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Legal Spectrum Journal Sr wwwezalspectrurniournal.in ISSN (O): 2582-9483

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Rule of Law: Tug of War Among Public, Executive, and Judiciary

By, Prachi Kumari

Abstract
The "Rule of Law" embodies a set of legal principles integral to everyday situations,

acknowledged by governing bodies and articulated in legal doctrines. In the context of the Indian
Constitution, the Preamble outlines fundamental concepts, with Part III enforcing these
principles. The executive branch is mandated to adhere to and be subservient to the

Constitution. Judicial review; a constitutional provision, allows individuals to appeal to higher

courts to protect their rights. This ensures that executive actions contrary to legal norms can be
invalidated by the regular court system.
The crux of our constitutional system lies in the rule of law, granting law courts jurisdiction to

evaluate administrative actions for legality. The state, under the rule of law, operates based on
legal principles rather than individual whi ms. This concept upholds values like freedom, equality,

non-discrimination, and accountability. The term, in its strict sense, denotes a literary analysis
method emphasizing a work's form over content.

In the realm of citizen-government interaction regulation, this concept serves as an ethical

foundation, emphasizing equality, freedom, and accountability. Different societal codes may

vary, but their core premise remains consistent. The government is obligated to provide an
environment where individuals can reach their full potential, ensuring rights to free speech,
liberty, and expression. Additionally, accountability demands that governmental actions adhere
to legal, social justice, appropriateness, and rationality norms.

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1. Introduction

The entire concept of "The rule of law" originated from a well-known phrase in French.1 The

discourse pertains to a system of governance that is founded upon the principles of legal
framework and impartiality, contrasting against the capricious judgments of an autocratic ruler.
According to the dictionary, the connotation of the principle of "Rule of Law" means a set of

legal principles that are commonly applied in everyday situations, acknowledged by governing

organizations' logical propositions, i.e., authorities, and other things expressed in the form. As

defined by the Oxford Advanced Learner's Dictionary, the concept of the Rule of Law pertains
to a state of affairs wherein both the governing authority and all members of society are bound

by legal principles and regulations.

The Preamble2 explicitly espouses the principles of Freedom'. The aforementioned notions are

expounded upon in Part III of the Constitution and are rendered capable of being enforced.
The executive branch is not solely subordinate to the Constitution, but is also obligated to
operate in accordance with the provisions outlined in the Constitution. The Constitution
embodies the notion of judicial review. Individuals have the option to seek recourse through the
higher court in order to ensure the implcentation of their rights. The concept of rights' is a

cornerstone of legal and political systems. In the event that the Executive or government engages
in the misuse of the authority entrusted to it, or if the activity is deemed to be mala fide, it might

be invalidated by the regular judicial system.

In the case of Chief Settlement Commissioner Punjab v. Om Prakash, the apex court held5 that the
core and most distinguishing element of our constitutional system has been noticed to the rule
of law, means the authority vested in the law courts within the current setting. The objective is
to evaluate all administrative actions based on the criterion of legality. The doctrine was further
supplemented by the Court's ruling. The concept of rule of law refutes the notion of a dual state
when governmental actions are carried out in a fragmented manner.

The concept entails that States are governed by the adherence to established rules and laws,

rather than being subject to arbitrary actions by any individual or entity. The term "rule of law"

denotes a state of affairs in which all actions and decisions are required to adhere to legal

1 La Principle de Legalite (the principle of legality).

z Constitution of India Act 1950, Preamble.
3 Justice, Liberty, and Equality.
4 Constitution of India Act
1950,Part III, Fundamental Rights.
5 Chief Settlement Commissioner Punjab v. Om Prakash, 1968 SCR (3) 655.

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principles and regulations. This term is employed as a contrasting concept to the notions of rule

of man and government according to law. This statement asserts that the ideals of freedom,

equality, non-discrimination, fraternity, accountability, and non-arbitrariness form the

foundation of legal regulations.

The idea itself can be comprehended and implemented within two discrete situations. The strict
sense pertains to a methodological technique employed in the realm of literary evaluation, which

directs attention towards the form or framework of a literary piece, as opposed to its contents or
historical backdrop.

This method focused the concept of organized power in contrast to autocratic control. The

concept of an idealistic sense refers to a perspective or mindset that is characterized by a strong

belief in and pursuit of ideals or principles. The regulation pertaining to the interaction between
citizens and the government.

In this context, the notion assumes the role of an ethical framework governing the exercise of

public power inside any given nation. The code's contents may vary throughout different

communities, but, its fundamental idea remains consistent.

Equality: The primary responsibility of the government is to establish a conducive environment

that enables individuals to fully cultivate tieir personal potential.

Freedom: Individuals must possess the fundamental right to exercise freedom in several aspects,

such as free speech, liberty, and expression.

Accountability refers to the fundamental principle that the government is obligated to be

answerable to the populace for its actions. All actions undertaken by the entity in question must

adhere to legal standards, while also aligning with principles of social justice, appropriateness,

and reasonableness.

1.1. Criticism of A.V. Dicey Theory

The concept proposed by Professor A. V. Dicey, which found favor among proponents of
nineteenth-century individualism, has encountered scrutiny in contemporary times. Scholars and

thinkers have expressed criticism towards the findings and assertions put out by A.V. Dicey,
citing various fallacies that are present within his work. The authors Wade and Forsyth

contended that despite the existence of the Rex Non-Protest Peccare, or The King Can Do No

Wrong, principle in England, the application of the law was not consistently strict. Dicey faced

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criticism for disregarding the King's immunity and affirming that England adheres to the ideal
of equality under the law, which is a fundamental tenet of the rule of law.6

The individual in question is W. Paton. According to his statement, the U.K. Constitution is

the outcome of a political fight rather than being derived from logical deductions based on the
Rule of Law. In contrast, Dicey asserted that the Rule of Law was duly taken into account

throughout the drafting of the U.K. Constitution, hence justifying the inclusion of the Preamble.

The notion was vehemently challenged by G.W. Paton. The individual in question is W.I.

Jennings. The user critically examined the three interpretations of the Rule of Law as presented

by Dicey in his scholarly publication. The initial interpretation attributed to the Rule of Law
pertained to the concept of legal supreiacy, wherein law is upheld as a counterforce against

arbitrary authority, hence negating the presence of extensive discretionary powers held by the
government.

Nevertheless, Dicey's analysis was flawed in its failure to differentiate between arbitrary and
discretionary powers, as there were instances throughout Dice's era where public authorities
possessed significant discretionary powers. The parliament's use of legislative power was also
subject to a discretionary authority vested in it. Furthermore, While the exercise of arbitrary

authority is incongruous with the principles of the rule of the law, discretionary power can be

considered compatible if it is employed appropriately. Furthermore, Dicey placed significant

stress on the notion that everyone is bound by the general laws of the jurisdiction, which are
enacted by ordinary courts. In this context, Dr. Jennings drew our attention to the increasing
prevalence of endowing administrative tribunals and committees with decision-making powers,

along with the provision of immunity to public employees in the execution of their duties. The

crown was granted immunity based on the legal principle known as tle theory of the king can

do no wrong. Special immunity was granted to police officers, while government officials were

afforded broad discretionary rights under multiple Acts. Thirdly, as asserted by Dicey, the
fundamental principles of the English Constitution are derived from the customary rules of the
nation, indicating that they are established by judicial rulings. Dr. Jennings perceived this

assertion as exaggerated, given Dicey's analysis was confined to specific rights enjoyed by

individuals, such as the freedom of expression and similar entitlements. Indeed, the core
principles of the British Constitution are not primarily derived from judicial interpretation.
'

6 Wormuth, Francis. The Origins of Modern Constitutionalism, 1949 p. 28.

7 Ibid.

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Advantages of the Doctrine are imperative as every administration adheres to the principles of

the rule of law, rather than attempting to exert control over the law itself. It presents a stance

against the exercise of unrestricted and subjective decision-making powers by governmental

entities. 8 The implementation of this measure effectively ensures the adherence of administrative
acts to their prescribed boundaries, hence preventing the misuse or excessive use of
administrative authority. There is no inherent conflict between the principles of the rule of law
and administrative law, provided that we adhere to Dicey's notion of the lack of arbitrariness and

the principle of equality before the law.9

2. Origins and Sources of Rule of Law

The concept has a lengthy historical lineage." According to Plato, he expressed the belief that
when the law is subordiiate to another authority and lacks autonomy, the eventual downfall of
the State is imminent. However, if the law holds supremacy over the government, with the

government serving as its subordinate, then the situation holds great potential and individuals
can experience the multitude of benefits bestowed upon a state by the gods. Aristotle also posited
that the existence of rules implies the necessity for people in positions of authority to act as

servants to these laws. Aristotle additionally emphasized the significance of justice, fairness, and
inclusivity as fundamental pillars underlying the notion of the rule of law.
"

Rule of law currently encompasses a multifaceted framework of fundamental principles. These

principles include the notions of consistency, transparency, and responsibility within the realm

of administrative law. Additionally, they encompass the ideas of impartiality in legal proceedings,

equitable treatment of the government under the law, an the autonomy of the judiciary.

The historical origins of the Rule of Law can be traced to the thirteenth century A.D., namely

during the reign of Henry III, when Henry de Bracton, a prominent judge of that era,

articulated the principle that the King should be bound by both divine authority and legal norms.

8 Supra 12.
9 Gedicks, Frederick. "An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law
Constitutionalism, and the Fifth Amendment", Emory Law Journal, vol. 58, pp. 585-673 (2009).
10 Society, National Geographic (15 March 2019). "Rule of Law". National Geographic Society.
'Around 350 BC, Greek philosophers like Plato and Aristotle addressed the idea of the rule of law'.
1 "Rule of Law, Definition, Implications, Significance, & Facts I Britannica". www.britannica.com. Retrieved 03-

Sep- 2023 at 15:29.

12 Ibid.

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De Bracton's assertion emphasized that the King's position as monarch was contingent upon the

existence and adherence to the law.

"
Nevertheless, it is worth noting that the specific phrase Rule of Law was not employed by him,

so the attribution for its coinage is commonly ascribed to Edward Coke. He further emphasized

the importance of the rule of law over the notion of divine entitlement. The concept of the rule
of law is often attributed to Sir Edward Coke, who served as Chief Justice during the reign of

James I.

Professor A.V. Dicey made a notable contribution to the conceptualization of the Rule of Law
in his seminal work,14 which was published in 1885. In this comprehensive research, Dicey

extensively examined the concept of the Rule of Law. Dicey asserts that individuals should not
be subjected to punishment or compelled to endure physical or material harm unless there exists

a substantiated legal transgression that has been established through a formal judicial process.
The individual advocated for the principle of legal supremacy and expressed concern regarding

the allocation of excessive discretionary powers to the executive branch, as such an arrangement
might potentially result in the misuse of authority or the manifestation of arbitrary decision-
making, ultimately undermining the preservation of individual liberties.

The concept of the Rule of Law, as fornulated by the renowned English jurist Dicey, is a

prominent theoretical framework. According to the Department for International Development,

the Rule of Law holds significant importance as a fundamental characteristic following the
principle of parliamentary sovereignty within the framework of the British Constitution.

There are three distinctive characteristics of the British Constitution that warrant attention.
Additionally, according to the DIECY (Department of International Economic and Social

Affairs), the Rule of Law encompasses three specific interpretations.

1. The Supremacy of Law

2. Equality before the Law

3. Convocation

2.1. Supremacy of Law

13 Ibid.
14 Introduction to the Study of the Law of the Constitution.
11 Ibid.

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In England, individuals cannot be subjected to physical or financial harm as a consequence of a

specific violation of the law. The aforementioned legislation exhibits notable distinctions when

compared to the legal framework employed in most European nations. In numerous European
nations, the administrative authorities have

the authority to apprehend individuals and detain them for a limited duration solely on the
grounds of suspicion.

The significance of the rule DIECY' was demonstrated by Voltaire, reflecting the sentiments of

both the general people and himself during that particular era. When the renowned French
philosopher Voltaire visited England, he effectively embedied the prevailing sentiments of his

era. The primary sentiment expressed by the individual was evidently that he had transitioned
from a state of dictatorship to a domain where regulations, althougl poentially severe, governed

the actions of individuals rather than arbitrary whims.

In alternative terms, it might be ppsited that in accordance with the initial interpretation of
Dicey's Rule of Law. In England, individuals, regardless of their social status or governmental

authority, are protected from the arbitrary deprivation of life, property, freedom, or
imprisonment by administrative authorities. Instead, a fair and transparent process is followed,

wherein allegations are openly heard and individuals under scrutiny are afforded ample

opportunity to present their case and provide explanations.

In summary, it can be claimed that Dicey's first rule pertains to the concept of absolute
supremacy of regular law. The absence of arbitrary power, including arbitrariness and extensive
discretionary authority, particularly within the realm of governmental power. The individual
held the belief that in Situations where discretion is present, there exists the potential for

arbitrariness.

The exercise of discretionary power by the government poses a potential threat to the legal
freedoms enjoyed by its citizens. Individuals of the male gender are immune from apprehension,

penalization, or justifiable infliction of physical or material harm, unless they have committed a
violation of legislation duly enacted through the customary legal process, adjudicated by the
regular judicial bodies within the jurisdiction.

2.2. Institutions and Legal Culture

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Due to these factors, it is more appropriate to perceive the rule of law not as a precise plan for

constructing institutions, but rather as a set of principles or ideals that might guide such

construction and can thus be pursued through diverse approaches. However, there are numerous

basic and widely applicable institutional observations that can be derived from the concept that
individuals responsible for assessing the legitimacy of power should be distinct from those who

wield it. For example, in a rule-of-law state, there is a customary practice of establishing
mechanisms to safeguard legal authorities from any form of intervention, whether political or

otherwise, that poses a risk to their autonomy. The institutional division of the judiciary from
other departments of government is widely seen as a significant characteristic of states that adhere
to the rule of law. In addition, it is imnerative fOr rule-of-law regimes to consider other measures

that contribute to the equitale access of legal institutions, Furthermore, it is commonly

acknowledged that the implementation of a legally binding written constitution significantly

contributes to the promotion and enforcement of the rule of law.

3. Equality Before Law

In the context of England, it is observed that individuals occupving positions ranging from the
Prime Minister to ordinary citizens are eqUally subject to the same legal framework and judicial

system. It refers to the universal compliance of individuals from all social strata with the legal
framework established by the judiciary. Irrespective of an individual's social status, every person
is subject to the law and shall be treated with equl regard by the legal system. The second

interpretation provided by DIECY holds particular significance within the framework of the

concept.

DIECY expressed a sense of pride in highlighting the absence of a concept like to DROIT

ADMINISTRATIVE in England. Droit Administrative refers to tle segment of French Law that
encompasses the following aspects:

i. The establishment of the roles and responsibilities of all government officials,

ii. When private individuals when engaging with officials acting on behalf of the state

what are their rights and liabilities, and

iii. The mechanisms employed to enforce these rights and liabilities. In France, a
historical presence of two distinct judicial systems has been observed: the Ordinary

Courts, which traditionally oversaw the application of laws in disputes between

16 David Clarke, "The many meanings of the rule of law" in Kanishka Jayasuriya, ed., Law, Capitalism and Power in
Asia (New York: Routledge, 1998).

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individuals. The Administrative Courts are responsible for the application and
interpretation of laws pertaining to the relationship between individuals and the

state.

The Ordinary Courts derived its legal principles from the civil courts, whereas the Administrative

Courts established a system of case law through the decisions made by Administrative Tribunals.

DIECY espoused the perspective that Droit Administrative is incongruous with the fundamental

notions of the Rule of Law. Dicey's second principle asserts that all classes should be equally

subjected to the ordinary law of the land, which is enforced by the common law courts.17

According to his statement, people holding various positions of authority, ranging from the

prime minister to a constable or collector of taxes, bear equal responsibility as ordinary citizens
for any actions performed without legal justification. In England, all individuals are subject to a

unified legal system, devoid of superior tribunals or specialized courts designated for government
officials and other authorities.

In the context of the French legal system of droit administrative, it was customary to establish

separate administrative tribunals to adjudicate issues involving disputes between state officials
and civilians. The exclusion of civil officials from the jurisdiction of ordinary courts represents a

violation of the principle of equality. DiceN s interpretation of administrative law was flawed since
he mistakenly believed that it solely encompassed the French system. However, it is important to

note that administrative law extends beyond the confines of the French model. The individual
in question did not exhibit care for the entirety of the legal framework pertaining to

administration, but rather focused on a specific facet known as administrative adjudication. The
significance of Article 1418 lies in its provision for equality before the law and equal protection

of laws.

3.1. The Predominance of Legal Spirit

According to Dicey's third premise, the general principles of the Constitution1 9 are derived from

the application of the Liberty of the British People, which is shaped by the rulings of the English
Courts in specific legal instances. In numerous nations, the Constitutional provisions of
Fundamental Rights are enshrined, such as in the cases of India and the United States.
Therefore, it can be observed that the foundation of fundamental rights in these nations is inside

17 Ibid.
18 Constitution of India Act 1950 , a.14.
19 Constitution of India Act 1950.

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their own constitutions. Therefore, in these nations, the constitution takes precedence above the
rights of the population.

Contrarily, Dicey asserts that in England, the Rights2 0 are bestowed by the courts as a

consequence of their decisions in specific cases. In England, the foundation of Fundamental

Rights does not lie inside the constitution, but rather within the judicial system. According to
Dicey's third premise, the general principles of the Indian constitution are established by the

court of India, which determines the rights of private individuals in specific circumstances. As
per his statement, the citizens of India are entitled to specific rights, including the right to

personal liberty and protection against arbitrary detention, as enshrined in the constitution of

numerous nations. Based on Dicey's conceptualization of the rule of law, the rights can only be

deemed accessible to the general populace provided they possess valid enforceability inside
judicial systems. It is imperative that all decisions made by the administration has legal
justification and are executed in compliance with the law. The concept of the rule of law in

contemporary society is characterized by its opposition to the use of discretionary powers by the
government. It emphasizes the principle that all individuals are subject to the same legal
framework within a nation, and underscores the notion that no person's rights and freedoms

can be infringed upon through administr five, actions. In summary, the foundational tenets of

the constitution, such as the right to liberty and the right to public assembly, have been
established via judicial rulings that have determined the rights of individuals in specific

circumstances presented before the court. He placed emphasis on the role of courts of law as

guarantors of liberty. 21

The mere inclusion or incorporation of certain rights within a written constitution holds limited

significance in the absence of robust mechanisms for safeguarding and enforcing those rights.
The availability of rights to citizens is contingent upon their enforceability within the legal

system. The individual expresses concern with the potential abrogation of fundamental rights if

they are solely derived from a document, as such rights could be altered or revoked by
constitutional amendments.

The rule of law comprises fundamental concepts about the establishment of rules in a society, in

addition to specific qualities relevant to the type and content of these laws. It is crucial that laws

exhibit attributes of transparency and precision, adhere to a standardized structure, have broad

20 Wormuth, Francis. The Origins of Modern Constitutionalism, p. 28 (1949).

21 Ibid.

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applicability, and be easily accessible to all members of society. Moreover, it is crucial that legal
requirements are formulated in a way that enables individuals to understand and comply with
them without imposing an undue amount of cognitive or behavioral challenges. Hence, it is

crucial that the legal framework maintains coherence and encompasses unambiguous and precise
standards that persons can consult before engaging in any course of action. Furthermore, it is

imperative that legal obligations are not retroactively imposed. Furthermore, it is crucial for the
rules to uphold internal consistency and, in the case of any discrepancies, it should establish

methods to resolve such conflicts in legal ways.22

Notwithstanding the presence of these fundamental characteristics, it is noteworthy that a

universally acknowledged or methodical articulation of the rule of law has yet to materialize

(although numerous endeavors have been made by legal scholars and political philosophers). The
concept that the legal systei should play a role in directing and limiting the use of governmental
authority for the greater good can be subject to varying interpretations. These discrepancies

become particularly evident when examining historical shifts and comparing different political
systems.

4. Development of Rule of Law in India

The Upanishads, a collection of ancient texts in India, are the earliest source in which the Rule

of Law is believed to have emerged. The Ten Commandments, the Dharma Chakra, the
Mahabharata, and other significant literary works exhibit discernible elements of it. At present,

there is a dearth of existing drafts that engage with or make any mention of the concept of the
Rule of Law. Several Constitutional Articles in India are considered to embody the principle of

the Rule of Law. The individuals responsible for drafting our Constitution are not just well-

versed in the principles of the Rule of Law as articulated by Dicey, but also in its application as
adapted in British India. The Constitution 3
serves as the fundamental standard of the nation,
providing the basis for the authority of all other laws. As such, these laws are subordinate to the
Constitution and are designed to protect the principles of the Rule of Law as envisioned in the
Constitution.

According to Article 13(1),24 legislation must adhere to the other articles of Constitution;

otherwise, it will be deemed null and void. Therefore, it is imperative that all legislation aligns

22 Supra 12.
23 Constitution of India Act 1950.
24 Constitution of India Act 1950, a. 13(1).

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with the provisions outlined in the constitution. The inclusion of the terms justice, liberty, and
equality in the Preamble serves as a distinct indication of a system that is both just and

equitable, ensuring that there is no discernible discrepancy among individuals, regardless of their

social standing. The concept of equality before the law of Dicey, as articulated in his work, finds
its embodiment in Article 1426. This constitutional provision establishes the fundamental of

equality before the law and equal protection of laws. The constitution guarantees every individual
the fundamental human right to life and personal liberty.

4.1. Judicial Pronouncement

In addition to the constitutional provisions, judicial rulings have significantly contributed to the

comprehension and advancement of the Rule of Law in India. The Rule of Law is widely
recognized as an integral component of the fundamental framework of the Constitution,
rendering it immune to abrogation or destruction, even by the legislative body. Numerous legal
scholars have expressed the viewpoint that the Rule of Law serves as the fundamental principle
upon which our constitution is established. In the case Justice R.S. Pathak emphasized the
fundamental importance of the Rule of Law in our constitutional system. He asserted that within

a system structured in this manner, the notion of legitimate power cannot encompass

arbitrariness or exceed the limits of rationality.

Judicial decisions have served a crucial role in mitigating any potential instances of arbitrary
actions by the state. In the case28 , the Supreme Court determined that as a welfare State, our
nation is governed and supervised by the principles of the Rule of Law.

It was established in the case29 that the judiciary would safeguard against the government's

arbitrary exercise of authority, thereby protecting the fundamental rights of the citizens.

The Supreme Court, in the case, engaged in the interpretation of Article 14,31 resulting in an
expansion of its scope. This article was imbued with a novel dimension, which was regarded as a

safeguard against arbitrary actions.

" Constitution of India Act 1950, Preamble.

26 Constitution of India Act 1950, a. 14.
27 Suman Gupta and Ors. Etc v. State of J & K and Ors, AIR 1983 SC 1235 'It must be remembered that our entire
constitutional system is founded on the Rule of Law, and in any system so designed it is impossible to conceive of legitimate power
which is arbitrary in characterand travels beyond the bounds of reason.
28 A.K. Kraipak v. Union of India AIR 1970 SC 150..
29 Maneka Gandhi v. Union of India AIR 1978 SC 597.
3 E.P. Royappa v State of Tamil Nadu AIR 1974 SC 555.

31 Constitution of India 1950, a.14.

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In the Smt. Indira Gandhi case32 , the Supreme Court of India made a significant ruling. The

Supreme Court determined that the principle of Rule of Law, as enshrined in Article 1433 of the

Constitution, is a fundamental aspect of the Indian Constitution. Consequently, it cannot be

undermined or nullified through a constitutional amendment under Article 368.34

India's judiciary, in accordance with the third tenet of the Rule of Law, operates independently

and exercises oversight over the various branches of power, while concurrently carrying out its

tasks autonomously.

The case 35 involved a challenge to the constitutional validity of Article 323A and 323B 36. The

argument put forth was that these provisions are in onsistent with the principles of the

constitution as they restrict the jurisdiction of the Supreme Court under Article 3237 and the
High Court under Article 2263 in cases that are heard by the Central Administrative Tribunal

under the aforementioeed provisions. The court rendered a verdict affirming the inclusion of
the independence of the judiciary as an integral component of the fundamental framework.
Additionally, the court invalidated the amendment made to article 323A.39

In the case, the Supreme Court determined that matters concerning the legality of

governmental actions shall be adjudicated by judges who maintain independence from the
executive branch. Consequently, maintaining oversight over the extra vires or arbitrary actions

of the Government.

The case,41 commonly referred to as the Habeas Corpus Case, holds significant importance in
relation to the principle of the Rule of Law. The matter presented before the Supreme Court

pertained to the existence of any further source of the Rule of Law in India, apart from Article
2142 within the constitutional framework. The majority verdict on this matter was unfavorable,

but Justice H.R. Khanna expressed a dissenting viewpoint.

32 Smt. Indira Nehru Gandhi v. Shri Raj Narain 1975 SCR (3) 333.
3 Ibid.
3 Constitution of India 1950, a.368.
3 L Chandra Kumar v Union of India 1997 (2) SCR 1186.
36 Constitution of India 1950, a. 323A and 323B.

37 Constitution of India 1950, a.3 2

.

22
38 Constitution of India 1950, a. 6.
39 Constitution of India 1950, a.324 A.
4o Supra 31.
41 ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1283.
2
42 Constitution of India 1950, a. 1.

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He noted that even in the absence of Article 21,4 the state lacks the jurisdiction to deprive an
individual of their life and liberty without legal authorization.

4.2. Analysis
The constitutional framers incorporated the principle of the Rule of Law inside the framework

of our constitution. The three branches of government collaborate with one another to establish

the Rule of Law by means of a system of checks and balances. The judiciary has played a

significant role in the establishment of the Rule of Law, garnering equal endorsement from both
the general populace and the government by upholding legislation passed by the legislature and
interpreted by the courts. Instances have occurred wherein members of the general public have

turned to acts of violence against an Act to Parliament or a Judicial pronouncement, or have

engaged in conduct that are in violation of the law. These activities frequently stem from

individuals' assumption that engaging in such actions does not contradict the concepts of Law

and Justice. As a result, these circumstances have given rise to a situation in which the idea of
Rule of Law exists primarily as an abstract concept in theory (de jure), while in reality (de facto),

the authority of individuals has taken precedence.

The judiciary has played a significant role in the establishment of the Rule of Law, garnering

equal endorsement from both the general populace and the government by upholding legislation

passed by the legislature and interpreted by the ou rts. Instances have occurred wherein members
of the general public have turned to acts of violence against an Act to Parliament or a Judicial

pronouncement, or have engaged in conduct that are in violation of the law, These activities
frequently stem Iram individuals' assumpti on that engagimg in such actions does not contradict

the concepts of Law and Justice. As a result, these circumstances have given rise to a situation in

which the idea of Rule of Law exists primarily as an abstract concept in theory (de jure), while in
reality (de facto), the authority of individuals has taken precedence,

4.3. Instance where Rule of Law is not prevailed

India adheres to the legal principle of Rex Non Potest Peccare, which translates to the King can

do no wrong. Article 3614 serves as a manifestation of the maxim. As per the aforementioned

article, it is said that the president, governor, or Rajpramukh of a state is immune from legal
accountability before any court for the execution and fulfillment of their official powers and
responsibilities. This immunity extends to any actions undertaken or purportedly undertaken by

4 Ibid.
4 Constitution of India 1950, a. 361.

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them in the course of exercising and fulfilling said powers and responsibilities. During the time
of office of the president or governor of a state, it is prohibited to initiate or maintain any

criminal proceedings against them in any court. During the time of office of the president or

governor of a state, no court shall issue any process for their arrest or detention.

These provisions serve as explicit exemptions to the Rule of Law in India, granting certain
immunities to the President, Governor, or Rajpramukh of a state. In an ideal society that upholds

the principles of the Rule of Law, such exceptions should not be permissible. Consequently, this
action might be regarded as a contravention of the Rule of Law as articulated by A.V. Dicey.

The phenomenon of honor killing is widely observed throughout Indian society, with a particular

concentration in the northern regions of the country. This phenoninon encompasses the act of
intentionally causing the death of an individual within a familial context. The motivation behind

such acts stems from the perpetrators' conyiction that the victim's actions have brought disgrace
or disrepute upon the family. These actions typically involve transgressions against the
established principles of a particular community or religious belief system, often arising from
circumstances such as divorce or separation from a spouse, or involvement in a marriage that

crosses caste boundaries. The determination in this matter is made by an extralegal entity known
as the Khap Panchayat, wich partakes in feudalistic practices without hesitation, even
perpetrating acts that are considered violations of the Indian Penal Code, 1860.

The actions of the panchayat demonstrate a disregard for the fundamental human right i.e.

Right to life and liberty. The selection of a life partner by a woman is a valid constitutional
entitlement. The freedom to individual choice, as enshrined in Article 19 of the Constitution,

forms the basis of this principle. It is important to note that this right should not be undermined

by notions of class honour or group thinking. The lack of legitinacy in the practice of class
honor, even when observed collectively under a certain notion, is the reason for this.

The result of the Sabarimala case sheds light on the extent to which men exercise their discretion
in adhering to the directives issued by the Supreme Court, contingent upon the alignment of

these directives with their personal beliefs. The court granted permission for women within the

age range of 10 to 50, who are in the menstrual stage, to access the temple premises for the
purpose of religious devotion. Historically, the Lord Ayappa temple has implemented a practice

of excluding the entry of women who are in the menstrual age range into the shrine. Following
the pronouncement of the ruling, extensive demonstrations ensued, accompanied by instances
of aggression targeting women who sought access to the shrine. The constitutional right of

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women to engage in worship was denied, and the principles of equality were breached, despite
the declaration of unconstitutionality by the highest court. Several political practitioners

organized rallies in protest of the incident involving women accessing the temple premises. The

aforementioned sequence of events serves to illustrate the continued prevalence of the Rule of

men over the Rule of Law.

Another malevolent habit prevalent in contemporary society is that of mob lynching. Lynching
is a violent act characterized by a group of individuals who, under the guise of dispensing justice

without due process, carry out the execution of an assumed wrongdoer. This act is frequently

accompanied by the infliction of torture and physical mutilation. The term "lynch law" pertains
to the establishment of an ad hoc judicial system that administers punishment to an individual

without adhering to the principles of due process. The Supreme Court characterized the events

as abhorrent instances of mob rule and emphasized that the law holds the highest authority in

a civilized society.

The integrity of the legal system should not be compromised by individuals or groups who

believe that they have the authority, basel on legal principles, to take matters into their own
hands and administer punishment to offendlers according to their own judgment. Typically,
individuals who identify with religious and caste-based minority groups are disproportionately
affected by this malevolent phenomenon. The aforementioned behavior serves as a
contemporary illustration of a society characterized, by lawlessness, when the rejection of both

basic human rights and fundamental rights is prevalent. In addition to the aforementioned
examples, there exists a multitude of other occurrences that serve as evidence of the
contamination of the native concept.

4.4. Prohibition of Cigarette Smoking in Public Places

On July 12, 1999, the Kerala High Court issued a ruling asserting that passive smoking poses a

threat to public health, so contravening Article 21 of the Constitution of India. If the act of
smoking in public areas is practiced. On November 2, 2001, the Supreme Court rendered a

verdict asserting that the detrimental consequences of smoking in public spaces, particularly
passive smoking, cannot be permitted under any circumstances. The Court further stipulated
that this specific ruling shall remain in effect until the legislature enacts laws on the subject
matter.

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In 2003, the legislative body enacted the Cigarettes and Other Tobacco Products Act." The

aforementioned legislation served as a replacement for the judgment rendered in 2001.

According to Section 446 of the aforementioned acts, it is prohibited for any individual to engage
in smoking within a public space.

In the event that an individual violates Section 4,47 they will be subject to a penalty of INR 200
(Two Hundred) as stipulated in Section 2148 of the same act. In 2017, the State of Gujarat

implemented a prohibition on the use of 'Hookah' and established penalties ranging from a
minimum of INR 20,000 to a maximum of INR 50,000, in addition to potential imprisonment

for a period of one to three years.

If we shift our focus to the realm of reality, it becomes evident that the enforcement of laws

pertaining to smoking in public places is given minimal priority. The prevalence of public

smoking is indicative of the dominance of the "Rule of Man" rather than the supremacy of law,
since it reflects the prioritization of popular desires over legal mandates, so constituting a
violation of legal authority.

4.5. Section 69 I T Act49

The recognition of the right to privacy a a constitutionally protected right under Article 21"

has been affirmed by the highest court in India. The aforementioned verdict was rendered on
August 24th, 2017, nonetheless, it failed to take into account the provisions outlined in section

69.51

Despite the Supreme Court's attempt to establish the Right to privacy by a judicial ruling, the
impact of this endeavor has been rendered ineffective by the presence of the aforementioned
parts. This clause confers upon the central government the authorit to potentially infringe upon
the privacy of individuals and gather personal data, The law pronounced by the Supreme Court
of India ought to be manifested as the prevailing legal framework inside its jurisdiction. This
implies that the Right to Privacy ruling need to be upheld as a legal precedent in India, holding

4 Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce,
Production, Supply, and Distribution) Act, 2003.
46 Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce,

Production, Supply, and Distribution) Act, 2003, s.4.

4 Ibid.
4 Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce,
Production, Supply, and Distribution) Act, 2003, s. 2 1.
49 Information Technology Act, 2000, s.69.
s Constitution of India 1950, a. 21.
51 Supra 48.

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paramount authority within its domain. However, the failure of the Supreme Court to rule these
parts as extra vires is a breach of the principle of the Rule of Law. The concept of the supremacy

of law is a fundamental component of the Rule of Law. These passages explicitly contravene the
principle of the Supremacy of Law, which is a fundamental component of the Rule of Law.

5. Conclusion, Criticism and Suggestions

Based on the aforementioned evidence, it is indisputably evident that the principle of Rule of
Law has undergone rapid evolution since its birth, owing to the intrinsic dynamism of the notion.

This progress can be attributed to the several legislative enactments promulgated by the legislative

body and the numerous judicial decisions Tendered by the courts. Despite the considerable
evolution that the notion has through, the Rule of Law, when examined within the context of
India, does indeed exist However, it cannot be unequivocally asserted that it is strictly adhered
to. There are often occurrences wherein individuals prioritize adherence to a specific rule based
on its alignment with their personal sense of morality and conformity to their upheld ideology,
as well as its convenience to the gneiral public

Based on the aforementioned examples, it is challenging to assert that India adheres to the

principle of the Rule of Law rather than the Rule of Men. Even when considering the Rule of
Law as a distinct and conceptual entity, it remains evident that laws are formulated by individuals

for other individuals. Consequently, while the Rule of Law may appear to be the most suitable
theory for the functioning of law, it appears to be an unrealistic concept within the framework
of the Indian constitution

Individuals who maintain the belief that the primary determinant of political efficacy lies in the

selection of competent individuals in positions of authority, rather than in the establishment of

mechanisms to limit and regulate the exercise of power, may find themselves unpersuaded by the

significance of adhering to the principles of the rule of law Nor will anyone who holds the belief
that institutions of public authority are basically tools of the ruling class that should be abolished
rather than simply restrained.

The necessity for both rulers and the people to be held accountable to the law is widely recognized

as vital in contemporary democratic society. In contemporary society, it is evident that the liberal

tradition places significant importance on upholding the rule of law. Those individuals who
identify as liberals and express a concern for safeguarding and actualizing liberty in many

manifestations, while also seeking to prevent potential encroachments upon it, perceive the rule

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of law as a comprehensive foundation for ensuring security. However, there exists a significant
divergence of opinions, even within the liberal community, over the precise definition of a
faithful implementation of the concept. Furthermore, once this definition is established, there

is uncertainty regarding the methods and strategies required to achieve such implementation.

The concept of the rule of law cannot be accurately characterized as a direct representation of

any existing condition, but rather as a multifaceted ideal that poses significant challenges in its

actualization. Hence, there is a justifiable rationale to approach with skepticism the notion that
civilizations invariably derive advantages from all the elements encompassed under the given

terminology. The issue of judicial independence becomes apparent when it is exploited to

promote the vested interests of judicial personnel or to enable unquestioned interpretations of

the law. Placing significant focus on the formal elements of the rule of law, such as procedural
justice, has the potential to divert attention away from the substance and implications of these
laws. Opponents of a rigidly formal interpretation of the rule of law contend that an excessive

focus on legal procedures can lead to notable shortcomings, such as an overemphasis on legal

technicalities and a disregard for the political or practical aspects of legal disputes. The potential
drawbacks of an excessive reverence for the law and legal procedures lie in the potential costs
incurred when it hinders independent evaluations of the merits of a specific policy proposal.

Additionally, the notion of "blindness" in official mandates, which grants legitimacy to actions
carried out "according to the law" even when they are widely opposed, may further exacerbate

these concerns. Furthermore, several authors have argued that the expanding jurisdiction of

courts and attorneys, particularly their intrusion into domains that were traditionally within the
purview of politicians and the people, results in the erosion of numerous politically and

democratically significant aspects.

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