Unit I, Chapter 2

The Rule of Law

The Rule of Law and its Relevance to
the Indian Constitution
Summary of the concept
• What is the rule of law?
• What is its relevance to constitutional law?
• What is the most commonly followed understanding of the rule of law
across different jurisdictions?
• What did the framers of the Indian constitution have to say about the
rule of law?
• How has the judiciary defined the relevance of the rule of law to the
Indian constitution?
• What are the key precedents laid down by the judiciary on the rule of
law?
• Has the understanding of the rule of law changed over the years?
 What is the rule of law?
• The rule of law in its simplest form, can be defined as a set of ideals.
• It is a set of moral rules which form the basis for the key legal
principles of a constitution.
• It lays down the foundation for the law as it ought to be. This is in
contrast to the jurisprudential school of legal positivism, which
concerns itself with the law as it is.
• This concept has its roots in the natural law theory, which defined law
in terms of its ethical importance.
What is the relevance of the rule of law to constitutional
law?
• Constitutional law is the body of law that evolves through the
interpretation of the constitution.
• This interpretation serves two functions:
• First, to ensure that the government does not exceed its prescribed
limits. This function is called constitutionalism.
• Second, to regulate the relationship between the different branches of
the government in order to ensure that it functions efficiently.
• The limits on the government are placed in the form of rights- such
rights have to be broad in their scope and accorded the widest
meaning in order to be invoked effectively against the government.
• Such a broad and creative interpretation is only possible if the rights
are understood in the light of morals- hence, the rule of law forms the
most effective basis for such rights.
What is the commonly followed understanding
of the rule of law across different jurisdictions?
• Morality is a subjective idea- meaning which, it is influenced by a
number of factors such as the social, cultural and economic practices of
a society. Therefore, morality can vary widely.

• The law, however, needs to be certain- as a result, even if the concept

of rule of law varies from one jurisdiction to another, jurists will need to
arrive at a concrete theory in order to apply it uniformly.

• One such jurist who gave definite form and shape to the concept of rule
of law was A.V. Dicey.
• Dicey explained his idea of the rule of law in the book Introduction to
the Study of the Law of the Constitution .

• Dicey’s concept of the rule of law has three distinct components:

• A) The supremacy of the law.
• B) Equality before the law.
• C) Predominance of legal spirit.
• What do each of these components mean?

• A) Supremacy of the law:

• No man can be punished except for a distinct breach of the law,
established in the ordinary manner.
• Therefore, Dicey very clearly emphasizes the importance of
procedural correctness of the law- he first states that the law must be
well defined, that it must be defined following the right procedure and
that it must be defined by the right authority.
• B) Equality before the law:
• The traditional notion of equality has two elements:
• First, that equals must be treated equally, and
• Second, that unequals must be treated unequally.
• The first element casts an obligation not to distinguish between two
equals- therefore, it is a negative obligation.
• The second element casts an obligation to distinguish between two
unequals- therefore, it is a positive obligation. This element is also
known as affirmative action.
C) Predominance of legal spirit.
The law must be recognized by the court. It is not enough if the law is
merely codified or documented- the court must enforce the law at all
times- only then will it be effective. The rights must, therefore, not only
be guaranteed, but also enjoyed.
Therefore, Dicey’s theory envisions the parliament as making the law in
the first component of the rule of law, and the judiciary helping in the
growth of the law in the third component of the rule of law. The
emphasis is on the procedural correctness and the form of the law, as
well as on the substantive content of the law- and it is the judiciary that,
in the modern day determines the content of the law. This emphasis on
the substantive content of the law is a part of the “thick rule of law”- as
opposed to an emphasis only on the form, which is known as the “thin
rule of law”.
 What did the framers of the Indian constitution have to say about the rule of law?

• Shri Shankarrao Deo, in the proceedings of the Constituent Assembly

dated the 21st November 1949, explained the importance of the rule
of law to the constitution in the following terms:

• “Part III of the Constitution- the Fundamental Rights, and Part IV- the
Directive Principles of the State- put forward in unmistakable terms
the awareness of the makers of the Constitution of the principle of
Rule of Law which is the bulwark of British liberty, as well as the
impact of the Marxist philosophy on the life and society of man. ”
• Dr. P. Subbarayan, in the proceedings of the Constituent Assembly
dated the 25th November, 1949, had the following opinion on the
importance of the rule of law to the constitution:

• “If there is anything which I would like to cling to in the future of this
country, it is this rule of law. Professor Dicey in his Law of the
Constitution has explained this position fully and I think we have
provided in the Constitution, in the powers vested both in the
Supreme Court and the High Courts of this country for any citizen to
have his right established as against the government of the day,
whether Central or Provincial, so that there is no question of
encroachment of this, and the judiciary has been left independent
enough to fulfil this task.”
• Therefore, it is evident that the framers of the constitution not only
recognized the importance of the rule of law, but also recognized that
A.V. Dicey’s understanding of the rule of law was the one that most
suited the constitution.
 How has the judiciary defined the relevance
of the rule law to the Indian constitution?
• The Supreme Court in Indira Gandhi v. Raj Narrain ( AIR 1975 SC
2299), speaking through Chief Justice Ray, recognized that the rule of
law was a part of the basic structure of the constitution.
What are the key precedents laid down by the
Supreme Court on the rule of law?
• The Supreme Court has touched upon the concept of the rule of law in a
number of judgments.

• Of all such judgments, the most noticeable is A.D.M. Jabalpur v. Shivakant

Shukla (AIR 1976 SC 1207)

• The relevant aspects of the judgment are as follows:

• A presidential ordinance issued under Article 359 (1) of the constitution
was challenged as being mala fides and not in compliance with the law.
The right to life was invoked to substantiate this challenge.
• The appellant contended that the right to life could not be invoked
since it was contained in Part III of the constitution and Article 359 (1)
of the Constitution contained a stipulation to the effect that the
President may suspend the rights enshrined in Part III during the
operation of an emergency.
• The Court held that such suspension was permissible for the reason
that the actions taken by the government during an emergency, and ,
the limits of such action, being a matter of policy are outside the scope
of judicial determination. There existed no other right to life, apart from
that enshrined in Article 21 in Part III of the Constitution which was
rightly suspended.
• Therefore, the Court’s decision raised a fundamental question related
to the rule of law:

• Article 21 stipulates that ”no person shall be deprived of his life and
personal liberty except according to procedure established by law.”

• This right is directly borrowed from the first component of Dicey’s rule
of law- however, if such right were to be suspended, what would
become of the third component of Dicey’s rule, i.e., the enforceability
of such rights?
• The answer to this question can be found in the Court’s interpretation of the rule of law. The
Court, speaking through Justice Chandrachud, was of the opinion that “there cannot be a
brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of
the constitution.”

• Further, the Court, speaking through Chief Justice Ray, was of the opinion that “the Constitution
is the rule of law.”
• This was reaffirmed in the following words:
• “Much of what Dicey meant by the Rule of Law was certainly sought to be embodied in Part III
of our Constitution. If, however, the application of Articles 14, 19, 21 and 22 of the Constitution
is suspended, it is impossible to say that there is a Rule of Law found there which is available for
the Courts to apply during the emergency to test the legality of executive action. “

The Court was criticized for its strict positivist stand, and, more importantly, for its lack of judicial
independence.

• The 44th Amendment, which followed as a response to the judgment, amended Article 359 (1)
to stipulate that Articles 20 and 21 could not be suspended even during the operation of an
emergency.
 Has the understanding of the rule of law
changed over the years?
• The want of a specific definition of the rule of law meant that A.V.
Dicey’s opinion was the one that was most reliable. However, the
International Commission of Jurists in its Delhi Declaration of 1959, has
formulated a very specific definition, and it is this definition that has
been reflected over the years in many jurisdictions, including India.

• This is evident in the Supreme Court’s ruling in Veena Sethi v. State of

Bihar (AIR 1983 SC 339). The ruling was the result of a letter written to
the Free Legal Aid Committee, Bihar, addressing the issue of unjustified
detention of prisoners.
• The Court held that:
• “The rule of law does not exist merely for those who have means to
fight for their rights and very often for perpetuation of the status quo
which protects and preserves their dominance and permits them to
exploit large sections of the community but it exists also for the poor
and the down-trodden, the ignorant and the illiterate who constitute
the large bulk of humanity in this country. It is the solemn duty of this
Court to protect and uphold the basic human rights of the weaker
sections of the society.”
• This judgment is clearly reflective of the International Commission of
Jurists’ idea, which is as follows:
• “the functions of the government in a free society should be so
exercised as to create conditions in which the dignity of man as an
individual is upheld. This dignity requires not only the recognition of
certain civil or political rights but also creation of certain political,
social, economical, educational and cultural conditions which are
essential to the full development of his personality.“
• Further, the Commission had a specific definition for the rule of law regulating each area
of administration, namely:

• 1. Committee on individual liberty and rule of law

• i. The state should not pass discriminatory laws.
• ii. The state should not interfere with religious beliefs.
• iii. The state should not place undue restrictions on freedom

• 2. Committee on government and the rule of law

• Adequate safeguards against the abuse of power and an effective government capable of
maintaining law and order.

• 3. Committee on criminal administration and the rule of law

• i. Due criminal process
• ii. No arrest without the authority of law
• iii. Presumption of innocence
• iv. Legal aid
• v.Public trial and fair hearing.
• 4. Committee on Judicial Process and the rule of law:
i. Independent judiciary
ii. Independent legal profession
iii. Standard of professional ethics.
 Recommended research for students
• Comparative study of the rule of law in Commonwealth jurisdictions.
• The Indian constitution has implicitly recognized the natural law
theory in Part III. Is this the only possible recognition? Does the
judiciary recognize other possibilities, if any?
• How has the division of powers between the parliament and the
judiciary played a role in shaping the debate around the rule of law?