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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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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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.
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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). |
