January 23, 2022

Evolution of the Rule of law in India


Administrative law is a historical concept -its philosophies and techniques are what mandates it in the present world.[1] With time, it develops, however, retaining principles that have formed the basis of this law. They have not lost their underlying ideologies, but have been amended with time to fit the legal system accordingly, for example, be the separation of powers between the legislature, judiciary, and executive, could be one and another would be the Rule of law. It is an ideal that ensures justice, equality, and fairness[2], preventing arbitrariness on the government’s side.

It can be inferred that the Rule of law (Dicey’s interpretation) has three essential features (i) supremacy of law (ii) equality before the law (iii) judge-made law. This ideal is what prevents the state from turning into a totalitarian authority since it helps preserve the structure of the democratic values.[3] Democratic values also include individual rights (Fundamental Rights), significantly being the protection of freedom of thought, freedom to practice any religion, freedom of choice of work, and liberty to necessary living facilities.[4] When individuals assert their rights, it helps preserve the democratic structure, since it is this respect that forms the basis for a democratic society, ethically and morally.

The basic concept of the Rule is that its representatives govern the state. Hence, it can be said that the Grundnorm of the country would be one that enshrines the Rule of law[5]. Grundnorm is the basic or core structure from which the government derives its authority. Usually, this is the constitution of every country. A country’s representative and for that reason, even the monarch, derive their power from the grundnorm, not vice versa. The king is not the law, but the law is king.[6] The grundnorm is such that it limits any authorities’ power through its constitution. Additionally, people must be governed by the rules that are known, specific, general, and equal before. It is only when the law is efficient and effective, that the government secures the lives of its citizens without violating their right to benefit.

The phrase has been derived from the French term, la principle de legalite, which stands for the principle of legality. This principle holds that the government is based on rules made by laws and not men[7]. While this term had been taken from England, the country, however, never believed that administrative law existed for the longest time. The concept flowed into the country through the Droit administrative system, otherwise known as the French legal system.

India incorporated the theory of the Rule of law from the legal system of Britain, which itself interpreted the concept from the legal principles of France. It was the postcolonial era that introduced this legal concept concerning the constitution. Although this was nowhere explicitly mentioned was, however, questioned and recognized in the case of ADM Jabalpur v UOI[8]. The issue before the Court was “whether the rule of law was present in the constitution other than Article 21”. This issue arose when rights under Articles 14, 21, and 22 were suspended during the proclamation of an emergency. The majority judgment ruled in the negative. However, Justice H.R Khanna delivered a dissenting opinion and held that –

“Even in the absence of Article 21 in the Constitution, the state has no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…”[9]

The importance of the Rule of law lies in the regulation of powers exercised by government authorities. Since the scope of our legal system is extensive and diverse, it becomes imperative to maintain checks and balances concerning the Administrative Actions that directly or indirectly affect an individual’s rights guaranteed by the constitution. The case of Som raj v State of Haryana[10] acknowledged the existence of the Rule of law and added the absence of arbitrary power as a vital aspect.

To further maintain a good standard of checks and balances on the actions of Administrative authorities, the Court in the case of Union of India v Raghubir Singh[11] held Independence of the judiciary and the supremacy of courts as a critical element of the Rule. Furthermore, the Rule of law also entails that a specific procedure is to be followed in the exercise of power affecting the rights of the citizen. Acts contrary to the due process of law can be held as a violation of said law. Article 21 clearly states that a ‘procedure established by law’ has to follow when a citizen’s right to life and liberty has been infringed. The Court, in the case of Commissioner of Punjab vs. Om Prakash,[12] observed that the essential feature of the Indian constitution is the Rule of law. If any administrative action does not meet the standard, then it shall be set aside if the aggrieved person brings forth the matter.

The most critical case in Indian Judicial History with respect to the Rule of law was the Kesavananda Bharti v State of Kerela[13] case, where it was added to the basic structure of the constitution, to be upheld at all times. This marked a permanent establishment of Dicey’s theory of the Rule of law in the Indian legal system. In another case of Sukhdev v Bhagatram[14], Justice Mathew J. ruled that having a democracy where the executive possessed arbitrary power would be to the collapse of the country, as it would become one lead by individual interest.

The Rule is a well-recognized theory in India upheld over time to strike a balance between Administrative/executive action and infringement of an individual’s rights. We can state that the Rule of law is subjected to law, morality, and justice since it forms a fundamental element of democracy and competent authority. It prevents wars and maintains a check on the protection of Human Rights. However, it has not been sufficiently maintained in India due to multiple frauds In the last decade, a clear sign of abuse of administrative power and action, thus, a violation of said law. Its necessity cannot be denied in a country, and its development and maintenance must be kept in mind with the progress of the nation.


[1] P.B Mukherji, “ADMINISTRATIVE LAW”, 1958

[2] James Dobbins, Seth G. Jones, Keith Crane and Beth Cole DeGrasse,”The Beginner’s Guide to Nation-Building”, 2007

[3] Id.

[4] Id.

[5] Mridushri Swarup , Kelsen‟s Theory of Grundnorm‟

[6] Thompson Paine, “common sense”

[7] Id.

[8] (1976) 2 SCC 521

[9] Id.

[10] 1990 AIR 1176, 1990 SCR (1) 535

[11] 1989 AIR 1933, 1989 SCR (3) 316

[12] 1969 AIR 33, 1968 SCR (3) 655

[13] AIR 1973 SC 1461

[14] AIR 1975 SC 1331, 1975 (30) FLR 283

Author Details: Janavi Venkatesh (OP Jindal Global University)

The views of the author are personal only. (if any)

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