Critical Study on Rule of Law in India in 21st Century

Apratim De[1]

“Democracy must be built through open societies that share information. When there is information, there is enlightenment. When there is debate, there are solutions. When there is no sharing of power, no rule of law, no accountability, there is abuse, corruption, subjugation and indignation.”- Atifete Jahjaga[2]

The Constitution of India is the supreme authority in India, therefore the Indian constitution is sometimes called as mixed-bag as it has been drafted after bringing out the best provisions from the various constitutions of the different countries of the world. The preamble of the Indian constitution also sets out the principle of rule of law. Many a times the welfare schemes and policies often come in to a conflict with the rule of law because it affects the individual freedom and liberty in different ways.  But the rule of law lays more emphasis on fair play and greater accountability of the administration.

In his work The Law of the Constitution (1885) Dicey has highlighted about the rule of law and suggested three different meanings for it which are as follows: –

 (i). No punishment may be inflicted other than for breach of law.

(ii). All are equal before the law irrespective of their position and status in the society.

(iii). Rights and Freedoms are best protected under the common law.

So as we have discussed above about Dicey’s definition for Rule of Law but still an important question which still remains unanswered is that whether Dicey’s Rule of Law is relevant in the twenty first century or not.

Before finding an answer to this question we all need to understand that the society in which we all are residing is not static but is dynamic so as a result of it to control and manage such changes in the society laws has to be reformed and updated from time to time. Best example of this can be the amendment of Juvenile Justice Act 2015 under which now even the teenagers who will be found guilty of committing heinous crimes will be treated as adult criminals and will be punished accordingly so this amendment came up after the Delhi Gang Rape Case where one of the offender was found to be a minor and was found guilty of committing the crime and was the most ferocious one in committing the rape. So as a result of it became necessary that strict laws should be implemented against the juveniles as well as nowadays they are also capable and are indeed committing such heinous crimes.

Also Read  Legalizing Gay Sex: Natural way to deal with Unnatural Offences

On the other hand, if we look at the same amendment then we can see that how the Indian Legal System from time immemorial has been a victim of political vendetta and is being used by the politicians to fulfil their own motives. This amendment is also one such politically motivated action as though this amendment was made to punish the Juvenile Offenders who are involved in committing heinous crimes and starting with this one who was involved in Delhi Gang Rape case but interestingly this amendment came into effect after the Juvenile offender who was involved in Delhi Gang Rape Case was acquitted. Then if we look at the Babri Masjid demolition case once again it is a result of sheer procrastination on the part of Indian Judiciary a case which could have been resolved even before the dispute has arose ultimately resulted in brutal killing and riots only just because the politicians had an upper hand over the law and the law enforcers heat of which is still felt by many of us today. Other than this if we took at the Bhopal Gas Tragedy we can see that once again the offenders were not bought to the justice as political power once again overpowered the Indian Judiciary and Public Morality.

So the above instances clearly show that the authorities who are propounding the rule of law in India needs to be safeguard against the political vendetta of power hungry politicians and the ruling parties.

But at the same time we must not forget about the vital role played by Indian Judiciary in maintaining law and order in the society. Like the Right to Privacy is now a fundamental right as the decision given by the apex court in Justice KS Puttuswamy’s case in which the nine judges bench of Supreme Court of India has unanimously overruled the judgement of Kharak Singh and MP Sharma’s case. Then secondly the SC of India in its landmark decision has declared that the practice of triple talaq is unconstitutional and hence it is forbidden by law. In this case the judgement was given by a majority of 3:2 where Justice Lalit held that instant Triple Talaq is violative of Article 14 while Justice Nariman held that the practice of Triple Talaq is against the Shariat laws and the basic tenets of the Quran.[3]

Also Read  Evolving IP Issues and Cyber Laws

Moreover, the landmark judgement given by the Supreme Court in the case of Abhiram Singh versus C.D. Commachen the seven judges bench by a majority of 4:3 headed by CJI T.S. Thakur had held that seeking vote in the name of caste or religion is a corrupt practice and also while the bench interpreted Sec 123(3) of the Representation of People’s Act observed that “We will not go into the larger debate as to what is Hindutva or what is its meaning. “We will not re-consider the 1995 judgement and also not examine Hindutva or religion at this stage. At this stage, we will confine ourselves to the issue raised before us in the reference. In the reference, there is no mention of the word ‘Hindutva’. If anybody will show that there is a reference to the word ‘Hindutva’, we will hear him. We will not go into Hindutva at this stage.”

So the above mentioned judgements shows that in the recent years how the Indian Judiciary has been able to overcome the political supremacy and interference and has been able to function as a separate organ as a whole as mentioned in the constitution. Now, as far as we have talked about the relevance of Rule of Law in India in the twenty first century and the functioning of judiciary let us now talk about Executive Arbitrariness which is also very harmful for the Indian Democracy.

Executive Arbitrariness simply means biased actions by the executives or the law enforcers of the country. The best example of executive arbitrariness is the national emergency proclaimed by the Indira Gandhi government on 25th June 1975 and which lasted up to 21st March 1977. During this emergency the executives were given authority to exercise their powers arbitrarily as a result of which freedom of press was suspended along with this a forced mass sterilization campaign was started by Sanjay Gandhi as a measure to control the population of the country as a result of which people were forcefully sterilized against their will so that they cannot give birth to their children. Moreover, nobody can raise their voice against the government or else they were put behind bars under the Maintenance of Internal Security Act (MISA) as a result of which several political leaders were put behind the bars for raising their voice against the government.

Interestingly the Indira Gandhi government during the 1975 emergency had also tried to omit the role of judiciary by bringing in the 42nd amendment as a result of which all the actions taken during the emergency cannot be challenged in the HC or SC during or after the end of emergency. So this action gave excessive powers to the executives as any action performed by them during emergency cannot be challenged before the court as a result of it gave undue powers to them which were in turn misused by them.  Moreover, the 42nd amendment took away many of the powers of the supreme court and clearly gave excessive powers and authority to the central government simultaneously it had reduced the powers of the state government and had given unrestrained powers to the parliament to amend any part of the constitution. So many people refer the 42nd amendment as ‘mini constitution or constitution of Indira.’ Though after the 1975 emergency such situation has not arisen so far but still the corrupt executives and politicians remains a severe threat to the Indian democracy.

Also Read  A Discourse On Cyber Crime Against Women: Problems And Prospects

So in order to preserve the democracy of our country the system of check and balance has to be implemented and followed more cautiously as because this is the only way to preserve the democracy of our country. Moreover, the system of check and balance also helps each of the three organs to keep a check over the action of the other and at the same time can work collectively rather than working individually.

Moreover, Democracy and Rule of Law are interrelated to each other because as long as the law and order is maintained in a country the citizens of the country are law abiding and equality remains the main essence for dispensing justice till then a nation can remain democratic but as soon as the people of a country stops abiding the law and order then tyranny and despotism over powers democracy. So in the end let’s remember that democracy prevails as long as people of good conscience raise their voice against the oppressors and wrong doers and as Plato said “Dictatorship naturally arises out of democracy, and the most aggravated form of tyranny and slavery out of the most extreme liberty.”[4]


[1] Student, 3rd yr., New Law College Bharti Vidyapeeth Deemed University Pune.

[2] Rule of Law Quotes, BRAINYQUOTE (November 28, 2019), https://www.brainyquote.com/topics/rule_of_law.

[3] Ashok KM and Apoorva Mandhani, Read 25 important judgement of Supreme Court of India delivered in 2017, LIVELAW (November 28, 2019), http://www.livelaw.in/read-25-important-judgment-supreme-court-india-delivered-2017/.

[4] Tyranny Quotes, BRAINYQUOTE (November 28, 2019), https://www.brainyquote.com/quotes/plato_159574?src=t_tyranny.