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“Two things form the bedrock of any open society — freedom of expression and rule of law. If you don’t have those things, you don’t have a free country.”

– Salman Rushdie

I. INTRODUCTION

In an increasingly polarized and politicized world, people and ideas are divulging into conflict and chaos. Today’s era can be marked with a lack of stability and order. Democracy and its ideals are crumbling down, and this, unfortunately, is quite discernable and evident. Amidst this chaotic and largely problematic world, certain ideals of democracy ensure stability and accountability. One such feature of a sound, free and functional democracy is the idea of the ‘rule of law’. Rule of law stands as one of the most significant ideals and a cornerstone to a modern democratic nation. The essence of Rule of law can be understood in Tom Bingham’s words-

‘All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered.’[1]

Any state committed to democracy will have immense reverence to the rule of law. Rule of law ensures stability, structure and most importantly restricts the arbitrary distribution of power and control. For example, in India, the Constitution, Part III in particular, governs the laws passed by the parliament and ensures that such laws in existence or henceforth passed, which are violative of or abridge fundamental rights, can be declared void.[2] The law should rule officials, including judges, as well as ordinary citizens.’’[3]Rule of law implies that every person is subject to the law, including people who are lawmakers, law enforcement officials, and judges.[4]

Concepts such as supremacy of law and rule of law have been founded way before the renaissance. 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 renaissance thinkers in Europe such as Hobbs, Locke and Rousseau through the social contract theory. Justice Coke, the ‘originator’ of Rule of law has asserted the pre-eminence of the common law in England, even over the authority of the king and is derived from French phase ‘la principe de legalite’ which means the principle of legality.   It was AV Dicey, however, who revived and discussed the term eloquently in his work.  He elucidated the theory of rule of law by essentially counting it down to two significant and noticeable features. The first of these features is how omnipotent and supreme the central government is over the entirety of the nation. This authority over the state or the nation was during the earlier periods of our history represented by the power of the Crown. The King was the source of law and the maintainer of order. The maxim of the Courts, “tout fuit in luy et vient de lui al commencement,”[5] which translates to- ‘all was his, and all proceeded originally from him’[6] was initially considered as a blanket or gospel truth which stayed an undisputed and unparalleled maxim. This royal supremacy can now subtly been converted into the sovereignty of the Parliament. The second of these features, closely tied and connected with the other, is the rule of supremacy of law. This uniqueness of our polity is well expressed in the old saying of the Courts, “La ley est le plus haute inheritance, que le roy ad; car par la ley it même et toutessessujetssontrulés, et si la ley nefuit, nulroi, et nul inheritance sera”.[7] According to him, In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary Courts, has been pushed to its utmost limit. Despite this, it is still considered to this day that Dicey’s theory was nothing but the blatant glorification of England in comparison to that of the rest of Europe. He proclaimed proudly, ‘Englishmen are ruled by law and law alone.’ The three principles that Dicey propounded, that are celebrated to this very day[8]–

1. Absence of arbitrary power on the part of the government.
2. Equal subjection of all men to the law of the land
3. Predominance of legal spirit.

The first of the three principles is founded on the idea of liberty and equality. This same line or thread of thinking can be traced in the Constitution of the United States, several landmark common law judgements, and India’s constitutional machinery. Dicey, as would many thinkers of his time, believed that individual liberty was of utmost significance and that each individual derived his freedom from the law. Therefore, he wrote, that the arbitrary power on the part of the government would consequentially and inevitably cause the violation of the individual’s liberty. He writes that where there is rule of law, individual liberty is protected and preserved, and is not maligned and interfered with by arbitrary control by the government. This line of thinking would later be coined a term “Libertarianism”, and many such thinkers follow this school of thought. This can be reflected in the Indian Constitution under Article 21, which has been widely interpreted by the Supreme Court in numerous judgements. Article 21 reads “No person shall be deprived of his life or personal liberty except according to procedure established by law”[9]

The second and arguably the most important of Dicey’s principles is the equal subjugation of all men to the law of the land. This principle can broadly be described as equality before the law, although Dicey does not necessarily condense it into a single umbrella term. While elucidating on this principle, Dicey lays emphasis on how the Executive, amongst the three bodies of the state, should be kept in constant check by the principles of the rule of law, specifically the aforementioned one. The third principle has been described to be at the heart of the judiciary and its functioning. Dicey writes that there should not just be dominance of the legal spirit, but the existence of the predominance of legal spirit in the entire state machinery in order to ensure rule of law.

II. RULE OF LAW IN INDIA: CONTEXT

In India, thinkers and philosophers have often attributed rule of law to be supreme and even above the kings or rulers. Mentions have been made in Upnishads about Law being the Kings of Kings, for example,Chanakya in Arthshastratalks about how the King should be governed by law.[10] The concept of rule of law in India has faced fluctuations. In pre-independent India, rule of law proved to be disastrous, since the laws were deliberately twisted and were tainted with oppressive provisions made to suit the colonial regime’s exploitative ambitions. White juries almost never convicted Englishmen in the colonies. Raja Nandkumar case (1775), infamously known as the first judicial murder of India, was one of the prime instances where the gross disregard to ‘Rule of Law’ was noticeable. However, in the post-independence era, the concept of rule of law was strengthened and has seen drastic and admirable change, proving that the foundations of the concept were strong to withstand the test of time and regime change. The first modern development in this array was because of The New Delhi Congress or Declaration of Delhi. The theme of the New Delhi Congress was “The Rule of Law in a Free Society”. The Congress further developed the principles and procedures underlying the Rule of Law as well as defining and clarifying the concept itself. Pledging itself to foster understanding of and respect for the Rule of Law, the Commission set out to uphold the best traditions and the highest ideals of the administration of justice. It believed that by mobilizing the jurists of the world in support of the Rule of Law, it would advance respect for fundamental freedoms and recognition of the civil and political rights of the individual.[11]

Rule of Law has been also inculcated in the constitution of India, not directly but indirectly. The first twoprinciples of Dicey are present in the Articles 14 and 21 of the constitution.[12] Rule of Law has many other broad aspects, some of which are as follows:

1. Institutionalizing checks and balances:

The Indian Constitution establishes a limited government. Being a federal country, both the central and state legislatures have the power to make laws, but only subject to express and implicit constitutional limitations. First of all, the constitution specifies and demarcates the matters[13] on which the central legislature and state legislatures could make law. Any law that breaches these limitations could be declared unconstitutional by courts. Second, the power of executive to make laws by issuing Ordinances is limited – both in terms of duration and situations triggering the exercise of such power (Arts 123 and 213). The executive, of course, cannot make a law on a matter on which the corresponding legislature lacks the competence to legislate. Article 123(3) provides: ‘If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.’  Third, although the Indian Constitution – having established a parliamentary form of government – does not follow any strict separation of powers (Article 50 though mandates to separate the judiciary from the executive.), a system of checks and balances has been put in place. For instance, all the Bills passed by the Parliament require the President’s assent to become law (Art 111). The Parliament, on the other hand, has the power to impeach the President for violating the Constitution (Art 61). Fourth, the courts have held that any executive action without the support of a valid law will be void, more so if it violated fundamental rights (Kharak Singh v State of UP, AIR 1963 SC 1295; Bijoe Emmanuel v State of Kerala, AIR 1987 SC 748). Similar to the position in many other jurisdictions, laws cannot generally be retroactive, especially if they seek to impose any penalty or punishment. Fifth, in a multi-party democracy, the presence of a free press and the requirement of periodic elections can be one of mechanisms against the abuse of governmental power. The Constitution expressly limits the term of legislatures (Arts 83 and 172), and the freedom of speech and expression under Article 19(1)(a) has been interpreted to include the freedom of press[14].In addition to these checks, the fundamental rights provisions and the power judicial review provide effective means of checking the power of the legislature and executive.

2. Equality before the law and protection of human rights

Establishing equality is one of the main goals of The Indian Constitution. The fundamental rights and the directive principles of state policy were the primary tools adopted to achieve this goal. Part III of the Constitution entitled ‘Fundamental Rights’ comprises Articles 12 to 35 which lay down various rights, their limitations and remedies for their enforcement. The rights range from the equality before the law to the freedom of speech and expression, the protection against double jeopardy, the right to life and personal liberty, the freedom of religion, prohibition of discrimination, and the protection against arrest and unlawful detention.

Article 14 prohibits the state from denying ‘to any person equality before the law or the equal protection of the laws’. The guiding principle of equality being that like should be treated alike and that unlike should be treated differently, Article 14 permits reasonable classification. Another interesting fundamental right has been Article 21, which lays down that ‘no person shall be deprived of his life or personal liberty except according to the procedure established by law.’ This provision has proved to be a residuary repository of many fundamental rights. ‘Life’ in this article has been interpreted by the courts to mean more than mere physical existence[15], it ‘includes right to live with human dignity and all that goes along with it’.

Ever-widening horizon of Article 21 is illustrated by the fact that the Court has, inter alia, read into it the right to

• Health and livelihood[16]
• Free and compulsory education upto the age of 14[17]
• Unpolluted environment[18]
• Shelter[19]
• Clean drinking water[20]
• Privacy[21]
• Speedy trial[22]
• Various rights of under-trials, convicts and prisoners[23]

3. Judicial Review by an Independent Judiciary

The power of an independent judiciary to review the decisions of the other two organs of the government is considered an integral aspect of the rule of law and the Indian Constitution does everything possible to put in place this mechanism. Judges of the Supreme Court and the High Courts are appointed by the President in ‘consultation’ with relevant judges of these courts (Arts 124(2) and 217) subsequent to the decision in Supreme Court Advocates on Record Association v Union of India[24]. Judges of the higher judiciary are in essence appointed by the judiciary itself[25]. Detailed provisions have also been made to provide judges security of tenure (Arts 124 and 218)[26], and protect their salaries, allowances and privileges. (Arts 125 and 221)[27] Legislative bodies are barred from debating the conduct of judges unless dealing with impeachment motions (Arts 121 and 211[28]). In fact, on a closer look, it seems that the Indian judiciary has become over-independent in that there are not many checks on its powers and the functioning/conduct of judges. The judiciary, for instance, resists any attempt to introduce accountability measures and impeaching judges so far has proved to be an almost impossible even in suitable cases. The judicial component of government is independent in order to insulate its members from punitive or coercive actions by the legislature and executive departments of the government. If the judiciary is independent, then it can make fair decisions that uphold the rule of law, an essential element of any genuine constitutional democracy

III. RULE OF LAW IN INDIA: ANALYSIS

Despite several provisions in place reflecting or conceptualizing rule of law, the exact words ‘rule of law’ are not found in the Indian Constitution. Amongst the groundbreaking constitutional cases in this regard was the KeshvanandaBharti v. State of Kerala[29] regarded as the most important case of Constitutional jurisprudence in India which outlined the basic structure doctrine of the constitution. The Basic Structure doctrine forms the basis of power of the Indian judiciary to review, and strike down amendments to the Constitution of India enacted by the Indian parliament which are in confliction with or seek to alter the basic structure of the Constitution as was declared by the 7-6 majority judgement of the aforementioned case. The opinion of majority of the judges in this respect was that rule of law is an “aspect of the doctrine of the basic structure of the Constitution, which even plenary powers of the parliament cannot reach to amend.” It further solidified preceding judgements, such as that of IC Golaknath[30] and Sajjan Singh[31].  In A.K. Kraipak v. Union of India[32]it was held that under our constitution, the rule of law pervades over the entire field of administration and organs of the state.

In the case of Indira Nehru Gandhi v. Raj Narain[33], it was held by the honorable Supreme Court that clause (4) of the Constitution 39th Amendment Act, 1975 was unconstitutional and void on the ground that it was outright denial of the Right to Equality enshrined in Article 14. It was held by the Court that these provisions were arbitrary and hence declared void, thereby reinstating the first of the three principles propounded by AV Dicey. Furthermore, it was held that Article 329-A offended the rule of law by subduing the principle of predominance of legal spirit, exuberating the sense of arbitrary official action.

It was during one of the darkest times in democratic India, the Emergency, that the concepts of rule of law came under grave danger. An attempt to amend the constitution was made by the inculcation of 42^nd amendment. There was a misuse of Article 356 weakening the basic federal structure of the country. In 1970s judiciary did not remain independent and uncontaminated body from political intervention, when Justice A.N. Ray was appointed as the Chief Justice of India, discarding the other three senior most judges. Even then, the spirit of rule of law was upheld by the judiciary thereby indicating the immense power that a concept such as rule of law holds, thereby vanquishing tyrannical government measures.

In the infamous case of ADM Jabalpur v. ShivakantShukla[34] one of the fundamental questions in front of the Supreme Court was the determination of whether the predominance of legal spirit holds good in the Indian context and whether there was any rule of law in India except but for the presence of Article 21. This was famously answered by the dissenting opinion of Justice HR Khanna. Discussing the sanctity of the Rule of Law, he says, Rule of Law is the mark of all civilized societies, he argues that the harmonizing of human rights with the requirements of public interest can only be attained by the existence of independent courts which can hold the balance between citizen and state and compel government to conform to the law. Stating that the right to life and liberty “represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence”, Justice Khanna claimed that “the idea about the sanctity of life and liberty as well as the principle that no one shall be deprived of his life and liberty without the authority of law are essentially two facets of the same concept”. Emphatically arguing that the right to life and liberty is not a gift of the Constitution, the following famous paragraph from Justice Khanna’s judgment is produced here:

“Even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. This is the essential postulate and basic assumption of the rule of law and of men in all civilized nations. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning. The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life, and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has the effect of tampering with life and liberty must receive sustenance from and sanction of the laws of the land”.

Justice Khanna stated in his judgment,

“As observed by Friedman on page 500 of Law in Changing Society, 2nd Ed., in a purely formal sense, any system of norm based on a hierarchy of orders, even the organized mass murders of Nazi regime qualify as law. This argument cannot however, disguise the reality of the matter that hundreds of innocent lives have been taken because of the absence of rule of law. A state of negation of rule of law would not cease to be such a state because of the fact that such a state of negation of rule of law has been brought about by a statute. Absence of rule of law would nevertheless be absence of rule of law even though it is brought about by a law to repeal all laws”.[35]

This dissent by Justice HR Khanna proved to be of utmost importance, since it kindled a spark that would give rise to subsequent judgements which would dilute the effect that the ADM Jabalpur case had. It also set a marvelous precedent for later generation of lawyers and judges, since it proved the importance of a dissenting judgement on a constitutional bench, which in turn proves and strengthens the predominance of legal spirit argument laid down by Dicey. Subsequent to this, in the case of Chief Settlement Commr. Punjab v. Om Prakash[36] it was held by the Supreme Court that, ‘In our constitutional system, the central and most characteristic feature is the concept of rule of law’, thereby strengthening and reinstating the precedents on the same subject and ensuring that executive and administrative action face scrutiny of the law.

IV. CONCLUSION

It can therefore be concluded with sufficient evidence and authority that the principles of rule of law have been enshrined in the Indian Constitution. Although the landmark judgement in this regard refutes the aforementioned statement, several succeeding judgements have upheld the sanctity of rule of law in the Indian Constitution. One can therefore say with sheer factual accuracy that India is benefitted with the presence of rule of law in her Constitution. Yet, this statement will be made with an immensely burdening sense of irony. Many scholars would argue that the statement is paradoxical, since in practicality, on several instances, rule of law is blurred, if not completely absent. To pick one instance, in the SheryaSinghal v Union of India[37] case, the Supreme Court had declared Section 66-A of the Information Technology Act to be void and unconstitutional. Despite this judgement, police officials constantly made arrests using the same section, therefore violating the principles of rule of law. Recently, the Supreme Court allowed women entry into the Sabarimala temple, thereby sparking a series of controversial incidents, with violent protests and refusal of women entry into the temple post the delivery of the judgement. This is a clear indication of a gross disrespect to the rule of law in India. The villages of India, considered the grass-roots and the heart of this nation, reflect the sad and dismal state of rule of law in India. The remotest of those, embedded with beauty and serenity, disguise a deep dark truth within. The presence of KhapPanchayats and honor killings, one of the worst forms of extra judicial sentencing, reflects the dire need for a stronger mechanism of rule of law. The Supreme Court has delivered several judgements to this regard, and the presence of explicit laws forbidding extra judicial killings are entirely futile, and the best example to support this claim is the Manoj-Bablihonour killing case.[38] Another infamous example of the disregard to rule of law would be the provisions of the Armed Forces Special Provisions Act, 1958 and its consequences. Section 3 of the said Act in particular has been extremely problematic, and its interpretation has faced widespread scrutiny. It has given arbitrary powers to the Executive to declare which land or region is a ‘disturbed area’ and therefore has led to mass politicization and tyrannical intervention into several regions for unwarranted reasons. It is also alleged that several armed forces use these arbitrary powers to exploit people of the said regions. Going by the allegations and the provisions, this is a clear violation of the principles of rule of law, particularly those enshrined in our Constitution. Several outdated laws often prove to be contrary to the effect of rule of law, particularly those governing the executive, such as the police. The series of problems in connection to rule of law in India can be a very long, exhaustive list. Our Constitution and various judicial precedents leading up to the most recent ones have clearly set the tone for the applicability of Rule of Law in India. Despite all of its hindrances, in hindsight, the practical effectuality of Rule of Law has made some significant progress in India over the years.

Our forefathers envisioned a Constitutional India, where every citizen is treated with equality before the law and his or her liberty is not infringed upon. They envisioned an India that is free, open and democratic, rid of arbitrary power and ineffectual existence of Rule of law. The Constitution and its makers’ vision will stay intact and face the test of time. It is now upon the generations to come that the vision converts into a reality. In conclusion, to reflect upon the significance of rule of law, BR Ambedkar once said “Law and order are the medicine of the body politic and when the body politic gets sick, medicine must be administered.”

V. BIBLIOGRAPHY

Books

1. Narendra Kumar, Constitutional Law of India, 9th Edition.
2. D. Mahajan, Jurisprudence & Legal Theory, 5^th Edition.
3. Constitution of India, 1949, Bare Act.
4. Mahendra Pal Singh, V.N. Shukla’s Constitution of India, 13^th
5. The Law of Constitution, 1915.

Journals

1. P. Sathe, ‘Judicial Activism’.Available- http://law.wustl.edu/journal/6/p_29_sathe.pdf
2. Moses Adagbabiri, Constitutionalism and Democracy: A Critical Perspective

Web References

1. SCC Online
2. JStor
3. Manupatra

 

 

[1]Tom Bingham, The Rule of Law (London: Allen Lane, 2010) p. 8

[2]The Constitution of India, 1950,  Article 13

[3]BlandineKriegel, The State and the Rule of Law (Princeton University Press, 1995), passim.

[4]Hobson, Charles,The Great Chief Justice: John Marshall and the Rule of Law, p. 57 (University Press of Kansas, 1996)­.

[5]Year Books, xxiv. Edward III.; cited Gneist, EnglischeVerwaltungsrecht, i. p. 454

[6] J.W. Jones, Translation of all the Greek, Latin, Italian and French Quotations which occurs in Blackstone’s commentarieson England p. 54.

[7]Year Books, xix. Henry VI., cited Gneist, EnglischeVerwaltungsrecht, i. p. 455.

[8] A.V Dicey, Introduction to the study of Law of the constitution, 8th Edition (Macmillan, London 1914).

[9]The Constitution of India, 1950, Article 19

[10]UpendraBakshi, The Rule of Law in India, 2007

[11]Norman S. Marsh, The Rule of Law in a free society,5-14.

[12]Article 14 prohibits the state from denying ‘to any person equality before the law or the equal protection of the laws’. The guiding principle of equality being that like should be treated alike and that unlike should be treated differently,

[13]Constitution of India, 1950, Article 246, 248-254 read with Schedule IX

[14]Express Newspapers v Union of India, A.I.R. 1958 SC 58, Bennett Coleman v Union of India, A.I.R. 1973 SC 106

[15]Kharak Singh v State of UP A.I.R. 1963 SC 1295

[16]ParmanandKataria v Union of India A.I.R. 1989 SC 2039

[17]Unni Krishnan v State of AP (1993) 1 SCC 645

[18]M C Mehta v Union of India (1996) 6 SCC 750

[19]Gauri Shankar v. Union of India (1994) 6 SCC 349

[20]A P Pollution Control Board II v. M V Nayudu (2001) 2 SCC 62

[21]R Raj Gopal v. State of Tamil Nadu (1994) 6 SCC 632

[22]HussainaraKhatoon (I) to (VI) v. Home Secretary, Bihar (1980) 1 SCC 81

[23]Sunil Batra v. Delhi Administration A.I.R. 1978 SC 1675

[24](1993) 4 SCC 441

[25]In re, Presidential Reference, A.I.R. 1999 SC 1

[26]The Constitution of Indian, 1950, Article 124, 218

[27]The Constitution of Indian, 1950, Article 125, 221

[28]The Constitution of Indian, 1950, Article 121, 211

[29]KeshvanandaBharti v. State of Kerala, (1973) 4 SCC 225

[30]IC Golaknath&Ors. v. State of Punjab (1967) SCR (2) 762

[31]Sajjan Singh v. State of Rajasthan, (1965) SCR(1) 933

[32]A.K. Kraipak v. Union of India, A.I.R. 1970 SC 150

[33]Indira Nehru Gandhi v. Raj Narain, A.I.R. 1975 SC 2299

[34]A D M Jabalpur v. ShivkantShukla, A.I.R. 1976 SC 1207

[35]S.P. Sathe, “Judicial Activism: The Indian Experience”, http://law.wustl.edu/journal/6/p_29_sathe.pdf

[36]Chief settlement Commr. Punjab v. Om Prakash, (1968) SCR (3) 655

[37]ShreyaSinghal v Union of India, 2015 A.I.R. SC 1523

[38]Smt. Chandrapati v. State Of Haryana and Others, A.I.R. 2011 

Cite as: Esh Gupta, Rule of Law in India, 1 Int’l J. of Legal Sci. and Inno. 2 (2019)