Enforcement of Rights and Laws

The true test to determine if a society is governed by the rule of law lies in the enforcement of its laws and the ability to protect the rights of citizens. The proper performance of the executive and judiciary is key to achieve such a society. The primary reason attributed to the permanent dichotomy of the rule of law in India is improper implementation of laws and the lacunae in enforcement of rights. The chapter attempts to identify and analyse various reasons for improper implementation of the laws and the inability of citizens to enforce their rights. It also examines whether the crippling judicial delay is a significant contributor to the defects in enforcement.

Quest for Reason

This chapter comprises the conclusions derived from the analysis in the previous chapters. The major conclusions, relating to (i) the theoretical foundations of the rule of law in India and (ii) the reasons for the permanent dichotomy regarding the status of the rule of law, are discussed. The exercise and application of Reason is fundamental to the rule of law in India. The lack of such reason and its replacement with violence is the major challenge to the rule of law in India. In addition, the challenges to equality, the lack of internalisation of legalism and the continued convergence of legality and illegality in everyday affairs has meant that the quest for the rule of law is facing serious challenges in India.

Rule of Law in Practice

In the first part, the interpretation and application of the rule of law by Indian courts, primarily the constitutional bench of the Supreme Court of India is analysed. A review of the major principles laid down by the Supreme Court in relation to equality and liberty is followed by a critical examination of the innovative jurisprudence developed by the Court while interpreting Article 21. The principles of judicial independence, separation of powers, and evolution of the basic structure doctrine, as well as their relationship with the rule of law is critically evaluated. In the second part the political understanding of the rule of law is examined, particularly focusing on Nehru’s comment that the rule of law should follow the ‘rule of life’ and its meaning and continued impact on lawmaking. The chapter concludes by identifying four broad themes of the Rule of Law in India.

India’s Rule of Law

The provisions of the Constitution, mainly the Preamble and Parts III and IV are examined and analysed to evaluate if they go beyond formalism. Focusing on equality, fraternity, and liberty as revolutionary concepts that were introduced by the Constitution, this chapter seeks to answer the question whether the Constitution heralds a complete break from India’s past. The Constituent Assembly debates and the works of Ambedkar, Baxi, Austin, Khilnani, Mehta, and Kothari are reviewed and analysed to understand the values and choices made in the Constitution and whether they were a mere continuation of existing values and choices or if they were a completely new set of values and choices. An extremely important factor that needs to be studied in the Indian context is the central role attributed to the state in the fulfilment of political, social, and economic goals.

Meaning of Rule of Law

This chapter analyses the theoretical and practical meaning of the term ‘Rule of Law’. Shklar’s categorization of the rule of law theories into the Aristotelian and Montesquieu archetypes on the basis of political objectives and the organization of the state and the distinction between the thin and thick theories is discussed to explain the various components that comprise the rule of law. The relationship between such components and various political, social, and economic choices is examined to lay the ground for understanding the choices made in the Constitution and their impact on the rule of law. To explain and analyse the practical approaches to the rule of law, the primary focus is on understanding its various components as identified by various groups. As the WJP’s approach is the most comprehensive approach currently available, the factors identified by them are explained in considerable detail.

Rule of Law and Lawmaking

A dysfunctional legislature and a powerful executive severely weakens the rule of law. Lawmaking should not become an exercise of power by the majority but instead strictly adhere to the legal process which includes dialogue, reasoning, and open debate. By examining the functioning of Parliament and state legislatures over the years, the adherence, or otherwise, to the established process in the making of laws is critically analysed. The nature of the modern state, particularly a state that has a primary role in the social and economic life of society, has meant a regular exercise of the power of delegated legislation. Delegated legislation is accompanied by the threat of an arbitrary exercise of power as well as the influence of irrelevant considerations in decision-making. Using specific examples, the chapter examines whether the use of delegated legislation in India has been a threat to the Rule of Law.