Role of Judiciary in Maintaining Rule of Law

Reema Bhattacharya[1] & Sanchit Bhushan[2]

Topics Covered in this article


Rule of law depends on neutral, impartial judges who always say what the law is, not what the law should be. One of the most important tasks of the judiciary is the interpretation of statutes usually when deciding whether a body exceeded its statutory authority or statutory limits.

The question of balancing between the legislative and executive branches the administrative dockets constitute one of the most critical separations of power in Indian law. The judge’s most important work is to interpret the law, not to make the law or make policy.

Determination of ambiguity, which allows judicial interpretations of statutes are difficult to make, under pressure when the legislator attacks the law. Should the judiciary always enforce laws that intentionally violate basic right of individuals, deprive them the due process and the protection of the law, and submit them for any punishment?

Making of judiciary             

Judicial contribution to oppression and tyranny is a classic topic of critical legal theory and of socio legal studies.

Traditionally the judicial participation is social and political contextual factors. Constitution of India validates the separation of power i.e., the power of three pillar of the government has executive, legislature, and judiciary must be separated. i.e., the judiciary must be free from interference of the executive and legislature. And for the protection and maintenance of the rule of law the judiciary must be independent and the independence of judiciary ensures the rule of law.

In Kesavananda Bharti, the Supreme Court enumerated the separation of power between the legislature, executive and judiciary.

Rule of law is the principal that all people and institutions are subject to and accountable to law that is fairly applied and enforced. That is the state or country is ruled by law, it is regarded as the king of kings. Rule of law is inherent attribute of democracy and the good governance. The greatest exponent of rule of law is A.V Dicey. According to him, it has three features:

  1. Nobody punished without the breach of law.
  2. There shall be equality before law.
  3. Predominance of legal spirit.
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The constitution of India is the upper most body which contains rules and laws which govern the people of land and the constitution also includes the rule of law as the basic feature of the constitution.

In Indira Gandhi vs. Raj Narayan, the Supreme Court applied the theory of basic structure. The Supreme Court added the following features as basic features of the constitution to the list of basic feature laid down in Keshwananda Bharti case:

  1. Rule of law.
  2. Judicial review.
  3. Democracy, which implies free and fair elections.

Supreme Court being the supervisor and guardian of the constitution exercises his power to protect and maintain the constitution for the good governance by the judicial activism. And the freedom of judiciary becomes an important pillar to maintain rule of law as the judiciary is the enforcing authority of the rule of law. Rule of law is based on freedom, equality, non-arbitrariness and non-discrimination. Any law made by the legislation must be compliance with these basic features of the constitution and if any law or a part of that which is inconsistent to the rule of law and the basic structure shall be declared void by the Supreme Court and this is done by the judicial activism. It refers to the interference of the judiciary in legislative and executive fields by the judicial review. Judicial review is the re examine or inspection of the laws made by the legislation.

Article 14 of the Indian constitution states the equality before law which is one of the essential of the rule of law that every law made in conformity with the equal protection i.e. all are protected equally. Article 13(1) of the Indian constitution gives power to court to make legislative act unconstitutional which is inconsistent to rule of law and the other basic features i.e. violation or against the law of land.

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As, the rule of law is opposed to the arbitrariness, the article 21 of the Indian constitution gives power to court to check or maintain or protect the liberty and freedoms of the people as the article 21 states that no person shall be deprived of his life and personal liberty except procedure established by law. And the court may be active by issuing writs for check constitutionality of the law. Under article 32 the Supreme Court and under article 226 high courts exercise the writ petition.

By these methods the constitution fulfils all the requirement of Dicey’s theory to be recognized as the judiciary maintains the rule of law.


The experience shows that work can be legitimized through a phenomenon of legal approaches and methods. This has led some to make the assumption that there is no connection between legal methodology and contribution to oppression through the law. Here the researcher draws the conclusion that the situation shows the political side of legal reasoning.

The judge has the wider scope of alternative than just following the law which include the interpretation of statutes.

[1] Assistant Professor, Jagan Nath University.

[2]  Student, Vith Semester, B.A.Llb, Jagan Nath University.