DR. B.R.

AMBEDKER NATIONAL LAW UNIVERSITY, SONEPAT

RULE OF LAW IS THE ESSENCE OF CONSTITUTION OF

INDIA: AN ANALYSIS IN THE LIGHT OF BASIC
STRUCTURE DOCTRINE

Submitted by: Harsh Jajam Submitted to: Dr. Amit Guleria

Roll no: 2401043 Assistant Professor
Section: A DBRANLU, Sonepat
Batch: 2024-2029
Group: E
Course: Legal Methods and Research Methodology
Course Code: BL-105

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 INDEX

S. No Topic Page No.

1 ACKNOWLEDGEMENT iii
2 INTRODUCTION iv - x

1. WHAT IS LAW?
1.1 Features of law
1.2 Functions of law

2. WHAT IS RULE OF LAW?

2.1 Importance of Rule of Law

3. WHAT IS BASIC STRUCTURE

DOCTRINE?
3.1 Criticism around Basic Structure Doctrine

3 CONCLUSION xi
4 BIBLIOGRAPHY xii

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 ACKNOWLEDGEMENT
I Harsh Jajam would like to express my heartfelt gratitude to the respected Vice Chancellor
Dr. Archana Mishra for giving me the opportunity to work on this project. I would also like to
thank Dr. Amit Guleria, Assistant Professor Legal Methods and Research Methodology, who
provided me utmost support and guidance while working on this project.

I also feel grateful towards my parents, batchmates, friends and seniors for their valuable
suggestion and feedback.

DATE: 2/11/2024 Harsh Jajam

2401043

Batch: 2024-2029

1st Semester

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 INTRODUCTION

1. WHAT IS LAW?

In simple words, Law is set of rules and regulations made by legislation or an

authority vested with the power to make such rules which are binding and enforced
among members to administer justice and regulate social behavior.
We can also say that law is a body of principles recognized and applied by the states
in the administration of justice.
Law is the concept just like ‘time’ this is the most used concept in our daily life. Many
philosophers and jurists have at times tried to give to the point definitions to this
concept, some with a view to giving a general definition that would encompass all
uses of the concept. Some on the other hand have tried to give law territorially concise
definitions.
In a broader sense, law is considered as the general conscience of the community on
issues which cannot be left to individual choice. It is further defined as the general
rule or measure of acts whereby man is induced to act or restrained from acting.
Different viewpoint on the meaning of Law:
o According to N.L. Lewellyn, ‘What officials do about dispute is the law’.
o As per Herman M. Gluckman, law means the whole reservoir of rules in
which judges draw for their decision.
o As per John W. Salmond, Law is the body of principles recognized and
applied by the state in the administration of justice.
o The Encyclopedia of Britannica says that law comprises of all principle, rules,
enactments that are applied in courts and enforced by the state.
1.1 Features of law

➢ Law is a body of rules: For a layman, law is contained in a big book but for a
lawyer it is a body of rules, found in some documents like the Constitution,
statutes, and court decisions. It is a collection of all the do’s and don’ts or
norms in a society.
➢ Law is man-made: Laws are made by the legislature or other authorized law
maker authority, unlike the older system, when laws evolved over a period of
time from customs.

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 ➢ Law is dynamic in nature: Law can be amended and reformed. It is not static.
It changes and gets better with time in order to better secure and achieve its
objectives in a society. Such change can be caused by social, political and
economic situation in a country.
➢ Law has an element of coercion: A breach of law attracts sanction and these
are enforced through organized means such as the police, courts, etc. If there is
no sanction attached, then it is no more a law but a mere moral advice.
➢ Law has a territorial limitation: Laws are generally applicable to a state’s
territory, embassies, and diplomats abroad, as well as to objects that carry the
state’s flag.

1.2 Functions of law

➢ Maintaining order and stability: Laws provide guidelines for acceptable

behavior, helping to prevent chaos by regulating societal conduct. This helps
to maintain peace and order by discouraging harmful actions.
➢ Protecting rights and liberties: Legal systems protect individual rights and
freedoms by ensuring that citizens can exercise them without interference
from others or the government. This includes safeguarding civil, political,
economic, and social rights.
➢ Promoting justice: The law ensures fairness and equality, ensuring that people
are treated justly and that punishments or rewards are proportionate to actions.
It aims to rectify wrongs and balance competing interests.
➢ Facilitating social change: Law can be a tool for shaping or advancing social
change by promoting values such as equality, sustainability, or public health.
Governments my enact laws to address social issues and improve the overall
quality of life.
➢ Promoting innovation and progress: Law protects inventions, discoveries, and
creative works through patents, copyrights, and trademarks, encouraging
innovation and economic growth.

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 2. WHAT IS RULE OF LAW?

It implies that every person is subject to the law, including people who are law-
makers, law enforcement officials and judges. Simply it means ‘supremacy of law’.
This idea is antithesis to the Austin’s theory of sovereignty 1. The rule of law is
defined in 2 as “the mechanism, process, institution, practice, or norm that supports
the equality of all citizens before the law, secures a non-arbitrary form of government,
and more generally prevents the arbitrary use of power”.
Article 14 3 of the Indian Constitution codifies the rule of law. It states that a State is
not governed by not and representative or by the people but it is governed by the law
of the particular country. It has a wider meaning that everyone is equal among law and
also the ones who are making it.
Originator of ‘Rule of Law’ was Sir Edward Coke, the Chief Justice in James I Reign.
Further popularized in 1885 by A.V. Dicey. This policy found support among ancient
thinkers such as Aristotle and Plato.
Rule of Law is one of the most precious features of the basic structure of the
Constitution of India and it cannot be removed or changed by Parliament. This
concept safeguards the freedoms of the people.
The rule of law is based on certain principles which are supremacy of law, equality
before the law, fairness in the application of the law, separation of powers,
participation in decision-making, and to avoid the overuse of power by the state or the
government.
The rule of law has its own history and it was developed by A.V. Dicey. Magna Carta
is the legal and spiritual ancestor of the rule of law. It was declared basic structure of
constitution in Indira Nehru Gandhi VS Raj Narain4.

2.1 Importance of Rule of Law

It is universally acknowledged that the rule of law is a cornerstone of our society

under one country two systems. It is a fundamental principle. Reasons by which rule
of law is considered important are as following:

1
Austin’s theory of Sovereignty: Law is a command of the sovereign baked by a sanction.
2
Encyclopaedia Britannica.
3
Article 14: Right to Equality; The state shall no deny to any person equality before the law or the equal
protection of the laws within the territory of India.
4
Indira Nehru Gandhi VS Shri Raj Narain & Anr. AIR 1975 SUPREME COURT2299, 1976 2 SCR 347.

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 • Helps in providing justice, opportunity, and peace.
• Pushes the country’s economy and helps the state to grow financially.
• It aligns with the UN’s Human Rights agenda.
• It safeguards the freedoms of everyone in the state and provided
accountability.
• It ensures that all people are treated equally before the law.
• It prevents the overuse of the powers.

3. WHAT IS BASIC STRUCTURE DOCTRINE?

The essential construction principle is a custom-based regulation legitimate

convention that the constitution of a sovereign state has specified qualities that can’t
be deleted by its lawmaking body. The teaching is perceived in India, Bangladesh,
Pakistan, and Uganda. It was created by the High Court of India in a progression of
protected regulation cases during the 1960’s and 1970’s that finished in Kesavananda
Bharti VS Territory of Kerala5, where the convention was officially embraced.
Bangladesh is maybe the main overall set of laws on the planet which perceives this
tenet with a communicated, composed and inflexible established way through Article
7B on its Constitution.
In5, Equity Hans Raj Khanna propounded that the Constitution of India has specific
essential elements that can’t be modified or annihilated through changes by the
Parliament of India. Key among these “essential highlights”, as clarified by Equity
Khanna, are the crucial privileges ensured to people by the constitution. The principle
subsequently frames the premise of the force of the High Court of India to audit and
strike down established revisions and acts authorized by the Parliament which
struggle with or look to modify this “fundamental construction” of the Constitution.
The essential elements of the Constitution have not been expressly characterized by
the legal executive, and the case of a specific component of the Constitution to be a
“fundamental” still up in the air by the Court for each situation the precedes it.
The High Court’s underlying situation on protected revision had been that any piece
of the Constitution was amendable and that the Parliament may, be passing a
Constitution Correction Act in consistence with the prerequisites of Article 368,

5
His Holiness Kesavananda Bharati Sripadagalvaru & Ors. VS State of Kerala & Anr. (Writ Petition (Civil)
135 of 1970)

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 change any arrangement of the Constitution, including the basic freedoms and Article
368 6.
In 1967, the High Court switched its previous choices in 6 . It held that Essential
Freedoms remembered for Part III if the Constitution are given a “supernatural
position” and are past the range of Parliament. It likewise proclaimed any correction
that “removes or compresses” a Central Right presented by Part III as illegal. In 1973,
the essential design precept was officially presented with thorough lawful thinking in
Equity Hans Raj Khanna’s definitive judgement in the milestone choice of 5 . The
High Court already had held that the force of Parliament to alter the Constitution was
unfettered. In any case, in this milestone managing, the Court mediated that while
Parliament has “wide” abilities, it didn’t have the ability to annihilate or undermine
the essential components or central elements of the constitution.
The basic structure doctrine was rejected by the High Court of Singapore and Federal
Court of Malaysia but later on it was accepted by the Federal Court of Malaysia.
Also, in Supreme Court of Belize it was first accepted but later on got quashed.
In straightforward terms, the essential design regulation proposed that specific pieces
of the Indian Constitution structure the center, have natural worth and subsequently,
they can’t be adjusted or eliminated from the Indian Constitution. Such parts structure
the premise and mirror the standards of the producers of the Constitution. Not just
that, they likewise illuminate the fundamental principles of constitutionalism in India
and consequently, alluded to as the essential construction.
The convention has been formed by the Indian legal executive through different cases
as cited below:
• His Holiness Kesavananda Bharati Sripadagalvaru & Ors. VS State of Kerala
& Anr. (Writ Petition (Civil) 135 of 1970) 5: This case turned out to be the
longest judgement in the history of Indian legal system and also laid the
foundation of basic structure doctrine. The fundamental design might be said
to comprise of the accompanying highlights:
a) Incomparability of the Constitution
b) Conservative and vote based type of government
c) Mainstream character of the Constitution

6
I.C. Golaknath and Ors. VS State of Punjab and Anrs. 1967 AIR 1643, 1967 SCR (2) 762.

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 d) Detachment of abilities between the lawmaking body, the chief and the
legal executive
e) Government character of the Constitution.

The above structure is based on the fundamental establishment, i.e., the

respect and opportunity of the person. This is of incomparable significance.
This can’t by any type of change by annihilated.

• I.C. Golaknath and Ors. VS State of Punjab and Anrs. 1967 AIR 1643, 1967
SCR (2) 762 6: In the milestone judgement, the Constitution (Seventeenth
Amendment) Act, 1964 was addressed after the Punjab Security and Land
Residencies Act.1953 limited the candidate from holding in excess of thirty
sections of land. The Solicitors held the resolution to be violative of Article 14
and Article 19(1)(g) since they were not permitted to hold extra land and
resultantly, couldn’t lease this extra land causing them financial misfortune.
Here and 11 judge bench was made to arbitrate the issue. In a proportion of
6:5, the larger part view held that the principal privileges couldn’t be corrected
in any way.
• Indira Nehru Gandhi VS Shri Raj Narain & Anr. AIR 1975 SUPREME
COURT2299, 1976 2 SCR 347 4 : This case came after the 2 years of the
landmark judgement in 5 , which laid down the foundation of basic structure
doctrine in India by holding that the specific parts in the Indian Constitution
cannot be amended. The realities were with the end goal that the Allahabad
High Court had discredited the solicitor's political decision inferable from
defilement and misbehaviours. As an outcome, the Parliament passed the 39th
Constitutions Amendment Act to discredit the judgment. The amendment gave
that the President, the Vice President, the Prime Minister and the Speaker of
the Lok Sabha couldn't be exposed to the legal survey, accordingly
invalidating the impact of the Allahabad High Court judgment. In the end, the
Alteration was unavoidably tested battling whether it was admissible to
invalidate the impact of the judgment and furthermore influence the system
concerning elections. The High Court held that free and fair election’s
structure part of the fundamental design teaching and subsequently, the
condition was held to be invalid. Further, the Court added a couple of
additional components to the teaching, one of which was a majority rules

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 system inferring free and fair elections. Different components included
judicial review, rule of law and Article 32 giving powers to Supreme Court.

3.1 Criticism around the Basic Structure Doctrine

The basic structure doctrine is frequently condemned for the explanation that it
doesn't track down its underlying foundations in the Constitutional text. No
arrangement of the Constitution, neither explicitly nor impliedly, examines the
essential design. The critics accept that the Constitutional value of sovereignty of the
people is the supreme power, which vests with the fairly chosen government. Any
judgment upsetting such force of individuals will accordingly be against the soul of
the Constitution. The Constitution stresses on the partition of abilities among the
functionaries laid out thereunder. However much the lawmaking body doesn't have
the ability to pen down the decision of a case, the legal executive likewise doesn't
have the ability to proclaim any Constitutional amendments void.

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 CONCLUSION
Rule of Law remains as an essential mainstay of the Indian Constitution, shielding
popularity-based standards, key privileges, and the division of abilities. It guarantees that all
people, paying little heed to position or power, are dependent upon a similar legitimate
structure and responsible to the law, which maintains equity and uniformity. This rule finds
its definitive security through the Basic Structure Doctrine, a legal shield presented by the
Supreme Court in the milestone case Kesavananda Bharati v. Territory of Kerala (1973) 5.
As per this tenet, while Parliament holds huge power to revise the Constitution, it can't
modify its "Basic Structure," which incorporates Rule of Law.

Rule of Law exemplifies the pith of constitutionalism by controlling erratic administration,

commanding government responsibility, and getting the privileges of residents against any
infringement by the state. The Basic Structure Doctrine further guarantees that amendments
can't sabotage major parts of a democracy, secularism, and individual opportunities revered in
the Constitution. This standard has assisted India with safeguarding its vote-based ethos
through testing times by keeping a relentless obligation to rule of law, hence keeping any
authority from upsetting the sacred equilibrium/constitutional balance.

Fundamentally, Rule of Law and the Basic Structure Doctrine act as one to strengthen the
Constitution's persevering through values, empowering India's popularity-based system to
adjust to change without undermining its center standards. Together, they encourage a lawful
and moral structure that focuses on equity, equity, and responsibility, fundamental for a
working majority rules government. This harmonious connection between Rule of law and
the Basic Structure Doctrine features the Indian legal executive's job as the watchman of
sacred respectability, guaranteeing that the Constitution stays a living report, versatile to
change yet immovable in its central goals.

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 BIBLIOGRAPHY
Sites Visited Last Visited
Vajiramandravi.com 2/11/2024
iPleaders Blog 1/11/2024
Indian Law Institute 30/10/2024
Britannica.com 2/11/2024
eCourt 2/11/2024

• Cases Cited:
1) Indira Nehru Gandhi VS Shri Raj Narain & Anr. AIR 1975 SUPREME
COURT2299, 1976 2 SCR 347 4.
2) His Holiness Kesavananda Bharati Sripadagalvaru & Ors. VS State of Kerala &
Anr. (Writ Petition (Civil) 135 of 1970)5.
3) I.C. Golaknath and Ors. VS State of Punjab and Anrs. 1967 AIR 1643, 1967 SCR
(2) 7626.
• Books, Journals, Magazines & Maxims
1) The Basic Structure of the Indian Constitution compiled by Venkatesh Nayak.
2) Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’, Constitutional
Transformations and The Future of Political Progress in India by Satya Prateek.
3) Constitutional Basis for Basic Structure Doctrine in India: Effects and
Applicability by Dr. N. Sathish Gowda
4) Basic Structure Doctrine by Vijaydeep Munjankar.

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