General Principles of

Law - I
Legal Methods – Unit 9
Rule of Law
• The Rule of Law is a fundamental principle that refers to the concept that all individuals and
institutions are subject to and must abide by the law.
• It ensures that laws are applied equally, fairly, and consistently, without discrimination or
arbitrary exercise of power.
• Under the rule of law, everyone, including government officials, is accountable to the law, and
legal decisions are made based on established rules and procedures.
• It promotes the protection of individual rights, upholds justice, and maintains order and
stability in society.
• Example of the rule of law in action: The requirement for all individuals, including
government officials, to respect and abide by traffic laws. Regardless of one's social status or
position, everyone is expected to follow speed limits, stop at red lights, and adhere to other
traffic regulations. If a government official were to violate these laws without consequence, it
would undermine the principle of the rule of law, as it implies that certain individuals are
• The phrase “the Rule of Law” has to be distinguished from the phrase “a rule of
law”.
• The latter phrase is used to designate some particular legal rule like the rule
against perpetuities or the rule that says we have to file our taxes by a certain
date.
• Those are rules of law, but the Rule of Law is one of the ideals of our political
morality and it refers to the ascendancy of law as such and of the institutions of
the legal system in a system of governance.
• John Locke in the second of his Two Treatises of Government (1689) emphasized
the importance of governance through “established standing Laws, promulgated
and known to the People”.
• In India, the Constitution has enshrined the rule of law and its principles have
been mentioned in the Preamble and in various articles to ensure equality, justice
and freedom for all citizens Judiciary play an important role in maintaining the
Rule of Law – Case Laws
In the Keshavananda Bharati Sripadagalvaru & Ors v. State of Kerala & Anr case,
the court set out the standard of basic structure and also held that any
constitutional part can be improved without changing its basic structure.
In the case of Indira Nehru Gandhi v. Raj Narain, the court decided that the rule
of law is also a part of the basic structure of the constitution and hence, it cannot
be amended.
In the case of State of Bihar v. Sonawati Kumari, the court held that as per the
concept of rule of law, all the authorities operating within the state including
executive government is bound to obey the rules.
In the case of Union of India v. Raghubir Singh, the court held that the principle
of rule of law is a considerable degree which governs the lives of the people and
regulates the functions of the state from the decision of the superior courts.
Separation of Powers
• Separation of powers is a fundamental principle in democratic systems that
involves the division of government authority and responsibilities among
different branches.
• It divides government authority among the legislative, executive, and judicial
branches.
• This division establishes checks and balances, ensures the independence of each
branch, and prevents the abuse of power.
• It is a vital principle in democratic systems to safeguard the rights and interests of
the citizens.
• There are four principles on which this doctrine is based upon:
oExclusivity Principle - which has divided the government into three
structural organs.
oFunctional Principle - which gives the boundaries of the organs, and
that one organ shall not perform the functions of the other.
oCheck and Balance Principle - suggests that check should be made
on each other by these organs to look after the functions and duties
performed are within the constitutional bounds.
oMutuality Principle - which aims at creating concord, not discord,
cooperation not confrontation, engagement not estrangement.
Division of Powers:
• The principle of separation of powers distributes the powers and functions of
government among three distinct branches: the legislative branch, the executive
branch, and the judicial branch.
• Each branch has specific roles and responsibilities, creating a system of checks
and balances.
• Legislative Branch: The legislative branch is responsible for making laws. It
consists of the parliament or congress, which represents the people and enacts
legislation. This branch debates and passes laws that govern society and exercises
control over public finances.
• Executive Branch: The executive branch is responsible for implementing and
enforcing laws. It includes the head of state, such as a president or prime
minister, along with government departments and agencies. The executive
branch carries out the policies and decisions of the government.
• Judicial Branch: The judiciary ensures that laws are applied fairly and in
accordance with the constitution, protecting individual rights and resolving
conflicts.
Checks and Balances:
• Separation of powers establishes a system of checks and balances between the
branches of government.
• Each branch has some control over the others, which helps prevent the
concentration of power and the potential for abuse.
Montesquieu’s Contribution:
• The idea behind this doctrine is that no man should be empowered
with all these three powers.
• These should be divided accordingly that the law should be made by
legislative, administration of law should be done by executive and
judiciary should uphold the law and provide justice.
“There would be an end of everything, were the same man or same
body, whether of the nobles or of the people, to exercise those three
powers, that of enacting laws, that of executing the public resolutions,
and of trying the cause of individuals.”
Indian Scenario:
• In India there are three major powers of government and each of them is
performed by separate organ.
• Legislature is responsible for making the laws, executive is responsible for
enforcing law and judiciary is responsible for implementing laws.
• The major question that arises is that should there be dependence of these
organs on each other or whether there should be a strict separation of powers
among them.
• There is strict provision that defines separation of powers absolutely but there
are provisions in Constitution of India that have made distinction between the
powers of the organs of the government.
• Even though there is no express provision for this doctrine, but it is followed in
India in an implied manner. It has defined the roles of each organ of the
government.
• The judiciary is independent as laid down under Article 50.
• The conduct of the judges cannot be taken about in the parliament and state
legislature as provided under Article 121 and 211.
• The powers of executive are vested with president and in a state is vested with
governor as per Article 53 and 154.
• The legislature in certain cases like impeachment of the president or removing of
the judges may have judicial powers.
• Likewise, the executive has certain powers to appoint the judges and chief justice
which can affect the functioning of the judiciary.
• The executive can exercise the powers of the legislature in circumstance when
the legislature in not in session and there is an urgent need to make law.
• This is provided as under Article 123 to promulgate ordinance.
Separation of Powers – Case Laws
In Ram Jawaya Kapur v State of Punjab, it was held by the court that even
though the doctrine of separation of power is not mentioned in the constitution
but the functions of one organ should not be performed by the other.
• These organs should not exercise its powers beyond what is provided by the
constitution.
Even in the case of Indira Nehru Gandhi v Raj Narain, it was observed that the
basic structure of the constitution cannot be changed even when Article 368
provides the amendment of the constitution.
• The court further observed that the doctrine in India has a broad sense than that
of UK and USA which follow the doctrine in a very rigid manner.
Independence of Judiciary
• An independent judiciary is extremely important for a democracy to prosper. Hence, it is
expected that the judiciary should remain impartial and neutral.
• However, due to some external factors and pressure from various influential quarters, the
independence of the judiciary is often compromised.
• An independent judiciary implies that the executive and legislature should not interfere in
the work of the judiciary.
• The judiciary is expected to be free from all the influences and interests of the government
and the ruling party and should not act on its behalf.
• The concept of judicial independence has stemmed from the subject matter of the doctrine
of “Separation of Powers”, coined by the 18th-century French philosopher Montesquieu.
• However, the concept of an independent judiciary was formally adopted by England in
the Act of Settlement, 1701, though the concept of an independent judiciary took time to
flourish.
Types of Judicial Independence:
• Institutional or functional judicial independence -
o Institutional or functional judicial independence refers to the fact that the
other organs of the government should not interfere in the judiciary by any
means.
o It is solely based on the degree of separation of power.
o The judiciary is free to decide the appointments, transfers and salaries and
amenities provided to the judicial officer or the judges.
o It is the independence of the judiciary from the other institutions or organs of
the State.
o This type of judicial independence includes protection from interference and
freedom from influences of powerful individuals, groups and lobbies.
o Institutional or functional independence of the judiciary from the executive
and the legislature is fundamental to the idea of rule of law.
• Decisional judicial independence -
o Decisional judicial independence refers to the idea that a judicial officer should be
impartial, neutral and free from prejudices and any biases while deciding any
particular case.
o The independence of an individual judge is termed decisional judicial independence.
o It also includes the fact that a judge should decide a case based on the concerning
facts and laws only without being affected by the opinions of the media, politics,
pressure or interference or influence from any quarter and fear of any penalty in
their own careers.
o Decisional judicial independence is again of two types. They are:
i. Substantive judicial independence which means that while deciding a case and
exercising judicial powers conferred upon them, the individual judges are not
subordinate to any other authority but are the law themselves.
ii. Personal judicial independence refers to the fact that judges should be
impartial or neutral without any influence or fear and they should decide the
case based on the facts of the case and existing laws.
The UN Basic Principle:
• The UN Basic Principles on the Independence of the Judiciary was adopted on 6th
September 1985 by the Seventh United Nations Congress on the Prevention of
Crime and the Treatment of Offenders held in Milan, Italy.
• The idea behind the adoption of the principles was to provide a framework to
administer an independent judiciary in every country and enable a judge to do his
duty impartially by following the principles.
• The principles emphasised the selection, appointment, conduct and training of
the judges since they play the most important role in running the judiciary.
Independence of Judiciary – Case Laws
A landmark judgment delivered by the US Supreme Court in the case of United
States v. Nixon (1974), a unanimous decision was passed against President
Richard Nixon, asking him to submit the Watergate Trial Tapes, which upheld the
principle of Rule of Law and subsequently reminded that even the US President is
not above the law.
Similarly, in an Indian case of State Of U.P v. Raj Narain & Ors (1975), the
Allahabad High Court declared the then Prime Minister of India Indira Gandhi
guilty of electoral malpractices and therefore ordered to set aside the election.