CRITICAL ANALYSIS OF

RULE OF LAW

Submitted to – Dr. Nishtha Jaswal Submitted by- Soumilgoyal

Dr. Devinder Singh Roll no - 1234/18

Class - LL.M 1st semester

 Acknowledgement

I would like to express my special thanks of gratitude to my teacher “DR.

NISHTHA JASWAL AND DR DEVINDER SINGH” who gave me the golden
opportunity to do this wonderful project on the topic ‘Critical analysis
fo rule of law’, which also helped me in doing a lot of Research and I
came to know about so many new things. I am really thankful to her. I
would also like to thank my parents and friends who helped me a lot in
finishing this project within the limited time.
 Index

Sr No. TOPICS Page no.

1. Introduction………………………………………………………………. 1

2. Critical Analysis…………………………………………………………….. 3

a.Discretionary Powers……………………………………….. …….. 6

b. Equality before law………………………………………………… 8

c. Legal Certainty…………………………………………………….. 9
3. Judicial Trend in India…………………………………………………………………………… . .10

4. Darker Side of Rule of Law…………………………………………………………………………..13

5. Conclusion and anlysis………………………………………………………………………………...14
6. Bibliography………………………………………………………………………………………………...17
Introduction

Rule of law
The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic; it
since been championed by several medieval thinkers in Europe such as Hobbs, Locke and Rousseau through the social
contract
theory. Indian philosophers such as Chanakya have also espoused the rule of law theory in their own way, by maintain that
the King should be governed by the word of law.
The concept of Rule of Law is that the state is governed, not by the ruler or the nominated representatives of the people but
by the law.
The Constitution of India intended for India to be a country governed by the rule of law. It provides that the constitution shall
be the supreme power in the land and the legislative and the executive derive their authority from the constitution.1

The concept of the Rule of Law is old origin. Edward Coke is said to be originator of this concept. In India, concept
of Rule of law can be traced to Upnishad. It provides Law is the Kings of Kings. There is nothing higher than law. By the

1
A.V. Dicey, AN INTRODUCTION TO THE STUDY OF LAW OF THECONSTITUTION (1885).
The Norman conquest of England took place in the late 11th century. The first edition of
Dicey’s book was published in 1885; therefore, he is referring to a period of nearly 800 years
during which the Rule of Law is said to have entrenched itself in England
power of law weak shall prevail over the strong and justice shall Trumph.2

The English philosopher Jeremy Bentham described the rule of law “nonsense on stilts.The King is not the law but the law
is king.
A V Dicey in his bookThe Law of the Constitution (1885)has given the following three implications of the doctrine of rule
of law.

 Supremacy of Law or Absence of arbitrary power-This has always been the basic understanding of rule of law
that propounds that the law rules over all people including the persons administering the law. The law makers need to give
reasons that can be justified under the law while exercising their powers to make and administer law.

 Equality before the Law-Article 14 & 17- The law cannot discriminate between people in matters of sex, religion,
race etc. This concept of the rule of law has been codified in the Indian Constitution under Article 14 and the Universal
Declaration of Human Rights under the preamble and Article 7.

 Predominance of legal spirit:- The constitution is pervaded by the Rule of Law on the ground that the general
principles of the constitution are a result of judicial decisions determining rights of private persons in particular cases brought
before the court. 3

2
Supra, n.41, at 194-196.
3
Supra, n.41 at 196. 45 Supra, n.41 at 203-204. Dicey’s method of understanding the Rule of Law in practice forms the basis of
many contemporary methods of evaluating a country’s adherence to the Rule of Law. The World Justice Project’s Rule of Law
Index, which is discussed later in this chapter, incorporates this method to a large extent.
 Dicey's exposition of rule is based on holy misconception he has not foresee the evolution of system, due to
which his thesis not support administrative law.

INHERENT AMBIGUITY - decision of parliament always based on majority's decision. in this sense majority holds
arbitrary powers.

IF PARLIAMENT ENACTED BAD LAW - if parliament passes a bad law then is the rule of law consider it
a supremacy of law?

DISCRETIONARY POWERS
He did not anticipate the increased need for discretionary powers in the modern State and the need for legal control of such powers.
Dicey's opposition to discretionary power has been characterized as being driven by his opposition to government intervention.

 Discretion is now seen as necessary for the decision making required in an increasingly complex society.
  However, discretion should still be constrained by values of the rule of law, such as fairness, impartially and equality.4

This first principle also cancel out the fact that, as a matter of essential competence, many present day statutes allow police
the power to detain people for a short period of time due only to a reasonable suspicion.5

New devices have been instituted to give relief to the individual against mal-administration and subtle abuse of discretionary power:

 Ombudsman
 CVC
 SC Guidelines and Judicial Review

Jeffrey Jowell : “….in the modern state discretion is necessary to carry out a variety of welfare and regulatory tasks. Nevertheless, the
Rule of Law contains a number of important values, including legality, certainty, accountability, efficiency, due process and access to
justice. These are not only formal values but also substantive. The Rule of Law is not a theory of law but a principle of institutional
morality inherent in any constitutional democracy. “

4
‘Rule of Law in India’, <http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=61fb07af-8c80-4868-b707-
b9939e9dae87&txtsearch=Subject:%20Administrative%20Law> (Last retrieved: 10.11.2018)
55
Rule of Law in India’, <http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=61fb07af-8c80-4868-b707-
b9939e9dae87&txtsearch=Subject:%20Administrative%20Law> (Last retrieved: 10.11.2018)
 Equality Before Law

Members of the police force may be able to exercise considerably more lawful power over members of society than the
average citizen lawfully could.

 It is not true that those public officials and private citizens have the same rights, and are thus equal. “A tax investigator,
for example, has powers which the taxpayer does not possess”.

 The principle of equality before the law has raised significant problems for the rule of law.

 It would be unjust if the law failed to account for social difference and disadvantage, and simply
presumed that everyone was equal and should be treated equally.6

6
Kumar C. Raj. International Human Right Perspective on the Right to Education: Integration of Human Rights
and Human Development in the Indian Constitution in Tulane International and Comparative Law. Vol-12, PP
237
Legal Certainty

 Dicey's explanation of legal certainty provides insufficient protection for individual rights and freedoms because it is more concerned
with due process than the content of laws.

 Dicey's rule of law provides no criterion for deciding whether a statute excessively restricts civil liberties. Theoretically, Dicey's
definition of rule of law would allow an Act of Parliament to authorize torture so long as it was sufficiently precise in its terms.

The requirements of the rule of law can still be met if these decisions are taken within a framework of ..open, stable, clear and
general rules.... Joseph Raz agrees that governments need discretionary powers but thinks that the law limit how they are
exercised and therefore, no discretion is absolute.

This curbs out Dicey’s doubt regarding seed of despotism being planted.

Lord Bingham (in 2010)argues that there are eight principles which should be used to define the meaning of the rule of law:

 The law must be accessible, intelligible, clear and predictable.

 Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
 The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.

 The law must afford adequate protection of human rights.

 Means must be provided for resolving, without excessive cost or delay, civil disputes which the parties cannot resolve
themselves.7

 Ministers and public officers must exercise the powers conferred on them reasonably, in good faith, for the purpose for which
the powers were conferred and without exceeding the limits of such powers.

 The adjudicative procedures provided by the State should be fair.

Judicial Trend in India with regard to rule of law:

Judiciary and Rule of Law:

The Indian Judiciary has played an instrumental role in shaping Rule of Law in India. By adopting a positive approach and
dynamically interpreting the constitutional provisions, the courts have ensured that the Rule of Law and respect for citizens’
rights do not remain only on paper but are incorporated in spirit too.

7
Divan Anil. Citizen’s Rights and the Rule of Law, Citizen’s Rights and Rule of Law: Problems and prospects,
Essays in Memory of Justice J C Shah. PP 5-29.
In the case of A.D.M. Jabalpur v. Shiv Kant Shukla[xiv], KHANNA, J. observed:

“Rule of Law is the antithesis of arbitrariness……..Rule of Law is now the accepted norm of all civilized
societies……Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing
notions of individual liberty and public order.”

In Bachhan Singh v. State of Punjab[xv], it was held that the Rule of Law has three basic and fundamental assumptions. They
are:-

1) Law making must be essentially in the hands of a democratically elected legislature;

2) Even in the hands of the democratically elected legislature, there should not be unfettered legislative power; and

3) There must be independent judiciary to protect the citizens against excesses of executive and legislative power.

The first case which stirred a debate about Rule of Law was Shankari Prasad v. Union of India[xvi], where the question of
amendability of fundamental rights arose. The question lingered and after witnessing the game play between the government
and the judiciary, the issue was finally settled in the case of Kesavananda Bharati v. State of Kerala[xvii]. In this case, the
Hon’ble Supreme Court held that the Rule of Law is the “basic structure” of the Constitution. The Hon’ble Supreme Court
by majority overruled the decision given in Golak Nath’s case[xviii] and held that Parliament has wide powers of amending
the Constitution and it extends to all the Articles, but the amending power is not unlimited and does not include the power to
destroy or abrogate the basic feature or framework of the Constitution. There are implied limitations on the power of
amendment under Art 368, which are imposed by Rule of Law. Within these limits Parliament can amend every Article of
the Constitution. Justice H R Khanna played a vital role in preserving the Rule of law although he concurred with the majority
decision.

In the case of Indira Nehru Gandhi v. Raj Narayan[xix], the Apex Court held that Rule of Law embodied in Article 14 of the
Constitution is the “basic feature” of the Indian Constitution and hence it cannot be destroyed even by an amendment of the
Constitution under Article 368 of the Constitution. Article 329-A was inserted in the Constitution under 39th amendment,
which provided certain immunities to the election of office of Prime Minister from judicial review. The Supreme Court
declared Article 329-A as invalid, since it was clearly applicable only to the then current prime minister and was an
amendment to benefit only one individual. It was decided that the law of the land is supreme and must prevail over the will
of one person.

In the case of Maneka Gandhi v. Union of India[xx], the Hon’ble Supreme Court established the Rule of Law that no person
can be deprived of his life and personal liberty except procedure establish by law under Article 21 of the Constitution. Thus,
Article 21 requires the following conditions to be fulfilled before a person is deprived to his life and liberty:
That there must be a valid law.
The law must provide procedure.
The procedure must be just, fair and reasonable.
The law must satisfy the requirement of Article 14 and 19.
The Supreme Court observed in Som Raj v. State of Haryana that the absence of arbitrary power is the primary postulate of
Rule of Law upon which the whole constitutional edifice is dependant. Discretion being exercised without any rule is a
concept which is antithesis of the concept.

Another facet of Rule of Law in India is the independence of judiciary and power to judicial review. The Supreme Court in
the case Union of India v. Raghubir Singh 8that it is not a matter of doubt that a considerable degree of principles that govern
the lives of the people and regulate the State functions flows from the decision of the superior courts. Rule of Law as has
been discussed postulates control on power. Judicial review is an effective mechanism to ensure checks and balances in the
system. Thus, any provision which takes away the right to judicial review is seen to go against the very fibre of Rule of Law.
In the case of S.P. Sampath Kumar v. Union of India,9 the courts have reiterated that judicial review is part of the basic
structure of the Constitution.

In India, the meaning of rule of law has been expanded. It is regarded as a part of the basic structure of the Constitution and,
therefore, it cannot be abrogated or destroyed even by Parliament. The ideals of the Constitution- liberty, equality and
fraternity have been enshrined in the preamble. Constitution makes the supreme law of the land and every law enacted should
be in conformity to it. Any violation makes the law ultra vires. Rule of Law is also reflected in the independence of the
judiciary.

8
1989 SCR (3) 316.
9
1987 SCR (3) 233.
The Darker Side of Rule of Law

The case of ADM Jabalpur Shivakant Shukla10 is one of the most important cases when it comes to rule of law. In this case,
the question before the court was ‘whether there was any rule of law in India apart from Article 21’. This was in the context
of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an emergency. The answer of the majority
of the bench was in negative for the question of law. However Justice H.R. Khanna dissented from the majority opinion and
observed that “Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and
liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and
one governed by laws would cease to have any meaning…” The majority judges could not take a firm stand and interpreted
the supremacy of law to mean supremacy of the law of the land and not supremacy of the constitutional spirit which is rule
of law.

The question of encroachment of the judiciary over the other organs of the government in the name of activism always
persists. The extent to which the courts can limit the exercise of other organs is to be pondered upon. The principle of Rule
of Law does not also allow the self- conferment of power by the judiciary. The court’s interpretation and judgments are never
solely adequate to ensure the observance of Rule of Law. Corruption, fake encounters, unfair policies all undermine rule of
law.[xxv]

The main characteristic of the concept of rule of law is ‘equality’. This itself has been criticized widely. The government
possesses the inherent authority to act purely on its own volition and without being subjected to any checks or limitations.

10
Supra Note 14
Total equality is possible to prevail in general conditions, not only in India but in any country for that matter. For e.g.: no
case can be filed against the bureaucrats and diplomats in India and the privileges enjoyed by the members of parliament with
respect to legal actions against them.

Conclusion & Suggestions

With the above analysis of the concept it can be concluded that the Dicey’s Concept of Rule of Law is idealist in Nature
which is quite impossible to implement in the nation like India. According to Dicey’s theory justice must be done through
known principles of law and not by principles of men. He believes that where there is discretion there is always a room for
arbitrariness. Our framers of the constitution while incorporating the parent act tried to involve the concept into the
Constitution of India but the intention with which our framers incorporated the concept have gone in vain.
Today in India, the strange phenomenon and paradox is that while on ideological plain democracy is supposed to strengthen
the rule of law and the administration of criminal justice, in actual practice, the electoral process which is an integral part of
democracy is undermining the rule of law and due administration of criminal justice. This must be put to an end. The
traditional concept in all civilized liberal nations is that democracy and rule of law are close allies of each other. It has to be
the effort of all well-meaning persons to ensure that their kinship is not weakened and that each of them continues to lend
strength to the other.

The concept of rule of law does not merely mean formal legality which assures regularity and consistency in the achievement
and enforcement of democratic order, but justice based on the recognition and full acceptance of the supreme value of the
human personality and guaranteed by institutions providing a framework for its fullest expression.
President of India in its speech in March 2018 gave importance to concept of rule of law - In fact, India has
put ‘’Dharma’’ at the centre of governance.

Let me remind ourselves what Mahabharata says:

“Dharma is for the stability of society, the maintenance of social order and the general well-being and progress of
human kind. Whatever conduces to the fulfillment of these objects is Dharma.”

Upholding Dharma means sustaining our civilization. If we follow the rule of law, our human society will survive.

This is why we say: “Dharmo Rakshati Rakshitaha”.

As Chanakya had also said “Law and morality sustain the world”.

We all have a stake and a role to play in making this happen in our lives.
There is a huge backlog of cases, partly because of unfilled vacancies. According to Prison Statistics in India, 2015 report
released by the National Crime Records Bureau, 67 per cent of the prisoners in Indian jails are under trials. According to the
Law Ministry, there are 18 judges per million population, while the Law Commission has recommended 50 judges per
million.

There are also complaints that lawyers tend to delay the progress in the disposal of cases. This should be avoided to restore
people’s trust in the system. After all, we know, Justice Delayed Is Justice Denied. Lawyers may not strike work, for it affects
the rights of the litigants. Striking of work by lawyers is also one of the causes of delay in disposal of cases.
The World Justice Report ranked India at 66th position in its Rule of Index 2016. Denmark, Norway and Finland were the
top three countries, while Afghanistan, Cambodia and Venezuela were at the bottom India has vast scope to improve its
ranking if concerted effort is made by all the stakeholders.
In a developing country like ours, lawyers and jurists will have to play a crucial role by ensuring that nobody is denied access
to justice and the poor and illiterate in particular are not deprived of their legitimate rights.
Lawyers should act as conscience-keepers of the society and take advantage of the mechanisms like Public Interest Litigation
(PIL) to serve the needy and the poor.11

11
http://pib.nic.in/newsite/PrintRelease.aspx?relid=173683
 Bibliography

 Andhyarujina, T.R., Judicial Activism and Constitutional Democracy in India (N.M Tripathi, Pvt.Ltd., Bombay
1992).
 Basu, Durga Das, Shorter Constitution of India (Wadhwa & Co., Nagpur 2006).
 Bhagwati, P.N, Judicial Activism, and Public Interest Litigation (Jagrat Bharat, Dharwad 1985).  Bhagwati, P.N.,
Law Freedom and Social Change (1979).
 Bhagwati, P.N., The Role of the Judiciary in Democratic Process Balancing Activism and Justice Restraint in
Developing Human Rights Jurisprudence, Vol. 5 (Fifth Judicial Colloquium on the Domestic Application of Human
Rights Norms 1992).
 Bhatia, K.L., Judicical Activism and Social Change (Deep & Deep, New Delhi 2006).
 Baxi, Upendra, Courage, Craft