Access to Justice in India: Rule of law and Indian Judiciary-Shashank Shekhar Pandey, Parag Agrawal

“Wherever Law ends, Tyranny begins.”

---John Locke

Introduction:

The rule of law is the legal principle that law ought to govern a country, instead of being administered by

subjective choices of individual government officials. It basically alludes to the impact and power of law inside

of society, especially as a limitation upon conduct, including conduct of government officials. The expression

can be followed back to sixteenth century Britain, and in the next century the Scottish scholar Samuel

Rutherford utilized the expression as a part of his contention against the divine right of rulers1. British legal

philosopher A. V. Dicey further advanced the phrase “rule of law” in the nineteenth century. The idea, if not the

expression was recognizable to antiquated thinkers as well, for example, Aristotle, who wrote, "Law must

govern".

Though there has been a conflict amongst different schools of law because of the way of interpreting the

concept differed from one to another but for our purposes we will be considering the Dicey’s version of rule of

law. Dicey in his book has written “ The rule of law comprised three principles. These require (I) that a

citizen’s legal duties and his liability to punishment should be determined by the ‘regular law’, and not by the

arbitrary fiat of officials or the exercise or wide discretionary powers; (2) that disputes between a private citizen

and an official should be subject to the jurisdiction of the ordinary courts; and (3) that the fundamental rights of

the citizen should not rest on a special, constitutional, guarantees but should arise from the ordinary law.” 2

Contemporary adaptations of the rule of law pushes the significance of two principles:

1) That the activity of discretionary forces of standard making and settling ought to be controlled by fair-

minded tribunals in the light of expressed general principles intended to secure that the force ought to be

practiced decently and inside of the cutoff points endorsed by law; and

2) That as huge a zone of the law as could be allowed and of the criminal law specifically ought to give clear

guidance to citizens as to their rights and obligations, and that they ought to be at risk to breach the law just on

the off chance that they had the limit and a reasonable chance to adjust their behavior to it and in that case they

sould be given a fair and equal opportutnity to be tried. 3

1Rutherford, Samuel Lex, rex: the law and the prince, a dispute for the just prerogative of king and people, containing the reasons and causes of the defensive wars of the kingdom of Scotland, and of their expedition for the ayd and help of their brethren of England , p. 237 (1644): "The prince remaineth, even being a prince, a social creature, a man, as well as a king; one who must buy, sell, promise, contract, dispose: ergo, he is not regula regulans, but under rule of law....”2 A.V.Dicey , Introduction to the Study of Law and Constitution, 18853 A.V. Dicey, supra note 2 .

As mentioned above the definition can be sub divided into three parts :

1. It implies in the first position, that the total matchless quality or prevalence of consistent law instead of

the impact of subjective power, and barring the presence of mediation, of right, or even a wide

discretionary power with respect to the government. .And a man can be rebuffed for a break of law, yet

he can be rebuffed only for that . Thus it is clearly visible that in the first part is all about the absence of

arbitrary power and such power can’t be traced back to any origin, legal in nature . At the end Dicey

intends to mention that “No person can be punished otherwise except for a breach of law”. Now this

brings into the light the preventive detention measures which have been enshrined in the constitution

and are being used by the government time and again to which even judiciary hasn’t answered yet

clearly except time or two in A.K.Gopalan 4 ,in Kharak Singh5 and in A.K.Roy’s6 Case .

2. The second part of the definition being equality before the law, or the equal subjection of all classes to

the standard law of the area managed by the common courts .Nobody is exempted from the rules that

everyone else follows, authorities and citizens have to comply with the same law .He critisizes that

authorities enjoy the benefits and immunities bestowed to them by very constitution itself . Which at

times we have seen being misused grossly by the parliamentarians.

3. Thirdly 'The Constitution' isn’t the source but rather consequence of the rights’ of people, as

characterized and implemented by the courts, in this way the constitution is the customary consequence

as any other law of the land ; not the higher level of law . With contrast to the above mentioned

principle the Constitution in Indian context has been observed as some sort of higher level of law which

acording to the Dicey’s principle is yet another law which as per our observation it can’t be true because

a constitution is an instrument which acts as a authority for the legislation while drafting and if we treat

the constitution as we treat other laws then the arbitraryness on the part of the policymakers will

increase subjecting the citizens’ rights and freedoms . Which in fact will negate the meaning of the first

part of the principle propounded by the Dicey himself about arbitraryness and the policymakers.

This early definition has been scrutinized, as Dicey's definition failed to specify the constitutional safeguards

necessary for the rule of law. As an example, while both state officials and private citizens may be bound by the

same law authorized through the same courts, the law itself may epitomize privileges for officials: this is

especially possible where, as in Britain, the sovereign in Parliament is the boundless lawmaker. As one author,

Geoffrey Marshall, remarked, 'procedural regularity and a common set of courts is compatible with legal

tyranny'. A more secure establishment of the rule of law is achieved by means to ensure the freedom of the

judiciary (that is, all judges and their courts) and by the composed meaning of constitutional rights. These rights

4 A.K.Gopalan v. State of Madras, 1950 AIR 27 (India).5 Kharak Singh v. State of U.P. and Ors. , 1963 AIR 1295 (India).6 A.K.Roy & etc. v. Union of India , 1982 AIR 710 (India).

should incorporate, for example, insurance for freedom of expression and movement and procedural guarantees

for due process of law, for fair trials and for precisely drafted laws, for no retrospective laws and for no

barbarous or unusual punishments.

Rule of Law in India & Indian Constitution:

Indians adopted the common law system which has a British origin ; which is the base of the principle i.e. Rule

of law propounded by Dicey . Though there exist many differences between the two legal systems viz. British

and Indian but as talking about similarity both nations strive for the fair and just regime and try to maintain

equity amongst their citizens. Dicey used to state that Englishmen don’t need codified laws to be governed as

per him only laws of nature and rule of law is enough to be governed. India also follows the Principles of

Natural Law to a big extent . But to ensure that there exist no arbitrary action on part of the policymakers the

constitution provides the provisions of checks and to further ensure that the laws have been codified to a large

extent .

The fathers of the nation while drafting the largest ever written constitution kept the very same thing in mind .

They wanted the nation to be governed by law . So , to give it effect the constitution itself imbibes the principle

with the concordance to the same . The precept of Rule of Law has been received in Indian Constitution

through Articles 14 and 21 enshrined in the Constitution as we have seen the difference in case of

A.K.Gopalan7 where he did contested Article 21 but he did not took the recourse of the Article 14 in that ways

he had to contend on the principles of natural justice and later on he failed miserably while contending with

contrast to the Maneka Gandhi’s8 case where court read together articles 14 and 21 on the very similar grounds

as of the Gopalans and was clearly stated in E.P.Royappa’s9 Case while court discussed about principles of

natural justice. Also , The standards of the Constitution, justice. liberty and equality are cherished (exemplified)

in the preamble. The Constitution of India has been made the preeminent law of the nation and different laws

are required to be in congruity with the Constitution. Any law, which is found infringing upon any procurement

of the Constitution is, announced invalid.

Part III of the Constitution of India ensures the Fundamental Rights. Article 13(l) of the Constitution makes it

clear that all laws in power in the region of India promptly before the beginning of the Constitution, in so far as

they are conflicting with the procurement of Part III managing the Fundamental Rights, might, to the degree of

such irregularity, be void.10 Article 13(2) gives that the State ought not make any law which takes away or

condenses the key rights and any law made in repudiation of this provision might, to the degree of the negation,

be void. The Constitution ensures equality in the witness of law and equivalent security of laws. Article 21

ensures right to life and individual liberty. It gives that no individual should be denied of his life or individual

7 A.K.Gopalan , Supra Note 4 .8 Menaka Gandhi v. Union of India , 1978 AIR 597 (India).9 E. P. Royappa   vs State Of Tamil Nadu & Anr ,1974 AIR 555 (India).10 His Holiness   Kesavananda Bharati   Sripadagalvaru and Ors. v. State of Kerala and Anr . , (1973) 4 SCC 225 (India).

liberty with the exception of as indicated by the strategy built up by law. Article 19 (1) (an) ensures the third

guideline of rule of law (the right to speech and expression). Article 19 ensures six Fundamental Freedoms to

the natives of India - the right to speak freely and expression, flexibility of assembly, opportunity to shape

associations or unions, flexibility to live in any part of the domain of India and opportunity of profession,

occupation, exchange or business. The privilege to these freedoms is not outright, but rather subject to the

reasonable restrictions which may be forced by the State.

Article 20(1) gives that no individual should be convicted of any offense with the exception of infringement of

a law in power at the season of the commission of the demonstration charged as an offense not be liable to a

punishment more prominent than that which may have been prescribed by the law at the time of the

commission of the offense. As indicated by Article 20(2), no individual should be arraigned and rebuffed for

the same offense more than once. Article 20(3) makes it clear that no individual blamed for the offense might

be constrained to be witness against himself. In India, Constitution is incomparable and the three organs of the

Government viz. Legislature, Executive and judiciary are subordinate to it. The Constitution given to

infringement of one organ (E.g.: Judiciary) upon another (E.g.: Legislature) if its activity is mala fide, as the

subject (individual) can challenge under Article 32 of the Constitution.

In India, the which means of rule of law has been highly expanded. It is viewed as a part of the basic structure

of the Constitution and, hence, it can't be revoked or wrecked even by Parliament. It is likewise viewed as a part

of natural justice .

“But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.”

-Montesquieu

Rule of Law & Indian Judiciary

Fundamental rights enshrined in part III of the constitution act as a limitation on the law making force of the

Indian Parliament. It incorporates the right to speak freely, expression, association, movement, residence,

profession and individual liberty. In its more extensive sense the Constitution itself endorses the basic legal

system of the nation. To ensure and advance crucial rights and freedoms of the subjects and the appreciation for

the standards of the law based State in light of rule of law. The prevalent habeas corpus case, ADM Jabalpur v.

Shivakant Shukla11 is a standout amongst the most imperative situations with regards to rule of law. For this

situation, the inquiry under the watchful eye of the court was 'whether there was any rule of law in India apart

from Article 21'. This was in setting of suspension of authorization of Articles 14, 21 and 22 amid the decree of

a crisis. The answer of most of the seat was in negative for the topic of law. However Justice H.R. Khanna

dissented from the larger part conclusion and watched that

11 A.D.M. Jabalpur v. Shivakant Shukla , 1976 AIR 1207 (India).

"Even without Article 21 in the Constitution, the state must energy to deny a man of his life and liberty without

the power of law. Without such holiness of life and liberty, the refinement between a lawless society and one

administered by laws would stop to have any which means… "

Connected to the powers of the administration, this requires that each administration power which does some

act which would somehow or another , be a wrong, (for example, taking a man's land), or which encroaches a

man's liberty (as by declining him arranging consent), must have the capacity to legitimize its activity as

approved by law - and in almost every case this will mean approved straightforwardly or by implication by Act

of Parliament. Another meaning of rule of law is that the administration ought to be directed inside of a

structure of perceived rules and standards which confine optional forces. The Supreme Court saw in Som Raj v.

State of Haryana12 that the nonappearance of arbitrary power is the primary motif of Rule of Law whereupon

the entire constitutional structure is dependant. Carefulness being practiced with no rule is an idea which is

direct opposite of the idea. Going by the third meaning ; which describes that rule of law highlights the

autonomy of the judiciary and the matchless quality of courts. It is rightly repeated by the Supreme Court for

the situation Union of India v. Raghubir Singh13 that it is not a matter of uncertainty that a significant degree

that administers the lives of the general population and controls the State capacities streams from the choice of

the prevalent court In Chief settlement Commissioner Punjab v. Om Prakash14 , it was seen by the supreme

court that,

"In our constitutional system, the central and most characteristic feature is the concept of rule of law which

means, in the present context, the authority of law courts to test all administrative action by the standard of

legality. The administrative or executive action that does not meet the standard will be set aside if the

aggrieved person brings the matter into notice.”

In India, the which means of rule of law has been abundantly expanded. It is viewed as a part of the basic

structure of the Constitution and, in this way, it can't be revoked or demolished even by Parliament. The beliefs

of constitution; liberty, equality and brotherhood have been revered in the preamble. Constitution makes the

supreme law of the land and each law established ought to be in adjustment to it. Any infringement makes the

law ultra vires. In Kesavanda Bharti versus State of Kerala 15 - The Supreme Court articulated the rule of law as

a standout amongst the most imperative parts of the tenet of basic structure. In Menaka Gandhi versus Union of

India16 - The Supreme Court announced that Article 14 strikes against discretion. In Indira Nehru Gandhi versus

Raj Narain17 - Article 329-A was embedded in the Constitution under 39th amendment, which gave certain

immunities to the race of office of Prime Minister from legal audit. The Supreme Court pronounced Article

12 Som Raj v. State of Haryana, 1990 AIR 1176 (India).13 Union of India v. Raghubir Singh, AIR 1989 SC 1933 (India).14 Chief Settlement Commissioner Punjab v. Om Prakash, 1969 AIR 33 1968 (India).15 Keshavananda Bharti , supra note 10.16 Menaka Gandhi v. Union of India , 1978 AIR 597 (India).17 Indira Nehru Gandhi v. Raj Narain , 1975 AIR 1590 (India).

329-An as invalid since it shortens the basic structure of the Constitution. Furthermore , On account of Binani

Zinc Limited Vs. Kerala State Electricity Board and Ors.18 Justice S B sinha announced that :

" It is now a well settled principle of law that the rule of law inter alia postulates that all laws would be

prospective subject of course to enactment an express provision or intendment to the contrary.”

And For the situation of Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil19 the ratio set down by the

honorable court was :

"If the rule of law has to be preserved as the essence of the democracy of which purity of elections is a

necessary concomitant, it is the duty of the courts to appreciate the evidence and construe the law in a manner

which would subserve this higher purpose and not even imperceptibly facilitate acceptance, much less

affirmance, of the falling electoral standards. For democracy to survive, rule of law must prevail, and it is

necessary that the best available men should be chosen as people's representatives for proper governance of

the country. This can be best achieved through men of high moral and ethical values who win the elections on a

positive vote obtained on their own merit and not by the negative vote of process of elimination based on

comparative demerits of the candidates.”

In famous case of Sukhdev v. Bhagatram20 Mathew J. proclaimed that

" Whatever be the concept of the rule of law, whether it be the meaning given by Dicey in his "The Law of the

Constitution" or the definition given by Hayek in his "Road to Serfdom" and "Constitution of liberty" or the

exposition set-forth by Harry Jones in his "The Rule of Law and the Welfare State"…..”

there is, as further pointed out by Mathew, J., in his article on "The Welfare State, Rule of Law and Natural

Justice" in "Democracy, Equality and Freedom,"

"substantial agreement is in juristic thought that the great purpose of the rule of law notion is the protection of

the individual against arbitrary exercise of power, wherever it is found". It is indeed unthinkable that in a

democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary

power over the interests of the individual. Every action of the executive Government must be informed with

reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal

requirement. And to the application of this principle it makes not difference whether the exercise of the power

involves affection of some right or denial of some privilege."

18 Binani Zinc Ltd. v. Kerala State Electricity Board , 2009 Indlaw SC 2022 (India).19 Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil , 1994 AIR 678 (India).20 Sukhdev v. Bhagatram, AIR 1975 SC 1331 (India).

In addition to them in Secretary, State of Karnataka and Ors. v. Umadevi and Ors21 a Constitution Bench of

Honourable Court has set out the law in the accompanying terms:

"Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our

Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from

passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with

the requirements of Article 14 read with Article 16 of the Constitution."

Furthermore , on account of Amlan Jyoti Borooah Vs.State of Assam and Ors.22 It was held by S B Sinha that:

"Equity must not be equated with compassion. Equitable principles must emanate from facts which by

themselves are unusual and peculiar. A balance has to be struck and the Court must be cautious to ensure that

its endeavour to do equity does not amount to judicial benevolence or acquiescence of established violation of

fundamental rights and the principles of Rule of law”

Moreover, For the situations like of Bachan Singh v. state of punjab23 Justice Bhagwati has underlined that rule

of law rejects assertion and unreasonableness. To guarantee this, he has recommended that it is important to

have a popularity based legislature to make laws, however its energy shoul not be free, and that there ought to

be an autonomous judiciary to secure the nationals against the abundances of executive and authoritative force.

Notwithstanding this in P. sambamurthy v. state of Andhra Pradesh24 the SC has announced a procurement

approving the executive to meddle with tribunal justice as unconstitutional portraying it as " violative of the

rule of law which is clearly a basic and essential feature of the constitution "

Yet another case is of Yusuf Khan v. Manohar Joshi25 in which the SC set out the suggestion that it is the

obligation of the state to safeguard and ensure the law and the constitution and that it can't allow any brutal

demonstration which may refute the rule of law. Subsequently, it is pretty much apparent that the idea of rule of

law is picking up significance and consideration and legal endeavors are made to make it more solid.

Criticism

The inverse of rule of law is rule of men. The rule of law is fundamentally rule by men, for the law is latent.

Men are important to uphold the law, yet all men are inclined to decipher the law through their own particular

learning, understanding, and moral sense. As per justice Ramaswamy , In Best-case scenario an arrangement of

21 Sec., State of Karnataka and Ors. v. Umadevi and ors. , 2006(4) SCC 1 (India).22 Amlan Jyoti Borooah v. State of Assam and Ors., 1980 SCC (1) 634 (India).23 Bachan Singh v. State of Punjab , 1982 AIR 1325 (India).24 P. Sambamurthy v. State of Andhra Pradesh , 1987 AIR 663 (India).25 Yusuf Khan v. Manohar Joshi , (2000) 2 SCC 696 (India).

laws is an all around proposed manual for the use of justice by the rule of men. Regardless of an obviously

advantageous position of the subjects in every one of the fields of industry, trade, instruction, transport, keeping

money, protection and so forth there is resistance by the authoritative powers with the activities of the people,

organizations and other corporate and non-corporate bodies. There is a lot of circumspection included in the

administrative work. . For e.g. : for the purpose of national planning the executive is armed with vast powers in

respect of control of basic industries, taxation,land ceiling, mobilization of labour etc. Even Parliament passes

laws which are opposed to personal liberty such as preventive detention act or Maintenance of Internal Security

act 1971, National security act 1980. Even the simplest thing like discriminating between employees in terms of

payments can be termed as inequality, as opposed to rule of law.

The case Frank Anthony Employees' Union v. Union of India26 is with segregation in installment to workers,

which was held to disregard the individual's entitlement to equality and unreasonable order of retired people

was held to be arbitrary in the case Nakara v. Union of India27. The fundamental normal for the concept of rule

of law is 'equality'. This itself has been scrutinized generally. The administration has the natural power to act

absolutely all alone volition and without being liable to any checks or constraints. Absolute equality is

conceivable to win as a rule conditions in India as well as in any nation so far as that is concerned. For e.g.:

1. No case can be recorded against the Bureaucrats and Diplomats in India

2. No criminal procedures at all might be established or proceeded against the President, or the Governor

of a state, in any court amid his term of office. No procedure for the capture or detainment of the

President, or the Governor of a state, might issue from any court amid his term of office.

3. The benefits appreciated by the individuals from parliament as for legal activities against them.

4. There are discrete tribunals for authorities

Thus, on the basis of these points one can say that equality in India is not pervasive in its solid sense. The

Dicey's concept of rule of law has also been scrutinized . Law changes with time. As the society evolves, even

the law of the nation should create. Some view the rule of law as nothing other than an apparatus of the capable

to keep up the status quo in the legal system. The general consensus is that the status quo, a long way from

being impartial, serves to ensure the interest of the general public. This absence of lack of bias in the rule of law

runs as opposed to the perfect, followed to Aristotle, that in light of the law each person should be equivalent;

that it is one's humankind, not one's status in society, that requires that laws be justly connected. Many of the

critics argue that "the liberal worldview has destroyed the rule of law." The justification behind this statement is

that, considering the genuine state of the world, numerous liken the rule of law with legality. Notwithstanding,

this is a flawed mathematical statement as "legality simply means that there are laws and says nothing about the

nature of those laws." Hence, there are numerous lacunas in the concept of rule of law which servers the reason

of non-usage of the concept appropriately.

“At his best, man is the noblest of all animals; separated from law and justice he is the worst.”

26 Frank Anthony Employees’ Union v. Union of India , 1987 AIR 311 (India).27 Nakara v. Union of India , 1983 (1) SCC 305 (India).

-Aristotle

Conclusion

The rule of law is a thought regarding law, justice, and profound quality. It considers what laws, norms, rules,

procedures, systems, and structures should be and what they should not be. The peoples and/or their elected

representatives should announce Norms freely. There are three characteristic of this plan. One is that the law

governs individuals as well as the administration itself. Next, persons should comply with the law. Third is that

the norms we call law should be obeyable - not just in the sense of being known, understandable and

unsurprising, yet in the deepest sense of being just. It is a necessary component for democracy and great

administration and also assist to encourage stability and peace. As per some, it may keep wars from happening

in the first place. Also, Human rights can be considered as a check over the criticism of rule of law i.e.

Absolutism and despotism. The rule of law in the Indian society has not accomplished the expected results is

that the profoundly settled in values of constitutionalism or submitting to the Constitution of India have not

taken roots in the society. Corruptions, Terrorism and so forth are all antithesis to Rule of Law. As of late,

regular law traditions, the Constitution of India, and the perseverant part of the judiciary have added to the

improvement of rule of law. Be that as it may, on occasions we have slipped again into government by will just

to return sadder and wiser to the rule of law when hard facts of human instinct demonstrated the selfishness and

egotism of man and reality of the proclamation that power corrupts and absolute force corrupts absolutely. A

couple of examples of how our legal system has maintained the rule of law and ensured justice is unmistakably

seen in the formation of new avenues seeking remedies for human rights violations through PIL pleas and

advancement of honest to goodness interventions by the judiciary in the areas of reinforced and youngster

work, prostitution, perfect and solid environment and so forth yet on the darker side there have been vilations

oof fundamenta rights as well. For e.g. The discrimination of eunuchs based on their class and sex makes the

group a standout amongst the most disempowered groups in Indian societ Eunuchs may have an acknowledged

spot in Indian society, however it is a spot practically at the base of the social stack – making them a sexual as

well as an exceptionally denied social minority. The late case is of the singur occurrence a Division Bench of

the High Court comprising Honorable Chief Justice S Nijjar and Honorable Justice Pinaki Chandra Ghosh also

took suo moto note of the incident.

" it seems as if the Police Department which is under the control of the Home Department is not even aware of

the existence of Article 21 of the Constitution of India…..This Article specifically guarantees that ‘no person

shall be deprived of his life or personal liberty except according to procedure established by law’. Oblivious of

the aforesaid guarantee, the police has resorted to gun firing on a large crowd protesting against the proposal

to acquire their land."

There was total absence of rule of law in west Bengal amid this period. Adding on to the never ending list of

examples in the list we have also seen and faced the draconian laws like Armed Forces Special Powers Act ,

Land Acquisition Acts which are prima facie are not in the public interest and are arbitrary in nature and

legislation for a while has muddled up the process for their benefits which till some extent does hampers the

rule of law. For a purposeful rule of law to exist in a society, democracy is required and for an equitable state

the pervasiveness of rule of law is required. Thus, it can be inferred that democracy and rule of law are

associated and one can't flourish without the other. India is world's largest democracy; however the

predominance of rule of law is for the most part under risk here. It is basic that efforts are made to further

sustain and preserve a rule of law society in India without which our fundamental credentials as democracy will

be seriously undermined.

“There is but one law for all, namely, that law which governs all law, the law of our Creator, the law of humanity, justice, equity -- the law of nature and of nations.”

EDMUND BURKE