A DESCRIPTIVE STUDY ON “RULE OF LAW” UNDER

INDIAN CONSTITUTION

ABSTRACT:

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. 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. The King is not the law but the law is king. It means 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.
Rule of Law plays an important role in the democratic countries. It provides protection to the
people against the arbitrary action of the administrative authorities. The expression ‘rule of
law’ has been derived from the French phrase ‘la Principle de legality’ i.e. a government
based on the principles of law. In simple words, the term ‘rule of law, indicates the state of
affairs in a country where, in main, the law rules. Law may be taken to mean mainly a rule or
principle which governs the external actions of the human beings and which is recognized
and applied by the State in the administration of justice. It is impossible to get the supremacy
of law without the rule of law.

Keywords: Rule of Law, administrative, Ultra virus, Arbitrariness, Personal Liberty

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1. INTRODUCTION:

The bedrock of our democracy is the “Rule of Law” and that means we have to have an
independent judiciary, judges who can make decision independent of the political winds that
are blowing– Caroline Kennedy

The Constitution of India has defined and declared the common goals for its citizens as “To
secure to all citizens of India, Justice – Social, Political and Economic. The eternal value of
constitutionalism is the Rule of Law which has three facets i.e. “Rule by law, Rule under law
and Rule according to law”. Rule of Law embodies the doctrine of Supremacy of law. It is a
basic and fundamental necessity for a disciplined and organized society.

If a government acts according to the principle of Rule of law then individual liberty and
right can be better protected. The principle implicit in the Rule of law is that the government
must act under the law, and not by its own decree or fiat, which is still a cardinal principle of
the common law system. The ‘Government’ is regarded as not having an inherent power of
its own but all its power flow and emanate from the “Rule of law” a principle which plays
such a vital role in all democratic countries of today. Under our Constitution, it is the primary
responsibility to maintain law and order so that the citizens can enjoy peace and security.
Thus in India, the Rule of law has been considered as the basic feature of the constitution and
therefore it cannot be abrogated even by the Parliament. The ideals of the constitution;
liberty, equality and fraternity have been enshrined in the Preamble.

The basic purpose of the law is the quest for Justice which should be administered without
fear and favor. As George Gurvitch says, Justice is used in two senses- “faithful realization of
the existing laws against any arbitrary infraction of it”, and search for “ideal element in all
law,” that is the idea which the law tends to subserve.”1 Law is inescapable and the antagonist
that is the anarchist regards ‘Justice’ as a mask to dominate the weak by the strong. Similarly,
the communist considered law as a medium of domination of the proletariat by the
bourgeoisie. But despite this view, everybody concurs that the law is the fulfillment of

1
8 Justice George Gurvitch, Encyclopaedia of the social sciences 41(Macmillan Company 1932)

2
the legitimate expectation of an individual and it protects the individual against the violation
of his rights.2

The concept of the Rule of law is that the state is governed, not by the ruler, nor by the
nominated representatives of the people but the state is governed by the laws. A country that
enshrines the “Rule of Law” would be one wherein the ground norm3 of the country, or the
basic and core law from which all other derives its authority is the supreme authority of the
state. The monarch or the representatives of the republic are governed by the laws derived
from the Ground norm and their powers are limited by the law.“The king is not the law but
the law is the king.4 The rule of law under Indian Constitution does not mean that the
protection of the law must be available only to a fortunate few or that the law should be
allowed to be prostituted by the vested interests for protecting and upholding the status quo
under the guise of the enforcement of their civil and political rights. The poor too have civil
and political rights and the rule of law is meant for them also, though today it exists only on
paper and not in the reality. 5 Rule of law and independence of judiciary go hand in hand.
There cannot be a Rule of law without an independent judiciary. Judiciary is an essential part
of the life of a nation like a legislature and executive. 6 No society can exist without the
concept of rule of law and independent mechanism. 7 Therefore the impartiality and
independence of the Judiciary depend on the high standards of the conduct under Rule of law.

“The essence of fair and fearless administration of Justice is a sine qua non of a successful
democratic government”

2
Todd J. Zywicki, The Rule of Law, Freedom and Prosperity, 10 Supreme Court Economic Review 1,4 (2003).
3
Mridushri Swarup, Kelsen’s Theory of Grundnorms, (June 15 2018, 9: 00 AM), http://Manupatra.com /round
up/ 330/Articles//201.pdf
4
ThomasPaine,CommonSense,(June152018,10:00AM), http://www.gutenberg.org/files/147/147-h/147-h.html
5
Muncipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622 (India).
6
S.B Sinha, Judicial Independence, Fiscal Autonomy and Accountability 21 (Nyaya Deep, 2006).
7
Sunil Deshta, Independence and Accountability of Judiciary in India: Problems and Solution, 3 Orient Journal
of Law and Social Sciences, March 2009, at 26, 46.

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1.1 Rule of Law:

 Rule of law, also known as supremacy law, means that no one (including government)
is above the law, law is above everyone, and it applies to everybody.

 The term ‘rule of law’ is derived from the French word ‘le principe de legalite’ which
means ‘the principle of legality’.

 The rule of law is a legal principle that law should govern a nation and not arbitrary
decision by individual government officials.

 According to Black’s Law Dictionary, the rule of law, also known as “the supremacy
of law”, provides that decisions should be made by the application of known principles
or laws without the intervention of discretion in their application’.

 Rule of law is a process/practice that supports equality of all citizens before the law
and prevents arbitrary use of power/authority.

 Rule of law is a set of principles, or ideals, for ensuring an orderly and just society.

1.2 Rule of Law – Meaning & Scope:

The concept of ‘Rule of Law’ is a building block of our modern democratic society. This
term is nowhere defined in the Indian Constitution but has been often used by the Indian
Judiciary in their judgments. ‘Rule of Law’ is neither a ‘rule’ nor a ‘law’, rather it is a
doctrine of ‘state political morality’ which maintains a ‘correct balance’ between the ‘rights’
and ‘powers’ between the individuals and between the individuals and the state to make it a
free and civil society. The ‘correct balance’ is made by ‘law’ which is based on freedom,
justice, equality and accountability. Thus, Rule of Law makes equilibrium between the needs
of society and the individual.

The Principle of Rule of Law is derived from the French phrase “la prinicipe de legalite”
which means a Government based on the principles of law. Edward Coke is said to be the
originator of the Concept of Rule of Law. He said that the King must be under God and Law.
Edward Coke had three major points regarding ‘Rule of Law’. Firstly, Rule of Law is
required to ensure that there is no authoritarian rule of the crown; Secondly, it ensures that
there is no arbitrary authority of the Government; and lastly, it is required for the protection
of Individuals and their Rights.

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1.3 Features of Rule of Law:

 The principle of Rule of Law is upheld when the authorities while exercising their
powers are not allowed to act according to their whims and fancies.
 Under the principle of Rule of Law, no person can be punished or made to suffer,
unless and until he has committed the breach of law.
 According to Rule of Law, everyone is equal before the law, i.e. law cannot be based
on a class of persons.
 Rule of Law is essential bedrock of most of the democracies as it is universal in its
application and also it has been the part and parcel of most of the legal systems in the
world.
 According to the principle of Rule of Law, a person can be punished only if he is
charged of committing a crime and that charge is proved by an independent tribunal
like that of a court.

1.4 Principles of Rule of Law:

According to the World Justice Projects definition, rule of law is a system in which the
following four principles are upheld. These are also known as the four universal principles
of rule of law:

1. Accountability

The government and its officials, its agents as well as individuals and private entities
are accountable under the law.

2. Just law

The laws are clear, publicized, stable and just; and are applied evenly; and protect
fundamental rights including the security of the persons and property.

3. Open government

The process by which the law is enacted, administered and enforced is accessible, fair
and efficient.

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4. Access and impartial justice

Justice to be delivered timely by competent, ethical, and independent representatives

and neutrals

1.4.1 Additional Principles of Rule of Law

 No one is above the law
 Everyone is treated equally under the law
 Everyone is held accountable to the same laws
 There are clear and fair processes for enforcing laws
 There is an independent judiciary, and human rights are guaranteed for all.

1.5 Characteristics of Rule of Law:

 Transparency

 Accountability

 Public participation in decision making

 Fairness/justice in the application of law

 Separation of power

 Independent and impartial judiciary

 Legal certainty

 Avoidance of randomness/unpredictability

 Predictable resolution of disputes

1.6 Dicey’s Concept on ‘Rule of Law’

Albert Venn Dicey (a British jurist and constitutional theorist) developed the Concept of Rule
of Law in his book ‘The Law of the Constitution’ (1885). He states that one should know the
difference between administrative law and the Rule of Law. According to him, Rule of Law
is equal for everyone whether he is a Prime Minister or a normal bank clerk working in an
office. Thus, same laws should be made applicable to everyone, no discrimination should be
done under the rule of law and rule of law is supreme in nature.

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A.V Dicey propounded three postulates of Rule of Law, which are-

 Supremacy of Law
 Equality before the law
 Predominance of a legal spirit

1. Supremacy of Law
 Rule of law according to Dicey means the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary
power or wide discretionary power.
 It means the exclusion of the existence of arbitrariness on part of the
government.
 This in essence means that no man can be arrested, punished or be
lawfully made to suffer in body or in goods except by the due process
of law and for breach of a law established in the ordinary legal manner
before the ordinary courts of the land.

2. Equality before Law

 While explaining this aspect of the doctrine, Dicey stated that there
must be equality before the law or equal subjection of all classes to the
ordinary law of the land administered by the ordinary law courts.
 Dicey believed that the exemption of civil servants from the
jurisdiction of the ordinary courts of law and providing them with the
special tribunals was the negation of equality. 8
 He stated that any encroachments on the jurisdiction of the courts and
any restriction on the subject’s unimpeded access to them are bound to
jeopardise his rights.

8
https://byjus.com/free-ias-prep/rule-of-law-upsc-notes/#

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 3. Judge-made Constitution

 Dicey observed that in many countries rights such as the right to

personal liberty, freedom from arrest, freedom to hold public meetings,
etc. are guaranteed by a written Constitution; in England, it is not so.
 In England, those rights are the result of judicial decisions in concrete
cases that have actually arisen between the parties.
 Thus he emphasized the role of the courts of law as guarantors of
liberty and suggested that the rights would be secured more adequately
if they were enforceable in the courts of law than by mere declaration
of those rights in a document.

2. HISTORICAL BACKGROUND OF THE STUDY:

2.1 Rule of law in traditional India

 Dharma

The rule of law in India originated in dharma. Dharma meant law, duty, and righteousness. It
was a guiding element of every Indian’s life. Dharma was considered to have a divine origin.
It was considered to be imposed by God for the proper functioning of society. Just like any
law, dharma created a sanction. It was believed that those who did not walk on the path of
dharma will be punished by God. It was the basis and supreme law of the nation.
Nevertheless, it is important to remember that dharma was not just limited to law but also
included ethics and moral beliefs. In Indian society, no one was considered to be above
dharma. Even a king was bound by Raj dharma (law of ruler) and Kshatriya dharma (law of
warriors)

 Shruti

The four Vedas i.e. the Rigveda, the Yajurveda, the Samaveda, and the Atharvaveda are
shrutis. Shrutis mean something that is heard. All these four Vedas are divided into four
sections namely, the Samhitas, the Upanishads, the Brahmanas, and the Aranyakas.
Upanishads are important in the context of the current study. Upanishads state that nothing is

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higher than dharma and dharma is the law of righteousness and is the universal principle of
law. It is based on the principles of order and harmony.

 Dharmasutras

Rules of behavior were compiled in a body of literature that came to be known as the
dharmasutra. This literature did not have a divine origin but a human origin. Dharmasutras
mainly dealt with customary law. They divided the duties and castes of people into four
stages i.e. dharma, moksha, artha, and kama meaning religion, salvation, economics, and
sexuality respectively. Other parts of sutra contained civil matters such as inheritance, taxes,
etc. it also had some criminal matters such as adultery, theft, assault, etc.

 Smriti

Smritis are what are remembered. These were texts based on the remembrance of sages who
were considered the “repositories of the sacred revelation”. Smritis were also called
dharmashastras. The most famous Smritis are the Ramayana and the Mahabharata. Other
smritis include Manusmriti, Yajnavalkaya smriti, Brihsapati smriti, and Narada smriti.

 Manusmriti

Manusmriti is the most important and the oldest of all smritis. It is believed that it was based
on manava dharmasutra though it cannot be ascertained. It deals with the duties of people
from all walks of life and in each stage of life. It includes everyone ranging from the common
to royal people. Even Manusmriti has stated that dharma is the supreme law. The members of
the royal family, including were also subjected to dharma. The king was only considered as
an instrument to realize dharma and so there was no one who can be above dharma.
Therefore, rule of law can be traced in the Indian society not in a person or state, but in
dharma.

Manusmriti states that there are four sources of law namely, Shruti, Smriti, customs, and
good conscience. Of these four, Shruti has a divine origin and it is considered to be the most
authentic and powerful. In case of conflict between any of the sources, it is the Shruti that
prevails.

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2.2 Rule of law in modern India

The Constitution of India

 Article 13

Article 13, of the Indian Constitution deals with laws that are in derogation with fundamental
rights. Article 13(1) deals with pre-constitutional laws and Article 13(2) deals with post-
constitutional laws. The former states that any such law existing at that time of enforcement
of the constitution shall be void to the extent to which it contravenes the fundamental rights.
The latter states that the State should not make any law which is in contravention of Part III
i.e. fundamental rights, otherwise it be void to the extent of contravention. Though the
Constitution does not explicitly state anything related to rule of law, it can be observed that it
is well-embedded in Article 13 of the Indian Constitution.

 Article 14

Article 14 deals with the right to equality. It states that everyone is equal before the law and
there is equal protection of laws for everyone. We have earlier seen that equality before the
law is one of the pillars of rule of law in the words of A.V. Dicey. Thus, even Article 14
enforces rule of law in India. It is undisputed that the right to equality is a fundamental right
and in case of any contravention, any person can approach the Supreme Court and High
Courts under Article 32 and Article 226 respectively. Further, through different judicial
precedents, it has been held that there is no place for arbitrariness in law which would be
violative of Article 14 of the Indian Constitution. Thus, once again, it can be ascertained that
rule of law is very much present in the Indian legal system.

 Article 19

Article 19 of the Indian Constitution provides six freedoms to the citizens. Since it is a part of
fundamental rights, any contravention can be challenged in courts. Article 19(2) provides
reasonable restrictions from exercising these freedoms. Apart from these reasonable
restrictions, no person can be restricted from exercising these freedoms otherwise its
contravention can be dealt with by the courts since it is a right provided by the Constitution
itself, which is the supreme law of the country.

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  Article 21

Article 21 deals with the right to life and liberty. It states that no person can be deprived of
life or personal liberty except by a procedure of law. Therefore, in normal circumstances, a
person always has the right to life and liberty. A basic understanding of Article 21 makes it
evident that the executive cannot exercise its power arbitrarily to hamper anyone’s life or
liberty. Through the landmark judgment of Maneka Gandhi v. Union of India (1978), the
Supreme Court has broadened the scope of the right to life. It has explained how the right to
life includes the right to live with dignity. It is settled by different judgments that the right to
life is very vast in its scope and includes the right to a dignified life, the right to live in a
pollution-free environment, the right to legal aid, and a lot more. Thus, Article 21 also
emphasizes that the rule of law is prevalent in the Indian legal system.

3. Concept of Rule of Law:

As propounded by IP Massey in his book – ‘Administrative Law’, Rule of Law is a dynamic

concept and, like many other such concepts, is not capable of any exact definition. However,
it does not mean that there is no convention on the basis of the values which it represents.
Rule of Law collates the rules which are based on the principles of freedom, equality, non-
discrimination, fraternity, accountability and non-arbitrariness and are certain, regular and
predictable.

“The concept shares the common English inheritance and apart from the statement of
generalities, it embraces a body of specific detail.” 9 It furnishes the foundation for a
pragmatic system of governance.

The editors of Prof. De-Smith explain: “that laws as enacted by Parliament be faithfully
executed by officials; that orders of courts should be obeyed; that individuals wishing to
enforce the law should have reasonable access to the courts; that no person should be
condemned unheard, and that power should not be arbitrarily exercised.”10 The rule of law

9
Justice J.S. Verma, 50 Years of Freedom under Rule of Law: Indian Experience 325 (Soli J. Sorabjee ed., Law
& Justice: An Anthology, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2003).
10
De Smith et al., Judicial Review of Administrative Action 14 (5th Ed. 1995).

11
11
under the Indian Constitution requires the government should be subject to law, rather than
the law subject to the government. In fact, it could be marginalized as a modern name of
Natural Law.

Jurisprudentially, Romans called it ‘Jus Naturale’, mediaevalists called it the ‘Law of God’,
Hobbes, Locke and Rousseau called it ‘Social Contract’ or ‘Natural Law’ and the modern
jurists call it ‘Rule of Law’. The idea has been developed from the French phrase ‘la principle
de legalite’, i.e. a Government based on the principles of law and not of men.

In India too, the concept of Rule of Law can be marked from Upanishads where it provides
that Law is King of Kings. Indeed, from the legendary days of Kautilya’s Arthasastra, the
rule of law has had the stamp of natural justice, which makes it social justice.12 Also, Plato
believed that if ordinary men were allowed to rule by will alone, the interests of the
community would be sacrificed to those of the ruler. In a monarchy, the concept of law was
developed to control the exercise of arbitrary powers of the monarchs who claimed divine
powers to rule.

A.V. Dicey also propounded that wherever there is discretion, there is room for arbitrariness.
However, in a democratic setup like India, the concept has processed a different dimension
and evaluates all the din and clamour of democracy, justice has been greatly influenced by
Rule of Law as a transcendental and paramount value, overseeing the exercise of all powers.

3.1 Rule of Law under Indian Constitution:

The Preamble of the Constitution itself prescribes the ideas of Justice, Liberty and Equality.
These concepts are further enunciated in Part III of the Constitution and are made
enforceable. All three branches of the government are subordinate i.e. the Judiciary,
Legislature and the Executive are not only subordinate to the Constitution but are bound to
act according to the provisions of the Constitution. The doctrine of judicial review is
embodied in the Constitution and the subjects can approach the High Court and the Supreme
Court for the enforcement of fundamental rights. If the Executive or the government abuses

11
Wade & Forsyth, Administrative Law 20-25, 343- 344 (2005).
12
Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 (India).

12
the power vested in it or if the action is mala fide, the same can be quashed by the ordinary
courts of law.

The Supreme Court of India in Chief Settlement Commissioner Punjab v. Om Prakash

observed that in our constitutional system, the central and most characteristic feature is the
concept of the rule of law which means, in the present context, the authority of the law courts
to test all administrative action by the standard of legality. The Court added that the doctrine
of rule of law rejects the conception of the dual state in which government action is paced in
a privileged position of immunity from control by law.

In the Indian Constitution, Rule of Law has been adopted under the Preamble where the
ideals of justice, liberty and equality are enshrined. The Constitution has been made the
supreme law of the state, and other laws in conformity with the Constitution. Part III of the
Constitution of India guarantees the Fundamental Rights. Article 13 of the Constitution
makes it clear that all laws in force in the territory of India immediately before the
commencement of the Constitution, in so far as they are inconsistent with the provisions of
Part III dealing with the Fundamental Rights, shall, to the extent of such inconsistency, be
void.13 Article 21 provides that no person shall be deprived of his life or personal liberty
except according to the procedure established by law.14

Article 19 guarantees six Fundamental Freedoms to the citizens of India – freedom of speech
and expression, freedom of assembly, freedom to form associations or unions, freedom to live
in any part of the territory of India and freedom of profession, occupation, trade or
business. 15 Article 20 provides that no person shall 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 and
not be subject to a penalty greater than that which might have been inflicted under the law in
force at the time of the commission of the offence. Also, no person shall be prosecutedand
punished for the same offence more than once16 and makes it clear that no person accused of
the offence shall be compelled to be a witness against himself. 17 In India, the Constitution is
supreme and the three organs of the Government viz. Legislature, Executive and Judiciary are

13
INDIA CONST. art. 13. Cl.1.
14
INDIA CONST. art. 21.
15
INDIA CONST. art. 19. Cl.1.

16
INDIA CONST. art. 20. Cl.2.
17
INDIA CONST. art. 20. Cl.3.

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subordinate to it. It provides though for the encroachment of one organ (eg-Legislature) upon
other (eg-Judiciary) if its action is malafide, and the citizen (individual) can challenge
under Article 32 of the constitution if the action of the executive or legislature violates the
fundamental rights of citizens before the judiciary.18

In India, it is regarded as a basic structure of the constitution and therefore, it cannot be

abrogated or destroyed even by parliament. 19 The principle of natural justice is also
considered as the basic correspondent of the Rule of Law. The Supreme Court held that in
order to satisfy a challenge under Article 14, the impugned State act must not only be non-
discriminatory but also be immune from arbitrariness20, unreasonableness or unfairness
(substantively or procedurally) 21 and also consonant with the public interest.22 Similarly the
Supreme Court while explaining the rule of law in K.T. Plantation Pvt. Ltd. v. State of
Karnataka,23 held as follows;

The rule of law as a principle contains no explicit substantive component like eminent
domain but has many shades and colours. Violation of the principle of natural justice may
undermine the rule of law resulting in arbitrariness, unreasonableness, etc. but such violations
may not undermine the rule of law so as to invalidate a statue. The rule of law under Indian
Constitution as a principle is not an absolute means of achieving equity, human rights,
justice, freedom and even democracy and it all depends upon the nature of the legislation and
the seriousness of the violation. The rule of the law as an overarching principle can be
applied by the constitutional courts, in the rarest of rare cases and the courts can undo laws,
which are tyrannical, violate the basic structure of the constitution and norms of law and
justice.”

18
Justice FM Ibrahim Kalifulla, Role of Courts in upholding Rule of Law, NJA, Jan.-Feb. 2014, at 1, 3.
19
Indira Gandhi v Raj Narain, AIR 1975 SC 2299 (India).
20
Nakara v Union of India, (1983) UJSC 217 (Paras. 13, 14) (India).
21
Maneka Gandhi v Union of India, AIR 1978 SC 597 (India).
22
Kasturi v State of Jammu & Kashmir, AIR 1980 SC 1992 (2000) (India).
23
K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1 (India).

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3.2 Importance/Necessity of Rule of Law

 To ensure accountability, equality and access to justice for all

 To strengthen international peace and security

 To promote holistic development of a society and nation

 To promote political stability

 To achieve economic and social progress and development.

 To encourage fairness and transparency

 To prevent the violation of human rights

 To discourage corruption

 To prevent the abuse of authority and power

 To establish a social contract between the government and people

3.3 Challenges in Ensuring Rule of Law

 Limited access to justice, especially for vulnerable and marginalized populations

 Complexities of artificial intelligence and cybercrime

 Impeding law enforcement, fueling a breakdown in law and order by the political
groups

 Ensuring decentralization of public offices and authority

 Ignorance and poverty

 Proliferation of hate speech and incitement to violence

 Climate change and the environment impacting on the security and livelihoods of
people

 Need for independence and professionalism to serve as a check on abuse and a

protector of rights and constitutional norms

 Excessive veneration of the law and legal procedures may be too costly.

 Overcrowding of public offices.

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3.4 Limitations and Exceptions of the Rule of Law

1. Immunity:
 Immunity is special privilege given to certain individuals of certain authority which
prevent them from lawsuit and prosecution as compared to the general population.

 It is an exception to the principle of rule of law.

2. Delegated legislation:
 It refers to the laws and orders promulgated by bodies other than parliaments.

 This is against the principle of rule of law.

3. Provision of special courts/administrative tribunals:

 There is provision of special court/administrative tribunal for certain public officials.

 This provision is differentiating the officials from the general population during legal
procedures.

4. Emergency periods:
 Certain rights of a people and citizens are restricted during the state of emergency.

 Citizens may also be denied of some of their human rights and fundamental rights.

 This is an exception to the rule of law.

Ways to Promote Rule of Law

 Respect the system by each and everyone including leaders and public officials

 Discourage corruption and irregularities

 Ensure separation of power and authority

 Promote public awareness and advocacy campaigns

 Strengthen the role of mass media in ensuring rule of law

 Ensure political neutrality among the public servants/officials.

 Ensure the provision of citizen charter in the public offices

 Promote strict monitoring and supervision towards the action of public officials

 Provide proper guidance and training to promote rule of law

 Strengthen reward and punishment system

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3.5 Exceptions to Rule of Law

It order to cope up with the need of practical government, a number of exceptions have been
engrafted on these ideals of rule of law provided be Dicey in modern democratic countries,
e.g., there is a universal growth of broad discretionary powers of the administration; many
administrative tribunals have developed; the institution of preventive detention has now
become the normal feature in many democratic countries. Nevertheless even after
incorporating certain exceptions the basic ideas of rule of law are still preserved and
promoted.

In India, dicey’s concept of rule of law cannot be said to be followed in strict sense, there are
certain exceptions provided under the Indian Constitution and other laws. For example:

 Existence of wide discretionary power to the executive-

President and governor of this state are given wide discretionary power in relation to certain
matters under the Indian Constitution. Under Article 72 and 161, the president and the
governor respectively have a prerogative to grant pardons, reprieves, respite or remissions of
punishment or to suspend, remit or commute the sentence of any person convicted of any
offence. Article 85 provides the president with discretion in relation to the prorogation of
either house of the parliament and the dissolution of the house of people. The governor on the
other hand has discretion in sending the report to the president under Article 356 of the
constitution and in reserving bills for consideration under Article 200.

Police which are a part of the executive are given wide power of arrest without warrant in
case of cognizable offences. Criminal courts in India have wide discretionary power in
providing sentences.

 Immunities and privileges-

Under Indian constitution equality before law doesn’t mean that the power of a private citizen
should be the same as public official. Public officials like ministers, local authorities, public
officers and others of the like have many powers, immunities and privileges which ordinary
citizens don’t have. For example-

17
 1. The President/Governor is not answerable to the court of law in discharge of his
executive functions.

2. No criminal proceedings whatsoever can be instituted against President or

Governor of state, while he is in office.

3. No civil proceedings in which relief is claimed can be filed against the President or
Governor except after an expiration of a 2 month notice that is served on him.

4. Under International laws, the visiting heads of state, heads of government,

ministers, officials and foreign diplomats who are posted in the country are not
subjected to jurisdiction of local courts in discharge of their official functions.

3.5 Landmark Cases:

In the famous case of Kesavananda Bharati Sripadagalvaru & Ors v State of Kerala &
Anr24 , the court propounded the principle of basic structure and held that any part of the
Constitution can be amended without modifying the basic structure of it.

In the case of Indira Nehru Gandhi v Raj Narain25 , the court decided that the ‘Rule of
Law’ is also a part of the basic structure of the Constitution and hence, it cannot be amended.

In the case of State of Bihar v Sonawati Kumari26 , the court held that as per the concept of
‘Rule of Law’, all the authorities operating within the State including executive government
is bound to obey the rules.

In the case of Bachan Singh v State of Punjab27 , the five bench judges comprising of
Justice Y Chandrachud, Justice A Gupta, Justice N Untwalia, Justice P Bhagwati and Justice
R Sarkaria, held that the concept of Rule of Law is free from arbitrary action and if any
action is done with arbitrary power then it will be considered as the denial of Rule of Law.
This case is also known as “Death Penalty Case”.

24
(1973) 4 SCC 225
25
1975 AIR 865
26
1961 AIR 221
27
AIR 1980 SC 898

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In the case of Som Raj v State of Haryana28 , the three bench judge of Supreme Court
comprising of Justice K Puttaswamy, Justice Raghunath Mishra and Justice M.M Punchhi,
held that the absence of arbitrary power is the absolute aim of the principle of rule of law
upon which directly the whole Constitution is dependent

In the case of ADM Jabalpur v Shivkant Shukla29 , popularly known as the Habeas Corpus
Case, is one of the most important cases of rule of law. In this case a question rose before the
court whether Rule of Law in India is apart from Article 21 of the Indian Constitution. Thus,
the five judge bench comprising of Justice A.N Ray, Justice Hans Raj Khanna, Justice M
Hameedullah, Justice Y.V Chandrachud and Justice P.N Bhagwati held that there is no rule
apart from Article 21 and there can never be a separate rule of law.

The Supreme Court extended the scope of Rule of Law in the case of Veena Seth v State of
Bihar30 , where the court stated that Rule of Law extends to the poor and the downtrodden,
ignorant and the illiterate, who constitute the majority of humanity in India. The court ruled
that the Rule of Law does not exist merely for those who have the means to fight for their
rights and often do so for the perpetuation of the status quo which protects and preserves their
dominance and permits them to exploit a large section of the community.

In the case of Union of India v Raghubir Singh31 , the court held that the principle of ‘Rule
of Law’ is a considerable degree which governs the lives of the people and regulates the
functions of the state from the decision of the superior courts.

In the case of Chief Settlement Commissioner Punjab v Om Prakash & Ors32, the Supreme
Court observed that in the present scenario, the authority of the law courts is to test the
administrative actions by the standard of legality.

28
1990 AIR 1176
29
1976 AIR 1207
30
AIR 1983 SC 339
31
1989 AIR 1933
32
1969 AIR 33

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The Supreme Court in the case of and S.G. Jaisinghani v Union of India Others33,
characterized the prerequisites of rule of law in a very lucid manner. Here the court observed
that the Rule of Law means that decisions should be made by the application of known
principles and such decision should be predictable and the citizen should know where he is.
But if a decision is made without referring to any principle then it is unpredictable and such
decision is the antithesis of a decision taken in accordance with the Rule of Law.

In the case of Supreme Court Advocates on Record Association v Union of India34, also
known as the “Second Judges Case”, the Supreme Court held that the absence of arbitrariness
is one of the important concepts of rule of law.

The Constitution Bench of the court in the case of Secretary, State of Karnataka and Ors v
Umadevi and Ors35, stated that “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 maintaining
and infringement of article 14 in requesting the ignoring of the need to agree to the necessity
of article 14 read with article 16 of the constitution”.

A.K Gopalan Vs State of Madras36 Also known as the Habeas Corpus case, the order of
detention passed during emergency was challenged in this case on the grounds that such order
is violative of the principles of rule of law which is the basic feature of the Indian
Constitution. The issue that was before the Supreme Court to decide was whether there is any
rule of law in India apart from Article 21 of the Constitution. The majority bench in the case
decided the matter in the negative while Justice khanna gave a dissenting Judgement.
He observed that the Rule of Law is accepted in all civilised society and is considered as a
symbol of society being free. He further observed that Rule of Law is the only means of
archiving the balance between individual liberty and public order. Hence he was of the
opinion that even if there was no such Article like Article 21 in the Indian Constitution the
state has no power to deprive a person of his life and liberty without the authority of law.

33
1967 AIR 1427
34
AIR 1994 SC 268
35
AIR 2006 SC 1806
36
AIR 1950 SC 27 ,
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 4. COMPARATIVE ANALYSIS IN U.S.A:

4.1 Rule of Law in U.S Constitution (America) :

More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a
series of essays promoting the ratification of the United States Constitution now known
as Federalist Papers. In explaining the need for an independent judiciary, Alexander
Hamilton noted in Federalism that the federal courts "were designed to be an intermediate
body between the people and their legislature" in order to ensure that the people's
representatives acted only within the authority given to Congress under the Constitution.

The U.S. Constitution is the nation's fundamental law. It codifies the core values of the
people. Courts have the responsibility to interpret the Constitution's meaning, as well as the
meaning of any laws passed by Congress. Federalism states further that, if any law passed by
Congress conflicts with the Constitution, "the Constitution ought to be preferred to the
statute, the intention of the people to the intention of their agents."

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative
power. It only supposed that the power of the people is superior to both; and that where the
will of the legislature, declared in its statutes, stands in opposition to that of the people,
declared in the Constitution, the judges ought to be governed by the latter rather than the
former. They ought to regulate their decisions by the fundamental laws, rather than by those
which are not fundamental."

The American democratic system is not always based upon simple majority rule. There are
certain principles that are so important to the nation that the majority has agreed not to
interfere in these areas. For instance, the Bill of Rights was passed because concepts such as
freedom of religion, speech, equal treatment, and due process of law were deemed so
important that, barring a Constitutional Amendment, not even a majority should be allowed
to change them.

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Rule of law is a principle under which all persons, institutions, and entities are
accountable to laws that are:

 Publicly promulgated
 Equally enforced
 Independently adjudicated and
 Consistent with international human rights principles.

The courts play an integral role in maintaining the rule of law, particularly when they hear the
grievances voiced by minority groups or by those who may hold minority opinions. Equality
before the law is such an essential part of the American system of government that, when a
majority, whether acting intentionally or unintentionally, infringes upon the rights of a
minority, the Court may see fit to hear both sides of the controversy in court.

Adopted to the concept of Rule of Law from medieval England, which was expressed as “A
government of laws, not of men”. The federal Constitution of 1787 changed the concept of
constitutional government and introduced the “Principle of Constitutional Supremacy”.
According to Article VI of the American Constitution, “Constitution should be the supreme
law of the land”. It can be observed from the famous case of Marbury v Madison37 that the
American Constitution and the power of judicial review are the extensions of rule of law. In
this case, the Justice Marshall held that an act of Congress contrary to the Constitution was
not regarded as a law. The major essentials of the American Constitution are Federalism,
Separation of Powers and Rule of Law. They are also referred as the heart of the American
Constitution as they contribute to achieve liberty, equality, order and justice.

There are mainly three basic principles of the American Constitution.

 The American Constitution requires its government to be politically responsible to

both the state and the people who are governed by it.

 The American Constitution believes that the legitimate expectation is the one which
originates with people and controlled by the people and the same principle is

37
5 US (1 Cranch) 137 (1803)

22
 described in the Preamble which states that the Constitution is established by the
people and not by the government.

 Political supremacy and identification of all laws with the legislature are hostile to
the American Constitution as it declares it be the supreme law of law.

5. CONCLUSION:

Rule of law is the fundamental principle of governance in any civilized democratic country. It
is the antithesis of arbitrariness. A democratic country like India prides itself on the rule of
law. When a crime is committed a process is followed. The perpetrator is arrested, contingent
on judicial sanction. Suspects are questioned. Evidence is collected. Interrogations are
conducted. A case is built up. The court examines the testimonies and evidence. The
defendant has a right to legal defense.

The judiciary after scrutinizing the whole case, based on the law, hands down its decision,
which can then be appealed against. In every civilized society, this process is undertaken, not
just because the criminal jurisprudence provides that the guilty is presumed to be innocent
until convicted, but because this is the only way to provide the system with legitimacy so as
to provide the arbitrary exercise of power.

The fundamental principle of the rule of law is that every human being, even if he is a
criminal, is entitled to basic human rights and due process. Encounter killings are the
complete denial of such due process which forms the essential part of rule of law. Observing
rule of law is the true basis of a democratic society. Without it democracy is nothing but an
empty phrase.

“At the heart of any system based on the rule of law, there is a strong judicial system,
independent and equipped with powers, financial resources, material and skills that are
necessary to protect human rights within the framework of administering justice”

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In developing democratic countries, the Judiciary has to play an important role if the law has
to keep pace with social needs. Such an approach is very pertinent in the field of legislation
and subordinate legislation. Law is not static, but dynamic and therefore the norms to control
it cannot be static. The role of the judiciary with the advancement in the thought process of a
human being had shifted its traditional role to a more participatory one to cater to the
changing needs of the society. Apart from the basic role, the judiciary is also concerned with
the function of acting as a final interpreter of the Constitution and other organic laws,
protector of Fundamental Rights of the citizens and guardian to keep necessary checks upon
the constitutional transgressions by other organs of the state.

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