ACKNOWLEDGMENT

Firstly, I would like to express my profound sense of gratitude towards the almighty God for
providing me with the authentic circumstances which were mandatory for the completion of my
project.

Secondly, I am highly indebted to Mr. Nageshwara Rao at Faculty of Constitutional Law,

Damodaram Sanjivayya National Law University, Visakhapatnam for providing me with
constant encouragement and guidance throughout the preparation of this project.

Thirdly, I thank the Law library staff who liaised with us in searching material relating to the
project.

My cardinal thanks are also for my parents, friends who have always been the source of my
inspiration and motivation without which I would have never been able to unabridged my
project.

My father, a lawyer with large access to books of value has been of great help to me.

Without the contribution of the above said people I could have never completed this project.

Aaditya Vasu
BA LLB (Hons), 5th Semester
3rd Year

Table of Contents

Introduction

Rule of Law under the Indian Constitution..

Rule of Law part of the Basic Structure....

Put Checks on Governmental Powers..

Equality Guarantee and the Protection of Human Rights

Judicial Review by an Independent Judiciary......

Conclusion

Bibliography.

LIST OF CASES
SP Gupta v Union of India

Indira Nehru Gandhi v Raj Narain

State of M.P. v. Bharat Singh

Ram Jawaya Kapur v. State of Punjab

Som Raj v. State of Haryana

Union of India v. President, Madras Bar Association

Mahabir Prasad Santosh Kumar v. State of U.P.

Maganlal Chhaganlals case,

Northern India Caterers case

Union of India v. Raghubir Singh

Chief settlement Commissioner Punjab v. Om Prakash

Binani Zinc Limited v. Kerala State Electricity Board and Ors

Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil

Sukhdev v. Bhagatram

Secretary, State of Karnataka and Ors. v. Umadevi and Ors

Amlan Jyoti Borooah v. State of Assam and Ors

Bachan Singh v. state of Punjab

4

P. sambamurthy v. state of Andhra Pradesh

Yusuf Khan v. Manohar Joshi

Frank Anthony Employees Union v. Union of India

Nakara v. Union of India.

Zee Telifilms v. Union of India

C. Ravichandran Iyer v. J.A.M. Bhattacharya

In re Vinay Chandra Mishras case

DTC v. Mazdoor Congress

A.K. Kraipak v. Union of India

C.B. Muthumma v. Union of India

Air India v. Nargesh Meerza

Govt. of A.P. v. P.B. Vijayakumar

Madhu Kishwar v. State of Bihar

Gaurav Jain v. Union of India

I.R. Coelho v. State of Tamil Nadu

Satwant Singh

Jaisinghanis case

Olmstead v. United States:

Mohamed v. President of the Republic of South Africa.

Glanrock Estate (P) Ltd v. The State Of Tamil Nadu

Smt. Shakti Kumari Gupta v. State Of U.P. And Ors.

National Human Rights Commission v. State of Arunachal Pradesh and Anr.

Erusian Equipment and Chemicals Ltd. v. State of West Bengal and Anr

A.K. Chaudhary And Ors. v. The State Of Gujarat And 2 Ors.,

A.P.Abbu Gounder v. D.K.Goel

Maninderjit Singh Bitta v. Union of India and others

Association of Registration of Plates v. Union of India

Manohar Lal Sharma v. The Principle Secretary & Others,

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Madhu Limaye v. Supdt. Tihar Jail Delhi

Sanaboina Satyanarayan v. Govt. of A.P

Tamil Nadu Electricity Board v. R. Veeraswamy

Shankari Prasad v. Union of India

Sajjan Singh v. State of Rajasthan

Golaknath v. State of Punjab

Keshavananda Bharti v. State of Kerala

Raman Dayaram Shetty v. International Airport Authority of India

In re: Arundhati Roy

Sheela Barse v. State of Maharashtra

Veena Sethi v. State of Bihar

Medical and Educational Charitable Trust v. State of Tamil Nadu

Bijoe Emmanuel v. State of Kerala

Express Newspapers v. Union of India and in Bennett Coleman v. Union of India

K Kunhikoman v. State of Kerala

State of West Bengal v. Anwar Ali Sarkar

Northern India Caterers Ltd. v. State of Punjab

Ameernnisa Begum v. Mehboob Begum

Ram Prasad v. State of Bihar

E P Royappa v. State of Tamil Nadu

Maneka Gandhi v. Union of India

Mithu v. State of Punjab

Central Inland Water Corporation v. B N Ganguly

DTC v. DTC Mazdoor Congress

Common Cause v. Union of India

Shivsagar Tiwari v. Union of India

Francis Coralie v. Union Territory of Delhi

Supreme Court Advocates on Record Association v. Union of India

In re, Presidential Reference

8

T.N. Godavarman Thirumulpad case

; R D Shetty v. International Airport Authority

Ajay Hasia v. Khalid Mujib

A L Kalra v. Project &Equipment Corporation

Sunil Batra v. Delhi Administration

Olga Tellis v. Bombay Municipal Corporation

Bandhua Mukti Morcha v. Union of India

onsumer Education & Research Centre v. Union of India

Bodhisattwa Gautam v. Subhra Chakraborty

Munn v. Illinois

Parmanand Kataria v. Union of India

Paschim Banga Khet Mazdoor Samity v. State of West Bengal

Unni Krishnan v. State of

Indian Council for Enviro Legal Action v. Union of India

M C Mehta v. Union of India

INTRODUCTION

Where the law is subject to some other authority and has none of its own, the collapse of the
state, in my view, is not far off; but if law is the master of the government and the government is
its slave, then the situation is full of promise and men enjoy all the blessings that the gods
shower on a state.

Plato

Rule of Law is the basic necessity for maintaining peace in the country. Constitution is supreme
law of the nation and it is all about politics and as we know politics is all about unpredictability.
So in this assignment, I am concerned on the problems which cause threat to the Rule of Law in
the society. And what can be done to maintain this Rule in the society for proper functioning of
the legislature

India is the largest democratic country in the world. It attained freedom 67 years ago, has a
thriving institutions like Parliament, State Assemblies and Panchayat. Our constitution is written
in such a manner that everyone would get equal opportunity. Our nation has three organs,
namely, executive, judiciary and legislative. All the three are been bestowed with independent
and autonomous powers to make and implement the rules depending on the changing society so
that the nation can run smoothly.

By exercising the power of adult franchise the common people choose their leaders. The leaders
have vision, shape our future and implement peoples programmes. But this is not the truth.

We see stark reality of destitution, malnutrition, illiteracy, joblessness in the independent India.
Roughly, 15% of people are well off, economically. They are industrial tycoons, financial
conglomerates, politicians, and their touts, media and intelligentsia are in the rich layer and
ruthlessly exploiting the rest of us. The majority are living without proper housing, education and
healthcare.

Politicians, criminals and police have forged an unholy nexus. As the scams keep multiplying,
we, the common people feel shame. The exploitation by leaders who have been mandated to
10

conserve, develop and protect the citizen at large is disgusting. Coffingate was bribe taken by the
defence ministry to bury the martyrs of the Kargil war. Bofors gun backpay scandal was alleged
in premiership of Mr. Rajiv Gandhi. Tehelka exposed bribes taken by Mr. Bangaru laxman,
BJP National President. The involvement of Army in the Adarsh Housing Society episode is
damage to our most revered institution. Even the air force and navy personals are deeply
involved. Another skeleton has popped of the cupboard, in the form of 2G spectrum, causing a
loss of Rs. 1, 80,000 crore to the national exchequer. The undervaluation of Public Sector Unit
disinvestment also has been under investigation. A failed public distribution system (PDS) and
the Union Food & Agriculture Minister Mr. Sharad Pawar got reprimanded by the Honorable
Supreme Court when food grains went rotting instead of reaching the starving millions. The
politicians of Uttar Pradesh were siphoning food grains to offshore countries to mint money for
themselves, instead of feeding their countrymen and women. The bribes for- loan scam has
exposed leading Banks and LIC Housing Fund.

Economic inequality has to be fought on the political plane. The Bihar Assembly election of
2010 has given a new dimension to the nation. The landslide victory for the agenda of
development put forth by Mr. Nitish is phenomenal, and has dealt a big blow the caste ridden,
divisive, feudalistic and parochial policies of the other leaders.

The concept of Rule of law1 is of old origin and is an ancient ideal. It was discussed by ancient
Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote: Where the law is
subject to some other authority and has none of its own, the collapse of the state, in my view, is
not far off; but if law is the master of the government and the government is its slave, then the
situation is full of promise and men enjoy all the blessings that the gods shower on a state.

Likewise, Aristotle also endorsed the concept of Rule of law by writing that "law should govern
and those in powers should be servants of the laws.

The phrase Rule of Law is derived from the French phrase la principe de legalite (the
principle of legality) which refers to a government based on principles of law and not of men.
Rule of law is one of the basic principles of the English Constitution and the doctrine is accepted
in the Constitution of U.S.A and India as well. The entire basis of Administrative Law is the
doctrine of the rule of law.

1 HM Seervai, The Supreme Court of India and the Shadow of Dicey, in the position of judiciary under
the Constitution Of India, pp 83-96 (1970)
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The Rule of Law, in its most basic form, is the principle that no one is above the law. The rule
follows logically from the idea that truth, and therefore law, is based upon fundamental
principles which can be discovered, but which cannot be created through an act of will.
In fact, the Supreme Court has declared the rule of law to be one of the 'basic features' of the
Constitution.2

Sir Edward Coke, the Chief Justice of King James Is reign was the originator of this concept.
He maintained that the King should be under God and the Law and he established the supremacy
of the law against the executive and that there is nothing higher than law.

Later, Albert Venn Dicey3developed the concept in his book The Law of the Constitution.4 His
writing on the British Constitution (which is unwritten) included three distinct though kindered
ideas on Rule of law:

Absence of discretionary powers and supremacy of Law: viz. no man is above law. No man is
punishable except for a distinct breach of law established in an ordinary legal manner before
ordinary courts. The government cannot punish any one merely by its own fiat. Persons in
authority do not enjoy wide, arbitrary or discretionary powers. Dicey asserted that wherever
there is discretion there is room for arbitrariness.

Equality before law: Every man, whatever his rank or condition, is subject to the ordinary law
and jurisdiction of the ordinary courts. No person should be made to suffer in body or deprived
of his property except for a breach of law established in the ordinary legal manner before the
ordinary courts of the land.

Predominance of legal spirit: The general principles of the British Constitution, especially the
liberties and the rights of the people must come from traditions and customs of the people and be
recognized by the courts in administration of justice from time to time.

2 Indira Nehru Gandhi vs Raj Narain, AIR 1975 SC 2295, SP Gupta vs Union of India, AIR 1982 SC 149
3 A British Jurist and Constitutional theorist

4 (1885)
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The expression rule of law is one which, over the years, has been used to convey a wide variety
of ideas and has a number of meanings and corollaries including their criticisms. In common
parlance it is often used simply to describe the state of affairs in a country where, in the main, the
law is observed and order is kept i.e., as an expression synonymous with law and order. To
public lawyers, however, the phrase conveys something a little more precise. For them, the
phrase is inextricably linked with the writings of Dicey.
The term rule of law is not used in the Indian Constitution anywhere, but there is no doubt that
the rule of law pervades the Constitution as an underlying principle. In fact, the Supreme Court
has declared the rule of law to be one of the basic features of the Constitution, so this principle
cannot be taken away even by a constitutional amendment. In this assignment I will try to focus
on the Indian conception of the rule of law is both formal and substantive. It is also seen as an
integral part of good governance.
The State of M.P. v. Bharat Singh5 also did not raise any question about Diceys Rule of Law,
though it did raise a question about the Rule of Law in the strict legal sense. In Bharat Singh
case, it was contended that as the executive power of the State was co-extensive with its
legislative power, an executive order restricting the movements of a citizen could be passed
without the authority of any law, and the Supreme Courts decision in Ram Jawaya Kapur v.
State of Punjab6 was relied upon to support the contention. The Supreme Court could have
pointed out, but did not, that the principle of Kapur case directly negatived the contention when
that case held that though the authority of law was not necessary for Government to carry on
trade, such authority was necessary when it became necessary to encroach upon private rights in
order to carry on trade. The Supreme Court distinguished Kapur case on the ground that it
involved no action prejudicial to the rights of others. Even so, Bharat Singh case is really
disposed of by the courts observation that every act done by the Government or by its officers
must, if it is to operate to the prejudice of any person be supported by some legislative
authority, for that is the strict legal meaning of the Rule of Law. For reasons which I have
already given, it was wholly unnecessary to refer to the first meaning which Dicey gave to the
Rule of Law, or to Diceys contrast between the English and the Continental systems.
The Supreme Court observed in Som Raj v. State of Haryana that the absence of arbitrary power
is the primary postulate of Rule of Law upon which the whole constitutional edifice is
dependent. Discretion being exercised without any rule is a concept which is antithesis of the
concept.

Rule of Law under Indian Constitution

In India, the concept of Rule of law can be traced back to the Upanishads. In modern day as well,
the scheme of the Indian Constitution is based upon the concept of rule of law. The framers of
the Constitution were well familiar with the postulates of rule of law as propounded by Dicey
5 AIR 1970 SC 1170
6 [1955] 2 SCR 225
13

and as modified in its application to British India. It was therefore, in the fitness of things that the
founding fathers of the Constitution gave due recognition to the concept of rule of law.

The doctrine of Rule of Law as enunciated by Dicey has been adopted and very succinctly
incorporated in the Indian Constitution. The ideals of the Constitution viz; justice, liberty and
equality are enshrined in the Preamble itself (which is part of the Constitution).

The Constitution of India has been made the supreme law of the country and other laws are
required to be in conformity with it. Any law which is found in violation of any provision of the
Constitution, particularly, the fundamental rights, is declared void. The Indian Constitution also
incorporates the principle of equality before law and equal protection of laws enumerated by
Dicey under Article 14.

Constitution of India: Article 14:- Equality before law The State shall not deny to any
person equality before law or equal protection of laws within the territory of India.

The very basic human right to life and personal liberty has also been enshrined under Article 21.
Article 19(1) (a) of the Indian Constitution guarantees the third principle of the Rule of law
(freedom of speech and Expression). No person can be convicted of any offence except for
violation of a law in force at the time of the commission of the act charged as an offence is also
very well recognized in the Indian Constitution. The principles of double jeopardy and selfincrimination also found its rightful place in the Constitution. Articles 14, 19 and 21 are so basic
that they are also called the golden triangle Articles of the Indian Constitution.

The Constitution also ensures an independent an impartial Judiciary to settle disputes and
grievances for violation of fundamental rights by virtue of Articles 32 and 226. In Union of
India v. President, Madras Bar Association7, the Supreme Court held that Rule of Law has
several facets, one of which is that disputes of citizens will be decided by Judges who are
independent and impartial; and that disputes as to legality of acts of the Government will be
decided by Judges who are independent of the Executive.

Justice R.S. Pathak of the Honble Supreme Court has observed that It must be remembered
that our entire constitutional system is founded on the rule of law, and in any system so designed
it is impossible to conceive of legitimate power which is arbitrary in character and travels
beyond the bounds of reason.
7 CIVIL APPEAL NO 3067 OF 2004
14

In Mahabir Prasad Santosh Kumar v. State of U.P., the District Magistrate had cancelled the
license granted under the U.P. Sugar Dealers Licensing Order, 1962 without giving any reason
and the State Government had dismissed the appeal against the said order of the District
Magistrate without recording the reasons. This Court has held: The practice of the executive
authority dismissing statutory appeals against orders which prima facie seriously prejudice the
rights of the aggrieved party without giving reasons is a negation of the rule of law.
In S.P. Gupta case, the petitioners had raised the question of alleged misuse of power of
appointing and transferring the Judges of the High Court by the Government. In order to make
sure that the power of appointment of Judges was not used with political motives thereby
undermining the independence of the judiciary, the petitioners sought information as to whether
the procedures laid down under Articles 124(2) and 217(1) had been scrupulously followed. Here
the right to information was a condition precedent to the rule of law. Most of the issues, which
the Mazdoor Kisan Shakti Sangathan of Rajasthan had raised in their mass struggle for the right
to information, were mundane matters regarding wages and employment of workers, such
information was necessary for ensuring that no discrimination had been made between workers
and that everything had been done according to law. The right to information is thus embedded in
Articles 14, 19(1) (a) and 21 of the Constitution

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