Constitutionalism and the rule of law are the twin pillars of modern public law. They provide the normative and structural safeguards necessary to prevent the exercise of arbitrary state power. The basic tenet of constitutionalism is that a government cannot possess or exercise an authority that is not limited by a fundamental law to which it is subjected to. It opposes the notion of arbitrary or unlimited power by asserting that state power must operate under clearly laid-down legal and procedural constraints. Rule of law, as expounded by A.V. Dicey, is a doctrine that law must have absolute supremacy over individual, that all are equal before the law, and that the law follows from specific principles.
The concept of the rule of law has evolved significantly from theoretical foundations to modern-day judicial decisions, emphasizing the necessity of protecting personal rights of citizens against the state. Indian public law jurisprudence presents a rich array of cases and statutes that demonstrate how constitutional limitations and judicial review protect democratic republic against tyranny or oppression by the government. This essay will examine how the concepts of constitutionalism and the rule of law developed, and will trace the evolution of the idea from theoretical foundations to modern-day judicial review.
Conceptual Foundations and Theoretical Dichotomies
The concept of the rule of law has been discussed and debated by political philosophers for centuries. Ancient Greek philosophy laid the foundation for the rule of law doctrine in asserting the superiority of reason over passions, which later became the guiding force behind modern constitutionalism and public law. The rule of law was further formalized by Roman school of thought through works such as De Legibus, where Cicero argued that law must be directed towards the common good of the whole society. The Middle Ages contributed to the development of the rule of law through the writings of Thomas Aquinas, who, in Summa Theologica, emphasized the necessity of basing human legislation on reason, since the validity of laws was dependent on them fulfilling intrinsic moral principles.
Modern jurisprudence makes a clear distinction between formal and substantive approaches to the rule of law. The basic theoretical dichotomy is between the rule of law as a set of formal or procedural limitations on state power, and the rule of law as a substantive or ‘thick’ doctrine. Legal positivists such as Joseph Raz hold the view that the rule of law places restrictions on law-making, such as the need for laws to be prospective, clear, publicly available, stable and certain, and for there to be an independent judiciary which administers the laws consistently and uniformly. According to the formal model of the rule of law, law is an instrument of a general nature which, when applied uniformly, helps society to function smoothly. In such a system, the rule of law is an instrument, much like the edge of a knife, a tool which makes the legal system more effective but does not possess any intrinsic value. Thus, a state which formally follows the rule of law but produces unjust, oppressive or undemocratic laws is still operating within the rule of law.
The rule of law, however, is increasingly viewed as a substantive doctrine, one that goes beyond simple formalities and procedural requirements. Proponents of this approach, including Lord Bingham and Ronald Dworkin, argue that a truly just legal system must possess fundamental moral principles which go beyond basic procedural fairness. The substantive rule of law requires the rule of law as interpreted by the formalists, but also includes additional requirements which take into account human rights, international law, administrative fairness and substantive justice. Thus, the substantive rule of law doctrine recognizes that laws which formally follow the requirements of the rule of law but which violate core moral principles, cannot be considered valid.
The following paragraphs present a comparison between formal and substantive approaches to the rule of law.
- Aspect Formal Approach Substantive Approach
- Definition Focuses on the manner in which laws are made and their scope – law must be clear, prospective, not retroactive and generally worded. Incorporates the requirement that law must not contain any inherent moral limitations.
- Normative Content No intrinsic moral content – even an oppressive law which follows procedural requirements is still a valid law. Laws which contain morally questionable limitations or which violate basic human rights are not valid laws.
- Primary Objectives Uniformity of laws, equality before the law. Protection of human rights, substantive justice and uniformity of laws.
- Judicial Role Judges follow the rules as written by legislature. Courts apply the rule of law to laws which have been passed by legislature.
Diceyan Paradigm and its Doctrinal Criticism
The classical formulation of the rule of law as a guideline for how a just society should be organized is presented by A.V. Dicey in his seminal work An Introduction to the Study of the Law of the Constitution (1885). Dicey proposed three guiding principles for a rule of law:
The classical formulation of the rule of law as a guideline for how a just society should be organized is presented by A.V. Dicey in his seminal work An Introduction to the Study of the Law of the Constitution (1885). Dicey proposed three guiding principles for a rule of law:
1. Absolute supremacy of regular law which overrules any exercise of power not provided for by law.2. Equality of all individuals before law.3. The predominance of the legal spirit which is manifested in the fact that basic rights of individuals in the UK are not provided for in a formal Constitution, but are rather the outcome of regular court decisions.
Dicey’s formulation has been criticized by a number of scholars including Sir Ivor Jennings, William Robson, among others, as being based on a narrow and biased interpretation of the functioning of the French Droit Administratif. Contemporary rule of law doctrines are more complex and nuanced, taking into account the necessity of protecting not only formally just laws but also ensuring that laws do not contain any inherently immoral or ethically unacceptable provisions.
Dicey opposed the administrative system and the special jurisdiction which was operating in France at the time, where disputes between state officials and ordinary citizens were heard in the Conseil d’État. He believed that such a system created a privileged position for administrative officials and their agents who were not subject to the regular law as applied in England. Dicey believed that the validity of statutes depended on individuals being able to challenge them in the regular court system, not the administrative one. Modern rule of law doctrines recognize, however, that the administrative system creates additional checks and balances and is better suited to controlling and limiting the powers of state officials.
Dicey went as far as suggesting that any discretion exercised by state officials is by definition an illegality. Modern rule of law doctrines reject this viewpoint, recognizing that legislation cannot be comprehensive enough to cover every eventuality and therefore there is a need to delegate some decision-making powers to appropriate state agencies.
Dicey proposed that the rule of law meant that everyone was equal before the ordinary law courts. He argued that the principle did not allow for individuals to possess any legal powers or privileges which ordinary citizens did not have. This position fails to account for the fact that officials exercise their powers on behalf of the state, and as such, they have appropriate powers which are granted to them and which do not violate any of the rule of law principles. As a rule of law expert, Dicey should have been aware of the nuances of the common law system in England which distinguished between various powers, such as the powers of search and entry, the powers of inspection, and the powers of arrest.
Statutory Frameworks and Constitutional Mechanics
Constitutionalism is implemented through a series of statutes and structural mechanisms which ensure that the state operates within clearly defined limitations. The separation of powers is one of the basic mechanisms of modern constitutionalism. The legislative power of a state is restricted according to the principles of the rule of law, and state laws and policies are subject to natural justice and justiciability. The executive power is limited by statutory and constitutional control mechanisms which prevent the abuse of power. The judiciary has the power to review the actions of both legislature and executive in order to ensure that they operate within the confines of the rule of law.
Statute Natural Justice Rule of Law
Interpretation of ‘Procedure Established by Law’ in Constitution of India, Articles 14 and 19. The law prohibits any discrimination by the state, thus forbidding any state action or inaction which may be considered to be an exercise of arbitrariness. Article 14 proscribes any action which may violate the principle of equality before the law. Article 19 contains a list of fundamental freedoms which may only be fettered by ‘reasonable restrictions’ as determined by law. Article 21 prohibits deprivation of life or personal liberty except according to ‘procedure established by law’. The phrase has been interpreted by Indian courts to mean that procedures must be ‘just, fair and reasonable’. Articles 32 and 226 confer justiciability of the rights guaranteed by the Constitution. All Indian courts have the power to issue writs of certiorari, prohibition, habeas corpus, mandamus and quo warranto to review the action of the legislature and the executive and to annul them if they are found to be ultra vires. Statutory law, such as the Passports Act 1967, Sections 10(3)(c) and 10(5), provide that the passport may be impounded if the interest of the general public so requires but the reasons shall not be furnished. Such statutes were read down by courts to require audi alteram partem and post decisional hearing.
Landmark Jurisprudence and the Judicial Expansion of the Rule of Law
The rule of law is a foundational principle of democracy. Its implementation and interpretation, however, has been the subject of much debate among political philosophers for centuries. The rule of law is a broad concept which covers a number of specific procedural and substantive limitations which are placed on the functioning of the state. It ensures equality before the law by imposing restrictions on the arbitrary exercise of power by the state. This concept has been further expanded upon by constitutional courts which recognize the rule of law as an overarching principle which is justiciable. There are few doctrines more important to modern democracies than the rule of law, and Indian public law jurisprudence contains a series of statutes and judicial decisions which illustrate the evolution of the doctrine from its theoretical origins as a means to limit the powers of the state, to its current form as a cornerstone of democratic governance. The following paragraphs will consider some of the most important landmark cases which shaped the rule of law in India.
Indira Nehru Gandhi v. Raj Narain – 1975 – Basic Structure Doctrine and Procedural Due Process
Indira Nehru Gandhi v. Raj Narain case provides an illustration of how the rule of law was expanded through a significant constitutional ruling. The Allahabad High Court ruled that the election of Indira Gandhi was invalid due to malpractices. The Parliament, in turn, passed the Constitution (Thirty-Ninth Amendment) Act, 1975 which added Article 329A, Clause (4) to the Constitution which stated that the election of the Prime Minister and the Speaker of Lok Sabha could not be challenged before any court of law, that any judgments passed were to be ignored, and that the said election was valid despite any laws to the contrary. The Supreme Court invalidated this clause as not being a valid exercise of constituent power by the Parliament.
The Constitution Bench of the Supreme Court, comprising of Chief Justice A.N. Ray, Justice H.R. Khanna, Justice K.K. Mathew and Justice Y.V. Chandrachud ruled that the Rule of Law, Judicial Review and free and fair elections formed integral elements of the Basic Structure of the Indian Constitution and therefore could not be amended by Parliament.
The Court acknowledged that Clause (4) of Article 329A was a manifestation of the Parliament’s opinion on the matter, but it violated the principle of the equality of all citizens before the law. Such an amendment could be viewed as an illegality which placed the Parliament and the Government above the law. It failed to meet the standards of justiciability as stipulated by the Rule of Law.
Maneka Gandhi v. Union of India – 1978 – Rule of Law as Procedural Due Process
Maneka Gandhi v. Union of India is perhaps one of the most important cases in the evolution of the rule of law in India. It illustrates the transformation of a purely formal rule of law to one which places importance on natural justice and substantive due process. The Union Government impounded the passport of the petitioner under Section 10(3)(c) of the Passports Act, 1967 citing the interest of the general public but providing the reasons under Section 10(5) of the same Act. The petitioner moved the Supreme Court under Article 32 of the Constitution challenging the Government’s action on the grounds that her rights to equality before the law (Article 14), freedom of movement and residence (Article 19) and the guarantee against arbitrary detention (Article 21) had been violated.
A seven-judge bench was constituted to hear the matter. In his ruling, Justice P.N. Bhagwati pointed to the unsatisfactory position of Indian citizens under the Passport Act and stated that it was an inconsistent application of the Rule of Law. He cited A.K. Gopalan v. State of Madras which rejected challenges to the detention of aliens under the same Passport Act on the grounds that Articles 14, 19 and 21 were separate and did not overlap. The ruling in Gopalan was based on the interpretation of ‘procedure established by law’ as meaning any procedure which was duly authorized by law.
Justice Bhagwati introduced the doctrine of the ‘Golden Triangle’ under which Articles 14, 19 and 21 were intertwined and therefore any deprivation of personal liberty under Article 21 could violate Article 14 if it was found to contain an element of arbitrariness, irrationality or procedural impropriety. He also formulated the doctrine of substantive justice under which any statute or rule of law which imposed a restriction on fundamental rights or freedoms would be presumed to be void unless the authority which enacted it had acted in good faith and the restrictions imposed were found to be just, fair and reasonable. On the Rule of Law, Justice Bhagwati stated that the expression ‘procedure established by law’ in Article 21 did not connote any procedure which was authorized by law but one which fulfilled the requirements of procedural fairness and which was just and reasonable. The failure of a statute to satisfy this standard rendered it void or bad in law. Under Indian constitutional law, the breach of any of the rules of natural justice, including the failure to follow the audi alteram partem principle was also a violation of the Rule of Law.
Justice K.S. Puttaswamy v. Union of India – 2017 – Proportionality Test
Justice K.S. Puttaswamy v. Union of India is a nine-judge bench Supreme Court ruling which recognizes the right to privacy as a fundamental right and elaborates on the requirements of the Rule of Law. The Union Government’s collection of biometric and photo identity information under the Aadhaar regulatory framework was found to be a violation of the fundamental right to privacy guaranteed under Article 21. The Court ruled that interference with the right to privacy by the state required a balancing test which took into account legitimate state objectives.
A four-point Proportionality Test was outlined and applied to the facts of the case:
1. Legitimate state aim – the state must act within the limits of the fundamental rights guaranteed by the Constitution and the measures taken must pursue a legitimate aim as set out in a clearly defined and publicly notified statute.2. Rational connection – there must be a rational connection between the object and the means adopted to further the aim.3. Necessity – the means must not be more burdensome than necessary.4. Proportionality stricto sensu – there must be a proportionality between the means adopted and the aim sought to be achieved.
Analyzing this landmark decision of the Supreme Court provides a useful overview of the evolution of the doctrine of the Rule of Law. In Indira Nehru Gandhi v. Raj Narain case, the Supreme Court ruled that the Rule of Law and the principle of Judicial Review were fundamental constituent elements of the Basic Structure of the Indian Constitution and could not therefore be amended by Parliament. In Maneka Gandhi v. Union of India , the Union Government’s impounding of the passport of the petitioner was ruled to be a violation of the Rule of Law as the Passport Act failed to meet the standards of procedural fairness and natural justice. In addition, the ruling introduced the doctrine of substantive justice under which any statute or rule of law which imposed a restriction on fundamental rights or freedoms would be presumed to be void unless the authority which enacted it had acted in good faith and the restrictions imposed were found to be just, fair and reasonable. In Justice K.S. Puttaswamy v. Union of India , the Court ruled that interference with the right to privacy by the state required a balancing test which took into account legitimate state objectives.
Transformative Constitutionalism in the Global South
Constitutionalism practiced around the world, and particularly in the developing world, reflects the philosophical traditions which shaped it. The classical school of thought, which informs many of the principles of modern constitutionalism, is largely based on the ideas developed by John Locke and later refined by other Enlightenment thinkers. Locke’s theories have been used to develop the rule of law as a limitation on the powers of the state. The rule of law, as conceived in Western philosophy, places emphasis on negative limitations which prevent the state from interfering in the private sphere of the individual. Under this system, the state is prevented from interfering with the right of individuals to property, and their natural rights such as freedom of expression. In essence, classical liberal constitutionalism is concerned with placing restrictions on the power of the state.Constitutionalism practiced in post-colonial nations tends to follow the principles of Transformative Constitutionalism. This doctrine, articulated by scholars such as Upendra Baxi, takes an expansive view of the rule of law, focusing on the state’s ability to transform society. In essence, it states that a written constitution should be used to bring about systemic change rather than simply being a limitation on the powers of the state. Transformative Constitutionalism advocates for the removal of social barriers such as caste, religion and gender, and works towards economic transformation such as dismantling economic exploitation.
This approach differs from the existing rule of law principles in three aspects:
firstly, it changes the guarantees provided by the constitution;secondly, it discards the traditional approach of the courts to statutes;thirdly, it modifies the scope of judicial remedies.
The new philosophy changes the focus from the negative role of the state to its active one. Therefore, the state is not only prohibited from violating rights but has a responsibility to protect citizens from discriminatory practices, and ensure the right to education, health, and other socio-economic rights.
Constitutional law courts make decisions based on the dynamic and malleable interpretation of the constitution. This approach makes it possible to deliver rights directly to the oppressed social groups in a more effective way.
Further, the rule of law is interpreted in a broad sense. The court allows suits in the form of Public Interest Litigation to provide access to justice for poor people. This procedural justice innovation removes many procedural obstacles and allows the Public Interest Litigation to be brought by a wide range of state officials.
Thus, in a new constitutional order, the rule of law is perceived as a set of measures designed to promote the rule of law, equality, and institutional isomorphism, and the protection of individual and social rights.
Conclusions;
Constitutionalism and the rule of law are both mechanisms that aim to limit the state and protect the sovereignty of the individual. From a historical perspective, the rule of law was viewed in a narrow sense and focused on preventing state oppression. Thus, A.V. Dicey’s formulation is another example of the rule of law understanding that emphasizes the predominance of general law. However, the rule of law is not compatible with formal legality in modern society. A bare minimum of the rule of law creates the perfect environment for the expansion of state power, which is limited only by statutory law. Dicey’s principles do not withstand the scrutiny of critical analysis. However, the criticism of the early rule of law theories promoted by such scholars as Sir Ivor Jennings led the court to adopt new measures to control state power. The judiciary developed a set of tools to ensure that administrative decisions are not arbitrary. Indian jurisprudence on the rule of law is based on three pillars of the “Golden Triangle”: fundamental rights, procedural fairness, and a strict review of the appropriateness and proportionality of administrative decisions. The principles of transformative constitutionalism expand the rule of law to ensure not only the absence of discrimination but also the realization of a wide range of socio-economic rights. All the innovations that entered the rule of law concept are intended for one purpose – to ensure the rule of law, human rights, and democracy. Rule of law is a fundamental principle that must guide the actions of both state and non-state actors.