INTERNAL ASSESSMENT I

CONSTITUTIONAL LAW I

RULE OF LAW IN INDIA: AN ANALYSIS ON IT’S

APPLICATION
(Citation method: Harvard’s Bluebook Citation method, 20th edition)

Name: Shubhit Gaur

Class: BA LLB (Division D)

PRN: 18010125346
 Contents
RULE OF LAW IN INDIA: AN ANALYSIS ON IT’S APPLICATION.................................1
Rule of Law................................................................................................................................3
Definition and History................................................................................................................3
Content.......................................................................................................................................3
Analysis: Rule of Law in India..................................................................................................4
Constitution:...........................................................................................................................4
Judicial Precedents:................................................................................................................6
Criticism:................................................................................................................................7
Conclusion:................................................................................................................................8
Bibliography...............................................................................................................................9
Statutes.......................................................................................................................................9
Online Databases........................................................................................................................9
Commentaries............................................................................................................................9
Websites:....................................................................................................................................9
Reports.......................................................................................................................................9

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 Rule of Law

Definition and History

Rule of law is a mechanism to restrict the arbitrary exercise of power by a govt
machinery(executive,sepcifically) by subordinating them to the well established and defined
system of laws. It is a medium through which everyone is made accountable to the law.
Having borrowed its derivation from the French phrase ’La Principe de Legality’, literally
translating to ‘the principle of legality’, which means a system of laws made by men and not
the government. It was first introduced by Professor A.V. Dicey in his book ‘Introduction to
the study of law of constitution’ in 1865 where he gave 3 principle for the governance of rule
of law, them being:

 Supremacy of Law
 Equality before Law
 Predominance of Legal Spirit

Content
Dicey compared the French ‘Droit Administratif’ system to England’s Common Law
system while propounding the theory of rule of law and believed that these three
principles are essential for the existence of rule of law in a country.

 Supremacy of Law: According to Dicey’s theory, the law is to be considered the

supreme authority and above all. It marks the demand of obedience by all citizens of
the state including the members of the administrative body. Every action of the
Executive should be backed by a legal authority or a law that has been passed and not
otherwise acting upon its own discretion. Dicey believed that there should be no room
for discretion for the executive as where there was discretion, there existed
arbitrariness and where existed arbitrariness, there was a compromise over the liberty
of an individual. By this principle, there ought to be an assurance that the government
will be governed by the laws instead of the other way around.

 Equality before Law: While supremacy of law ensured that there were checks and
balances over the executive and every action has to be in conformity in the law, the
principle of equality stated that the law shall be Unbiased and the same for everyone
in its applicability. If there is an action which is termed as an ‘offence’ for an ordinary
citizen of the polity, there should be no exception to its applicability in case of an
administrative member. Dicey explained it in light of the comparison between British
common law system and the French droit Administratif system whereby he said that
the principle of ‘Equality before Law’ had its manifestation in Britain in form of the
opportunity given to both members to present their case as per the ‘Audi Alteram
partem ’ principle of natural justice and the burden of proof was on the party bringing
the claim apart from the punishment being the same for both the civil and

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 administrative party unlike the French system where the burden of proof was always
on the Ordinary citizen and punishments were harsher besides the legal system
suffering from official and pecuniary bias.

 Pre-dominance of legal Spirit: This principle fundamentally emphasized that apart

from providing rights to the people, there should be the existence of a political
condition in which these rights can be safeguarded against the arbitrariness of the
executive. And such protection could only be given when there is an institution
particularly established to perform this function. That function came out to be as ‘the
Judiciary’. And thus, it says that Judiciary should have the power to interpret the law,
even repeal it if it deems fit in good faith and check whether the law is in consonance
with justice. The authority provided to the judiciary should be well adhered to and the
Judiciary should be Independent in its sphere of functions without any interference
from the executive and legislative front.

Analysis: Rule of Law in India

Whilst the manifestation of rule of law in India can be found as back as the Upanishad era
where it has been written that the ‘Dharma’ (Law) is above the king itself even though the
king has a divine form, it has been followed non-uniformly in the later intervals as well. One
example of this could be the writings of Chanakya in his book ‘Arthashastra’ where he has
written that even the king is answerable to the law of the land and shall obediently abide by
it.

Since, India had been a part of the British Colonies in the past, it follows the Common Law
system in which laws are enacted by the Judicial Precedents apart from the Legislature.
Therefore, the rule of law model on which it is based is quintessentially a part of the doctrine:
‘Law according to Justice’ instead of ‘Justice according to law’ model followed in Civil Law
Countries. In India, any law made by the Parliament can be repealed and differently
interpreted by the Judiciary if it deems it be ‘Unconstitutional’ and even has the authority to
frame new laws if there haven’t been made on a particular issue but are necessary for the
rendering of Justice in the case given that such law is not again unconstitutional and
undemocratic , hence following the maxim of ‘Cassus Ommissus: the law knows no gap’.

The foundation and establishment of the three principles of Rule of Law in the Indian
Context can be studied in a twofold manner. First, in the context of Constitutionalism,
followed by Judicial Precedents.

Constitution:
The Constitution of India is considered as the ‘Grundnorm: a basic law from which all other
laws arise’ i.e. it is the supreme law from which every other law in the country derive their
authority from. Any law made by the executive and the legislature is mandatorily to be in
accordance with the provisions given in the constitution to be deemed as a valid and effective
law in the territory of India as per Article 13(1) of the Constitution of India which embodies
itself the very principle of ‘Supremacy of Law’ as the constitution being a law will have
augmented hierarchy then the parliament and administration. Moreover, the preamble of the
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constitution starts with the phrase We the people of India” and ends with “hereby adopt and
enact and GIVE OURSELVES this constitution” ensuring that the laws are made by the
people themselves not the government and that the government is the result of such law and
not vice versa. As far as the restriction to a person’s liberty by arbitrary action of the
administration is considered, the constitution has provided a check in the form of Article 21
which says that no person shall be deprived of his right to life and liberty except in
accordance with the procedure established by law.

Discrimination on the basis of sex, religion, race or place of birth is expressly prohibited in
the territory of India as per Article 14 of the Indian constitution which ensures the ‘Right to
Equality’. A further application of Article 14 read along with Article 39(A) would be the
rendering of Free Legal Aid to the community through which fair and equal representation
can be given to everybody so that the principle ‘equality before law’ can be applied in a more
effective manner and the law shall be applied also the same way to everyone. It is through
this that simultaneously the provisos of Natural Justice are also fulfilled, another inseparable
objective of the rule of law doctrine. 1

Article 50 of the Constitution of India declares that it is the state’s directive principle to
ensure that the Judiciary is kept separate from the executive in the public services of the state
which although being not enforceable definitely shows the intent to uphold the principle of
‘predominance of legal spirit’ for the establishment of rule of law in India. Moreover, the
conduct of a judge can not be discussed in the parliament or any state legislature as per the
provisions of Article 121 of the Indian Constitution besides investing power in the court’s
judges to hold an offender punishable for the contempt of court as per Article 129 and 215 of
the Constitution. Judges are given immunity under sections of the Judges Protection Act of
1985 and the Indian Penal Code respectively as follows:

“ (1)     Notwithstanding anything contained in any other law for the time being in force and
subject to the provisions of sub section (2), no Court shall entertain or continue any civil or
criminal proceeding against any person who is or was a Judge for any act, thing or word
committed, done or spoken by him when, or in the course of, acting or purporting to act in
the discharge of his official or judicial duty or function."2 

“Act of Judge when acting judicially: Nothing is an offence which is done by a Judge when
acting judicially in the exercise of any power which is, or which in good faith he believes to
be, given to him by law.”3

Besides this, Article 32 of the constitution which contains the fundamental right to
constitutional remedies, famously known as the ‘Soul of the Constitution’ read along with
Article 226 which gives the high courts the authority to judicate is the ultimate form of the
predominance of the legal spirit as it provides protection to the rights of an individual apart
from creating the conditions in which such rights are protected and upheld.
1
The Constitution of India, 1950
2
The Judges Protection Act,1985, Sec 3, Cl 1
3
The Indian Penal Code,1860,Sec 77

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Judicial Precedents:
The question of rule of law and its applicability in India has been discussed in various cases
put forward in front of the courts. One of the most famous case among them would be the
case of ADM Jabalpur v/s Shivkant Shukla in which, when the question of whether writ
petitions of Habeas Corpus were allowed to be heard or maintainable in the high courts were
put up, Justice H.R. Khanna in his dissenting judgement observed:

“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”

Although, this was struck down back at that time by the majority of 4:1, the dissenting
judgement of Justice Khanna has been recently upheld in the K.S Puttaswami and Anr. v.
Union of India and Ors case where Justice D.Y. Chandrachud observed that right to life and
liberty is the fundamental part of rule of law and cannot be taken away under the fatuous
assumption that in adopting the constitution, the people of India gave up their basic liberties:

“The power of the court to issue a Writ of Habeas Corpus is a precious and undeniable
feature of the rule of law… A constitutional democracy can survive when citizens have an
undiluted assurance that the rule of law will protect their rights and liberties against any
invasion by the state and that judicial remedies would be available to ask searching
questions and expect answers when a citizen has been deprived of these, most precious
rights.”4

In the Landmark case of Kesavananda Bharti v/s State of Kerala, the Supreme Court held that
the Rule of Law is an essential part of the basic structure of the constitution which cannot be
amended by any Act of Parliament.5 The principle of rule of law was yet again reiterated in
the case of Chief settlement Comr. Punjab v. Om Prakash where it was entitled as the central
characteristic of the constitution. Also, in the case of Indira Gandhi v/s Raj Narain, rule of
law was applied to struck down the constitutional amendments done by the parliament to
regularize Indira Gandhi’s election.6 The expansion in the definition of Article 21 of the
constitution in the famous case of Maneka Gandhi v Union of India 7 yet again embodies the
principle of rule of law in India. Echoes of the rule of law can also be heard in the latest case
of Indian Young Lawyers Association v The State of Kerela or the famous Sabrimala
verdict wherein the fundamental rights enshrined under Article 14, 19 and 21 of the
Constitution were upheld in assuring the entry to women in the Sabrimala Temple,
strengthening liberty and not withstanding the arbitrary notion of repugnant customs. 8 In light
of the perception that every law in the country is bound to be in conformance with the

4
Justice K. S. Puttaswamy (Retd.) and Anr. v. Union Of India And Ors. (2014) 6 SCC 433
5
Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461.
6
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
7
Maneka Gandhi v Union of India, AIR 1978 SC 597
8
Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors. ILR2018(4) Kerala285

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Constitution for ensuring supremacy of law, various acts or some provisions of the parliament
are declared as ‘Unconstitutional, null and void’ by the Judiciary with the view that such laws
were undemocratic in nature and defeat the purpose of providing Justice. The up-to-the-
minute example of this would be the Decriminalization of Section 377 of the Indian Penal
code9 and the prohibition of the practice of Triple Talaq or Talaq-e-Biddat given in the
Shariyat Law by the Supreme court.10

Criticism:
While the concept of rule of law has been accepted and established theoretically in India, it
suffers a lot of setbacks in its practical application in the territory. Starting with the very
embodiment of the rule in Article 21 which secures right to life and liberty, acts upon the
condition that such liberty taken away according to ‘procedure established by law’ instead of
‘due process of law’ which means that the liberties of an individual or a community can be
taken away if it has been sanctioned by the law not considering whether the law prescribing it
is fair or not. Article 19 embodies in itself the right to freedom of expression but it comes
with the phrase ‘with reasonable restriction’, which has not been defined anywhere else in the
constitution making it ambiguous and a loophole for the authorities to act arbitrarily on their
discretion. Same is the case with the Law of Sedition in India, whereby the term ‘sedition’ is
left ambiguous and open to wide levels of Interpretations through which any person’s
freedom can be curtailed.11

India has ranked at the 59th position in the Rule of law (ROL) Index of 2015 out of the total
list of 102 countries as per the World Justice Project report of the United Nations which
shows the ground reality of the principle’s governance in India. Corruption is rampant in the
country portraying that the executive is enjoying authority way out of its Jurisdiction. This
has been confirmed by the Corruption Perception Index (CPI) 2017 of International
corruption watch dog that India ranks 81 st out of 180 countries, making it one of the most
corrupted states.12

Backlog of cases is yet another blockade in the implementation ROL. Until, the backlog is
not cleared, cases will not move swiftly and the general public will lose its faith in the legal
machinery making it a contradiction for the Predominance of Legal Spirit. At present there
are 2,67,73,356 cases which are pending in the courts of India.13

9
Navtej Singh Johar v. Union of India, AIR 1975 SC 2299
10
Shayara Bano and Ors. v Union of India and ors. AIR 2017 SC 4609
11
Indian Penal Code, 1860, Sec124, ClA
12
International Corruption Watchdog’s Corruption Perception Index,2017
13
Government of India, National Judicial Data Grid statistics, at (22nd January 2018, 1 pm),
https://njdg.ecourts.gov.in/njdgnew/index.php

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 Conclusion:
We have come across the various aspects of rule of law in India. Having seen the criticism,
why rule of law suffers obstacles in the Indian Context, one can still form a confident opinion
that its idea is well enshrined in the Constitution and other statutory laws. It is because of the
fact that the constitution in itself provides a mechanism though which the ROL can be
restored if there exists a disequilibrium mentioned in the criticism section of this paper.
However, what is required is the pro-activeness and sincere efforts on part of the elements of
the state by exercising the functions of their respective spheres such as the Judicial Review,
Formal debates etc. and moreover by the general public through recognition and application
of the rights vested in them and through the passage of Political Discourse in order to ensure
that the rule of law is maintained and the ethos of democracy not sacrificed. Democracy is yet
another aspect of ROL. Which goes hand in hand with it in regard to their shared objectives.
As both of them aim for sustenance of society through Law and Order in such a manner that
the Individual Liberty of any individual is not sacrificed.

“Democratic government serves two purposes, both requiring that the substantive element of
the rule of law be adhered to. Firstly, via a constitution the government is able to maintain
civil society, which is the main occupation of the rule of law and, secondly, the rule of law
also vouchsafes rights and freedoms.”14

Through these ideas and Judicial Prolamins, Rule of Law has been given the title of the basic
structure of the constitution, declaring its existence and effectivity in the Indian context and
making it an inseparable part of the Constitution.

14
Martin Loughlin, “Constituent Power Subverted: From English Constitutional Argument to British
Constitutional Practice in Martin Loughlin and Neil Walker (eds) The Paradox of Constitutionalism, (Oxford
University Press Oxford 2007) 47.

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 Bibliography

Statutes
 The Constitution of India, 1950
 Indian Penal Code, 1860
 Judges Protection Act, 1985

Online Databases
 Manupatra
 SCC online
 Lexis Nexis Legal
 JSTOR
 West Law

Commentaries
 P.M. Bakshy’s “Constitution of India”
 D.D. Basu’s “Introduction to the Constitution of India”
 MP Jain’s “Indian Constitutional Law”
 A.S Atlekar’s “State and Government in Ancient India”
 Ratanlal and Dhirajlal’s “The Indian Penal Code”

Websites:
 www.Lawoctopus.com
 www.Lawtimesjournal.com
 www.livelaw.in

Reports
 NJDG
 Corruption Perception Index, 2017

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