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RULE OF LAW IN INDIAN PERSPECTIVE-AN ANALYSIS

JURISPRUDENCE- II

Submitted to – Mr. Abhishek Kumar

Submitted by

AADITYA VASU

2013001, VI Semester

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

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TABLE OF CONTENTS

1. ACKNOWLEDGEMENT ………………………………………………..…. 3

2. ABSTRACT ……………………………………………….…………………. 4

3. INTRODUCTION …………………………………………………………… 5

4. RULE OF LAW ………………………………………………………….……7

5. RULE OF LAW AND INDIAN CONSTITUTION ………….…………….10

6. THREATS TO RULE OF LAW ………………………………………..….. 12

7. MEASURING PRACTICAL APPLICATION OF RULE OF LAW ……. 13

8. CONCLUSION ……………………………………………………………… 15

9. BIBLIOGRAPHY ……………………..…………………………………….. 16

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ACKNOWLEDGEMENT

I have taken efforts while doing this project. However it would have been impossible

without the kind support and help of many people involved.

I am highly indebted to Mr. Abhishek Kumar, Assistant Professor, Faculty of Law,

Damodaram Sanjivayya National Law University, Visakhapatnam for the guidance

and supervision regarding the completion of the project and without the sincere help, this

project would have remained incomplete.

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ABSTRACT

Laws can be considered to be one of the most fantastic creation of nature and there exists

a wonderful relation between universal truths and law but laws change whereas

universal truths remain constant. Rule of law basically governs all individuals of a nation

and it also influences a particular society. Rule of law is considered to be supreme in

nature and every citizens of any state is subjected to the general principles of law. It is

also to be mentioned that rule of law is naturally a vague concept and it varies from one

individual to another individual. There are various approaches to the definition of rule of

law, one is the formalist approach which usually specifies the attributes that a legal

framework is needed to have in order to establish sound rule of law, and the second one

is the substantive approach in which the substantive rights are generally derived from the

rule of laws.

Regarding the measure of practical application of rule of law, it is indeed very difficult

to exactly measure that how much a particular rule of law is applicable in the society

because it is to be looked at an individual perspective and accordingly it is bound to vary

from one person to another and also there is no definite yardstick to measure but if we

for the time being relate rule of law with virtue, morality and ethics then it can be

measured to a good possible extent but again according to the principles of natural law

what is legally right may not be morally right and what is morally right may not be

legally right.

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INTRODUCTION

Rule of Law, the very term suggest that law is the command of the sovereign and it also

implies that there are two aspects of rule of law. One is the say or the authority which can

be equated with the supremacy of law and the second aspect of rule of law is the

procedural just and fairness of a particular law in force. As it is very much known that

what the law dictates is the ultimate to be followed in a particular society, the rule that it

lays down, the procedures, punishments, provisions all are to be measured with a proper

yardstick. A rule which is laid down by the law is found to be unjust, then it is need to be

struck down. The primary function of rule of law is to influence a particular society upon

which it is acting and also to govern the behavior of individuals within the society. It is

also very much true that such rule of law varies from one society to another society, a

particular law which is supreme in one society may not be supreme in another society.

The rule of law requires both citizens and Government to be subjected to standing law.

According to eminent Professor Dicey, the rule of law presupposes the absence of wide

discretionary authority among the rulers and that they are unable to govern according to

their own laws and they actually end up governing and implementing the existing laws1.

So one condition of rule of law that it should be embedded with morality and then only it

would act as a strong yardstick to control the society. The rule of law also guarantees

freedom, liberty and equality to all citizens in a particular state.

The most important part of rule of law is the practical application of the same and how

much it is actually feasible to apply rule of law practically along with measuring it and

after going through the wide application of rule of law, it is believed that it is very

difficult to measure the practical application of rule of law because the concept of rule of

law cannot be the same in a different society and there is the problem when the

measuring of practical application of rule of law become utmost difficult, it can be

measured only to a few extent.

Type of Review: In the present context the method followed is secondary review as all

sorts of information have been collected from secondary sources.

1http://everything2.com/title/Dicey%2527s+views+on+the+rule+of+law+and+the+supremacy+of+parliame

nt

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Literature Review: The main literature that has been reviewed is a book called Rule of

Law in a Free Society edited by N.R. Madhava Menon by Oxford Publications and

articles from internet.

Gaps in existing field of literature: In the various articles, rule of law has been dealt in

great detail and how it has been evolved, but practical applicability of rule of law is

hardly mentioned in any such article of rule of law.

Reasons for selecting this topic: Rule of law has been one of the most ancient

philosophical concept regarding Jurisprudence and how the sound rule of law as

established in the society needs proper light to be thrown upon it and to what extent it is

practically valid.

Scope of the Project: The scope of the project extends to studying of the rule of law in

general and how the procedure has been established by the law and also to what extent

the practical applicability of rule of law extends.

Main Issues to be dealt with: The main issues that are to be dealt in this research paper

is the basic concept of rule of law and its practical measure; whether it is possible or not

and to what extent.

Special significance of the proposed topic: This topic has special significance because

of the proper understanding of law in the twenty-first century, one needs to look back to

the development of rule of law and how the concept of rule of law emerged.

Research Methodology: The method of doctrinal research has been followed

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RULE OF LAW

Rule of law can well be considered as an article of faith and especially when a democratic

state is considered then rule of law becomes utmost important for the proper governing

and function of a society. As it has been earlier discussed that Rule of law means the

supreme command and authority of law and it is also coated with due procedural fairness.

The evolution of rule of law can be traced back to the ancient times and who knows not

that the Greece philosophers were masters of legal conceptions. The concept of justice

and fairness of rule of law has widely been discussed by Aristotle. Rule of law is also a

symbolism of an enlightened civilized society’s effort and to quest to that degree of

liberty as it is required without letting the tyranny of law being established.

When the concept of Rule of law is explored, it is not that it is like a vast endless sky

beyond the reach, but on the contrary it is like a kaleidoscope of different colors. Mainly

if it is looked with great caution then it is evident that Rule of Law is concerned with the

liberty of the individual and it is also based on the basic platform of human rights. The

due process and fairness of a law is the keystone to the understanding of rule of law. It is

to be kept in mind that law is supreme in nature and every other element is subordinate to

it because of the submission to law voluntarily or involuntarily. The personal liberty of an

individual is no doubt a facet of rule of law but it needs to be properly balanced with that

of societal conditions, public order, and morality involving a fine balancing act. Rule of

law also means that the Government cannot take the reign of law in their own palms and

it also cannot apply force to achieve something nor it can disregard any normal procedure

in the society required to be followed by a Constitution which is the guardian of the rights

and liberties of all citizens of a State. Rule of law as it is said is a combination of colors,

there are so many colors to it like it being general and equal, the basic tenet being all the

citizens are equal before the laws and there would be equal protection of laws among

them. From the monarch to a downtrodden person, law should be covered with the

capsule of equality, and generality and that is the basic essence of the rule of law.

Freedom and justice are also considered to be the basic elements of rule of law. The

concept of Rule of law has developed after nurturing the various phases of its evolution

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and it is still an ongoing process because one of the most important element of rule of law

is dynamicity in nature.

In order to understand the concept of Rule of Law deeply, it is essential to take us a

rewinding step and look back at the World History to find out the circumstances during

that time and how Rule of law was evolved in the developing process. If we look at

Ancient India, naturally this question comes to our mind that was there Rule of law

prevailing at that time, as it is very well known that monarchy was dominant and what

came out of the lips of the king became the law of the land. There was no legislative

authority prevailing and the ministers were under the direct control of the king and

generally were not accountable to the people and the primary function of king’s court was

to deliver justice and it denotes the absence of institution of law during that time and it

can be concluded that Rule of law was in a dormant state at that particular point of time.2

Considering this point it would be very unjust to say that justness was not prevailing at

that time. There were various edicts that were setup by the rulers, morality embedded

laws and it is quite evident that every rule commanded obedience of one kind or another

and only the monarch was above the law. If the Ancient Greek History is looked into,

philosophers like Plato, Aristotle and Aquinas propounded the theory of Rule of law and

they were one of the greatest champions of democratic system. It is the democracy out of

which the new buds of Rule of Law was born especially when we look at the facets of

Constitutional Law and any code of conduct which gets the support of the people gets the

status of Rule of law. If the major constitutions of the world are looked into like US

Constitution, Indian Constitution, Irish Constitution and Australian Constitution it can be

very well seen that the pillars on which the Fundamental Rights are sustaining are Rule of

Law. In every major Constitution the principle of Rule of Law is clearly reflected

whether it is expressly mentioned or not. It is also very much important that the Rule of

law is for the good of the people, no matter how true the fact is that Rule of law is

supreme in nature, but still it should yield to basic morality and principles of ethics. But

generally speaking, always the case is not so but the strive should ways towards be to

2 P. Chidambaram, Aspects of Rule of Law, in RULE OF LAW IN A FREE SOCIETY, (Oxford

Publications, ed., 2008)

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achieve the sound Rule of Law under the shadow of which the citizens can establish a

strong progressive society.

There are also some other aspects of Rule of Law, one being the Right to equality before

and law and that one can only be punished for the breach of a particular law in force.

Right to Equality means that everyone is equal before the eyes of law and there cannot be

any discrimination between individuals when it comes to the question of delivering

justice. From the very high position of the Prime Minister to the position of the constable

there should be equality prevailing. Prohibition of discrimination forms the fulcrum of

Rule of Law. Discrimination without any reasonability itself would be against the Rule of

Law, but it also equally true that equality does not strictly mean mathematical equality. It

always means that equals should be treated equally in aspects in which they are similar

and different treatment in circumstances in which they are unequal otherwise it would go

against the principle of Rule of Law. If adults and children are treated equally or if poor

and rich are treated equally, ultimately it would go against the rule of equality and thus

seriously violating Rule of Law. If there is a reasonable classification as to why an

individual or group of individual is separated and what is the nexus that is to be achieved

behind that classification is established then it is according to the provisions of Rule of

Law.

Another facet of Rule of Law is that a person can only be punished for violation of a

particular law and for a law in force. It is very much necessary because when an act is

committed, if it is not an offence during the time of its commission and subsequently a

law is passed declaring that act to be an offence and applying punishment in a

retrospective manner, a person cannot be punished on that basis. This is a very important

aspect of Rule of Law as it forms the pivot center of the basis of conviction of a person

regarding a particular offence. Retrospective operation of criminal law is very much

against the doctrine of Rule of Law. This concept has been very beautifully portrayed in

Article 20(1) of The Constitution of India which lays down that criminal laws cannot be

applied retrospectively and also the penalty imposed cannot have a retrospective

operation.

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It can be well stated that Rule of Law has a very wide concept and its sphere of

discussion is vast enough and the other facets and their application is to be discussed by

seeing how is it practically applicable and feasible for Rule of Law to exist maintain law

and order in a civilized society.

RULE OF LAW AND INDIAN CONSTITUTION

It is a predominant fact that The Constitution of India was greatly influenced by the

vision of Pandit Jawaharlal Nehru. The Constitution of India also reflects the thirsty

nature of the Rule of Law in order to provide protective coverage for the people of the

country. Throughout the Constitution of India, Rule of law is clearly reflected to the best

of its ability and after it came into force it became the mother statute of the Republic and

it was a matter of fact that huge mass of heterogeneous people were brought together and

linked to one vertebral cord namely The Constitution of India.3 As we have earlier

discussed about the aspects of Rule of Law being supremacy and procedural fairness,

Article 21 of The Constitution of India is the hub of rule of law because it is embodiment

of procedural fairness. Though on reading the black letters of Article 21 it cannot be

concluded that procedural fairness is directly reflected but on going through the various

judicial pronouncements that are made by the Supreme Court it is very clear that

procedural fairness has been gradually established, in a slow and steady manner. Here an

example is to be pointed out, a true incident which took place in Rochester. In Rochester,

one man who had stolen was given the punishment that he would fried alive in front of

general public. So in this context, it can be well seen that The Rule of Law is inhuman,

stealing has been well defined by the substantive law but the procedural part is inhuman.

The Supreme Court of India has been the savior of Rule of Law and upholding it in The

Constitution of India. Two decisions became the savior, one is being Keshavananda

Bharati v. Union of India,4 it was pronounced at a certain stag when the scenario was of

3 K.T. Thom, The Constitution of India and Rule of Law, in RULE OF LAW IN FREE SOCIETY, (Oxford

Publications, ed., 2008)

4 Keshavananda Bharati v. Union of India, (1973) 4 SCC 225.

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Parliamentary Supremacy, but the Supreme Court held a detailed discussion that the

Constitutional Law was supreme and thus it is very clearly reflected that Rule of Law

was affirmed and upheld by The apex Court. The majority of the opinion involved that

the Parliament did have the power to amend the Constitution but it cannot change the

basic structure and feature and essence of Rule of law prevalent in The Constitution. It

can be also put in another way that a creature of The Constitution is ought not to be

greater than the creator. But very unfortunate was the after effect of the judgment and the

decision did invite the wrath of ruling politicians and they decided to bring indirect

attacks to the Judiciary and on the very day of the pronouncing of Judgment, Chief

Justice Sikri had retired from his post and all other three judges who were among the

majority, their appointment order for the post Chief Justice of India was bypassed.

Article 21 is to be called a fulcrum of Rule of law in republic. In the case of Maneka

Gandhi v. Union of India5, The Honorable Supreme Court of India adopted a new

dimension in the interpretation of Article 21 by inserting the element of reasonability of

any procedural law. The Supreme Court in that case adopted new dimension in the

interpretation of Article 21 and just, fair and reasonable procedure was brought into. No

matter how much high a person be in a particular society but law is always considered

supreme in nature. Earlier Article 21 was interpreted by the Supreme Court in a very

restrictive manner an only process established by law was given stress, whether that

procedure was reasonable or it was feasible to carry out the procedure was ignored. An

example is to be cited in this particular case regarding a law which prevailed in Rochester

which allowed frying of a man alive in a pan for the offence of stealing in front of general

public. This itself portrays that Rule of Law was completely absent in the present case.

Stealing is an offence is agreed upon and there is no question regarding the substantive

part of it, but regarding the procedural part is completely devoid of any morals or general

principles of equity and justice. This glitch was also there in Article 21 regarding the

procedural fairness but in later subsequent years through various judicial interpretations

of The Supreme Court, this glitch was removed and now procedural fairness has been the

fulcrum of Rule of Law. The Maneka Gandhi case was a new beginning to the

interpretation of Article 21 under the light of Rule of Law. The rigidity and

5 Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 62.

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jurisprudential view of Rule of Law was stated in that particular case and also was a

precedent to be followed in the later stages of development of Rule of Law.

THREATS TO RULE OF LAW

In the present world, the Rule of Law is being subjected to many threats which are

seriously affecting the implementation of it. Corruption can be considered one of the

biggest threat to Rule of Law. What distinguishes a civilized and uncivilized society is

Rule of Law and in the world’s biggest democracy, the Rule of Law is at stake.

Corruption involves the use of public office and to have private gain in order to satisfy

one’s own greed and demands. Corruption results in the smooth functioning of Rule of

Law and slowly the society moves towards anarchy. The Judiciary is given the main

responsibility of the interpretation of the laws in force and while so if a Judge is within

the grip of corruption then it would necessarily lead to misinterpretation of any law and

finally disrupts the entire system. The implementation of Rule of Law is to be looked

from three different aspects. The first relates to the implementation of Rule of Law as so

far as the basic law and order is considered and the second pertains to economic offences

and third relates to implementation of social legislation. Corruption is very much

widespread among the Police officials as they are vulnerable as well as can be molded

easily by giving bribes and have the main responsibility of maintenance of law and order

and investigation and detection of crime. Corruption directly results in the in destroying

the basic objectives of Rule of Law and we can see that when some beneficiary programs

are being taken up by The Government, the deprived people are not actually the

beneficiaries because of corruption. Thus the supremacy and procedural fairness of law is

not maintained in a corrupt society and this dis-balance can only be removed if the

Judiciary functions in a proper manner.

Terrorism is also a serious threat to the aspect of Rule of Law because when terrorism

spreads out it causes serious blow to the application of Rule of Law, supremacy of Law

also comes to a question at that very point of time because of the spread of terror in the

society and many of the aspects of Rule of law gets suspended. It is in the hands of the

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Government and such Government should be very effective in nature to deal with such

situations of crisis so that Rule of Law does not get diminished and glows in the society

with a bright flame of protection for the people so that peace and order is maintained.

MEASURING PRACTICAL APPLICATION OF RULE OF

LAW

Rule of Law has been evolving through various phases, but whether it is possible to

measure the practical application of law or not has been a major disputable issue. Rule of

Law has its widest application in many aspects but whether such can be capsuled and

measured or not has to be determined. In practical situations it is very difficult to measure

the practical application of Rule of Law because of it being objective in nature. When the

concept is very much objective in nature, it would naturally vary from one individual to

another. When it also comes to the question of measuring, there is no particular yardstick

that has been provided on the basis of which the practical application of Rule of Law can

be measured, it can only be analyzed to what extent the Rule of Law is governing in a

particular society taking and analytical approach to the various cases that has been

decided by the Apex Court can only lead us to what extend Rule of Law is implemented

practicality but measuring of such is not practically feasible. Obviously the development

of the Rule of Law regarding of it being fair and just can be traced to a certain extent.

When the aspect of Rule of Law mainly revolves around equality, fairness of law, and

liberty there are certain cases which has been discussed earlier like Maneka Gandhi Case

in which The Supreme Court had extended the procedural fairness ambit from procedure

established by law to just, fair and reasonable procedure so this is just a trend which can

be seen but it is not a measure, just an evolution of Rule of Law but it cannot be

considered as a measure of practical application of Rule of Law and these precedents are

subject to overruling by the Apex Court and hence it is not static, it is very much dynamic

in nature. If it would have subjected to not being changed, then it would have been very

much possible to measure the practical application of Rule of Law and in the absence of

any standards laid down or logical deduction, it is not practically possible to measure the

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application of Rule of Law, rule of law can thus be only analyzed and the evolution trend

can be captured but that is the limit only so it can be well stated that the measurability of

practical application of Rule of Law is an ambiguous concept because no platform for

such measuring standards has been laid down and is in a developing and evolving stage.

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CONCLUSION

Starting from the very inception of Rule of Law and exploring the topic, it is very much

evident that Rule of Law is of immense importance in a society for the purpose of

establishing peace and also that law acts as a check upon the hasty legislations. The major

aspects of Rule of Law being supremacy and procedural fairness have gave the Judiciary

sufficient independence in interpreting a particular legislation and also the contribution of

Judiciary contributing towards the development of legal system has been enhanced. It is

to be very much kept in mind that the essential ingredients of Rule of Law has to be

properly maintained and should be respected otherwise in turn it would cause adverse

effect on the society. Rule of law finds a very important place in The Constitution of

India and also it is very much clear that the apex court has further extended the ambit of

Rule of Law for its proper application so that justice prevails in the society. Procedural

fairness of law has been mainly highlighted by the Supreme Court which leads to

prevailing of justice.

It is also very much true that during the present times, Rule of Law has been subjected to

many threats and such threats hampers the functioning of it and gradually such a stage is

eventually to come that Rule of Law would be completely overshadowed by the ongoing

corrupt politics prevailing in the society and so it is the very high time that the Judiciary

should take proper steps to implement the Rule of Law and also lay down strict

procedures to be followed, then only Rule of Law can act within its ambit. Regarding the

measurability of practical application of Rule of Law it has always been a vague concept

because in some cases it is possible to measure the practical application of Rule of Law

but in many cases it is not feasible.

Rule of Law is the fulcrum on which the whole society is maintained and supremacy of it

should be the sole criteria for maintaining its efficiency. Also care should be

implemented that judicial restraint and judicial review forms the tool of Rule of Law in

order to maintain sound, efficient and fair legal system for the purpose of delivering of

justice to the society.

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BIBLIOGRAPHY

LIST OF BOOKS:

1. N. Madhava Menon, Rule of Law in a free Society, Oxford Publication

2. V.N. Shukla, Constitution of India, Eastern Book Company

3. Dr. J.N. Pandey, Constitutional Law, Allahabad Law Agency

ONLINE SOURCES:

1. http://legal-dictionary.thefreedictionary.com/Rule+of+law

(Last visited on 23.02.2016)

2. http://everything2.com/title/Dicey%2527s+views+on+the+rule+of+law+and+the+

supremacy+of+parliament

(Last visited on 07.03.2016)