Rule of Law in India: An Overview

Original Contribution by Surya Deva, Associate Professor, School of Law, City University of Hong Kong, Hong Kong

I. Introduction

The term 'rule of law' is not used in the Indian Constitution anywhere. The term is though used frequently by the Indian courts in their judgments. For instance, an online search of the Supreme Court's reportable judgments delivered between 1 January 1950 and 1 January 2010 resulted in 1,299 hits of the term 'rule of law'. (see http://judis.nic.in/supremecourt/chejudis.asp). 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 (Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2295; SP Gupta v Union of India, AIR 1982 SC 149), so this principle cannot be taken away even by a constitutional amendment. As this Country Report will outline, the Indian conception of the rule of law is both formal and substantive. It is also seen as an integral part of good governance. Questions are though raised as to the extent to which the constitutional promise of the rule of law matches with actual situation in India.

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Establishing an egalitarian society was/is one of the main goals of the India Constitution. The fundamental rights and the directive principles of state policy were the primary tools adopted to achieve this goal. Part III of the Constitution entitled 'Fundamental Rights' comprises Articles 12 to 35 which lay down various rights, their limitations and remedies for their enforcement. The rights range from the equality before the law to the freedom of speech and expression, the protection against double jeopardy, the right to life and personal liberty, the freedom of religion, prohibition of discrimination, and the protection against arrest and unlawful detention.

It will be useful to analyse to a few rights in some detail in order to appreciate the rule of law in operation. Article 14 prohibits the state from denying 'to any person equality before the law or the equal protection of the laws'. The guiding principle of equality being that like should be treated alike and that unlike should be treated differently, Article 14 permits reasonable classification. The court has invalidated several laws under Article 14 because the classification was without a difference (K Kunhikoman v State of Kerala AIR 1962 SC 723), or the basis of classification had no nexus to the object of the law (P Rajendram v State of Madras AIR 1968 SC 1012), or the law established special courts for trial of certain cases or types of cases without any reasonable classification or guidelines (State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75; Northern India Caterers Ltd. v State of Punjab AIR 1967 SC 1581), or the law singled out a person for giving a special or discriminatory treatment (Ameernnisa Begum v Mehboob Begum AIR 1952 SC 91; Ram Prasad v State of Bihar AIR 1953 SC 215).

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Another interesting fundamental right has been Article 21, which lays down that 'no person shall be deprived of his life or personal liberty except according to the procedure established by law.' This provision has proved to be a residuary repository of many fundamental rights. 'Life' in this article has been interpreted by the courts to mean more than mere physical existence (see, for the evolution of such an interpretation, Kharak Singh v State of UP AIR 1963 SC 1295; Sunil Batra v Delhi Administration (1978) 4 SCC 494; Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180; Francis Coralie v Union Territory of Delhi AIR 1981 SC 746; Bandhua Mukti Morcha v Union of India AIR 1984 SC 802; Consumer Education & Research Centre v Union of India (1995) 3 SCC 42; Bodhisattwa Gautam v Subhra Chakraborty (1996) 1 SCC 490; Visakha v State of Rajasthan AIR 1997 SC 3011. In some of these cases the Court has relied upon the observation of Justice Field in Munn v Illinois 94 US 113); it 'includes right to live with human dignity and all that goes along with it' (Francis Coralie v Union Territory of Delhi, AIR 1981 SC 746, 753 (per Justice Bhagwati)). Ever-widening horizon of Article 21 is illustrated by the fact that the Court has, inter alia, read into it the right to

• health (Parmanand Kataria v Union of India AIR 1989 SC 2039; Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 SCC 37), livelihood (Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180; DTC Corporation v DTC Mazdoor Congress AIR 1991 SC 101),
• free and compulsory education up to the age of 14 years (Unni Krishnan v State of AP (1993) 1 SCC 645),
• unpolluted environment (Indian Council for Enviro Legal Action v Union of India (1996) 3 SCC 212; M C Mehta v Union of India (1996) 6 SCC 750; Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647; Narmada Bachao Andolan v Union of India (2000) 10 SCC 664),
• shelter (Gauri Shankar v Union of India (1994) 6 SCC 349),
• clean drinking water (A P Pollution Control Board II v M V Nayudu (2001) 2 SCC 62),
• privacy (Kharak Singh v State of UP AIR 1963 SC 1295; Govind v State of MP AIR 1975 SC 1378; R Raj Gopal v State of Tamil Nadu (1994) 6 SCC 632; PUCL v Union of India AIR 1997 SC 568; 'X' v Hospital Z (1998) 8 SCC 296), legal aid (M H Hoskot v State of Maharashtra AIR 1978 SC 1548; Hussainara Khatoon v State of Bihar AIR 1979 SC 1369; Khatri v State of Bihar AIR 1981 SC 928; Suk Das v Union Territory of Arunachal Pradesh AIR 1986 SC 991),
• speedy trial (Hussainara Khatoon (I) to (VI) v Home Secretary, Bihar (1980) 1 SCC 81, 91, 93, 98, 108 and 115; Kadra Pahadiya v State of Bihar AIR 1982 SC 1167; Common Cause v Union of India (1996) 4 SCC 33 and (1996) 6 SCC 775; Rajdeo Sharma v State of Bihar (1998) 7 SCC 507 and (1999) 7 SCC 604), and
• various rights of under-trials, convicts and prisoners (Sunil Batra v Delhi Administration AIR 1978 SC 1675; Prem Shankar v Delhi Administration AIR 1980 SC 1535; Munna v State of UP AIR 1982 SC 806; Sheela Barse v Union of India AIR 1986 SC 1773).

Another innovative use of this provision has been in reaching violation of right to life and personal liberty by even private persons (see, for example, M C Mehta v Union of India (1987) 1 SCC 395; Consumer Education & Research Centre v.Union of India (1995) 3 SCC 42; Kirloskar Brothers Ltd. v ESIC (1996) 2 SCC 682; Bodhisattwa Gautam v Subra Chakraborty AIR 1996 SC 922; Vishaka v State of Rajasthan AIR 1997 SC 3011; 'X' v Hospital 'Z' (1998) 8 SCC 296; M C Mehta v Kamal Nath AIR 2000 SC 1997.), and to grant compensation for violation of fundamental rights (Rudul Sah v State of Bihar (1983) 4 SCC 141; Bhim Singh v State of J & K (1985) 4 SCC 677; Nilabati Behra v State of Orissa (1993) 2 SCC 746). 

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Although the power of judicial review does not require an express recognition in a constitutional text, Article 13(2) of the Indian Constitution provides such recognition by laying down that the state 'shall not make any law which takes away or abridges' the fundamental rights. The remedy to approach the Supreme Court for violation of fundamental rights under Article 32 is in itself a fundamental right. (A similar - in fact wider - power is vested with the High Courts under Article 226.) The Court has widened the scope of this power over the years by (1) implying many new rights within the ambit of Article 21; (ii2) chartering the course of public interest litigation as a tool of deepening justice to the masses; (iii3) declaring judicial review a 'basic feature' of the Constitution and thus putting this beyond the Parliament's amendment power; and (iv4) conferring on itself the power to review the validity of even constitutional amendments.   

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On a brief overview of the constitutional provisions and judicial decisions, it can be safely concluded that the Indian Constitution enshrines the rule of law as a fundamental governance principle, though the term is not mentioned expressly in the text of the Constitution. Having said this, there are several challenges that pose threat to building a society based on robust rule of law framework. Continued socio-economic inequalities (despite affirmative active provisions and programmes), large population, pervasive corruption (including in judiciary), judicial delays, law and order problems in view of regionalism and Naxalism, and the general apathy of people towards the rule of law are matters of serious concern. Despite these challenges, there is no doubt about the constitutional mandate or government's commitment to establishing a rule of law society.