We are in the age of constitutional democracy, that too substantive and liberal democracy. Such a democracy is not based solely on the rule of people through their representatives which is known as “formal democracy”. It also has other precepts like rule of law, human rights, independence of judiciary, separation of powers, etc.

The framers of Indian Constitution duly recognized the aforesaid precepts of liberal and substantive democracy with rule of law as an important and fundamental pillar. At the same time, in the scheme of the Constitution, it is the judiciary which is assigned the role of upholding rule of law and protecting the Constitution and democracy.

The essence of rule of law is to preclude arbitrary action. Dicey, who propounded the rule of law, gave distinct meaning to this concept and explained that it was based on three kindered features, which are as follows:

(i) absence of arbitrary powers on the part of authorities;

(ii) equality before law; and

(iii) the Constitution is part of the ordinary law of the land.

There are three aspects of the rule of law, which are as follows:

(a) A formal aspect which means making the law rule.

(b) A jurisprudential or doctrinal aspect which is concerned with the minimal condition for the existence of law in society.

(c) A substantive aspect as per which the rule of law is concerned with properly balancing between the individual and society.

When we talk of jurisprudential rule of law, it includes certain minimum requirements without which a legal system cannot exist and which distinguished a legal system from an automatic system where the leader imposes his will on everyone else.

Professor Lon Fuller has described these requirements collectively as the ‘inner morality of law‘.

In addition to jurisprudential concept, which is important and an essential condition for the rule of law, the substantive concept of the rule of law is equally important and inseparable norm of the rule of law in real sense. It encompasses the ‘right conception’ of the rule of law propounded by Dworkin. It means guaranteeing fundamental values of morality, justice, and human rights, with a proper balance between these and the other needs of the society.

Justice Aharon Barak, former Chief Justice of Israel, has lucidly explained this facet of rule of law in the following manner:

“The rule of law is not merely public order, the rule of law is social justice based on public order. The law exists to ensure proper social life. Social life, however, is not a goal in itself but a means to allow the individual to live in dignity and develop himself. The human being and human rights underlie this substantive perception of the rule of law, with a proper balance among the different rights and between human rights and the proper needs of society.

The substantive rule of law “is the rule of proper law, which balances the needs of society and the individual”. This is the rule of law that strikes a balance between society’s need for political independence, social equality, economic development, and internal order, on the one hand, and the needs of the individual, his personal liberty, and his human dignity on the other. The Judge must protect this rich concept of the rule of law.”

The ‘rule of law’, which is a fine sonorous phrase, is dynamic and ever expanding and can be put alongside the brotherhood of man, human rights and human dignity. About the modern rule of law, Professor Garner observed:

“The concept in its modern dress meets a need that has been felt throughout the history of civilization, law is not sufficient in itself and it must serve some purpose. Man is a social animal, but to live in society he has had to fashion for himself and in his own interest the law and other instruments of government, and as a consequence those must to some extent limit his personal liberties. The problem is how to control those instruments of government in accordance with the Rule of Law and in the interest of the governed.”

Likewise, the basic spirit of our Constitution is to provide each and every person of the nation equal opportunity to grow as a human being, irrespective of race, caste, religion, community and social status. Granville Austin while analyzing the functioning of Indian Constitution in first 50 years has described three distinguished strands of Indian Constitution:

(i) protecting national unity and integrity,

(ii) establishing the institution and spirit of democracy; and

(iii) fostering social reforms. The strands are mutually dependent and inextricably intertwined in what he elegantly describes as a ‘seamless web’.

And there cannot be social reforms till it is ensured that each and every citizen of this country is able to exploit his/her potentials to the maximum. The Constitution, although drafted by the Constituent Assembly, was meant for the people of India and that is why it is given by the people to themselves as expressed in the opening words “We the People…”. What is the most important gift to the common person given by this Constitution is “fundamental rights” which may be called human rights as well.

Speaking for the vision of our founding fathers, in State of Karnataka & Anr. v. Shri Ranganatha Reddy & Anr.[1], Supreme Court speaking through Justice Krishna Iyer observed:

“The social philosophy of the Constitution shapes creative judicial vision and orientation. Our nation has, as its dynamic doctrine, economic democracy sans which political democracy is chimerical. We say so because our Constitution, in Parts III and IV and elsewhere, ensouls such a value system, and the debate in this case puts precisely this soul in peril….

Our thesis is that the dialectics of social justice should not be missed if the synthesis of Parts III and Part IV is to influence State action and court pronouncements. Constitutional problems cannot be studied in a loaded legality.

A judge is a social scientist in his role as constitutional invigilator and fails functionally if he forgets this dimension in his complex duties. socio-economic vacuum, since socio-cultural changes are the source of the new values, and sloughing off old legal thought is part of the process the new equity”

In Dattatraya Govind Mahajan v. State of Maharashtra[2] the spirit of our Constitution was explained thus:

“Our Constitution is a tryst with destiny, preamble with lucent solemnity in the words ‘Justice – social, economic and political.’ The three great branches of Government, as creatures of the Constitution, must remember this promise in their fundamental role and forget it at their peril, for to do so will be a betrayal of chose high values and goals which this nation set for itself in its objective Resolution and whose elaborate summation appears in Part IV of the Paramount Parchment.

The history of our country’s struggle for independence was the story of a battle between the forces of socio-economic exploitation and the masses of deprived people of varying degrees and the Constitution sets the new sights of the nation…..Once we grasp the dharma of the Constitution, the new orientation of the karma of adjudication becomes clear.

Our founding fathers, aware of our social realities, forged our fighting faith and integrating justice in its social, economic and political aspects. While contemplating the meaning of the Articles of the Organic Law, the Supreme Court shall not disown Social Justice.”

In National Human Rights Commission v. State of Arunachal Pradesh[3], the Supreme Court explained it again, as under:

“We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws.” Looking the matter from this angle, when the judiciary is assigned the role of upholding the rule of law, the first function of the judiciary is to protect the democracy as well as the Constitution. At the same time, second role of the Court, which is equally important, is to bridge the gap between the law and the society.

In the process of undertaking this role, a third role, which is of equal significance also springs up. Judiciary is also to ensure that social and economic justice is meted out to the deserving lot by affirmative action of the State. Its attempt has been to strive the balancing of competing Constitutional norms. The complex issues are dealt with keeping in view this role of the Supreme Court as assigned by the Constitution; albeit within the constitutional norms.

[1] (1977) 4 SCC 471

[2] (1977) 2 SCC 548

[3] (1996) 1 SCC 742