RULE OF LAW & CONSTITUTIONALISM IN INDIA

INTRODUCTION -
The Constitution of India drafted by the Indian constitutional framers who had been taught and
influenced by the British laws and English jurisprudence which is completely based on the rule
of law. The Rule of law may be product of the development of common law in England. The
common law ensures the absence of executive Arbitrariness and rule of man, that India also
accepted and follows the concept of natural law that our written laws are to assure compliance.

The Rule of law in India guarantees the primacy of law, obedience to the law and judicial
independence, even though there is no single word of the rule of law as such in our constitution.
The independent judiciary has explained and interpreted, in several constitutional cases the rule
of law as part of basic structure of Indian constitution and also it is a system which has
safeguards against official arbitrariness, prevents, anarchy and permits the people to plan the
legal consequence of their actions.

The modern concept of the rule of law means that the administration is to be carried out, at least
in theory, in obedience to laws, which clearly defined the rights, privileges and obligations of the
subjects and not according to the discretion of the rules. It is the fundamental principle,
necessary for democracy and good governance and also ensures stability and peace.

The rule of law is the product not of a political revolution but of the past experiences of English
laws and the research and deliberation of a body of eminent representatives of the people in the
constituent assembly.

The rule of law, in brief, means that the government is run in accordance with the law of the
land. The rule of law is just opposite to rule of men. Law means law of land which is defined
under ARTICLE 13 of Indian constitution, rules means law rules since, there is no physical
existence of law so, Law means government based on principle. It means all the acts of
government should be reasonable and according to law and also it ensures the absence of
governmental arbitrariness.

What is Rule of Law?

The rule of law means that no one is above the law and that everyone is subject to the
jurisdiction of regular courts of law, regardless of their position or status.

India adopted the idea of the "rule of law," which is an English concept. No one should be
treated arbitrarily or harshly, according to the idea of the rule of law. The term "law" in the
phrase "the rule of law" refers to the requirement that no man or ruler may reign over another
man or society, but only the law. Thus, according to Article 13 of the Indian Constitution, the
term "the rule of law" refers to the law of the land.
Postulates of Rule of Law
Professor A.V. Dicey outlined three postulates or principles of the rule of law. Professor A.V.
Dicey asserts that the following three principles of postulates must be adhered to in order to
achieve the supremacy of law:

1. Supremacy of Law

Rule of law according to Dicey means the absolute supremacy or predominance of

regular law as opposed to the influence of arbitrary power or wide discretionary power.

It means the exclusion of the existence of arbitrariness on part of the government.

This in essence means that no man can be arrested, punished or be lawfully made to
suffer in body or in goods except by the due process of law and for breach of a law
established in the ordinary legal manner before the ordinary courts of the land.

2. Equality before the law

While explaining this aspect of the doctrine, Dicey stated that there must be equality
before the law or equal subjection of all classes to the ordinary law of the land
administered by the ordinary law courts.

Dicey believed that the exemption of civil servants from the jurisdiction of the ordinary
courts of law and providing them with the special tribunals was the negation of equality.

He stated that any encroachments on the jurisdiction of the courts and any restriction on
the subject’s unimpeded access to them are bound to jeopardise his rights.

3. Predominance of legal spirit or Judge-made laws

Dicey observed that in many countries rights such as the right to personal liberty,
freedom from arrest, freedom to hold public meetings, etc. are guaranteed by a written
Constitution; in England, it is not so.

In England, those rights are the result of judicial decisions in concrete cases that have
actually arisen between the parties.

Thus he emphasized the role of the courts of law as guarantors of liberty and suggested
that the rights would be secured more adequately if they were enforceable in the courts
of law than by mere declaration of those rights in a document.
Exceptions to the Rule of Law

 phrase "equality of law" does not imply that all people have the same legal rights as
public authorities. For instance, a police officer has the authority to make an arrest,
which a private individual does not.
 The application of special laws to some categories of people is not prohibited under the
rule of law; for instance, military laws apply to the armed forces.
 The Act grants extensive flexibility to ministers and other executive authorities.
 In their professional fields, certain members of society, such as lawyers, doctors, and
nurses, are subject to unique regulations.

THE COURTS OF INDIA, UPHOLD THE CONCEPT OF RULE OF LAW

FROM VARIOUS PROVISIONS-
The concept of rule of law has received immensed attention from the supreme court of India in
its various judgement.

-In ADM Jabalpur vs Shivkant Shukla (1976) the court declared that the constitution in itself is
rule of law and no one can rise above the constitutional rule of law.

-Som Raj. Vr. State of Haryana, it was held by Supreme court that normally, the order of
appointment would be in order of merit of candidates from the select list, even when the
discretion is conferred on an executive authority, it must be exercised in a reasonable manner
and should not be exercised arbitrarily.

The absence of arbitrary power is the first postulate of the rule of law upon which our whole
constitutional edifice is based. If thediscretion is exercised without any principle or without any
rule, it is a situation amounting to the autithesis of rule of law.

-Rule of law as a feature of basic structure in KesavanandaBharathi Vs state of kerala, some

of the judges constituting majority, were of the opinion that the rule of law has an element of the
doctrine of basic structure of the constitution, that even the entire power of parliament cannot
reach to amend.

-In Indira Nehru Gandhi Vs Raj Narain, wherein the apex court invalidated clause (4) of
Article 329-A inserted in the constitution by the constitution (39th Amendment) act, 1975, to
immunize the election dispute to the office of the Prime minister from any kind of judicial review,
the following facts of rule of law may be called out- that the rule of law postulates the manifested
of the spirit of law throughout the whole range of government in the sense of excluding arbitrary
official action is any sphere, that the jurisdiction of the supreme court to try a case on merits
cannot be taken away without injury to the basic, fundamental principle of the rule of law and of
justice within a politically demonstrate constitutional structure.

-The Right to equality of the Indian constitution (Article-14) is most important one which is
upholding the basic principle of rule of law in our society at arbitrary state action, both
administrative and legislative. The new orientation being given to Article-14 by the courts has
been explained by Bhagavati, J., in Bachan Singh Vs state of Punjab that rule of law which
permeates the entire fabric of the Indian constitution excludes arbitrariness, wherever we find
arbitrariness or unreasonableness there is denial of rule of law.

-In D.K.Basu Vs state of west Bengal, the supreme court held that torture by police struck a
blow at the rule of law custodial violence has been held calculated assault on human dignity,
perhaps one of the worst crimes in a civilized society governed by the rule of law. The court held
that any such acts would fall within the inhibition of Article 21.

-However the judgment of ADM Jabalpur Vs S.Shukla restricted the two essential principles of
rule of law. In this, the judge said, “Rule of law is the antithesis of arbitrariness, rule of law is
now the accepted norm of all the civilized societies, every whereit is identified with the liberty of
the individual. It seeks to maintain a balance between the opposing notion of individual liberty
and public order. In every state the problem arises of reconciling human rights with the
requirement of public interests. Such harmonizing can also be attained by the existence of
independent courts which can hold the balance between citizen and the state and compel
government to conform to the law”.

-In Chief Settlement Commissioner, Punjab Vs Om Prakash, it has observed by the

supreme court that, “In Our constitutional system, the central and most characteristics feature is
the concept of rule of law which means, in the present contact, 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 in.

From above narration, it appears that the rule of law has no fixed or articulate connotation
though the Indian court refer to this phrase time and again. The broad emphasis of rule of law is
on the absence of any centre of unlimited or arbitrary power in the country, on proper structure
and control of power, absence of arbitrariness in the government.

Government intervention in many daily activities of the citizens is on the increase creating a
possibility of arbitrariness in state action, as the bureaucrats are loyal to the political boss rather
than the constitution and the people. Therefore the rule of law is useful as counter to their
situation, because the basic emphasis of rule of law is on exclusion of arbitrariness, lawlessness
and unreasonableness on the part of the government. Therefore, rule of law has been held to
be a basic feature of the constitution.

Rule of law does not mean the rule according to statutory law pure and simple, because such a
law may it be harsh, inequitable, discriminating or unjust. Rule of law connotes some higher kind
of law which is just reasonable and non discriminatory.Rule of law today envisions not rule of
men or arbitrary power but controlled power, constitutional values, such as constitutionalism,
absence of arbitrary power in the government, liberty of the people, a free judiciary etc., are
incorporated in the concept of rule of law.It is noticed in the above discussion that supremacy of
law is the aim, rule of law is the best tool to achieve this aim.
CONCLUSION
The legislative bodies in India are composed of criminal of rape murder and corruption charges,
be never protector of fundamental rights as the dictum goes, the lost resort of scoundrels is the
politics. Therefore the politics should be cleaned and certain educational qualifications should
be imposed on politicians to become the legislators and some requisite and appropriate
electoral reforms should be implemented so that those elements in politics can be avoided.

“It is the responsibility of the public administration for effective implementation of rule of law on
constitutional commands which effectuate fairly the objective standards laid down by law”

“Every government servant holding public power is as a trustee of the society and accountable
for due effect national goals”

It clearly shows that every servant in bureaucracy, should owe allegiance to the people and the
constitution. Thus, the Hon’ble supreme court, in number of cases through its decision
established judicial authority and developed the principle of judicial review which cannot be
amended, curtailed or removed.

Therefore, it is quite evident that the constitution of India possess the concept of rule of law in its
various provisions even though the term rule of law is not employed anywhere in the
constitution. The various constitutional provisions and several number of judgment passed,
indicates undoubtly that the concept of rule of law contemplated in Indian constitution and the
rule of law remains integral part of Indian constitution.

The research would suggest, in the concluding part, the definition of the rule of law is
comprised of the following from common principles, to be observed

1. Accountability: Entire governmental systemis accountable under the law, to the

people.
2. Just laws: The laws are clear, published, stable, just and universal are applied evenly;
and protect fundamental rights, including the security of persons and property and
certain core human rights.
3. Open Government: The processes by which the laws are enacted, administered, and
enforced are accessible, fair and efficient.
4. Accessible and impartial Dispute Resolution: Justice is delivered timely by
competent,ethical and independent representatives and neutrals who are accessible
have adequate resources and reflect the makeup of the communities they serve.

Therefore common principles constitute a working definition of the rule of law. These principles
are to be applied followed and observed strictly for the purpose of the rule of law, to prevail in
the government.