Full Text of 'Barrister M.K. Nambyar Law Lecture, 2025' delivered by Dama Seshadri Naidu, Senior Advocate on the topic "The Rule of Law: The Foundational Principle or a Fragile Promise?"
Hon'ble Mr. Justice CS Dias, Judge, High Court of Kerala, Shri Justice Siri Jagan, the former Judge of High Court of Kerala, Shri Gopalakrishan Kurup, the Advocate General of Kerala High Court and Member of the Endowment Committee, the respected Vice Chancellor, Prof. GB Reddy, Shri Gopala Pillai, EC Member, Shri Manoj Kumar, State Attorney, Shri Unnikrishnan, the Special Senior Government Pleader, the Registrar Ms. Lina Mathew, the Faculty of the NUALS, all the organisers of this august event, the staff of the University, and my dear fellow students, good evening.
What an honour and privilege to be in front of you. NUALS is a premier legal institution. The person who instituted this Academic Endowment—Shri KK Venugopal, the former Attorney General of India—is a living legend.
And the Memorial Law Lecture is to commemorate annually the memory of another legend—Barrister MK Nambyar—a legend of all times. Indeed, I was conferred the honour of delivering the 5th Barrister M.K. Nambyar Law Lecture, 2025.
And the topic is “The Rule of Law: The Foundational Principle or a Fragile Promise? For this, I thank the University and the Endowment Committee, as well as the founder of this Endowment, Shri KK Venugopal.
I must also be grateful to my elder brother Shri Justice Siri Jagan, a highly respected legal luminary. It is he who first asked me to deliver the memorial law lecture.
My Acquaintance:
Regrettably, I do not have any personal acquaintance with Shri KK Venugopal. But I am proud to proclaim that I am his contemporary in the Supreme Court. Incidentally, yesterday we both represented a common client in a Writ Petition before the Hon'ble Supreme Court.
For decades, Shri KK Venugopal is a source of inspiration and admiration for generations of lawyers. I am no exception; I am one among those thousands of lawyers who tried to emulate or imitate him.
About Barrister MK Nambyar, if I elaborate, it exceeds the very memorial lecture in length and breadth. That said, I intend to provide a thumbnail sketch before I dwell into the topic assigned to me.
The Constituent Assembly originally had 399 members; after the partition, it had 299 members. Our Constitution is the collective intellectual effort of these 299 members. But in the first 25 years—that is, from 1950 to 1975—it took a handful of lawyers and the judges of the Hon'ble Supreme Court to expound the constitutional contours.
Let me say, many made the constitution and a few moulded it. Our Constitution is like a lump of precious gold our framers have given to us. But it is the first-generation lawyers and the Judges of the constitutional Courts that made a jewel out of that lump of gold. For ever, our constitution is our crowning glory.
Indeed, we have all gathered here to pay homage to a Titan of Indian constitutional law—Shri M.K. Nambyar. His life was not merely a chronicle of legal victories but a testament to values of integrity, courage, and unrelenting pursuit of constitutional ideals. Born in 1898, Nambyar's legacy spans the dawn of Indian independence to the foundational years of the Supreme Court. He carved a niche as one of the foremost defenders of fundamental rights and constitutional limits.
After completing his legal education, including a master's in Constitutional Law from the London School of Economics and a call to the Bar at Lincoln's Inn, Nambyar returned to Mangalore. There he established himself as a formidable trial lawyer.
In 1948, Mr. Nambyar shifted to Madras, marking a critical turn in his career. His chamber became a training ground for many future legal luminaries, including his own son, K.K. Venugopal.
The First Constitutional Case – A.K. Gopalan v. State of Madras
Nambyar's true national recognition came in 1950 when he appeared as lead counsel in A.K. Gopalan v. State of Madras, the first constitutional case before the newly formed Supreme Court. With just a bare Constitution in hand and no precedents to rely on, Mr. Nambyar argued forcefully for the interrelationship of Articles 14, 19, and 21—concepts that would later become cornerstones of constitutional jurisprudence. Though the Court ruled against Gopalan, the seeds Nambyar planted later grew into the doctrine of the Basic Structure.
Pioneering the Right to Property and Basic Structure Doctrine
Mr. Nambyar was deeply involved in landmark cases concerning the right to property, including challenges to the First, Fourth, and Seventeenth Constitutional Amendments.
He led arguments in I.C. Golaknath v. State of Punjab, laying the groundwork for the eventual development of the Basic Structure doctrine in Kesavananda Bharati.
Mr. Nambyar's consistent theme was the limitation of State power—his jurisprudence always tilted toward the preservation of individual liberties and constitutional supremacy.
Legacy and Enduring Relevance
M.K. Nambyar passed away in 1975, but his influence on Indian constitutional law remains undiminished. He helped lay down the first constitutional principles of the Republic and was a consistent advocate for civil liberties, even during politically charged times. His work shaped some of the most enduring doctrines of Indian constitutionalism—from procedural due process to limits on legislative power.
Conclusion – Remembering a Visionary
In honouring M.K. Nambyar today, we do not merely remember a Jurist; we remember a visionary who believed that the Constitution is not just a legal document but a moral promise. He lived by the ideals enshrined in its text and left behind a body of work that continues to inspire judges, lawyers, and citizens. Let us celebrate not only what he achieved but also what he stood for—a Constitution of the people, by the people, and for the people.
Let me get down to the brass tacks.
Questions:
- Who governs us?
- By what means are we governed?
- How the governing happens?
Answers:
- We govern ourselves (Democratic Republic)
- By means of Rule of Law (Constitution alone is not; for England has no constitution)
- Fairly, reasonably, and benevolently (the jurisprudential justifications)
What is fair, what is reasonable, and what is benevolent for us is a matter of our culture, geography, and history.
“The Rule of Law: The Foundational Principle or a Fragile Promise?
The Elusive Nature of the Rule of Law Despite its common usage, the Rule of Law has proven to be an "exceedingly elusive notion," leading to "rampant divergence of understandings".
Commentators like Professor Raz have noted a tendency to use it as a "shorthand description of the positive aspects of any given political system".
Professor Judith Shklar even suggested it might have become "meaningless thanks to ideological abuse and general over-use". Thomas Carothers observed "uncertainty about what the essence of the rule of law actually is", and Professor Jeremy Waldron pointed out that invoking the "magic words" could mean little more than "Hooray for our side".
• Judicial Precedent: Judges "in cases without number" have referred to the Rule of Law in their judgments, with Lord Steyn stating it "enforces minimum standards of fairness, both substantive and procedural". Such authoritative statements cannot be dismissed as "meaningless verbiage".
• International Instruments: References to the Rule of Law are embedded in "international instruments of high standing," such as the preamble to the Universal Declaration of Human Rights 1948, the European Convention on Human Rights 1950, and the Treaty on European Union. This indicates a strong international consensus on its meaningfulness and importance. It is also recognized through concepts like Rechtstaat in Germany and État de droit in France.
If we think of recent statutes, The Constitutional Reform Act 2005 of the UK explicitly refers to the Rule of Law as an "existing constitutional principle" and requires the Lord Chancellor to swear an oath to respect it and defend judicial independence. Courts cannot deem meaningless a principle deliberately included in an Act of Parliament.
Given the difficulty in devising a pithy definition for a statute, draftsmen omitted one, probably "leaving it to the judges to rule on what the term means if and when the question arises". This allows the concept to "evolve over time in response to new views and situations".
Lord Bingham on his part has defined it thus: "all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts". He acknowledges this is not comprehensive and allows for exceptions, such as in secret trade disputes.
This formulation echoes John Locke's idea that "Wherever law ends, tyranny begins" (1690) and Thomas Paine's assertion that "in free countries the law ought to be King" (1776).
Historical Milestones in the Development of the Rule of Law
1. Magna Carta 1215 The Great Charter, though "very hard to decipher" and largely obscure in translation, contains powerful clauses. Chapters 39 and 40 are particularly significant:
• Chapter 39: "No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land".
• Chapter 40: "To no one will we sell, to no one deny or delay right or justice". Though annulled by the Pope shortly after its sealing and not an immediate statute, Magna Carta profoundly changed the constitutional landscape. Its enduring importance stems from four main reasons:
• Grant to all free men: Unlike other charters, it applied throughout the realm, contributing to a sense of community and legal parity.
• Deep historical roots: It wasn't merely a reaction to King John's tyranny but drew upon earlier models like King Henry I's charter of liberties (1100), which forbade excessive penalties and required penalties to fit the crime, and coronation oaths. This inherent strength allowed it to express "the will of the people".
• Rejection of unbridled royal power: It represented "a clear rejection of unbridled, unaccountable royal power, an assertion that even the supreme power in the state must be subject to certain overriding rules".
• In 1215, legislative, executive, and judicial powers were concentrated in the King, but he became subject to the constraint of the law, marking a "significant watershed" where the "rule of law in embryo" was clearly recognizable.
• Mythical significance: Later generations claimed and believed it said even more than it did, making the myth a "rallying point for centuries to come". Its influence extended globally, with more than 900 federal and state courts in the United States citing it.
2. Habeas Corpus: The Challenge to Unlawful Detention
Chief Justice Vaughan in Bushell's Case (1670) asserted it was "the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it". It is widely recognized as "the most effective remedy against executive lawlessness that the world has ever seen". It ensures that detention cannot occur solely on the say-so of a dictator, minister, or official without legal authority.
3. The Abolition of Torture
From "not later than the fifteenth century," English common law "adamantly set its face against the use of torture and the admission of evidence procured by torture". This was a "distinguishing feature," praised by legal writers like Fortescue, Coke, and Blackstone, and admired by figures such as Voltaire.
• Struggle with the Crown: Despite common law's rejection, torture continued in England in the 16th and early 17th centuries under royal prerogative (e.g., in the Court of Star Chamber) for state offenses. The abolition of the Court of Star Chamber in 1640 by the Long Parliament marked the end of torture warrants in England.
4. The Petition of Right 1628 A "lineal descendant of Magna Carta and habeas corpus," the Petition of Right (1628) is perhaps equally important to the Rule of Law.
• Content: It specifically demanded that "no man hereafter be compelled to make or yield any gift, loan, benevolence, tax or such like charge without common consent by act of parliament," and that "no freeman in any such manner as is before mentioned be imprisoned or detained". It also sought the removal of soldiers and annulment of martial law commissions.
5. The Habeas Corpus Amendment Act 1679 This Act was a direct response to the Earl of Clarendon, King Charles II's chief minister, who systematically dispatched prisoners to remote areas where the writ of habeas corpus did not run, effectively denying them legal challenge.
• Modern Relevance: The motive of the US Government in detaining terrorist suspects at Guantanamo Bay was "exactly the same as Clarendon's: to deny them the remedy of habeas corpus provided in domestic law". Bingham notes that much "litigation, and much suffering, would have been avoided had the rule of law been observed at Guantanamo from the start as it was required to be in the UK in 1679".
6. The Bill of Rights 1689 and the Act of Settlement 1701
King William was offered the throne only upon accepting specific terms.
• Judicial Independence: A crucial element missing from the initial Bill of Rights was security of judicial tenure and salaries. This was rectified in the Act of Settlement 1701, which provided for the Protestant succession. Coupled with existing immunity for judicial acts, "the foundation of judicial independence was laid".
• Significance: A "truly independent judiciary is one of the strongest safeguards against executive lawlessness". The lesson that "even the supreme authority in the state is subject to the law" was learned at great cost, leading to a Britain where "the rule of law, imperfectly and incompletely, held sway".
7. The Constitution of the United States of America The US Constitution was a "crucial staging-post" in the history of the Rule of Law, demonstrating a ground-breaking approach to governance.
Contrast with UK Parliamentary Sovereignty: Unlike the UK's theoretical "legislative omnipotence of the Crown in Parliament," the US Congress's powers are "not supreme, nor absolute, it being defined by the Constitution".
• Tom Paine's declaration that "in America THE LAW IS KING" (1776) captures this essence. This marked an "advance for the rule of law, giving the law of the Constitution, as interpreted by the Supreme Court of the United States, an authority it had never before enjoyed anywhere".
8. The French Declaration of the Rights of Man and the Citizen 1789
• It proclaimed men were born free and equal, that political association aimed to preserve "natural and imprescriptible rights," and that sovereignty rested in the nation.
• It established liberty as freedom to act without injuring others, law as an expression of general will, and protections against arbitrary arrest and retrospective penalization. It also affirmed the presumption of innocence, freedom of opinion, free communication of ideas, and the right to property as "inviolable and sacred".
• Crucially, it stated that a society "in which the observance of the law was not assured, nor the separation of powers defined, had no constitution at all".
9. The American Bill of Rights (First Ten Amendments to the US Constitution 1791) Taking effect in 1791, these amendments "echoed the British Bill of Rights but also deliberately departed from or went beyond it".
10. Our Own Constitution (1947)
11. All the International Declarations and Covenants after 1947
• For example, The Universal Declaration of Human Rights 1948 Adopted by the UN General Assembly in 1948.
• This Declaration, though not legally binding, has provided "the common standard for human rights upon which formal treaty commitments have subsequently been founded".
What are the constituent parts of the Rule of Law:
Principle (I): The law must be accessible and so far as possible intelligible, clear and predictable.
Why Accessibility Matters (Three Reasons):
1. Criminal Law: Individuals must be able to "find out what it is we must or must not do on pain of criminal penalty". This enables deterrence and allows citizens to keep within the law, even if not every criminal actively consults the law.
2. Civil Law: For individuals to "claim the rights which the civil (that is, non-criminal) law gives us, or to perform the obligations which it imposes on us," they need to know what those rights and obligations are. Examples include claiming a winter fuel allowance or understanding recycling duties.
3. Commerce and Economy: The "successful conduct of trade, investment and business generally is promoted by a body of accessible legal rules governing commercial rights and obligations".
• Lord Mansfield (18th century) emphasized the need for "certainty" in mercantile transactions so "speculators [investors and businessmen] then know what ground to go upon".
• Alan Greenspan, former chairman of the Federal Reserve, identified "The rule of law" as the single most important contributor to economic growth.
• The Economist in 2008 highlighted the importance of the Rule of Law in economics, not just politics, as a "cause of other good things, notably growth".
Judicial Endorsement of Accessibility: Courts worldwide clearly state this principle:
• Lord Diplock (UK House of Lords, 1975): "The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal principles which flow from it".
• European Court of Human Rights: "the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case… he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail".
Principle (II): Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.
• Opposition to Discretion: Professor A.V. Dicey "was adamantly opposed to the conferment of discretionary decision-making powers on officials" as it opened the door to "arbitrariness, which is the antithesis of the rule of law".
• Lord Hewart, in The New Despotism (1929), fiercely attacked practices authorizing ministers to amend Acts, delegate judicial decisions to bureaucrats, or immunize their decisions from legal challenge. He saw such provisions, like those allowing ministers to remove "difficulty" or make "final and conclusive" decisions, as conferring "excessive and unchallengeable discretions".
What matters is that decisions should be based on stated criteria and that they should be amenable to legal challenge".
• Judicial Discretion: Judges' roles are primarily to apply the law, not indulge personal preferences. Lord Shaw of Dunfermline wisely stated, "To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand".
Conclusion: The Rule of Law "does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered".
Principle (III): The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
• Modern Challenges (Non-Nationals): Despite the clear message of equality, the treatment of non-nationals remains a challenge. Lord Scarman (1983) affirmed that "Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others".
• However, the Anti-terrorism, Crime and Security Act 2001 (Part 4) allowed "indefinite detention without charge or trial of non-nationals suspected of international terrorism, while exempting... British nationals". This was ruled incompatible with the European Convention on Human Rights by the House of Lords.
• American academic David Cole noted a similar pattern in the US: "Virtually every significant government security initiative implicating civil liberties... has originated in a measure targeted at noncitizens".
• Conclusion: Justice Jackson's observation (US Supreme Court, 1949) encapsulates the principle: requiring equal application of laws is the most effective practical guarantee against arbitrary government. "Nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation". The Rule of Law "requires no less" than that "laws be equal in operation".
Principle (IV): The Executive 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.
• Inherence and Importance: This principle flows from the previous ones and is "inherent in them," lying "at the very heart of the rule of law". The executive must act "in strict accordance with those laws" that empower it.
• Judicial Review: This is the process by which courts "enforce compliance by public authorities with the law". While its extensive exercise is modern, the powers are old (e.g., habeas corpus, certiorari, mandamus). Judges act as "auditors of legality" and reviewers of "lawfulness," not as independent decision-makers on policy. There is an "irrebuttable presumption" that decisions will be "in accordance with the law".
• Categories of Unlawfulness in Judicial Review:
1. Good Faith: Powers must be exercised "honestly". Establishing bad faith is rare but, when found, means an "abuse of power contrary to the public good".
2. Fairness: Powers must be exercised fairly, consistent with the presumption that "the state does not intend to treat the citizen unfairly". This involves "rules of natural justice," requiring:
3. No Bias: The decision-maker must not be "a judge in his own cause".
4. Right to be Heard (audi alteram partem): Anyone facing an adverse decision must have an opportunity to be heard. Lord Steyn emphasized that the Rule of Law "enforces minimum standards of fairness, both substantive and procedural".
5. Proper Purpose: A power must be used "to advance the policy and objects of the Act, and not to frustrate them or advance some other object". Lord Browne-Wilkinson described statutory power as a "trust," to be used "only in the right and proper way which Parliament when conferring it is presumed to have intended". An example of improper purpose cited is the Westminster City Council's sale of council properties to influence voting patterns.
6. No Exceeding Limits (ultra vires): It is an "elementary principle" that anyone exercising statutory power must not act "beyond or outside the limits of the power conferred". This is "common sense" – if limits exist, they cannot be broken without legal consequence.
7. Reasonableness (Irrationality): While difficult, a decision can be quashed if "unreasonable" or "irrational". The test is high: "conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt". Judges must not substitute their own judgment for that of the decision-maker, recognizing a "band of decisions within which no court should seek to replace the individual's judgment with his own".
8. Judicial Restraint: Judges must not usurp powers belonging elsewhere, as this would be unlawful. But in "properly exercising judicial power to hold ministers, officials and public bodies to account," judges fulfill a "constitutional power which the rule of law requires that they should exercise". This can lead to tension with governments, but such tension is "the inescapable consequence of living in a state governed by the rule of law".
• Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
1. Alternative Dispute Resolution (ADR): Mediation and conciliation are encouraged as "additional" means to achieve mutually acceptable compromises, which are often better honored than imposed solutions. Arbitration offers a binding ruling by an independent arbitrator by agreement.
2. Access to Courts: However, when ADR fails, or when a "public and authoritative ruling of the court" is needed (e.g., on statutory interpretation or official conduct), "the rule of law requires that there should be access to a court".
• Two Potent and Enduring Obstacles:
1. Expense: "Justice in the UK is open to all, like the Ritz Hotel". Legal costs are high due to the labor-intensive nature of litigation. Early legal aid efforts in Scotland (1424) and England (1495) were followed by "Poor Man's Lawyers" and culminated in the "great but less-celebrated achievement" of the Legal Aid and Advice Act 1949. Rising costs led to restrictions on civil legal aid, creating a "large unmet need" despite pro bono efforts.
2. Delay: "Justice delayed is justice denied". This aphorism, attributed to Gladstone, echoes King John's pledge in Magna Carta and Hamlet's lament. While the extremes of Dickens' Bleak House are gone, delay remains a "bugbear" in the UK and European courts (e.g., 19.3 months average for ECJ preliminary rulings). Delay also "exacerbates the problem of expense".
• Adjudicative procedures provided by the state should be fair.
• Independent and Impartial Judiciary: A modern democracy's constitution "must, thirdly, guarantee the independence of judicial decision-makers".
• Independent Legal Profession: "Scarcely less important than an independent judiciary is an independent legal profession, fearless in its representation of those who cannot represent themselves, however unpopular or distasteful their case may be"
• Public Trial: Largely, trials and judgments should be public.
Presumption of Innocence: A defendant is presumed innocent until proven guilty.
CONSTITUTIONALISM AND THE RULE OF LAW
The concepts of constitutionalism and the rule of law are fundamental to a modern democratic state.
They are almost inseparable. They both have common objectives:
(1) govern benevolently;
(2) protect individual liberties, and d
(3) prevent arbitrary exercise of power.
1. Defining Constitutionalism
Constitutionalism is a principle that determines the validity of State action, signifying something far more essential than mere legality. It implies a commitment to broad philosophical values within a state and ensures the legitimacy of government.
Constitutionalism is understood through two main aspects:
• Negative Constitutionalism: This aspect focuses on limiting governmental power to protect the liberty and human rights of individuals. It aims to prevent the state from becoming despotic by restricting arbitrary powers.
If we examine this concept, we find these aspects:
[I]
• Limited Government/Shackled State: The government acts within the sphere of powers allocated to it by the constitution.
• Recognition and Respect for Human Rights: Ensuring that individual liberties, including minority rights, are recognized and respected.
• Separation of Powers: Power is distributed among three institutions (legislature, executive, judiciary) that operate independently with checks and balances to prevent concentration of power.
• Constitutional Supremacy: The constitution of a nation is supreme, defining the powers of state wings and limiting their interference with individual rights.
[II]
• Positive Constitutionalism: This aspect emphasizes the obligations of governments to act in a manner that achieves social welfare, solidarity, economic equality, and social justice.
• It reflects the idea that a modern state needs to be strong enough to achieve a welfare state.
• In essence, constitutionalism talks of liberal democracy, respect for human rights, fostering equality, fraternity, and liberty.
2. Defining the Rule of Law
The rule of law is a principle asserting that law is above all, emphasizing that every individual, corporation, or branch of government must act according to law, irrespective of their power or status. Its essence is to preclude arbitrary action and promote fair procedure.
Historically, A.V. Dicey propounded three kindred features of the rule of law:
• Absence of Arbitrary Powers: Authorities must not exercise arbitrary power.
• Equality Before Law: All individuals are equal before the law.
• Constitution as Ordinary Law: The constitution is part of the ordinary law of the land.
Modern understanding categorizes the rule of law into three aspects:
• Formal Aspect: This means "making the law rule," distinguishing it from the rule of individuals. It focuses on the enforcement of law, regardless of its content, and exists even in dictatorships in its weak form.
• Jurisprudential or Doctrinal Aspect: This includes minimal requirements for a legal system's existence, distinguishing it from an autocratic system where a leader imposes their will.
• Prof. Lon Fuller described these as the "inner morality of law," requiring laws to be general, publicized, clear, stable, not overly retroactive, non-conflicting, and administered as announced.
• Substantive Aspect: This is concerned with properly balancing individual and societal needs, guaranteeing fundamental values of morality, justice, and human rights.
• Justice Aharon Barak explains this as "social justice based on public order," where the law ensures proper social life to allow individuals to live in dignity and develop.
• The Delhi Declaration of 1959 further defined the rule of law as protecting individuals from arbitrary government and enabling them to enjoy human dignity. It also highlighted the necessity of an effective government maintaining order and ensuring social/economic conditions, and most importantly, the existence of an independent judiciary.
3. Distinctions and Interplay
While constitutionalism and the rule of law are distinct, they are deeply intertwined and overlap.
• Constitutionalism often serves as the foundation of liberal democracy, with the rule of law acting as its important pillar.
• The constitution, being the supreme law, ensures the rule of law and good governance.
•The rule of law ensures the attainment of limited government, where people are sovereign.
• Both concepts address the problem of potential state despotism, with constitutionalism laying down the framework and the rule of law defining how power within that framework should be exercised.
• The interaction between the two aims to achieve both negative (limiting state power) and positive (social welfare) aspects of governance.
4. Role of the Judiciary: Enforcing Constitutionalism and Rule of Law
The judiciary plays a pivotal role in upholding both constitutionalism and the rule of law. Justice Aharon Barak identifies two basic roles for a judge in a democracy:
• To uphold the Constitution and the rule of law. This ensures that democratic principles are followed by the government and the basic features of the Constitution remain intact.
• To bridge the gap between the law and society. This involves judicial law-making through interpretation, adapting the law to changing social realities, and addressing societal needs through evolving juristic principles.
• This involves the exercise of judicial review, a significant power possessed by every court of record in India and the US, allowing courts to declare any act, law, or official action unconstitutional or unenforceable if it conflicts with the basic law.
BRINGING THE CONCEPTS TO LIFE
To bring the rule of law to life, three things are required:
- There must be an adequate procedure by which the rule can be enforced. It will not help a man who has been unlawfully imprisoned to know that the Constitution contains a provision that no one must be deprived of liberty without due process of law; what he requires is some machinery which will guarantee that his unlawful imprisonment will be brought to an end.[1]
- The public officers of the State should recognize that the law binds them, because if they fail to do so, then the whole system may break down. The most fantastic example of a flagrant violation of the law by a public servant must be the legal battle between the State of Georgia and the Cherokee Nation, specifically concerning the rights of non-Native Americans to reside on Cherokee land[2].The Supreme Court, led by Chief Justice John Marshall, ruled that the Cherokee were a distinct, sovereign nation with the right to self-government and that Georgia's laws violated federal treaties and the U.S. Constitution[3]. President Andrew Jackson's comment on the Supreme Court decision is unforgettable to American jurists: “John Marshall has made his decision, now let him enforce it.” [4]
- For the community to recognize that the existence of the rule of law depends on the will of each man and woman to respect the rule of law.[5] This is probably the most crucial facet required to maintain the rule of law. The only way the rule of law can grow to engulf every society in the world is if the collective human consciousness expands.
Rule of law- As an Individual Project
4. It is an undeniable proposition that the human consciousness has grown over time. Our understanding of justice, equality and liberty has also progressed. Every human society has some power structure that exercises power over every citizen, governing their affairs and drawing boundaries that they ought not to cross. This power is limited only by the strength and force of the land's inhabitants.
5. History is rife with examples of despots being overthrown by the people. Take, for example, the French Revolution and the ideals that emerged out of the revolution, namely, Liberty, Equality and Fraternity. These important words are part of our constitution's basic structure. The rule of law is imperative for a democratic system where rights are respected. It presupposes a division of powers and checks and balances to prevent authoritarian and arbitrary exercise of power.
6. Wars and revolutions may be periods of instability, but they endow us with values that shape a better system where the rule of law is respected. For a community to agree upon a set of laws to govern them, there must first be a sense of community. Humans must unite under the banner of being humans; aligning oneself based on one's identity or some other cause will only create fractures with other communities and/or temporary alliances which will fade with the passage of time.
7. In Rule of Law in a Free Society, Dr. Madahava Menon observed that the Rule of Law is nothing alien to our people. While the West mastered the engineering of the external world, the East focused on the internal world. While much of the world remained confounded about the nature of the 'self' and who the observer is, Bharat developed a comprehensive philosophy which gave the world universal values of love, peace and non-violence. India and Nepal still remain hotspots for Westerners who wish to discover themselves. Dr. Menon writes that
“The spiritual content of the rule of law rests in universal values of justice and tolerance- tolerance of people who differ from you, tolerance of systems, belief and practices which are at variance from yours, tolerance with a view to coexist peacefully in a diverse world respecting the rights of others in equal measure as you claim for yourself”.[6]
8. There is a constant 'othering' that happens when we encounter someone different from us. This is a security mechanism. Human beings are conscious creatures, much more than any other beast in the world. Our heightened awareness has carried our species to the top of the food chain, but at the same time it has created profound insecurities within us. These insecurities are projected on others as when we deem them hostile and dangerous; this is why the 'other' is deemed an existential threat. Therefore, upholding the rule of law is not merely a task given to the governmental system but a personal project for every individual. The rule of law rests in an attitude of mind that accommodates differences and respects all human beings.
9. Different human civilisations have passed down their differing values through epics. Sumerians have Gilgamesh, Indians have the Ramayana and Mahabharata, and the Greeks have the Iliad and Odyssey. These epics are a treasure trove of knowledge. The rule of law is not an alien idea in India. The idea of Dharma has existed in Bharath for over 3 thousand years. The concept of dharma aims to ensure social justice, equality, and the protection of individuals.
10. We may remind ourselves of the words by Sir William Gascoigne, who was the Chief Justice of the King's Bench in England-
“Happy is the king who has a magistrate possessed of courage to execute the laws; and still more happy in having a son who will submit to the punishment inflicted for offending them”[7]
11. One might ask the question, whose value system must I imbibe to promote the rule of law? This is a difficult question to answer. One can introspect to identify biases in one's thought that can then be removed, this is not an easy task; it is time consuming and tedious, but very much fruitful. Alternatively, one can absorb values from age old epics, this give one a rather strong and absolute moral standing. However, this comes with the danger of committing a person to an institution which means succumbing to the biases that have plagued that institution. Only a sceptical person who can think originally and who has clarity of thought is who is advised to take this route.
12. Therefore, it must be the aspiration of every citizen to chase a utopian society. This aspiration must be accompanied by action; we must engage in public discourse, raise concerns about injustice and advocate for reforms that contribute to a healthier democracy where laws reflect the needs of society. Fostering a culture of civic solidarity where individuals engage respectfully and collaboratively with diverse opinions and perspectives is essential to the rule of law.
How the Common law and the Habeas Corpus Writ Travelled to India:
13. On the 29th of May 1453, the Ottoman army led by Mehmed II emerged victorious after a 53-day-long siege of Constantinople. Both Christians and Muslims regarded Constantinople as the centre of the world. It was the capital of the Ottoman Empire. This meant that a vital supply was cut off for the countries in the West dependent on trade through the Silk Road. This monumental historical event forced the European powers to sail the high seas and look for new land with which to trade. The colonies received the common law in exchange for their spices, cotton, silk, tobacco, rice, and other grains. In a book called Habeas Corpus in the Colonies, one Mr. West wrote that-
“The Common Law of England is the Common Law of the Plantations. All statutes in affirmance of the Common Law passed in England antecedent to the settlement of the colony, are in force in that colony, unless there is some private Act to the contrary; though no statutes made since those settlements are there in force unless the colonists are particularly mentioned. Let an Englishman go where he will, he carries as much of the law and liberty with him as the nature of things will bear.[8]
Long story short, the writ of habeas corpus travelled a long journey before it found itself in the Indian constitution.
Importance of the Judiciary in Preserving the Rule of Law and Pitfalls
14. Montesquieu's Spirit of the Laws was seminal to developing rule of law. But it became prominent when first applied in the American constitution. In the 47th chapter of the Federalist Papers, James Madison writes-
“The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny”.[9]
15. The High Courts and the Supreme Court are sentinels on qui vive, constantly called upon to stop the use of arbitrary power. Today, the judiciary advertises itself as a staunch supporter of the people's fundamental rights and as the pillar upon which the constitution survives. While some may have forgotten the horrors of the emergency, the memory still survives, keeping people alert to the possibility that they could be imprisoned arbitrarily and that there would be nobody to save them.
16. In 'The Speaking Constitution'[10], K. G. Kannabiran writes about his experience as a lawyer during the emergency. In a matter before Justice P. Chenakesava Reddy, a student's union leader was placed under arrest without a warrant.[11] It was brought to the attention of the courts that the police were taking blank warrants, making arbitrary arrests and then filling in the warrant.[12] Incidentally, the Deputy Commissioner of Police Ramakrishna Reddy was in the court, and he had in his possession blank warrants which were recovered from him then and there.[13] Despite noticing this, the judge chose to allow the arrest, and Kannabiran's petition was dismissed.[14] One Justice Thota Lakshmaiah wrote a long judgment praising the emergency, in complete disregard for constitutional jurisprudence built over a thousand years, he says, 'liberty is a gift of the law, there is no liberty above or beyond the law'.[15]
17. Despite the disrespect for the rule of law and fear of power, there was still hope for the judiciary. Even in the bleakest of times, the courage and perseverance of an independent human spirit will seek the light beyond the adversity. Hope came in the form of Justice Khanna, who penned the most prolific dissent in the history of the Indian judiciary. Here is a small excerpt-
“A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court have been betrayed.”[16]
18. As frightening as the events of the emergency may have been, they were necessary to create a judiciary with a 'rights first mindset'. However, this does not absolve the institution of its misgivings from its past. Today, there is an enormous arrears of cases, an inordinate delay in disposal and some cases of corruption which have shaken the confidence of the people in the institution. Furthermore, there is a perceived lack of transparency in the selection of judges. Many persons in the legal field are afraid that the quality of judges is being diluted and there are many persons who fear a favouritism in selection. While these are all severe impediments to realising that utopian society where the rule of law is respected, one must also look to the positive. In the last 75 years, our courts have rendered a long line of judgements that have, for the most part, expanded individual freedoms and established constitution governance. Some of them are as under:
a. In A.K. Gopalan vs State of Madras (1950), the Formal Approach was taken. This foundational case initially established a narrow, formal interpretation of constitutional rights. The Supreme Court held that "Procedure established by law" under Article 21 meant any procedure enacted by the legislature, regardless of its fairness or reasonableness. Articles 14, 19, and 21 were mutually exclusive and independent. Natural justice principles were not automatically incorporated into constitutional provisions. The Court took a strict positivist approach, emphasizing that “law” meant only enacted legislation (lex) rather than broader principles of justice (jus). This represented the formal conception where procedural compliance with enacted law was sufficient, without examining substantive fairness.
b. In Maneka Gandhi v. Union of India (1978) - The Substantive Transformation: This landmark case fundamentally transformed Indian constitutional jurisprudence by rejecting the formal approach of Gopalan and establishing substantive protections: Interconnected Rights: Articles 14, 19, and 21 form a "golden triangle" and must be read together. Substantive Due Process: "Procedure established by law" must be "just, fair and reasonable" - not arbitrary, oppressive, or unreasonable. Natural Justice: Principles of natural justice, particularly audi alteram partem (right to be heard), are implicit in Article 21. Justice Bhagwati held that any law depriving personal liberty must satisfy the tests of Articles 14 (non-arbitrariness), 19 (reasonableness), and 21 (fair procedure). This marked the shift from formal rule of law to a substantive conception requiring laws to meet standards of justice and fairness.
c. In Kesavananda Bharati v. State of Kerala (1973) - Basic Structure and Rule of Law. The Supreme Court established the basic structure doctrine, declaring rule of law as a fundamental feature of the Constitution that cannot be destroyed even by constitutional amendment: Rule of law was identified as an essential element of the Constitution's basic structure. Judicial review was recognized as integral to maintaining rule of law. The Court emphasized that constitutional amendments cannot alter the fundamental framework, including rule of law protections.
d. In Bachan Singh v. State of Punjab (1980) - Substantive Safeguards in Capital Punishment: This case applied substantive rule of law principles to the most serious criminal penalties: Established the "rarest of rare" doctrine for death penalty cases. Required individualized sentencing considering both aggravating and mitigating circumstances. Emphasized that even in capital cases, procedures must be fair, just, and reasonable. The Court held that rule of law needs to exclude arbitrariness and unreasonableness, requiring substantive protections even in the gravest criminal matters.
e. In Som Raj v. State of Haryana (1990) - Arbitrariness as Antithesis of Rule of Law. The Supreme Court reinforced that the absence of arbitrary power is the fundamental postulate of rule of law. Arbitrary action is completely incompatible with rule of law. The entire constitutional structure depends on this principle. Administrative actions must be based on legal authority and reasoned decision-making.
f. In E.P. Royappa v. State of Tamil Nadu (1974) - Equality and Non-Arbitrariness: This case expanded Article 14 to include protection against arbitrary state action: Arbitrariness and equality are "sworn enemies". State actions must be based on rational principles, not whim or caprice. Administrative decisions require reasoned justification. Justice Bhagwati observed that "equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch".
g. In ADM Jabalpur v. Shivkant Shukla (1976) - The Emergency Case: This controversial decision during the Emergency period represented a temporary retreat from substantive rule of law: The majority held that fundamental rights, including habeas corpus, could be suspended during emergencies. Justice Hans Raj Khanna's dissent became legendary for asserting that life and liberty are inherent rights that cannot be completely eliminated. This case was later effectively overruled and is now considered a dark chapter that reinforced the importance of substantive constitutional protections.
h. In Indira Gandhi v. Raj Narain (1975) - Electoral Integrity and Rule of Law. The Court applied substantive rule of law principles to electoral matters: Free and fair elections are part of the Constitution's basic structure. Parliamentary power to amend election laws is limited by constitutional principles. Rule of law requires that even Prime Ministers be subject to legal accountability.
i. In Sunil Batra v. Delhi Administration (1978) - Prisoners' Rights and Human Dignity. This case extended substantive rule of law protections to prisoners, Fundamental rights do not abandon individuals upon imprisonment. Prison conditions and treatment must meet constitutional standards. Even convicted persons retain dignity and basic constitutional protections.
j. In I.R. Coelho v. State of Tamil Nadu (2007) - Judicial Review and Ninth Schedule. The Court reaffirmed substantive rule of law by limiting legislative immunity: Laws in the Ninth Schedule are subject to judicial review if they violate the basic structure. Judicial review is an essential feature that cannot be completely excluded. Constitutional amendments post-Kesavananda Bharati must meet basic structure requirements.
k. In L. Chandra Kumar v. Union of India (1997) - Tribunals and Judicial Review. This case reinforced that substantive rule of law requires effective judicial oversight: Administrative tribunals cannot completely replace High Court jurisdiction. Judicial review is a basic feature that must be preserved. Alternative dispute resolution mechanisms must maintain constitutional standards.
l. The rule of law mandates that all individuals, including government officials, are subject to the same legal standards. Article 14 of the Constitution guarantees equality before the law and equal protection of laws, a principle upheld in several cases. State of West Bengal v. Anwar Ali Sarkar (1952): The Supreme Court struck down the West Bengal Special Courts Act, 1950, which allowed for expedited trials without clear justification, as it violated Article. The Court held that laws must apply uniformly and not discriminate arbitrarily, reinforcing the rule of law's commitment to equality and fairness. This case established that arbitrary state action undermines the rule of law, ensuring laws are applied consistently without favoritism.
m. The rule of law requires an independent judiciary to uphold justice impartially, free from external pressures. S.P. Gupta v. Union of India (1981) (First Judges Case): This case addressed judicial independence in the context of judges' appointments and transfers. While the Court initially gave primacy to the executive in judicial appointments, subsequent cases like the Second Judges Case (1993) and Third Judges Case (1998) established the collegium system, reinforcing judicial independence as a facet of the rule of law. These cases ensured that the judiciary remains insulated from political influence, a key requirement for upholding the rule of law in a democracy.
n. In A.K. Gopalan v. State of Madras (1950): This early case interpreted Article 21 narrowly, holding that preventive detention laws were valid as long as they followed statutory procedures. However, its restrictive view was later overruled in *Maneka Gandhi* (1978), which expanded the scope of due process. The shift reflects the evolving understanding of the rule of law to include substantive fairness. The transition from *A.K. Gopalan* to *Maneka Gandhi* highlights the judiciary's role in strengthening procedural and substantive safeguards, ensuring the rule of law protects citizens from arbitrary state action.
o. The rule of law ensures that public officials are accountable and cannot misuse their authority. Vineet Narain vs Union of India (1998): In this case, concerning the independence of the Central Bureau of Investigation (CBI), the Supreme Court issued guidelines to ensure autonomous functioning of investigative agencies. It emphasized that the rule of law requires public institutions to operate transparently and without political interference. This judgment reinforced the principle that the rule of law applies to all, including those in power, ensuring accountability and institutional integrity.
p. In Rojer Mathew v. South Indian Bank Ltd. [2019] 16 S.C.R. 1: The Hon'ble Supreme Court discussed the significance of the rule of law in preventing abuse of power, while Centre for Public Interest Litigation v. Union of India (2006) 1 SCC (Cri) 23 stressed public accountability in state actions. These references collectively influenced the Court's decision to reinforce constitutional principles and ensure that executive powers are exercised within legal boundaries and not as tools of arbitrariness.
q. In Re. Directions in the Matter of Demolition of Structures [W.P. (C) 295 of 2022]. Rather known by the name of “Bulldozer Judgment”, the Supreme Court recently delivered a well-reasoned judgment emphasizing the adherence to the rule of law and constitutional principles. The Bench headed by present CJI categorically held that “no person could be deprived of property or penalized without due process”. In fact, the aforementioned three components as propounded by AV Dicey were applied to scrutinize the demolitions. The judgment stressed that even the state cannot act outside the boundaries of law and holds that targeting individuals accused of crimes without extending the same treatment to similarly situated persons breaches this principle.
r. Despite these judicial milestones, challenges to the rule of law persist in India, including judicial delays, enforcement gaps, and occasional executive overreach. Cases like ADM Jabalpur v. Shivkant Shukla (1976), where the Supreme Court controversially upheld the suspension of fundamental rights during the Emergency, highlight moments when the rule of law was tested. However, subsequent judicial activism and public discourse have reinforced its centrality to Indian democracy.
s. Foreign Case Law Examples—Origins of Judicial Review:
• Dr. Bonham's Case (1610) 8 Co Rep 113b: An early English case where Chief Justice Coke declared an Act of Parliament void, considered a foundational stone for judicial review of legislation.
• Marbury v. Madison (1803) 5 US 137: Chief Justice Marshall of the US Supreme Court explicitly expounded the concept of judicial review, stating it is the duty of the judicial department to interpret the law and determine if laws conflict with the Constitution.
• Henry J. Abraham defined judicial review as the power of any court to declare an act unconstitutional, a definition approved by the Indian Supreme Court in L. Chandra Kumar v. Union of India (1997) 3 SCC 261.
t. Constitutional Interpretation and Evolution:
• Lawson A.W. Hunter v. Southam Inc. (1984) 2 SCR 145: The Supreme Court of Canada emphasized the crucial difference between expounding a Constitution (which is drafted with an eye to the future and capable of growth) and construing a statute (which defines present rights and is easily repealed).
u. Proportionality in Other Jurisdictions
v. In the UK, following the Human Rights Act, 1998, courts started adopting the proportionality doctrine.
w. R (Daly) v. Secy of State for Home Deptt. (2001) 2 AC 532 recognized that interference with common law constitutional rights must be proportionate.
x. The Privy Council in De Freitas v. Minister of Agriculture, Fisheries, Lands and Housing (1999) 1 AC 69 outlined a three-limb test.
y. To this, a fourth limb (balancing societal and individual interests) was added in Huang v. Secy of State for Home Deptt. (2007) 1 AC 167.
z. The German Federal Constitutional Court is a key source for the modern theory of proportionality, involving stages of legitimate goal, suitability, necessity, and balancing.
aa. The Canadian Supreme Court, particularly in R. v. Oakes (1986) 1 SCR 103, adopted a similar but distinct approach to proportionality, requiring objectives to be of "sufficient importance" and means to "impair 'as little as possible'" the right.
bb. Conclusion
cc. Constitutionalism and the rule of law are dynamic, interwoven concepts that ensure a nation's democratic integrity and the protection of its citizens' rights. The judiciary, as the guardian and interpreter of the Constitution, plays a crucial role in balancing competing interests, adapting laws to changing social realities, and promoting a culture of justification rather than mere authority. Through doctrines like the Basic Structure and tools like proportionality, courts in India and globally continue to shape the contours of justice in a constitutional democracy.
Formal & Substantive Conceptions of the Rule of Law:
19. The term 'rule of law' is derived from the French word 'le principe de legalite' which means 'the principle of legality' meaning thereby, no one (including government) is above the law. Thus, fostering transparency, justice, and individual liberties. Challenges like judicial delays and enforcement gaps persist, but the principle remains central to India's democratic framework. Every person is subject to the jurisdiction of ordinary courts of law irrespective of their position and rank. In 1885, Professor A.V. Dicey propounded three principles of the rule of law in his classic book 'Law and the Constitution'. (i) Supremacy of the law. (ii) Equality before the law. (iii) Predominance of legal spirit: the court should be free from impartiality and external influence. The rule of law in India is both a foundational principle and a fragile promise in the context of the Constitution of India.
20. In his paper “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework”, Paul Craig explores the crucial distinction between formal and substantive understandings of the rule of law. The formal conception, advanced by scholars like Joseph Raz and A.V. Dicey, focuses on procedural attributes of legal systems—laws must be clear, prospective, general, and applied by impartial courts. This view deliberately separates legality from morality, maintaining that even unjust laws can comply with the rule of law if enacted and applied properly. In contrast, the substantive conception, exemplified by Ronald Dworkin, Sir John Laws, and Trevor Allan, incorporates moral and political values, contending that the rule of law requires laws to protect fundamental rights and promote justice. Dworkin argues for a rights-based approach, where legal interpretation must align with the best theory of justice. Allan, following Dworkin, challenges the form-substance divide, asserting that even formal legal principles rely on moral foundations. The paper also considers “middle ground” positions, such as Raz's later work on principled adjudication and Jeffrey Jowell's argument that judicial review embeds substantive constraints on government power. Craig concludes that the meaning of the rule of law depends on one's broader theory of law and adjudication, and that adopting a substantive view effectively transforms the rule of law into a particular theory of justice. Therefore, any critique based on the rule of law must be intellectually transparent about whether it relies on formal or substantive grounds and what normative vision underlies it.
21. Michael Foran, in an article outlined three commonly asserted distinctions between formal and substantive conceptions of the rule of law: (i) that formal conceptions do not affect the content of law, while substantive ones do; (ii) that formal conceptions do not entail respect for certain rights, whereas substantive ones do; and (iii) that formal conceptions do not equate legality with justice, while substantive ones do. Foran argued that the first two distinctions collapse upon closer examination, because even formal theories like those of Dicey or Fuller, which focus on structural or procedural aspects, necessarily impose constraints on the substance of law and imply the protection of fundamental rights. Consequently, these supposedly “formal” theories affect both legal content and individual rights. The only surviving distinction, Foran suggests, is whether a theory views the rule of law as guaranteeing the substantive justice of all laws, or merely as committing to minimum standards of justice, which still leaves room for some unjust laws. Ultimately, he concludes that all plausible theories of the rule of law involve some link between legality and justice, making the traditional formal-substantive divide largely untenable.
World Justice Project, Rule of Law & India's performance
22. In today's global discourse on justice, democracy, and governance, one institution stands out for its comprehensive evaluation of how laws are upheld across the world: the World Justice Project, or WJP. This independent, nonpartisan, and multidisciplinary organisation is at the forefront of promoting the rule of law globally. The WJP understands that the rule of law is more than just the existence of laws, it is about how those laws are applied, whether power is exercised accountably, and whether justice is truly accessible to all.[17]
23. The WJP defines the rule of law through four core principles:
- Accountability- where all individuals, including the government, are subject to the law.
- Just Laws — laws that are clear, publicised, and protect fundamental rights;
- Open Government — ensuring transparency and accessibility in governance; and
- Accessible and Impartial Justice — where justice is delivered fairly and efficiently by competent authorities.
24. To assess adherence to these principles, the WJP annually publishes its Rule of Law Index, a data-rich report based on over 214,000 household surveys and 3,500 legal expert responses from 142 countries and jurisdictions. Unlike many indices that rely on legal frameworks alone, the WJP evaluates how people experience justice in practice, whether they can resolve disputes fairly, access information, or trust institutions to act without corruption.
25. India's performance in the 2024 WJP Rule of Law Index presents a mixed picture. On the one hand, India was among the minority of countries that saw an overall improvement in its rule of law score, albeit by less than 1%. It now ranks 79th out of 142 countries globally, 3rd out of 6 countries in South Asia, and 8th among 38 lower-middle income countries.[18]
26. India fared best in the areas of Open Government, where it ranked 44th globally and 1st in its region and income group. This reflects progress in transparency and access to public information. It also showed a modest improvement in tackling corruption, with a better score in the Absence of Corruption factor, a welcome shift amidst global backsliding.
27. However, there remain serious concerns. India's rankings in Fundamental Rights (102nd globally) and Civil Justice (107th globally) signal ongoing challenges in protecting liberties and ensuring fair resolution of disputes. Worryingly, India also saw a decline in Constraints on Government Powers, echoing a global trend where institutions like the judiciary, legislatures, and media are increasingly weakened in their role as checks on executive authority.
28. Indeed, the Index reveals a global “rule of law recession”, a sustained decline over seven years, largely driven by authoritarian practices. India is not immune to this trend. The weakening of rights and erosion of institutional oversight are red flags, particularly for a democracy of India's scale and ambition. Still, as WJP President William Neukom noted, it is essential not to overlook the areas of progress. Gains in open governance and anti-corruption signal that reform is possible, and that sustained effort can reverse setbacks.
Is the Rule of Law a Fragile Promise?
29. Despite its foundational status, the rule of law in India remains a fragile promise due to practical challenges and systemic issues that undermine its consistent application:
a. Implementation Gaps: Laws are often poorly enforced due to bureaucratic inefficiencies, corruption, and lack of resources. For example, delays in the justice system—India's courts have a backlog of over 50 million cases (as of recent data)—undermine access to timely justice, a key aspect of the rule of law.
b. Political Interference: The executive's influence over institutions like the police, investigative agencies, and even the judiciary (through delays in judicial appointments or transfers) can weaken impartiality. Cases like the misuse of laws such as the Unlawful Activities (Prevention) Act (UAPA) or sedition laws raise concerns about arbitrary state power.
c. Socio-Economic Inequalities: The rule of law presupposes equality, but systemic issues like poverty, illiteracy, and caste-based discrimination limit access to justice for marginalized groups. Legal aid mechanisms exist (e.g., under Article 39A), but their reach is often inadequate.
d. Emergency Provisions: The Constitution's emergency provisions (Articles 356, 352) have historically been misused, as seen during the 1975 Emergency, when civil liberties were suspended, and arbitrary detentions occurred. While judicial oversight has since strengthened, these provisions highlight the rule of law's vulnerability.
e. Populist and Majoritarian Pressures: In recent years, laws and policies perceived as favouring majoritarian sentiments or bypassing due process (e.g., controversial citizenship laws or internet shutdowns) have sparked debates about the erosion of the rule of law.
THE RULE OF LAW AND ABSOLUTE SOVEREIGNTY* Arthur L. Goodhart. Published in University of Penselvania Law Review. Vol. 106, May 1958, No.7. ↑
31 U.S. (6 Pet.) 515 (1832) ↑
31 U.S. (6 Pet.) 515 (1832) ↑
THE RULE OF LAW AND ABSOLUTE SOVEREIGNTY* Arthur L. Goodhart. Published in University of Penselvania Law Review. Vol. 106, May 1958, No.7. ↑
THE RULE OF LAW AND ABSOLUTE SOVEREIGNTY* Arthur L. Goodhart. Published in University of Penselvania Law Review. Vol. 106, May 1958, No.7. ↑
Rule of Law in a Free Society. Oxford Publications. Edited by N.R.Madhava Menon ↑
K. Parasaran: Miscellany Chapter 2 ↑
Carpenter, Habeas Corpus in the Colonies, 8 AM. HIST. LEGAL REV. 18 (1903). ↑
47th Federalist Paper ↑
The Speaking Constitution' by K. G. Kannabiran ↑
N. Venkat Ramani and Ors vs State of Andra Pradesh dated 8th April 1976 ↑
N.Venkat Ramani and Ors vs State of Andra Pradesh dated 8th April 1976 ↑
N. Venkat Ramani and Ors vs State of Andra Pradesh dated 8th April 1976 ↑
N. Venkat Ramani and Ors vs State of Andra Pradesh dated 8th April 1976 ↑
[42] P. Hemalatha vs Govt of Andra Pradesh AIR 1976 AP 375 (Paras 62- 98) ↑
[43] ADM Jabalpur AIR 1976 SC 1207 ↑
World Justice Project Rule of Law Index 2024 https://worldjusticeproject.org/rule-of-law-index/downloads/WJPIndex2024.pdf ↑
World Justice Project Rule of Law, India-specific Press-release 2024 https://worldjusticeproject.org/sites/default/files/documents/India_2.pdf ↑