ACKNOWLEDGMENTFirstly, I would like to express my profound sense of gratitude towards the almighty God for providing me with the authentic circumstances which were mandatory for the completion of my project.

Secondly, I am highly indebted to Mr. Nageshwara Rao at Faculty of Constitutional Law, Damodaram Sanjivayya National Law University, Visakhapatnam for providing me with constant encouragement and guidance throughout the preparation of this project.

Thirdly, I thank the Law library staff who liaised with us in searching material relating to the project.

My cardinal thanks are also for my parents, friends who have always been the source of my inspiration and motivation without which I would have never been able to unabridged my project.

My father, a lawyer with large access to books of value has been of great help to me.

Without the contribution of the above said people I could have never completed this project.

Aaditya VasuBA LLB (Hons), 5th Semester3rd YearTable of Contents

1. Introduction

2. Rule of Law under the Indian Constitution..

3. Rule of Law part of the Basic Structure....

4. Put Checks on Governmental Powers..

5. Equality Guarantee and the Protection of Human Rights

6. Judicial Review by an Independent Judiciary......

7. Conclusion

8. Bibliography.

LIST OF CASES

1. SP Gupta v Union of India

2. Indira Nehru Gandhi v Raj Narain

3. State of M.P. v. Bharat Singh

4. Ram Jawaya Kapur v. State of Punjab

5. Som Raj v. State of Haryana

6. Union of India v. President, Madras Bar Association

7. Mahabir Prasad Santosh Kumar v. State of U.P.

8. Maganlal Chhaganlals case,

9. Northern India Caterers case

10. Union of India v. Raghubir Singh

11. Chief settlement Commissioner Punjab v. Om Prakash

12. Binani Zinc Limited v. Kerala State Electricity Board and Ors

13. Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil

14. Sukhdev v. Bhagatram

15. Secretary, State of Karnataka and Ors. v. Umadevi and Ors

16. Amlan Jyoti Borooah v. State of Assam and Ors

17. Bachan Singh v. state of Punjab

18. P. sambamurthy v. state of Andhra Pradesh

19. Yusuf Khan v. Manohar Joshi

20. Frank Anthony Employees Union v. Union of India

21. Nakara v. Union of India.

22. Zee Telifilms v. Union of India

23. C. Ravichandran Iyer v. J.A.M. Bhattacharya

24. In re Vinay Chandra Mishras case

25. DTC v. Mazdoor Congress

26. A.K. Kraipak v. Union of India

27. C.B. Muthumma v. Union of India

28. Air India v. Nargesh Meerza

29. Govt. of A.P. v. P.B. Vijayakumar

30. Madhu Kishwar v. State of Bihar

31.

32. Gaurav Jain v. Union of India

33. I.R. Coelho v. State of Tamil Nadu

34. Satwant Singh

35. Jaisinghanis case

36. Olmstead v. United States:

37. Mohamed v. President of the Republic of South Africa.

38. Glanrock Estate (P) Ltd v. The State Of Tamil Nadu

39. Smt. Shakti Kumari Gupta v. State Of U.P. And Ors.

40. National Human Rights Commission v. State of Arunachal Pradesh and Anr.

41. Erusian Equipment and Chemicals Ltd. v. State of West Bengal and Anr

42. A.K. Chaudhary And Ors. v. The State Of Gujarat And 2 Ors.,

43. A.P.Abbu Gounder v. D.K.Goel

44. Maninderjit Singh Bitta v. Union of India and others

45. Association of Registration of Plates v. Union of India

46. Manohar Lal Sharma v. The Principle Secretary & Others,

47. Madhu Limaye v. Supdt. Tihar Jail Delhi

48. Sanaboina Satyanarayan v. Govt. of A.P

49. Tamil Nadu Electricity Board v. R. Veeraswamy

50. Shankari Prasad v. Union of India

51. Sajjan Singh v. State of Rajasthan

52. Golaknath v. State of Punjab

53. Keshavananda Bharti v. State of Kerala

54. Raman Dayaram Shetty v. International Airport Authority of India

55. In re: Arundhati Roy

56. Sheela Barse v. State of Maharashtra

57. Veena Sethi v. State of Bihar

58. Medical and Educational Charitable Trust v. State of Tamil Nadu

59. Bijoe Emmanuel v. State of Kerala

60. Express Newspapers v. Union of India and in Bennett Coleman v. Union of India

61. K Kunhikoman v. State of Kerala

62. State of West Bengal v. Anwar Ali Sarkar

63. Northern India Caterers Ltd. v. State of Punjab

64. Ameernnisa Begum v. Mehboob Begum

65. Ram Prasad v. State of Bihar

66. E P Royappa v. State of Tamil Nadu

67. Maneka Gandhi v. Union of India

68. Mithu v. State of Punjab

69. Central Inland Water Corporation v. B N Ganguly

70. DTC v. DTC Mazdoor Congress

71. Common Cause v. Union of India

72. Shivsagar Tiwari v. Union of India

73. Francis Coralie v. Union Territory of Delhi

74. Supreme Court Advocates on Record Association v. Union of India

75. In re, Presidential Reference

76. T.N. Godavarman Thirumulpad case

77. ; R D Shetty v. International Airport Authority

78. Ajay Hasia v. Khalid Mujib

79. A L Kalra v. Project &Equipment Corporation

80. Sunil Batra v. Delhi Administration

81. Olga Tellis v. Bombay Municipal Corporation

82. Bandhua Mukti Morcha v. Union of India

83. onsumer Education & Research Centre v. Union of India

84. Bodhisattwa Gautam v. Subhra Chakraborty

85. Munn v. Illinois

86. Parmanand Kataria v. Union of India

87. Paschim Banga Khet Mazdoor Samity v. State of West Bengal

88. Unni Krishnan v. State of

89. Indian Council for Enviro Legal Action v. Union of India

90. M C Mehta v. Union of India INTRODUCTION

Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.

-Plato

Rule of Law is the basic necessity for maintaining peace in the country. Constitution is supreme law of the nation and it is all about politics and as we know politics is all about unpredictability. So in this assignment, I am concerned on the problems which cause threat to the Rule of Law in the society. And what can be done to maintain this Rule in the society for proper functioning of the legislature

India is the largest democratic country in the world. It attained freedom 67 years ago, has a thriving institutions like Parliament, State Assemblies and Panchayat. Our constitution is written in such a manner that everyone would get equal opportunity. Our nation has three organs, namely, executive, judiciary and legislative. All the three are been bestowed with independent and autonomous powers to make and implement the rules depending on the changing society so that the nation can run smoothly.

By exercising the power of adult franchise the common people choose their leaders. The leaders have vision, shape our future and implement peoples programmes. But this is not the truth.

We see stark reality of destitution, malnutrition, illiteracy, joblessness in the independent India. Roughly, 15% of people are well off, economically. They are industrial tycoons, financial conglomerates, politicians, and their touts, media and intelligentsia are in the rich layer and ruthlessly exploiting the rest of us. The majority are living without proper housing, education and healthcare.

Politicians, criminals and police have forged an unholy nexus. As the scams keep multiplying, we, the common people feel shame. The exploitation by leaders who have been mandated to conserve, develop and protect the citizen at large is disgusting. Coffingate was bribe taken by the defence ministry to bury the martyrs of the Kargil war. Bofors gun backpay scandal was alleged in premiership of Mr. Rajiv Gandhi. Tehelka exposed bribes taken by Mr. Bangaru laxman, BJP National President. The involvement of Army in the Adarsh Housing Society episode is damage to our most revered institution. Even the air force and navy personals are deeply involved. Another skeleton has popped of the cupboard, in the form of 2G spectrum, causing a loss of Rs. 1, 80,000 crore to the national exchequer. The undervaluation of Public Sector Unit disinvestment also has been under investigation. A failed public distribution system (PDS) and the Union Food & Agriculture Minister Mr. Sharad Pawar got reprimanded by the Honorable Supreme Court when food grains went rotting instead of reaching the starving millions. The politicians of Uttar Pradesh were siphoning food grains to offshore countries to mint money for themselves, instead of feeding their countrymen and women. The bribes for- loan scam has exposed leading Banks and LIC Housing Fund.

Economic inequality has to be fought on the political plane. The Bihar Assembly election of 2010 has given a new dimension to the nation. The landslide victory for the agenda of development put forth by Mr. Nitish is phenomenal, and has dealt a big blow the caste ridden, divisive, feudalistic and parochial policies of the other leaders.

The concept of Rule of law[footnoteRef:1] is of old origin and is an ancient ideal. It was discussed by ancient Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote: Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state. [1: HM Seervai, The Supreme Court of India and the Shadow of Dicey, in the position of judiciary under the Constitution Of India, pp 83-96 (1970)]

Likewise, Aristotle also endorsed the concept of Rule of law by writing that "law should govern and those in powers should be servants of the laws.

The phrase Rule of Law is derived from the French phrase la principe de legalite (the principle of legality) which refers to a government based on principles of law and not of men. Rule of law is one of the basic principles of the English Constitution and the doctrine is accepted in the Constitution of U.S.A and India as well. The entire basis of Administrative Law is the doctrine of the rule of law.

The Rule of Law, in its most basic form, is the principle that no one is above the law. The rule follows logically from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will.In fact, the Supreme Court has declared the rule of law to be one of the 'basic features' of the Constitution.[footnoteRef:2] [2: Indira Nehru Gandhi vs Raj Narain, AIR 1975 SC 2295, SP Gupta vs Union of India, AIR 1982 SC 149]

Sir Edward Coke, the Chief Justice of King James Is reign was the originator of this concept. He maintained that the King should be under God and the Law and he established the supremacy of the law against the executive and that there is nothing higher than law.

Later, Albert Venn Dicey[footnoteRef:3]developed the concept in his book The Law of the Constitution.[footnoteRef:4] His writing on the British Constitution (which is unwritten) included three distinct though kindered ideas on Rule of law: [3: A British Jurist and Constitutional theorist] [4: (1885)]

1. Absence of discretionary powers and supremacy of Law: viz. no man is above law. No man is punishable except for a distinct breach of law established in an ordinary legal manner before ordinary courts. The government cannot punish any one merely by its own fiat. Persons in authority do not enjoy wide, arbitrary or discretionary powers. Dicey asserted that wherever there is discretion there is room for arbitrariness.

2. Equality before law: Every man, whatever his rank or condition, is subject to the ordinary law and jurisdiction of the ordinary courts. No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land.

3. Predominance of legal spirit: The general principles of the British Constitution, especially the liberties and the rights of the people must come from traditions and customs of the people and be recognized by the courts in administration of justice from time to time.

The expression rule of law is one which, over the years, has been used to convey a wide variety of ideas and has a number of meanings and corollaries including their criticisms. In common parlance it is often used simply to describe the state of affairs in a country where, in the main, the law is observed and order is kept i.e., as an expression synonymous with law and order. To public lawyers, however, the phrase conveys something a little more precise. For them, the phrase is inextricably linked with the writings of Dicey.The term rule of law is not used in the Indian Constitution anywhere, but 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, so this principle cannot be taken away even by a constitutional amendment. In this assignment I will try to focus on the Indian conception of the rule of law is both formal and substantive. It is also seen as an integral part of good governance.The State of M.P. v. Bharat Singh[footnoteRef:5] also did not raise any question about Diceys Rule of Law, though it did raise a question about the Rule of Law in the strict legal sense. In Bharat Singh case, it was contended that as the executive power of the State was co-extensive with its legislative power, an executive order restricting the movements of a citizen could be passed without the authority of any law, and the Supreme Courts decision in Ram Jawaya Kapur v. State of Punjab[footnoteRef:6] was relied upon to support the contention. The Supreme Court could have pointed out, but did not, that the principle of Kapur case directly negatived the contention when that case held that though the authority of law was not necessary for Government to carry on trade, such authority was necessary when it became necessary to encroach upon private rights in order to carry on trade. The Supreme Court distinguished Kapur case on the ground that it involved no action prejudicial to the rights of others. Even so, Bharat Singh case is really disposed of by the courts observation that every act done by the Government or by its officers must, if it is to operate to the prejudice of any person be supported by some legislative authority, for that is the strict legal meaning of the Rule of Law. For reasons which I have already given, it was wholly unnecessary to refer to the first meaning which Dicey gave to the Rule of Law, or to Diceys contrast between the English and the Continental systems. [5: AIR 1970 SC 1170] [6: [1955] 2 SCR 225]

The Supreme Court observed in Som Raj v. State of Haryana that the absence of arbitrary power is the primary postulate of Rule of Law upon which the whole constitutional edifice is dependent. Discretion being exercised without any rule is a concept which is antithesis of the concept.Rule of Law under Indian ConstitutionIn India, the concept of Rule of law can be traced back to the Upanishads. In modern day as well, the scheme of the Indian Constitution is based upon the concept of rule of law. The framers of the Constitution were well familiar with the postulates of rule of law as propounded by Dicey and as modified in its application to British India. It was therefore, in the fitness of things that the founding fathers of the Constitution gave due recognition to the concept of rule of law.

The doctrine of Rule of Law as enunciated by Dicey has been adopted and very succinctly incorporated in the Indian Constitution. The ideals of the Constitution viz; justice, liberty and equality are enshrined in the Preamble itself (which is part of the Constitution).

The Constitution of India has been made the supreme law of the country and other laws are required to be in conformity with it. Any law which is found in violation of any provision of the Constitution, particularly, the fundamental rights, is declared void. The Indian Constitution also incorporates the principle of equality before law and equal protection of laws enumerated by Dicey under Article 14.

Constitution of India: Article 14:- Equality before law The State shall not deny to any person equality before law or equal protection of laws within the territory of India.

The very basic human right to life and personal liberty has also been enshrined under Article 21. Article 19(1) (a) of the Indian Constitution guarantees the third principle of the Rule of law (freedom of speech and Expression). No person can be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence is also very well recognized in the Indian Constitution. The principles of double jeopardy and self-incrimination also found its rightful place in the Constitution. Articles 14, 19 and 21 are so basic that they are also called the golden triangle Articles of the Indian Constitution.

The Constitution also ensures an independent an impartial Judiciary to settle disputes and grievances for violation of fundamental rights by virtue of Articles 32 and 226. In Union of India v. President, Madras Bar Association[footnoteRef:7], the Supreme Court 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. [7: CIVIL APPEAL NO 3067 OF 2004]

Justice R.S. Pathak of the Honble Supreme Court has observed that It must be remembered that our entire constitutional system is founded on the rule of law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.

In Mahabir Prasad Santosh Kumar v. State of U.P., the District Magistrate had cancelled the license granted under the U.P. Sugar Dealers Licensing Order, 1962 without giving any reason and the State Government had dismissed the appeal against the said order of the District Magistrate without recording the reasons. This Court has held: The practice of the executive authority dismissing statutory appeals against orders which prima facie seriously prejudice the rights of the aggrieved party without giving reasons is a negation of the rule of law.In S.P. Gupta case, the petitioners had raised the question of alleged misuse of power of appointing and transferring the Judges of the High Court by the Government. In order to make sure that the power of appointment of Judges was not used with political motives thereby undermining the independence of the judiciary, the petitioners sought information as to whether the procedures laid down under Articles 124(2) and 217(1) had been scrupulously followed. Here the right to information was a condition precedent to the rule of law. Most of the issues, which the Mazdoor Kisan Shakti Sangathan of Rajasthan had raised in their mass struggle for the right to information, were mundane matters regarding wages and employment of workers, such information was necessary for ensuring that no discrimination had been made between workers and that everything had been done according to law. The right to information is thus embedded in Articles 14, 19(1) (a) and 21 of the Constitution

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