RULE OF LAW

ANU SOLANKI KAMBLE

Plato - “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“.

Aristotle - "law should govern and those in power should be servants

of the laws." 
 Essence

“BE YOU EVER SO HIGH, THE LAW IS ABLOVE

YOU.”
 Background*

 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 rule of law is one of the pillars of modernity and widely considered
necessary for sustained economic development, implementation of
democracy and the protection of human rights. 
 The rule of law has a history and one of the features of the history is the
manner in which the concept has been re-interpreted over time.
 Those expression may referred to the doctrine, which some may say it is
an ideology about how the government acts.
 Historical Emergence:
From Rule by Man to the Rule of Law (Doctrine)
Based on Ancient Greek in the West, the best form of
government is rule by man such as Plato's Philosopher
King, or rule by law which was initially regarded as second
best option.

However it is later been recognised as the most realistic

option by Aristotle, who conducted an examination of
numerous Greek constitution before coming to this
conclusion.

The virtuous citizens in a virtuous society was seen as a

mean by which to rule rather than to constraint on the king
though in The Laws Plato, the law should be the master of
the government to restrain potential depots.
Meanwhile, in political practice, law existed to order and
regulate human affairs and to allow citizens to make
choices for transgression.

In short, despite doctrinal assertions that the king was subject to

the law and the argument that no Prince should rule without
laws; the translation of this idea into an institutional
arrangement whereby it might actually be enforceable took
several centuries, during which there were notable reverses of
course, and also powerful voices opposed to limiting a sovereign,
particularly a monarch, by law (Hobbes )
 Historical origin

The origins of the Rule of Law theory can be traced back to the Ancient
Romans during the formation of the first republic; it has since been
championed by several medieval thinkers in Europe such as Hobbs,
Locke and Rousseau through the social contract theory.
Indian philosophers such as Chanakya have also espoused the rule of
law theory in their own way, by maintain that the King should be
governed by the word of law.
The formal origin of the word is attributed to Sir. Edward Coke, and is
derived from French phase ‘la principe de legalite’ which means the
principle of legality. 
Sir Edward Coke, the Chief Justice of King James I’s reign maintained
that the King should be under God and the Law and he established the
supremacy of the law against the executive and that there is nothing
higher than law. 
 Introduction*
The expression 'Rule of Law' has been derived from the French phrase 'la
principle de legalite', i.e. a Government based on the principles of law. 
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. A county that
enshrines the rule of law would be one where in the Grundnorm[i] of the
country, or the basic and core law from which all other law derives its
authority is the supreme authority of the state.
The basis of Administrative Law is the 'Doctrine of the Rule of Law'.  It was
expounded for the first time by Sri Edward Coke, and was developed by Prof.
A.V. Dicey in his book 'The law of the Constitution' published in 1885.
Dicey’s writings about rule of law are both influential and enduring to the
legal committee especially judges as well as legal practitioner.
According to Prof. Dicey, rules of law contains three principles :-
a. Supremacy of Law
b. Equality before Law and
c. Predominance of Legal Spirit
Dicey’s understanding of legal system of England
(based on rule of Law)
No person is punishable except for a breach of law
in the ordinary manner before the ordinary

There is no man above law, that every person regardless of

position or condition, is subject to the ordinary law of the
realm and amenable to the jurisdiction of the ordinary
tribunals, or equality before the law and this excludes
exemptions of officials or others from duty to obey the law
which governs citizen.

The general principle of the constitution is based on the

decision made by the court especially in determining the
rights of the individual specifically regarding the cases
brought to the court.
 1. Supremacy of law*

 no man is punishable or can lawfully be made to

suffer except for a distinct breach of law established
in the ordinary legal manner before the ordinary
courts of the land.
It implies that a man may be punished for .a breach
of law. but cannot be punished for anything else. 
It is opposed to the influence of arbitrary power and
wide discretionary power.
The law makers need to give reasons that can be
justified under the law while exercising their powers
to make and administer law
 *

DUE PROCESS - It is the legal requirement that the state must respect all
of the legal rights that are owed to a person and laws that states enact must
confirm to the laws of the land like - fairness, fundamental rights, liberty
etc. It also gives the judiciary to access the fundamental fairness, justice,
and liberty of any legislation.

 PROCEDURE ESTABLISHED BY LAW - It means that a law that is
duly enacted by legislature or the concerned body is valid if it has followed
the correct procedure. Say a law enacted by Indian legislature. Article 21 of
Indian Constitution says that- 'No person shall be deprived of his life or
personal liberty except according to procedure established by law'. In
India, there is no mention of the word 'Due Process'. A strict literal
interpretation of Procedure established by Law give the legislative
authority an upper hand and they may enact laws which may not be fair
from a liberal perspective
 2. Equality before law*

No man is above law

Every man whatever be his rank or condition is subject to the
ordinary law of the realm and amenable to the jurisdiction of the
ordinary tribunals.
Prof. Dicey states that, there must be equality before the law or
equal subjection of all classes to the ordinary law of the land.
the principle of equality before the law seeks to ensure that the law
is administered and enforced in a just manner. It is not enough to
have a fair law but the law must be applied in a just manner as well. 
This doctrine has been also included in the Indian Constitution in
the form of Article 14. 
Government should be conducted within a framework of recognized
rules and principles which restrict discretionary powers. 
 3. Predominance of Legal Spirit*

Constitution guarantee rights such as basic human rights or

fundamental rights- it is not enough to have those rights in the
book of law- they need to be effectively implemented in a court of
law
Rule of law establishes an effective control over the executive
and administrative power.
The courts are the enforcers of the rule of law and they must be
both impartial and free from all external influences. Thus the
freedom of the judicial becomes an important pillar to the rule of
law.
Union of India v. Raghubir Singh that it is not a matter of doubt
that a considerable degree that governs the lives of the people
and regulates the State functions flows from the decision of the
superior courts.
 Criticism of Dicey’s theory

He assumed that the law is relatively clear and fixed; whereas in fact this
contradicted with condition in England at that time.
His doctrine is formal, partly political, more facultative and not substantive.
Another problem with this view is that the theory did not provide a way to
distinguish between regimes that were democratic and those who abused the
human rights.
In the formal sense, this model is compatible with a large number of political
regimes including the regimes with the unjust and discriminatory rules and
law, such as apartheid in South Africa and even Nazis in Germany.
Such rules and order were not compatible with one of the universalistic
criteria of the modern world, which is equality.
The concept of the rule of law was criticized as an ideological mask: The rule
uses the rhetoric of equality before the law and impartiality to cover the
underlying inequalities and exploitation.
 Rule of Law at International level

The rule of law has been a give a new substantive twist

where the United Nation insist on the adoption of
certain substantive arrangements to all aspects
including political which is said to be universal and
applies to all states.
There should be a standard or the government will
continue to treat the citizens according to their whims
and this standard should not be confused with
description of legal and political realities for
international standard which have often been abused.
INDIAN SCENE
 Tenets of Rule of Law

The separation of powers between the legislature, the executive and the judiciary.
The law is made by representatives of the people in an open and transparent way.
The law and its administration is subject to open and free criticism by the people,
who may assemble without fear.
The law is applied equally and fairly, so that no one is above the law.
The law is capable of being known to everyone, so that everyone can comply.
No one is subject to any action by any government agency other than in accordance
with the law and the model litigant rules, no one is subject to any torture.
The judicial system is independent, impartial, open and transparent and provides
a fair and prompt trial.
All people are presumed to be innocent until proven otherwise and are entitled to
remain silent and are not required to incriminate themselves.
No one can be prosecuted, civilly or criminally, for any offence not known to the
law when committed.
No one is subject adversely to a retrospective change of the law.
 Theoretical application in India

Indian adopted the Common law system of justice delivery

which owes its origins to British jurisprudence, the basis of
which is the Rule of Law
Dicey famously maintained that the Englishman does not need
Administrative law or any form of written law to keep cheeks
on the government but that the Rule of Law and natural law
would be enough to ensure absence of executive arbitrariness.
While India also accepts and follows the concept of natural
law, there are formal and written laws to ensure compliance.
Presently, the concept has altered into a new corollary stating
that the holders of public powers must be able to publicly
justify that the exercise of power is legally valid and so
 Rule of Law under the Constitution*
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 ideals of the Constitution, justice, liberty and equality are
enshrined (embodied) in the preamble.
Art13 (1) states that any law that is made by the legislature has
to be in conformity with the Constitution failing which it will
be declared invalid.
Article 14 ensures that all citizens are equal and that no person
shall be discriminated on the basis of sex, religion, race or
place of birth.
Art 21- No person shall be deprived of his life or personal
liberty except according to procedure established by law.
 Rule of Law & Judiciary

The Indian judiciary is well regarded domestically and

internationally for its progressive role in interpreting various
provisions of the Constitution with a view to promoting social
justice.
Expanding the interpretation of the fundamental rights
enshrined in the Constitution, overcoming restrictions based on
rules relating to locus standi, creating new avenues for seeking
remedies for human rights violations through public interest
litigation pleas and promoting genuine judicial interventions in
the areas of child labour, bonded labour, clean and healthy
environment, and women’s rights are a few examples of
successful judicial intervention to uphold the rule of law and
ensure justice.
 Supreme Court and Rule of law*

Shankari Prasad v UoI AIR 1951 SC 455-

whether the fundamental rights can be amended under Article 368-?
Supreme Court held that Parliament has the power to amend Part III of the
Constitution under Article 368 as under Article 13 ‘law’ means any legislative action
and not a constitutional amendment. Therefore, a constitutional amendment would
be valid if abridges any of the fundamental rights.

Sajjan Singh v. State of Rajasthan 1965 AIR 845 –

upheld the majority decision of Shankari Prasad.
Hon’ble Chief Justice Gajendragadkar held that if the framers of the constitution
intended to exclude fundamental rights from the scope of the amending power they
would have made a clear provision in that behalf.

I.C. Golaknath v. State of Punjab AIR 1967 SC 1643 –

Parliament has no power to amend the Part III of the Constitution so as to take
away or abridges the fundamental rights 
 24th amendment, 1951*

Constitution (Twenty-Fourth Amendment) Act, 1971. Parliament

by the way of this Amendment inserted a new clause (4) in
Article 13 which provided that ‘nothing in this Article shall apply
to any amendment of this constitution made under Art 368

It substituted the heading of Article 368 from ‘Procedure for

amendment of Constitution’ to ‘Power of Parliament to amend
Constitution and Procedure thereof’. The Amendment not only
restored the amending power of the Parliament but also extended
its scope by adding the words “to amend by way of the addition or
variation or repeal any provision of this constitution in accordance
with the procedure laid down in the Article".
 Supreme Court and Rule of law*

Keshavananda Bharti v. State of Kerala AIR 1973 SC 1461-

The Supreme Court by majority overruled the decision given in Golaknath’s case
and held that Parliament has wide powers of amending the Constitution and it
extends to all the Articles, but the amending power is not unlimited and does not
include the power to destroy or abrogate the basic feature or framework of the
Constitution.
Supreme Court held that the Rule of Law is an essential part of the basic structure
of the constitution and as such cannot be amended by any Act of Parliament,
thereby showing how the law is superior to all other authority of men. Rule of law is
regarded as a part of the basic structure of the Constitution and, therefore, it cannot
be abrogated or destroyed even by the Parliament.
SC - states that “Our Constitution postulates Rule of Law in the sense of
supremacy of the Constitution and the laws as opposed to arbitrariness.“
 The 13 judge Bench also laid down that the Rule of law is an “aspect of the basic
structure of the Constitution, which even the plenary power of Parliament
cannot reach to amend." 
 Supreme Court and Rule of law*

in Som Raj v. State of Haryana that the absence of

arbitrary power is the primary postulate of Rule of Law upon
which the whole constitutional edifice is dependant.
Discretion being exercised without any rule is a concept
which is antithesis of the concept.
The third meaning of rule of law highlights the
independence of the judiciary and the supremacy of courts.
It is rightly reiterated by the Supreme Court in the
case Union of India v. Raghubir Singh that it is not a
matter of doubt that a considerable degree that governs the
lives of the people and regulates the State functions flows
from the decision of the superior courts.
 Supreme Court and Rule of law*

Chief settlement Commr; Punjab v. Om Prakash 1968 SCR (3)

655
 it was observed by the Supreme Court that, “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.” 

Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299-

 Supreme Court invalidated Article 329A which granted immunity to
election to the office of PM from the scope of judicial review- The
Court said that this violated the concept of Rule of law which cannot
be abrogated or destroyed even by the Parliament.
 Supreme Court and Rule of law*

 Habeas corpus case- ADM Jabalpur v Shivakant Shukla 1976 AIR SC 1207 (4:1)
 The question before the Supreme Court was ‘whether there was any rule of law
in India apart from Article 21’.
 The majority judges held that the Constitution is the mandate and the rule of
law. They held that there cannot be any rule of law other than the
constitutional rule of law. Excluding moral conscience, they held that there
cannot be any pre-Constitution or post-Constitution rule of law which can run
counter to the rule of law embodied in the Constitution, nor can there be any
rule of law to nullify the constitutional provisions during the time of
Emergency
 However, J. Khanna in his dissenting opinion observed that “Rule of law is the
antithesis of arbitrariness……Even in absence of Article 21 in the Constitution,
the state has got no power to deprive a person of his life and liberty without the
authority of law. Without such sanctity of life and liberty, the distinction
between a lawless society and one governed by laws would cease to have any
meaning…”
 Supreme Court and Rule of law

Article 21 is our rule of law regarding life and liberty. No

other rule of law can have separate existence as a distinct
right.
The rule of law is not merely a catchword or incantation. It is
not a law of nature consistent and invariable at all times and
in all circumstances.
There cannot be a brooding and omnipotent rule of law
drowning in its effervescence the emergency provisions of
the Constitution." 
Thus they held that Article 21 is the sole repository of right to
life and liberty and during an emergency, the emergency
provisions themselves constitute the rule of law.
 44th amendment, 1978

With the Constitution (Forty-Fourth Amendment)

Act, 1978 it has been laid down that even during
emergency, Articles 20 and 21 will not be suspended.
 Supreme Court and Rule of law

In Raman Dayaram Shetty v. International Airport Authority of India [31] ,

the Supreme Court held that the great purpose of rule of law is the
protection of individual against arbitrary exercise of power, wherever it is
found.
In re: Arundhati Roy [32] , Justice Sethi observed that for achieving the
establishment of the rule of law, the Constitution has assigned the special
task to the judiciary.
 In Sheela Barse v. State of Maharashtra [35] the Supreme Court insisted on
fairness to women in police lock-up and also drafted a code of guidelines for
the protection of prisoners in police custody, especially female prisoners.
In Veena Sethi v. State of Bihar [36] also the Supreme Court extended the
reach of rule of law to the poor who constitute the bulk of India by ruling
that rule of law does not merely for those who have the means to fight for
their rights and expanded the locus standi principle to help the poor.
 Practical application of Rule of Law*

In the case of Maneka Gandhi v. Union of India  AIR 1978 SC 597,  the court ensured that exercise of power in
an arbitrary manner by the government would not infringe the rights of the people and in Kesavananda
Bharati, the court ensured that laws could not be made that essentially go against the Rule of Law by saying
that the basic structure could not be breached.
Apart from judicial decisions, the constitutional mechanism in itself provides for the protection of the rule of
law through the creation of monitoring agencies.
The role of the Central Vigilance Commission and the Comptroller and Auditor General in the exposure of
scams’ related discrepancies is commendable and this shows how the law has provided for its own protection
by putting in place multiple levels of safe guards which ensure that it will be effective at some level.
The Election Commission of India, a constitutional body has also been undertaking the task of ensuring free
and fair elections with some degree of efficiency.
case of Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil the ratio laid down was “If the rule
of law has to be preserved as the essence of the democracy of which purity of elections is a necessary
concomitant, it is the duty of the courts to appreciate the evidence and construe the law in a manner which
would subserve this higher purpose and not even imperceptibly facilitate acceptance, much less affirmance, of
the falling electoral standards. For democracy to survive, rule of law must prevail, and it is necessary that the
best available men should be chosen as people's representatives for proper governance of the country. This can
be best achieved through men of high moral and ethical values who win the elections on a positive vote
obtained on their own merit and not by the negative vote of process of elimination based on comparative
demerits of the candidates.”
 Does Rule of Law actually exist?*

When it comes to procedural effectiveness, India fares poorly. In the categories of

absence of corruption and order and security, India ranks 83rd and 96th globally.
The general consensus is that the status quo, far from being neutral, serves to
protect the powerful at the expense of the disempowered. This lack of neutrality in
the rule of law runs contrary to the ideal, traced to Aristotle, that in light of the law
every person should be equal; that it is one's humanity, not one's status in society,
that requires that laws be justly applied.
No case can be filed against the Bureaucrats and Diplomats in India
No criminal proceedings whatsoever shall be instituted or continued against the
President, or the Governor of a state, in any court during his term of office. No
process for the arrest or imprisonment of the President, or the Governor of a state,
shall issue from any court during his term of office. 
The privileges enjoyed by the members of parliament with respect to legal actions
against them.
There are separate tribunals for administrative cases.
corruption and delay in justice delivery system.
 Opinion
The rule of law is more of an
ideal that we strive to achieve
but sometimes fail to live up
to.

The notion of the “rule of

Many societies, including our
law” stems from many
own, have developed
traditions and continents and
institutions and procedures
is intertwined with the
to try to make the rule of law
evolution of the history of
a reality.
law itself.

These institutions and

Aristotle said more than two procedures have contributed
thousand years ago, "The to the definition of what
rule of law is better than that makes up the rule of law and
of any individual."  what is necessary to achieve
it.
 Core principles of holding
government authority to
account and placing the
wishes of the populace
before the rulers, can be
found amid the main moral
and philosophical traditions
across the Asian continent.
Long before the United
Nations, States were Recent attempts to
working towards a rule
of justice in
formalize its
international life with a meaning have
view to establishing an drawn on this rich
international history of diverse
community based on understandings.
law. 

The modern conception of

The concept of rule of law is
deeply linked to the principle
of justice, involving an ideal of
accountability and fairness in
the protection and vindication
of rights and the prevention
and punishment of wrongs.
the rule of law has developed
as a concept distinct from the
“rule of man”, involving a
system of governance based
on non-arbitrary rules as
opposed to one based on the
power and whim of an
absolute ruler.
 Challenges

The Indian legal system is faced with numerous crises

starting with the fundamental challenge of enforcing
the rule of law.
While the system of governance in India is based on
law, this does not necessarily translate into the
behavior of those who govern and the governed to
have respect for the law. This lack of respect translates
into serious threats to democracy as the legal system
may not be able to respond to the growing sense of
lack of trust and faith in the institutions.
 Conclusion

The existence of the Rule of Law enables the people to enjoy maximum liberty
and judiciary since its development from the rule by man to the democratic
institutions.
The Constitution was established in order to bind the governmental power by
the people because the Constitution itself was given by a superior authority.
Enforcement of the rule of law and efforts to protect the rule of law ought to
be shaped by a number of factors that will improve the capacity of the legal
system to respond to injustices.
Passing more laws and the establishment of more institutions credited with
responding to injustices may not be the right approach.
There needs to be a fundamental re-examination of the approaches that we
have adopted to enforce the rule of law. There is need to critically examine the
effectiveness of Indian democracy, given the fact that corruption is
institutionalized in all spheres of governance.
 “It is indeed unthinkable that in a democracy governed by the
rule of law the executive Government or any of its officers
should possess arbitrary power over the interests of the
individual. Every action of the executive Government must be
informed with reason and should be free from arbitrariness.
That is the very essence of the rule of law and its bare minimal
requirement. And to the application of this principle it makes
not difference whether the exercise of the power involves
affection of some right or denial of some privilege.”

- Mr. Justice Frankfurter (in Viteralli v. Seton)