RULE OF LAW IN REPUBLIC INDIA1

ABSTRACT

Rule of law is one of the basic feature of our constitution. It is the bedrock of our
democratic principles. It enshrines that all men and women must be governed by law
which is just, equal and supreme. It is a basic component which developed with time and
is the spirit of the article 14 which provides equality before law and equal protection of
law. It is also the ancestor of every single fundamental right, government policy and
directive principles of state policy as it upholds the supremacy and spirit of law. In 70
years of long history of independent India, we have witnessed various governments rise
and fall and various conflicts between the executive and the judiciary. During this time
there were numerous endeavors to twist, break and even wreck the idea of rule of law but
is was due to the collective efforts of the judiciary which prevented this from happening.
Hence this paper explores the relevance of rule of law and why it matters. It also depicts
some of the changes in the concept of rule of law in contemporary world. The paper also
discusses the conflict between executive arbitrariness and rule of law. It also covers the
relationship between democracy and rule of law. It further extends the discussion to the
viability of the doctrine in 21st century and the role played by judiciary, legislature and
executive in upholding the principles of rule of law.

INTRODUCTION

From time immemorial, humankind has constantly vested the power of its organisation
into some framework, ideology or individual for maintaining the order of the society. We
as a society have witnessed a variety of systems starting from the “survival of the fittest”
in the ancient times; rise of monarchy and despotism in the medieval times; to the ascent
of ideologies of capitalism and socialism; to the birth of democracies, communists and
republics in the modern times. This might make one ponder, why should our systems

1
By: Mayank Rajput, BA. LLB. (Hons.) 2nd year, Banaras Hindu University and Saumya
Tripathi, BA. LLB. (Hons.) 1st year, Banaras Hindu University
today outlive the ones before? What have we learned from the countless years of history
which could actually have any kind of effect? How can we administer ourselves better?2

The answer we came up with that mankind couldn’t be trusted to govern itself. As long as
there stood a monarch or a group of people who were above everyone else, there could
always be misuse of power. So now another question emerged. What could be bought
about to prevent this misuse of power? What could replace the “Rule of Men” which was
prevalent from thousand years? What was the ultimate remedy?

And here it was that the theory of ‘Rule of Law’ came into existence. In its simplest
version, it means the supremacy of the law above all individuals, wherein every action is
governed according to the law of the land treating all individuals as equal while having
frameworks maintaining the spirit of this law.

The idea of rule of law is that the state is administered, not by the whims of ruler or some
elected representative of the people but by the laws. A country that cherishes the rule of
law would be where the ground rule (ground norm) or the basic or core law from which
all other laws derive their authority is the supreme authority of the state. The monarch or
the representatives of the people in government are limited by law. The King is not law
but the law is the king.

21st century is experiencing a situation of balance of terror amongst the nations. Countries
like North Korea and Iraq where there is rule by law instead of rule of law have made
such situations. Rule of law can act like a positive measure if adopted by the countries.
“Never forget that everything Hitler did in Germany was legal”-Martin Luther King
Jr. There are many ways devised by scoundrels to pacify them as gentleman and rule of
law is one of them. Rule of law is the need of the time.

2
Alistair Price, Why the Rule of Law Matters, WORLD JUSTICE PROJECT, (May 13, 2018, 11:19 PM),
https://worldjusticeproject.org/news/why-rule-law-matters
The concept of rule of law is based on principle La Principe de Legality (the principle of
legality). Sir Edward Coke is the originator of this concept3 he said “The king must be
under God and Law”. In India Upanishads lay down that “Law is the king of kings”

The Viability of Dicey’s theory of Rule of Law

A.V Dicey, in his book Introduction to the Study of the Law of the Constitution (1885)
developed the idea ahead and it remains to be one of the most popular works on the
subject.

The hypothesis propounded by A.V. Dicey depended on there basic pillars which were
fundamentally made for separating England’s administration around that time from every
single other republic in Europe, particularly condemning the French and Dutch
3
Ivan Sage, Democracy, Constitutionalism & Rule of Law, VICTORIA UNIVERSITY OF WELLINGTON
JOURNAL, Pg. 25
administration by giving a contrast between them and the English governance. All the
while Dicey legitimized England’s brilliance on three grounds, which are now considered
three essential elements of rule of law.

1. Supremacy of Law
2. Equality before Law
3. Predominance of legal spirit

In India Rule of law is supreme and constitution makes the supreme law of the land and
every law enacted should be in conformity to it, any violation makes the law ultra virus.
In Kesavananda Bharti vs. State of Kerala – the supreme Court enunciated the rule of
law as one of the most important aspect of the doctrine basic structure. Laws are
supreme. Also Justice R.S Pathak observed that “ It must be remembered that our entire
constitutional system is founded on the rule of law”

The idea of Rule of Law was intertwine within the Indian constitution while it was
in the process of creation. The preamble of the constitution itself
discusses about the principles of equality, liberty, justice and fraternity to
be guaranteed to all. The constitution was made the instrument 4 which
defined the law of the nation and hence different laws were required to be
in consistency with it. By this procedure, the constitution became the
supreme law from which all the organs like legislature, executive and
judiciary derived their authority and therefore it is considered the edifice of
rule of law in India. There can be no arbitrariness in taking decision.
Decision making should be according to laws which enshrine the ideal of
supremacy of laws which is the first pillar of Dicey’s Rule of law

4
Mridushi Swaroop, Kelsens Theory of Grundnorm (January 20, 2018; 4:45pm)
http://manupatra.com/roundup/330/Articles/Article%201.pdf
The concept of equality before law and equal protection of law is enshrined within
Article 14 of the constitution, while the right to personal life and liberty within
Article 21 of the constitution. These rights are those basic rights which A.V.
Dicey promulgated. Since the idea of rule of law was the premise on which the
constitution was made, the effect of its philosophy could be seen inexplicably
from Article 13 to Article 32 (PART 3) which ensured fundamental rights to the
citizens of the country. Out of these there were several imperative articles which
were presented in the modern concept and are pillars of rule of law like: Article
21 which gives protection against self-incrimination, double- jeopardy and rights
on detention; article 32 and 226, which provides remedies through writs to the
aggrieved and Article 19 which provides several important rights like freedom of
speech and expression, freedom of movement etc. Hence the basic structure of the
constitution itself upholds the rule of law. This depicts the second pillar of Dicey’s
Theory.

. Dicey states that many constitutions of the states (countries) guarantee their citizens
certain rights (fundamental or human or basic rights) such as right to personal
liberty, freedom from arrest etc. These are enshrined in the constitution of India in
form of fundamental duties and directive principles

For the better governance Dicey’s Rule of Law is applied in 21ST Century also. But in a
more developed form. There are some more features added to it like separation of power,
open government, Fundamental rights, absence of corruption etc. At world level there is
a WJP Rule of Law index 2017-20185 in which India ranked 62 among 113 countries
with Switzerland ranked 1. Hence we infer that the Dicey’s doctrine of rule of law
continues to be of immense importance and relevance even in the 21st century. All the
three pillars of rule of law can be found in most of the countries around the world
including India

5
World justice Project Index 2017-2018( May 22, 2018; 11:00pm) https://worldjusticeproject.org/our-
work/wjp-rule-law-index/wjp-rule-law-index-2017%E2%80%932018
Role of Judiciary in maintaining rule of law

Despite the fact that the original provisions for rule of law was laid down in the
constitution itself, their legitimacy and perpetuity was evolved through several
landmark cases which decided the separation of power between the three pillars of
democracy and laid the bedrock for consistent improvement and advancement of
the principles of rule of law. Judiciary act like a guardian of the constitution
which protect it from any abuse.

The controversy over the superiority is always there between judiciary and parliament.
This started from the Shankari Prasad v Union of India where Parliament was given
unlimited power to amend any part of the constitution including the fundamental
rights also. It was said that the term law in article 13 does not include
constitutional amendment. Therefore, a constitutional amendment would have
been valid even if it abridged any of the fundamental rights.

This was further upheld in Sajjan Singh v Union of India by the Supreme Court and
now gave absolute power to the parliament to take away the basic liberties guaranteed by
the makers of the constitution.

As the saying goes, ‘power corrupts, and absolute power corrupts absolutely.’ it was not
long before court doors were knocked once again for the sake of justice. This lead to the
historic case of IC Golak Nath v State of Punjab6, wherein the Supreme Court took
away the absolute power of the parliament to amend the fundamental rights and again
restored equilibrium to the separation of powers in particular and the rule of law in
general.
But yet again, the Rule of law was struck another blow with the 24th Amendment by the
Parliament which restored the amending power of the Parliament and also
increased the scope of its own powers.

6
IC Golak Nath v State of Punjab, AIR 1967 SC 1643: [1967] 2 SCR 762
This was challenged in Keshavananda Bharti v. State of Kerala7, wherein the basic
structure doctrine was laid by the Supreme Court. The courts held that the
Parliament had wide powers in regard to amending the Constitution but this
power was limited and could have not included the power to abrogate the basic
feature of the Constitution. There were implied limitations which were put within
which the parliament could amend the Constitution.

Judiciary is an independent wing which acts as a protector of the basic structure of the
constitution. Though this concept given by judiciary of basic structure is
ambiguous which is against the principles of rule of law. Judiciary from time to
time has taken decisions which are appropriate according to the situation and
tends to maintain Rule of Law.

Executive Arbitrariness against rule of law

Rule of Law is frequently identified with decision-making as it protects against arbitrary

decision making which is in opposition to law. It brings confidence in people as they
know the legal consequences of their actions. Also law provides a mechanism for
resolving disputes by a fair procedure. Arbitrariness is the negation of Rule of Law.
Absence of arbitrary powers is one of the essentials of Rule of Law.

Executives are authorized with some arbitrary power. The rule of law principle is that
government may act and may constrict an individual’s liberty only when authorized to do
so. That is government’s action must be authorized by some valid source. Any act which
is arbitrary must necessarily involve negation of equality. The executive action must not
be arbitrary. It must be based on some rational and relevant principle which is non-
discriminatory.

7
Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225
Article 21 is the rule of law regarding life and liberty. It protects individual rights from
any arbitrariness of the government.

The judiciary’s tussle with the executive has been long and protracted. First amendment
made by Nehru government on 10 may 1951 introduced a magic box for the executive’s
arbitrary actions which is popularly known as the Ninth schedule. It added Article 31B
which said that laws under the ninth schedule cannot be struck down by a court on
grounds of violation of fundamental rights. This power given to the executive was very
well utilized by Indira Gandhi government during emergency period. As many as 47 laws
were sent to the Ninth Schedule in 1975.

In much famous case ADM Jabalpur vs Shivkant Shukla8 the four judges gave the
judgment that no person has any locus to move any writ petition under 226 before high
court against presidential order till the time proclamation of emergency is in force.

In Raman Dayaram Shetty v International Airport Authority of India9, the Supreme

Court held that the purpose of rule of law is the protection of individual against arbitrary
exercise of power.

However in a landmark judgement on 11th January 2007, the Supreme Court laid down
that the laws placed under Ninth Schedule after April 24, 1973 shall be open to challenge
in court if they violated fundamental rights guaranteed under constitution of India. So
now the laws made by passes by the Parliament can be judicially reviewed. Now the
condition is that the Rule of law again prevailed against the arbitrary actions of the
executive.

Arbitrary actions of the state are in conflict with Article 14 of the Indian constitution. An
act without reason is considered an arbitrary action. In E.P. Royappa vs state of Tamil
Nadu others10, Justice Bhagwati stated that Equality and arbitrariness are sworn
8
ADM Jabalpur v Shivakant Shukla, AIR 1976 SC 1207 : (1976) 2 SCC 521; The initials A.D.M refer to
Additional District Magistrate
9
Raman Dayaram Shetty v. International Airport Authority of India, 1979 AIR 1628 : 1979 SCR (3)1014
10
E.P. Royappa vs. State of Tmail Nadu, 1974 AIR 555, 1974 SCR (2) 348
enemies ; one belongs to rule of law in a republic while the other to the whim and caprice
of an absolute monarch.

In Maneka Gandhi Case11 reaffirmed the fact that article 14 strikes at arbitrariness in a
state action and ensures fairness and equality of treatment.
Our system of government follows the principle of non-arbitrariness. Executive passes
the law in Parliament but if it seems arbitrary to the judiciary it struck it down. So here in
our country rule of law prevails against arbitrary executive actions.

DEMOCRACY AND RULE OF LAW

“Democracy and Rule of Law are inextricably connected with each other. Urgent steps
are needed to establish a rule of law society in India, without which are fundamental
credentials as a democracy will be seriously undermined”
-C. Rajkumar

Democracy is for the people, by the people, and of the people. Constitution of India is
supreme and this feature depicts the presence of the principle of Rule of Law and the
Constitution derives its power and authority from the citizens of the country. The above

11
Maneka Gandhi v/s Union of India, 1978 AIR 597, 1978 SCR (2) 62
interlink connection between rule of law and democracy gives a clear idea that they both
are coherent.

Rule of law is a political arrangement by which the society chooses to be governed by the
set of pre-determined prescriptions made by some constitutionally chosen body following
some set procedure. Such prescriptions made by law making body are published and law
is enforced by a legally sanctioned and authorized body and the enforcement is even
handed i.e. it is not for selective people it is for everyone. The above definition depicts
the close relation between democracy and Rule of Law. It is giving us an idea that laws
directly or indirectly, are made by the people and they are for the people only, for their
betterment.

In some countries referendums or plebiscites are held it is the finest example of

coherency of democracy and rule of law. People directly participate in law making. Some
have a point of view that in a democratic arrangement voice of people should prevail or
rule of law. But it should be taken into consideration that generally rule of law are voices
of the majority of that state. They agree with those laws and we call it a democratic way
of taking opinion or else if the laws are against the majority then what kind of democratic
measure it would be; it would more or less become a authoritarian state.

In India though referendums are not held but the laws which are made by the government
are made by the representatives of the citizens whom they have elected. Government
makes laws and policies for the people.

In a democracy people elect the representative and the representative makes the law. That
simply means democracy elects power holder and rule of law is concerned with how that
political power is exercised. Democracy put some fear in the power holder that if the will
of the people is not followed and acts are arbitrarily or against spirit of law they would be
thrown out of power. In a democratic country; rule of law prevails.
CONCLUSION

In 71 years of independence, Rule of Law of comprehended and interpreted in various

manners and it has been adopted in varying degrees. There may have been some
mistakes down the road, but they were corrected while there was still time. What
the rule of law envisaged were the basic liberties of its citizens, which have been
upheld by our Constitution. Rule of law has become the foundation of our
democracy and only its survival guarantees the balance of powers. It is like the
Himalayas which protects us from the cold winds of Siberia, while at the same time
ensuring that the monsoon winds do not fly away. Through the provision laid down &
the precedents evolved, we have achieved our solemn aim of keeping law supreme
and stopping dictatorial & authoritarian regimes of the rule of man from arising back
into our country.