Rule of Law in India
DR. RAM MANOHAR LOHIYA
NATIONAL LAW UNIVERSITY, LUCKNOW.
ACADEMIC SESSION: 2016-17
HISTORY: PROJECT
TOPIC: RULE OF LAW IN INDIA
SUBMITTED TO: SUBMITTED BY:
Dr. Vandana Singh Shobhit Tiwari
Asstt. Professor (History) B.A. L.L. B. (Hons.)
Dr. Ram Manohar Lohiya National 3rd Semester
Law University, Lucknow. Roll No: 130
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Rule of Law in India
ACKNOWLEDGEMENT
I express my gratitude and deep regards to my teacher Dr. Vandana Singh Maam for
giving me such a challenging topic and also for her exemplary guidance, monitoring and
constant encouragement throughout the course of this thesis.
I also take this opportunity to express a deep sense of gratitude to my seniors in the college
for their cordial support, valuable information and guidance, which helped me in completing
this task through various stages.
I am obliged to the staff members of the Madhu Limaye Library, for the timely and valuable
information provided by them in their respective fields. I am grateful for their cooperation
during the period of my assignment.
Lastly, I thank almighty, my family and friends for their constant encouragement without
which this assignment would not have been possible.
Shobhit Tiwari
B.A. LL.B. (Hons.), Section B
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Rule of Law in India
TABLE OF CONTENTS
Acknowledgement..1
Introduction3
Objective.4
Research Questions..4
Research Methodology....4
Rule of Law....5
Rule of Law in British India.....7
Rule of Law in Modern India10
o Theoretical Application of Rule of Law10
o Practical Application of Rule of Law12
o Challenges faced by Rule of Law in India...13
Conclusion..15
References..
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Rule of Law in India
Two things form the bedrock of any open society freedom of expression and rule of law. If
you dont have those things, you dont have a free country.
- Salman Rushdie
INTRODUCTION
The Rule of Law is a common aspiration, proclaimed by international organizations and national
governments as a pre condition for acceptable modern governance. Historically, India was ruled
by Dharma. But with the settlement of British Empire in India the concept of Rule of Law
implanted in the land. Though, initially, Indians abide with their living norms of Dharma but
due to western Education spread by Britishers, educated Indians started to reject the lofty ideals
of their ancestors and borne their mind towards Rule of Law.
The Rule of Law has a long normative history that privileges it as an inaugural contribution of
the Euro American liberal political theory. Its origination is still in doubt but it is believed that
the two fundamental principles of Rule of Law have been in existence from earliest times: those
in power should not make the laws (the Separation of Powers), and all people (including those in
power) should be bound by the laws. A secular approach was adopted by Socrates and
afterwards by Plato who expressed that Where the law is subject to some other authority and
has none of its own, the collapse of state, in my view, is not far off, but if the law is the master
of government and the government its slave, then the situation is full of promise and men enjoy
all the blessings all the gods shower on a state. Later on, Aristotle stated in the politics that the
Rule of Law is preferable to that of any individual and then, it was A. V. Dicey in his
Introduction to the study of the Law of the Constitution (1885) elaborated modern concept of
Rule of Law.
After independence, in India, Rule of Law is considered as bedrock of our legal system. It is the
basic rule of governance of any civilized democratic polity. Our constitutional scheme is based
upon the concept is based upon the concept of Rule of Law which we have adopted and given to
ourselves. Everybody is unquestionably under the supremacy of law. No one is above the law
notwithstanding how powerful and how rich he or she may be. For achieving its establishment,
the Constitution has assigned the special task to the judiciary in the country. It is only through
the courts that the Rule of Law unfolds its contents and establishes its supremacy.
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OBJECTIVE
The role of the three organs i.e. Legislature, Executive and Judiciary is very significant in
ensuring and determining the Rule of Law according to the Constitution of India. This project
basically deals with the significance of Rule of Law in India, its history and applicability at each
step of legislation and law making process in India.
RESEARCH QUESTIONS
1. What is the definition of Rule of Law?
2. What is the historical background of Rule of law in India?
3. What is applicability of Rule of law in todays India?
4. Is Rule of Law is essential part of Constitution of India?
RESEARCH METHODOLOGY
The Research Methodology adopted in this project is Doctrinal in nature. Doctrinal research in
law field indicates arranging, ordering and analysis of the legal structure, legal frame work and
case laws to search out the new thing by extensive surveying of legal literature but without any
field work.
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RULE OF LAW
The expression Rule of Law is derived from the French phrase la principle de legalite meaning
government based on principles of law. According to A. V. Dicey believed that there were two
principles which were inherent in the non codified British Constitution. The first and primary
principle was the sovereignty or supremacy of Parliament. The second principle was the Rule
of Law. Dicey, therefore, saw the Rule of Law as a constraint of the theoretically unlimited
power of the state over the individual. For him the Rule of Law principle resulted from the
existing common law over the years. For Dicey the Rule of Law has three core features:
1. Supremacy of Law - This has always been the basic understanding of rule of law that
propounds that the law rules over all people including the persons administering the law. The law
makers need to give reasons that can be justified under the law while exercising their powers to
make and administer law.
2. Equality before the Law - The principle of equality before the law seeks to ensure that the
law is administered and enforced in a just manner. It is not enough to have a fair law but the law
must be applied in a just manner as well. The law cannot discriminate between people in matters
of sex, religion, race etc. This concept of the rule of law has been codified in the Indian
Constitution under Article 14 and the Universal Declaration of Human Rights under the
preamble and Article 7.
3. Predominance of Legal spirit - The courts are the enforcers of the rule of law and they must
be both impartial and free from all external influences. Thus the freedom of the judicial becomes
an important pillar to the rule of law. In modern parlance Rule of Law has come to be understood
as a system which has safe guards against official arbitrariness, prevents anarchy and allows
people to plan the legal consequences of their actions.
A more broad definition is offered by former Secretary General of UN Kofi Annan in his 2004
report The Rule of Law refers to a principle of governance in which all persons, institutions
and entities, public and private, including the State itself, are accountable to laws that are
publicly promulgated, equally enforced and independently adjudicated, and which are consistent
with international human rights, norms and standards. It requires, as well, measures to ensure
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adherence to the principles of supremacy of law, equality before the law, accountability to the
law, fairness in the application of the law, separation of powers, participation in decision making,
legal certainty, avoidance of arbitrariness and procedural and legal transparency. In
contemporary times, however, Rule of Law goes transnational or global. The new Global Rule
of Law relates to the emerging notions of global social policy and regulation.
In fact, it could be regarded as a modern name of Natural Law. Jurisprudentially, Romans called
it Jus Naturale, medievalists called it the Law of God, Hobbes, Locke and Roussueau called
it Social Contract and Natural Law and the modern jurists call it Rule of Law. In India too,
the concept of Rule of Law can be traced to Upanishads where it provides that Law is Kings of
Kings. Indeed, from the legendary days of Adam and of Kautilyas Arthasastra the Rule of
Law has had this stamp of natural justice, which makes it social justice1.
1
Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405
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RULE OF LAW IN BRITISH INDIA
Lofty ideal of Rule of Law believed to endanger despotic exercise of power by monarch and also
of other forms of government. However, its practical application to India by Britishers, not only
proved defects in Rule of Law but established that ideals of this concept can well be made
paper tiger. For this assertion there was infinity of examples, the history of British rule in India,
leads one to the tempting and entirely plausible supposition that there was generally one law for
the colonizers, and another one for the colonized. White juries almost never convicted
Englishmen in the colonies of serious offences, such as rape and murder. For an Englishmen to
support equality under the law was to go against the grain, to render himself into an outcast from
his community. The ideological state apparatuses, of which law is but one element had perforce
to maintain the distinction between the rulers and the ruled, because the collapse of that
distinction posed a threat to the very fabric of colonial rule.
In Raja Nandkumar case (1775), where he was hanged for alleged forgery of certain document,
whole case was built on the conspiracy of then Governor General Warren Hastings. This was in
grave disregard to principles of Rule of Law.
In Ambala Conspiracy Case (1864), Mohd. Jafar Thanesari was subjected to 18 years of Kala
Pani. There were hundreds instances where freedom fighters of India subject to cruelty, torture
and put in inhuman conditions. According to Thanesari, Police searched Thanesar and when not
finding himthere scores of men and women were apprehended. Even his old mother, his 12-13
year old brother and his wife were also being arrested and excessively beaten and tortured. He,
himself, was beaten for approximately 12 hours. His brother and many other people because of
severe beating and threat of hanging approved of providing testimony against him. They felt
powerless, given the threats of torture, and ultimately, of hanging. A child refused to provide
testimony against Thanesari and was beaten to death and in court the Jailor said that he died of a
disease.
Like him, many other Indians suffered same fate because of the so called Rule of Law of Great
Britain. However, irony here is that some of the British writers were of the opinion that the
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British Rule in India gave India a sense of security and by their sincere efforts they succeeded to
establish Rule of Law!
We are aware that independent judiciary is necessary component of Rule of Law. Let us analyze
judicial impartiality during British rule. Maulana Abul Kalam Azad said at his trial in 1922 that:
wherever the ruling powers took up arms against truth and justice, the court rooms served as the
most convenient and plausible weapons. He further stated that the list of injustice committed
by the court is a long one. Most tyrannical laws were always upheld by British Courts. They
made discrimination between Indians and Europeans, never took concern to protect under trials
from barbaric treatment by Police and Executives.
In fact, establishment of Rule of Law in India is to facilitate economic exploitation of wealthy
nation India. Charles Forbes, who stayed 22 years in India and returned to England to become a
Member of Parliament, spoke in the House of Commons in 1836, of '"plundering the people of
India day after day and year after year to an extent horrible to be contemplated. He stated that
could "total annual drain from India could be little short of five million sterling". He added that
"In fifty years they had extracted from India more than that would be sufficient to pay off the
national debt". And this was after the Napoleonic Wars, when England's national debt shot up
astronomically. The devastation and improvement which the British accomplished in Bengal,
legalized by the British Parliament's license to loot, was rapidly expanded to the rest of India,
and continued till 1947. Within the next half century after Clive, it was estimated that between
500 and 1,000 million was transferred to Britain. Britain claimed that it did not extract any
tribute from India. The word "tribute", too harsh for sensitive British ears, was replaced by the
less aurally offensive but equally pauperizing "Home Charges" in either case. It was India's
payment of the privilege of being ruled and exploited by Britain. Further capital was siphoned
off by manipulating the Indian trading deficit with Britain and by the increasingly large interest
payments on the Indias Public Debt. Before the 1914-18 War, India financed more than two-
fifths of Britain's total deficits, in ensuring Britain's balance of payments surplus.
From 1895 to 1898 the total amount transferred is estimated to be more than 1,000 million.
From 1898 to 1939, the transfers more than doubled. Further wealth was extracted in the form of
priceless manuscripts, antiques, jewellery, and so on. The British Museum is probably the largest
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depository of' stolen goods in the world today, with the Louvre and similar museums not far
behind Most of the items in them were supposed to be gifts, though they would be called bribes
now. If an Indian took a present he was said to be corrupt. But if a Company's servant took a
"gift", he was collecting a legitimate perquisites. Was this so called Rule of Law?
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RULE OF LAW IN MODERN INDIA
THEROETICAL APPLICATION OF RULE OF LAW
Indian adopted the Common law system of justice delivery which owes its origins to British
jurisprudence, the basis of which is the Rule of Law. Dicey famously maintained that the
Englishman does not need Administrative law or any form of written law to keep cheeks on the
government but that the Rule of Law and natural law would be enough to ensure absence of
executive arbitrariness. While India also accepts and follows the concept of natural law, there are
formal and written laws to ensure compliance.
The Constitution of India intended for India to be a country governed by the Rule of Law. It
provides that the constitution shall be the supreme power in the land and the legislative and the
executive derive their authority from the constitution. Any law that is made by the legislative has
to be in conformity with the Constitution failing which it will be declared invalid; this is
provided for under Article 13 (1). Article 21 provides a further check against arbitrary executive
action by stating that no person shall be deprived of his life or liberty except in accordance with
the procedure established by law.
Article 14 ensures that all citizens are equal and that no person shall be discriminated on the
basis of sex, religion, race or place of birth, finally it ensures that there is separation of power
between the three wings of the government and the executive and the legislature have no
influence on the judiciary. By these methods, the constitution fulfils all the requirements of
Diceys theory to be recognized as a country following the Rule of Law.
The Supreme Court of Indian has further strengthened this mechanism through its various
judgements, the foremost of them being, A D M Jabalpur v. Shivkanth Shukla2. 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 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
2
AIR1976 SC 1207, 1976 SCR 172
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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. Rule of Law is now the accepted norm of all civilized societies
In Chief settlement Commissioner; Punjab v. Om Prakash 3 , it was observed by the Supreme
Court that, In our constitutional system, the central and most characteristic feature is the
concept of rule of law which means, in the present context, the authority of law courts to test all
administrative action by the standard of legality. The administrative or executive action that does
not meet the standard will be set aside if the aggrieved person brings the matter into notice. In
the case of Satvant Singh Sawhney v. D Ramarathanana4, the Supreme Court has held that every
executive action if it operates to the prejudice of any person must be supported by some
legislative authority.
In Secretary, State of Karnataka and Ors. v. Umadevi (3)and Ors5, a Constitution Bench of this
Court has laid down the law in the following terms: Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our Constitution and since the rule of law is
the core of our Constitution, a court would certainly be disabled from passing an order upholding
a violation of Article 14 or in ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of the Constitution.
Most famously in the case of Kesavananda Bharati v. State of Kerala6, the Supreme Court held
that the Rule of Law is an essential part of the basic structure of the constitution and as such
cannot be amended by any Act of Parliament, thereby showing how the law is superior to all
other authority of men.
3
1969 AIR 33, 1968 SCR (3) 655
4
1967 AIR 1836, 1967 SCR (2) 525
5
(2006) 4 SCC 1
6
(1973) 4 SCC 225
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PRACTICAL APPLICATION OF RULE OF LAW
Critiques have often maintained that the Rule of Law in India is merely a theory with no
practical application. While it cannot be denied that the country is one where corruption runs
rampant and according to 2012 World Justice Project data, India fares well on openness of
government and democratic controls, in the category limited government powers, which
evaluates the checks on government, India ranks 37th of the 97 countries surveyed around the
world, is first among five in its region, and comes in second out of 23 lower-middle-income
countries. Yet the Rule of Law that exists on paper does not always exist in practice. When it
comes to procedural effectiveness, India fares poorly. In the categories of absence of corruption
and order and security, India ranks 83rd and 96th globally.
In addition to the problem faced in India due to corruption in the law making and justice delivery
systems, there also exists the problem of old laws still being in place. India does not adopt a
sunset clause in its laws and post independence the Indian Independence Act provided that all
laws existing under the colonial rulers would continue to exist under the new system unless
explicitly revoked by the parliament. While this did provide the nation with a firm basic system
of laws, thereby preventing a situation of anarchy in the immediate aftermath of independence,
some of these laws were drafted to suit the environment of those time and they become hard to
interpret in the current environment. This leads to ambiguity and endless litigation in an attempt
to interpret the provisions.
While these problems persist it is important to note that the constitutional mechanism has
provided enough safe guards to endure that the Rule of Law in some form will always persist.
One of the most important factors contributing to the maintenance of the Rule of Law is the
activity of the courts in the interpretation of the law. It is rightly reiterated by the Supreme Court
in the case Union of India v. Raghubir Singh7 that it is not a matter of doubt that a considerable
degree that governs the lives of the people and regulates the State functions flows from the
decision of the superior courts. In the case of Maneka Gandhi v. Union of India 8 , the court
ensured that exercise of power in an arbitrary manner by the government would not infringe the
7
1989 AIR 1933, 1989 SCR (3) 316
8
1978 AIR 597, 1978 SCR (2) 621
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rights of the people and in Kesavananda Bharati the court ensured that laws could not be made
that essentially go against the Rule of Law by saying that the basic structure could not be
breached.
Apart from judicial decision the constitutional mechanism in itself provides for the protection of
the rule of law through the creation of monitoring agencies. While there have been numerous
scams that have come to light in the last few years, the fact that must also be noted is that these
scams have come to light and the justice delivery mechanism has been set in motion against the
perpetrators. The role of the Central Vigilance Commission and the Comptroller and Auditor
General in the exposure of these discrepancies is commendable and this shows how the law has
provided for its own protection by putting in place multiple levels of safe guards which ensure
that it will be effective at some level. The Election Commission of India, a constitutional body
has also been undertaking the task of ensuring free and fair elections with some degree of
efficiency.
CHALLENGES FACED BY RULE OF LAW IN INDIA
Rule of Law in India came under Great challenge in 1975 emergency period; thousand of political leaders
across the country have been under detention without stating any reasons. Several repressive laws enacted
thereby a worst kind of Preventive detention law are applied, this experience unique to India even during
British Rule there was no law to provide complete authority to police official to detain person preventively.
Freedom of press and expression were put under pre-censorship, some of the foreign dailies and periodicals
were banned and lines were revoked. An attempt of substitution of Original constitution is made by
introducing 42nd Amendment Act to the Constitution in 1976. Misuse of Art 356 leads to the weakening of
federal structure of the country.
In 1970s judiciary not remained independent and uncontaminated body form political
intervention, appointment of Justice A.N. Ray as Chief Justice of India, discarding other three
senior most judges of SC who were in no matter less than Justice A.N. Ray, but one lacuna on
these three judges was that they were not having political affiliation to ruling party. Misuse of
CBI, police forces for the arrest of political revelries, appointment inquiry committees,
manipulation of inquiry committee report by using political power became new order of post
independence era of India.
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Lack of proper supervision, and social vigilance bureaucrats became most potent robbers of
national wealth, they along with political bosses, criminals able to plunder the country within 60
years what the Britishers failed to do in 250 years of their rule. Justice administration system is
more worst than its earlier times, legal education in country is made dustbin, which hold
everything that which is not accepted anywhere, teaching of Anglo-Saxon jurisprudence in law
schools and college is mandate, where as the existence of our own India Jurisprudence is itself a
serious doubt to both teacher and student so studying it is myth. The idea of an independent
judge comes from Anglo-Saxon jurisprudence and it requires that the judges mind is a tabula
rasa, a clean slate, with respect to the dispute and he only allows his mind to register that which
is relevant to the dispute this idea is itself a shock to Indian community, trial in alien language,
examination of witness in the manner not understandable to parties, deliberate falsification of
fact by lawyers are the amongst important reasons for failure of justice administration system in
India. Apart from this, new courts with their very specialized rules of evidence which were
manned by very technical judges, and where you would have to place your full faith in the
advocate, who alone would be the voice that would speak in the court, made the system
inaccessible to Indians. Criminal Justice system is still of worst kind criminals easily succeeding
to escape from punishment because of corrupt police officers, and unprepared prosecution
advocates, who were overburdened by large number of cases as result public prosecutors not able
to collect sufficient evidences which result in conviction of criminals. To this Criminal Law
principle presumption of innocence until proved guilty adding more complications and
protection to criminals.
Now India is passing through new era of Scams, 2G spectrum Scam, Coal Scam, Adarsh
Housing Scam, Vadra Land Acquisition Scam, Nitin Ghadkharis Politico-business Scam,
Common wealth Scam, BOFORs Scam, Telgi Scam, Satyam Scam, etc. We are not worried
about what are the reason for these scams, but we are very much concerned about, how rule of
law in India trying to prevail over these illegal activities? After analyzing above mentioned
Scams it is clear that by and large, Big Fishes escaping from the net. Than question arises as to
the efficiency of Rule of Law, especially under the circumstance in which judiciary itself is on
verge of losing public confidence.
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CONCLUSION
REFERENCES
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