in this assignment given the rule of law and separation of power

1. INDORE INSTITUTE OF LAW
Topic, Concept of rule of law in India and Separation of power
and its position in our country.
Name , Avinash Rai Marks………….
Class ……………………
Sub ……………………
Prof ……………………
Date …………………...
Teacher Sign Student Sign

2. SYNOPSIS
. INTRODUCTION
. RULE OF LAW
. MEANING OF SEPRETION OF POWER
. THE EXECUTIVE
. THE EXECUTIVE AND THE LEGISLATURE IN THE
INDIAN CONSTITUTION
. THE JUDICIARY AND THE LEGISLATURE UNDER THE
INDIAN CONSTITUTION
. SUPERMACY LAW
. CONCLUSION

3. INTRODUCTION
The concept of Rule of Law is that the state is governed, not by
the ruler or the nominated representatives of the people but by
the law. A county that enshrines the rule of law would be one
where in the Grundnorm of the country, or the basic and core
law from which all other law derives its authority is the supreme
authority of the state. The monarch or the representatives of the
republic are governed by the laws derived out of the Grundnorm
and their powers are limited by the law. The King is not the law
but the law is king.
The origins of the Rule of Law theory can be traced back to the
Ancient Romans during the formation of the first republic; it has
since been championed by several medieval thinkers in Europe
such as Hobbs, Locke and Rousseau through the social contract
theory. Indian philosophers such as Chanakya have also
espoused the rule of law theory in their own way, by maintain
that the King should be governed by the word of law. The
formal origin of the word is attributed to Sir. Edward Coke, and
is derived from French phase ‘law principle delegalite’ which
means the principle of legality. The firm basis for the Rule of
Law theory was expounded by A. V. Dicey and his theory on the
rule of law remains the most popular. Dicey’s theory has three
pillars based on the concept that “a government should be based
on principles of law and not of men.

4. THE RULE OF LAW
The rule of law is the legal principle that law should govern a
nation, as opposed to being governed by arbitrary decisions of
individual government officials. It primarily refers to the
influence and authority of law within society, particularly as a
constraint upon behavior, including behavior of government
officials. The phrase can be traced back to 16th century England,
and it was popularized in the 19th century by British jurist A. V.
Dicey. The concept was familiar to ancient philosophers such
as Aristotle, who wrote "Law should govern".
Rule of law implies that every citizen is subject to the law,
including law makers themselves. In this sense, it stands in
contrast to an autocracy, collective leadership, dictatorship,
or oligarchy where the rulers are held above the law. Lack of the
rule of law can be found in both democracies and dictatorships,
for example because of neglect or ignorance of the law, and the
rule of law is more apt to decay if a government has insufficient
corrective mechanisms for restoring it. Government based upon
the rule of law is called democracy

5. Antiquity
In the West, the ancient Greeks initially regarded the best form
of government as rule by the best men. Plato advocated
a benevolent monarchy ruled by an idealized philosopher king,
who was above the law. Plato nevertheless hoped that the best
men would be good at respecting established laws, explaining
that "Where the law is subject to some other authority and has
none of its own, the collapse of the state, in my view, is not far
off; but if law is the master of the government and the
government is its slave, then the situation is full of promise and
men enjoy all the blessings that the gods shower on a
state." More than Plato attempted to do, Aristotle flatly opposed
letting the highest officials wield power beyond guarding and
serving the laws. In other words, Aristotle advocated the rule of
law:
It is more proper that law should govern than any one of the
citizens: upon the same principle, if it is advantageous to place
the supreme power in some particular persons, they should be
appointed to be only guardians, and the servants of the laws.
According to the Roman statesman Cicero, "We are all servants
of the laws in order that we may be free." During the Roman
Republic, controversial magistrates might be put on trial when
their terms of office expired. Under the Roman Empire, the
sovereign was personally immune (legbus solutes), but those
with grievances could sue the treasury.

6. In China, members of the school of legalism during the 3rd
century BC argued for using law as a tool of governance, but
they promoted "rule by law" as opposed to "rule of law",
meaning that they placed the aristocrats and emperor above the
law. In contrast, the Huang-Lao school of Daoism rejected legal
positivism in favor of a natural law that even the ruler would be
subject to. There has recently been an effort to reevaluate the
influence of the Bible on Western constitutional law. In the Old
Testament, there was some language in Deuteronomy imposing
restrictions on the Jewish king, regarding such things as how
many wives he could have, and how many horses he could own
for his personal use. According to Professor Bernard M.
Levinson, "This legislation was so utopian in its own time that it
seems never to have been implemented...." The Deuteronomic
social vision may have influenced opponents of the divine right
of kings, including Bishop John Ponet in sixteenth-century
England.

7. Middle Ages
In Islamic jurisprudence rule of law was formulated in the
seventh century, so that no official could claim to be above the
law, not even the caliph. However, this was not a reference
to secular law, but to Islamic religious law in the form of Sharia
law.
In 1215, Archbishop Stephen Langton gathered the Barons in
England and forced King John and future sovereigns and
magistrates back under the rule of law, preserving ancient
liberties by Magna Carta in return for exacting taxes. This
foundation for constitution was carried into the Constitution of
the United States.

8. Early modern period
The first known use of this English phrase occurred around 1500
A.D. Another early example of the phrase "rule of law" is found
in a petition to James I of England in 1610, from the House of
Commons:
Amongst many other points of happiness and freedom which
your majesty's subjects of this kingdom have enjoyed under your
royal progenitors, kings and queens of this realm, there is none
which they have accounted more dear and precious than this, to
be guided and governed by the certain rule of the law which
giveth both to the head and members that which of right
belonged to them, and not by any uncertain or arbitrary form of
government.
In 1607, English Chief Justice Sir Edward Coke said in the Case
of Prohibitions (according to his own report) "that the law was
the golden met-wand and measure to try the causes of the
subjects; and which protected His Majesty in safety and peace:
with which the King was greatly offended, and said, that then he
should be under the law, which was treason to affirm, as he said;
to which I said, that Bracton saith, quod Rex non dabbed ease
sub hominy, sad sub Doe et ledge (That the King ought not to be
under any man but under God and the law.)."

9. Among the first modern authors to give the principle theoretical
foundations was Samuel Rutherford in Lex, Rex (1644). The
title, Latin for "the law is king", subverts the traditional
formulation ("the king is law"). John Locke also discussed this
issue in his Second Treatise of Government (1690). The
principle was also discussed by Montesquieu in The Spirit of the
Laws (1748). The phrase "rule of law" appears in Samuel
Johnson's Dictionary (1755).
In 1776, the notion that no one is above the law was popular
during the founding of the United States. For example, Thomas
Paine wrote in his pamphlet Common Sense that "in
America, law is king . For as in absolute governments the King
is law, so in free countries the law ought to be king; and there
ought to be no other." In 1780, John Adams enshrined this
principle in the Massachusetts Constitution by seeking to
establish "a government of laws and not of men.

10. MEANING OF SEPARATION OF POWERS
A complete and absolute separation of power is practically and
the erotically not possible. Though, it is always possible to give
a broad meaning to this doctrine. The basic concept of the
separation of powers would mean a that the same persons should
not form part of more than one of the three organs of
government. b. That one organ of government should not control
or interfere with the work of another. c. That one organ of
government should not exercise the functions of another. Such a
clear demarcation is always desirable to keep the democratic
system of a nation intact. If legislative and executive powers are
vested in the same person, there would be no liberty. The same
follows if judiciary was distinct from the legislature and
executive. If all powers are vested in the same body it will lead
to arbitrariness. Giving legislative power to judiciary would
amount to biasness and executive power would lead to
despotism and tyranny. As of today, the Parliament exercises
political and financial control over the Executive, and there are
inherent checks and balances to keep each organ within the
limits of Constitutional power. There is no relationship in this
world which is perfect and is prone to certain tensions and
strains. But, the way out to this issue is through the development
of healthy conventions. There should be mutual respect for each
other keeping in mind the purpose of their exercise of these
powers.Ultimately the aim is to achieve a welfare state therefore
a healthy coordination among the three can work wonders.

11. THE LEGISLATURE
The Legislature has been accorded high-esteem in the Indian
Constitution. It is primarily concerned with enactment of general
rules of law that are germane to all aspects of the conduct of its
citizens and institutions. The Parliament is the Union Legislature
of India comprising two bodies namely Lok Sabha and the Rajya
Sabha. It enacts laws, impose taxes, authorizes borrowing, and
prepares and implements the budget, has sole power to declare
war, can start investigations, especially against the executive
branch, appoints the heads of the executive branch and
sometimes appoints judges as well as it has the power to ratify
treaties. As it anchors for the will of the people by ensuring a
true and intact democracy, it can be said that it cannot be done
all by the Legislature itself. It is an imminent threat to
democracy if an absolute power is given to the nation’s purse
holder. By making the executive accountable to the popular
house, the Constitution ensures a proper mechanism of checks
and balances to the doctrine of separation of powers. The entire
system has other facets which can help achieve the same.
Therefore, this brings into question the role of the other two
pillars: the judiciary and the Executive.

12. THE JUDICIARY
The framers of our Constitution drafted it so meticulously that it
provides for an independent and impartial Judiciary as the
interpreter of the Constitution and as custodian of the rights of
the citizens through the process of judicial review. This
mandates the judiciary to interpret the laws but not to make
them. They are not to lay down the general norms of behavior
for the government. This brings us to the recent debate whether
this behavior of the judiciary can be termed as judicial review or
judicial activism? The higher judiciary in India, especially the
honorable Supreme Court, the most powerful judiciary in the
world, has become an epicenter of controversy over its role in
entertaining and deciding public-interest-petitions. In deciding
these petitions, the judiciary issues many directions to the
Government which includes framing of legislation in many
areas. Is it that the judiciary is transcending its limits and
trenching upon the fields of the executive or legislature? And if
so is the case, then what is the legitimacy of exercise of such
powers? The role of the judiciary should only be limited to
scrutinizing the constitutionality of the legislation and not
directing the government to enact legislation. The scope of
judicial review does not extend beyond enquiring whether an
impugned legislation or an executive action falls within the
competence of the Legislature or of the executive authority or is
consistent with the Fundamental Rights guaranteed by the
Constitution or with its other mandatory provisions. The three

13. organs have to exercise their functions keeping in mind certain
constitutionally assigned encroachments. However according to
Chief Justice Subba Rao in
Golak Nath v. State of Punjab [A.I.R. 1967 S.C. 1643] : “It
[the Constitution]
Demarcates their jurisdiction minutely and expects them to
exercise their respective powers without overstepping their
limits. They should function within the spheres allotted to them
No authority created under the Constitution is supreme; the
Constitution is supreme and all the authorities function under the
supreme law of the land.

14. THE EXECUTIVE
The Executive can veto laws, can command of the military,
makes decrees or declarations (for example, declaring a state of
emergency) and promulgate lawful regulations and executive
orders, can refuse to spend money allocated for certain purposes,
can appoints judges, and has the power to grant pardons to
convicted criminals. Like the other two pillars of democracy, the
Executive is equally expected to be free of intrusions from the
other two. It is always said that Executive is independent of the
two but the incongruity persists. It is completely eroded in actual
practice. The reason is that each time the executive is questioned
for its actions by the judiciary and the Legislature. This dilutes
the independence of the Executive to the maximum. It’s not that
the question of answerability pops up only in the case of
executive. The judiciary and legislature are equally answerable
but in their cases, a built-in system from within would be
available for discharging those functions. This is the real state of
affairs, which exists in practice. Though the Indian Constitution
allocates executive powers to the President and Governors
(Article 53 (1) and Article 154 (1), they are empowered with
certain legislative powers (Articles 123, 213 and 356) and
certain judicial powers (Articles 103 and 192). Similarly the
legislature exercises certain judicial functions (Articles 105 and
194) and judiciary exercises few legislative and executive
functions (Articles 145, 146, 227 and 229). However the
judiciary is made separate from the executive in the public

15. services of the State (Article 50). In Bihar, the scheme of the
separation of the judiciary from the executive was introduced on
an experimental basis but later on it was extended throughout
the State. In some states, complete separation of judiciary from
executive has been achieved through legislation. In seven states,
complete separation of judiciary from executive has been
effected through executive orders.

16. THE EXECUTIVE AND THE LEGISLATURE
IN THE INDIAN CONSTITUTION
In the early years of the Republic, the Supreme Court had
already recognized that the Indian Legislature had a distinctly
superior position vis-à-vis the other organs of the State. The
observation made by Justice S.R. Das is a testimony to this in
the famous case of
A.K.Gopalan v. State of Madras [1950 SCR 88]: “
Although our Constitution has imposed some limitation. It has
left our Parliament and the State Legislature supreme in their
respective fields. In the main, subject to limitations…our
Constitution has preferred the supremacy of the Legislature to
that of the Judiciary…and the Court has no authority to question
the wisdom or policy of the law duly made by the appropriate
Legislature…and this is a basic fact which the Court must not
overlook.” Article 52 and 53 of Indian constitution says: 52. The
President of India - There shall be a President of India. 53.
Executive power of the Union. - (1) The executive power of the
Union shall be vested in the President and shall be exercised by
him either directly or through officers subordinate to him in
accordance with this Constitution. (3) Nothing in this article
shall-(a) be deemed to transfer to the President any functions
conferred by any existing law on the Government of any State or
other authority; or (b) prevent Parliament from conferring by
law functions on authorities other than the President. Executive

17. powers: All the executive actions of the Union government are
taken in his name. He appoints officials of the Union
Government, Prime Minister, and Council of ministers at the
advice of the Prime Minister, Chief Justice and judges of
Supreme Court and High Court at the advice of the Chief Justice
of India. He appoints the chairman of UPSC, Comptroller and
Auditor general of India, Attorney General of India, Chief
Election Commissioner and other Election Commissioners,
Governor of the states, members of Finance Commission and
ambassadors. Judicial powers: The President appoints the Chief
Justice of the Supreme Court and other judges on the advice of
the Chief Justice. The President enjoys legal immunity. He can
grant pardon, reprieve, respite or remise punishment. The
President can dismiss the judges by two-thirds majority of the
members present in two houses. If they consider a question of
law or a matter of public importance which has arisen, they can
ask for the advisory opinion of the Supreme Court. However
they may or may not accept that opinion. Legislative powers:
The President summons both houses of the Parliament and
prorogues the session of the two houses and can dissolve the
Lok Sabha but uses these powers according to the advice of the
Council of Ministers headed by the Minister. The inaugural
speech of the Parliament at the beginning of thefirst session each
year is delivered by him where he outlines the new policies of
the government. A bill that the Parliament has passed can
become a law only after the President gives their assent to it. He
can return a bill to the Parliament for reconsideration but this not

18. so in case of money bill. But in case the Parliament sends it back
for the second time, the President is obliged to sign it. The
President can promulgate ordinances when the Parliament is not
in session but must get it ratified within six weeks. Moreover
this is so only in case of the Union and Concurrent list.

19. THE EXECUTIVE AND THE JUDICIARY IN
THE INDIAN CONSTITUTION
The relationship between the judiciary and the executive has
always been a delicate question. A society governed by Rule of
law always demands for separation of the judiciary from the
executive. The rule of law is always exposed to the danger of
being encroached by the executive. It is in this context that
proper functioning of a democracy requires a clear separation of
the two. The primary function of the judiciary is the
administration of justice and justice can never be rightly
administered without the fear or favor unless there is a
separation of the judiciary from the executive. Article 50 of the
Constitution provides that “The State shall take steps to separate
the judiciary from the executive in the public services of the
State.” The intention of the framers of the Constitution was to
bring about changes wherever possible and shall be done
immediately, without any delay, and where immediate operation
of this principle is not possible, it shall nevertheless be accepted
as an imperative obligation. Theoretically, separation of
judiciary from the executive is always a welcome step. The
intention is always to ensure that the judiciary does not decide
cases under the influence of the executive, rather follows the
principle of Rule of Law. But, thereal problem comes in practice
where its separation is a problematic concern. The role of
judiciary under the British Rule had always cautioned the
framers of the Indian Constitution of the inherent limitations of

20. the judiciary. These limitations of the judiciary pose a challenge
to the separation of the two organs. Alexande Hamilton wrote in
the Federalist papers: “The judiciary is beyond comparison the
weakest of the three departments of power. It has no influence
on either the sword or the purse; no direction either of the
strength or wealth of the society; and can take no active
resolution whatever. It may truly be said to have neither “force”
nor will, but merely judgment. So it only has the “power of
judgment”. Thus, it can be said that if each of the three organs
insists on independence, judiciary is likely to be pushed to the
wall being subordinate to the executive department. Thus, it is
submitted that it is difficult to achieve independence of judiciary
from the executive as the ever increasing power of the executive
is likely to topple the balance on which the Indian Judicial
System rests. Now-a-days, there are many instances where
judiciary has intervened in matters entirely within the domain of
executive.
In People’s Union for Civil Liberties v. Union of India [1997
1 SCC 301]
The Court observed that rule making is the function of the
executive. As the learned Chief Justice Verma has pointed out in
his Dr. K.L.Dubey Lecture: “Judiciary has intervened to
question a ‘mysterious car’ racing down the Tughlaq Road in
Delhi, allotment of a particular bungalow to a Judge, specific
bungalows for the Judge’s pool, monkeys capering colonies to
stray cattle on the streets, cleaning public conveniences, and

21. levying congestion charges at peak hours at airports with heavy
compliance of its orders. Misuse of the contempt power to force
railway authorities to give reservation in a train is an extreme
instance.” The Indian Judiciary is now moving from Judicial
Activism to Judicial Adventurism. Policy decisions are best left
to the executive. It is indisputable that Courts cannot run the
government. If it tries to do that it would defeat the very purpose
of the Constitution.

22. THE JUDICIARY AND THE LEGISLATURE
UNDER THE INDIAN CONSTITUTION
The provisions of the Chapter IV of Part V of our Constitution
dealing with Union Judiciary provides for a close relationship
between the Judiciary and Legislature. Article 122 of the Indian
Constitution provides that the Court shall not call validity of any
proceedings in Parliament in question on the ground of any
alleged irregularity of procedure. And Article 212 provides that
the Court should not enquire into the proceedings of the
Legislature. But certain judicial anomaly has been felt in the
recent past. The most prominent being the famous Jagdambika
Pal case of 1998 involving the Uttar Pradesh Assembly and the
Jharkhand Assembly case of 2005. The Interim Order of the
Supreme Court in both the cases is a clear violation of the
principle of separation of powers between the Judiciary and the
Legislature. The judiciary blames Legislature for not doing
anything worthwhile over the past three decades, whereas
Legislature accuses Judiciary of doing the job of the legislature.
When judiciary is not held accountable for thelegislative
functions they what is the legitimacy behind the exercise of such
powers? There are several instances that show that there has
been a tilt of amendment power in favor of Parliament and
sometimes Judiciary. The 42nd Amendment Act of the
Parliament brought a drastic change in the provisions of the

23. Constitution. Under this amendment Article 368, which gives
amending power to the Parliament, was so modified that any
further amendment of the Constitution would be immune from
being questioned in Court of law. The power tilted in favor of
the legislature.
Ultimately in Minerva Mills v. Union of India [A.I.R. 1980
SC 1798]
Supreme Court ruled that the ‘judicial review’, being a basic
feature of constitution, cannot be taken away by the Parliament
by amendment of the Constitution. Apart from this, there are has
been several instances where the judiciary has assumed the role
of legislature without taking into account the practical
difficulties and financial constraints. It has gone to the extent of
not only framing guidelines but also the policies.

24. THE FUTURE OF SEPARATION OF POWERS
The Constitution of India was drafted sixty years ago. Today in
the era of Globalization where everything has become so
advanced, can it be assumed that our Constitution is still
adequate to address the present problems? Did the architects of
our Constitution envisage the nation as we are today? The
answer to these questions can be found in the underlying
principles of our holy Constitution. Our Constitution embodies
fundamental principles such as republicanism, secularism,
equality, fraternity, social, economic and political justice that are
self-sufficient in it to keep our system intact for the next fifty
years or so. Though, they’ll require different interpretations at
different points in time. Similarly, the principle of separation of
powers will require a more robust interpretation to guide the
three organs of the government

25. RULE OF LAW UNDER THE INDIAN
CONSTITUTION
In India, the concept of Rule of law can be traced back to the
Upanishads. In modern day as well, the scheme of the Indian
Constitution is based upon the concept of rule of law. The
framers of the Constitution were well familiar with the
postulates of rule of law as propounded by Dicey and as
modified in its application to British India. It was therefore, in
the fitness of things that the founding fathers of the Constitution
gave due recognition to the concept of rule of law.
The doctrine of Rule of Law as enunciated by Dicey has been
adopted and very succinctly incorporated in the Indian
Constitution. The ideals of the Constitution viz; justice, liberty
and equality are enshrined in the Preamble itself (which is part
of the Constitution).
The Constitution of India has been made the supreme law of the
country and other laws are required to be in conformity with it.
Any law which is found in violation of any provision of the
Constitution, particularly, the fundamental rights, is declared
void. The Indian Constitution also incorporates the principle of
equality before law and equal protection of laws enumerated by
Dicey under Article 14.

26. The very basic human right to life and personal liberty has also
been enshrined under Article 21. Article 19(1) (a) of the Indian
Constitution guarantees the third principle of the Rule of law
(freedom of speech and Expression). No person can be
convicted of any offence except for violation of a law in force at
the time of the commission of the act charged as an offence is
also very well recognized in the Indian Constitution. The
principles of double jeopardy and self-incrimination also found
its rightful place in the Constitution. Articles 14, 19 and 21 are
so basic that they are also called the golden triangle Articles of
the Indian Constitution.
The Constitution also ensures an independent an impartial
Judiciary to settle disputes and grievances for violation of
fundamental rights by virtue of Articles 32 and 226. In Union of
India v. President, Madras Bar Association, the Supreme Court
held that “Rule of Law has several facets, one of which is that
disputes of citizens will be decided by Judges who are
independent and impartial; and that disputes as to legality of acts
of the Government will be decided by Judges who are
independent of the Executive.

27. RULE OF LAW
–
Part Of The Basic Structure
The Constitution (First Amendment) Act, 1951, shocked the
status of Rule of law in India. The question which came up for
consideration in
Shankari Prasad v. Union of India
was whether the fundamental rights can be amended under
Article 368. The Supreme Court held that Parliament has the
power to amend Part III of the Constitution under Article 368 as
under Article 13 ‘law’ means any legislative action and not a
constitutional amendment. Therefore, a constitutional
amendment would be valid if abridges any of the fundamental
rights.
The question again came up for consideration in
Sajjan Singh v. State of Rajasthan
in which the Supreme Court approved the majority judgment in
Shankari Prasad case and held that amendment of the
Constitution means amendment of all provisions of the
Constitution. Hon’ble Chief Justice Gajendragadkar held that if
the framers of the constitution intended to exclude fundamental

28. rights from the scope of the amending power they would have
made a clear provision in that behalf.
However, both these cases were overruled by the
Apex Court in Golaknath v. State of Punjab
and it held that Parliament has no power to amend the Part III of
the Constitution so as to take away or abridges the fundamental
rights and thus, at the end the Rule of law was sub-served by the
Judiciary from abridging away. However, the Rule of law was
crumpled down with the Constitution (Twenty-Fourth
Amendment) Act, 1971. Parliament by the way of this
Amendment inserted a new clause (4) in Article 13 which
provided that ‘nothing in this Article shall apply to any
amendment of this constitution made under Art 368’. It
substituted the heading of Article 368 from ‘Procedure for
amendment of Constitution’ to ‘Power of Parliament to amend
Constitution and Procedure thereof’. The Amendment not only
restored the amending power of the Parliament but also
extended its scope by adding the words “to amend by way of the
addition or variation or repeal any provision of this constitution
in accordance with the procedure laid down in the Article”.
This was challenged in
the case of
Keshavananda Bharti v. State of Kerala.

29. The Supreme Court by majority overruled the decision given in
Golaknath’s case and held that Parliament has wide powers of
amending the Constitution and it extends to all the Articles, but
the amending power is not unlimited and does not include the
power to destroy or abrogate the basic feature or framework of
the Constitution. There are implied limitations on the power of
amendment under Article 368. Within these limits Parliament
can amend every Article of the Constitution. Thus, Rule of law
prevailed.
In Keshavananda Bharti v. State of Kerala, the Supreme Court
states that “Our Constitution postulates Rule of Law in the sense
of supremacy of the Constitution and the laws as opposed to
arbitrariness.” The 13 judge Bench also laid down that the Rule
of law is an “aspect of the basic structure of the Constitution,
which even the plenary power of Parliament cannot reach to
amend.”
Since Keshavananda case, Rule of law has been much expanded
and applied differently in different cases.
In Indira Nehru Gandhi v. Raj Narain,
the Supreme Court invalidated Clause (4) of Article 329-A
inserted by the Constitution (Thirty-ninth Amendment) Act,
1975 to immunise the election dispute to the office of the Prime
Minister from any kind of judicial review. The Court said that
this violated the concept of Rule of law which cannot be
abrogated or destroyed even by the Parliament.

30. The Habeas Corpus case according to many scholars is a black
mark on the rule of law. The case entails Dicey’s third principle
of rule of law. The legal question in this case was whether there
is any rule of law over and above the Constitutional rule of law
and whether there was any rule of law in India apart from
Article 21 of the Constitution regarding right to life and personal
liberty. A five judge Bench with a majority of 4:1 (going by
strict interpretation) held in the negative.

31. SUPERMACY LAW
This has always been the basic understanding of rule of law that
propounds that the law rules over all people including the
persons administering the law. The law makers need to give
reasons that can be justified under the law while exercising their
powers to make and administer law.
Equality before the Law:
While the principle of supremacy of law sets in place cheques
and balances over the government on making and administering
law, the principle of equality before the law seeks to ensure that
the law is administered and enforced in a just manner. It is not
enough to have a fair law but the law must be applied in a just
manner as well. The law cannot discriminate between people in
matters of sex, religion, race etc. This concept of the rule of law
has been codified in the Indian Constitution under Article 14 and
the Universal Declaration of Human Rights under the preamble
and Article 7.
Predominance of legal spirit:
In including this as a requirement for the rule of law, Dicey’s
belief was that it was insufficient to simply include the above
two principles in the constitution of the country or in its other
laws for the state to be one in which the principles of rule of law
are being followed. There must be an enforcing authority and
Dicey believed that this authority could be found in the courts.

32. The courts are the enforcers of the rule of law and they must be
both impartial and free from all external influences. Thus the
freedom of the judicial becomes an important pillar to the rule of
law.
In modern parlance Rule of Law has come to be understood as a
system which has safe guards against official arbitrariness,
prevents anarchy and allows people to plan the legal
consequences of their actions.
THEORETICAL APPLICATION OF RULE OF
LAW IN INDIA
Indian adopted the Common law system of justice delivery
which owes its origins to British jurisprudence, the basis of
which is the Rule of Law. Dicey famously maintained that the
Englishman does not need Administrative law or any form of
written law to keep cheeks on the government but that the Rule
of Law and natural law would be enough to ensure absence of
executive arbitrariness. While India also accepts and follows the
concept of natural law, there are formal and written laws to
ensure compliance.
The Constitution of India intended for India to be a country
governed by the rule of law. It provides that the constitution
shall be the supreme power in the land and the legislative and
the executive derive their authority from the constitution. Any
law that is made by the legislative has to be in conformity with
the Constitute failing which it will be declared invalid; this is

33. provided for under Article 13 (1). Article 21 provides a further
check against arbitrary executive action by stating that no person
shall be deprived of his life or liberty except in accordance with
the procedure established by law.
Article 14 ensures that all citizens are equal and that no person
shall be discriminated on the basis of sex, religion, race or place
of birth, finally it ensures that there is separation of power
between the three wings of the government and the executive
and the legislature have no influence on the judiciary. By these
methods, the constitution fulfils all the requirements of Dicey’s
theory to be recognized as a country following the Rule of Law.
The Supreme Court of Indian has further strengthened this
mechanism through its various judgements, the foremost of
them being, A D M Jabalpur v. Shivkanth Shukla In this case,
the question before the court was ‘whether there was any rule of
law in India apart from Article 21’. This was in context of
suspension of enforcement of Articles 14, 21 and 22 during the
proclamation of an emergency. The answer of the majority of
the bench was in negative for the question of law. However
Justice H.R. Khanna dissented from the majority opinion and
observed that:
“Even in absence of Article 21 in the Constitution, the state has
got no power to deprive a person of his life and liberty without
the authority of law. Without such sanctity of life and liberty,
the distinction between a lawless society and one governed by

34. laws would cease to have any meaning…Rule of Law is now the
accepted norm of all civilized societies.
In Chief settlement Comm; Punjab v. Om Prakash , it was
observed by the Supreme Court that, “In our constitutional
system, the central and most characteristic feature is the concept
of rule of law which means, in the present context, the authority
of law courts to test all administrative action by the standard of
legality. The administrative or executive action that does not
meet the standard will be set aside if the aggrieved person brings
the matter into notice.” In the case of
Satvant Singh Sawhney v. D Ramarathanan
the Supreme Court has held that every executive action if it
operates to the prejudice of any person must be supported by
some legislative authority.
In Secretary, State of Karnataka and Ors. v.
Umadevi (3)and Ors
a Constitution Bench of this Court has laid down the law in the
following terms: “Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our
Constitution, a court would certainly be disabled from passing
an order upholding a violation of Article 14 or in ordering the
overlooking of the need to comply with the requirements of
Article 14 read with Article 16 of the Constitution.”

35. Most famously in the case of Kesavananda Bharati v. State of
Kerala the Supreme Court held that the Rule of Law is an
essential part of the basic structure of the constitution and as
such cannot be amended by any Act of Parliament, thereby
showing how the law is superior to all other authority of men.
PRACTICAL APPLICATION OF RULE OF LAW IN INDIA
Critiques have often maintained that the Rule of Law in India is
merely a theory with no practical application. While it cannot be
denied that the country is one where corruption runs rampant
and according to 2012 World Justice Project data, India fares
well on openness of government and democratic controls, in the
category limited government powers, which evaluates the
checks on government, India ranks 37th of the 97 countries
surveyed around the world, is first among five in its region, and
comes in second out of 23 lower-middle-income countries. Yet
the rule of law that exists on paper does not always exist in
practice. When it comes to procedural effectiveness, India fares
poorly. In the categories of absence of corruption and order and
security, India ranks 83rd and 96th globally.
In addition to the problem faced in India due to corruption in the
law making and justice delivery systems, there also exists the
problem of old laws still being in place. India does not adopt a
‘sunset’ clause in its laws and post independence the Indian
Independence Act provided that all laws existing under the
colonial rulers would continue to exist under the new system
unless explicitly revoked by the parliament. While this did

36. provide the nation with a firm basic system of laws, thereby
preventing a situation of anarchy in the immediate aftermath of
independence, some of these laws were drafted to suit the
environment of those time and they become hard to interpret in
the current environment. This leads to ambiguity and endless
litigation in an attempt to interpret the provisions.
While these problems persist it is important to note that the
constitutional mechanism has provided enough safe guards to
endure that the Rule of Law in some form will always persist.
One of the most important factors contributing to the
maintenance of the Rule of Law is the activity of the courts in
the interpretation of the law. It is rightly reiterated by the
Supreme Court in the case
Union of India v. Raghubir Singh
that it is not a matter of doubt that a considerable degree that
governs the lives of the people and regulates the State functions
flows from the decision of the superior courts. Most famously in
the case of
Maneka Gandhi v. Union of India
the court ensured that exercise of power in an arbitrary manner
by the government would not infringe the rights of the people
and in Kesavananda Bharati the court ensured that laws could
not be made that essentially go against the Rule of Law by
saying that the basic structure could not be breached.

37. Apart from judicial decision the constitutional mechanism in
itself provides for the protection of the rule of law through the
creation of monitoring agencies. While there have been
numerous scams that have come to light in the last few years,
the fact that must also be noted is that these scams have come to
light and the justice delivery mechanism has been set in motion
against the perpetrators. The role of the Central Vigilance
Commission and the Comptroller and Auditor General in the
exposure of these discrepancies is commendable and this shows
how the law has provided for its own protection by putting in
place multiple levels of safe guards which ensure that it will be
effective at some level. The Election Commission of India, a
constitutional body has also been undertaking the task of
ensuring free and fair elections with some degree of efficiency.

38. CONCLUSION
The founding fathers of India accomplished what the rest of the
world though impossible- establish a country that would follow
the letter of the law and implement the Rule of Law. In all
matters such as the protection of the rights of the people, equal
treatment before the law, protection against excessive
arbitrariness, the Constitution of India has provided enough
mechanisms to ensure that the Rule of Law is followed. Through
its decisions the Courts have strived to reinforce these
mechanisms and ensure smooth justice delivery to all citizens.
Problems such as outdates legislations and overcrowded courts
are but small hindrances and bodies such as the Law
Commission of India work towards ironing out these problems
with the aim of achieving a system where there are no barriers to
the smooth operation of the Rule of Law.