Rule of Law and Judiciary

(Project Report)

Submitted To:

Mr. Vijyant Sinha

Faculty Member in Legal Research and Methodology

Submitted By:

Manish Goyal
B.B.A. LL.B (Hons.) Student
Semester I, Section – B, Roll No: 1833

CHANAKYA NATIONAL LAW UNIVERSITY

Nyaya Nagar,Mithapur,Patna, Zip code:-800001

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 Certificate

I, Manish Goyal, hereby declare that, this project report entitled, ‘Rule of law and

Judiciary’ submitted to Chanakya National Law University, Patna is record of an original work

done by me under the guidance of Mr. Vijyant Sinha, Faculty Member, C.N.L.U.,Patna and that

no part of this work has been plagiarized without citations.

Manish Goyal

Semester I

Section - B

Roll no 1833

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 Introduction

The concept of Rule of Law is that the state is governed, not by the ruler or the nominated
representatives of the people but by the law. A county that enshrines the rule of law would
be one where in the Grundnorm1 of the country, or the basic and core law from which all
other law derives its authority is the supreme authority of the state. The monarch or the
representatives of the republic are governed by the laws derived out of the Grundnorm and
their powers are limited by the law. The King is not the law but the law is king.

The origins of the Rule of Law theory can be traced back to the Ancient Romans during the
formation of the first republic; it has since been championed by several medieval thinkers in
Europe such as Hobbs, Locke and Rousseau through the social contract theory. Indian
philosophers such as Chanakya have also espoused the rule of law theory in their own way,
by maintain that the King should be governed by the word of law. The formal origin of the
word is attributed to Sir. Edward Coke, and is derived from French phase ‘la principe de
legalite’ which means the principle of legality. The firm basis for the Rule of Law theory was
expounded by A. V. Dicey and his theory on the rule of law remains the most popular.
Dicey’s theory has three pillars based on the concept that “a government should be based on
principles of law and not of men”, these are:

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.

Equality before the Law: 

While the principle of supremacy of law sets in place cheaques and balances over the
government on making and administering 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.

Predominance of legal spirit: 

In including this as a requirement for the rule of law, Dicey’s belief was that it was
insufficient to simply include the above two principles in the constitution of the country or in
its other laws for the state to be one in which the principles of rule of law are being followed.

1
 ‘Kelsen’s Theory of Grundnorm’, Mridushri Swarup <http://manupatra.com/roundup/330/Articles/Article
%201.pdf>

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There must be an enforcing authority and Dicey believed that this authority could be found
in the courts. 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.

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 Aims and Objectives

The aim of the project is to-

1. Understand the rule of law

2. Study about concept of judiciary

3. Study how rule of law influenced by judges.

Hypothesis

The researcher believes that-

1. Rule of law is very essential for a Democracy.

2. Development in rule of law is essential to know to come to an exact conclusion.

Research Methodology

In this project Doctrinal Method of Research is used. Doctrinal Methods refer to Library research,
research or processes done upon some texts writings or Documents, legal propositions and
Doctrines, Articles, Books as well as Online Research and Journals relating to the subject. This
project is an intensive one so this method is sufficient to address the findings and to arrive at
concrete conclusions.

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 Chapterisation
1. Concept of Rule of Law
2. Origin of Rule of Law
3. Rule of Law under Indian Constitution
(1)Theoretical Application of Rule of Law in India
(2)Practical Application of Rule of Law in India

4.Rule of Law-part of Basic structure

5.Defending Indian constitution and Rule of Law

6. Judiciary and Rule of Law

7. Conclusion
8. Bibliography

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 Concept of Rule of Law
The concept of Rule of law is of old origin and is an ancient ideal. It 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 power should be servants of the laws."
The phrase ‘Rule of Law’ is derived from the French phrase ‘la principe de legalite’ (the principle
of legality) which refers to a government based on principles of law and not of men. Rule of law
is one of the basic principles of the English Constitution and the doctrine is accepted in the
Constitution of U.S.A and India as well. The entire basis of Administrative Law is the doctrine of
the rule of law. 
Sir Edward Coke, the Chief Justice of King James I’s reign was the originator of this concept. He
maintained that the King should be under God and the Law and he established the supremacy of
the law against the executive and that there is nothing higher than law. 
Later, Albert Venn Dicey (a British jurist and constitutional theorist) developed the concept in his
book ‘The Law of the Constitution’ (1885). His writing on the British Constitution (which is
unwritten) included three distinct though kindered ideas on Rule of law :-
(i) Absence of discretionary powers and supremacy of Law: viz. no man is above law. No man is
punishable except for a distinct breach of law established in an ordinary legal manner before
ordinary courts. The government cannot punish any one merely by its own fiat. Persons in
authority do not enjoy wide, arbitrary or discretionary powers. Dicey asserted that wherever there
is discretion there is room for arbitrariness.
(ii) Equality before law: Every man, whatever his rank or condition, is subject to the ordinary law
and jurisdiction of the ordinary courts. No person should be made to suffer in body or deprived of
his property except for a breach of law established in the ordinary legal manner before the
ordinary courts of the land.
(iii) Predominance of legal spirit: The general principles of the British Constitution, especially the
liberties and the rights of the people must come from traditions and customs of the people and be
recognized by the courts in administration of justice from time to time.
The expression ‘rule of law’ is one which, over the years, has been used to convey a wide variety
of ideas and has a number of meanings and corollaries including their criticisms. In common
parlance it is often used simply to describe the state of affairs in a country where, in the main, the
law is observed and order is kept – i.e., as an expression synonymous with ‘law and order’. To
public lawyers, however, the phrase conveys something a little more precise. For them, the phrase
is inextricably linked with the writings of Dicey. 

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 Origin of Rule of Law

Rule of Law is as old as civilisation. Times and society have changed the perceptions of various
authors resulting in different and varied definitions and approaches to Rule of Law. Many
accounts of the rule of law identify its origins to classical Greek thought, quoting passages from
Plato and Aristotle. Greek ideas with respect to the rule of law are therefore best understood in the
form of exemplary models, providing inspiration and authority for later periods. The Roman
contribution to the rule of law tradition was negative as well as positive, with the negative
tradition being of much greater consequence.

The Germanic customary law proposition that the king is under the law has been widely identified
as an independent source of the rule of law in the medieval period 2. The Magna Carta, 1215
although it stands on its own as a historical event with reverberating consequences in the rule of
law tradition, epitomized a third Medieval root of the rule of the law- the effort of nobles to use
law to restrain kings3 Then came the Liberalist and Federalist approaches to Rule of Law. Locke’s
design involved a limited delegation of power, for some purposes, from individuals to the
government, revocable by them if the government failed to meets its obligations. He specified a
separation of powers between legislature and executive – though not a separate judiciary – to
assure that the government acts according to duly enacted standing laws 4. And he argued that
absolute monarchy is inconsistent with civil society because such a monarch would judge his own
cases, continuing in a state of nature in relation to the people. Finally, consistent with the
consensual nature of the civil society, Locke held that legislation should be established by
majority vote.

In this backdrop, following Montesquieu’s approach, in the year 1885, A.V. Dicey on observing
the UK model laid down three principles to be arising out of Rule of Law.

1. Supremacy of Law;
2. Equality before the law;
3. Predominance of Legal Spirit.

In France, Dicey observed that the government officials exercised wide discretionary powers and
if there was any dispute between a government official and a private individual, it was tried not by
an ordinary court but by a special administrative court. The law applicable in that case was not

2
KERN, KINGSHIP AND LAW IN THE MIDDLE AGES, p. 182.

3
3 William H. Dunham, “MAGNA CARTA AND BRITISH CONSTITUTIONALISM,” in The Great Charter,
Introduction by Erwin N. Griswold (New York: Pantheon 1965) p. 26.

 Locke, SECOND TREATISE OF GOVERNMENT, p. 47 (ss. 88–89); p. 65–66 (ss. 123–24).

4

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ordinary law but a special law developed by the administrative court. From this, Dicey concluded
that this system spelt the negation of the concept of rule of law. He felt that this was against the
principle of equality before the law. He also stated that all English are bound by the Rule of Law
and there is no external mechanism required to regulate them. Therefore, he concluded that there
was no administrative law in England.

Dicey’s concept of Rule of Law had its advantages and disadvantages. Rule of Law imposed and
helped in imbibing a sense of restraint on administration. The government was bound to work
within the legal framework. Further, by stating that the law is supreme, he made every law made
by the legislature supreme, thus, promoting parliamentary supremacy. There cannot be self-
conferment of power as even an ordinary law is supreme. All laws, public or private, are being
administered by the same set of independent and impartial judiciary. This ensures adequate check
on the other two organs. Nonetheless, on the other hand, Dicey completely misunderstood the real
nature of the French droit administratif. He thought that this system was designed to protect
officials, but the later studies revealed that in certain respects it was more effective in controlling
the administration than the common law system. The reality is that French Conseil d’ Etat is
widely admired and has served as model for other countries as well as for court of justice for
European communities. He also did not realise the need for codification of laws which could lead
to more discretion, thus hampering Rule of Law.

Rule Of Law Under The Indian Constitution

In India, the concept of Rule of law can be traced back to the Upanishads.In modern day as well,
the scheme of the Indian Constitution is based upon the concept of rule of law. The framers of the
Constitution were well familiar with the postulates of rule of law as propounded by Dicey and as
modified in its application to British India. It was therefore, in the fitness of things that the
founding fathers of the Constitution gave due recognition to the concept of rule of law. 
The doctrine of Rule of Law as enunciated by Dicey has been adopted and very succinctly
incorporated in the Indian Constitution. The ideals of the Constitution viz; justice, liberty and
equality are enshrined in the Preamble itself (which is part of the Constitution).
The Constitution of India has been made the supreme law of the country and other laws are
required to be in conformity with it. Any law which is found in violation of any provision of the
Constitution, particularly, the fundamental rights, is declared void.The Indian Constitution also
incorporates the principle of equality before law and equal protection of laws enumerated by
Dicey under Article14.
The very basic human right to life and personal liberty has also been enshrined under Article 21.
Article 19(1) (a) of the Indian Constitution guarantees the third principle of the Rule of law
(freedom of speech and Expression). No person can be 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 is also
very well recognized in the Indian Constitution.  The principles of double jeopardy and self-
incrimination also found its rightful place in the Constitution.  Articles 14, 19 and 21 are so basic
that they are also called the golden triangle Articles of the Indian Constitution.

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The Constitution also ensures an independent an impartial Judiciary to settle disputes and
grievances for violation of fundamental rights by virtue of Articles 32 and 226. In Union of India
v. President, Madras Bar Association , the Supreme Court held that “Rule of Law has several
facets, one of which is that disputes of citizens will be decided by Judges who are independent
and impartial; and that disputes as to legality of acts of the Government will be decided by Judges
who are independent of the Executive." 
Justice R.S. Pathak of the Hon’ble Supreme Court has observed that “It must be remembered that
our entire constitutional system is founded on the rule of law, and in any system so designed it is
impossible to conceive of legitimate power which is arbitrary in character and travels beyond the
bounds of reason." 

Theoretical Application of Rule of Law in India

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 Constitute 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 Dicey’s 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 Shukla 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
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”

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 In Chief settlement Commr; Punjab v. Om Prakash , 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 Ramarathanana 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 Ors  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 Kerala  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.

Practical Application of Rule of Law in India

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

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the courts in the interpretation of the law. It is rightly reiterated by the Supreme Court in the
case Union of India v. Raghubir Singh 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. Most famously in the case of Maneka Gandhi v. Union of India  the court
ensured that exercise of power in an arbitrary manner by the government would not infringe the
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.

Rule Of Law – Part Of The Basic Structure

The Constitution (First Amendment) Act, 1951, shocked the status of Rule of law in India. The
question which came up for consideration in Shankari Prasad v. Union of India  was whether the
fundamental rights can be amended under Article 368. The Supreme Court held that Parliament
has the power to amend Part III of the Constitution under Article 368 as under Article 13 ‘law’
means any legislative action and not a constitutional amendment. Therefore, a constitutional
amendment would be valid if abridges any of the fundamental rights.
The question again came up for consideration in Sajjan Singh v. State of Rajasthan in which the
Supreme Court approved the majority judgment in Shankari Prasad case and held that amendment
of the Constitution means amendment of all provisions of the Constitution. Hon’ble Chief Justice
Gajendragadkar held that if the framers of the constitution intended to exclude fundamental rights
from the scope of the amending power they would have made a clear provision in that behalf.
However, both these cases were overruled by the Apex Court in Golaknath v. State of Punjab and
it held that Parliament has no power to amend the Part III of the Constitution so as to take away or
abridges the fundamental rights and thus, at the end the Rule of law was sub-served by the
Judiciary from abridging away. However, the Rule of law was crumpled down with the
Constitution (Twenty-Fourth Amendment) Act, 1971. Parliament by the way of this Amendment
inserted a new clause (4) in Article 13 which provided that ‘nothing in this Article shall apply to
any amendment of this constitution made under Art 368’. It substituted the heading of Article 368
from ‘Procedure for amendment of Constitution’ to ‘Power of Parliament to amend Constitution
and Procedure thereof’. The Amendment not only restored the amending power of the Parliament
but also extended its scope by adding the words “to amend by way of the addition or variation or

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repeal any provision of this constitution in accordance with the procedure laid down in the
Article".
This was challenged in the case of Keshavananda Bharti v. State of Kerala . The Supreme Court
by majority overruled the decision given in Golaknath’s case and held that Parliament has wide
powers of amending the Constitution and it extends to all the Articles, but the amending power is
not unlimited and does not include the power to destroy or abrogate the basic feature or
framework of the Constitution. There are implied limitations on the power of amendment under
Article 368. Within these limits Parliament can amend every Article of the Constitution. Thus,
Rule of law prevailed.
In Keshavananda Bharti v. State of Kerala , the Supreme Court states that “Our Constitution
postulates Rule of Law in the sense of supremacy of the Constitution and the laws as opposed to
arbitrariness."  The 13 judge Bench also laid down that the Rule of law is an “aspect of the basic
structure of the Constitution, which even the plenary power of Parliament cannot reach to
amend." 
Since Keshavananda case, Rule of law has been much expanded and applied differently in
different cases. In Indira Nehru Gandhi v. Raj Narain , the Supreme Court invalidated Clause (4)
of Article 329-A inserted by the Constitution (Thirty-ninth Amendment) Act, 1975 to immunise
the election dispute to the office of the Prime Minister from any kind of judicial review.  The
Court said that this violated the concept of Rule of law which cannot be abrogated or destroyed
even by the Parliament. 
The Habeas Corpus case according to many scholars is a black mark on the rule of law. The case
entails Dicey’s third principle of rule of law. The legal question in this case was whether there is
any rule of law over and above the Constitutional rule of law and whether there was any rule of
law in India apart from Article 21 of the Constitution regarding right to life and personal liberty.
A five judge Bench with a majority of 4:1 (going by strict interpretation) held in the negative.
The majority judges held that the Constitution is the mandate and the rule of law. They held that
there cannot be any rule of law other than the constitutional rule of law. Excluding moral
conscience, they held that 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 rule of
law to nullify the constitutional provisions during the time of Emergency. 
The majority judges held that “Article 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
catchword or incantation. 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."  Thus they held that Article 21 is the
sole repository of right to life and liberty and during an emergency, the emergency provisions
themself constitute the rule of law.
In a powerful dissent, Justice H.R. Khanna observed that “Rule of law is the antithesis of
arbitrariness...Rule of law is now the accepted form of all civilized societies...Everywhere it is
identified with the liberty of the individual. It seeks to maintain a balance between the opposing
notions of individual liberty and public order. In every state the problem arises of reconciling
human rights with the requirements of public interest. Such harmonizing can only be attained by

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the existence of independent courts which can hold the balance between citizen and the state and
compel governments to conform to the law." 
With the Constitution (Forty-Fourth Amendment) Act, 1978 it has been laid down that even
during emergency, Articles 20 and 21 will not be suspended. According to me, Justice Khanna
(with due respect to his high moral conscience) has not given a judgment in consonance with the
rule of law. His Lordship has on the other hand tried to place the judiciary over and above the rule
of law. During emergency, that was the rule of law that Article 21 is suspended. Creating rule of
law above the Constitution will create huge implications. Whatever be the case, the Austinian
sense of jurisprudence does apply in the present case and the majority judges have not decided
wrongly. Though now it remains only an academic question but if a law does not seem to be
morally rich then it is the job of the Legislature to amend it and not the Judiciary to come up with
its own new law which is non-existent and against the existing law. 
In Raman Dayaram Shetty v. International Airport Authority of India , the Supreme Court held
that the great purpose of rule of law is the protection of individual against arbitrary exercise of
power, wherever it is found. In re: Arundhati Roy , Justice Sethi observed that for achieving the
establishment of the rule of law, the Constitution has assigned the special task to the judiciary.
When Article 371-D(5) (Proviso) authorized the A.P Government to nullify any decision of the
Administrative Services Tribunal, it was held violative of the rule of law. Holding the provision
unconstitutional, the Supreme Court said that it is a basic principle of the rule of law that the
exercise of power by the Executive must not only be governed by the Constitution but also be in
accordance with law. The Court also held that the power of judicial review should be used to
ensure that rule of law is maintained. 
Over the years, the Courts have used judicial activism to expand the concept of rule of law. For
example, in Courts are trying to establish a rule of law society in India by insisting on ‘fairness’.
In Sheela Barse v. State of Maharashtra the Supreme Court insisted on fairness to women in
police lock-up and also drafted a code of guidelines for the protection of prisoners in police
custody, especially female prisoners. In Veena Sethi v. State of Bihar also the Supreme Court
extended the reach of rule of law to the poor who constitute the bulk of India by ruling that rule of
law does not merely for those who have the means to fight for their rights and expanded the locus
standi principle to help the poor.

Defending Indian constitution and Rule of Law:-

It is now very settled that the Indian Constitution has the very basic feature of rule of law. The
question, thus, arises: ‘Do we really adhere to the rule of law?”

We are nations with hypocrites at the helm of affairs and innocent gullible as its subjects. When
the Supreme Court comes out with suggestions for election reforms giving the electorate the
freedom to know the criminal antecedents of the candidates contesting for elections, the
politicians, of all shades including the dogmatic communists join hands to see that such reforms
are not accepted. With hundreds of members of legislatures and parliament facing criminal
prosecutions at various stages of investigation or trial it is a farce to talk of a nation ruled by

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committed men of excellence.

The lack of respect for rule of law is seen in all walks of life. Day in day out we read reports of
the police not registering complaints for various reasons. Though it is mandatory that the police
have to register complaints wherever it is preferred and then transfer it to the concerned police
station which has jurisdiction to receive the same, it is not done.

The enforcement of rule of law in India varies from caste to caste community to community,
religion to religion, zone to zone, region to region and State to State.Urgent steps are needed to
establish rule of law society in India, without which fundamental credentials as a democracy will
be seriously undermined. 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.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.

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 rule of law.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 e’lan and brazenness.”

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

i) 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 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 problem of
the country and the legal system at large.

ii) Lawyers and Social Change:

Lawyers in India have a responsibility to recognize the problem of the legal system, the yawning

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gap between the law in the books and the law that is practiced, 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 institutionalized among the legal fraternity.

iii) Judiciary and the Justice delivery System: 

The Indian judiciary has acquired enormous faith and trust from the people. The 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 marked by lack of access to justice. The impact of 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.

Judiciary and Rule of Law:

The Indian Judiciary has played an instrumental role in shaping Rule of Law in India. By adopting
a positive approach and dynamically interpreting the constitutional provisions, the courts have
ensured that the Rule of Law and respect for citizens’ rights do not remain only on paper but are
incorporated in spirit too.

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

“Rule of Law is the antithesis of arbitrariness……..Rule of Law is now the accepted norm of all
civilized societies……Everywhere it is identified with the liberty of the individual. It seeks to
maintain a balance between the opposing notions of individual liberty and public order.”

In Bachhan Singh v. State of Punjab, it was held that the Rule of Law has three basic and
fundamental assumptions. They are:-

1) Law making must be essentially in the hands of a democratically elected legislature;

2) Even in the hands of the democratically elected legislature, there should not be unfettered
legislative power; and

3) There must be independent judiciary to protect the citizens against excesses of executive and
legislative power.

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The first case which stirred a debate about Rule of Law was Shankari Prasad v. Union of
India[xvi], where the question of  amendability of fundamental rights arose. The question lingered
and after witnessing the game play between the government and the judiciary, the issue was
finally settled in the case of Kesavananda Bharati v. State of Kerala. In this case, the Hon’ble
Supreme Court held that the Rule of Law is the “basic structure” of the Constitution. The Hon’ble
Supreme Court by majority overruled the decision given in Golak Nath’s case and held that
Parliament has wide powers of amending the Constitution and it extends to all the Articles, but the
amending power is not unlimited and does not include the power to destroy or abrogate the basic
feature or framework of the Constitution. There are implied limitations on the power of
amendment under Art 368, which are imposed by Rule of Law. Within these limits Parliament can
amend every Article of the Constitution. Justice H R Khanna played a vital role in preserving the
Rule of law although he concurred with the majority decision.

In the case of Indira Nehru Gandhi v. Raj Narayan, the Apex Court held that Rule of Law
embodied in Article 14 of the Constitution is the “basic feature” of the Indian Constitution and
hence it cannot be destroyed even by an amendment of the Constitution under Article 368 of the
Constitution. Article 329-A was inserted in the Constitution under 39th amendment, which
provided certain immunities to the election of office of Prime Minister from judicial review. The
Supreme Court declared Article 329-A as invalid, since it was clearly applicable only to the then
current prime minister and was an amendment to benefit only one individual. It was decided that
the law of the land is supreme and must prevail over the will of one person.

In the case of Maneka Gandhi v. Union of India, the Hon’ble Supreme Court established the Rule
of Law that no person can be deprived of his life and personal liberty except procedure establish
by law under Article 21 of the Constitution. Thus, Article 21 requires the following conditions to
be fulfilled before a person is deprived to his life and liberty:

1. That there must be a valid law.

2. The law must provide procedure.
3. The procedure must be just, fair and reasonable.
4. The law must satisfy the requirement of Article 14 and 19.

The Supreme Court observed in Som Raj v. State of Haryana, that the absence of arbitrary power
is the primary postulate of Rule of Law upon which the whole constitutional edifice is dependant.
Discretion being exercised without any rule is a concept which is antithesis of the concept.

Another facet of Rule of Law in India is the independence of judiciary and power to judicial
review. The Supreme Court in the case Union of India v. Raghubir Singh  that it is not a matter of
doubt that a considerable degree of principles that govern the lives of the people and regulate the
State functions flows from the decision of the superior courts. Rule of Law as has been discussed
postulates control on power. Judicial review is an effective mechanism to ensure checks and
balances in the system. Thus, any provision which takes away the right to judicial review is seen
to go against the very fibre of Rule of Law. In the case of S.P. Sampath Kumar v. Union of India,
the courts have reiterated that judicial review is part of the basic structure of the Constitution.

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In India, the meaning of rule of law has been expanded. It is regarded as a part of the basic
structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by
Parliament. The ideals of the Constitution- liberty, equality and fraternity have been enshrined in
the preamble. Constitution makes the supreme law of the land and every law enacted should be in
conformity to it. Any violation makes the law ultra vires. Rule of Law is also reflected in the
independence of the judiciary.

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

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

Similarly, Parliament is to keep in mind that the laws made by it are not against the rule of law, or
against the Constitution or  public moral and humanity. It should also from time to time keep an
eye on the social changes and scientific advancement so that the laws meet the demands of the
time. Article 105(2) of the Constitution must be amended because it promotes and protects the
corruption or Horse trading in Parliament which is against the notion of democracy and Rule of
Law. The Executive should also refrain from executing the laws which are against natural justice
or in violation of the rights, liberties and freedom of common man or is against the state or
constitution in particular. This is the doctrine of Self -Restraint, whereby, all the organs try to
fulfil the aspirations of the nation and uphold the rule of law, without interfering into the domain
of the other.

The Constitution must in all circumstances be considered supreme, and the laws made by the
legislature should pass the test of reasonableness and the objectives of the Constitution. If any
organ of the Government crosses its limits or encroaches upon the powers of the other organs or
exceeds its jurisdiction, the act shall be considered as invalid and any abuse of law or any action
shall be termed as void ab initio; and the principle of checks and balance will come into play to
ensure the sustenance of the principle of Rule of Law.

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Bibliography
WEBSITES-

www.legalservicesindia.com

www.scribd.org

www.acedmia.edu

www.manupatra.com

www.lexisnexis.com

BOOKS:-
Second Teeatise of Government
Kingship and Law in the Middle Ages

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