RESEARCH PAPER

Name: Richa Mehta

Class: S.Y.B.L.S.
Div: A
Roll no.: 40
Subject: History Of Courts
Submitted to: Ms. Joshita Lamba
Topic: Establishment and Development of Rule of Law in India
 ESTABLISHMENT AND DEVELOPMENT OF RULE OF LAW
IN INDIA

Introduction

“Being democratic is not enough, a majority cannot turn what is wrong into right. In order to be
considered truly free, countries must also have a deep love of liberty and an abiding respect for
the Rule of Law.”1 The famous words given by Margaret Thatcher that clearly point towards the
importance of the Rule of Law in any politically democratic society. Or we would say any
society that is governed by a set of rules and regulations; written or maybe unwritten. As
mentioned by Kailash Rai, Rule of Law plays an important role in the administration of any
country as it provides the protection to the people against arbitrary action of the administrative
authorities.2 In other words, the term ‘rule of law’ indicates a State where its affairs are governed
by the laws and not by any arbitrary power or authority.

Theories on Rule of Law

There exist many different ways to perceive the rule of law. As believed by Dr. Garner, rule of
law simply describes the state of affairs in a country where the law is observed and order is
maintained.3 However, others think of it in a more precise manner. They gave more emphasis to
the theory provided by the renowned jurist, Albert Venn Dicey, usually cited as A.V. Dicey.

1
’Margaret Thatcher Quotes About Rule of law’,AZ Quotes, https://www.azquotes.com/author/14554-
Margaret_Thatcher/tag/rule-of-law
2
History Of Courts, Legislature & Legal Profession in India, (p. 142), Dr. K. Rai, 2013, Haryana: Allahabad Law
Agency.
3
Administrative Law, (p. 9), Dr. K. Rai, Allahabad Law Agency: Faridabad cited in History Of Courts, Legislature
& Legal Profession in India, (p. 142), Dr. K. Rai, 2013, Haryana: Allahabad Law Agency.

1
In accord to Mr. Dicey, Rule of law can be understood in three ways:
1. The first meaning of the Rule of Law is that, the Law of the land or country is the
ultimate superior and no other authority is above it. He opposes the influence of arbitrary
power and unrestricted authority given to the government as that may affect the
supremacy of law. And he suggested that any man who is punished, should only be
punished for a breach of law and for no other reason whatsoever before the ordinary
courts with the ordinary procedure.

2. The second meaning of the Rule of Law is that no man is above law. Everyone is equally
subjected to the provisions of law and breach of it would result in the same kind of
punishments to everyone. This implies to the government and its officials too and to the
extent that there won't be any immunity to them too. Law would treat everyone,
disregarding their ranks or positions or any other factors, equally.

3. The third meaning of the Rule of Law is that the decisions made in the judicial
proceeding of particular cases brought before the court eventually resulted in construction
of the Constitution and its general principles.

But the way every perspective is appreciated by some and criticized by the other, this theory of
Mr. Dicey too was criticized, mainly for the following reasons:
1. Mr. Dicey was against providing discretionary powers to governmental authorities and
administration. He was of the view that giving unaltered powers would bring arbitrariness
in the system and it will hinder individual freedom.
But this view of Mr. Dicey was criticized because in the present world the function of a
State is not restricted or limited just to defense, maintenance of law and order and
collection of taxes. In the times of emergence of the welfare State, the role of the State
has increased to a great extent. Today it performs several social and economic functions
also. These may be related to trade and commerce or making provisions for improving
health and educational institutions. Thus, without discretionary powers, the State won't be
able to perform its duty in a full-fledged manner. His opinion appears to be outdated as
he was not able to take into account the growing functions and duties of the Government.

2
 Also, he was not able to acknowledge the distinction between arbitrary power and
discretionary power. While arbitrary power may fall against the rule of Law, discretionary
powers, when exercised under the guidelines provided by the statutes, can prove to be
beneficial for the society.

2. Secondly, Dicey believed that law should be applicable to everyone equally without any
discrimination on any basis. He was of the view that all the people would be tried by the
ordinary court and under the ordinary procedure. He criticized giving any immunity to
any person just because they hold a legitimate office of authority.
But the critics viewed that there should be a system of separate courts for separate issues,
as is prevailing in many countries like the U.S.A., India, France and also his motherland,
England. For instance, offenses against military law or naval law are tried by ‘Court
Martial’ and ‘Ecclesiastical courts’ for such cases. Primarily, these separate Courts and
tribunals help in delivering speedy justice.
Dr. Garner suggested that whatever the matter may be, a case or suit related to
administrative bodies should never fall in the ambit of ordinary jurisdiction.4
Wade and Phillips correctly stated that the special cases should be referred to special
courts or tribunals as there too, cases are heard and understood from both the sides and
their decisions are impartial and independent. But he also mentioned that appeals from
these courts could go to the ordinary courts where a question of law arises. According to
him the most important aspect is that the decisions could be impartial and the ones giving
justice should not be influenced or under pressize of the executive.

3. The third meaning which says that the Constitution is a result of judicial decisions held in
any private case by the courts, is criticized too. This is because this theory got its base
only from England where an unwritten Constitution exists but countries like India, the
U.S. don't work on the same principle. The way rule of law is perceived in England and
that in the U.S. and India is different. The Constitution in England is governed by the
Constitution but the case is contrary in India where the Constitution stands supreme and

4
Administrative Law, (p. 11), Dr. K. Rai, Allahabad Law Agency: Faridabad cited in History Of Courts, Legislature
& Legal Profession in India, (p. 145), Dr. K. Rai, 2013, Haryana: Allahabad Law Agency

3
 all the laws are derived from the Constitution. Any law which stands contrary to the
Constitution is declared void.

Despite all these errors, the role of Mr. Dicey cannot be ignored in pointing out the attention of
scholars and authorities towards the unrestricted powers provided to the executive. He believed
that the executive too should be kept in check and all the actions must be backed by law and not
arbitrarily made. Undoubtedly, his work in establishment and development of the concept of fair
justice cannot be denied.5

RULE OF LAW IN INDIA

Establishment of Rule of law in India was not an easy process. It took years of struggle and
complications. This concept was introduced during the British East India Company’s rule in
India. But it went through many ups and downs. It became an everyday job for the partial
establishers of ‘rule of law’ in India.
It all started in the period when India was under the rule of the British East India Company. The
members of the Company were merchants and didn’t possessed any sort of legal knowledge.
Initially, they came to India just with the intention of trading. But slowly and gradually they
became the executive and judiciary of our country.
But apparently, East India Company never wanted the judiciary to acquire independence from
executive control because if that happens, the judiciary might go against the Company and grant
judgments that may prove to be unfavorable for them. To avoid any such situation, the Company
always tried to keep the judiciary and its matters under the executive control. They treated the
judiciary subservient and gave very little importance to it. The ones who were willing to make
the judiciary independent, and establish rule of law were dismissed from the office and were
criticized for their moves. For instance, John Dolben, the Judge Advocate of the Court of
Judicature in Madras, was dismissed from his position. This was because he was a fearless
person and doesn't hesitated to go against the Company for doing his job sincerely. This created

5
History Of Courts, Legislature & Legal Profession in India, (p. 146), Dr. K. Rai, 2013, Haryana: Allahabad Law
Agency

4
an issue between the Governor and him. Consequently, John Dolben was dismissed on the
charges of taking bribes in the year 1694.

In the Presidency town of Bombay too, there were multiple instances where the judges were
removed from their office because of their bold steps against the executive. During the period of
1675, Niccolls held the office of judiciary. Under his official capacity, he made some strong
moves which went against the Company. At first the Court attached the lands of Robert Fisher.
The Bombay Council directed Niccolls, the judge of the Court of Judicature, to remove the
attachment. But he refused to do so as it was against his oath. This enraged the Bombay Council
and they were in the search of an opportunity to punish him. Soon they got the opportunity when
Niccolls criticized a verdict given by the jury in a case. The Bombay Council used this move of
Niccolls against him and suspended him from the office. Likewise was the case of Dr. St. John,
the Judge Advocate of the Admiralty Court of Bombay. He had conflicts with the then Governor
of Bombay, Child. This was because Dr. St. John on one hand was an admirer of the judiciary
while Child on the other hand had no respect for law. He too desired to dominate the judiciary
and didn't allow the rule of law to flourish in India. This led to instances of conflict between the
executive and judiciary. Consequently, the Bombay Council reduced the power of Dr. John and
limited it to mercantile and maritime cases only. A new Court was then established with Vaux as
its judge to deal with civil and criminal matters. This appointment of Vaux too was criticized by
Dr. John on the grounds that Vaux was not an expert in law and was a member of the Bombay
Council. Thus, the conflict between the Bombay Council and Dr. John enlarged and finally he
was removed from his office completely in 1687. Besides, the Chief Justice Parker and Chief
Justice Braddy II were also dismissed for their quarrel with the Bombay Council which was the
result of their refusal to subordinate their judgments to the demands of the executive.

Until this, it was evident that despite the efforts from the judiciary to establish an independent
and honest judicial system, the executive didn’t gave any opportunity to the judiciary to grow
and come on the same footing as that of executive.
But the scenario changed a bit in the year 1726. In this year, the Charter of 1726 was issued by
the British Crown under which Mayor's Court was to be established in each Presidency town i.e.,
Bombay, Madras and Calcutta. This establishment was an attempt to separate the executive from

5
the judiciary as under this Charter judges of the Mayor’s court were not to be appointed by the
executive. But this didn't last for long because conflicts started arising between the Mayor's
Court and the Governor and Council of the Presidencies. They used to interfere in the workings
of the judiciary and weren't allowed to function efficiently. Consequently, a new Charter was
issued to solve this problem. This was the Charter of 1753. But this Charter did not resolve the
issue in actuality and rather curtailed the powers of the judiciary again. As by this Charter, the
power to appoint the judges of the Mayor's court was again vested in the hands of the executive
and thus, making the judiciary subordinate to the executive again.

Even the Chief Justice of the Supreme Court, established in Calcutta under the Charter of 1774,
Mr. Impey was irritated due to the interference of the Governor and Council in the workings of
the Supreme Court. This conflict too led to the reduction of powers and jurisdiction granted to
the judiciary.

Under the rule of the East India Company, the judiciary never got an independent status and rule
of law couldn't thrive. However, with the enactment of the Charter Act of 1853, the East India
Company’s monopoly in India was abolished. After the 1857 revolt, Government of India Act
1858, was passed. Under this Act, the British Parliament abolished the Company completely and
took the responsibility to rule India directly. After this move, there was a significant change in
the way the judiciary and rule of law was perceived. Multiple attempts were made for
establishing and maintaining the rule of law and sound administration in the country. The Indian
High Courts Act, passed in 1861, was a move in the same direction.6 Under this Act, the British
Crown could now set up the High Courts in the Presidency Towns. A Charter was then issued in
May,1862 and June,1862 for the establishment of High Court in Calcutta and High Courts in
Bombay and Madras respectively. These High Courts were given wide jurisdiction. Further, Law
Commissions were appointed for the purpose of Law reforms. These Law Commissions played
an important role in modernisation of Indian laws. Thus, the condition of the judiciary and Rule
of Law started improving under the Crown’s rule but it was undoubtedly not satisfactory.

6
"Indian High Courts Act 1861". GKToday, 17 October 2011, Retrieved 20 March 2017 cited in Indian High
Courts Act 1861, Wikipedia, https://en.wikipedia.org/wiki/Indian_High_Courts_Act_1861

6
After independence, Rule of Law started deepening and widening its roots in the Indian Judicial
System. This concept has been further developed by the International Commission of Jurists met
in 1959 at New Delhi.7 They understood that rule of law does not restrain itself just to
safeguarding the society from the exploitation from the executive but also to the existence of
effective government capable of maintaining law and order.

In the same context, Justice Bhagwati, the former Chief Justice of India had a more detailed
view. He righteously stated that one cannot term any law which was enacted by the Parliament as
Rule of Law without knowing its nature. The laws which are to be followed by the masses
should be in good will and not just a political agenda. These laws must not be arbitrary or
irrational and must satisfy the test of reason.

Nowadays, with the growing awareness and inclusion in judicial authorities, ‘Public Interest
Litigations.’ has emerged as a necessary pillar of Rule of Law. However the provisions of Rule
of Law have not been incorporated in the Constitution of India but it has been referred to by the
judges in their verdict time and again.

Further, the Preamble of the Constitution of India provides liberty, equality, and fraternity to all
the individuals. Along with it, Part III of the Constitution of India guarantees the Fundamental
Rights.8 These Fundamental Rights are not absolute and subject to reasonable restrictions but any
law passed by the Parliament should indeed be in compliance with the Constitution and if found
otherwise, are declared void. The judiciary has been made the guardian and protector of the
Constitution. Articles 141, 142, 144, 32, 136, 226, 227,129, 215 can be mentioned as examples
of the provisions made for the maintenance and protection of rule of law in India.

7
History Of Courts, Legislature & Legal Profession in India, (p. 146), Dr. K. Rai, 2013, Haryana: Allahabad Law
Agency
8
Constitution of India, Wikipedia, https://en.wikipedia.org/wiki/Constitution_of_India

7
CONCLUSION

It is to be understood that concepts like rule of law are ever evolving. So they should not be rigid
and rather stay flexible. There may be new interpretations of this concept anytime soon. But the
important part is that its essence should not be lost. Establishment of Rule of Law in India was
not at all an easy task. Not just this, the creation and enactment of the Constitution too was an
exhaustive journey. But finally, when we are in the era of a sound judicial system, it is a
responsibility of every citizen to respect and adhere to the judiciary. Government should not
make any provisions against the rule of law. And more importantly, the judiciary should not use
its powers in the wrong way. It should not make moves which are ultra vires to its jurisdiction.
Conclusively, all the organs of the government and the citizens of the country should together let
the rule of law and an independent judiciary flourish in the country in the right manner.

8
 BIBLIOGRAPHY

1. https://www.azquotes.com/author/14554-Margaret_Thatcher/tag/rule-of-law
2. https://en.wikipedia.org/wiki/Indian_High_Courts_Act_1861
3. https://en.wikipedia.org/wiki/Constitution_of_India
4. https://www.india.gov.in/my-government/constitution-india
5. https://main.sci.gov.in/pdf/Museum/m2.pdf
6. https://en.wikipedia.org/wiki/Judiciary_of_India
7. https://en.wikipedia.org/wiki/John_Dolben_(politician)
8. https://www.legalserviceindia.com/legal/article-719-rule-of-law.html#:~:text
=The%20term%20'Rule%20of%20Law,even%20by%20the%20constitution
al%20amendment.
9. https://www.ijlmh.com/wp-content/uploads/2019/03/Rule-of-Law-and-its-A
pplication-in-the-Indian-Polity.pdf
10.http://socialsciences.scielo.org/scielo.php?script=sci_arttext&pid=S1806-64
452007000100001
11.https://en.wikipedia.org/wiki/Warren_Hastings
12.https://en.wikipedia.org/wiki/A._V._Dicey
13.http://www.lscollege.ac.in/sites/default/files/e-content/Rule%20of%20Law.p
df
14.https://www.brainyquote.com/topics/rule-of-law-quotes
15.http://www.notable-quotes.com/l/law_quotes.html