Rule of Law The Indian Perspective and D

TERM PAPER ON
RULE OF LAW
THE INDIAN PERSPECTIVE
AND DEVELOPM ENT
Submitted In Partial Fulfillment of
LL.M (M asters of Law ) 1 Year Course 2014 - 15
SUPERVISED BY: SUBM ITTED BY:
Dr. Geet a Joshi Ashish Singh Taank
Associat e Professor Roll. No. 1208/ 14
Depart ment of Law s
Panjab Universit y
PANJAB UNIVERSITY
CHANDIGARH
CERTIFICATE
It is certified that undersigned has prepared his Term paper for LL. M 1st Semester on the
topic –
“Rule of Law - The Indian Perspective and Development”
in partial fulfillment of LL.M 1 Year Course . The work is authentic and has not been
submitted in partial or full fulfillment of any course or degree at this University or any other
University. The undersigned has prepared the term paper as per the requisite format and
pattern advised by the organization. The work is up to mark for evaluation for the standard of
LL.M course.
Signature of Supervisor
Ashish Singh Taank (Dr.) Geeta Joshi
LL.M 1 year course 2014 – 15 Associate Professor
Roll No. 1208/14 Department of Laws
Department of Laws Panjab University
Panjab University
ACKNOWLEDGMENT
I have put sincere efforts in this project. However, it would not have been possible without
the kind support and help of many individuals and organizations. I would like to extend my
sincere thanks and profound gratitude towards all those people who played instrumental role
in completion of this term paper.
It gives me immense pleasure in acknowledging Professor (Dr.) Geeta Joshi for giving me
invaluable opportunity to proceed on such an interesting topic. I sincerely thank her for all the
support, encouragement and constant supervision at all stages of preparation of the term
paper. Her experience and mentorship has been paramount in conclusion of this term paper.
I am obliged to the Staff at library of Department of Laws, Panjab University always

assisting me in every possible manner in my endeavours.
I am indebted to my many colleagues and friends who willingly helped me with all their
abilities in completion of this work.
And last but not the least, I thank the Almighty, my parents, brother and sister for their
constant encouragement without which completion of this assignment would not be possible.
INDEX
• Introduction ………………………………………………………………………………………………………………..1
• Objective of Paper (Research Questions) …………………………………………………………………...4
• Research Methodology ……………………………………………………………………………………………….5
• Part I – Historical Evolution of Rule of Law - from rule of men to rule of law …………..6
Development of Rule of Law in United Kingdom ………………………….7
Prof. A.V. Dicey’s formulation of Rule of Law ……………………………….8

Evaluation of Dicey’s Thesis ………………………………………………………….10
Modern Concept of Rule of Law …………………………………………………….17
• Part II – Indian Development and Position of Rule of Law ………………………………………….20

Provisions reflecting Rule of Law in Indian Constitution ………………20
Indian Judicial attitude in upholding and promoting rule of law ……..28

Habeas Corpus case – The fall of rule of law ………………………………….32
New Approach – Menaka Gandhi v. Union of India ………………………33
• Part III - New Horizons of Rule of Law in India ……………………………………………………….36
Judicial vigilance and activism ………………………………………………………..36
Right to Information Act, 2005 ………………………………………………………..39
Lokpal and Lokayuktas Act, 2013 …………………………………………………...40
Criminal Law Amendment, 2013 …………………………………………………….41
Victim compensation Schemes launched by various States

to give effect to Sec. 357A of Cr. P.C. 1973 ………………………...42
• Conclusion …………………………………………………………………………………………………………………….44
• Bibliography ………………………………………………………………………………………………………………….46
TABLE OF CASES
§ A.D.M. Jabalpur v. Shivakant Shukla (1976) 2 SCC 521

§ A. K. Kraipak v. Union of India AIR 1970 SC 150
§ All India Judges Asson. v. Union of India 2010 (14) SCC 705
§ Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161
§ Bhim Singh v. State of Jammu & Kashmir AIR 1986 SC 494
§ Centre for Public Interest Litigation v. Union of India 2012 (3) SCC 1
§ Chairman Railway Board v. Chandrima Das AIR 2000 SC 988
§ Charan Lal Sahu v. Union of India AIR 1990 SC1480
§ Citizens for Democracy through its President v. State of Assam, AIR 1996 SC 2193
§ Common Cause A Registered Society v. Union of Indian AIR 1996 SC 1619
§ D.K. Basu v. State of West Bengal AIR 1997 SC 610
§ Dr. Subramanian Swamy v. Director, CBI and Another 2014 (2) RCR (Criminal) 822
SC
§ Dwarkadas Marfatia & Sons v. Board of Trustees, Bombay Port, AIR 1989 SC 1642
§ Federation of Rly. Officers Assn. v. Union of India AIR 2003 SC 1344
§ Francis Coralie v. Delhi AIR 1981 SC 746
§ Golak Nath vs. State of Punjab AIR 1967 SC 1943, 1643
§ Hussainara v. Home Secy. Bihar (II) AIR 1979 SC 1369
§ I.R Coelho v. State of Tamil Nadu (2007) 2 SCC 1
§ Joginder kumar v. State of Uttar Pradesh AIR 1994 SC 1349
§ Kamalnantha and ors. v. State of Tamil Nadu MANU/SC/0259/2005
§ Kesavanand Bharti v. State of Kerala AIR 1973 SC 1461
§ Khatri v. State of Bihar (II) AIR 1981 SC 928
§ Lakshmi Khandsari v. State of Uttar Pradesh AIR 1981 SC 873, 891
§ Lakhsmi vs Union of India Writ Petition (Crl.) No. 129 of 2006 judgment delivered in
2013
§ Lalita Kumari v. Govt. of U.P. 2013 (13) SCALE 559
§ M. C. Mehta v. Union of India AIR 1988 SC 1037
§ M.C. Mehta vs. Union of India AIR 1997 SC 734
§ M.G. Badappanavar v. State of Karnataka AIR 2000 SC 498
§ M. Nagraj v Union of India AIR 2007 SC 71
§ M P Sharma vs. Satish AIR 1954 SC 300
§ Machegowda v. State of Karnataka AIR 1984 SC 1151
§ Machhi Singh v. State of Punjab 1983 (3) SCC 470
§ Madras Bar Association v. Union of India 2014(10) SCC 1
§ Mahabir Auto Stores v. Indian Oil Corporation 1990 (3) SCC 752
§ Menaka Gandhi vs. Union of India AIR 1978 SC 248, 597
§ Manohar Lal Sharma v. Principal Secretary 2014 (9) SCC 516
§ Manu Sharma v. State (NCT of Delhi) 2010 (6) SCC 1

§ Mr. X v. Hospital Z AIR 199 SC 495
§ Minerva Mills Limited v. Union of India (1980) 3 SCC 625
§ Murli S. Deora v. Union of India (2001) 8 SCC 765
§ Natai Bag v. State of West Bengal AIR 2000 SC 3313
§ National Legal Sevices Authority v. Union of India 2014 (5) SCC 438
§ Navneet Kaur v. State (NCT Of Delhi), Curative Petition (Criminal) No. 88 of 2013
(Decided on March 31, 2014).Nilabati Behera v. State of Orissa AIR 1993 SC 1960
§ Olga tellis vs. Bombay Municipal Corporation AIR 1986 SC 180
§ Onkar lal Bajaj vs. Union of India AIR 2003 SC 2562
§ Parmanand Katara v. Union of India AIR 1989 SC 2039
§ Peoples Union for Democratic Rights v. Union of India AIR 1982 SC 1473
§ Prem Shankar v. Delhi Administration AIR 1980 SC 1535 R(Jackson) v. Attorney
General [2006] AC 262
§ R. D. Upadhaya v. State of A. P. AIR 2006 SC 1946
§ R (Jackson) v Attorney General 2006 (1) AC 262
§ Ratan N. Tata v. Union of India 2014 (1) SCC 93
§ Reliance Petrochemicals Ltd. Vs Indian Express newspaper Bombay (p) ltd. (1988) 4
SCC 592
§ S. G. Jaisinghani v. Union of India AIR 1967 SC1427
§ Sajjan Singh vs. State of Punjab 1964 (4) SCR 630; AIR 1965 SC 845
§ Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra 2009 (6) SCC 498
§ Shankari Prasad v. Union of India AIR 1951 SC 455
§ Shatrughan Chauhan v. Union of India (2014) 3 SCC 1
§ Sheela Barse v. State of Maharashtra 1983 SCC 96
§ Smt. Indira Nehru Gandhi v. Raj Narain 1975 Supp. SCC 1
§ St. Stephens’s College v. University of Delhi AIR 1992 SC 1630
§ State of Bihar v. Subhash Singh 1997 (4) SCC 430
§ State of Punjab v. Baldev Singh AIR 199 SC 2378
§ Subhash Kumar v. Bihar AIR 1991 SC 420
§ Subramanian Swamy v. A. Raja 2012 (5) Law Herald (SC) 3527

§ Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1
§ Suk Das v. U.T. of Arunachal Pradesh AIR 1986 SC 991
§ Sunil Batra II AIR 1980 SC 1579
§ Supreme Court Advocates on record Association v. Union Of India AIR 1994 SC
268
§ Union of India v. Association for Democratic reforms AIR 2002 SC 2112
§ Uttarakhand Sangharsh Samiti v. State of U.P. 1996 UPLBEC 461
§ Vakil Prasad Singh v. State of Bihar AIR 2009 SC 1822
§ Vineet Narain & Others. vs. Union of India & Another (1998) 1 SCC 226
§ Vinod Kumar v. State of Punjab SC 2015 (1) R.C.R. (Criminal) 647
§ Vishakha v. State of Rajasthan AIR 1997 SC 3011
RULE OF LAW – THE INDIAN PERSPECTIVE AND DEVELOPMENT
INTRODUCTION
The Doctrine of Rule of law is an abstract legal concept which has been the supreme
manifestation of human civilization since its origin. It has undergone a journey changing
its facet from Natural law in the ancient period to the modern concept of rule of law. In
modern times, it is considered an eternal value of constitutionalism and an inherent
attribute of a vibrant democracy and good governance.
During the process of its evolution, the concept of Rule of law has attained different
meanings in different Legal Systems due to variance in uniquely situated historical,
social, traditional, economical, political and demographical factors of each nation. Still,
every exposition of Rule of law reaches upon agreement of it being based upon
supremacy of law against the supremacy of men. In modern context, Rule of law
signifies a governmental system which is itself governed by the law and wherein fair,
equitable, coherent, consistent and prospective laws are applied to all people.
The term ‘Rule of Law’ has been derived from the French phrase ‘la principe de legalite’
which means the principle of legality1 . Rule of law is quite similar to the American
expression ‘due process of law’ which implies a government based upon the principles of
law and not of men. As a concept, it is inclusive of principles of natural justice and has
such an all pervading and permeating character that no democracy can ignore its
relevance.
Rule of law is a dynamic concept and is capable of evading any exact straitjacket
formulation. However, it does not mean that no agreement can be drawn on the basic
values which it represents. The primary meaning of Rule of Law is that the ruler and the
ruled both must be subject to law. No one is above the law and hence all are accountable
to the law. It implies supremacy of law which ought to be just, fair and reasonable. State
and administrative authorities cannot impose their will arbitrarily on the individual and
the compliance to the orders of the State has to be secured well within the framework of
Law itself.
1
Md. Awal Hossain Mollah, Rule of Law in Bangladesh An Overview, UNPAN DOCUMENT
MANAGEMENT SYSTEM, ( Jan. 12, 2015, 11:24 AM),
http://unpan1.un.org/intradoc/groups/public/documents/UNPAN/UNPAN012077.pdf
1
The term rule of law is used as a contradistinction to the ‘rule of man’ and ‘rule
according to law’ or ‘rule by law’. Although even in the most autocratic forms of
government there exists some law according to which government exercises powers, but
still it does not mean that rule of law prevails in its true spirit in such a State. Rule of
Law is something more than mere principle of legality. Accordingly, Rule of law is
distinct from rule by law.
As far as the definition of rule of Law is concerned, to define an abstract legal concept in
a precise and concise statement with all its essential attributes is no easy task.
Nevertheless, in the light of the role which is being played by the State in modern
democratic welfare setup, perhaps the most practical definition of rule of law has come
from the United Nations as reproduced below:
“The Rule of law refers to a principle of governance in which all persons,

institutions and entities, public and private, including the State itself, are
accountable to Laws that are publicly promulgated, equally enforced
independently adjudicated and which are consistent with international human
rights norms and standards. It requires measures to ensure adherence to the
principles of supremacy of the law, equality before the law, accountability to the
law, fairness application of the law, separation of powers, participation in
decision-making, legal certainty, avoidance of arbitrariness and procedural and
legal transparency.”2
As per UNDP, rule of law and good governance are interlinked and good governance has
eight major characteristics3 i.e. it is
i. Participatory
ii. Consensus oriented
iii. Accountable
iv. Transparent
v. Responsive
vi. Effective and efficient
2
Report of the Secretary General, The Rule of law and transitional Justice in conflict and
P o s t c o n f l i c t s o c i e t i e s (S / 2 0 0 4 / 6 1 6 ) , U N IT E D N A T I O N S A N D T H E R U L E O F L A W ( F e b . 1 3 ,
2 0 1 5 , 0 9 : 2 6 P M ) , h t t p : / w w w . u n . o r g/ e n / r u l e o fl a w/
3
United Nations Economic and Social Commission for Asia and the Pacific, What is good governance?,
UNESCAP.ORG ( Dec. 16, 2014, 08.03 PM), http://www.unescap.org/sites/default/files/good-
governance.pdf
2
vii. Equitable and inclusive and

viii. Follows rule of law.
According to Wade and Philips, “The Rule of Law means that the exercise of the
powers of government shall be conditioned by law and that the subjects shall not be
exposed to the arbitrary will of the rulers.”4
According to Lord Hewart of Bury, rule of law is “The Supremacy or dominance

of law, as distinguished from mere arbitrariness of from some alternative mode which is
not law, of determining or disposing of the rights of the individual.”5
According to Ogg, “Under rule of law, obligation may not be imposed by the State nor
property interfered with, nor personal liberty curtailed except in a legal manner or on
legal authority.”6
As per ex-Attorney General Mr. Mannigham Buller, the rule of law is the reverse
of tyranny, a state of affairs in which there are legal barriers to governmental
arbitrariness, and legal safeguards for the protection of the individual are available.7
In his book ‘Political Order and Political Decay’, Francis Fukuyama has defined
Rule of Law as
“…as a set of rules of behavior, reflecting a broad consensus within society, which
is binding on even the most powerful political actors, whether kings, presidents or
the prime minister. If the rulers can change the law to suit themselves, the rule of
law does not exist, even if laws are applied uniformly to rest of society.8”
Justice Bhagwati has elaborated the essentials of rule of law as
“Law, in the context of Rule of Law, does not mean any law enacted by
legislative authority, however arbitrary despotic it may be, otherwise even in
dictatorship it would possible to say that there is rule of law because every law
4
J S B A D Y A L , C O M P AR A T IV E P O L IT IC A L S Y S T E M S A N D I N T E R N A T IO N A L P O L IT IC S 1 7 5
( Raj P ub l is h er s J al a nd h ar 2 0 1 3 )
5
id .
6
id .
7
S . R A J A G O P A L A N , A D M I N IS T R A T IV E L A W , 5 7 ( V i m a l a P u b l i c a t i o n s , M a d r a s 1 9 7 0 )
8
K R Lakhanpal, State of Punjab’s Economy 6- A broken State or a breakout State?,
H IN D U S T A N T IM E S F e b . 2 2 0 1 5 , a t A3
3
made by the dictator, howsoever arbitrary and unreasonable, has to be obeyed

and every action has to be taken in conformity with such law. In such a case too
even where the political set up is dictatorial, it is the law that governs the
relationship between men and men and between men and the State, but still it is
not the rule of law as understood in modern jurisprudence because in
jurisprudential terms, the law itself in such a case being an emanation from the
absolute will of the dictator, it is in effect and substance the rule of man and not
of law which prevails in such a situation. What is necessary element of rule of
law is that law must not be arbitrary or irrational and must satisfy the test of
reason and the democratic form of policy seeks to ensure this element by
making the framers of the law accountable to the people.”9
Therefore, Rule of Law means that the law, which is based on the principles of freedom,
equality, non discrimination, non- arbitrariness and is certain, regular and predictable,
governs all. In this sense the Rule of Law is an ideal and is in fact new name for the
ancient Natural Law.
For gaining more insight, it is imperative to trace how the concept of Rule of law has
evolved particularly in western nations and how as a legacy of colonialism it spread its
wings to colonies ruled by Western nations, particularly England, to become an eternal
element of the institutions that developed after those colonies attained freedom. India,
being a British colony for more than two centuries, has imbibed the modern doctrine of
Rule of Law as an integral part of the basic structure of its grundnorm.
OBJECTIVE OF PAPER (Research Questions)
This Paper aims to examine how the concept of rule of law has originated with the
objective to understand the various shades and meanings of the term rule of law since its
initiation. Concerted effort has been made to briefly trace how the concept evolved in
United Kingdom along with the analysis of exposition of Rule of law as given by
Professor A. V. Dicey.
9
B ac ha n Si n g h v. Sta te o f P u nj ab , AI R 1 9 8 2 S C 1 3 2 5
4
Further, the researcher has tried to explore the question as to how the Doctrine of rule of
law has found its place in the special circumstances of India, what has been the judicial
attitude regarding the relevance of the concept of Rule of law, how has judiciary
employed the concept to protect rights of a common citizen, how in recent times the
spirit of rule of law has prevailed in India to aid in entailing transparency, accountability,
predictability and participation in governance.
RESEARCH & DATABASE METHODOLOGY
The Research Methodology adopted for the present study is doctrinal. Sources of
information are essentially secondary. The researcher has placed heavy reliance upon
library sources namely commentaries, law reporters, journals, web journals, web articles,
articles from newspapers and magazines and legal databases. Methods employed for the
analysis of the data studied are critical and comparative.
5
PART - I
HISTORICAL EVOLUTION OF RULE OF LAW
From Rule of Men to Rule of Law
In history man has always appealed to something higher than that which is his own
creation. The first footsteps towards the concept of rule of law and its ancient ideals can
be found in the ancient writings of Greek philosophers such as Plato and Aristotle around
350 BC. Plato asserted that the government should be governed by law and expressed:
“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 the main enjoy all the blessings that the gods shower on a
State.”10
Likewise, Aristotle had said that “It is more proper that law should govern and those
in power should be the servants of the law”11. He endorsed the concept of rule of law by
writing that “The rule of law is preferable to that of rule of men.”
In Roman jurisprudence, they called rule of law as ‘Jus Naturale’ or the natural or divine
law which even the king cannot disobey. Mediaevalists called it the ‘Law of God’,
Hobbes, Locke and Rousseau called it ‘social contract’ or ‘natural law’ and the modern
man calls it ‘Rule of Law’.12 As far as ancient India is concerned, the concept of rule of
law can be found in Upanishads as well as Smritis as the ‘Rule of Dharma’. Dharma
included within its ambit not only what was just and legal but what was moral and natural
as understood in Shastras13. With the emergence of theocracy or Statehood, the task of
enforcement of law and rights of individual became pious duty of the King of the State.
10
B R IA N Z . T AM AN A H A , O N T H E R U L E O F L A W H IS T O R Y , P O L I T IC S A N D T H E O R Y 8 - 9
(Cambridge University Press, New York 2004)
11
Var s ha R aj o r a, Co mp a r a tiv e A n a ly si s o f R u l e o f La w in I n d ia a n d U K, S O C IA L
S C IE N C E R E S E AR C H N E T W O R K, ( J a n. 0 5 , 2 0 1 5 , 0 6 :5 0 P M) ,
ht tp : //p ap er s. s sr n.co m/ s o l3 /p ap er s .c f m? ab str act _ id =1 5 3 3 2 6 5
12
I .P . M A S S E Y , A D M IN IS T R A T IV E L A W 2 6 ( 7 t h e d . , E a s t e r n B o o k C o mp a n y, 2 0 0 8 )
13
V . D . K U L S H R E S H T H A , L A N D M A R K S I N C O N S T I T U T I O N A L H I S T O R Y 4 8 7 , ( B . M . Ga n d h i e t a l .
th
eds., 9 e d . , E a s t e r n B o o k C o mp a n y 2 0 1 2 )
6
The King in his court with the assistance of his ministers administered justice. However,
the King was not law unto himself and was duty bound by his rajyadharma. Manusmriti
provides that law is the king of kings and even the king is bound by the higher law. The
king is bound to observe the rule of Dharma which was nothing else but the rule of law or
the natural higher-order.
In 17th century UK, Sir Edward Coke, who was the Chief Justice in reign of James I, is
credited as the originator of this concept when he expressed that ‘The king must be under
the God and the law’ and, thus, vindicated the supremacy of law over the pretentions of
the executives14.
His concept was later on extensively developed by Professor A. V. Dicey at the

end of the golden Victorian era of laissez faire in England. Dicey’s concept of rule of
law was an outcome of his opposition to the French ‘Droit Adminitratiff’ system where
two sets of courts existed i.e. the ordinary courts and the administrative courts. Dicey
was vehemently opposed the vesting of wide discretionary powers in the hands of
government officials as according to him where there is discretion there is room for
arbitrariness. He put forward a rigid exposition of rule of law which has gradually
assumed different dimensions in modern times.
DEVELOPMENT OF RULE OF LAW IN UNITED KINGDOM
In its infancy, the Rule of Law developed in UK as a restraint upon the arbitrary power
of the monarch. The modern concept of rule of law owes heavily to the struggle for
supremacy between the British Parliament and the Kings.
The first step towards the establishment of rule of law was the Great Charter of
1215 that was signed between the King John and his rebellious Barons which is known
as Magna Carta. It was the first significant instrument which limited the power of King
in governance with the bargain made between the King and the feudal Lords. The
14
K. G . B a la kr i s h n a n C.J.I., Judicial Activism and The Enforcement of Socio – Economic Rights –
The Indian Experience, Supreme Court of India Speeches 2009, (Feb. 13, 2015, 10:25 PM)
http://www.supremecourtofindia.nic.in/speeches/speeches_2009/br_ambedkar_lecture_-
_london_june_2009.pdf
7
significance of the great Charter can be realized from the words of Winston Churchill
who in his work History of English Speaking Peoples 15 maintained
“Now for the first time the king is himself bound by the law……… There is a
law which is about the king and which even he must not break. This
reaffirmation of the supreme law and its expression in general Charter is a
great work of Magna Carta; and this alone justifies the respect in which men
have held it”
The role of Sir Edward Coke, the Chief justice of England during the reign of James
I, is commendable in the fight against the absolute power of Stuart Kings who claimed
divine right to rule as the king against the Parliament. At that time the Royal Courts of
Justice who stood in their way. Chief Justice Coke interfered in the matters of prerogative
powers, seizures and detentions by issuing writs to review the decisions of local feudal
courts to which King James I did not approve. Chief Justice Coke informed that since to
form judgment in law requires long study and experience before a man can attain
cognizance of it, he opposed the decision of the king to remove cases from the
jurisdiction of the courts and decide them in his royal person. Coke asserted that the king
must be under the God and the law .As a consequence of it, Coke was dismissed from his
position as Chief Justice of the King's Bench. It was only after the Glorious Revolution
and the Act of Settlement (1701) that Parliamentary powers superseded that of the king
and the independence of judges’ tenure was firmly secured16.
Professor A. V. Dicey’s Formulation of Rule of Law
Prof. A. V. Dicey elaborated the concept of rule of law in his lectures at the Oxford
University which were later published in form of his famous book ‘Introduction to the
Study of the Law of Constitution’.
15
Winston S. Churchill, H i s t o r y o f E n g l i s h S p e a ki n g P e o p l e s , V o l . I I Th e N e w Wo r l d ( B a r n e s And
N o b l e s R e a d i n g Li b r a r y ) , G O D W AS T H E O R IG IN A L I N T E N T ( F e b . 1 4 , 2 0 1 5 , 1 0 : 4 1 AM ) ,
h t t p : / / w w w . g o d t h e o r i g i n a l i n t e n t . c o m/ h i s t o r i c a l _ d o c u m e n t s . h t m l
16
V. R. K . I Y E R , C IT I Z E N ’ S R IG H T S A N D R U L E O F L A W P R O B L E M S A N D P R O S P E C T S ,
E S S A Y S I N M E M O R Y O F J U S T IC E J C S H A H 2 9 , ( 1 s t e d . L e xi s N e xi s P u b l i s h e r s , 2 0 0 8 )
8
Dicey explained his manifestation of rule of law in three main aspects:
1. Supremacy of law
Dicey expressed that no man is punishable or can be lawfully made to suffer in body
or goods except for a distinct breach of law established in the ordinary legal manner
before the ordinary courts of land. Here, Dicey argued about absolute supremacy and
predominance of the regular law as opposed to the influence of arbitrary power or
any wide discretionary power. As per him, it excludes the existence of arbitrariness,
wide discretionary power and prerogative on the part of government officials. As per
him, the Englishmen were rule by the law and by the law alone.
2. Equality before Law
Dicey stated that no man is above the law, every man and woman whatever be his or
her rank or condition is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals. Here Dicey criticized the French legal system
of Droit Administratiff whereby separate administrative tribunals decided the cases
between officials of the State and the citizens. According to Dicey, this exemption of
the public officials (except monarch)17 from the jurisdiction of ordinary courts of law
and providing them with special tribunals was the negation of equality18. Dicey states
that there must be equality before law and subjected to the ordinary law of land
administered by the ordinary law courts.
3. Judge-made Constitution
Dicey states that the general principles of Constitution are the result of judicial
decisions determining the rights of private persons in particular cases brought before
the courts in England. England has no written constitution till date and the
fundamental rights, as enshrined in the written constitutions of other nations, are not
a consequence of the Constitution in England. Dicey emphasized the role of courts of
law as guarantors of liberty and suggested that the rights would be secured more
adequately if they were enforceable in the courts of law as against their mere
declaration in a document which can be ignored or trampled upon. Here, Dicey was
right to some extent as we have seen that amendments can be introduced into the
constitutions irrespective of their written form which at times may abrogate the rights
guaranteed therein to the subjects.
17
Supra note 10, at 64
18
C. K. T H A K K E R , A D M IN IS T R A T IV E L A W 2 7 ( 2 n d e d . E a s t e r n B o o k C o mp a n y, 2 0 1 2 )
9
The period during which Dicey came out with his formulation of rule of law was the
time when the concept of welfare state was beginning to emerge in England. Due to the
prior policy of minimal governmental interference, the commercial activity had created
enormous wealth but in unequal rewards as wealth was mostly concentrated in the hands
of a few industrial magnets, upper middle class successful merchants and their
professional facilitators such as lawyers and bankers while no wealth trickled down to
the poor working class who had only the minimal means of survival. During this period
the liberal theory of John Stuart Mill and the opposition of capitalism from Marx and
Engels gave rise labour movements. In 1870s and 1880s, Labour began to organize and
strikes broke out across Europe resulting in economic and social dislocation.
To overcome these social movements in England and elsewhere in Europe, governments

imposed and sponsored initiatives to ameliorate the sorry condition of the poor working
class. The government bureaucracies were created to administer the program is for these
purposes and hence the classical liberalism gives a two social welfare. There was
resistance against these social initiatives from the elite class. It was in the background
of these events that Dicey came up with his exposition of Rule of Law as a backlash
against the increased interference of State.
Evaluation of Dicey’s Thesis
It is often said that Dicey developed his thesis of rule of law by looking from a foggy
England into a sunny France 19 . Dicey pioneered concept of rule of law in his work
Introduction to the Study of the Law of Constitution which was initially published in
1888. Hence, Dicey’s great work was written in the 1880’s at such time when the Lassiez
faire Victorian era policy was making way for the beginning of era of Welfare State.
Dicey was influenced by the laissez faire policy and the increased powers of
administration and the consequent exercise of wide administrative discretion in the
welfare state worried him. Apart from this, Dicey also compared the English system with
the French Droit Administratiff (separate courts for adjudicating disputes between State
officials and the person(s) affected by the State action). He was against the establishment
19
S u p r a n o te 1 .
10
of special administrative courts in addition to the ordinary law courts for determining the
rights of individuals as against the State.
Dicey’s thesis has its own advantages as well as shortcomings.
There is no doubt that the doctrine of rule of law is effective in confining the
administrative authorities within their limits. In fact, rule of law has served as a
touchstone to test all administrative actions and has been accepted by almost all legal
systems of the world as a constitutional safeguard. Dicey’s vehement opposition to
arbitrary exercise of power is even today relevant in curbing and keeping the
discretionary powers of the State and instrumentalities within the rightful confinement.
The first principle of the rule of law is no one can be punished except for a distinct
breach of law. It was designed to protect the individual from any secret or arbitrary laws
because secret or arbitrary laws are incapable of justification. The element also implied
that no retrospective penal law can be legislated. If such law is imposed, the individual is
placed in the position where his conduct was lawful at the time of his action but,
subsequently, he is convicted as if his early conduct was unlawful.
The second principle is equally important as it upholds the maxim – ‘however high you
may be, law is above you’. It is nothing but recognition of fundamental principle of
democracy that every government must be subject to law and not vice versa. He rightly
opposed arbitrary and unfettered discretion is to the government officials as it may
develop into a tendency to unduly interfere with the rights of citizens.
The third principle puts an emphasis upon the role of the judiciary in enforcing
individual rights and freedoms irrespective of their inclusion in the written constitution.
Dicey was right to a large extent when he said that the statute of Constitution can be
amended and fundamental rights can be abrogated. India has been witness to such
situation during the emergency of 1975 when in absence of strong and powerful judiciary
the written constitution was rendered meaningless. Perhaps, here Dicey stressed upon the
independence of judiciary.
As far as the pitfalls of Dicey's thesis are concerned, critics argue that Dicey was
misinformed and misunderstood the real implications of the French Droit Administratiff
which has in fact been able to give expeditious and inexpensive relief to citizens against
the administrative actions. Although it is admitted that initially Conseil d’ Etat
11
technically speaking was part of administration and served as instrument of the Emperor,
but after 1872 it became an independent court and its actual working provided protection
to the citizens against arbitrary administrative actions in a more efficient manner than the
ordinary courts in England did. In fact, when Dicey came up with this criticism perhaps
he had ignored that special tribunals were not totally absent in England at the time. The
Poor Law Amendment Act 1884, created the Poor law Board which had power to
adjudicate disputes.
Even now, English system is not free from the special courts and tribunals. Several
special courts and tribunals have been established in England to enforce special laws
like:-
i. Military Courts for Military Personal 20 i.e. in England cases against military
personal can be filed only in military courts which decide them as per military
laws.
ii. Ecclesiastical law is enforced by the Ecclesiastical courts.
iii. General Medical Council has been established to try the members of the
medical profession for professional misconduct.
iv. Tax tribunals have been established for the quick disposal of tax related matters.
v. Judicial Powers with Administrative Departments i.e. administrative courts are on
the increase in England. Under this arrangement, administrative officials perform
quasi judicial functions and this decreases the possibility of individual getting
justice21.
vi. Since 2001, plenty of Acts which contradict the first element of rule of law
passed in order to protect the nation from terrorism. For example, the Anti-
Terrorism, Crime and Security Act 2001 provides for internment without charge
or trial for suspected of links with terrorism. The Terrorism Act 2006 which
provided 28 days pre-trial detention. These Acts contradict to the rule that no one
can be punished except for a distinct breach of law.
Dicey has also been criticized as public officials and private citizens do not stand on the
same footing. Further, equality before law has raised significant problems for the rule of
law. Equality may itself become unjust if it fails to take into account the un-equality in
20
S u p ra n o t e 4 , at 1 7 8
21
S u p ra n o te 4 , at 1 7 7
12
terms of social differences and disadvantages to which the marginalized sections of the
society have been subjected to. Per se concept of rule of law is nothing but justness of
laws themselves. Even a very undemocratic nation can exist with laws that may not be
just and fair.
His second principle has many exceptions because equality before law is not possible in
every case. These exceptions or immunities are:
i. King is above the law: It is said in England ‘King does no wrong’ which means
that king neither be held responsible for any action nor sued in any court22. This
provision is not compatible with the concept of Rule of Law.
ii. Special protection of govt. servants: By the Public Authorities Protection Act
passed in 1893 and amended in 1939, it has been provided that a govt. servant
can be sued only within six months of doing anything wrong if the case has been
dismissed against them, then the plaintiff has to pay the entire cost of the case as
affine to the govt. servant23.
iii. British laws are not applicable to foreign diplomats: Foreign diplomats can’t be
sued under the British laws for anything wrong on the British soil and this
provision is an exception to the Rule of Law24.
iv. Special privileges to Trade Unions: According to the Trade Disputes Act, 1906
if a person is harmed by any action of trade unions that person can’t take any
action against trade unions25.
v. Special privileges to members of Parliament: In England, members of Parliament
can’t be sued for anything said in the Parliament. They can’t be arrested during
the session of Parliament. Such privileges are an exception to the Rule of Law.26
Recently, there are several controversial Acts of Parliament which seem to have
contradicted the second principle of the rule of law enacted during the decade. The Anti-
Terrorism, Crime and Security Act 2001 provide for confinement without charge or trial
for non-British terrorist suspected of links with international terrorism. This is a specified
law against the non-British people which contradict the second principle of the rule of
law. Moreover, the Constable Protection Act, 1750 gave special immunity to police
22
S u p ra n o te 4 , at 1 7 7
23
id .
24
id .
25
S u p ra n o te 4 , at 1 7 8
26
id .
13
officers. Government officials enjoyed wide discretionary powers under the Public
Health Acts to enter private properties.
Dicey’s third principle of rule of law although still very much relevant has its own loose
ends. While it is recognized that legal recognition to rights of individuals provided by the
common law is effective, but, there is a value in declaration of individual’s basic rights
via a document such as Constitution and in creating judicial procedures for protection of
those rights. Further, Dicey gave a one sided view because in England people have got
many rights through the laws of Parliament and Charters issued by the Monarchs.
Various public authorities, the Crown, the Parliament, the Courts, the Administrative
authorities have rights and duties & most of these are determined by the statutes and not
by the courts.
Perhaps the main criticism of the Dicey’s concept has been due to his, as alleged, strict
opposition to existence of discretion in hands of State. Critics argue Dicey considered
that discretion is inconsistent with the rule of law. As per them, Dicey failed to
distinguish between discretionary powers and arbitrary exercise of discretionary power.
Arbitrary power is always repugnant to the rule of law while discretionary power is not
inconsistent with rule of law, unless exercised improperly. Even during his time there
existed laws for Preventive detention, Emergency situation, Compulsory acquisition of
goods and properties and empowered State to exercise discretion in a wide manner.
There are some authorities in England which have the wide discretionary powers like:
i. Home secretary of Britain can refuse to give citizenship: Home secy. has the right
to give citizenship to foreigners and he can refuse to give citizenship to any
person & no action can be taken against him in any court of law27.
ii. Home secretary can refuse to issue passport: Every British citizen has to get
passport to visit other countries. To give or not to give passport is the discretion
of the Home Secy. and no action can be taken against him in any court for his
act28.
iii. Lord chamber can censor the dramas & films: In England Lord Chamber has
special right to censor films, dramas, stories etc. and if he declares any drama,
27
id.
28
id.
14
film, story as violating the censor rules. No judicial remedy in any court is
available against this action of Lord.
iv. King’s servants hold their office till the pleasure of the king: In England, king’s
servants hold their office till the pleasure of the king and if the king, due to any
reason, removes a servant from his post, nothing can be done in any court against
this action of the king29.
v. Police can put limitation on taking out procession & hold public meetings: By the
Public Order Act, 1936 police has the right to control processions and general
meetings and to impose restrictions on them. No legal action can be taken against
this action of the police30.
All the aforesaid discretionary powers are essential for practical functionality of any
democratic welfare State in modern times
It is humbly submitted that while evaluating his concept, it has to be kept in mind that
the period of time when Dicey devised his view of Rule of law was witnessing the
transition from the policy of Lassiez Faire to increased interference of State for sake of
socio – economic reforms and upliftment of deprived strata of society all over Europe.
Dicey was a supporter of Lassiez faire and free market policy with minimal interference
of State in affairs of the citizens. Dicey feared arbitrariness as a direct consequence of
the wide discretionary power of administrative authorities. Since he was influenced by
the Laissez faire policy, he supported the basic principle of the policy that any substantial
discretionary power was danger to liberty. 31 He was concerned about the fact, which is
even today quite visible in State actions, that excessive exercise of the discretion given in
the hand of the State officials for the aforesaid purposes without proper riders being
placed may cause them to exceed their conferred authority. He was of the view that apart
from performing the police functions i.e. protection from its citizens from external as
well as internal aggression, the powers of the State must not unduly interfere in the
normal course of life of its subjects.
Hence, in view of the aforesaid discussion, it is submitted that in contrast to the popular
notion regarding Dicey’s rigid opposition to the existence of discretionary powers in
29
Id.
30
Id.
31
S IR I V O R J E N N IN G S , T H E L A W A N D T H E C O N S T IT U T IO N 5 4 – 5 8 ( 5 t h e d . , U n i ve r s i t y o f
Lo n d o n P r e s s , 1 9 5 9 )
15
administrative authorities, what Dicey purported to oppose was not the vesting of
discretionary powers in the public officials but the unfettered, uncontrolled and unguided
discretion at the hands of administration which may pose threat to individual rights and
liberty. Discretionary power as such is not arbitrary but what is arbitrary is its unfettered
and unguided exercise of discretion by the instrumentalities and agencies of State often
resulting in the outright violation of the rights of its subjects.
It is admitted that a modern welfare state cannot function successfully without

discretionary power and if discretion is considered as analogous to arbitrariness then
perhaps rule of law is inapplicable to any modern constitution. But discretion must be
exercised properly and an effective control mechanism must be devised to supervise the
exercise of administrative discretion. Discretion must always be a guided discretion.
Therefore, even though Dicey’s concept of Rule of law may not acceptable in its totality
still its relevance cannot be ignored in countering the arbitrary exercise of discretionary
power by State.
As far as U.K. is concerned, the effective control mechanisms, for keeping

administrative discretion within reasonable bounds, have been devised from time to time.
To illustrate the above statement: The gradual increased dominance of the House of
Commons of British Parliament, which is comprised of the elected representatives, in
comparison to the House of lords which comprises of hereditary and nominated Lords;
The Parliamentary Commissioner Act, 1967 whereby Parliamentary Commissioner for
Administration has been duly appointed as a watchdog of democracy to redress the
grievances of individuals against administrative actions. The Freedom of Information
Act, 2002 is another step ahead in this direction. Also under the Constitutional Reforms
Act, 2005 Independent Judiciary came into being with the establishment Supreme Court
as independent apex judicial body of U. K. separating the judicial and legislative
function which prior to that were exercised by the Parliament, the House of Lords being
the Supreme adjudicating authority. Office of Lord Chief Justice was created in place of
Lord Chancellor as the President of Judiciary in England and Wales32.
It has long been maintained that British Parliament is Supreme and can make, amend and
abolish any law at its will. But the recent trend in judicial review of administrative
32
16
actions by the English Supreme Court indicates that even the supremacy of Parliament is
now qualified and legislative power is not unfettered. In R (Jackson) v Attorney
General 33 Lord Hope in para. 104 observed:
“But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not

uncontrolled……… It is no longer right to say that it's freedom to legislate admits
no qualification whatever. Step by step, gradually but surely, the English
principle of absolute legislative sovereignty of Parliament which Dicey derived
from Coke and Blackstone is being qualified.” 34
Hence, in UK, although Dicey’s concept of rule of law isn’t practiced in Toto, still it has
led to the formulation basic principles of governance in order to meet the basic needs just
and fair administration in present day conditions. The importance of the doctrine of rule
of law as expounded by Dicey cannot be overlooked or underestimated. Dicey’s rule of
law is relevant as it has been identified with the concept of rights of citizens and is often
invoked in modern democratic countries to discourage, suppress and eliminate the
oppressive, capricious and arbitrary exercise of powers administrative authorities. It
helps in strengthening democratic order, promotes respect for law and establishes
conditions conducive for maintenance of social harmony and social justice.
MODERN CONCEPT OF RULE OF LAW
The modern concept rule of law is fairly wide. Some of the scholars and jurist has given
some principles of the modern rule of law. Davis 35 has given seven essential attributes
of the concept of rule of law in modern terms:-
 Law and Order

 Fixed Rules
 Elimination of discretion
 Due process of law or fairness
33
[ 2 0 0 6 ] 1 AC 2 6 2
34
A M Y S T R E E T , R E P O R T J U D IC IA L R E V IE W A N D R U L E O F L A W W H O I S I N C O N T R O L ?
4 1 - 4 2 ( T he Co n st it u tio n So c iet y, 2 0 1 3 )
35
K. C. DAVIS A D M IN IS T R A T IV E L A W , 2 4 - 2 7 ( S t . P a u l M i n n e s o t a W e s t P u b l i s h i n g C o m p a n y,
1959)
17
 Natural Law or observance of the principles of natural justice

 Preference for judges and ordinary courts of law to executive authorities and
administrative tribunals, and
 Judicial review of administrative action.
As per John Finnis 36, ‘Rule of Law’ means a system in which
 Its rules are prospective

 Possible to comply with
 Promulgated
 Clear
 Coherent with each other
 Sufficiently stable
 The making of decrees and orders as guided by rules that are themselves
promulgated, clear, stable and relatively general and
 Those who administer rules are accountable for their own compliance with rules
relating to their activities and who perform these consistently and in accordance
with law.
According to Jennings 37, the rule of law means:
 That the State as a whole must be regulated by law,
 That the separation of powers is implied within the doctrine in order to prevent
dictatorship or absolutism.
 Equality before the law,
 Clearly defined police powers, clear general rules adjudicated upon by the
courts,
 Non - retrospectivity in penal statutes,
 Strict construction of penal statutes.
 Vagueness of the principle of equality is as that of the rule of law itself.
 Most importantly, the rule of law implies the notion of liberty
It can be concluded that the each and every law should be just, fair and reasonable and
prospective in operation. Everyone should be subjected to the same ordinary laws of the
36
S. R. M Y N E N I , J U R IS P R U D E N C E ( L E G A L T H E O R Y ) 4 1 1 ( 2 n d e d . , A s i a L a w H o u s e , 2 0 1 3 )
37
H I L A IR E B AR N E T T E , C O N S T I T U T IO N A L A N D A D M IN IS T R A T IV E L A W 8 9 ( 1 s t e d .
Routledge, 1995).
18
land irrespective of the status. The modern concept of rule of law is not opposed to the
vesting of discretionary powers in the hands of State authorities. What it calls for is
presence an effective control mechanism in the legal system to prevent any arbitrary
exercise of discretion vested in any public authority. So, rather than opposing the
practice of granting discretionary powers to the government, the modern rule of law
endeavors that whenever and wherever discretionary power is granted to administrative
authorities, the manner of its exercise should, as far as possible, be defined by way of
necessary guidelines. It also ensures that every man is bound by the ordinary laws of the
land whether he is a private citizen or a public officer.
In modern welfare State, Rule of law is essentially an integral component of governance

in whose absence the State may and in fact has tendency to become despotic and
autocratic. Rule of law is directed towards ensuring that that the will of law prevails over
the whims and fancies of the man, more particularly the State, so that the voices of even
the most under privileged section of society does not go unheard in decision making,
whether legislative, judicial or executive, and the delivery of justice is based upon the
principles of impartiality, fairness, justness and reasonableness.
The notion of the rule of law, as per the need of modern times, is neither a static nor
limited in scope. Its dimensions are far reaching and coherent with the progressiveness
mankind and ever increasing complexities of governance. Now, it is a dynamic,
progressive, utilitarian and responsive concept and its value lies in its flexibility
19
PART II
THE INDIAN DEVELOPMENT AND POSITION ON
RULE OF LAW
India is a nation which is considered as the largest and most vibrant democracy. The
concept of rule of law is not new to India and has always existed in some or the other
form and name. Presently, India has an elaborately written constitution. The Constitution
embodies within itself the concept of rule of law. The rule of law permeates the entire
fabric of the Constitution of India and it forms one of its basic features. Its postulate is
intelligence without passion and reason free from desire. Whenever we find arbitrariness
or unreasonableness, there is denial of the rule of law. 38 The rule of law under the
Constitution serves the needs of people without undoubtedly infringing their rights. It
recognizes the social reality and tries to adjust itself from time to time avoiding
authoritarian path.39
The Indian Constitution is conceived on the principle that for India, the Constitution and
is the supreme. In England, the Parliament is supreme, in America, the President, in
France, the Premier and in the Soviet Union, the Communist Party Presidium. But in
India, the Constitution is supreme grundnorm of the nation.
Provisions reflecting Rule of law in Indian Constitution
The Constitution of India makes provisions not only for the establishment of the majesty
of law but also for its preservation. Although the principle of Rule of Law pervades the
Constitution all through as a golden thread binding and reflecting its spirit, few most
significant extracts of the Constitution, embodying the true spirit of rule of law, must
necessarily be highlighted to provide a glimpse into the soul of Constitution based on
rule of law.
 THE PREAMBLE
The Preamble to the Constitution declares the ideals of democracy, justice, liberty,
equality and fraternity which are the foundations of the modern concept of rule of law.
38
K A I L A S H R A I , P R IN C IP L E S O F A D M IN IS T R A T IV E L A W 3 5 - 3 6 ( 6 t h e d . Al l a h b a d L a w
Agency 2007)
39
Go la k n at h v . S ta te o f P u nj ab AI R 1 9 6 7 SC 1 9 4 3
20
Every citizen has been conferred a bundle of rights, all of which are justiciable as against
the State. The Preamble as such does not grant any power but it gives a direction and
purpose to the Constitution. It outlines the objectives of the whole Constitution. The
Preamble contains the fundamentals of the Constitution. It serves several important
purposes, as for example:
(i) it contains the enacting clause which brings the Constitution into force.
(ii) it declares the great rights and freedoms which the people of India intended to
secure to all its citizens.
(iii) it declares the basic type of government and polity which is sought to be
established in the country.
(iv) it throws light on the source of the Constitution, viz. the People of India.
The Preamble to the Constitution declares India to be a ‘Sovereign Socialist Secular

Democratic Republic’. It states the enlightened objectives which the Constitution
endeavors to achieve. These are: to secure to all its citizens social, economic and
political justice; liberty of thought, expression, belief, faith and worship; equality of
status and opportunity, and to promote among them fraternity so as to secure the dignity
of the individual and the unity and integrity of the Nation.
The goals and objectives of the Indian Polity as stated in the Preamble are sought to be
further clarified, strengthened and concretized through the Directive Principles of State
Policy. This essentially requires that the Preamble must be read along with the Directive
Principles, which lay down certain goals for the government to achieve, in order to
maximize the scope and reach of social welfare of the people.
 ARTICLE 13
The Constitution of India has been made the supreme law of the country and other laws
are required to be in conformity with the Constitution. Any law which is found in
violation of any provision of the Constitution is declared invalid.
Part III of the Constitution of India guarantees the Fundamental Rights. Article 13 is the
key provision as it gives teeth to the Fundamental Rights and makes them justiciable.
The effect of Article 13 is that the Fundamental Rights cannot be infringed by the
government either by enacting a law or through administrative action. Article 13(1) of
the Constitution makes it clear that all laws in force in the territory of India immediately
21
before the commencement of the Constitution, in so far as they are inconsistent with the
provision of Part III dealing with the Fundamental Rights, shall, to the extent of such
inconsistency, be void. Article 13(2) provides that the State should not make any law
which takes away or abridges the fundamental rights and any law made in contravention
of this clause shall, to the extent of contravention, be void. Article 13 makes the
judiciary, and especially the Apex Court, as the guardian, protector and the interpreter of
the Fundamental Rights. Article 13 confers a power as well as imposes an obligation on
the courts to declare a law void if it is inconsistent with the Fundamental Right.40 The
Hon’ble Supreme Court in Mahabir Auto Stores v. Indian Oil
Corporation 41 held that every action of the State executive authority must be subject
to rule of law and must be informed by reason. The Apex Court further observed that
rule of reason and rule against arbitrariness and discrimination, rules of fair play and
natural justice are part of the part of rule of law.
 FUNDAMENTAL RIGHTS
Part III of the Constitution enshrines the fundamental rights guaranteed to the people in
India and the citizens i.e.
 right to equality (Art. 14 - 18)

 fundamental freedoms of speech, expression, association, peaceful
assembly, movement, residence and profession (Art. 19 )
 certain protections against arrest and detention (Art. 20)
 right to life and personal liberty (Art. 21)
 right to education (Art. 21A)
 right against child labour and exploitation (Art. 23 - 24)
 right to freedom of religion including cultural and educational
rights (Art. 25 – 28)
 protection of rights of minorities (Art. 29 – 30)
 right to Constitutional remedies (Art. 32 and 226)
Article 14 of the Constitution of India provides for equality before the law and of the
equal protection of the laws. The doctrine of equality before law is a necessary corollary
40
M.P . J A IN I N D IA N C O N S T IT U T IO N A L L A W 9 0 5 , ( J u st ice R u ma P a l, Sa ma r ad it ya P al
et. a l ed s. , 6 t h ed n. , Le xi s Ne x i s B ut ter wo r t h s W ad h a wa , N a gp ur 2 0 1 1 )
41
1990 (3) SCC 752
22
of the Rule of Law which pervades the Indian Constitution. According to Article 14, the
State shall not deny to any person equality before the law or equal protection of the laws
within the territory of India.
Article 14, 15 and 16 are constituents of a single code of Constitutional guarantees

supplementing each other42. ‘Equality before law’ implies the absence of any special
privilege in favour of any individual. It ensures that all are equal before the law. Equal
protection of law implies equal protection of all alike in the same situation and under like
circumstances. The aim of both the concepts is equal justice.
Article 14 guarantees equal protection not only as regards substantive laws but
procedural laws as well43. It condemns discrimination not only by a substantive law but
also by a law of procedure44.
Equality is basic feature of constitution of India and any treatment of equals as unequals
and unequals as equals will be violation of the basic structure of Constitution of India.45
Unequals are not only permitted to be treated unequally but they also have to be treated
so46. The equal treatment to unequals is nothing but inequality47.Article 14 forbids class
legislation but it does not forbid classification which rests upon reasonable grounds of
distinction based upon intelligible differentia having a rational nexus with the object
sought to be achieved and is not artificial, evasive or arbitrary48.
Hence, the Indian concept of equality admits distinction between the non discrimination
and positive affirmative action realizing the glaring inequalities with efforts in direction
for their reduction and eventual elimination. By this distinction the intention is to provide
equality of opportunity to all.49 Article 14 strikes at arbitrariness in State action because
an arbitrary action will involve negation of equality. Where there is arbitrariness in State
action, Art. 14 springs to life and judicial review strikes such an action down 50 .
Arbitrariness is antithesis of Art. 1451.
42
43
Supra note 40, at 953.
44
Charan La Sahu v. Union of India AIR 1990 SC 1480
45
M . G. B a d a p p a n a v a r v s . S t a t e o f K a r n a t a k a A I R 2 0 0 0 S C 4 9 8
46
St. Stephens’s College v. University of Delhi AIR 1992 SC 1630
47
Onkar lal Bajaj vs Union of India AIR 2003 SC 2562
48
Lakshmi Khandsari v. State of Uttar Pradesh AIR 1981 SC 873, 891
49
M Nagraj v Union of India AIR 2007 SC 71
50
D w a r k a d a s M a r fa t i a & S o n s v . B o a r d o f Tr u s t e e s , B o mb a y P o r t , AI R 1 9 8 9 S C 1 6 4 2
51
Natai Bag v. State of West Bengal AIR 2000 SC 3313
23
It affords protection not only against discriminatory laws passed by the Legislature but
also prevents arbitrary exercise of discretion being vested in the Executive. The
discretionary power vested in the hands of administrative authorities is exercisable
according to the policy or the purpose clearly stated in the statute and is not unrestricted
discretion52. The statute should contain clear legislative policy and the guidelines for
which the discretion is to be exercised. If the statute does not contain a clear legislative
policy or guidelines for the exercise of the discretion conferred by it on the Government
or the administrative authorities, the statute itself will be discriminatory and, therefore,
against Article 14 and the way in which it is applied will not be material.
Article 19 guaranteed six Fundamental Freedoms to the citizens of India, namely,

freedom of speech and expression, freedom of assembly, freedom to form associations or
unions, freedom to move throughout the territory of India, freedom to reside and settle in
any part of the territory of India and freedom of profession, occupation, trade or
business. These various freedoms are necessary not only to promote certain basic rights
of the citizens but also democratic values and the oneness and unity of the country.
Article 19 guarantees some of the basic, valued and natural rights inherent in a person.
However, these freedoms are not absolute and may be controlled, curtailed and regulated
by the State. The restrictions imposed on any of the freedoms guaranteed by Article 19
will be valid only if the following conditions are fulfilled –
(i) Restrictions have been imposed by the State as defined in Article 12 of the
Constitution of India.
(ii) Restriction has been imposed by law and the law is a valid law. The executive
cannot impose the restriction without there being a law authorizing it to do so.
(iii) Restriction must be on any of the grounds mentioned in clauses (2) to (6) of
Article 19.
(iv) Restriction must be reasonable.53
However, there is no uniform test of reasonableness and each case has to be judged on
its own merits. for determination of reasonableness courts have laid down a few broad
points such as duration, urgency and extent of restrictions, nature of right infringed,
circumstances under and manner in which the restrictions are to be imposed by the State
52
F e d e r a t i o n o f R l y . O f f i c e r s A s s n . v. U n i o n o f I n d i a A I R 2 0 0 3 S C 1 3 4 4
53
24
or its authorities. A disproportion on any of these above said points may subject the
restrictions so imposed by the State to judicial review.
Article 20 provides protection against ex-post facto law, guarantee against double
jeopardy and self – incrimination.
Article 20(1) provides that no person shall 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,
and shall not be subject to a penalty greater than that which might have been inflicted
under the law in force at the time of the commission of the offence. Article 20(1)
provides the necessary protection against an ex-post-facto law. An ex-post-facto law is a
law which imposes penalties retroactively upon acts already done, or which increases the
penalty for the past acts54. Such laws are regarded as inequitable and abhorrent to the
notions of justice, and, therefore, there are constitutional safeguards against such laws.
According to Article 20(2), no person shall be prosecuted and punished for the same
offence more than once. Article 20(2) talks about the doctrine of double jeopardy which
has its roots in the well-established maxim, Nemo debet bis vexari, meaning that a
man must not be put twice in peril for the same offence. The principle was in existence
in India even prior to the commencement of the Constitution, but the same has now been
given the status of a constitutional, rather than a mere statutory, guarantee.
Article 20(3) makes it clear that no person accused of the offence shall be compelled to
be a witness against himself. This provision is directed against self-incrimination by an
accused. The privilege against self-incrimination is a fundamental canon of common-law
criminal jurisprudence. It recognizes basic principles of criminal jurisprudence i.e.
i. Presumption of innocence of accused

ii. Burden of proof is upon prosecution
iii. Accused cannot be forced to make statement against his will
It prevents compulsion of an accused to become witness against himself i.e. Art. 20(3)
applies to testimonial compulsion.
54
E D W AR D S. C O R W IN , T H E C O N S T IT U T IO N A N D W H A T I T M E A N S T O D A Y 7 8 ( 4 t h e d . ,
Princeton University Press N.J.1958)
25
The protection under this Article is available to not only an individual but also to a
corporate body accused of an offence55.
Article 21 guarantees to all persons (citizens or non-citizens) the right to life and
personal liberty. It provides that no person shall be deprived of his life or personal liberty
except according to the procedure established by law.
The expression right to life has been given very wide construction by the judiciary
through its liberal and extensive interpretation of the concept of life and liberty. Such has
been the impact of the interpretation of Art. 21 that it is now considered to be the
fountainhead of all the other fundamental rights and a host of new fundamental rights
have arisen in gamut of rulings of courts over the years with the interpretation of article
21 in its widest amplitude as encompassing the basic human rights essential for the very
existence of human life in dignified form. It has given rise to the doctrine of ‘fairness,
reasonableness and justness’56 as the touchstone to test the validity of any law, executive
action or judicial decision.
 DIRECTIVE PRINCIPLES OF STATE POLICY

Articles 36 to 51 of the Constitution of India contain the Directive principles of
State Policy. The makers of the Indian Constitution were aware of the fact that India is a
nation with social and economic inequalities to such an extent that the political
democracy of India will be rendered symbolic unless the State is obliged to bring about
social and economic reformation of every section of India’s society, in particular the
most backwards among them. With this in mind, the Directive Principles for State
Policy were incorporated into the Indian Constitution to provide broad guidelines to the
Governments for achievement of socio – economic democracy. Although they are not
legally enforceable in Court of Law, they obligate the State to take positive action for
the promotion of welfare of people which is in fact the soul of rule of law.
Promotion of social economic and political justice by way of social welfare measures
(Art. 38), Establishment of Distributive economic system (Arts. 39(b), 39(c)), Equal
pay for equal work (Art. 39(d)), Welfare and protection of children from exploitation
and promotion of their healthy growth (art. 39(f)), Prohibition of forced labour and
bonded labour (Arts. 39(e), 41 & 42), proving free legal aid and assistance (Art. 39 A),
55
M P S h a r ma v s . S a t i s h AI R 1 9 5 4 S C 3 0 0
56
Menaka Gandhi v. Union of India AIR 1978 SC 597
26
obligation upon State to provide effective provisions for securing right to work, right to
education and other kinds of public assistance to old, sick, unemployed, disabled (Art.
41), securing just and humane conditions of work and providing maternity relief (Art.
42), obligation to secure decent living standard and living wages to workers by way of
legislative and economic measures (Art. 43), to take step for ensuring participation of
worker in management of industries and organizations (Art. 43 A), provide free and
compulsory education (Art. 45), promotion of social and economic interests of weaker
section of society by way of distributive justice57 (Art. 46), taking measures for raising
standards of living of people and improving public health (Art. 47), steps for
establishing separate and independent judiciary (Art. 50) – all the aforesaid obligations
placed upon the State by the Constitution reflect the true spirit that the law and only the
law must prevail in a just and fair manner for the betterment and welfare of one and all.
 ARTICLE 265: This Article embodies an important constitutional principle that no tax
shall be levied or collected except under the authority of law. The term ‘law’ in this
article means statute law i.e. an Act of the legislature. Accordingly, no tax can be
imposed either by executive action or by the resolution of a House. The expression
‘authority of law’ clearly implies that the procedure for imposing the liability to pay a tax
has to be strictly complied with.
 ARTICLE 300: It provides that the Union of India or a State may sue or be sued in
relation to their respective affairs.
 ARTICLE 300-A: It provides that no person shall be deprived of his property save by
authority of law. A person cannot be deprived of his property merely by the executive
order or executive direction.
 ARTICLE 301 enacts the general rule that trade, commerce and intercourse
throughout the territory of India shall be free. The freedom declared by Article 301 may
be defined as a right to free movement of persons or things, tangible or intangible,
commercial or non-commercial, unobstructed by barriers, inter-State or intra-State or any
other impediments operating as such barriers. The object of this article is to break down
the border barriers between the constituent States and to make the entire territory of the
country as one unit with a view to encouraging trade and commerce in the country.
 ARTICLE 311 provides restrictions on the prerogative of dismissal at pleasure. It lays
that no member of a civil services or holding a civil post can be dismissed or removed by
57
M a c h e g o wd a v . S t a t e o f K a r n a t a ka A I R 1 9 8 4 S C 1 1 5 1
27
any authority subordinate to the authority by which he was appointed. The other
safeguard which it affords to a civil servant is that he shall not be dismissed or removed
or reduced in rank except after an inquiry in which he has been informed of the charges
against him and given a reasonable opportunity of being heard in respect of those
charges.
INDIAN JUDICIAL ATTITUDE IN UPHOLDING

AND PROMOTING RULE OF LAW
The Constitution of India does not only establish the rule of law, but also provides for its
protection and enforcement. The Independent Judiciary has been made the guardian and
protector of the Constitution.58 From subordinate Courts to the Apex Court, judiciary
plays most vital role in upholding rule of law in its true spirit.
Expressing its views on the significant role played by judiciary in promotion of rule of
law, the Hon’ble Supreme Court in All India Judges Asson. V. Union of
India 59 observed that justice delivery system is the bedrock of rule of law and in
absence of adequate judicial infrastructure, particularly for the subordinate courts, it
would not be possible to sustain rule of law in this country. The Court further observed
that rule of law assures the citizen of an effective civil and criminal justice system and
judicial infrastructure is the cornerstone of justice delivery system without which rule of
law would fail.
For maintaining supremacy of the Constitution, the High Court and the Supreme Court
have been conferred with the power of judicial review. The Supreme Court in
innumerable judgments60 has now recognized judicial review as part of basic structure of
Constitution for securing rule of law. The jurisdiction under Articles 32, 136, 226 and
227 cannot be excluded even by the constitutional amendment. The judicial review is the
part of the basic structure of the Constitution. Article 32 makes it clear that in case of
infringement of the Fundamental Rights, the right to move the Supreme Court is itself a
Fundamental Right. Article 226 empowers the High Court to issue orders, writs, etc. for
58
Supra note38, 41.
59
2010 (14) SCC 705
60
Smt. Indira Nehru Gandhi v. Raj Narain 1975 Supp. SCC 1 ; Minerva Mills Ltd. v. Union of India (1980) 3 SCC
625; I. R. Coelho v. State of Tamil Nadu 2007 (2) SCC 1; Madras Bar Association v. Union of India 2014(10) SCC 1
28
the enforcement of any of the Fundamental Rights and also for the enforcement of any
other right. Under Article 32 the Supreme Court can issue orders, writs, etc. only for the
enforcement of any of the Fundamental Rights. In addition, the contempt power of the
Supreme Court and High Court has also played important role in the enforcement of the
rule of law in the country. The contempt jurisdiction is very wide and inherent in the
Courts of record.61 In State of Bihar v. Subhash Singh 62 the Apex Court held
judicial review of administrative action as an essential part of rule of law to determine
not only the constitutionality of law but also the validity of procedural administrative
action.
Article 141 provides that the law declared by the Supreme Court shall be binding on all
courts except the Supreme Court within the territory of India. Article 142 provides that
the Supreme Court, in the exercise of its jurisdiction may pass such decrees or make such
orders as is necessary for doing complete justice in any cause or matter pending before it.
Any decree so passed or order so made shall be enforceable throughout the territory of
India in such manner as may be prescribed by or under any law made by Parliament and
until provision in that behalf is so made, in such manner as the President may by order
prescribe.. Article 144 makes it clear that all authorities (civil or judicial) in the territory
of India shall act in aid of the Supreme Court. The authorities who do not comply with
its direction shall be liable for contempt of Court.63
Apart from these constitutional provisions, the development of Rule of Law through the
Indian Judiciary can be broadly dissected into two phases. In the first phase the Judiciary
was non commitant to recognize the rule of law as a guardian of right to life and liberty
of the common man apart from the fundamental rights enshrined in the Indian
Constitution.
Although the Supreme Court recognized Rule of Law as a inherent part and parcel of the
Constitution, it expressed reservations against recognizing the concept of rule of law as
something apart from the Fundamental Rights enshrined in Part III of the Constitution
which could be considered as protector of the essential rights of life and liberty by
resorting to strict interpretation of law as it existed irrespective of its justness fairness or
reasonableness. Hence, the Judiciary in the first phase gave importance to the concept of
61
Supra note38, at 41-42
62
1997 (4) SCC 430
63
id.
29
rule of law as an all pervading aspect of Constitution but at the same time it was
somehow unable to realize its implications and extent in its widest possible form, which
it did successfully after the landmark judgment delivered in case of Menaka Gandhi
v. Union 64 of India where it laid down the doctrine of “justness, fairness and
reasonableness” of procedural as well as substantial law.
The first case that shook the foundation of rule of law in India was Shankari Prasad
v. Union of India. 65. Here question arose that whether the Fundamental rights can
be amended under Art. 368. The Apex court answered the question in affirmation. When
the Same question again came for consideration in Sajjan Singh v. State of
Rajasthan 66 the Hon’ble Supreme Court, while approving the majority judgment in
Shankari Prasad, held that if the framers of the Constitution intended to exclude part III
from the scope of amending power, they would have made a clear provision in this
behalf.
Hence, while interpreting law in a strict manner Supreme Court held fundamental rights
as subject to amendment under the scope of Art. 368, but, neither did it elaborate the
extent of the amendments that could be introduced in Part III of Constitution nor did it
impose any restrictions upon the scope of amending power of the Parliament as regards
the Fundamental Rights. This in fact negated the spirit of rule of law as with unbridled
power of amendment, the very existence of fundamental rights became endangered and
subject to the whims and fancies of the Parliament. This was a phase of paradox in the
interpretation of the concept of rule of Law as the soul of Constitution but its
underutilization as the guardian of the rights of the common man enshrined in the
Constitution.
But a shift and slow but steady progressive phase towards the new direction began with
rulings such as S.G. Jaisinghani v. Union of India, 67 where the Supreme Court
portrayed the essentials of rule of law in a very lucid manner. It observed:
“The absence of arbitrary power is the first essential of the rule of law upon
which our whole constitutional system is based. In a system governed by rule of
law, discretion when conferred upon executive authorizes must be continued
within clearly defined limits. The rule of law from this point of view means that
64
AI R 1 9 7 8 S C 2 4 8
65
AI R 1 9 5 1 S C 4 5 5
66
AI R 1 9 6 5 S C 8 4 5
67
AI R 1 9 6 7 S C 1 4 2 7
30
decisions should be made by the application of known principles and rules and,
in general such decision should be predictable and the citizen should know
where he is. If a decision is taken without any principle or without any rule it is
unpredictable and such a decision is antithesis of a decision taken in accordance
with the rule of law.”
In A.K. Kraipak v. Union of India 68 the Apex Court held that for a democratic
government, rule of law is a basic requirement. The rule of law runs like a golden thread
through every provision of the Constitution an indisputably constitutes one of its basic
features, which requires that every organ of the state must act within the confines of
powers conferred upon it by the Constitution and the law. The rule of law pervades over
the entire field of administration. Every organ of the State under our Constitution is
regulated and controlled by the rule of law. The concept of rule of law would lose its
vitality if the instrumentalities of the State are not charged with the duty of discharging
their functions in a fair and just manner.
And afterwards in Golak Nath v. State of Punjab 69 the Hon’ble Supreme Court
held that the Parliament has no power to amend Part III of the Constitution so as to take
away or abridge the Fundamental rights. It overruled the prior judgments where it had
held the fundamental rights as amendable under Art. 368. Here rule of law was sub
th
served by judiciary. However it did not end here. The 24 Amendment to the
Constitution made by the Parliament that not only restored the amending powers of the
Parliament but extended its scope.
th
This 24 Amendment was challenged in the landmark case of Kesavanand Bharti
v. State of Kerala 70 . While overruling the decision in Golak Nath’s case, Hon’ble
Supreme Court held that Parliament has vast powers to amend the Constitution, but
amending power is not unlimited and does not include the power to destroy or abrogate
the basic structure of Constitution. While devising the doctrine of basic structure of the
Constitution, the Apex Court here recognized Rule of law as one of the basic features of
the Constitution which must not be trampled upon.
68
AI R 1 9 7 0 S C 1 5 0
69
AI R 1 9 7 1 S C 1 6 4 3
70
AI R 1 9 7 3 S C 1 4 6 1
31
HABEAS CORPUS CASE – The Fall of Rule of Law
A.D.M. Jabalpur v. Shivakant Shukla 71

On June 25, 1975, the then President F. A. Ahmed proclaimed emergency. By virtue of
Article 358 of the Constitution, the seven classic freedoms of citizens were suspended.
On 27th June, the President issued another order under Article 359 suspending the
enforcement of Articles 14, 21, and 22. Further, the Maintenance of Internal Security
Act, 1971 was amended through successive ordinances barring courts from applying the
concept of natural justice in detention cases, permitting detentions without disclosure of
the grounds of detention, prohibiting communication to the Courts and refusing detenues
any recourse to the right of personal liberty by virtue of common law or natural law.
Writs of habeas Corpus were filed in several High Courts. The Govt. raised preliminary
objection of suspension of Article 21 which for some or other reason was overruled by
High Courts. The matter came before Hon’ble Supreme Court and case was heard by five
judges bench. The question before the court was that whether there was rule of law apart
from Article 21 which stands as guardian of liberty of citizens. The Supreme Court by a
majority of 4:1 ruled that the unavailability of Article 21 during emergency was reason
enough to reject the claims of the detenues and concluded that none of the persons had
any Locus Standi to file habeas Corpus writ as long as the proclamation was in operation.
Justice Khanna dissented. The most salient feature of Justice Khanna’s decision was that
Article 21 could not be viewed as sole repository of the right to life and personal liberty.
He 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 authority of law. He opined that
this right was not the gift of the Constitution, but, it has existed long before the
Constitution came into force. In effect Article 21 required a proper procedure under a
valid law before a person could be deprived of his or her right. So at the most, its
suspension meant the deprivation of the right to a procedure and not the denial of right in
the absence of authority of law. He further said that without such sanctity of life and
liberty, the distinction between a lawless society and the world governed by the laws
would cease to have any meaning.
71
(1976) 2 SCC 521
32
Therefore, in spite of the unfortunate majority order that held that the doors of the court
during an emergency are completely shut for the detenues, the sole gratifying factor was
the dissenting minority view given by valiant Justice Khanna that the Rule of Law can be
used as a legal principle, apart from Art. 21, to protect the life and liberty of any person.
A NEW APPROACH – Menaka Gandhi v. Union of India 72
A passport was issued to the petitioner on dated 1st of June 1966 73 . However, the
Regional Passport Officer sought to impound the passport under the Passport Act, 1967
via a letter dated 2nd July 1977 wherein the petitioner was asked to surrender her passport
within seven days from the receipt of the aforesaid letter. The petitioner with immediate
effect sent a letter to the passport office asking them to furnish the copy of statement of
reasons in light of whom she was being asked to surrender the passport. The reply to her
letter stated that in the interest of general public the reasons for impounding of the
passport could not be supplied and Section 10(3) of the Passport Act, 1967 was cited in
support of this averment by the Regional passport Office74.
The Petitioner challenged the action if the Government on the grounds of illegality and
claimed that the words “in the interest of the general public “ contained in Section 10(3)
of the Passport Act were violative of Article 1475. Further, the Petitioner also challenged
the order on the ground that the order had been made without affording her an
opportunity of being heard in defense76. The Hon’ble Supreme Court, while interpreting
the Art. 21 of the Constitution in its widest amplitude and including the right to Travel as
a worthwhile element of liberty, held
“the principle of reasonableness which is legally as well as philosophically an

essential element of equality or non arbitrariness pervades Art. 14 like a brooding
omnipresence……the procedure in Art. 21 must be right and just and fair and not
arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all…”77
72
AI R 1 9 7 8 S C 5 9 7
73
74
id.
75
76
id.
77
AI R 1 9 7 8 S C 6 2 4
33
Section 10(3) of the Passport Act, 1967 was declared ultra vires by the Hon’ble Apex
Court.
Hence, this landmark case provided a refreshed and new dimension to the rule of law
with inclusion of ‘justness, fairness and reasonableness’ of law as its integral and
inseparable elements. From here on, there began a great shift in the attitude of the
Supreme Court which now had developed the doctrine of justness, fairness and
reasonableness of law as a touchstone to determine the validity of any State action.
After this case, the doctrine of rule of law was placed at utmost importance and
recognized by the Hon’ble Supreme Court in its subsequent rulings, in one form or
another, providing varied dimensions to the concept of rule of Law.
In Minerva Mills Limited vs. Union of India 78 the Supreme again reiterated
that the amending power of the Parliament under Article 368 of the Constitution was not
unrestricted. Here the Parliament by way of 42nd amendment had added Clause 4 and 5
to Article 368 giving the Parliament an undefined vast power to amend constitution. The
Court held that the power of amendment conferred on the Parliament was itself limited
so as it cannot be enhanced or enlarged into an absolute power. Limited amending power
was one of the basic features of the Constitution and this limited power itself could not
be used could not be used to enhance or enlarge the power into an unlimited one79.
The Court held
“Three Articles of the Constitution and only three stand between the heaven of
freedom, into which Tagore wanted his country to awake, and the abyss of
unrestrained power. They are Articles 14, 19 and 21.”80
Hence, now the Supreme Court ushered a new jurisprudence of Liberal Interpretation, of
Article 21 in particular, to give effect to the predominant spirit of rule of law and prevent
violation of Fundamental rights and wherever the fundamental rights were adversely
affected, it granted suitable remedial measures.
78
(1980) 3 SCC 625
79
80
(1980) 3 SCC 625
34
The Supreme Court in Supreme Court Advocates on Record Association

v. Union of India, 81 reiterated that absence of arbitrariness is one of the essential of
rule of law. The court observed:
“for the rule of law to be realistic there has to be rooms for discretionary
authority within the operation of rule of law, even though it has to be reduced to
the minimum extent necessary for proper governance and within the area of
discretionary authority, the existence of proper guidelines or norms of general
application excludes any arbitrary exercise of discretion authority. In such a
situation, the exercise of discretionary authority in its application to individuals,
according to proper guidelines and norms, further reduces the area of discretion,
but to that extent discretionary authority has to be given to make the system
workable.”
81
AI R 1 9 9 4 S C 2 6 8
35
PART – III
NEW HORIZONS OF RULE OF LAW IN INDIA
The second phase of development of rule of law by Indian Judiciary begun with the
Menaka Gandhi’s case and continues till day. In the second phase, the judicial attitude
has been firmly in inclined towards promoting Rule of law in every sphere.
Judicial Vigilance and Activism – The Judiciary provided new shades and
dimensions to the concept of rule of law by strengthening democratic fabric of nation
through its rulings. It laid down guidelines for just and fair exercise of legislative,
administrative and judicial discretion as and when called upon to do so as to prevent
abuse of discretion to the detriment of common man.
Whether it be
Recognition of the right to live with human dignity along with all the bare
necessaries of life, such as adequate nutrition, clothing and shelter over head82
or the right to livelihood83
or the right of women to make reproductive choices84
or upholding of right to information as implicit part of Article 2185
or rights of an arrested person86
or right to procedural safeguards in a trail under Juvenile justice Act as

87
Fundamental right of the juvenile
or the right to speedy trial as an implicit part of Article 21 irrespective of financial

constraints of the government88
82
Francis Coralie v. Delhi AIR 1981 SC 746
83
O l g a t e l l i s v s . B o mb a y M u n i c i p a l C o r p o r a t i o n AI R 1 9 8 6 S C 1 8 0
84
S u c h i t a S r i v a s t a v a v . C h a n d i g a r h Ad m i n i s t r a t i o n ( 2 0 0 9 ) 9 S C C 1
85
R e l i a n c e P e t r o c h e m i c a l s Lt d . V s I n d i a n E xp r e s s n e w s p a p e r B o mb a y ( p ) l t d . ( 1 9 8 8 ) 4 S C C
592
86
Joginder kumar v. State of Uttar Pradesh AIR 1994 SC 1349
87
V a k i l P r a s a d S i n g h v . S t a t e o f B i h a r AI R 2 0 0 9 S C 1 8 2 2
88
Hussainara v. Home Secy. Bihar (II) AIR 1979 SC 1369
36
or the right of under-trials to be released on bonds and bails where pendency of

criminal proceedings itself operates as engine of oppression89
or right to free fair and expeditious trial90
or the right to free legal aid91
or right against handcuffing, bars and fetters, as prima facie an inhuman act and
unreasonable and harsh as violative of Art. 14, 19 and 2192
or right against custodial torture / violence93 .
In D. K. Basu v. State of West Bengal 94 Supreme Court held that

custodial torture strikes a blow at rule of law and it becomes sacred duty of the
Court to deter violations of Human Rights through police violence in lock ups
or the rights of prisoners as entitled to fundamental rights circumscribed by their

fact of incarceration and their right against prison torture 95
or right to compensation from State in case of custodial torture 96, custodial death97,
illegal detention98, gangrape or rape 99, fake encounters100
or right to immediate medical aid to accident victims irrespective of legal

formalities101
or right of women against sexual harassment at workplaces as fundamental right

under Art. 19 (1)(g)102
89
C o m mo n C a u s e A R e g i s t e r e d S o c i e t y v. U n i o n o f I n d i a n AI R 1 9 9 6 S C 1 6 1 9
90
State of Punjab v. Baldev Singh AIR 199 SC 2378; Manu Sharma v. State (NCT of Delhi)
2010 (6) SCC 1
91
K h a t r i v . S t a t e o f B i h a r ( I I ) A I R 1 9 8 1 S C 9 2 8 ; S u k D a s v. U . T . o f A r u n a c h a l P r a d e s h A I R
1986 SC 991
92
P r e m S h a n k a r v . D e l h i A d m i n i s t r a t i o n AI R 1 9 8 0 S C 1 5 3 5 ; C i t i z e n s fo r D e mo c r a c y t h r o u gh
i t s P r e s i d e n t v . S t a t e o f A s s a m, AI R 1 9 9 6 S C 2 1 9 3
93
F r a n c i s C o l l i n M u l l i n v . U . T. o f D e l h i AI R 1 9 8 1 S C 7 4 6 ; S h e e l a B a r s e v. S t a t e o f
Maharashtra 1983 SCC 96
94
AI R 1 9 9 7 S C 6 1 0
95
Sunil Batra II AIR 1980 SC 1579
96
Khatri v. State of Bihar AIR 1981 SC 928
97
Nilabati Behera v. State of Orissa AIR 1993 SC 1960
98
B h i m S i n g h v . S t a t e o f J a m m u & K a s h mi r A I R 1 9 8 6 S C 4 9 4
99
C h a i r m a n r a i l w a y B o a r d v . C h a n d r i m a D a s A I R 2 0 0 0 S C 9 8 8 ; U t t a r a kh a n d S a n gh a r s h
S a m i t i v . S t a t e o f U . P . 1 9 9 6 U P LB E C 4 6 1 ; K a m a l n a n t h a a n d o r s . v. S t a t e o f T a mi l N a d u
M AN U / S C / 0 2 5 9 / 2 0 0 5
100
AI R 1 9 9 7 S C 1 2 0 3 .
101
P a r ma n a n d K a t a r a v . U n i o n o f I n d i a A I R 1 9 8 9 S C 2 0 3 9
37
or right to live in healthy environment under Art. 21103
or rights of HIV positive persons104
or public interest litigation as method to promote and vindicate public interest which
demands redressal of the violation of constitutional and legal rights of large
number of people who are poor, ignorant or in a socially and economically
disadvantaged position by way of liberalizing Locus Standi105 or judicial
activism for preventing environmental degradation106
or recognizing the plight and ordering release of bonded labourers107
or recognizing rights of under- trial pregnant women108
or prohibition of smoking in public places it being health hazard109
or right of voter to obtain information regarding election candidates110
or making legislations immunized under Article 31B subject to judicial review on

merits if found to be in violation of Fundamental rights111
or providing strict guidelines for compensation , medical treatment expense and

rehabilitation of Acid Attack victims112
or recognizing the status and rights of the Transgender community113
or recognizing the right of compulsory registration of FIR114
or devising rule of rarest of rare case making life imprisonment rule and death
sentence exception115
102
Vishakha v. State of Rajasthan AIR 1997 SC 3011
103
Subhash Kumar v. Bihar AIR 1991 Sc 420
104
Mr. X v. Hospital Z AIR 199 SC 495
105
P e o p l e s U n i o n fo r D e mo c r a t i c R i gh t s v. U n i o n o f I n d i a A I R 1 9 8 2 S C 1 4 7 3
106
M. C. Mehta v. Union of India AIR 1988 SC 1037); M.C. Mehta vs. Union of India AIR
1997 SC 734
107
Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161
108
R . D . U p a d h a y a v . S t a t e o f A . P . AI R 2 0 0 6 S C 1 9 4 6
109
Murli S. Deora v. Union of India (2001) 8 SCC 765
110
U n i o n o f I n d i a v . A s s o c i a t i o n fo r D e mo c r a t i c r e fo r m s A I R 2 0 0 2 S C 2 1 1 2
111
I . R C o e l h o v . S t a t e o f Ta m i l N a d u ( 2 0 0 7 ) 2 S C C 1
112
L a k h s m i v . U n i o n o f I n d i a Wr i t P e t i t i o n ( C r l . ) N o . 1 2 9 o f 2 0 0 6 j u d g m e n t d e l i ve r e d i n
2013
113
N a t i o n a l L e g a l S e v i c e s A u t h o r i t y v. U n i o n o f I n d i a 2 0 1 4 ( 5 ) S C C 4 3 8
114
L a l i t a K u m a r i v . g o v t . o f U . P . 2 0 1 3 ( 1 3 ) S C A LE 5 5 9
38
or recognizing inordinate delay in execution of death penalty as a ground for

commutation of sentence to life imprisonment116
or recognizing adjournments sought on fanciful grounds to delay prosecution as

violation of rule of law117
or quashing illegal and arbitrary allocation of national resources i.e. coal fields 118
and telecommunication spectrum119
the Apex Court made every effort to secure that rule of Law prevails through Indian
constitutionalism.
In Vineet Narain & others v. Union of India and Another,120 the Apex
Court had observed that it is the duty of the judiciary to enforce the rule of law and,
therefore, to guard against erosion of the rule of law. The Court observed “However high
you may be, the law is above you”.
The same principle has been reiterated by the Supreme Court in the recent case of Dr.
Subramanian Swamy v. Director, CBI and Another. 121
 RIGHT TO INFORMATION ACT, 2005

Access to information by a common citizen is an essential ingredient of a transparent,
accountable and participative government. All these elements are also essential
components of the modern concept of rule of Law. India in the year 2005 enacted its
Right to Information Act (RTI) which was the outcome of efforts on part of the civil
society, various Non Governmental Organizations (NGO’s) and the then Government to
bring transparency and accountability into India’s governance. By far India’s RTI Act is
said to be one of the most comprehensive and best legislations providing the common
115
B a c h a n S i n g h v . S t a t e o f P u n j a b 1 9 8 0 ( 2 ) S C C 6 8 4 ; M a c h h i S i n gh v. S t a t e o f P u n j a b 1 9 8 3
( 3 ) S C C 4 7 0 ; S a n t o s h K u m a r S a t i s h b h u s h a n B a r i ya r v. S t a t e o f M a h a r a s h t r a 2 0 0 9 ( 6 ) S C C
498
116
N a v n e e t K a u r v . S t a t e ( N C T O f D e l h i ) , C u r a t i ve P e t i t i o n ( C r i mi n a l ) N o . 8 8 o f 2 0 1 3
( D e c i d e d o n M a r c h 3 1 , 2 0 1 4 ) . ; S h a t r u gh a n C h a u h a n v. U n i o n o f I n d i a ( 2 0 1 4 ) 3 S C C 1
117
Vinod Kumar v. State of Punjab SC 2015 (1) R.C.R. (Criminal) 647
118
Manohar Lal Sharma v. Principal Secretary 2014 (9) SCC 516
119
C e n t r e fo r P u b l i c I n t e r e s t Li t i g a t i o n v. U n i o n o f I n d i a 2 0 1 2 ( 3 ) S C C 1 ; S u b r a m a n i a n
S wa m y v . A. R a j a 2 0 1 2 ( 5 ) La w H e r a l d ( S C ) 3 5 2 7
120
(1998) 1 SCC 226
121
2014 (2) RCR (Criminal) 822 SC
39
citizen of the nation with the right to access information regarding any State actions by
way of a simple application and paying nominal fee. The citizens have the right to
request for information, obtain copies of documents, inspect documents, works and
records, take certified samples of materials, obtain information held in any form i.e.
printed or electronic.122
The Central Government, all State governments, bodies owned, controlled or

substantially funded by the government, NGO’s funded by government, Executive,
judiciary and legislature all are covered within the ambit of the Act.123
The Act has played a vital role in making the governance more transparent. It has infact
aided in unearthing of recently infamous 2G Spectrum Scam 124 , Coalgate Scam,
Commonwealth Games Scam, Adarsh Society Scam, Former CBI Director Ranjit
Sinha’s interaction with officials of companies alleged to be involved in 2G spectrum
Scam. With increasing awareness regarding the usefulness of the Act in keeping an eye
of governmental actions and thereby restraining as well has detecting corrupt practices,
more and more RTI Activists are coming up. Recently there was a huge debate on
whether the accounting for funds given to Political Parties should fall within the Scope
of RTI to which most of the political parties did not agree for reasons known to them and
better known to the common citizen. It reflects how effective RTI has been as a tool to of
governance to promote establishment of spirit of Rule of law.
 THE LOKPAL AND LOKAYUKTA ACT, 2013
The Lokpal and Lokayuktas Act 2013 came into being after a long struggle for
establishment of an institution working as a watchdog of Democracy to curb corrupt
practices of State authorities. The India Against Corruption movement which began in
August 2011 finally culminated with enactment of this Act for setting up of a Lokpal at
the Central level for Central Government authorities and Lokayuktas to be set up in
States separately by way of State Acts.
122
Se c. 2 ( f) R i g ht to I n fo r ma tio n Ac t 2 0 0 5
123
Se c. 2 ( h) R i g ht to I n fo r ma tio n Ac t, 2 0 0 5
124
Ratan N. Tata v. Union of India 2014 (1) SCC 93
40
The jurisdiction of the Lokpal ranges from Prime Minister to peon thus including within
its ambit whole of government including the NGO’s funded by the Government and the
State funded corporations. Till now no Lokpal has yet been appointed. But the coming
up of such an institution due to sustained efforts form the common masses even after the
reluctant Political will of Politicians in itself upholds the spirit of rule of law in its
modern form . From the practical experiences of nations such as U.K., Sweden New
Zealand, Denmark and many more, it has been evident that such an institution has
ensured governance which is transparent, accountable, predictable, responsive and
participative in character. How this new institution unfolds in India to bring good
governance and cull corrupt practices so that rule of law is strengthened is yet to be seen.
There is optimism about its effectiveness as the Lokayuktas in various States have been
working since late 1970’s under respective State legislations and have played a
significant role to curb corruption.
 CRIMINAL LAW AMENDMENT, 2013
The Nirbhaya gangrape case on 16th December 2012 shook the conscience of whole of
the Nation. The brutality of the crime left nation in a state of shock requiring urgent
measures to curb and deter the criminal tendencies in the likeminded people by enacting
stringent and strong anti rape laws. The Union Government responded to the situation
and setup a Committee headed by Justice J.S. Verma to make recommendations on the
issue within 3 months. Finally on the basis of those recommendations, the much needed
amendments were made to Criminal law in regard of acid attack and offence of rape.
Rape is now punishable with death sentence. Further the Health Ministry of the Union
Government issued detailed guidelines in respect of medical examination, medical
assistance and treatment of victims of sexual offences. The whole purpose behind these
measures has been to sustain rule of law and to repose faith of people.
The judicial attitude has also hardened towards such crimes as can be seen from the
Mahalaxmi Mills rape case judgment where trial court has pronounced Death
punishment for the accused.
41
 VICTIM COMPENSATION SCHEMES LAUNCHED BY

VARIOUS STATES UNDER SEC. 357 A OF CRIMINAL
PROCEDURE CODE, 1973
Compensation to victims of crime has been a longstanding issue that has been pursued at
various levels by various agencies including commissions and committees in their
reports. Fair justice is one of the essential aspects of rule of law. However, in criminal
proceedings the victim has largely been ignored and reduced to a mere tool of
investigation for securing conviction of accused. To restitute and compensate and victim
of crime is essential part of delivery of justice. Nations we look up to such as U.K. and
U.S.A have comprehensive programs for restitution and compensation of victims.
Law commission of India in its 42 n d Report highlighted “three patterns” of

compensating victims of crime as reflected in Code of Criminal Procedure of France,
Germany, and Russia. The three patterns were:
(1) Compensation by the State,
(2) Compensation by the offender either by asking him to pay it from the fine
imposed or a specified amount, and
(3) Duty to repair the damage done by the offender.
The Commission recommended that compensation should be paid to the victims of

crimes as a part of sentencing policy from the fines imposed upon perpetrators of crime
section 357 of the code of criminal procedure.
Later on, the Law Commission Report of 1996 stated that the principles of
compensation to crime victims should be expanded to cover all cases. The State should
accept to provide assistance to victim out of its own funds independent of whether the
offender is untraced, acquitted or the offence is proved or not. It further recommended
that compensation should not be limited to fines, penalties and forfeiture. The report also
highlighted the shortcomings of section 357 of Criminal Procedure Code.
nd
In its 152 Report the Commission laid stress upon incorporation of section 357A
into the Code of Criminal Procedure whereby provision could be made for enactment of
victim compensation scheme in each State. This recommendation of the Commission
was finally given effect to and the amended section 357 A was notified in 2009.
42
Malimath Committee in its report submitted in 2003 also recommended inclusion of the
provision.
In effect of the provisions contained under section 357 A Cr. P.C., since 2011, the State
Governments have started formulating the victim compensation schemes by gazette
notifications. The first State to introduce victim compensation scheme was Sikkim in
2011. It was followed by other States:
2011 Sikkim, Manipur, Bihar, Karnataka, Rajasthan

Arunachal Pradesh, Assam, Odisha, Nagaland, Chandigarh, Jharkhand,
2012 Himachal Pradesh, Goa, Daman and Diu, Delhi, West Bengal, Dadra and
Nagar Haveli, Puducherry,
2013 Uttarakhand, Gujrat, Haryana
2014 Maharashtra, Uttar Pradesh, Kerala
In the sou moto Writ Petition (Criminal) No. 24 of 2014, the Supreme Court
again stressed that those States which have yet not formulated Victim Compensation
Scheme must bring such compensation schemes at the earliest.
Although it is a commendable step towards realizing the plight of victim in criminal

justice system, practically these schemes are yet to realize there goals. Also, these
schemes have been formulated by States and provide different compensation for the
same offences. Hence, it would be better if a comprehensive National Scheme is
formulated to bring uniformity in scale of compensation for different offences and
providing more teeth to its practical application for compensating victims.
43
CONCLUSION
Rule of Law, although studied as an abstract legal concept, has enormous value in its
practical implications. Its flexibility to provide a just fair and reasonable order is
undeniable. Gradually with passage of time it has transformed its shades and colours
from natural Law to the Modern Rule of law and with passage of time its significance is
becoming more evident as a tool of governance. It’s an effective tool in curbing the
misuse of the power hands of State.
Rule of law today is synonymous with the principles of justness, fairness and
reasonableness. Even the Nazi regime functioned under law. But there were harsh,
inequitable, discriminatory and unjust laws and all these are nothing but characteristics
of arbitrariness in its worst possible forms. Rule of law envisages not the arbitrary power
but its antithesis i.e. justified and controlled discretionary power with proper system of
checks and balances in place to eliminate any tendency towards arbitrariness.
The Indian Constitution has imbibed the spirit of rule of law to its core as the golden
thread binding the Constitutionalism. The judicial attitude in India is also coherent with
the spirit of rule of law with the judiciary actively upholding the essentials of rule of law
by effectively protecting the rights of citizens against the oppressive and capricious
powers of the State. At the same time it has been making the State accountable of illegal
actions and has been providing suitable remedies to the affected persons.
To sustain the spirit of supremacy of law as against the Status of men requires constant
struggle. Even though Rule of Law is embodied in Indian Constitution and the Judiciary
has been taking important steps to enforce the concept of rule of law as and when called
upon to do so, but, practical implementation of the intent is somewhere lost due to the
malpractices in the functioning of Executive and socio – economic prejudices prevalent
in our society. Despite all the procedural safeguards and protections, blatant violation of
fundamental rights often occur at the hands of either State authorities or those who enjoy
dominant status in society. Hence, transformation must be brought in an integral manner
so that ultimately the Rule of Law must prevail over the rule of men in power. Rule of
Law requires that even the voice of the non vocal section of the nation must not go
unheard and due diligence must be exercised in a fair, just and reasonable manner while
balancing the rights of every strata of society. An aware and literate society is a pre-
44
condition for realizing the value of the rights and preventing there violation in an
effective, fair and just manner. It’s a constant struggle against the forces opposed to rule
of law and this struggle must continue.
Various independent bodies such as the National Human Rights Commission, State
Human Rights Commissions, Non-Governmental Organizations such as the Naaz
Foundation, Peoples’ Union for Democratic Rights, People’s Union for Civil Liberties,
Common Cause Society and Individuals have been working for prevalence of rule of law
in nation. Via tool of Public Interest Litigation, a whole new concept of activism came
into being during the late 1970’s and thereafter a plethora of judicial pronouncements
came in wake of the increasing agitation against the arbitrary, improper and fanciful
exercise of discretionary powers vested in the State and its instrumentalities.
The Indian perspective of Rule of Law is now maturing fast enough with the rising social
awareness and judicial activism. With the injection of characteristics of good
governance, the concept of rule of law is now playing a significant role securing the
virtues of supremacy of just, fair and reasonable laws.
45
BIBLIOGRAPHY
ARTICLES REFERRED
1. Arthur Dyere, The Rule of Law in France available at http://wikis.fu-

berlin.de/display/SBprrojectrol/Home
2. Article – Rule of Law and access to justice by R. K. Aggarwal Chief Justice Madras
High Court delivered on 01.02.02014 at South Zone Regional Judicial Conference on
‘Role of Courts in upholding Rule of Law’
3. Article – Rule of Law and access to justice by Hon’ble Mr. Justice F.M. Ibrahim
Kalifulla delivered at Tamil Nadu State Judicial Academy 31.02.2014 to 02.02.2014
4. Asian Development Bank, Elements of Governance
http://www.adb.org/Governance/gov_elements.asp
http://www.cutsinternational.org/cart/pdf/Analysing_the_Right_to_Information_Act_in_
India.pdf
5. http://jstor.org/stable .837562
6. http://muddassirshah.blogspot.in/2011/03/scope-of-rti-act-india-2005.html
7. Md. Awal Hossain Mollah, Rule of Law in Bangladesh An Overview, UNPAN DOCUMENT
MANAGEMENT SYSTEM, ( Jan. 12, 2015, 11:24 AM),
http://unpan1.un.org/intradoc/groups/public/documents/UNPAN/UNPAN012077.pdf
8. K. G. Balakrishnan C.J.I., Judicial Activism and The Enforcement of Socio –

Economic Rights – The Indian Experience, Supreme Court of India Speeches 2009, (Feb.
13, 2015, 10:25 PM)
http://www.supremecourtofindia.nic.in/speeches/speeches_2009/br_ambedkar_lecture_-
_london_june_2009.pdf
9. K R Lakhanpal, State of Punjab’s Economy 6- A broken State or a

breakout State?, Hindustan Times Feb. 2, 2015, at A3
10. Report of the Secretary General, The Rule of law and transitional Justice in conflict and
Post conflict societies (S/2004/616), United Nations and the Rule Of Law (Feb. 13, 2015,
09:26 PM), http:/www.un.org/en/ruleoflaw
46
11. United Nations Economic and Social Commission for Asia and the Pacific, What is good
governance?, UNESCAP ( Dec. 16, 2014, 08.03 PM),
http://www.unescap.org/sites/default/files/good-governance.pdf
12. Varsha Rajora, Comparative Analysis of Rule of Law in India and UK,
Social Science Research Network, (Jan. 05, 2015, 06:50 PM),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1533265
13. Winston S. Churchill, History of English Speaking Peoples, Vol. II The New
World (Barnes And Nobles Reading Library), God Was The Original
Intent (Feb. 14, 2015, 10:41 AM),
http://www.godtheoriginalintent.com/historical_documents.html
BOOKS REFERRED
1. Bad yal J S, Comparative Political S ystems and International Politics, Raj
Publishers Jalandhar, 2013
2. Dr. Sunaina Victimology and Victim Compensation, , Arun Publishing House, 2012
3. Jain M.P., Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, Nagpur,
6thedn.(reprint), 2011
th
4. Kulshreshtha V. D., Landmarks in Constitutional History, B. M. Gandhi edr, 9 edition,
Eastern Book Company
5. Rai Kailash , Principles of Administrative Law, Fourth Edition, 2004, Allahabad Law
Agency.
6. Rajagopalan. S, Administartive Law, 2nd Edition, 1970
7. Shukla, V.N., Constitution of India, 11th Edition, 2010, Eastern Book Company
st
8. Street Amy, Judicial review and Rule of Law who is in Control?, 1 ed. 2013, The
Constitution Society, London , Great Britain
9. Tamanaha Brian Z., On the Rule of Law – history, Politics, theory, Cambridge
University Press, 2004.
th
10. Thakker C. K., Administrative law, 12th edn. 2012, Eastern Book Company.
14. Upadhayaya, J.J,R., Administrative Law, 5th Edition, 2004, Central Law Agency.
47
BARE ACTS REFERRED
1. Constitution of India, Universal Publishing Company New Delhi, 2013.

2. Right to Information Act, 2005.
JOURNAL REFERRED
1. Rule of Law and readiness in India :Online International Interdisciplinary Research
Journal Vol. –IV, Jan 2014 special issue
LAW REPORTERS CITED

1. All Indian Reporter
2. Recent Criminal Reports
3. Supreme Court cases
4. Supreme Court Reporter
5. Law Finder Digital Library Edition CD Rom February 2015
48

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TERM PAPER ON

AND DEVELOPM ENT

Submitted In Partial Fulfillment of

LL.M (M asters of Law ) 1 Year Course 2014 - 15

SUPERVISED BY: SUBM ITTED BY:

Dr. Geet a Joshi Ashish Singh Taank

Associat e Professor Roll. No. 1208/ 14

Depart ment of Law s

“Rule of Law - The Indian Perspective and Development”

Ashish Singh Taank (Dr.) Geeta Joshi

LL.M 1 year course 2014 – 15 Associate Professor

Roll No. 1208/14 Department of Laws

Department of Laws Panjab University

I am obliged to the Staff at library of Department of Laws, Panjab University always

• Objective of Paper (Research Questions) …………………………………………………………………...4

• Research Methodology ……………………………………………………………………………………………….5

Development of Rule of Law in United Kingdom ………………………….7

Prof. A.V. Dicey’s formulation of Rule of Law ……………………………….8

Modern Concept of Rule of Law …………………………………………………….17

• Part II – Indian Development and Position of Rule of Law ………………………………………….20

Indian Judicial attitude in upholding and promoting rule of law ……..28

New Approach – Menaka Gandhi v. Union of India ………………………33

• Part III - New Horizons of Rule of Law in India ……………………………………………………….36

Judicial vigilance and activism ………………………………………………………..36

Right to Information Act, 2005 ………………………………………………………..39

Lokpal and Lokayuktas Act, 2013 …………………………………………………...40

Criminal Law Amendment, 2013 …………………………………………………….41

Victim compensation Schemes launched by various States

§ A.D.M. Jabalpur v. Shivakant Shukla (1976) 2 SCC 521

§ Manu Sharma v. State (NCT of Delhi) 2010 (6) SCC 1

§ Subramanian Swamy v. A. Raja 2012 (5) Law Herald (SC) 3527

“The Rule of law refers to a principle of governance in which all persons,

vii. Equitable and inclusive and

According to Lord Hewart of Bury, rule of law is “The Supremacy or dominance

Justice Bhagwati has elaborated the essentials of rule of law as

made by the dictator, howsoever arbitrary and unreasonable, has to be obeyed

OBJECTIVE OF PAPER (Research Questions)

RESEARCH & DATABASE METHODOLOGY

His concept was later on extensively developed by Professor A. V. Dicey at the

DEVELOPMENT OF RULE OF LAW IN UNITED KINGDOM

Professor A. V. Dicey’s Formulation of Rule of Law

Dicey explained his manifestation of rule of law in three main aspects:

To overcome these social movements in England and elsewhere in Europe, governments

Evaluation of Dicey’s Thesis

Dicey’s thesis has its own advantages as well as shortcomings.

It is admitted that a modern welfare state cannot function successfully without

As far as U.K. is concerned, the effective control mechanisms, for keeping

“But Parliamentary sovereignty is no longer, if it ever was, absolute. It is not

MODERN CONCEPT OF RULE OF LAW

 Law and Order

 Natural Law or observance of the principles of natural justice

As per John Finnis 36, ‘Rule of Law’ means a system in which

 Its rules are prospective

In modern welfare State, Rule of law is essentially an integral component of governance

Provisions reflecting Rule of law in Indian Constitution

The Preamble to the Constitution declares India to be a ‘Sovereign Socialist Secular

 right to equality (Art. 14 - 18)

Article 14, 15 and 16 are constituents of a single code of Constitutional guarantees