Role of judiciary in maintaining rule of law

Neha Jain[1] & Sambhav Jain[2]


Rule of law is one of the basic invisible/unsaid principles that influenced our founding fathers in the framing of the Constitution. The phrase “Rule of Law”, said to be derived from Latin Phrase La Legalite, connotes government on principles of law and not of men[3]. It is one of the fundamental principles that indicate of the well-being of any state. In the words of Mr. Naziruddin Ahmad, an eminent scholar, “Democracy means a rule of law as opposed to a rule of force and supremacy of the law where no one, be he the highest individual, is above the law”.[4]

Although the concept was borrowed from Britain, it has its prominence in ancient India in the form of dominance of the ‘Dharma’—which was essentially doing what one is supposed to do. This dharma was then replaced by religious scriptures and the priests. With the advent of the Britishers and codification of laws, religious scriptures lost their importance and were replaced by written laws and, the concept of Rule of Law was formalized.[5]

The Rule of Law provides a potent antidote to executive lawlessness and runs like a golden thread in our Constitution.[6] The basis of this doctrine is that whoever has power, they themselves are subject to restraints on the exercise of the same, which consequently establishes supremacy of law that cannot be surpassed by any authority. Originally advocated by A.V. Dicey, a British Jurist, this doctrine firmly stands on three pillars, namely, supremacy of law, equality of law and predominance of legal spirit[7]. The dynamic nature of this doctrine allows protection from arbitrary and calculated moves of the executive, as was seen in Indira Gandhi v. Raj Narain[8] which invalidated the 39th Constitutional Amendment that brought clauses (4) and (5) of Article 329.

Inclusion of rule of law in Indian constitution

Even though one cannot precisely and scientifically define the term Rule of Law, the importance of the same cannot be dismissed and/or ignored. This term is not expressly defined in the Constitution of India. However, it is implied in the Preamble and the Golden Triangle of Articles, i.e., Article 14, Article 19 and Article 21[9]. Additionally, the provisions of the Constitution of India have been enacted with a view to ensure the Rule of Law[10]. Through the judgments pronounced by the Courts it is laid down that the application of Rule of Law cannot be limited, and a broad and liberal interpretation of the same has to be followed.

The historic case of Keshavananda Bharti v. State of Kerala[11] brought about a new perspective to Constitutional law in the country. Passed by a wafer thin majority of 7:6 judges, this case established the doctrine of “Basic Structure”. The central idea of this doctrine is that the main essence of the Constitutional provisions is immune from amendment by the Legislative or Executive organ (in cases of delegated legislation) of the Government. Rule of Law has been recognized, a number of times, as forming a part of the unamendable basic structure of the Constitution[12]. Holding it to be a facet of the Right to Equality guaranteed under Article 14 of the Constitution of India and that the breach of Rule of Law amounts to negation of equality, the position of the same is further elevated[13]. This makes the importance and superiority of Rule of Law in the country evident.

The prominence of this concept dates to even before recognition of the concept of Basic Structure as discussed above. In S.G. Jaisinghani v. Union of India[14], a five judge bench, held that “In a system governed by Rule of Law, discretion when conferred upon executive authorities, must be clearly confined within clearly defined limits … If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law[15]”. Further the Apex Court in P. Sambamurthy v. State of Andhra Pradesh[16] held that “it is the basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but also must be in accordance with law[17].” The obligation to protect, preserve and maintain the Rule of Law in society has been entrusted with the State[18].

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“In our constitutional system, the central and most characteristic feature is the concept of rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the matter into notice.[19]” The Judiciary has been entrusted with the duty of interpretation of the provisions of the Constitution. Therefore, along with this comes the duty of maintaining the doctrine of Rule of Law in all its decisions and judgements. This maintenance and prevalence of Rule of Law is successfully done by the judiciary with the help of some provisions that are discussed in the following paragraphs.

Judicial review

Democracies run on the premise of limited governmental power and maximum governance, on the bedrock of Rule of Law. But due to culmination of idea of welfare State, the role of governmental functioning has experienced a notable shift. This shift has resulted in greater discretionary power to the executive leading to the possibility of imbalance. This imbalance necessitates the need for a mechanism to check unbridled power of the Executive. The most effective means to this end is Judicial Review. As expressed by the Supreme Court in Tata Cellular v. Union of India,[20] “the judicial power of review is exercised to rein in any unbridled executive functioning.[21]

The power of judicial review to determine the validity of executive’s decision is based on the principle of Separation of Power and should be exercised to make sure that the government operates within the boundaries of law. Rule of Law, in true sense, can be achieved through impartial and continuous involvement of independent and separate Judiciary. In India, judicial review is an integral part of the Constitutional system[22], and in its absence, “the rule of law would become a teasing illusion, and a promise of unreality.”[23]

Though the Constitution does not mention the term Judicial Review, it is evident by virtue of Article 13 read with Articles 32 and 226. “Judicial review thus is an incident of and flows from the constitution to securing and protecting the welfare of the people as effectively as it may, according justice __ social, economic, and political in all the institution of national life”.[24] In S.R. Bommai v. Union of India[25]it was reiterated that the judicial review is a basic feature of the Constitution.

The foundation of the power of Judicial Review of the Supreme Court of India was firmly laid in A.K. Gopalan v. State of Madras[26]. This case not only deliberated on the principle of Judicial Review and the basis on which it would develop in future, but also evolved a set of fundamental guidelines for judicial approach to the Indian Constitution. The Apex Court is entitled to put this power to use for invalidating an executive order or legislative enactment if:

  • Violation of fundamental rights takes place;
  • Act done by the authority is outside its competence; and
  • Violates the constitutional provisions.

Power of Judicial Review of Courts has worked as a beacon to protect the fundamental rights envisaged by the Constituent Assembly. Article 32, in particular, is the “ultimate repository and guardian of the rights and liberties of the people”.[27] This Article, being a Fundamental Right itself, works as a guard to protect other Fundamental Rights enshrined in Part III. The Fundamental Rights are inherent and cannot be abridged by any statutory provisions. Any law that abrogates rights such as right to equality, right to freedom, right against exploitation, right to freedom of religion and cultural and educational rights, would violate the Basic Structure doctrine. Protection of these rights through the tool of judicial review not only helps to maintain the dignity of an individual, but also paves the way for the establishment of Rule of Law.

The power of judicial review conferred on High Courts under Article 226 of the Constitution to issue directions, order or writ to any person or authority, including any government to enforce fundamental rights and, for any other purpose; is wider than Article 32. Unlike Supreme Court High Court under Article 226 is empowered not only to exercise the enforcement of Fundamental Rights but can also be exercised “for any other purpose” as well i.e. for enforcement of any legal right conferred by a statute, etc.[28]

Therefore, the Supreme Court along with the High Courts are endowed with the power of judicial review essentially for the purpose of maintaining primacy of Rule of Law by preventing the violation of the essence of the Constitution.

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Article 141: Binding value

The Supreme Court of India, being the Apex Court, has been entrusted with the duty of interpretation of constitutional provisions. The jurisdiction of the Court is, therefore, vast and expansive. Since it is the highest authority, it aims at establishing continuity and uniformity in the decisions of the various courts, thereby consequently upholding the Rule of Law. This is enabled by Article 141 in the Constitution which makes the Supreme Court decisions binding on the lower courts.

Article 141 of the Constitution reads as follows:

“Law declared by Supreme Court to be binding on all courts The law declared by the Supreme Court shall be binding on all courts within the territory of India”

Since every case has different facts and circumstances, the entire judgment is not made binding. It is only the ratio decidendi of the judgment that is made binding on the future decisions. Ratio decidendi refers to the legal reason or rationale behind the decision or how the decision was reached by the judges which essentially comprises of the Doctrine of Rule of Law and predominance of the legal spirit. Therefore, the principles of ratio decidendi along with the doctrine of stare decisis operate together to enable some degree of uniformity in cases.

The intention of the Constitution makers of establishing a certain extent of uniformity in the decisions consequently results in the maintenance of Rule of law by the judiciary. It has been held in numerous cases that “the true effect and intent of the provisions of the Constitution, and all other legislative enactments made by the Parliament, and the State legislatures, are understood in the manner they are interpreted and declared by the Supreme Court, under Article 141[29].” Additionally, it is also the understanding and interpretation of the Courts that “When this Court decides questions of law, its decisions are, under Article 141 binding on all courts within the territory of India and so it must be the constant endeavor and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country[30].”

“Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis, etc. These rules and principles are based on public policy and if these are not followed by the courts then there will be chaos in the administration of justice.[31]

Public Interest Litigation

In addition to judicial review and Article 141 as discussed in the aforementioned paragraphs, the tool of Public Interest Litigation also helps the Judiciary is performing the role of watchdog of Rule of Law. Public Interest Litigation (or PIL) relaxes the locus standi allowing a third party to the dispute to approach the Courts in case of any violation of rights. First used in the case of Husainaara Khatoonv. State of Bihar[32], this tool was used to provide justice to the under-trial prisoners who were still behind bars despite having completed more than the maximum punishment for their respective offences. More recently PIL was used in the case of Vishakha v. State of Rajasthan[33], the judgment of which led to the establishment of the Vishakha guidelines against Sexual Harassment which eventually paved way for the Sexual Harassment of Women at Workplace Act, 2013. In both these cases, there was a clear violation of Fundamental Rights and, above all, Rule of Law and these cases were instituted by parties not involved in the dispute. This tool makes it easier for those victims to get justice who are not able to fight for themselves thereby widening the powers of judiciary in maintaining the rights of citizens and ultimately, the prevalence of Rule of Law in the society.

Presidential reference

The President also has an additional power to assist judiciary in maintaining Rule of Law. This power is that of Presidential Reference as incorporated under Article 143 of the Constitution of India which is also called the “Advisory Jurisdiction”. This Article provides that in cases which, according to the President, involve a substantial question of law or a matter of public importance that needs to be decided, that particular case may be referred to the Supreme Court for its opinion on the issue. This, thereby, enables the Supreme Court in deliberating over legal points that have not arisen before it in the judicial proceedings. It is the discretion of the Supreme Court as to whether or not an opinion has to be given by it[34]. The decision, if given, however, is not “law declared by the Supreme Court[35]” but has a high persuasive value. The Supreme Court is free to re-examine the decisions and make the required changes, if any.

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The Apex Court in Union of India v. President, Madras Bar Association held that “Rule of Law has several facets, one of which is that disputes of citizens will be decided by Judges who are independent and impartial; and that disputes as to legality of acts of the Government will be decided by Judges who are independent of the Executive.” This itself throws light on the role of judiciary in maintaining Rule of Law in the country. This concept forms the foundation of an orderly democratic society and the organ of the Government responsible for keeping this foundation solid is the Judiciary of the country. 

With the presence and usage of the aforementioned tools and provisions, and more, it becomes a well-established fact that the concept of Rule of law in India has increasingly diversified and expanded. By recognizing it as the basic structure, it has been given the same Constitutional position as the ideals of liberty, equality, fraternity, etc. and thus, its importance cannot be neglected. Rule of Law is not just recognized as being essential only in India, but has the same significance in countries all across the globe. An example of this is the historic Magna Carta of 1215 which embodies this concept by asserting individual dignity and basic right of lawful judgement as the law of the land[36].

The doctrine of Rule of Law is a living institution and its growing dimensions embody within it a dynamic and living necessity of an advancing society. Without this doctrine the society will disintegrate and law will cease to be law, thereby making it a vital component of law that unites people and works as a soul of a republic. Such an important doctrine can be protected only by the Judiciary and justice, in true sense of the word, can be served only when the judiciary effectively fulfils its role as the protector of Rule of Law.

[1] Student, Rajiv Gandhi National University Of Law, Patiala, Punjab.

[2] Student, Rajiv Gandhi National University Of Law, Patiala, Punjab.

[3] John Adams, Massachusetts Constitution (1780).

[4]  Constituent Assembly Debate 8, (13th June 1949).

[5] Dr. Rabindra Kr. Pathak, The Virtue of Rule of Law, 05 RMLNLUJ (2015).

[6] Soli J. Sorabjee, The Rule of Law: A Moral Imperative for the Civilized World, 6 SCC J-27, (2014).

[7] A.V. Dicey, The Law of Constitution (1885).

[8] Indira Gandhi v. Raj Narain, (1975) 2 S.C.C. 159.

[9] State of Tamil Nadu v. State of Kerala, (2014) 12 S.C.C. 696.

[10] supra note 6.

[11] Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225.

[12] supra note 7.

[13] Subramanianm Swamy v. CBI, (2014) 8 S.C.C. 682.

[14] S. G. Jaisinghani v. Union of India, A.I.R. 1967 S.C. 1427.

[15] Id. at para 14.

[16]  P. Sambamurthy v. State of AP, A.I.R. 1987 S.C. 362.

[17] Id.

[18] Yusuf khan v. Manohar Joshi (2000) 2 S.C.C. 696; Raghubir Singh v. State of Haryana, A.I.R. 1980 S.C. 1087.

[19] Chief Settlement Commissioner, Punjab v. Om Prakash, A.I.R. 1969 S.C. 33.

[20] Tata Cellular v. Union of India, (1994) 6 S.C.C. 651.            

[21] supra note 17 at p. 651, 676.

[22] Supra note 9.

[23] C.K. Takwani, Lectures on Administrative Law 277 (Eastern Book Company, 2016).

[24] Krishna Swami v. Union of India, (1992) 4 S.C.C. 605.

[25] S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1.

[26] A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27.

[27] supra note 6.

[28] State of WB v. Committee for Protection of Democratic Rights, State of WB, (2010) 3 S.C.C. 571.

[29] Supreme Court Advocates-On-Record Association v. Union of India 2015 S.C.C. OnLine S.C. 388.

[30] supra note 13.

[31] Govt of A.P. v. A.P. Jaiswal, (2001) 1 S.C.C. 748.

[32] HussainaraKhatoon& Ors v. State of Bihar, (1995) 5 S.C.C. 326.

[33] Vishaka & Ors v. State of Rajasthan, A.I.R. 1997 S.C. 3011.

[34] In Re the Kerala Education Bill, 1957.

[35] Indian Consti. Article 141.

[36]  Magna Carta, chap. 39 (1215).