DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

RULE OF LAW IN INDIAN PERSPECTIVE-AN ANALYSIS

JURISPRUDENCE- II

Submitted to Mr. Abhishek Kumar

Submitted by
AADITYA VASU
2013001, VI Semester
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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

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.

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.

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.
1

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

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

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 societys 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

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 kings 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

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

Publications, ed., 2008)

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.

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 worlds 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
ones 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)

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