear words observed that Article 14 strikes at arbitrariness in state actions
and ensures fairness and equality in treatment. Rule of law which is the basic feature of the
Indian Constitution excludes arbitrariness. Where there is arbitrariness there is denial of Rule
of Law. Art 15, 16, 23 further strengthened the ideal of equality by the incorporation of
protective discrimination as a means of ensuring equality amongst equals.

Article 13 of the Indian Constitution is another example which upheld the doctrine of Rule of
Law in India. The “laws’’ defined under Article 13 as rules, regulations, bye-laws and
ordinances can be struck down if they are contrary to the constitution of India.
In Keshavananda Bharti v. State of Kerala, the Supreme Court has included the Rule of
Law as the basic feature of the Constitution. In this case, though the Supreme Court upheld
the amending power of the Parliament which extends to every Article provided under the
Constitution but has limited that power by providing that such power cannot be used in
amending the basic feature of the Constitution.

Fundamental rights are universal and inalienable rights. Such fundamental rights can
only be protected by the state that respects the Rule of Law. Fundamental rights are provided
under part III of the Indian Constitution. Such Fundamental Rights cannot be abrogated and
can be enforced under Article 32 and 226 of the Constitution. The Indian Constitution is
the supreme law of the land and every law has to be in conformity with the Constitution. If
any law is in violation of any of the provision of the Constitution, especially the fundamental
rights shall be declared void. One of the basic postulates of the Rule of Law besides justice
and equality is Liberty. The fundamental right to life and personal liberty is provided
under Article 21 of the Constitution. This Article postulates that no person shall be deprived
of his life and liberty except by the procedure established by law, thus making the law
supreme. Such right also guarantees that no person is convicted except for the violation of
law which is in force at the time of commission of an offence and not for any other act. The
principle of double jeopardy and self-incrimination is also well recognized in the Indian
Constitution. 
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Article 19 which provides various freedoms to the individual is again something which runs
on the principles of Rule of Law as these freedoms can only be curtailed on the grounds of
reasonableness which should be satisfied on the basis of Article 14, 19 and 21 of the
Constitution. These three articles are so essential to the Indian Constitution that they are often
called as the Golden Triangle Articles of the Constitution. In E.P Royappa v. State of Tamil
Nadu & Another The Supreme Court held that for the state to justify its action of
curtailment of fundamental right it has to fulfil all the requirements provided under Article
14, 19 and 21. 

Another significant derivative of rule of law is judicial review. Judicial review is the
essential part of the rule of law. It not only protects the constitutional principles but also
checks administrative actions and its legality. All actions of the state authorities and
bureaucracy are all subject to judicial review and are accountable to the courts for the
reasonableness of their actions.

These are the essential ingredients and the basic assumption of rule of law and not of men in
all civilized nations. The Indian constitution has also provided adequate provision for the
independence of judiciary as it is the guardian of the constitution and fundamental rights of
the citizens. Judicial review is considered as one of the basic features of the constitution.
Hence the principles of rule of law run entirely through the fabric of the Indian Constitution.

Indian Case Laws

As mentioned earlier, rule of law is not expressly provided under the Indian Constitution but
it has been assertively pronounced as the essential part of the Constitution by the Supreme
Court through several judgements. Some of them are as under:

A.K Gopalan Vs State

Also known as the Habeas Corpus case, the order of detention passed during emergency was
challenged in this case on the grounds that such order is violative of the principles of rule of
law which is the basic feature of the Indian Constitution. The issue that was before the
Supreme Court to decide was whether there is any rule of law in India apart from Article 21
of the Constitution. The majority bench in the case decided the matter in the negative while
Justice khanna gave a dissenting Judgement.
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He observed that the Rule of Law is accepted in all civilised society and is considered as a
symbol of society being free. He further observed that Rule of Law is the only means of
archiving the balance between individual liberty and public order. Hence he was of the
opinion that even if there was no such Article like Article 21 in the Indian Constitution the
state has no power to deprive a person of his life and liberty without the authority of law.

A.K Kraipak V Union of India

Supreme Court on the question whether the principle of natural justice can be followed in
administrative function held that every instrumentalities of the state is bound by the doctrine
of rule of law and is charged with the duty of discharging their functions in a just, fair and
reasonable manner, which forms the basic principle of Rule of Law without which the
concept of Rule of Law has no validity. The rule of law is applicable to the entire field of the
administration as every organ of the state is regulated by the rule of law. 

Indra Nehru Gandhi V Raj Narayan

In this case the 39th amendment to the Constitution was challenged which has placed the
election of President, Prime Minister, Vice-President and the Speaker of Lok Sabha
unjustifiable in the courts of law. Holding the amendment as unconstitutional chief justice
Ray found the amendment as violative of the basic structure of the Constitution i.e., Rule of
Law. Rule of Law being anti thesis to arbitrariness does not empower the parliament to pass a
retrospective law validating an invalid election. Such exercise of power is opposed to the
basic principles of Rule of Law.

Bachan Singh v. state of Punjab Singh

This a landmark judgement on death penalty. The question whether death penalty can be
imposed under section 302 of IPC was discussed in this case. While the majority of the
judges held that the death penalty can be imposed under rarerest of the rare situation, justice
Bhagwati dissented with the majority opinion and said said that imposition of the death
penalty under Section 302 of IPC is ultra vires and void as it violates Articles 14 and 21 of
the Constitution.

Justice Bhagwati has emphasized that rule of law denies any room for arbitrariness and
unreasonableness. To ensure this, he has suggested that the power of the parliament to make
law should not be unfettered and the excesses of executive and legislative power should be
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brought under the check by the independent judiciary so that the rights of the citizen can be
protected. 

Sambamurthy v. state of Andhra Pradesh

In this case the Supreme Court upheld the principles of rule of law as the basic structure of
the Indian Constitution. Clause 5 of Article 371-D was challenged before this court which
provided the government with the power to modify or annul the administrative tribunal’s
order. Chief Justice Bhagwati in this case held clause 5 of Article 371-D as unconstitutional
on the basis of doctrine of basic structure. He held that clause 5 is contrary to the principle of
rule of law which is the basic structure of the Constitution and is thus unconstitutional.
Judicial review which is one of the tenets of rule of law is provided to the courts under the
constitution to ensure that the law is observed and is complied with  by the executive and
other authorities and such power of judicial review cannot be taken away from the court. Any
such attempt would be against the Rule of law and thus ultra vires.

Yusuf Khan v. Manohar Joshi

The SC laid down that the constitution places a duty over the state to maintain and preserve
law and order and to see that no act violence overpasses the mandate provided by the rule of
law.

Hence, it is quite evident that the concept of rule of law is gaining importance and attention
and judicial efforts are made to make it stronger.

Modern Concept of Rule of Law

From the above, it is clear that there has been a constant alteration and modifications in the
concept of Rule of Law to suit the need of the present scenario. According to Prof. Baxi A
study of Keshvananda, Indira Gandhi and other Habeas corpus cases provides a distribution
of Indian Judicial thought on the conception of the rule of law which has evolved well over a
quarter century. The Concept of Rule of Law has been given a new dimension by the liberal
interpretation of the Supreme Court of India. Rule of law today envisages not arbitrary power
but controlled power.

The modern concept of the Rule of law of law is now so greatly developed that it provides an
ideal setup for any government to achieve. The concept was developed by the International
Commission of Jurist, known as Delhi Declaration 1959, which was later confirmed at Lagos
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in 1961. According to this formulation, the dignity of man as an individual is upheld. It

implies that the rule of law should be so applied as to create conditions in which the dignity
of an individual should be given priority. The dignity of an individual doesn’t include only
the recognition of civil and political rights but also social, economical educational cultural
and developmental rights. In Short for the proper incorporation of the Rule of law, Human
Rights mechanism should be ensured. Particularly in the content of third world countries like
India, Human Rights mechanism is utmost necessary.

Moderating the Dicey’s meaning in the present day context Prof. Wade has included,
effective control of and proper publicity for delegated legislation under the concept of Rule of
Law, particularly when it imposes penalties that should as far as practicable be defined; every
man should be responsible to, the ordinary laws whether he be a private citizen are public
official, the private man’s right should be determined by impartial and independent tribunals
and fundamental private rights are safeguards by ordinary laws of England.

Conclusion 

The above mentioned judgement clearly states the evolution in the concept of rule of law in
India. The basic principles of rule of law are not followed stricto sensu in the Indian context.
It has modified the application of rule of law from time to time to meet the exigency of the
situation.

Rule of law is the fundamental principle of governance in any civilized democratic country. It
is the antithesis of arbitrariness. A democratic country like India prides itself on the rule of
law. When a crime is committed a process is followed. The perpetrator is arrested, contingent
on judicial sanction. Suspects are questioned. Evidence is collected. Interrogations are
conducted. A case is built up. The court examines the testimonies and evidence. The
defendant has a right to legal defense.

The judiciary after scrutinizing the whole case, based on the law, hands down its decision,
which can then be appealed against. In every civilized society, this process is undertaken, not
just because the criminal jurisprudence provides that the guilty is presumed to be innocent
until convicted, but because this is the only way to provide the system with legitimacy so as
to provide the arbitrary exercise of power. The fundamental principle of the rule of law is that
every human being, even if he is a criminal, is entitled to basic human rights and due process.
Encounter killings are the complete denial of such due process which forms the essential part
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of rule of law. Observing rule of law is the true basis of a democratic society. Without it
democracy is nothing but an empty phrase.

Bibliography

Upadhya , JJR, Administrative Law, Central Law Agency, 7th Ed. (2006)

Jain, M.P. & Jain, S.N. Principles of Administrative Law, 5th Ed. 2007 Wadhwa & Co.
Delhi
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