Rule of Law in India: An Overview
Original Contribution by Surya Deva, Associate Professor, School of Law, City University of Hong Kong, Hong Kong
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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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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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Further ReadingGranville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: Clarendon Press, 1966). Granville Austin, Working a Democratic Constitution - The Indian Experience (New Delhi: Oxford University Press, 1999). Upendra Baxi, 'The Rule of Law in India', (2007) 6 Sur - Revista Internacional de Derechos Humanos 7, <socialsciences.scielo.org/pdf/s_sur/v3nse/scs_a01.pdf>. Surya Deva, 'Public Interest Litigation in India: A Critical Review' (2009) 28 Civil Justice Quarterly 19. B N Kirpal et al (eds.), Supreme but not Infallible - Essays in Honour of the Supreme Court of India (New Delhi: Oxford University Press, 2000). Randall Peerenboom (ed.), Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US (London: RoutledgeCurzon, 2004). Victor V Ramraj & Arun K Thiruvengadam (ed.), Emergency Powers in Asia: Exploring the Limits of Legality *(Cambridge: Cambridge University Press, 2010).* S P Sathe, Judicial Activism in India - Transgressing Borders and Enforcing Limits (New Delhi: Oxford University Press, 2002). Mahendra P Singh, 'The Constitutional Principle of Reasonableness' (1987) 3 Supreme Court Cases (Journal) 31. Mahendra P Singh, 'Securing the Independence of the Judiciary - The Indian Experience' (2000) 10 Indiana International & Comparative Law Review 245. Mahendra P Singh 2008: 'Shukla's Constitution of India', 11thedn., (Lucknow: Eastern Book Co.)
Vijayashri Sripati, 'Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950-2000)' (1998) 14 American University International Law Review 413. S K Verma and Kusum (eds.), Fifty Years of the Supreme Court of India - Its Grasp and Reach(New Delhi: Oxford University Press, 2000). |
