Is Rule of Law and Constitution a Myth in India?

Rule of Law has not been fully defined or established anywhere; yet, the Indian courts have regularly ingrained the essence of the basic concept in their decisions. The Rule of Law emphasizes the lack of any center of unlimited or arbitrary power in the country, as well as the equitable distribution of power. The government’s lack of arbitrariness and power structure. The possibility for arbitrary state action is increased by the government’s intervention in a range of people’s daily activities. Rule of Law is favorable in contrast to this condition because Rule of Law prioritizes the elimination of arbitrary, unlawful, and unjustifiable government activity[1]. It not only emphasizes the creation of law to control society by regulatory frameworks but also requires that these rules be endowed with reasonable justice so that no one is prejudiced. In other words, it is the mechanism that assures that the legislation is formulated not only in letter but also in the spirit of the law.


The concept of the rule of law has been developed by A.V Dicey in his writing[2]. Whereby the principles of rule of law were explained. In P. Sambamurthy v. State of Andhra Pradesh[3], the Supreme Court found unconstitutional a clause allowing the administration to interfere with tribunal justice, describing it as “violative of the rule of law, which is a fundamental and vital aspect of the Constitution.” In D.C  Wadhwa[4], the Supreme Court has once again invoked the Rule of Law to criticize a State Government’s overuse of its authority to enact ordinances instead of legislation passed by the Legislature. In Yusuf Khan v. Manohar Joshi[5], the Supreme Court ruled that it is the state’s responsibility to defend and protect the law and the constitution. Constitution, and that it cannot sanction any act of violence that undermines the rule of law. In A.D.M. Jabalpur v. S. Shukla[6], Justice Khanna reiterated that the rule of law is the only answer to arbitrariness in the legal process and the abuse of government power. To preserve the rule of law, there is an urgent need to strike a balance between the general interest of society and the individual interest, while also ensuring the independence of the court. One of the major applications of the rule of law in the constitution is the judicial review as assured by article 13 of the Indian constitution[7], By providing a mechanism to check the due procedure of the law and whether the action of the government violates or is arbitrary to the nature of the fundamental rights guaranteed. The state’s public authorities and bureaucracy are all accountable to the courts for the legality of their activities, as their actions are subject to judicial review.

On April 10th, 2021, Ashwini Kumar, the Station House Officer (SHO) of Kishanganj, West Bengal, was lynched in the Uttar Dinajpur region of Bengal. Ashwini was well-known for his stern enforcement and crackdown on alcoholic beverage smuggling. The officer traveled into the neighboring neighborhood with a team of eight police officers and two informants to perform a raid in search of a gang of reputed Bihar motorcycle thieves. Kumar was attacked at the residence of the chief suspect, Firoz Alam. Other members of the Kishanganj police squad were able to escape and have now been suspended for dereliction of duty for abandoning Kumar at Pantarpara and fleeing when attacked. According to reports, Israel went to the mosque and utilized its public address system to announce the operation and inspire the villagers to ambush the Bihar Police raiding group. The Muslim men then attacked Kumar with clubs and swords, killing him on the spot. The SHO was viciously assaulted and strangled to death, and his body was left behind. Later, his body was transported to the Islampur hospital in Bengal, where physicians pronounced him dead.

On April 9, 2022, In Karnataka, a Muslim vendor’s cart was demolished and all the stock that he had been vandalized[8] the same incident had been reported in multiple regions of the country and as per the analysis, this is where the communal clashes sparked in the country from both the sides of the society.

On UP on May 19th, 2022, Bulldozers were illegally ordered to raze off the buildings outside of a Kanpur cemetery. Due to the presence of a waqf board in the cemetery’s compound, no action was done inside. In a letter to the district magistrate and the commissioner, Kanpur representative Satyadev Pachauri complained about the unlawful encroachment around the graveyard in the Kakadev neighborhood of Kanpur. On Thursday, officials arrived and dismantled the dwellings that had been constructed outside of the cemetery[9]. All this was done in haste and without reasonable warnings amidst the clashes and riots between the communities.

In the previous three months, at least six Hindus have been slain by terrorists from various groups. On 4 April, they shot and severely wounded a Hindu pharmacist outside his home in the southern Kashmir district of Shopian, before killing a Kashmiri Hindu truck driver in his home in another southern district, Kulgam, on 13 April, and a Kashmiri Pandit in his government revenue department office in the central district of Budgam on 12 May. On 2 June, a masked gunman entered a bank in the Kulgam area and shot a Hindu employee from the neighboring state of Rajasthan. In the same week, extremists murdered three additional Hindus, including a female schoolteacher and a migrant worker. Another migrant worker suffered a major injury. Targeted homicides are widespread in Kashmir, with a diverse variety of victims. Since the beginning of the year, terrorists have carried out at least nineteen attacks against government employees, police officers, teachers, migrant workers, local government members, and an Instagram star[10]. In contrast, the number of murders motivated by the religious identity of the victims, particularly Kashmiri Pandits, has steadily increased over the previous few years and accelerated over the past few months. In Srinagar, the capital of Jammu and Kashmir, militants simultaneously attacked a Hindu jeweler on 31 December 2020 and the son of a Hindu restaurateur on 17 February 2021, bringing both attacks to public attention. Since then, at least ten Hindus have been murdered in the area.

The Bharatiya Janata Party on Sunday suspended Nupur Sharma from the party’s primary membership over controversial remarks made against Prophet Mohammad The action came hours after the BJP said in a statement that it respects all religions in several Arab countries such as Kuwait, Qatar, and Saudi Arabia – all of which have very close ties with India and were home to millions of expatriates – over the comments and a tweet by two BJP spokespersons. Around 40 people were injured during the clashes after two groups clashed on Friday in Uttar Pradesh’s Kanpur among which half were police personnel. The police had to fire tear gas shells to disperse the crowd and prevent further violence. The police have arrested 36 people and filed cases against 1,500[11]. Amidst this controversy, She received multiple death threats and rape threats from various organizations and individuals for reiterating some verses from the holy book in a rebuttal.

Following this incident, Kanhaiya Lal Kumar, a tailor, was decapitated by two Muslim men who claimed to be acting in the interest of Islam and who also threatened the Prime Minister in a video released after the decapitation and later again in the Udaipur another was stabbed for supporting Nupur Sharma which again increased communal tensions in different parts of the country including Ajmer[12].


.In the above instances there is a commonality that binds these issues together that altogether streamlines and integrates towards one big issue. Let us first understand the basic charter and some of the major fundamental rights that are guaranteed to the common man.


Articles 14 through 18 of the Constitution of India guarantee the Right to Equality. Article 14 prohibits discrimination in general and guarantees everyone equality before the law. Due to a degree of ambiguity associated with the general principle of equality stipulated in Article 14, with certain discriminatory situations covered by different laws, modifications have been made by future Articles. Article 15, therefore, bans discrimination against a citizen on certain criteria such as religion, race, caste, sex, or birthplace. Article 16 ensures to Art. 17 eliminates for Indian citizens equality of opportunity in terms of public employment. Thus, The Supreme Court has ruled that the Constitution has provisions for both protection and affirmative action, as well as discrimination Parliament and state legislatures, may not violate the principle of equality. The Supreme Court recently reaffirmed this principle in M.G. Badappanavar v. the State of Karnataka[13].”Equality is a fundamental tenet of the Indian Constitution and Karnataka’s constitution should reflect this,” the government of Karnataka stated in the following language. Any treatment of equals unequally or of unequal as equals would be a violation of the fundamental structure of  India’s constitution.

Equality before the law implies that among equals, the law should be equal and administered equally, and like should be treated alike. It includes the right to sue and be sued, to prosecute and be prosecuted, regardless of religion, race, wealth, social standing, or political influence. This contains the “Rule of Law” notion. According to Dicey, this means that the law is supreme and that no one is above the law. It also means that no one shall suffer in body or property unless for a clear violation of the law and that everyone is subject to the jurisdiction of the ordinary courts[14].


The Supreme court of India considers Article 19 to be of paramount significance. They have remained cautious of the “chilling effect” that may be inflicted upon the citizens of the country. The Supreme court thus has adopted a more liberal, rather than strict interpretation of sedition. It is contended before the hon’ble court that the Petitioner intended to reaffirm the highest standard of journalism through art and independence of the media.

 According to a Constitution Bench of this Court of Sakal Papers (P) Ltd. & Ors. v. Union of India[15] freedom of expression and that of expressing an opinion are of essential importance under a democratic constitution that contemplates changes in the composition of legislatures and governments and must be protected.

In a concurring judgment, Bennett Coleman & Ors. v. Union of India & Ors.1973[16] Justice Beg held the freedom of speech and the press is the “Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions.”

The Supreme court thus is wary of free speech and its importance in the functioning of democracy.

The right to express one’s views by words, writing, printing, pictures, or any other methods is referred to as freedom of expression. It would include freedom as well as the right to spread or publish one’s viewpoint. Any medium, such as a newspaper, magazine, or film, could be used to communicate ideas could be adopted for the same.

In India, the concept of chilling effect was recognized in the case of R Rajgopal v state of Tamil Nadu[17]

The chilling effect is the self-censorship of Individuals fearing criminal sanctions. The court, therefore, pronounced that the laws should be framed in such a manner to have a chilling effect on the freedom of speech.


The Supreme Court has redefined Article 21 in such a way that it now embraces all imaginable human rights. It is a mandate to the state not to violate a person’s right to life or individual liberty. The courts have taken a fairly permissive stance and converted the negative injunction into a positive directive to do aii things that will make life worthwhile. It is clearly established that Article 21 possesses both  negative and affirmative dimension. Article 21 includes plethora of human rights under its ambit namely:

  1. Right to speedy trial [18]
  2.  Right to travel abroad[19]
  3.  Right to dignity[20]
  4.  Right to privacy[21])
  5.  Right to clean environment[22]
  6. Right to livelihood [23]
  7.  Right to education[24]
  8.  Right to marriage [25]
  9. Right against torture[26]
  10. Right against bondage[27]
  11. Right to legal aid[28]

In the example of Nupur Sharma, after reviewing the cases described in the article and some of the constitutionally protected fundamental rights, was she able to exercise her right? She repeated a verse that is widely recognised by the general public. The issue at hand is not whether she was right or wrong, but rather whether the constitution or the law takes precedence. People are awarded their basic fundamental rights, but do they have the decency to exercise them? Kanhaiya Lal, who had his own perspective, was not afforded legal protection for his life or his beliefs.

When article 21 promulgates and supports human rights in our country and article 14 inculcates the rule of law, and then we encounter incidents where illegal encroachment occurs, depriving a common man of his livelihood without due process of law, and local vendors who barely earn enough to survive are vandalised, Article 19, 21, 14, and the essence of the preamble, which is the very basis of our existence and the fruit of so many sacrifices, are being violated. The assertion that the Constitution is a living document is ironic, given that the Constitution’s substance and beneficence is diminishing with each passing day.


The people are responsible for the existence of the constitution, as well as the maintenance of the rule of law. Therefore, to ingrain and strengthen the preamble’s roots in the people’s bloodstream. The substance of the constitution should be instilled in children from an early age, and it should be revered by the average citizen as much as Gita, Holy Quran, and the Bible.

Article 51A talks about the fundamental duty of the citizens, but there is no mechanism in the constitution or any other statutes that enforces our fundamental duty, A right is always co-existential with the duty and we have the mechanism to enforce the rights but not the duties and hence without the enforcement of duties, we are finding examples of irresponsible and prejudicial behavior to the rule of law which is the basic essence of our constitution.

Punishments for the crimes such as mob lynching, abatement of riots, etc should be made even stricter as they destroy the fraternity of the nation which is also a fundamental duty of the citizen to preserve our culture and heritage. Modern times require a modern solution to curb this behavior a more creative way has to be established to counter this behavior. Such as, cutting off the internet of the person and the person’s family who indulged in such an act because such act defeat the very foundation of our constitution


Our preamble clearly iterates that it is “For the people, by the people”; we, the people, illuminate and enlighten the constitution. The strength of our nation should always remain the strength, not our weakness, ethnicity and multiculture, tolerance, brotherhood, and fraternity are the elements imbibed under the constitution and it is what makes our heritage rich and wealthy in a way it has become India’s Identity. Alas, it is we people making our nation’s identity, and therefore it is the sole purpose of our existence to adhere to protect, preserve and pass on our identity to the next generation. And we need to decide judiciously what part of our mother nation should we pass to the next generation.

[1] M.P. Jain, Indian Constitutional Law 10 (Kamal Law House, Calcutta, 5th edn., 1998)

[2]DICEY, A. V., & DICEY, A. V. (1897). Introduction to the study of the law of the Constitution

[3]P. Sambamurthy v. State of Andhra Pradesh AIR 1987 SC 663

[4] D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579

[5] Yusuf Khan v. Manohar Joshi (1999) SCC (Cri) 577.

[6] A.D.M. Jabalpur v. S. Shukla AIR 1976 SC

[7] INDIA CONSTI. art. 13, cl.

[8] Carts overturned, Muslim fruit sellers assaulted outside Hanuman temple in Karnataka,India Today, April 9 2022,22:18 IST,  (

[9] Simer Chawla,Uttar Pradesh: Bulldozers raze illegal encroachments outside Kanpur graveyard, India Today,May 19th 2022,20:22 IST (

[10] ICG,Violence in Kashmir: Why a spike in killings signals an ominous new trend, relief web,28th june 2022, (

[11] BJP’s suspended spokesperson Nupur Sharma and her family to get security by the Delhi police, The Economics Times, June 7th 2022,12:30 IST (

[12] Rajasthan: Provocative remarks, Udaipur killing hit footfall, The Times of India,July 17

[13] M.G Badappanavar v. State of Karnataka, 2001 2 SCC 666

[14] M.P. Jain, Indian Constitutional Law 10 (Kamal Law House, Calcutta, 5th edn., 1998)

[15] In Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842 at 866.

[16] Bennett Coleman & Ors. v. Union of India & Ors., [1973] 2 S.C.R. 757 at 829

[17] R Rajgopal v state of Tamil Nadu 1992 6 SCC 632

[18] M.H. Hoskot v State of Maharashtra, AIR 1978 SC 1548, Hussainara Khatoon v State of Bihar, AIR 1980 SC 1819; Raj Deo Sharma v State of Bihar (1998) 7 SCC 507

[19] Maneka Gandhi v. Union of India AIR 1978 SC 597

[20] Maneka Gandhi v union of India AIR 1978 SC 597

[21] Govind v State of M.P. AIR 1975 SC 1378

[22] MC. Mehta v Union of India [1987] 4 SCC 463

[23] (Olega Teilis Bombay Municipal Corporation 1986 AIR 180, 1985 SCR

[24] Mohini Jain v. State of Karnataka 1992 AIR 1858; 1992 SCC (3) 666

[25] Lata Singh v State of U.P. AIR 2006 SC 2522

[26] Sunil Batra v Delhi Admn., AIR 1950 SC 1979; Jolly Varghese v Bank of Cochin, AIR 1950 SC 470; Khatri v State of Bihar (1951) 1 SCC 623

[27] People’s Union For Democratic Rights v Union of India, (1952) 2 SCC 235; Neeraja Chaudhary v State of M.P (1954) 3 SCC 243

[28] Sheela Barse v Union of India, (1956) 3 SCC 632; Suk Das v V.T. of Arunachal Pradesh, (1956) 2 SCC 401.

Author: Piyush Gunwani

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