Hidayatullah National Law University, Raipur (C.G.

)
Rashmi Pandey (PG/14/2020/503)
LL.M. (One Year Programme) End Term Examination, January - 2021 Semester-I;
Law and Justice in a Globalizing World
SACE-II.

1. Introduction

“The rule of law should be respected so that the basic structure of our democracy is
maintained and further strengthened.”
-Lal Bahadur Shastri

To begin our understanding about rule of law, I must admit a few things here. The preposition
of World Justice Project that rule of law was not understood by masses, but was a domain of
just lawyers and judges, I quiet don’t agree with it.

Rule of Law and Indian Society

Rule of Law, as proposed by Dicey bifurcated in 3 major principles of “supremacy of law”,
“Equality before Law”, and “Predominance of Legal spirit” admittedly refined for modern
day democracies, had been the core of how in India people understood “Dharma” to be. For
this let us understand the metaphor of Forest, from Samaveda were melodies are classified
into 2 types, songs sung in (gram) settlement, and songs sung in forest.
“To understand Hindu mythology, it is critical to understand the metaphor of forests. Forests
represent the default wild world, where might is right, where strong prey on the weak; while
culture represents the world, where the forest has been domesticated, where might is no
longer right, and the strong take care of the weak. In fact, the transformation of human
settlements into civilisations is seen as the journey from the desire to dominate and be
territorial, like an animal, to a space where the mighty help the meek and even the helpless
can thrive. From a world where they are consumed by hunger and fear, to a world where they
outgrow hunger and fear, and can empathise with the hunger and fear of others1”.

So what does Dharma essentially mean? Let’s look at a traffic signal, if it were to dictate
every turn, speed and direction of the vehicle won’t that come as an authoritarian, whereas if
1
Devdutt Patnaik, “The Metaphor of the Forest” <https://devdutt.com/articles/the-metaphor-of-the-forest/>
(2/2/2021)

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it was to let everyone have their whims and fancies it would clearly amount to be useless, in
controlling accidents. So a Traffic signal which maintains the right balance between not being
authoritarian as well being effective enough to not let the society jump back to Jungle is
doing “Dharma Sansthapana” a fairly equivalent of “Establishment of Rule of Law”

The principle of the Rule of Law is that the state is ruled not by the monarch or the
nominated representative of the people, but by the law. A county that enshrines the rule of
law will be one in which the Grundnorm2 of the nation or the basic and fundamental law from
which all other law draws its power is the supreme authority of the land. King is not the law
but the law is king.3
The word 'Rule of Law' is derived from the French phrase “La Principe de Legalité” (the
principle of legality) which refers to a government founded on principles of law and not on
men. The phrase “dharmo rakshati rakshitah” (Dharma protect those who protect Dharma)
reiterates the relevance of obedience to law, among masses as they considered it to be their
protector.
The Supreme Court has proclaimed the rule of law to be one of the basic features of the
Constitution4, so that it cannot even be amended by a constitutional amendment. The rule of
law is perceived to be an important part of good governance.

Rule of Law and Ancient Greece

The principle of the Rule of Law is of ancient origin and is an ancient ideal. It was debated by
ancient Greek thinkers like 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”.

Rule of Law and England

2
‘Kelsen’s Theory of Grundnorm’, Mridushri Swarup <http://manupatra.com/roundup/330/Articles/Article
%201.pdf> (Last retrieved on 14.12.2020)
3
“Common Sense’, Thomas Paine < http://www.gutenberg.org/files/147/147-h/147-h.htm> (Last retrieved on
20.09.2014)
4
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr, AIR 1973 SC 1461

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 In the thirteenth century, Bracton, a judge under the reign of Henry III, in a manner,
introduced the principle of the Rule of Law without calling it the Rule of Law. He wrote the
following:

"The king himself must be subject to God and to the law, because the law makes
him king."

Edward Coke is said to have been the originator of the definition of the Rule of Law when he
said that the King would abide by God and the Law and thereby vindicate the superiority of
the Law over the pretensions of the Executives.

However, a thorough analysis of the concept of the Rule of Law was carried out by Professor
A.V. Dicey, who sought to establish the concept of the Rule of Law in his book "Introduction
to the Study of the Law of the Constitution" published in 1885. His Legal Theory consists of
three core principles:

i) The supremacy of law

ii) Equality before law

iii) The predominance of Legal Spirit

2. Rule of Law and Role of Precedent and Dissent

Precedents and Dissent are the bedrock of the dynamics where humans have
balanced concept of justice with the ever changing time and dynamism of the world.
From economics, to politics to social life, there is a continuous churn of opinions,
and counter-opinions. The recent capitol hill attack in US or the 26 th January 2021
violence in India, all point out that in aspiring societies, there will always be
conflict and all will be stakeholders in rule of law.

The present trends of Communist vs Capitalist, Global vs Regional, Right wing vs

Left wing, all point out that world be never bereft of this constant dynamism which
we all need to respect, observe and learn from.

Precedents, emanating from the doctrine of stare decisis, point to the consistency in
obedience, whereas Dissent usually creates a window for future change.

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 2.1. The Conservative Precedent

Precedents have been recognised in Indian Law, via Article 141, along with Article 129 and
215 making Supreme Court as well as High Courts Court of Records. “Precedents have been
recognized by the International Court of Justice in Hague under Article 38(2)(d) of the Statue
of the International Court of Justice. Article 59 of the same convention expresses that the
decisions of the court only have persuasive value for future cases and therefore hints at the
fact that the International Court of Justice is not bound by its own decisions in deciding
factually similar cases in future.” It holds that the decision is only binding upon the parties to
the case.

1. Declaratory and Original: In declaratory precedents, the mere application of a

rule in a previous legal case is used.
2. Persuasive: Usually seen in courts of same rank, here the precedent is not
necessarily be followed. The judge will rely heavily on this case and take it into
consideration
3. Absolutely authoritative: In Cases where superior court already has a ruling that
verdict must mandatorily be followed by the judge.
4. Conditionally authoritative: If parties proceed to Supreme Court or there is
review ordered.

Justice Deepak Gupta is a judge of the Supreme Court of India

“Judicial precedents based on the principle of stare decisis are also a source of law as they
offer a backbone or support to rely on, in cases with similar facts. Treaties and conventions
on an international level are also used to make law as with increased globalization, all the
countries are required to interact with each other more than before. Justice, equity and good
conscience have always been what law and decisions must be based on”

2.2. The Reformist Dissent

Protestanism emerged after Martin Luther nailed on the door of a church,95 objections to
catholic faith in Oct 31 1570. Earth is round not flat is a gift of proud dissenter Galileo
Galilei who died in house Arrest. “In fact, the history of progress of mankind is a history of
informed dissent; much of creative activity of high quality in all areas of human endeavour at
any given time has been a reflection of such dissent”.

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There can be no democracy without dissent as rightly emphasised by Justice D.Y
Chandrachud having vivacious understanding of majoritationism and it’s effects.

“The blanket labelling of dissent as anti-national or anti-democratic strikes at the

heart of our commitment to protect constitutional values and the promotion of
deliberative democracy”.

Power of a contrary view by single voice, if made with all integrity is immense. As
Tagore said:

Open Thy Mind, Walk Alone

We Are Not Afraid, Walk Alone

Plessy vs. Ferguson: where the issue was there must be separate rail compartments
for white and black, when majority upheld this policy of segregation.

Justice John Marshall Harlan dissented alone. He wrote:

“…in the eye of the law, there is in this country no superior, dominant, ruling class
of citizens. There is no caste here. Our constitution is colorblind, and neither knows
nor tolerates classes among citizens. In respect of civil rights, all citizens are equal
before the law. The humblest is the peer of the most powerful. . .The arbitrary
separation of citizens on the basis of race, while they are on a public highway, is a
badge of servitude wholly inconsistent with the civil freedom and the equality
before the law established by the Constitution. It cannot be justified upon any legal
grounds.”

This view of Justice Marshall was later upheld in Brown vs.  Board of Education by
a unanimous 9–0 verdict.

Two recent dissents

Justice Chandrachud in the Aadhaar Judgment  13  – Aadhar Act Unconstitutional

“Our Constitution does not provide absolute power to any institution. It sets the
limits for each institution. Our constitutional scheme envisages a system of checks
and balances.”

“ Justice Indu Malhotra in Sabarimala: The limited restriction on the entry of

women during the notified age-group does not fall within the purview of Article 17
of the Constitution.”

3. Checks for Rule of Law

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1. Constrains on Government Power of the Executive, legislature and Judiciary through a
robust system of Checks and Balances, independent auditing and review is must to avoid
concentration of power and promote transparency. Along with this sanctions for
misconduct and Smooth transition of power, subject to the law avoid violent conflicts.

2. Absence of Corruption Government officials in the Executive, Judicial or Legislative

Branch along with Police and Military do not use public office for private gain
3. Open Government:-Publicized laws and government data, right to information, civic
participation, Complaint mechanisms
4. Fundamental Rights:- Equal treatment and absence of discrimination, right to life and
security of the person, freedom of opinion and expression is effectively guaranteed etc

4. Interplay of Precedents and Dissent

“Wherever there is discretion, there is room for arbitrariness and that in a republic no less
than under a monarchy discretionary authority on the part of the Government must mean
insecurity for legal freedom on the part of its subjects.” 5 As Wade states, the rule of law
allows the government to be subjected to the law rather than by the law to the government.
The rule of law allows all individuals and governments to be regulated by recognized and
existing rules.

Part-III and all fundamental Rights go under the Rule of Law, which are enforceable by Law.
In the event that these are violated, we can go to the Supreme Court and High court under
Article 32 and 226. The term Law includes all orders, rules, regulations, bylaws, orders,
notice and customs.6
The Supreme Court of India has additionally strengthened this principle through its various
decisions, the foremost of them being, A D M Jabalpur v. Shivkant Shukla 7 the question in
this case, before the court was ‘whether there was any rule of law in India apart from Article
21’. This was with regards to suspension of enforcement of Articles 14, 21 and 22 during
proclamation of emergency. The response of the majority was in negative for the subject of
law. Justice H.R. Khanna, however, contradicted from the majority opinion and opined 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
5
The Law and the Constitution, 1915
6
A.K. Gopalan v. State of Madras, A.I.R.1950 S.C.27
7
1976 SCR 172

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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.”8

Bhagwati, J. in Bachan Singh v. State of Punjab, observed,

"What is necessary element of the rule of law is that the law must not be arbitrary or
irrational and it must satisfy the test of reason and the democratic form of polity seeks to
ensure this element by making the framers of the law accountable to the people…. There are
three Fundamental Rights in the Constitution which are of prime importance and which
breathe vitality in the concept of the rule of law. They are Articles 14, 19 and 21.” 9

The Supreme Court in Chief Settlement Commissioner, Punjab v. Om Prakash10 opined:

“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.”

Efforts were made by the Court to identify a median between the need for discretion and the
need to eliminate arbitrariness. In one of the early cases, S.G. Jaisinghani V. Union of India
and others11 the Supreme Court depicted the essentials of the rule of law in a rather lucid way.
It observed,

“The absence of arbitrary power is the first essential of the rule of law upon which our whole
constitutional system is based. In a system governed by rule of law, discretion, when
conferred upon executive authorities, must be continued within clearly defined limits. The
rule of law from this point of view means that decisions should be made by the application of
known principles and rules and, in general, such decision should be predictable and the
citizen should know where he is. If a decision is taken without any principle or without any
rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance
with the rule of law”.

Further, J.S. Verma, J. in Supreme Court Advocates on Record Association v. Union of India
pointed out that,

8
Ibid.
9
AIR 1980 SC 898
10
1969 AIR 33
11
1967 AIR 1427

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 “It is, therefore, realistic that there has to be room for discretionary authority within the
operation of the rule of law, even though it has to be reduced to the minimum extent
necessary for proper governance; and within the area of discretionary authority, the
existence of proper guidelines or norms of general application excludes arbitrary exercise of
discretionary authority.”12

 Conclusion
India's founding fathers did what was impossible for the rest of the world, establishing a
government that would obey the spirit of the law and uphold the rule of law. The Constitution
of India has provided adequate frameworks in all matters, such as the protection of the rights
of the people, equality before the law, protection against undue arbitrariness, to ensure that
the Rule of Law is being followed.
The courts have tried, through their decisions, to improve these structures to ensure the
smooth administration of justice to all citizens. Problems such as obsolete laws and
overcrowded courts are just minor hurdles and bodies such as the Law Commission of India
are trying to sort out these issues in order to create a structure where there are no obstacles to
the smooth operation of the Rule of Law.
Guru Rabindranath Tagore’s poem rightly concludes the topic,

“Where the mind is without fear and the head is held high;
Where knowledge is free;
Where the world has not been broken up into fragments by narrow domestic walls;
Where words come out from the depth of truth; Where tireless striving stretches its
arms towards perfection;
Where the clear stream of reason has not lost its way into the dreary desert sand of
dead habit; Where the mind is led forward by thee into ever- widening thought and
action
Into that heaven of freedom, my Father, let my country awake.”

12
(1993) 4 SCC 441, 683.

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