The article is an excerpt from the judgment Re: Directions in the matter of demolition of structures.
The rule of law has been succinctly conceptualized by AV Dicey[1], which can be summarized into three postulates:
(1) “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 the land”, as contrasted to the “the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint”;
(2) “no man is above the law”, and that “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”; and
(3) “the predominance of the legal spirit” or that “the general principles of the constitution… are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts”.
There can be no doubt with the principle that, no one is above the law of the land; that everybody is equal before the law.
There can also be no doubt with the principle that, under the constitutional framework there is no scope for arbitrariness by officials, and that no one can be punished or 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 the land. It is only the courts which are independent adjudicators of the rights of the parties and under the constitutional framework it is only they which can impose punishment.
Though the basic principle, as conceptualized by Dicey, largely remains the same, the concept of ‘rule of law’ has been discussed subsequently by various scholars. It has been described to mean that “government officials and citizens are bound by and have to abide by the law” and that there “must be mechanisms or institutions that enforce the legal rules if they are breached”. It ensures that “courts should be available to enforce the law and should employ fair procedures”. The law must be just and fair, and “protect the human rights and dignity of all members of society”.
Above all, “the essential purpose of the rule of law is to prevent the abuse of power”[2]. Lord Bingham sets out as one of the facets of the rule of the law, the following[3]:
“(4) Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.”
Rule of law as Umbrella Concept
The rule of law has also been described as “an umbrella concept for a number of legal and institutional instruments to protect citizens against the power of the state”[4]. Moreover, “Rule of law is integral to and necessary for democracy and good governance”, because “attempts to democratize without a functional legal system in place have resulted in social disorder”[5].
It can thus be seen that the law must be just and fair, and also protect the human rights and dignity of all members of society. At the same time, the essential purpose of the rule of law is to prevent the abuse of power. The rule of law is an umbrella concept to protect citizens against the power of the State. It is integral to and necessary for democracy and good governance.
While we consider this aspect, we are of the view that the concept of rule of law needs to be considered broadly. The legal sanctity of practices in the past such as slavery in the United States, apartheid in South Africa, or untouchability in India would have to be considered as antitheses to the rule of law apart from being a serious affront to human dignity.
In this respect, we may refer to the work of various scholars in the field. Thus, “for the rule of law to measure up to the requirements of a legitimate constitutional democracy, it must be more than the rule of law in the narrow sense”[6]. In the modern constitutional framework, “the rule of law would seem to need democratic accountability, procedural fairness, and even perhaps substantive grounding”, such as in the provisions of the Constitution.
In other words, “the rule of law means the regulative role of certain institutions and their associated legal and judicial practices”. It has been beautifully observed: “That is the law. And no Spartan, subject or citizen, man or woman, slave or king, is above the law. Where-ever law ends, tyranny begins”[7].
Indian Judicial Precedents on Rule of Law
This Court in the case of Smt. Indira Nehru Gandhi v. Shri Raj Narain[8], has held the rule of law to be part of the basic structure of the Constitution. It will be apt to refer to the following observations of Justice Mathew:
“341…I cannot conceive of rule of law as a twinkling star up above the Constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four corners of the Constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law…”
The relevance of the rule of law in our constitutional system has been considered by this Court in various judgments. In the case of National Human Rights Commission v. State of Arunachal Pradesh and another[9], this Court was considering the plight of Chakma community in the State of Arunachal Pradesh. This Court observed thus:
“No State Government worth the name can tolerate such threats by one group of person to another group of persons; it is duty bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law. The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics.”
This Court in unequivocal terms held that no State Government worth the name can tolerate threats by one group of person to another group of persons. It has been held that the State is duty bound to protect the group from such assaults and if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations. It has been held that the State Government must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics.
In Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors.[10], while dealing with the constitutionality of the Aadhaar Act, 2016, this Court held:
“As the interpreter of the Constitution, it is the duty of this Court to be vigilant against State action that threatens to upset the fine balance between the power of the state and rights of citizens and to safeguard the liberties that inhere in our citizens.”
In his dissenting opinion, Dr. Justice D.Y. Chandrachud described the principle of the rule of law as under:
“The rule of law is the cornerstone of modern democratic societies and protects the foundational values of a democracy. When the rule of law is interpreted as a principle of constitutionalism, it assumes a division of governmental powers or functions that inhibits the exercise of arbitrary State power. It also assumes the generality of law: the individual’s protection from arbitrary power consists in the fact that her personal dealings with the State are regulated by general rules, binding on private citizens and public officials alike.”
This sentiment was echoed in Rojer Mathew v. South Indian Bank Ltd. & Ors.[11], where this Court held: “If Rule of law is absent, there is no accountability, there is abuse of power and corruption. When the Rule of law disappears, we are ruled not by laws but by the idiosyncrasies and whims of those in power.”
Again, earlier this year, in Bilkis Yakub Rasool v. Union of India & Others[12], the concept of the rule of law was discussed in detail. It was held:
“Rule of law means wherever and whenever the State fails to perform its duties, the Court would step in to ensure that the Rule of law prevails over the abuse of the process of law. Such abuse may result from, inter alia, inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or other obligations in consonance with the procedural and penal statutes.
Breach of the Rule of law, amounts to negation of equality under Article 14 of the Constitution. The concept of Rule of law is closely intertwined with adjudication by courts of law and also with the consequences of decisions taken by courts. Therefore, the judiciary has to carry out its obligations effectively and true to the spirit with which it is sacredly entrusted the task and always in favour of Rule of law.
There can be no Rule of law if there is no equality before the law; and Rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny or judicial review and relief and all these features would lose their significance if the courts don’t step in to enforce the Rule of law. Thus, the judiciary is the guardian of the Rule of law and the central pillar of a democratic State. Therefore, the judiciary has to perform its duties and function effectively and remain true to the spirit with which they are sacredly entrusted to it.
Further, in a democracy where Rule of law is its essence, it has to be preserved and enforced particularly by courts of law. Compassion and sympathy have no role to play where Rule of law is required to be enforced. If the Rule of law has to be preserved as the essence of democracy, it is the duty of the courts to enforce the same without fear or favour, affection or ill-will.”
It is thus well settled that the rule of law has been described as a safeguard against the arbitrary use of the State power. It ensures that the actions of the Government and its authorities are governed by established legal principles, rather than arbitrary discretion. Whenever the citizens in the form of mobs have broken the law to vandalize or to declare threats, the Court has cast an obligation on the State to prevent such threats or assaults. This obligation underscores the State’s responsibility to maintain law and order and protect citizens from unlawful actions that undermine the rule of law itself.
It is not necessary to state that failure to uphold these obligations can erode public confidence in the justice system, leading to an environment where the rule of law is compromised by lawlessness. Ensuring the preservation of the principle of rule of law and the protection of the civil rights and liberties of citizens is essential for protecting the constitutional democracy.
The concept of the rule of law is not an abstract principle but is reflected in the substantive content of various legal domains. In this regard, it would be apt to refer to the following articulation of the rule of law:
“The rule of law provides a framework and value system in which institutions, principles, and rules are implemented to ‘reign (sic) in the arbitrary exercise of state power and to prevent the abuse of power, to ensure predictability and stability, to make sure that individuals know that their lives, their liberty, their property will not be taken away from them arbitrarily and abusively’. It is from this core of understanding that constitutional law, criminal law, criminal procedure, due process, equal protection, international law, the laws of war, and human rights law find their moral, ethical, philosophical, and political justification in controlling the actions of executive power” [13].
It has been emphasized that the rule of law provides a framework and value system to ‘rein in the arbitrary exercise of state power and to prevent the abuse of power, to ensure predictability and stability, to make sure that individuals know that their lives, their liberty, their property will not be taken away from them arbitrarily and abusively’.
It can thus be said that the processes enshrined in constitutional law, criminal law and procedure are facets of the rule of law and thus serve to regulate the exercise of executive power.
Reference
In Re: Directions in the matter of demolition of structures (2024)
[1] AV Dicey, Introduction to the Study of the Law of the Constitution, Macmilan and Co. Ltd.
(1952), pp. 183-205
[2] Raitio, Juha. “The Concept of the Rule of Law – Just a Political Ideal, or a Binding
Principle?.” Giornale di Storia Costituzionale, 45, 2023, pp. 37-46. HeinOnline.
[3] Bingham, Tom. The Rule of Law, p.60
[4] Bedner, Adriaan. “An elementary approach to the rule of law.” Hague Journal on the rule
of law 2.1 (2010): 48-74
[5] Peerenboom, Randall. “Human rights and rule of law: What’s the relationship.” Geo. J.
Int’l L. 36 (2004): 809
[6] Rosenfeld, Michel. “The rule of law and the legitimacy of constitutional democracy.” S.
Cal. L. Rev. 74 (2000): 1307
[7] John Rawls, Samuel Freeman (ed.), Collected Papers (Harvard University Press, 2021).
[8] (1976) 2 SCR 347
[9] 1996 INSC 38=(1996) 1 SCC 742
[10] [2018] 8 S.C.R. 1
[11] [2019] 16 S.C.R. 1
[12] [2024] 1 S.C.R. 743
[13] Arthur H. Garrison, “The Rule of Law and the Rise of Control of Executive Power”, 18(2)
Texas Review of Law & Politics 303-355 (2014)