FACULTY INCHARGE: Prof.

Virendra Singh Thakur

NAME- Adishree Singh

PRN-19010126103

3rd Year BBA LL.B: Divison B

Administrative Law

Internal Assessment- I

Critical Analysis of the Rule of Law in India

 Critical Analysis of the Rule of Law in India

TABLE OF CONTENTS

Introduction ............................................................................................................................... 3

Rule of Law in India ................................................................................................................. 4

Background .......................................................................................................................... 4

The Dicey Concept ............................................................................................................... 4

Supremacy of the Law ....................................................................................................... 4

Equality before the Law ..................................................................................................... 5

Predominance of a Legal Spirit.......................................................................................... 5

Evolution of the Rule of Law in India ................................................................................ 5

Analysis of the Rule of Law in India .................................................................................. 6

Rule of Law and the Indian Constitution ........................................................................... 6

Rule of Law and the Judiciary ........................................................................................... 7

Conclusion ................................................................................................................................. 9

Index of Authorities/References ............................................................................................. 10

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 Critical Analysis of the Rule of Law in India

INTRODUCTION

“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

In today's society, the notion of "Rule of Law" is indeed one of the features of a fair,
functioning, and strong democracy in the wake of an era that lacks both stability and order.
Individuals and their beliefs are contributing to the emergence of strife and turmoil in the world,
which is becoming increasingly polarised and politicised. The principles of a democratic state
are eroding, and in a such a context, the "Rule of Law," is amongst the most crucial concepts.
It is a basic need for the advancement of modern democratic society.

All individuals, notably judges, law enforcement officers, and even legislators, should be
subject to the law, in according with the mandates of the principle. It creates an idyllic
environment in which the law governs not just ordinary individuals, but also public officials
and judges.

The rule of law is an important feature of any democratic society since it not only maintains
cohesion and durability, but it also plays a significant role in limiting the arbitrary distribution
of authority and influence. The efficacy of the Indian Constitution, notably Part III of the same,
is a prominent example.

Part III of the Constitution governs the laws enacted by the legislature, and it serves an even
greater role in ensuring that these laws do not infringe fundamental rights, and if they do, it
provides a mechanism for rendering them void.1 This is a prime indication as to how the Rule
of Law guarantees that a legislation cannot provide for any arbitrary or unfettered division of
power, which would serve as detrimental to the empowerment of the nation as a democratic
one.

1
INDIA CONST., art. 13.

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 Critical Analysis of the Rule of Law in India

RULE OF LAW IN INDIA

To comprehend the notion of Rule of Law in India, we must firstly comprehend how the notion
of the Rule of Law found its way to and subsequently evolved the Indian legal system.

BACKGROUND

The principle of the rule of law may have originated with the Ancient Romans, since the
establishment of the first republic. Many renaissance philosophers in Europe continued to
develop and advocate for it, particularly through the notion of the social contract theory, which
was popularised by renowned philosophers such as Hobbs, Locke, and Rosseau. Justice Coke,
who is credited with coining the term "Rule of Law," has repeatedly stated that the supremacy
of common law in England should be held in the upmost respect, even above that of the
Sovereign himself, referring to it as "la principe de legalite," or "principle of legality."

Prior to the advent of the notion of Rule of Law, the state's authority was only reflected by the
Crown's power, i.e., the Crown, who'd been regarded as the fount of both law and order. "Tout
fuit in luy et vient de lui al commencement," which simply means "all was his and all originated
originally from him," was the theology that was adopted in regard to the control over the state.
At the time, this was the unquestionable and unrivalled maxim.

THE DICEY CONCEPT

The most well-known addition in the realm of "Rule of Law" is AV Dicey's reintroduction of
the concept in his works. He essentially divided the notion of the Rule of Law into three pillars:

1. Supremacy of the Law

2. Equality before the Law
3. Predominance of a legal spirit

SUPREMACY OF THE LAW

The principle of Rule of Law establishes the law's supremacy and total power in the state. It
has complete control over everyone, including legislators and lawmakers.2 If there is room for
discretion, there will always be arbitrariness, as AV Dicey argued. As a result, the superiority
of the rule of law, in the idea that law produced in courts of law must be maintained in the land,

2
Veena Sethi v. State of Bihar, AIR 1983 SC 339.

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 Critical Analysis of the Rule of Law in India

is required in the pursuit of democracy, and no one should be invited to bring the law into their
own clutches.

EQUALITY BEFORE THE LAW

In a court of justice, each person, regardless of his or her status or position in life, shall face
the same rules as anyone. 3 While emphasising the significance of equal treatment under the
law, Dicey also discusses how the Executive's authority should be kept in line at all times in
order to prevent abuse of power and the collapse of democracy's goals.4

PREDOMINANCE OF A LEGAL SPIRIT

AV Dicey further noted that simply adopting the aforesaid norms would be inadequate to
guarantee the Rule of Law's existence, and that there must be a preponderance of a legal spirit
in the state apparatus. This is claimed to be inherent at the root of the judiciary and can be seen
in how it operates. The most important factor for the adoption of the Rule of Law, in his
opinion, would be an objective and unbiased court. 5

EVOLUTION OF THE RULE OF LAW IN INDIA

The Indian Legal System embraced the Rule of Law from the Common Law system, which
began in British Jurisprudence. The Constitution of India, which is regarded as the ultimate
laws of the country and grants power to the Executive and Administration, includes the idea of
the Rule of Law. The Rule of Law cannot be applied in every sense of the term unless the state's
instruments function a just and reasonable manner, which is also recognised and visible in the
framework of the Indian Legal System's errors.

The principle emerged in India as a result of the perceptions of scholars and philosophers who
regarded the rule of law as paramount and superior to that of Monarchs and Kings. Upanishads
have also been used to portray Law as the King of Kings; in an example is sought, Chanakya
in Arthashastra has expounded on how the King must be dominated by Laws on numerous
occasions.

India's progress in the area of the rule of law is to be commended. The state of the rule of law
in India during the pre-independence period was dreadful, in the sense that the statutes were
both distorted and tainted with despotic provisions that were applied on the basis of exploitative

3
Som Raj v. State of Haryana, 1990 SCR (1) 535.
4
Alok Kumar Yadav, “Rule of Law”, INTERNATIONAL JOURNAL OF LAW AND LEGAL JURISPRUDENCE STUDIES,
4(3), 205-220 (2017).
5
Upendra Baxi, “The Rule of Law in India”¸ INTERNATIONAL J OURNAL ON HUMAN RIGHTS, (2007).

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 Critical Analysis of the Rule of Law in India

goals. If we look at the case of Raja Nandkumar, which is often regarded as India's first judicial
murder, we can see that it was one of the earliest occurrences where the Rule of Law was
plainly disregarded. The post-independence epoch, on the other hand, saw the bolstering of the
Rule of Law and commendable progress toward its efficacy, demonstrating that the concept's
foundations had not been shaken and were robust enough to withstand the test of time and
transition.

The Declaration of Delhi or the New Delhi Congress, which embraced the topic "The Rule of
Law in a Free Society," is the first major development of the notion of Rule of Law in India. It
formed the concepts of the Rule of Law and also played a significant role in both defining and
clarifying the notion.

Under the promise of cultivating both awareness and tolerance for the concept, the Committee
took actions to boost the highest ideals and defend the greatest principles in the judicial process.
The Indian judiciary adopted the notion of Rule of Law in the sense that it understood that by
establishing Indian judiciaries in favour of the Rule of Law, it would advance the country's
purpose of respecting individual rights and fostering state democracy. 6

ANALYSIS OF THE RULE OF LAW IN INDIA

In India, the principle of rule of law is the most prevalent in the Indian Constitution. It can be
examined by looking at three components of the Indian legal system's implementation of the
Rule of Law:

1. Rule of Law and the Indian Constitution

2. Rule of Law and the Judiciary

RULE OF LAW AND THE INDIAN CONSTITUTION

The Rule of Law is viewed as part of the Constitution's Basic Structure. 7 The Indian
Constitution establishes a separation of powers between the legislature, the executive, and the
judiciary, with each having its own jurisdiction and authority, and none of them capable of
interfering with the operation of the others.8 This enables the principle of Rule of Law to be
properly implemented. For example, the Supreme Court ruled that a clause that permitted the

6
Norman S. Marsh, “The Rule of Law in a Free Society”, INTERNATIONAL COMMISSION OF JURISTS, 5-14.
7
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.; Indira Nehru Gandhi v. Raj Narayan, 1976 (2) SCR
347.
8
Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748.

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 Critical Analysis of the Rule of Law in India

government to interfere with the conduct of a tribunal was unconstitutional and so violated the
Rule of Law.9

Dicey's convictions on the rule of law are also upheld by the Constitution. Article 14 10
guarantees equality before the law, while Article 21 11 ensures that life and personal liberty are
protected.12 Similarly, Article 19 13 protects freedom of expression and speech. 14 They are
commonly referred to as the Golden Triangle because they are the most significant element of
the Constitution and provide for the people's most rudimentary fundamental rights, making
them the most powerful supporters of the Rule of Law.15

The Supreme Court went on to say that the Rule of Law is at the heart of the Constitution, and
that any court that passes an order that violates people's fundamental rights is making a
spectacle of the Rule of Law.16

RULE OF LAW AND THE JUDICIARY

The existence of the Rule of Law is also evident in the function of the judiciary in India, as has
been stated numerous times in court decisions. The autonomy of the court is crucial in this
regard. The Supreme Court, for instance, has stated that the Rule of Law has various
components, one of which is that in the case of a dispute between people, such a matter should
be settled by an impartial judge. 17

Conversely, while determining the legitimacy of an action taken by the administration, a judge
must be devoid of any interference from the executive.18 Further, the court has noted that one
of the most notable features of the Rule of Law is the obligation and authority provided to
courts to determine the constitutionality of administrative decisions. 19

The court has also repeatedly emphasised the necessity of judicial review as a component of
the Rule of Law. The notion of judicial review plays a vital role in ensuring order and stability

9
P. Sambhamurthy v. State of Andhra Pradesh, 1987 SCR (1) 879.
10
INDIA CONST., art. 14.
11
INDIA CONST., art. 21.
12
Kharak Singh v. State of U.P., AIR 1963 SC 1295.; Unni Krishnan v. State of A.P., (1993) 1 SCC 645.
13
INDIA CONST., art. 19.
14
Express Newspapers v. Union of India, AIR, AIR 1958 SC 58.; Bennett Coleman v. Union of India, AIR 1973
SC 106.
15
ADM Jabalpur v. Shivkanth Shukla, AIR 1976 SC 1207.
16
Secretary, State of Karnataka and Ors. v. Umadevi and Ors., AIR 2006 SC 1806.
17
Shankari Prasad v. Union of India, AIR 1951 SC 455.
18
Union of India v. President, Madras Bar Association, W.P. 1072 of 2013.
19
Chief settlement Commr. Punjab v. Om Prakash, 1968 SCR (3) 655.

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in the government's operations. 20 As a result, any measure that works to limit the capacity of
judicial review is a violation of the Rule of Law.21

The judiciary has also attempted to broaden the scope of India's rule of law by incorporating
elements of judicial activism. The Supreme Court, for instance, has previously fought for the
safeguarding of inmates, particularly women, and has even issued a code of principles for
them.22

20
Union of India v. Raghubir Singh, 1989 SCR (3) 316.
21
S.P. Sampath Kumar v. Union of India, 1987 SCR (3) 233.
22
Sheela Barse v. State of Maharashtra, 1983 SCR (2) 337.

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CONCLUSION

In concluding, whilst the Rule of Law was originally derived from British jurisprudence, its
position in the Indian legal system has been established, as evidenced by the foregoing analysis.
The adoption of the Constitution, which affirmed the ideals of the Rule of Law, was perhaps
the most significant benefactor towards the advancement of Rule of Law in India. This was
bolstered even further by Part III of the Constitution, which safeguards individuals'
fundamental rights. Further, the judiciary has operated in support of assuring that people's
fundamental rights are not infringed, hence strengthening India's Rule of Law mechanism even
more.

However, there are some flaws in India's Rule of Law, which is a witness to the fact that the
concept's ideal state is yet to be achieved in India. Challenges such like obsolete
legislatures and overburdened courts, which cause disruption in case resolution, are still
prominent, among many other factors. Moreover, there have also been numerous occasions in
which India's judicial system has been susceptible to corruption as a result of executive and
administrative influence. These are significant impediments to the state's potential to develop
into a true or pure democracy.

The aforementioned challenges must be investigated and rectified in order for India to
successfully adopt the Rule of Law. For the Rule of Law to be implemented in its true essence,
it is necessary to provide justice expeditiously. Conversely, both the legislature and the
executive branch must exercise caution when enacting legislation that may result in a breach
of individuals' fundamental rights. Many bodies in India are acting deceitfully in order to create
a system wherein the Rule of Law is hindered from working effectively. These limitations must
be removed in order for the Rule of Law's intended purpose to be realized.

Regardless of the aforementioned limitations, it is undeniable that India's Constitution is the

ultimate law of the state. It is ingrained in India's judicial framework and if a government organ
acts in a way that exceeds the limit or authority granted to it by the Constitution, that conduct
will be ruled unconstitutional and hence void. This advances the purpose of the Rule of Law
while also ensuring that every government institution does its part to ensure the system's
unfettered adoption in India.

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INDEX OF AUTHORITIES/REFERENCES

CASES

1. ADM Jabalpur v. Shivkanth Shukla, AIR 1976 SC 1207. -------------------------------------- 7

2. Bennett Coleman v. Union of India, AIR 1973 SC 106 ----------------------------------------- 7
3. Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748 ----------------------------------------- 6
4. Chief settlement Commr. Punjab v. Om Prakash, 1968 SCR (3) 655. ------------------------ 7
5. Express Newspapers v. Union of India, AIR, AIR 1958 SC 58 ------------------------------- 7
6. Indira Nehru Gandhi v. Raj Narayan, 1976 (2) SCR 347 --------------------------------------- 6
7. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 ----------------------------------- 6
8. Kharak Singh v. State of U.P., AIR 1963 SC 1295 ---------------------------------------------- 7
9. P. Sambhamurthy v. State of Andhra Pradesh, 1987 SCR (1) 879 ---------------------------- 7
10. S.P. Sampath Kumar v. Union of India, 1987 SCR (3) 233 ------------------------------------ 8
11. Secretary, State of Karnataka and Ors. v. Umadevi and Ors., AIR 2006 SC 1806. --------- 7
12. Shankari Prasad v. Union of India, AIR 1951 SC 455. ----------------------------------------- 7
13. Sheela Barse v. State of Maharashtra, 1983 SCR (2) 337.-------------------------------------- 8
14. Som Raj v. State of Haryana, 1990 SCR (1) 535 ------------------------------------------------ 5
15. Union of India v. President, Madras Bar Association, W.P. 1072 of 2013. ------------------ 7
16. Union of India v. Raghubir Singh, 1989 SCR (3) 316.------------------------------------------ 8
17. Unni Krishnan v. State of A.P., (1993) 1 SCC 645. --------------------------------------------- 7
18. Veena Sethi v. State of Bihar, AIR 1983 SC 339 ------------------------------------------------ 4

CONSTITUTIONAL PROVISIONS

1. INDIA CONST., art. 13. -------------------------------------------------------------------------------- 3

2. INDIA CONST., art. 14--------------------------------------------------------------------------------- 7
3. INDIA CONST., art. 19. -------------------------------------------------------------------------------- 7
4. INDIA CONST., art. 21. -------------------------------------------------------------------------------- 7

JOURNALS

1. Alok Kumar Yadav, “Rule of Law”, INTERNATIONAL JOURNAL OF LAW AND LEGAL
JURISPRUDENCE STUDIES, 4(3), 205-220 (2017) -------------------------------------------------- 5
2. Upendra Baxi, “The Rule of Law in India”¸ INTERNATIONAL JOURNAL ON HUMAN RIGHTS,
(2007) -------------------------------------------------------------------------------------------------- 5

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E-BOOKS, ARTICLES, AND OTHER REFERENCES

1. Norman S. Marsh, “The Rule of Law in a Free Society”, INTERNATIONAL COMMISSION OF

JURISTS, 5-14. ----------------------------------------------------------------------------------------- 6

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