Article 21 of the Constitution states that no person shall be deprived of his liberty except in accordance with law. Conversely, we think that a person is entitled to protection of his liberty only in accordance with law. When a person’s liberty cannot be violated in breach of a law, can a person’s liberty be protected even in the face of a breach or violation of law? In other words, should rule of law prevail over personal liberty of a person or vice-versa?

Further, should this Court weigh in favour of a person’s freedom and liberty even when it has been established that the same was granted in violation of law? Should the scales of justice tilt against rule of law? We wish to make it clear that only when rule of law prevails will liberty and all other fundamental rights would prevail under our Constitution including the right to equality and equal protection of law as enshrined in Article 14 thereof.

Justice Nagarathna

In other words, whether liberty of a person would have any meaning at all under our Constitution in the absence of rule of law or the same being ignored or turned a blind eye? Can rule of law surrender to liberty earned as a consequence of its breach? Can breach of rule of law be ignored in order to protect a person’s liberty that he is not entitled to?

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.

More importantly, rule of law means, no one, howsoever high or low, is above the law; it is the basic rule of governance and democratic polity. It is only through the courts that rule of law unfolds its contours and establishes its concept. 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.

In our view, this Court must be a beacon in upholding rule of law failing which it would give rise to an impression that this Court is not serious about rule of law and, therefore, all Courts in the country could apply it selectively and thereby lead to a situation where the judiciary is unmindful of rule of law. This would result in a dangerous state of affairs in our democracy and democratic polity.

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.

The manner of functioning of the court in accord with the rule of law has to be dispassionate, objective and analytical. Thus, everyone within the framework of the rule of law must accept the system, render due obedience to orders made and in the event of failure of compliance, the rod of justice must descend down to punish. It is mainly through the power of judicial review conferred on an independent institutional authority such as the High Court or the Supreme Court that the rule of law is maintained and every organ of the State is kept within the limits of the law.

Thus, those concerned with the rule of law must remain unmindful and unruffled by the ripples caused by it. Rule of law does not mean protection to a fortunate few. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends. In the words of Krishna Iyer, J., “the finest hour of the rule of law is when law disciplines life and matches promise with performance”. In ADM, Jabalpur vs. Shivakant Shukla, H.R. Khanna, J. in his dissenting judgment said, “rule of law is the antithesis of arbitrariness”.

In this context, it would also be useful to refer to the notion of justice in the present case. It is said that justice should remain loyal to the rule of law. In our view, justice cannot be done without adherence to rule of law. This Court has observed “the concept of “justice” encompasses not just the rights of the convict, but also of the victims of crime as well as of the law abiding section of society who look towards the courts as vital instruments for preservation of peace and the curtailment or containment of crime by punishing those who transgress the law. If the convicts can circumvent the consequences of their conviction, peace, tranquility and harmony in society will be reduced to chimera.” (vide Surya Baksh Singh vs. State of UP, (2014) 14 SCC 222)

This Court has further observed that the principle of justice is an inbuilt requirement of the justice delivery system and indulgence and laxity on the part of the law courts would be an unauthorized exercise of jurisdiction and thereby, put a premium on illegal acts. Courts have to be mindful of not only the spelling of the word “justice” but also the content of the concept. Courts have to dispense justice and not justice being dispensed with. In fact, the strength and authority of courts in India are because they are involved in dispensing justice. It should be their life aim.

The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Justice is supreme and justice ought to be beneficial for the society. Law courts exist for the society and ought to rise to the occasion to do the needful in the matter. Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular Government. The faith of the people is the source to invigorate justice intertwined with the efficacy of law. Therefore, it is the primary duty and the highest responsibility of this Court to correct arbitrary orders at the earliest and maintain the confidence of the litigant public in the purity of the fountain of justice and thereby respect rule of law.

We wish to emphasize that in the instant case rule of law must prevail. If ultimately rule of law is to prevail and the impugned orders of remission are set-aside by us, then the natural consequences must follow. Therefore, respondent Nos.3 to 13 are directed to report to the concerned jail authorities within two weeks from today.


Bilkis Yakub Rasul v. Union of India (2023)