Rule of Law in India

“Editor’s Note: The principle of Rule of Law is indispensable to any legal and
political system. It imbibes the notions of fairness, equality and non-arbitrariness.
The origin of the principle can be traced back to ancient Greece, where it was largely
positive. It gradually developed in Rome to include negative traditions as well.
An authoritative interpretation was given by A.V. Dicey, who suggested a three-
pronged definition of the principle. But his conception is not without flaws. In India,
Rule of Law is embodied in the Constitution- in the ideals enshrined in the Preamble
and in Part III. Over time, the Constitution has been interpreted by the judiciary in a
manner so as to afford a liberal interpretation to the principle. Rule of Law has been
held to mean due process and a just, fair and non-arbitrary procedure. This has been
given effect through the principle of separation of powers that prevents one organ of
the government form over-reaching and acting in an arbitrary manner, by creating a
system of checks and balances. However, any encroachment or adverse action on the
part of one organ, severely undermines the principle of Rule of Law.”

Introduction
The term ‘Rule of law’ is a phrase that is very commonly used whenever law is being
studied. It is derived from the French phrase ‘la principe de legalite’ which means the
‘principal of legality’. It refers to ‘a government based on principles of law and not of
men’. In other words, the concept of ‘la Principe de legalite’ is opposed to arbitrary
powers. ‘Rule of Law’ as defined by Dicey, means “the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power and
excludes the existence of arbitrariness, of prerogative, or even wide discretionary
authority on the part of the government.”[i]
The concept of rule of law is a very dynamic concept, capable of interpretations to
enable the successful working of a democracy. In simple terms, Rule of Law is the
restriction on the arbitrary exercise of power by subordinating it to well-defined and
established laws. Law should govern the nation and not the arbitrary decisions by
individuals. Thus, Rule of Law embodies the doctrine of supremacy of law.

Origin Of Rule Of Law

Rule of Law is as old as civilisation. Times and society have changed the perceptions
of various authors resulting in different and varied definitions and approaches to Rule
of Law. Many accounts of the rule of law identify its origins to classical Greek
thought, quoting passages from Plato and Aristotle. Greek ideas with respect to the
rule of law are therefore best understood in the form of exemplary models, providing
inspiration and authority for later periods.[ii] The Roman contribution to the rule of
law tradition was negative as well as positive, with the negative tradition being of
much greater consequence[iii].
The Germanic customary law proposition that the king is under the law has been
widely identified as an independent source of the rule of law in the medieval
period[iv]. The Magna Carta, 1215 although it stands on its own as a historical event
with reverberating consequences in the rule of law tradition, epitomized a third
Medieval root of the rule of the law- the effort of nobles to use law to restrain
kings [v]. Then came the Liberalist and Federalist approaches to Rule of Law.
Locke’s design involved a limited delegation of power, for some purposes, from
individuals to the government, revocable by them if the government failed to meets its
obligations. He specified a separation of powers between legislature and executive –
though not a separate judiciary – to assure that the government acts according to duly
enacted standing laws[vi]. And he argued that absolute monarchy is inconsistent with
civil society because such a monarch would judge his own cases, continuing in a state
of nature in relation to the people. Finally, consistent with the consensual nature of the
civil society, Locke held that legislation should be established by majority vote[vii].
In this backdrop, following Montesquieu’s approach, in the year 1885, A.V. Dicey on
observing the UK model laid down three principles to be arising out of Rule of
Law[viii].
1. Supremacy of Law;
2. Equality before the law;
3. Predominance of Legal Spirit.
In France, Dicey observed that the government officials exercised wide discretionary
powers and if there was any dispute between a government official and a private
individual, it was tried not by an ordinary court but by a special administrative court.
The law applicable in that case was not ordinary law but a special law developed by
the administrative court. From this, Dicey concluded that this system spelt the
negation of the concept of rule of law. He felt that this was against the principle of
equality before the law. He also stated that all English are bound by the Rule of Law
and there is no external mechanism required to regulate them. Therefore, he
concluded that there was no administrative law in England[ix].
Dicey’s concept of Rule of Law had its advantages and disadvantages. Rule of Law
imposed and helped in imbibing a sense of restraint on administration. The
government was bound to work within the legal framework. Further, by stating that
the law is supreme, he made every law made by the legislature supreme, thus,
promoting parliamentary supremacy. There cannot be self-conferment of power as
even an ordinary law is supreme. All laws, public or private, are being administered
by the same set of independent and impartial judiciary. This ensures adequate check
on the other two organs. Nonetheless, on the other hand, Dicey completely
misunderstood the real nature of the French droit administratif. He thought that this
system was designed to protect officials, but the later studies revealed that in certain
respects it was more effective in controlling the administration than the common law
system. The reality is that French Conseil d’ Etat is widely admired and has served as
model for other countries as well as for court of justice for European communities[x].
He also did not realise the need for codification of laws which could lead to more
discretion, thus hampering Rule of Law.

Rule Of Law in India

The concept of Rule of Law permeates into the Indian Legal System through the
Constitution. Part III of the Constitution of India acts as a restraint on the various
organs exercising powers. While conferring the rights on the citizens, it imposes
restrictions on the power that can be exercised. Under our Constitution, we have
adopted the British System of Rule of Law. Absence of arbitrary power is the first
essential of Rule of Law upon which our whole constitutional system is based.
[xi] Governance must be by rule, and not arbitrary, vague and fanciful.[xii] Under our
Constitution, the Rule of Law pervades over the entire field of administration and
every organ of the state is regulated by Rule of Law. The concept of Rule of Law
cannot be upheld in spirit and letter if the instrumentalities of the state are not charged
with the duty of discharging their function in a fair and just manner.[xiii]
Judiciary and Rule of Law:
The Indian Judiciary has played an instrumental role in shaping Rule of Law in India.
By adopting a positive approach and dynamically interpreting the constitutional
provisions, the courts have ensured that the Rule of Law and respect for citizens’
rights do not remain only on paper but are incorporated in spirit too.

In the case of A.D.M. Jabalpur v. Shiv Kant Shukla[xiv], KHANNA, J. observed:

“Rule of Law is the antithesis of arbitrariness……..Rule of Law is now the accepted
norm of all civilized societies……Everywhere it is identified with the liberty of the
individual. It seeks to maintain a balance between the opposing notions of individual
liberty and public order.”
In Bachhan Singh v. State of Punjab[xv], it was held that the Rule of Law has three
basic and fundamental assumptions. They are:-
1) Law making must be essentially in the hands of a democratically elected
legislature;

2) Even in the hands of the democratically elected legislature, there should not be
unfettered legislative power; and
3) There must be independent judiciary to protect the citizens against excesses of
executive and legislative power.

The first case which stirred a debate about Rule of Law was Shankari
Prasad v. Union of India[xvi], where the question of amendability of fundamental
rights arose. The question lingered and after witnessing the game play between the
government and the judiciary, the issue was finally settled in the case of Kesavananda
Bharati v. State of Kerala[xvii]. In this case, the Hon’ble Supreme Court held that the
Rule of Law is the “basic structure” of the Constitution. The Hon’ble Supreme Court
by majority overruled the decision given in Golak Nath’s case[xviii] and held that
Parliament has wide powers of amending the Constitution and it extends to all the
Articles, but the amending power is not unlimited and does not include the power to
destroy or abrogate the basic feature or framework of the Constitution. There are
implied limitations on the power of amendment under Art 368, which are imposed by
Rule of Law. Within these limits Parliament can amend every Article of the
Constitution. Justice H R Khanna played a vital role in preserving the Rule of law
although he concurred with the majority decision.
In the case of Indira Nehru Gandhi v. Raj Narayan[xix], the Apex Court held that
Rule of Law embodied in Article 14 of the Constitution is the “basic feature” of the
Indian Constitution and hence it cannot be destroyed even by an amendment of the
Constitution under Article 368 of the Constitution. Article 329-A was inserted in the
Constitution under 39th amendment, which provided certain immunities to the
election of office of Prime Minister from judicial review. The Supreme Court declared
Article 329-A as invalid, since it was clearly applicable only to the then current prime
minister and was an amendment to benefit only one individual. It was decided that the
law of the land is supreme and must prevail over the will of one person.
In the case of Maneka Gandhi v. Union of India[xx], the Hon’ble Supreme Court
established the Rule of Law that no person can be deprived of his life and personal
liberty except procedure establish by law under Article 21 of the Constitution. Thus,
Article 21 requires the following conditions to be fulfilled before a person is deprived
to his life and liberty:

1. That there must be a valid law.

2. The law must provide procedure.
3. The procedure must be just, fair and reasonable.
4. The law must satisfy the requirement of Article 14 and 19.
The Supreme Court observed in Som Raj v. State of Haryana [xxi], that the absence
of arbitrary power is the primary postulate of Rule of Law upon which the whole
constitutional edifice is dependant. Discretion being exercised without any rule is a
concept which is antithesis of the concept.
Another facet of Rule of Law in India is the independence of judiciary and power to
judicial review. The Supreme Court in the case Union of India v. Raghubir
Singh[xxii] that it is not a matter of doubt that a considerable degree of principles that
govern the lives of the people and regulate the State functions flows from the decision
of the superior courts. Rule of Law as has been discussed postulates control on power.
Judicial review is an effective mechanism to ensure checks and balances in the
system. Thus, any provision which takes away the right to judicial review is seen to
go against the very fibre of Rule of Law. In the case of S.P. Sampath Kumar v. Union
of India[xxiii], the courts have reiterated that judicial review is part of the basic
structure of the Constitution.
In India, the meaning of rule of law has been expanded. It is regarded as a part of the
basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed
even by Parliament. The ideals of the Constitution- liberty, equality and fraternity
have been enshrined in the preamble. Constitution makes the supreme law of the land
and every law enacted should be in conformity to it. Any violation makes the law ultra
vires. Rule of Law is also reflected in the independence of the judiciary.

The Darker Side of Rule of Law

The case of ADM Jabalpur Shivakant Shukla[xxiv] is one of the most important cases
when it comes to rule of law. In this case, the question before the court was ‘whether
there was any rule of law in India apart from Article 21’. This was in the context of
suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an
emergency. The answer of the majority of the bench was in negative for the question
of law. However Justice H.R. Khanna dissented from the majority opinion and
observed that “Even in absence of Article 21 in the Constitution, the state has got no
power to deprive a person of his life and liberty without the authority of law. Without
such sanctity of life and liberty, the distinction between a lawless society and one
governed by laws would cease to have any meaning…” The majority judges could not
take a firm stand and interpreted the supremacy of law to mean supremacy of the law
of the land and not supremacy of the constitutional spirit which is rule of law.
The question of encroachment of the judiciary over the other organs of the
government in the name of activism always persists. The extent to which the courts
can limit the exercise of other organs is to be pondered upon. The principle of Rule of
Law does not also allow the self- conferment of power by the judiciary. The court’s
interpretation and judgments are never solely adequate to ensure the observance of
Rule of Law. Corruption, fake encounters, unfair policies all undermine rule of law.
[xxv]
The main characteristic of the concept of rule of law is ‘equality’. This itself has been
criticized widely. The government possesses the inherent authority to act purely on its
own volition and without being subjected to any checks or limitations. Total equality
is possible to prevail in general conditions, not only in India but in any country for
that matter. For e.g.: no case can be filed against the bureaucrats and diplomats in
India and the privileges enjoyed by the members of parliament with respect to legal
actions against them.

Conclusion
The Hon’ble Supreme Court of India has expanded Article 21 to include in its broad
interpretation right to bail, the right to a speedy trial, immunity against cruel and
inhuman punishment, the right to dignified treatment in custodial institutions, the right
to legal aid in criminal proceedings and above all the right to live with basic human
dignity. It has also established new doctrines, such as, public trust doctrine, doctrine
of promissory estoppel, doctrine of absolute liability, and host of principles such as
polluter’s pay principle, etc. and offered guidelines in cases where no there were no
legislations, i.e, sexual harassment at work places, and most importantly laid down the
foundation of Public Interest Litigation. The vast jurisprudence that has been
developed by the courts is to ensure that state is bound by its welfare functions and the
rights of none are abridged by a tyrant hand.

Any act, inaction or abuse of such powers by one organ calls for interference of the
other organ. The judges are not to act upon the laws which are against humanity or
based on unreasonable classification or are arbitrary in nature or are against the moral
principles; even if such laws are passed by the Parliament. They are to bring in
interpretations of laws that are in tune with the principles enshrined in the
Constitution. However, there have been instances of the judiciary being marred by
corruption and to tackle judicial corruption, it is needed to keep judiciary out of the
influence and control of the Legislative or executive. There is also the need for a
speedy justice delivery system.

Similarly, Parliament is to keep in mind that the laws made by it are not against the
rule of law, or against the Constitution or public moral and humanity. It should also
from time to time keep an eye on the social changes and scientific advancement so
that the laws meet the demands of the time. Article 105(2) of the Constitution must be
amended because it promotes and protects the corruption or Horse trading in
Parliament which is against the notion of democracy and Rule of Law. The Executive
should also refrain from executing the laws which are against natural justice or in
violation of the rights, liberties and freedom of common man or is against the state or
constitution in particular. This is the doctrine of Self -Restraint, whereby, all the
organs try to fulfil the aspirations of the nation and uphold the rule of law, without
interfering into the domain of the other.
The Constitution must in all circumstances be considered supreme, and the laws made
by the legislature should pass the test of reasonableness and the objectives of the
Constitution. If any organ of the Government crosses its limits or encroaches upon the
powers of the other organs or exceeds its jurisdiction, the act shall be considered as
invalid and any abuse of law or any action shall be termed as void ab initio; and the
principle of checks and balance will come into play to ensure the sustenance of the
principle of Rule of Law.

RULE OF LAW – Dicey

One of the very basic principles of the English Constitution is the concept of Rule of Law.
The concept is well established in all legal systems in the world which include the
constitutions of the United States of America and India. In this article, you can read all
about the concept of rule of law, its meaning, origins, relation to the Indian Constitution
and exceptions to the rule of
Chief Justice Edward Coke of England, who held office during the reign of King James I, is
considered to be the originator of this doctrine. Justice Coke while emphasizing the
supremacy of law against the executive stated that the King should be under God and
Law. The theory of Justice Coke was developed by Dicey in his classic work “The Law
and the Constitution” which was published in the year 1885.

Rule of Law – Meaning & Scope

Dicey in his work stated that Rule of Law is fundamental to the English legal system and
gives the following three meanings to the doctrine:

1. Supremacy of Law
a. Rule of law according to Dicey means the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary
power or wide discretionary power.
b. It means the exclusion of the existence of arbitrariness on part of the
government.
c. This in essence means that no man can be arrested, punished or be
lawfully made to suffer in body or in goods except by the due process of
law and for breach of a law established in the ordinary legal manner
before the ordinary courts of the land.
2. Equality before Law
a. While explaining this aspect of the doctrine, Dicey stated that there must
be equality before the law or equal subjection of all classes to the ordinary
law of the land administered by the ordinary law courts.
b. Dicey believed that the exemption of civil servants from the jurisdiction of
the ordinary courts of law and providing them with the special tribunals
was the negation of equality.
c. He stated that any encroachments on the jurisdiction of the courts and
any restriction on the subject’s unimpeded access to them are bound to
jeopardise his rights.
 3. Judge-made Constitution
a. Dicey observed that in many countries rights such as the right to personal
liberty, freedom from arrest, freedom to hold public meetings, etc. are
guaranteed by a written Constitution; in England, it is not so.
b. In England, those rights are the result of judicial decisions in concrete
cases that have actually arisen between the parties.
c. Thus he emphasized 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.

Rule of Law and Indian Constitution

The Preamble of the Constitution itself prescribes the ideas of Justice, Liberty and
Equality. These concepts are further enunciated in Part III of the Constitution and are
made enforceable. All three branches of the government are subordinate i.e. the
Judiciary, Legislature and the Executive are not only subordinate to the Constitution but
are bound to act according to the provisions of the Constitution. The doctrine of judicial
review is embodied in the Constitution and the subjects can approach the High Court
and the Supreme Court for the enforcement of fundamental rights. If the Executive or
the government abuses the power vested in it or if the action is mala fide, the same can
be quashed by the ordinary courts of law.
The Supreme Court of India in Chief Settlement Commissioner Punjab v. Om Prakash
observed that in our constitutional system, the central and most characteristic feature is
the concept of the rule of law which means, in the present context, the authority of the
law courts to test all administrative action by the standard of legality. The Court added
that the doctrine of rule of law rejects the conception of the dual state in which
government action is paced in a privileged position of immunity from control by law.

Exceptions to Rule of Law

Some exceptions to the concept of the rule of law are discussed below.

 ‘Equality of Law’ does not mean that the powers of private citizens are the same
as the powers of public officials. e.g. a police officer has the power to arrest
which the private citizen does not have.
 The rule of law does not prevent certain classes of persons from being subject to
special rules, for example, the armed forces are governed by military laws.
 Ministers and other executive bodies are given wide discretionary powers by the
statute.
 Certain members of the society are governed by special rules in their professions
like lawyers, doctors and nurses.
Conclusion
The founding fathers of India accomplished what the rest of the world thought
impossible – establish a country that would follow the letter of the law and implement
the Rule of Law. In all matters such as the protection of the rights of the people, equal
treatment before the law, protection against excessive arbitrariness, the Constitution of
India has provided enough mechanisms to ensure that the Rule of Law is followed.
Through its decisions, the Courts have strived to reinforce these mechanisms and
ensure smooth justice delivery to all citizens. Problems such as outdated legislation and
overcrowded courts are but small hindrances and bodies such as the Law Commission
of India work towards ironing out these problems with the aim of achieving a system
where there are no barriers to the smooth operation of the Rule of Law.