The Sovereign and the Law — Rule of Law in the Indian Constitutional Framework

Essay II

How India's Constitution enshrined the principle that no person — not the Prime Minister, not Parliament itself — stands above the law, and how that principle was nearly broken and ultimately reinforced.

Introduction: No One Is Above the Law

Three words — "rule of law" — carry the weight of centuries. They encode the idea that no individual, no minister, no monarch, and no government is above a body of rules that applies equally to all. In India's constitutional framework, the rule of law is not simply a phrase — it is, the Supreme Court has repeatedly held, part of the basic structure of the Constitution, beyond the reach of even Parliament.[1]

The phrase "rule of law" does not appear once in the text of the Indian Constitution. And yet it permeates every corner of the document — through Article 13 (which strikes down laws inconsistent with fundamental rights), Article 14 (equality before the law), Articles 32 and 226 (judicial enforcement of rights), and the Preamble's promise of justice, liberty, and equality. The story of the rule of law in India is the story of how these provisions were given meaning — sometimes heroically, sometimes catastrophically — by courts, governments, and citizens over seventy-five years of constitutional life.

Supreme Court of India, New Delhi — guardian of the Constitution and the rule of law

Supreme Court of India · New Delhi The court that declared judicial review and the rule of law to be part of the basic structure of the Constitution — beyond the amending power of Parliament itself.

Wikimedia Commons · CC BY-SA

Dicey's Three Postulates and Their Indian Reception

The modern, systematic articulation of the rule of law is owed to A.V. Dicey, the Victorian British jurist, who outlined three postulates: (1) the supremacy of law over arbitrary power; (2) equality before the law — that every person, from the Prime Minister to the most ordinary citizen, is subject to the same law; and (3) that the rights of individuals are best protected not by abstract guarantees but by the ordinary law courts.[2]

I Supremacy of Law

No person may be punished or suffer except for a breach of the law established in the ordinary courts.

II Equality Before the Law

Every person — Prime Minister to ordinary citizen — is subject to the same ordinary law of the land.

III Predominance of Legal Spirit

Rights are best protected by the ordinary courts, not abstract constitutional guarantees alone.

India's reception of Dicey was enthusiastic but critical. The Constitution's framers borrowed the concept of legal supremacy from England, but they were aware of its limitations. Dicey's England had no written constitution and no explicit fundamental rights; India was building a new republic on the ruins of colonialism and needed something stronger. The result was a hybrid: Dicey's equality principle embedded in Article 14, backed by the full force of constitutional text, enforceable against the state itself.

The Indian Supreme Court has described the rule of law as having three essential components in the Indian setting: the absence of arbitrary power, equality before the law, and the predominance of legal spirit — meaning that courts, not the executive, are the ultimate arbiters of legality. In Som Raj v. State of Haryana, the Court observed that the primary postulate of the rule of law upon which the whole constitutional edifice depends is the absence of arbitrary power.[2]

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Article 14 and the Architecture of Equality

"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

These two limbs — equality before the law (a negative concept, rooted in Dicey) and equal protection of the laws (a positive concept, borrowed from the 14th Amendment of the US Constitution) — together create a robust guarantee against discriminatory state action.

Any state action that is arbitrary is automatically violative of Article 14. The rule of law can now strike down executive action that is irrational, unreasonable, or capricious.

— E.P. Royappa v. State of Tamil Nadu, 1974

In E.P. Royappa v. State of Tamil Nadu (1974), Justice Bhagwati articulated the landmark "arbitrariness doctrine" — the proposition that any state action that is arbitrary is automatically violative of Article 14. This was a seismic expansion: it meant that the rule of law, through Article 14, could now strike down executive action that is irrational, unreasonable, or capricious — even if it does not discriminate between formal classes of persons. The arbitrariness doctrine has since been applied across administrative law, service law, contract law, and criminal procedure.[3]

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The Basic Structure Doctrine: Rule of Law as Constitutional Immune System

Kesavananda Bharati v. State of Kerala

AIR 1973 SC 1461 — [4]

The most dramatic assertion of the rule of law in Indian constitutional history. A thirteen-judge bench — the largest in the Supreme Court's history — ruled, by a majority of 7:6, that while Parliament may amend any provision of the Constitution under Article 368, it cannot destroy the Constitution's basic structure. The rule of law was held to be among those inviolable features.

It meant that Parliament itself is subject to law — the law of the Constitution. It cannot, through the amendment power, eliminate judicial review, abolish fundamental rights, or restructure the document in ways that destroy its democratic republican character.

Majority — 7:6 Parliament may amend any provision, but cannot destroy the basic structure of the Constitution.

Basic Structure Includes Rule of law, judicial review, separation of powers, free and fair elections, federal character.

Tested Immediately — 1975 39th Amendment struck down. Even the PM's election could not be insulated from judicial review.

Kesavananda Bharati was immediately tested. In Indira Nehru Gandhi v. Raj Narain (1975), a constitution bench used the basic structure doctrine to strike down the 39th Amendment — the very amendment the government had passed to insulate Gandhi's election victory from judicial review. The Court held that free and fair elections and the power of the judiciary to adjudicate election disputes are part of the basic structure. Rule of law, in this sense, meant that even the most powerful person in the country could not legislate herself out of accountability.[4]

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The Emergency: The Stress Test

The Emergency of 1975–77 was the most severe stress test the rule of law has faced in independent India. The ADM Jabalpur case is the most glaring example of institutional failure. But the broader picture is one of systematic dismantling: Emergency powers were used to suspend fundamental rights, bar judicial scrutiny, extend the life of Parliament beyond its term, and concentrate authority in the executive to an unprecedented degree.

When the Emergency ended, the legislative response was a reaffirmation of the rule of law. The 44th Amendment restored judicial review of Emergency proclamations. In Minerva Mills v. Union of India (1980), the Supreme Court struck down sections 4 and 55 of the 42nd Amendment — which had sought to give Parliament unlimited amending power beyond judicial review — as unconstitutional violations of the basic structure.[5]

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Exceptions and Imperfections: The Unfinished Project

Kesavananda Bharati Sripadagalvaru — the petitioner whose case defined Parliament's limits

Kesavananda Bharati The Kerala swamiji whose property dispute gave India its most consequential constitutional judgment — defining the limits of Parliament's amending power. Wikimedia Commons · CC BY-SA

The rule of law in India is not a completed achievement; it is a work in progress. Dicey's rule of law, strictly applied, would prohibit discretionary powers entirely. The Indian Constitution does not go that far. Articles 72 and 161 vest pardoning powers in the President and Governors. Article 356 gives the Centre the power to impose President's Rule in states — a power that was, before S.R. Bommai v. Union of India (1994), frequently misused.[3]

Overburdened courts, delayed justice, selective enforcement, and the gap between constitutional promise and ground reality remain systemic challenges. Effective implementation of the rule of law is hampered by outdated legislation and courts operating under crushing case backlogs.[2] The Constitution creates the right architecture; the quality of institutions and political culture determines whether that architecture functions.

Conclusion: Law as the Sovereign

India's constitutional experiment is, at its core, a bet on the rule of law. The bet is that government by written rules, enforced by independent courts, is better than government by men — however enlightened those men may believe themselves to be. The Emergency tested that bet and nearly broke it. But the 44th Amendment, Kesavananda Bharati, Minerva Mills, and Puttaswamy are evidence of remarkable constitutional resilience — precisely because the rule of law is embedded in constitutional text, judicial precedent, and popular expectation.

As former Prime Minister Lal Bahadur Shastri said: "The rule of law ought to be respected so that the basic structure of our democracy is maintained and further reinforced."[3] It is a statement that becomes more, not less, urgent with each passing decade.

References — Essay II

[1] Rule of Law and its Application in the Indian Polity — International Journal of Law Management & Humanities
[2] Rule of Law in Indian Constitution — A Critical Analysis (JETIR, 2023)
[3] Rule of Law — iPleaders (comprehensive analysis with case law)
[4] Kesavananda Bharati v. State of Kerala — Wikipedia
[5] Basic Structure Doctrine — Wikipedia