What are some of the significant elements of the Rule of Law? Where would one find them in the Constitution of India?

• Supremacy of established law as opposed to arbitrary discretion. This flows from the fundamental concept that it is a rule of “law,” not a rule of “man” (a king, a person, or a political party), that governs a nation, usually through a constitution, rather than the diktat of any individual leader or political party.

Article 13 of the Constitution of India is the clearest assertion of the rule of law: the Constitution is the supreme law, and the State derives its powers to govern its people from it. Any law, whether made before or after the Constitution came into effect, is void if it takes away the Fundamental Rights.

• Equality before the law. Everyone has the same rights and obligations without discrimination on the grounds of status, religion, sexual orientation, political affiliation, gender, race, age, etc., unless a valid law allows for unequal treatment.

Article 14 frames the Right to Equality principle - a direct embodiment of the twin doctrine of the rule of law - “equality before the law” and “equal protection of the laws”. “Equality before law” is a negative concept (derived from A.V. Dicey’s Rule of Law): no person will be denied equality before the law. “Equal protection of the laws” is a positive concept (borrowed from the 14th Amendment to the United States Constitution) - all persons will be provided equal protection of the laws. Laws cannot be arbitrary, since arbitrariness amounts to inequality. Governments may make discriminatory laws, but these should clearly identify the class of people and the rationale for their differential treatment.

• Legality of laws.

• Laws must be made by following prescribed procedures laid down in the constitution.

• Laws need to be unambiguous and objective, not arbitrary or discretionary. Any discretion requires that the purpose be clearly articulated.

• Laws must be rational - there must be a clear connection between the law and its objectives.

• Laws should be prospective, not retroactive, because people need to know in advance that they have to follow the law. Retrospective laws are permissible in extreme circumstances, only if needed to correct unintended consequences or injustice.

These rule-of-law principles permeate our Constitution and have been read into Article 14 (Equality) and other Fundamental Rights by the Supreme Court. Laws have to be passed in accordance with the processes laid out in the Constitution. Part XI (Articles 245-255), read with the Seventh Schedule (which contains distribution of subject-wise legislative powers between the Union and the State governments), lays down Parliament’s law-making powers. Part V (The Union), specifically Articles 107 to 111, describes the procedures for making laws. Article 368 lays down the procedure for amending the Constitution. The law-making processes must be mindful of Article 13, the Fundamental Rights, and the Basic Structure Doctrine.

• Due Process of Law. Rule of law includes due process and natural justice. Justice is not only done, but has to be seen to be done. Due process refers to all stages of law - how laws are made, implemented and adjudicated. Processes must be transparent, impartial, and free from the appearance of bias, and administrative action must comply with them. Some of its elements include -

1. right to be heard;
2. right to know what evidence is being considered;
3. right to be present and cross-examine witnesses;
4. there can be no trial without a formal charge;
5. right to written reasons for administrative and judicial decisions;
6. right of appeal on the merits to an independent judiciary;
7. right to judicial review of judicial and administrative decisions;
8. right to information relevant to the case held by the state;
9. right to seek recusal or dismissal of officials with a conflict of interest.

Article 21 enshrines our fundamental right to life and liberty. Articles 20 and 22 provide the vital rule of law safeguards which protect individuals from overreach by the State - the procedural framework for Article 21’s “procedure established by law”.