FACULTY OF LAW

UNIVERSITY OF DELHI

RULE OF LAW & INDIAN CONSTITUTION

AN ANALYSIS OF DICEY’S RULE OF LAW AND ITS APPLICATION IN INDIAN
CONSTITUTION

PRESENTED TO: - PRESENTED BY:-

DR. RAJAN VERGHEASE PAWAN KUMAR SINGH

ASSOCIATE PROFESSOR LL.M (III YEAR COURSE)
FACULTY OF LAW FACULTY OF LAW
UNIVERSITY OF DELHI UNIVERSITY OF DELHI
 INDEX

S No. Particulars Page No.

1. INRODUCTION 3

2. RULE OF LAW 6

3. MERITS OF DICEY’S RULE OF LAW 8

4. CRITICISM OF DICEY’S RULE OF LAW 9

5. DEVELOPMENT AND MODIFICATION 13

6. RULE OF LAW IN INDIAN CONSTITUTION 18

7. OBSERVATION & CONCLUSION 32

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1. INRODUCTION

"No free man shall be taken or imprison or desseised or exiled or in any way destroyed
nor will we go or send for him, except under a lawful judgment of his peers and by the
law of the land". --MAGNA CARTA

It will not be a metaphor to say that Rule of Law is the most important principle that
forms the basis of modern constitutions and system of laws. One of the basic principles
of the English constitution is the rule of law. This doctrine is accepted in the constitution
of U.S.A. and also in the constitution of India. Rule of law is one of the most discussed
subjects of developing countries. Developed countries and donor agencies always
instruct the developing countries for sustainable development and good governance.
Actually sustainable development and good governance mostly depends on the proper
application of rule of law. Laws are made for the welfare of the people, to bring a
balance in society, a harmony between the conflicting forces in society. One of the
prime objects of making laws is to maintain law and order in society, a peaceful
environment for the progress of the people. In true and real sense there is no rule of law
in India today. Law in India follows a course of selective and discretionary application.
Institution and procedures required for ensuring rule of law also are no effective in the
country.

The term “Rule of Law” is derived from the French phrase la principe de legalite which
refers to a government based on principles of law and not of men. Hence it was against
arbitrary powers. Rule of Law is of old origin, and was discussed by Ancient Greek
philosophers such as Plato and Aristotle around 350 BC. Plato wrote: “Where the law is
subject to some other authority and has none of its own, the collapse of the state, in my
view, is not far off; but if law is the master of the government and the government is its
slave, then the situation is full of promise and men enjoy all the blessings that the gods
shower on a state”. Likewise, Aristotle also endorsed the concept of Rule of law by
writing that "law should govern and those in powers should be servants of the laws.” He
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further observed that given the choice between a king who ruled by discretion and a
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king who ruled by law, the later was clearly superior to the former.
In UK, Sir Edward coke is said to be the originator of this concept, when he said that the
king must be under the god and law and thus vindicated the supremacy of law over the
pretensions of the executives. The culmination of his efforts was the famous Petition of
rights, of which Coke was one of the primary authors. The Petition of Right declared that
the king could not imprison his subjects without cause. Moreover, the legitimacy of
imprisonment should be challengeable by habeas corpus. Taxation must be by
parliament and that martial law could not be imposed in time of peace. It is a
fundamental document of the English constitution.

In India, concept of rule of law can be traced to Upanishad which provides that- Law is
the King of Kings. It is more powerful and rigid than kings. There is nothing higher than
law and by its power the weak shall prevail over the strong and justice shall triumph.
The classical Indian traditions had a different conception of both rule and law compared
to modern Western traditions. While the constraining power of legality is central to
modern Western traditions, in India it is moral authority which is at the core of the rule of
law. The classical law of India is characterized not by positive law and legality but by
moral authority and duty what is called Dharma. Dharma refers to the totality of duties
which is incumbent on individuals. The classical Indian perspective on order and rule of
law has always stressed the centrality of appropriate self-preparation and self-formation
and the limit of external legislation in establishing order. "Curbing and controlling of
unruly passions depends not so much on external regulations and sanctions as on
generating a psychic force" which promotes "individual salvation and social concord
through the development of the sense of sociality that sustains the individual's
commitment to dharma. While the sastras and customs provided the sources of law, the
actual juridical administration was carried out by the law of the courts. In the
administration of justice, the king was the highest appellate court but there was
autonomy of judges. The classical law of India, transformed through the passage of
time, continued for many centuries and when Muslims began their rule in India it found
Islamic law in its neighborhood. But the Muslim rule did not alter the fundamental
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structures of classical law of India. As Lingat helps us understand this: "The system
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which the invaders imported was fundamentally similar to that of the Hindus xxx In
either case the authority of the law rested not on the will of those who were governed by
it, but on divine revelation, on the one hand The Koran and the Sunna, and on the other
hand the Vedas and Smriti." The Islamic law was applied only to the believers, while
Hindus were ruled by the Dharmasastras. In both Hindu and Islamic laws interpretation
had the same importance, and custom held a significant (if not the same) role, "even
though in principle it could not contradict a revealed text." But a major transition in law
and society took place when Indian society was subjected to British colonialism.

In more recent times, it is Albert Dicey who is credited with providing the logical
foundation upon which the modern notion of the rule of law is based. He laid out his
three principles of the rule of law in his 1885 book An Introduction to the Study of the
Law of the Constitution (often abbreviated as Law of the Constitution):

 everyone is equal before the law

 no one can be punished unless they are in clear breach of the law
 there is no set of laws which are above the courts

Dicey’s concept of Rule of law has been subject to research of many law students and
jurists. This paper is a presentation of the concept of rule of law, Dicey's theory of 'Rule
of Law', rule of law in true and modern sense and rule of law in
India. In Indian context I have discussed the provisions for ensuring rule of law in Indian
constitution.

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20/10/2010 Pawan Kumar Singh

2. RULE OF LAW

Dicey said:
“It means, in the first place, 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 of wide discretionary authority on the part of the government. Englishmen are ruled by the
law, and by the law alone; a man may with us be punished for a breach of law, but he can be
punished for nothing else. It means, again, equality before the law, or the equal subjection of all
classes to the ordinary law courts; the ‘rule of law’ in this sense excludes the idea of any
exemption of officials or others from the duty of obedience to the law which governs other
citizens or from the jurisdiction of the ordinary tribunals; there can be with us nothing really
corresponding to the ‘administrative law’ (droit administratif) or the ‘administrative tribunals’
(tribunaux administratifs) of France. The notion which lies at the bottom of the ‘administrative
law’ known to foreign countries is, that affairs or disputes in which the Government or its
servants are concerned are beyond the sphere of the civil courts and must be dealt with by
special and more or less official bodies. This idea is utterly unknown to the law of England, and
indeed is fundamentally inconsistent with our traditions and customs.”

According to Dicey, the rule of law is one of the fundamental principles of the English
constitution he gave three meanings of the concept of rule of law.

2.1 Absence of Arbitrary Power or Supremacy of Law

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. According to him Englishmen were ruled by the law
and by the law alone; a man with us may be punished for breach of law, but can be
punished for nothing else. In this sense the rule of law is contrasted with every system
of government based on the exercise by person in authority of wide arbitrary or
discretionary powers of constraint. Dicey contends that discretionary authority vested in
the Government is incompatible with individual liberty-the more there is of the one, the
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less there will be of the other.

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2.2 Equality before Law

Rule of law, in the second principle, means the equality of law or equal subjection of all
classes to the ordinary law of the land administered by the ordinary law courts. In this
sense rule of law conveys that no man is above the law; that officials like private citizens
are under a duty to obey the same law, and there can be no Special court or
administrative tribunal for the state officials. He observes that, in England, every official,
from the Prime Minister down to the police constable or the collector of taxes, is equally
responsible for every official act done without legal justification. Of course, the Prime
Minister, or, for that matter, even a policeman, can lawfully do certain things which
private individuals cannot; but, if they abuse their powers and act illegally, their official
position cannot protect them; and the law will punish them like any other delinquent. Nor
can the mere emanation of an illegal direction from the Crown afford them adequate
defence if they execute it. Dicey points out that, in Continental countries like France, the
officials, acting in their official capacity, are exempt from the ordinary law courts and are
governed by droit administrate if or administrative law, i. e. the law administered by the
Administrative Tribunals. He disapproved of the administrative law and administrative
tribunals existing in France which oust the jurisdiction of ordinary courts with respect to
affairs or disputes in which the Government or its servants are involved. According to
him, this aspect is utterly unknown to the law of England and indeed is fundamentally
inconsistent with the English traditions and customs.

2.3 There is no set of laws which are above the courts

This is generally known as predominance of legal spirit. The general principles of the
constitution are the result of judicial decision of the courts in England. In many countries
right such as right to personal liberty, freedom from arrest, freedom to hold public
meeting 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
individuals. Thus, dicey emphasized the role of the courts of law as grantors of liberty.
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3. MERITS OF DICEY’S RULE OF LAW

The doctrine of rule of law proved to be effective and powerful weapon in keeping
administrative authorities within their limits. It served as a touchstone to test all
administrative actions. The broad principle of rule of law was accepted by almost all
legal systems as a constitutional safeguard.

The first principle (Supremacy of law) recognizes a cardinal rule of democracy that
every government must be subject to law and not law subject to the government. It
rightly opposed arbitrary and unfettered discretion to the governmental authorities,
which has tendency to interfere with rights of citizens.

The second principle (equality of law) is equally important in a system wedded to

democratic polity. It is based on the well known maxim “however high you may be, law
is above you” and “all are equal before the law”. Dicey never spoke of equality under the
rule of law as rigid. He was not blind to inequalities glaring inequalities in the British
legal system, not to the contradictions involved in the supremacy of the parliament and
the guarantees of equality of all classes to the ordinary law administered by the courts.
His dislike of the French system of administrative tribunals was the most vulnerable in
his enunciation. Dicey’s antagonism was based on his supposition that law meant fixed
rules, and administration involved exercise of discretion not controlled or guided by
rules. His dislike of exercise of discretionary authority, if literally understood, may
appear illogical, for in every decision, judicial or administrative, there is vast field of
discretion.

The third principle puts emphasis on the role of judiciary in enforcing individual rights
and personal freedoms irrespective of their inclusion in a written constitution. Dicey
feared that mere declaration of such rights in any statute would be futile if they could not
be enforced. He was right when he said that a statute can be amended and
fundamental rights can be abrogated. We have witnessed such a situation during
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emergency in 1975 and realized that in absence of strong and powerful judiciary, written
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constitution is meaningless.
4. CRITICISM OF DICEY’S RULE OF LAW

Dicey's work upon the Constitution, which first appeared in 1885, provoked vigorous
criticism. His notions were derived from an age of laissez Jaire, which zealously
protected individual liberty against encroachment by the State and regarded any
discretionary authority vested in the State as dangerous to individual liberty. That was
an age of State paternalism, the State not interfering with individual liberty and confining
its functions to foreign relations, maintenance of law and order and defense against
foreign aggression. That concept of the "Rule of Law" has rapidly changed in
subsequent years. England and most of the States of the world have drifted from
individualism to collectivism and the conception of the social welfare State. This change
was visible even in his lifetime; for Dicey very clearly perceived in his later days that the
doctrine of laissez faire had lost its hold upon the English people, and his critics point
out that even in 1885 there were plain signs of the existence of administrative law in
England, and in the next half century the growth of administrative law in England was
continuous.

As to his first principle he says that there would be no arbitrary or discretionary power.
But even in Dicey's lifetime there were both arbitrary and discretionary power in Britain.
Preventive detention, emergency situation, compulsory acquisition of goods and
properties, direct enforcement of administrative decision etc. are the best example of
exercise of arbitrary power. The first meaning of the "Rule of Law", namely, the absence
of arbitrary power to arrest or punish, is as true today as it was in 1885. But Dicey went
further and asserted that the "Rule of Law" in that sense excluded the existence of wide
discretionary authority in the Government. In this respect there has been a change.
Today the Government has wide and important discretionary powers. Parliament itself
confers extensive powers on Government to make rules and regulations. The State
today regulates the national life in myriad forms and protean shapes. The British
Constitution is not concerned wholly with the rights of the individual and Dicey failed to
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observe that the wide powers of the administration or its officers flow from the law of the
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land and are limited by law. Dicey confused discretionary power with arbitrary power,
i.e, the power exercised by an agent responsible to none and subject to no control. His
contrast between the "Rule of Law" and any system based on "the exercise by persons
in authority of wide. . . . Discretionary powers" has, therefore, lost much of its force
today. This first principle also contradicts the fact that, as a matter of necessary
efficiency, many present day statutes allow police the power to detain people for a short
period of time due only to a reasonable suspicion. Ivor Jennings has also pointed out
that arbitrary power may be increased in national emergencies, such as war. This was
reflected in the drastic powers given to the English government by the Defense of the
Realm Act in 1914.

While writing the introduction of Dicey: an introduction to study of law, E.C.S. Wade
pointed that Dicey misconceived the administrative law because he thought that the
French system is administrative law, when administrative law than that. In fact, Dicey
was concerned not with the whole body of law relating to administration, but with a
single aspect of it, namely, administrative adjudication. It may be emphasized that the
difference between judicial and administrative agencies is not fundamental. Both
applying the law to individual cases and thereby exercise discretion. But if the
safeguards which protect the exercise of judicial functions are applied to administrative
bodies the quality of adjudication will be the same.

The second principle of rule of law dicey says that there should be equality before law
and all are amenable to ordinary courts of the land. As regards the second meaning
assigned by Dicey to the "Rule of Law", viz. equality before the law and the absence of
the administrative law or Administrative Tribunals in England, it might only be observed
that all public officials and authorities have powers, rights and duties which the common
person does not possess. The law of the United Kingdom in common with all the
sovereign States affords immunity to the persons and the properties of other States,
their rulers and diplomatic agents. Further, the Crown still enjoys certain privileges,
although their scope has been greatly curtailed by the Crown Proceedings Act, 1947.
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This only shows that equality of rights and powers does not exist in the sense
contemplated by Dicey. This principle has many exceptions because equality before law
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is not possible in every case. The king or the head of the state in other countries are
immune from both criminal and civil action; judges are immune from personal
responsibility for their official acts even if they might have acted beyond their jurisdiction
but not knowingly. Again, Dicey says that there should be no separate administrative
courts as in French 'Droit Administratif.' In fact Dicey misunderstood the real nature of
the French 'Droit administratif.' The French system in many respect proved to be more
effective in controlling the administrative powers than the common law system. Dicey
failed to acknowledge that there were special courts for special class of subjects e.g.
Admiralty courts & ecclesiastical courts. There were special tribunals established under
The poor Law Amendment Act, 1834 were poor law boards were exercising legislative
and adjucationary powers. In the same manner constable protection act, 1750 gave
special immunity to police officers. Government officials enjoyed wide discretionary
powers under the Public health act to enter private properties. However, inspired by the
decision of the house of lords in Local Government board vs. Alridge1 & Board of
Education vs. Rice2 where in the administrative agency was authorized to decide even
a question of law, Dicey himself recognize his mistake and observed that there exist in
England a vast body of administrative law. even towards the end of his life he doubted
whether official law, i.e. ‘administrative law’, could be as effectively enforced by the
courts as by ‘a body of men who combined official experience with legal knowledge’,
provided that they are entirely independent of the government.

As regards his third principle Dicey says that the fundamental right and Liberties
emanate from judicial decisions. But this is one-sided view because in England people
have got many rights through the law of parliament and charters issued by the
monarchs. Various public authorities, the Crown, the House of Parliament, the court, the
administrative authorities have powers and duties and most of these are determined by
statute not by the courts. Further, the Constitution is the result of the ordinary law of the
land based upon the determination of the rights of the individual by judicial decisions, it
might conversely be said that the law of the land is the result of the Constitution. In
India, for example, the Constitution ensures the fundamental rights and those rights can
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be deemed to be directly accruing from the Constitution.

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1
[1915 AC 120]
2
[1911AC179]
So it has been clear from the above discussion that the abolition of discretionary power
is not possible fully and also equality before law is not possible in every case. His third
principle was abandoned since most other countries in the world have a bill of rights on
some description. So the concept of rule of law as propounded by Dicey needs
modification.

Though it has become a fashion to criticize Dicey's theory of rule of law- the three
important things absence of arbitrary power, guarantee of citizens right and the equality
before law over which he made emphasis are universally recognized as the core of
traditional theory of rule of law.

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5. DEVELOPMENT AND MODIFICATION

Though the concept of the Rule of Law expounded by Dicey has undergone material
changes, it remains of great historical importance, because of the influence which it has
exercised upon modern constitutional development. The principles enunciated by him
stand prominently in the world politic of today. In the sense of the supremacy of law
over Governments, the Rule of Law is taking shape institutionally in the comity of
nations.

The fundamental principle enunciated by Dicey in his concept of the "Rule of Law"
envisages the absence of arbitrary power in any authority; and an official who abuses
his power is answerable for his conduct in the court of law. The International Law
Commission of the United Nations, at its second session in 1950, while formulating a
set of principles of law based on the Nuremberg judgment, followed, in the main, the
above concept of the Rule of Law and laid down, inter alia, that the fact that a person,
who committed an act which constitutes a crime under the International Law, did so as
the Head of a State or responsible Government official does not absolve him from
responsibility under the International Law; and that the fact that a person carried out the
order of his Government or of a superior does not relieve him from responsibility under
the International Law, provided a moral choice was in fact available to him. The
Universal Declaration of Human Rights, adopted by the General Assembly of the United
Nations on the 10th December, 1948, lays down the rights which should be granted to
all persons, without distinction of any kind, and affords equal protection of the law.

In case of a dispute the contending nations never deny the existence of the rule of law
governing nations but recognize it, endeavoring to interpret it so as to justify their
conduct. The Israeli aggression on Egyptian territory towards the end of October 1956,
followed by an Anglo-French invasion of that territory, constituted a flagrant violation of
the law of nations; its position was however rehabilitated by the various resolutions of
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the United Nations General Assembly, which vacated aggression and restored peace.
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The U. S. S. R., too, had to respond -though slowly - to the strong protest of the world
organization against interference in Hungary's internal affairs.
Similar was the result in respect of the armed intervention by U. S. A. in the Lebanon
and that by Great Britain in Jordan in the middle of July, 1958. Even with regard to the
violation of the Soviet territory by U-2 flight on the 1st May, 1960, the United States of
America had to concede that flights similar to those of U-2 would not be repeated and
that there would be no more violation of Soviet air space. That is the triumph of the Rule
of Law in international affairs.

Today Dicey's theory of rule of law cannot be accepted in its totality. The modern
concept of the rule of law is fairly wide and therefore sets up an ideal for any
government to achieve. This concept was developed by the International Commission
of Jurists known as which was later on confirmed at Lagos in 1961. According to this
formulation—

"The rule of law implies that the functions of the government in a free society should be so
exercised as to create conditions Delhi Declaration, 1959in which the dignity of man as an
individual is upheld. This dignity requires not only the recognition of certain civil or political rights
but also creation of certain political, social, economical, educational and cultural conditions
which are essential to the full development of his personality".

The New Delhi Congress or Declaration of Delhi was an international gathering of over
185 judges, lawyers, and law professors from 53 countries all over the world, united as
the International Commission of Jurists that took place in New Delhi, India in 1959. The
theme of the New Delhi Congress was "The Rule of Law in a Free Society". The
Congress further developed the principles and procedures underlying the Rule of Law
as well as defining and clarifying the concept itself. The Delhi Congress gave rise to
three important elements in the concept of the Rule of Law:

 that the individual is possessed of certain rights and freedoms and that he is
entitled to protection of these rights and freedoms by the State;

 that there is an absolute need for an independent judiciary and bar as well as for
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effective machinery for the protection of fundamental rights and freedoms; and
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  that the establishment of social, economic and cultural conditions would permit
men to live in dignity and to fulfill their legitimate aspirations.

According to Davis, there are seven principal meanings of the term ‘Rule of Law’:

(1) law and order;

(2) fixed rules;
(3) elimination of discretion;
(4) due process of law or fairness;
(5) natural law or observance of the principles of natural justice;
(6) preference for judges and ordinary courts of law to executive authorities and
administrative tribunals; and
(7) Judicial review of administrative actions.

F.A. Hayek has provided a clear and concise formulation of the rule of law. According to
him:

“Stripped of all technicalities this means that government in all its actions is bound by rules fixed
and announced beforehand - rules which make it possible to foresee with fair certainty how the
authority will use its coercive powers in given circumstances, and to plan one’s individual affairs
on the basis of this knowledge.”

Broader views on the rule of law, such as the judgment of Brennan, Deane, and
Dawson JJ in Chu Kheng Lim v Minister for Immigration, will also recognize the
inherent relationship between ‘government under law’ and the separation of powers
doctrine. If Dicey’s formulation were a strict standard, then it would be quite easy to
point out a number of circumstances in which that standard has been departed from by
states.

According to Raz, the rule of law has eight "guiding principles:"'

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(1) All laws should be prospective, open, and clear.

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(2) Laws should be relatively stable.

(3) The making of particular laws (particular legal orders) should be guided by open,
stable, clear, and general rules.
(4) The independence of the judiciary must be guaranteed.
(5) The principles of natural justice must be observed.
(6) The courts should have review powers over the implementation of the other
principles.
(7) The courts should be easily accessible.
(8) The discretion of crime-preventing agencies should not be allowed to pervert the
law.

It can be noted that Raz has not limited himself to Dicey’s theory in his criticisms of the
rule of law. Raz argues that the rule of law “is not to be confused with democracy,
justice, equality (before the law or otherwise), human rights of any kind or respect for
persons or for the dignity of man” Rather than hopelessly trying to make excuses as to
why the rule of law has not always prevailed in English law, Raz stated: “Since the rule
of law is just one of the virtues the law should possess, it is to be expected that it
possesses no more than prima facie force. It has always to be balanced against
competing claims of other values”. Raz considers the rule of law to be a negative value
that is “merely designed to minimize the harm to freedom and dignity which the law may
cause in its pursuit of its goals however laudable these may be”. The rule of law has
been limited in its fulfillment of constitutionalist promises. However, in assessing
whether the rule of law has fulfilled its constitutionalist promises it must be repeated:
“The rule of law sustains much more than constitutionalism”. Constitutionalism promises
involve the limiting and supporting of state power. Before criticizing the effect of the rule
of law it must be noted that values of equality and human rights, as discussed by Dicey
and Hayek, are not always directly constitutionalist promises. However this is not to say
that constitutionalist promises, such as the restriction of arbitrary power, have not
indirectly assisted these values.
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So finally it may correctly be said that rule of law does not mean and cannot mean any
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government under any law. It means the rule by a democratic law a law which is passed
in a democratically elected parliament after adequate debate and discussion. Likewise,
Sir Ivor Jennings says -

"In proper sense rule of law implies a democratic system, a constitutional government where
criticism of the government is not only permissible but also a positive merit and where parties
based on competing politics or interests are not only allowed but encouraged. Where this exist
the other consequences of rule of law must follow".

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6. RULE OF LAW IN INDIAN CONSTITUTION

The doctrine of Rule of Law has been adopted in Indian Constitution. The ideals
of the Constitution, justice, liberty and equality are enshrined (embodied) in the
preamble. The Constitution of India has been made the supreme law of the country and
other laws are required to be in conformity with the Constitution. Any law which is found
in violation of any provision of the Constitution is declared invalid. In India, the meaning
of rule of law has been much 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.
It is also regarded as a part of natural justice. Part III of the Constitution of India
guarantees the Fundamental Rights. Article 13(l) of the Constitution makes it clear that
all laws in force in the territory of India immediately before the commencement of the
Constitution, in so far as they are inconsistent with the provision of Part ill dealing with
the Fundamental Rights, shall, to the extent of such inconsistency, be void. Article 13(2)
provides that the State should not make any law which takes away or abridges the
fundamental rights and any law made in contravention of this clause shall, to the extent
of the contravention, be void. Article 14 guarantees equality before law and equal
protection of laws. Article 21 guarantees right to life and personal liberty. It provides that
no person shall be deprived of his life or personal liberty except according to the
procedure established by law. Article 19 (1) (a) guarantees the third principle of rule of
law (freedom of such and expression). Article 19 guarantees six Fundamental
Freedoms to the citizens of India -- freedom of speech and expression, freedom of
assembly, freedom to form associations or unions, freedom to live in any part of the
territory of India and freedom of profession, occupation, trade or business. The right to
these freedoms is not absolute, but subject to the reasonable restrictions which may be
imposed by the State. Article 20(1) provides that no person shall he convicted of any
offence except for violation of a law in force at the time of the commission of the act
charged as an offence not be subject to a penalty greater than that which might have
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been inflicted tinder the law in for cc at the time of the commission of the offence.
According to Article 20(2), no person shall be prosecuted and punished for the same
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offence more than once. Article 20(3) makes it clear that no person accused of the
offence shall be compelled to be witness against himself. In India, Constitution is
supreme and the three organs of the Government viz. Legislature, Executive and
judiciary are subordinate to it. The Constitution provided for encroachment of one organ
(E.g.: Judiciary) upon another (E.g.: Legislature) if its action is mala fide, as the citizen
(individual) can challenge under Article 32 of the Constitution.

In India, the concept of ‘Rule of Law’ has developed many facets that are not only
negative, providing constraints on governmental action, but affirmative, too, imposing an
affirmative duty of fairness on the part of government. In the first place, it is obligatory
that power should not be exercised arbitrarily, meaning thereby that, it should be
exercised within the statutory ambit; and the purported exercise of it would not just be
ultra vires, but shall, in a true sense of the term, arbitrary. The law courts in India have
gone a step further to insist on the specific positive content of the rule of law obligations.
These include the rules of natural justice that have to be followed not just in a quasi-
judicial action but often also in purely administrative action. Very fortunately, the courts
in India have been able making concerted endeavors to establish a ‘Rule of Law
Society’ by insisting on ‘fairness’ in every aspect of the exercise of power by the State. It
goes without saying that the principle of rule of law runs though the Indian Constitution
like a golden thread. The Supreme Court and the various High Courts through Judicial
activism and public interest litigation, other bodies such as the National Human Rights
Commission and State Human rights Commissions and various non-governmental
organizations have made significant contributions towards protecting freedoms and
preventing human rights violations and abuses, thereby ensuring that the Rule of Law
and respect for citizens’ rights do not remain only on paper but are incorporated in
practice too.

In India, the executive power and the legislative power of the states and the union have
to be exercised in accordance with the provisions of the constitution. The government
and the public officials are not above law. The maxim ‘The King can do no wrong’ does
19

not apply in India. There is equality before law and equal protection of laws. The
government and the public authorities are also subject to the jurisdiction of ordinary
Page

courts of law and for similar wrongs are to be tried and punished similarly. The concept
of ‘sovereign immunity’ has been by passed in India and the government can be sued
for breach of contract and torts. Thus it appears that the doctrine of Rule of Law is
embodied in Indian constitution, and is treated as a part of basic structure of the
constitution.

Despite all these provisions, the administrative authorities have been conferred with
power that enables them to interfere with the action of individuals, corporate and non
corporate bodies. Wide discretionary powers are conferred on the administrative
authorities. For the purposes of national planning the executive is armed with vast
powers in respect of land ceiling, control of basic industries, taxation, mobilization of
labour, etc. Further, it is erroneous to say that individual liberty can be protected only by
traditional doctrine of rule of law. Some demonic statutes like maintenance of internal
security act, 1971, national security act, 1980 and recently repealed prevention of
terrorism act, 2001 can encroach upon individual liberty. However, these laws also aim
at establishment of rule of law.

At this juncture, we may consider the position prevailing in India vis – a – vis the third
principle of rule of law, viz. predominance of legal spirit. Until recently this principle was
studied and examined in the context of interpreting the provisions of the constitution. In
Chief Settlement Commr., Punjab vs. Om Prakash (AIR 1969 SC 33), the Supreme
Court observed:

“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 standard of legality. The administrative or executive action does not
meet the standard will be set aside if the aggrieved person brings appropriate action in the
competent court”.

6.1 Habeus Corpus Case –

After the Proclamation of the internal emergency, the widespread detentions of political
20

leaders and prominent citizens led to a spate of Habeas Corpus Petition seeking the
Page

invalidation of detention orders, in courts all over India. Nine High Courts took the
correct view that, notwithstanding the suspension of fundamental rights under Art 14,
19, 21 & 22, the petitions were maintainable. The High Court’s judicially reviewed
detentions orders inter alia on the grounds of ultra vires, breach of statutory provisions,
mala fide or other illegalities.

The Supreme Court in A D M Jabalpur v. Shivkant Shukla (1976) 2 SCC 521 by

majority 4:1 over turned the verdicts of these High Courts and held that neither
detainees nor anyone on their behalf had right to move the courts for habeas corpus in
view of the suspension of fundamental rights. This decision even excluded challenges
to detention orders on the Act or was mala fide i.e. not passed by an authorized person
or issued against a wrong person. The majority consisted of Chief Justice A N Ray,
Justice M H Beg, Y V Chandrachud and P N Bhagwati – the lone dissenter was Justice
H R Khanna.

The question before the court was whether there was any rule of law in India apart from
Article 21 of the constitution? The majority of the bench answered the issue in the
negative and observed:

“the constitution is the mandate. The constitution is the rule of law. There cannot be any rule of
law other than the constitutional rule of law. There cannot be any pre-constitution or post
constitution rule of law which can run counter to the rule of law embodied in the constitution, nor
can there be any invocation to any rule of law to nullify the constitutional provision during the
time of emergency. Art. 21 is our rule of law regarding life and liberty. No other rule of law can
have separate existence as a distinct right. The rule of law is not merely a catch word. It is not a
law of nature consistent and invariable at all times and in all circumstances. There cannot be a
brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of
the constitution.

However, Justice Khanna in his dissenting opinion differs from the majority view and
denied to succumb to political pressure. During the arguments, Justice Khanna at one
point asked the Attorney General Niren De: "Life is also mentioned in Article 21 and
21

would Government argument extend to it also?” De answered, "Even if life was taken
Page
away illegally, courts are helpless"However, Justice Khanna resisted the pressure to
concur with this majority view. He wrote in his dissenting opinion:

“The Constitution and the laws of India do not permit life and liberty to be at the mercy of the
absolute power of the Executive . . . . What is at stake is the rule of law. The question is whether
the law speaking through the authority of the court shall be absolutely silenced and rendered
mute... detention without trial is an anathema to all those who love personal liberty”

Though the majority judgment was subject to steep criticism all over the world, Justice
Khanna came out as the strongest pillar of rule of law in India. The New York Times
wrote:

“If India ever finds its way back to the freedom and democracy that were proud hallmarks of its
first eighteen years as an independent nation, someone will surely erect a monument to Justice
H R Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and
eloquently for freedom this week in dissenting from the Court's decision upholding the right of
Prime Minister Indira Gandhi's Government to imprison political opponents at will and without
court hearings... The submission of an independent judiciary to absolutist government is virtually
the last step in the destruction of a democratic society; and the Indian Supreme Court's decision
appears close to utter surrender.”

There are few men that make history. Justice H.R. Khanna was one of those great men,
who stood up for deathless Dharma, the Rule of Law, and the liberty and dignity of the
individual, at great personal cost, in perilous times when the primacy of the Rule of Law
and the strident independence of the Judiciary both of which seemed to be dormant if
not dead today, were put in jeopardy by the dictatorship of Indira Gandhi during
Emergency in 1975-77. During that period Justice Khanna played a historic rule as a
great defender of liberty and freedom by dissenting in the famous against the then
tyrannical and despotic executive, at a time when the Constitution of India itself was
being put to planned legal death in stages by Indira Gandhi. Thus at the height of the
Emergency, at the cost of his own career, Justice H R Khanna stood like a rock for
22

citizens’ rights. Here are the facts of this historic case in which Justice Khanna played a
Page
heroic role proclaiming for all time that without courage there can be no truth or justice
and without truth there can be no other virtue.

6.2 Rule of Law As Developed By Supreme Court

The text of the constitution of India does not expressly refer to “rule of law”. This is to be
contrasted with the text of the Canadian Constitution. The preamble to the Canadian
Charter of Rights and Freedoms, which was adopted as Part I of the Constitution Act,
1982, states that ‘Canada is founded upon principles that recognize the supremacy of
God and the rule of law.’ There is also a preamble to the Constitution Act, 1867, which
states that Canada is to have a ‘Constitution similar in Principle to that of the United
Kingdom.’ The Supreme Court of Canada has held that this language contains an
implicit recognition of the rule of law.3 Given the fact that Rule of Law is not expressly
mentioned in the text of the Constitution, the next step of analysis is to see how has the
Supreme Court gone on to use and interpret the concept.

A review of around 300 decisions of the Supreme Court in constitutional law cases
since 1950 till date indicates that the contexts in which rule of law has been expressly
used by the court fall into four broad categories viz. Judicial Review of Executive Action,
Basic Structure Doctrine, Judicial Independence, and Miscellaneous. The significant
decisions in each of these categories will be studied independently.

6.3 Judicial Review of Executive Action

One can begin by looking at the decision in Satwant Singh Sawhney v. Assistant
Passport Officer4. Satwant Singh Sawhney, the petitioner, carried on the business of
import, export and manufacture of automobile parts and engineering goods. For the
purpose of his business, he was taking passports for visiting foreign countries. On
August 31, 1966 the Assistant Passport Officer, Government of India, Ministry of
External Affairs, New Delhi, the 1st respondent herein, wrote to the petitioner calling
23

upon him to return the said two passports as the 3rd Respondent, the Union of India,
Page

3
Reference re: Manitoba Language Rights, [1985] 1 S.C.R. 721, at 750.
4
AIR 1967 SC 1836.
had decided to withdraw the passport facilities extended to the petitioner. Though the
petitioner wrote letters to the respondents requesting them to reconsider their decision
he did not receive any reply from them. The petitioner alleged that the said action of the
respondents infringed his fundamental rights under Articles 21 and 14 of the
Constitution.5 Upholding the contention of the petitioner, the Supreme Court held that:

“Article 14 says that the State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. This doctrine of equality before the law is a
necessary corollary to the high concept of the rule of law accepted by our Constitution. One of
the aspects of rule of law is that every executive action, if it is to operate to the prejudice of any
person, must be supported by some legislative authority. Secondly, such a law would be void, if
it discriminates or enables an authority to discriminate between persons without just
classification.”6

Thus the court took aid of the “rule of law” principle, without defining it, to interpret and
apply article 14 to decide the issue.

In S. G. Jaisinghani v. Union of India 7 , the petitioner challenged the constitutional

validity of what has been described as the “seniority rule” in regard to Income-tax
Service, Class I, Grade II along with the improper implementation of the quota
recruitment to that service as infringing the guarantee of Articles 14 and 16(1) of the
Constitution. 8 On appeal from the High Court, which had dismissed the petition, the
Supreme Court held that the seniority rule was based on reasonable classification and
hence was constitutional.9 However the court found the classification based on quota
rule found to be discriminatory and in doing so, referred to not article 14 or 16(1) of the
constitution, but to Dicey’s conception of rule of law. It held that that the absence of
arbitrary power is the first essential of the rule of law upon which our whole
constitutional system is based. The rule of law therefore meant that decisions should be
made by the application of known principles and rules so that the citizens can access
24

5
Ibid at para 1.
6
Supra note 22, at para 58.
Page

7
AIR 1967 SC 1427.
8
Ibid at para 1.
9
Supra note 25, at para 14.
their position and if a decision was taken without any principle or without any rule and
therefore unpredictable such a decision would be antithesis of a decision taken in
accordance with the rule of law. 10

Similarly in Epuru Sudhakar v. Government of A.P. 11 the Supreme Court chose to

interpret the pardoning power of the President and the Governor under Articles 72 and
161 of the Constitution respectively with the aid of the concept of rule of law. Justice S.
H. Kapadia found no other Constitutional provision, but the unwritten principle of rule of
law, on the basis of which the power of the executive to pardon could be reviewed. He
held that rule of law is the basis for evaluation of all decisions and that every prerogative
had to be subjected to the rule of law. He further explored the requirements of the
principle and stated that the rule of law comprised of “government according to law”
which required that the prerogative to be exercised in a manner consistent with the
basic principles of fairness and certainty. He went on to state that “In each case, the
Rule of Law should be the overarching constitutional justification for judicial review”. 12
Interestingly Justice Kapadia began his analysis by stating that the power of pardon and
reprieve “is an enumerated power in the Constitution and its limitations, if any, must be
found in the Constitution itself.”13 One fails to see where the Constitution refers to rule of
law expressly. Hence contrary to its own statement, the court chose to limit the exercise
of a power written in the Constitution on the basis of a principle not written in the
Constitution.

6.4 Application of The Basic Structure Doctrine

Apart from principles of administrative law, basic structure doctrine, which was
enunciated by the Supreme Court in the famous case of His Holiness Kesavananda
Bharati Sripadagalvaru v. State of Kerala,14 too has found a life in the application of rule
of law. One can begin by looking at the decision of the Supreme Court in P.
25

10
See,Supra note 25, at para 21.
11
AIR 2006 SC 3385.
Page

12
Supra note 27, at para 37
13
Supra note 27, at para 33.
14
AIR 1973 SC 1461.
Sambamurthy v. State of A.P.15 In that case, vires of Clause (5) of Article 371D of the
Constitution, which was inserted in the Constitution by the Constitution (32nd
Amendment) Act, 1983, was challenged before the Court. The said clause empowers
the State Government to decide whether it would confirm the order of the concerned
Administrative Tribunal, to modify it or even to annul it. Taking judicial notice of the fact
that “almost invariably in every service dispute before the Administrative Tribunal” the
State Government was a party, the Supreme Court noted that the said party was
granted ultimate authority to uphold or reject the determination of Administrative
Tribunal. This Court, in the circumstances, held the provision unconstitutional and ultra
vires. The reasoning used by the court is as follows:

“This power of modifying or annulling an order of the Administrative Tribunal conferred on the
State Government under the proviso to clause (5) is violative of the rule of law which is clearly a
basic and essential feature of the Constitution. It is a basic principle of the rule of law that the
exercise of power by the executive or any other authority must not only be conditioned by the
Constitution but must also be in accordance with law and the power of judicial review is
conferred by the Constitution with a view to ensuring that the law is observed and there is
compliance with the requirement of law on the part of the executive and other authorities. It is
through the power of judicial review conferred on an independent institutional authority such as
the High Court that the rule of law is maintained and every organ of the State is kept within the
limits of the law. Now if the exercise of the power of judicial review can be set at naught by the
State Government by overriding the decision given against it, it would sound the death-knell of
the rule of law. The rule of law would cease to have any meaning, because then it would be
open to the State Government to defy the law and yet to get away with it. The proviso to clause
(5) of Article 371D is therefore clearly violative of the basic structure doctrine.” 16 [Emphasis
supplied].

The landmark case of keshavananda bharti having declared that the rule of law does
form part of the basic structure of the constitution; the same was reconsidered in the
case of Indira Nehru Gandhi v Raj Narain17. The case involved the constitution validity
of (thirty-ninth amendement) act 1975 which was challenged to have violated the basic
26
Page

15
(1987) 1 SCC 362.
16
Supra note 35.
17
1975 Supp SCC 1
structure of the constitution. The counsel seeking to have declared the act
constitutionally invalid posited the argument that assuming that the act did not fall on the
anvil of article 14 it violates the concept of rule of law which is the basic structure of the
constitution.

The court held that to apply any unwritten principle it is necessary that its constituent
elements must be gathered from the constitution.

Mathew J. observed that:

“There is a genuine concept of rule of law and that concept implies equality before law or equal
subjection to all classes to the ordinary law. But if the rule of law is to be the basic structure of
the constitution, one must find specific provisions in the constitution embodying the constituents
of the element of the concept… The provisions of the constitution were enacted with a view to
ensure the rule of law. Even if I assume that the rule of law is a basic structure, it seems to me
that the meaning and the constituent elements of the concept must be gathered from the
enacting provisions of the constitution. The equality aspect of the rule of law and of democratic
republicanism is provided in article 14.”18

The court held that if the concept of equality as enshrined in article 14 which does not
pertain to the basic structure which cannot be brought to invalidate the amendment
there is no other principle of equality incorporated in the constitution which can be
regarded as the basic structure of the constitution.

However justice Mathew refused to further delve into the question of the rule of law
being the part of the basic structure as he had supplanted enough reasons to show how
clause(4) of eth amendment was bad.

Nevertheless even if we assume that the concept of rule of law is part of the basic
structure the court in this case had made it evidently clear that when its applicability was
brought about its elements must be located in the constitution itself. In other words the
necessity of written provisions would ensure that where there is no scope for the written
27

provisions the unwritten concept cannot be brought about to the rescue either.
Page

18
Ibid at Para 343.
But, pursuant to the explicit recognition of rule of law as part of the basic structure of the
constitution in the Sambamurthy case, the Supreme Court in several cases such as G.
C. Kanungo and D. C. Routray v. State of Orissa 19 , and Union of India v. K. M.
Shankarappa20 followed the ruling, with a little deviation in Shri Kihota Hollohon v. Mr.
Zachilhu and others21, wherein instead of following the above rulings, it was held by the
Supreme Court that “democracy is a part of the basic structure of our Constitution; and
rule of law and free and fair elections are basic features of democracy.”22

6.5 Judicial Independence

One can begin by looking at the decision of the Supreme Court in S. P. Gupta v.
President of India. 23 The controversy in case revolved around letter written by Law
Minister of India to Chief Justices of various High Courts of country. The letter contained
instructions requesting Judges working in different High Courts to be appointed in High
Court of another State. Advocates all around country filed several writ petitions against
the letter. The writ petition of advocates also challenged some of transfers of Judges
and Chief Justices along with the letter. While upholding the primacy of the executive in
matters of appointment and transfers, the Court, especially Pathak J., made several
observations regarding the independence of judiciary and rule of law. The approach
adopted by the court can be summed up in the following paragraph:

“Judges should be of stern stuff and tough fibre, unbending before power, economic or political,
and they must uphold the core principle of the rule of law which says “Be you ever so high, the
law is above you.” This is the principle of independence of the judiciary which is vital for the
establishment of real participatory democracy, maintenance of the rule of law as a dynamic
concept and delivery of social justice to the vulnerable sections of the community. It is this
principle of independence of the judiciary which we must be kept in mind while interpreting the
relevant provisions of the Constitution.”24

19
AIR 1995 SC 1655.
28

20
2000 (7) SCALE 659.
21
AIR 1993 SC 412
Page

22
Ibid at para 98.
23
AIR 1982 SC 149.
24
Ibid at para 26.
The high point of this trend came about in the decision of the Supreme Court in
Supreme Court Advocates-on-Record Association and another v. Union of India
(SCAORA).25 By a majority of 7:2, the Supreme Court, overruled its decision in the S. P.
Gupta case and held that the opinion of the Chief Justice of India has primacy in the
matter of appointment of High Court and the Supreme Court Judges. The reasoning
adopted was that this would ensure independence of the judiciary which is necessary
for the maintenance of rule of law. After making umpteen references to rule of law, the
majority’s view was that:

“it has to be borne in mind that the principle of non-arbitrariness which is an essential attribute of
the rule of law is all pervasive throughout the Constitution; and an adjunct of this principle of the
absence of absolute power in one individual in any sphere of constitutional activity… A
homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that
it is the opinion of the judiciary ‘symbolized by the view of the Chief Justice of India’ which is
given greater significance or primacy in the matter of appointments.”26

The court bolstered the idea of how this consultative process ensures non arbitrariness
and truly reflects the opinion of the entire judiciary.

Thus the court’s reasoning was that if non-arbitrariness was to be achieved such that
rule of law is maintained, executive’s primacy over appointments should be set aside to
give primacy to the Chief Justice of India irrespective of the written text of the
Constitution. Hence unwritten principle was taken aid of to disregard the written text of
the Constitution.

The above approach can be identified in judicial decisions throughout the 1990s. Thus
we have cases like Subhash Sharma v. Union of India27, Krishna Swami v. Union of
India 28 , C. Ravichandran Iyer v. Justice A.M.Bhattacharjee 29 , All India Judges
29

25
AIR 1994 SC 268.
26
Ibid at para 56.
Page

27
AIR 1991 SC 631.
28
AIR 1993 SC 1407.
29
(1995) 5 SCC 457.
Association v. Union of India30, Sub Committee on Judicial Accountability v. Union of
India and Ors.31, U.P. Sales Tax Services Association v. Taxation Bar Association32,
High Court of Judicature at Bombay through its Registrar v. Shirish Kumar Rangrao
Patil and another 33 etc., where the Supreme Court consistently deployed reasoning
similar to that in the SCAORA case to render decisions to provide greater freedom and
independence to itself.

6.6 Miscellaneous

There are a few other decisions of the Supreme Court that must be taken note of so as
to provide the backdrop to the next chapter on critique of the Supreme Court’s approach
particularly in the context of the issue whether the Indian legal system is committed to
the thin or the thick theory of rule of law. The two recent ones falling in this category are
as follows.

In M. Nagraj v Union of India34, the Supreme Court, while dealing with the constitutional
validity of Article 16 (4A) of the Constitution inserted via Constitution (Eighty-Fifth
Amendment) Act, 2001 to provide reservation in promotion with consequential seniority
interpreted the provisions of the Constitution on equality. It held that:

“Equality has two facets – “formal equality” and “proportional equality”. Proportional equality is
equality “in fact” whereas formal equality is equality “in law”. Formal equality exists in the Rule of
Law. In the case of proportional equality the State is expected to take affirmative steps in favour
of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian
equality is proportional equality.”35

The court was much clearer when it observed that:

“The constitutional principle of equality is inherent in the Rule of Law. However, its reach is
limited because its primary concern is not with the content of the law but with its enforcement

30
AIR 1992 SC 165.
30

31
AIR 1992 SC 320.
32
AIR 1996 SC 98.
Page

33
AIR 1997 SC 2631.
34
AIR 2007 SC 71.
35
Ibid at para 67.
and application. The Rule of Law is satisfied when laws are applied or enforced equally, that is,
evenhandedly, free of bias and without irrational distinction. The concept of equality allows
differential treatment but it prevents distinctions that are not properly justified. Justification
needs each case to be decided on case to case basis.”36

31
Page

36
Supra note 54, at para 78.
7. OBSERVATION & CONCLUSION

Recently, India celebrated its 60th year of independence — a momentous journey in

realising its constitutional goals and democratic aspirations. While the strength of Indian
democracy has withstood the last six decades of social, economic and political
developments, there are numerous challenges to democratic governance. The rule of
law is still not sufficiently protected in the Indian society.

The social and economic progress achieved by the deepening of democracy in many
societies has been shaped by their efforts to successfully protect the rule of law. In this
regard, a number of challenges to the rule of law continue to undermine Indian
democracy and pose grave threats to governance.

7.1 Social Expectations and Unfulfilled Promises by Institutions:

Since independence, various attempts to enforce and institutionalize the rule of law in
the Indian society have not achieved the intended results. While the normative
framework of constitutional governance is established through the Constitution of India
and the various institutions established under it, deeply embedded values of
constitutionalism have not taken roots in the Indian society.

While six decades of governance may not be long enough to assess the situation, huge
social expectations have been generated by institutions that are responsible for
checking abuse of power. But given that the capacity for dealing with abuse of power is
disproportionate to the demands imposed upon them by the sheer size and magnitude
of the country, there have been numerous unfulfilled promises.

The Indian judiciary is well regarded domestically and internationally for its progressive
role in interpreting various provisions of the Constitution with a view to promoting social
justice. Expanding the interpretation of the fundamental rights enshrined in the
32

Constitution, overcoming restrictions based on rules relating to locus standi, creating

Page

new avenues for seeking remedies for human rights violations through public interest
litigation pleas and promoting genuine judicial interventions in the areas of child labour,
bonded labour, clean and healthy environment, and women’s rights are a few examples
of successful judicial intervention to uphold the rule of law and ensure justice.

But to exaggerate these achievements in the Indian context, given the scale of
inequalities and injustices, would be completely missing the point. The Indian legal
system is faced with numerous crises starting with the fundamental challenge of
enforcing the rule of law. While the system of governance in India is based on law, this
does not necessarily translate into the behaviour of those who govern and the governed
to have respect for the law. This lack of respect translates into serious threats to
democracy as the legal system may not be able to respond to the growing sense of lack
of trust and faith in the institutions.

Enforcement of the rule of law and efforts to protect the rule of law ought to be shaped
by a number of factors that will improve the capacity of the legal system to respond to
injustices. Passing more laws and the establishment of more institutions credited with
responding to injustices may not be the right approach. There needs to be a
fundamental re-examination of the approaches that we have adopted to enforce the rule
of law. There is need to critically examine the effectiveness of Indian democracy, given
the fact that corruption is institutionalized in all spheres of governance.

In this regard, a report of the National Commission to Review the Working of the
Constitution in India noted: “The paradox of India, however, is that in spite of a vigilant
press and public opinion, the level of corruption is exceptionally high. This may be
attributed to the utter insensitivity, lack of shame and the absence of any sense of public
morality among the bribe-takers. Indeed, they wear their badge of corruption and
shamelessness with equal élan and brazenness.” The laws that are constantly violated
for creating a vicious cycle of bribery have resulted in a cynical attitude towards law-
enforcement. Even anti-corruption laws that are occasionally enforced become political
ploys to settle scores with the opposition. This has further accentuated the twin
33

problems of ‘criminalization of politics’ and ‘politicization of crime.’

Page
The development of the Indian legal system ought to focus on three major reform
initiatives which will help in establishing a rule of law society, leading to the
strengthening of democracy:

7.2 Law Schools and Legal Education:

Law schools have played an important role in shaping the role and function of law in
societies which have established the rule of law as the basic framework for governance.
The academics in law schools have shaped the understanding of law and legal
processes along with imparting legal education with a view to ensuring excellence in
promoting legal knowledge and advocacy skills. It helps students with legal training to
occupy positions of responsibility in government and outside government and to engage
in policy-making. The role of law schools in helping the legal system establish a rule of
law society may not be obvious but its importance should not be underestimated, given
the ability of law schools to promote new and innovative ideas in shaping the minds of
lawyers in preparing themselves to solve the problems of the country and the legal
system at large.

7.3 Lawyers and Social Change:

While the last decade has witnessed a substantial increase in the quality and number of
students desiring to pursue law as a professional career, it has not translated into any
greater respect for the law or the legal profession within the Indian society. Lawyers in
India have a responsibility to recognise the problems of the legal system, the yawning
gap between the law in the books and the law that is practised, and in particular, to
appreciate that the fragility of the rule of law in India cannot be taken for granted. In fact,
the respect for the rule of law ought to be institutionalised among the legal fraternity.
This can help lawyers fulfill the role of law as an instrument of social change.

7.4 Judiciary and the Justice Delivery System:

34

The Indian judiciary has acquired enormous faith and trust from the people. The
Page

judiciary as an institution — particularly the High Courts and the Supreme Court of India
— has performed admirably well in upholding the Constitution and protecting the rights
of the people. However, the justice delivery system in India is marred by lack of access
to justice. The impact of the judiciary’s efforts in providing justice to the victims of
various forms of injustice is still minimal, although profoundly significant.

The working of the lower courts in India has to be significantly improved. The
establishment of the National Judiciary Academy in Bhopal was a step in the right
direction but there is need for substantially improving the working of state judicial
academies. These institutions should play an important role in identifying the problem of
justice delivery systems, and how far the judiciary can help in establishing a rule of law
society.

Democracy and the rule of law are inextricably connected with each other. Urgent steps
are needed to establish a rule of law society in India, without which our fundamental
credentials as a democracy will be seriously undermined.

35
Page
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