RULE OF LAW & THE INDIAN CONSTITUTION

While framing of laws, it is the concept of Rule of Law which comes to play. The Rule of Law
acts as a guiding principle in framing laws, the bounds of such laws & the Constitution aims at
creating a ‘rule of law, not of men.’ When we refer to the “rule of law” we essentially realise that
however high and mighty an individual is irrespective of his societal position, he ought to
shoulder the same responsibility for an act performed by him without legal justification as any
other citizen.

It is in this context that Lord Denning aptly held the principles of rule of law that “Be you ever
so high, the law is above you.” Our Constitution encompasses the principles inherent in the “rule
of law” while recognising that the principles of equality, justice & freedom which forms a
common web, are all central to the constitutional idea of a welfare state.

  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 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).

Justice H.R. Khanna says “Rule of law is the antithesis of arbitrariness . Rule of law is now the
accepted form of all civilized societies and 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 the existence of independent courts
which can hold the balance between citizen and the state and compel governments to conform to
the law.”
 IMPORTANCE OF HAVING AN INDEPENDENT JUDICIARY
The Rule of Law being one of the basic features of the Constitution, the independence of the
Judiciary should also be a basic feature to enforce the rule of law for enforcing the rule of law
one primarily needs to have an independent judiciary to be its integral and critical component .

The decision of the Apex Court in L. Chandra Kumar upholds the power of judicial review of

legislative action as a basic feature of the Constitution of India . In a subsequent decision of the
Apex Court in Dadu’scase has again held that judicial review is the heart and soul of the
Constitutional scheme. The Constitution has entrusted the Supreme Court, as the highest court of

the land to be its conscience keeper.

It has vested with it wide powers and there can lie no theoretical limit to the relief that is granted
by the Supreme Court. The faith of the people of India which stands reposed on the Supreme

Court is phenomenal. Among these three organs, it is the Judiciary which is perpetually
independent; its pride, majesty and responsibility towards securing the rights of the affected
people are comparatively more than the other two organs.

According to Justice Dipankar Datta, an independent judiciary which is ever vigilant &
forthright in protecting the rights of the people and caring for the welfare of the people, has to be
regarded as one of the pillars of democracy and that the future of democracy shall largely depend
on how far and to what extent that excess of pride and majesty can be protected.

According to Justice Chinappa Reddy, an independent judiciary is imperative to sustain and

stabilize democracy by keeping the Parliament and the executive within the bounds of their
constitutional authority and preventing the Parliament from degenerating into an autocracy and
the Executive into a dictatorship. Independence of judiciary is thus a constitutional necessity.
SEPERATION OF POWER:

The tripartite model of governance has its origin in Ancient Greece and Rome . Though the
doctrine is traceable to Aristotle the writings of Locke and Montesquieu gave it a base on which
modern attempts to distinguish between legislative, executive and judicial power is grounded.

The doctrine may be traced to ancient and medieval theories of mixed government, which argued
that the processes of government should involve the different elements in society such as
monarchic, aristocratic, and democratic interests. The first modern formulation of the doctrine

was that of the French writer Montesquieu  in  De l’esprit des lois (1748).

 John Locke said “Power tends to corrupt and absolute power corrupts absolutely”

John Rawls rightly celebrated approach of “Justice as fairness” yields a unique set of “principles
of justice” that are exclusively concerned with setting up “just institutions” to constitute the basic
structure of society, while requiring that people’s behavior entirely with the demands of proper
functioning of these institutions.

  Montesquieu stated, “When the legislative and the executive powers are united in the same
person or in the same body of magistrates, there can be no liberty, because apprehensions may
arise, lest the same monarch or senate should exact tyrannical laws, to execute them in a
tyrannical manner. Again there is no liberty if the judicial power be not separated from the

legislative and the executive. Where it joined with the legislative, the life and the liberty of the

subject would be exposed to arbitrary control; for the judge would be then a legislator . Where it

joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, where the same man or the same body, whether of nobles
or of the people, to exercise those three powers, that of enacting laws, that of executing the
public resolutions and of trying the causes of individuals.”

Blackstone observed that if legislative, executive and judicial functions were given to one man,
there was an end of personal liberty . Madison also proclaimed: “The accumulation of all powers,
legislative and executive and judicial, in the same hands, whether of one, a few or many and
whether hereditary, self-appointed or elective may justly be pronounced the very definition of
tyranny.”

JUDICIAL ACTIVISM: A STEP TOWARDS ACCESS TO JUSTICE

In the recent years, one often comes across several instances where the Parliament/Executive
has been crying hoarse as to what they term as ‘judicial activism’ . Quoting Justice Chinappa
Reddy, “Judicial Activism is nothing more & nothing less than the activity to bring justice to the
doorstep of the people.” It is indeed obvious & must be obviously borne in mind that many

difficulties which are encountered at present could not have been foreseen by its makers . The
application of the constitutional provisions to actual facets of life therefore requires judicial
statesmanship.

It is a pious obligation of the Court to take a plunge to save the people should there be any
natural calamity or an accident or disaster resulting from callousness of humans . Although we
coin it today as ‘judicial activism’ but it can be aptly regarded as the wise exercise of a
jurisdiction vested upon the Courts by the Indian Constitution . The immense trust that has been
bestowed upon the judiciary by the framers of the Constitution can be seen when one takes into
account the power to issue writs if the Fundamental Rights of citizens are encroached upon . This
is thus, yet another among other facets of ‘justice’ which is used to find solutions to social as
well as economic problems.

Madon, J. of the Supreme Court of India justifies the role of activist Judges. He says, "A Judge

who denies to himself judicial activism, denies to himself the role of a judge . Nature abhors a

vacuum. Take away judicial activism and tyranny will step in to fill the vacant sphere"

Keenan D Kmiec introduces the following ‘core meanings’ of judicial activism:

(1) invalidation of arguably constitutional actions of other branches,

(2) failure to adhere to precedent,

(3) judicial “legislation”,

(4) departures from accepted interpretive methodology,

(5) result-oriented judging

Under Kelsen’s theory of interpretation judges cannot help doing politics, since the choice of one
interpretation out of the whole range of permissible interpretations is not dictated by law and
remains an ‘act of will’ rather than a purely cognitive enterprise . One could argue that in this

case judicial activity differs from politics not so much in kind as in degree.

HLA Hart, provides judges enjoy discretion only in areas of ‘penumbra’, but the heart of law is
constituted by a highly constraining core which leaves no room for discretion . In other words,

there is little room in law for ‘extra-legal’ moves.