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TOPIC: RULES OF LAW, INDEPENCE OF JUDICIARY AND SEPERATION

OF POWERS (BEFORE INDEPENDENCE)
UNDER THE GUIDANCE OF: PROF. DR. INDRANI SAHA

SUBMITTED BY:-
NAME: RIYA AVINASH JADHAV

CLASS: S.Y B.L.S LL.B

SEM: III
ROLL NO: 205030
SUBJECT: HISTORY OF COURTS

D.O.S: 21/12/2022
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INDEX

SR No. TOPICS PAGE

NO.

1. INTRODUCTION TO RULE OF LAW 3

2. DEVELOPMENT OF RULE OF LAW 4

3. THREE PRINCIPLES PROPOSED BY A.V. DICEY 4

4. THE BASIC FEATURES OF RULE OF LAW AS PER 4

DICEY:

5. MERITS AND CRITICISMS OF RULE OF LAW 5

6. RULE OF LAW IN INDIA 6

7. INTRODUCTION TO INDEPENDENT JUDICIARY 7

8. PRE INDEPENDENCE-INDIAN JUDICIARY 7-8

9. INTRODUCTION TO SEPERATION OF POWERS 9

10. BACKGROUND OF SEPARATION OF POWER 10

11. MONTESQUIEU’S DOCTRINE OF SEPARATION OF 11

POWERS

12. CRITICISM ON MONTESQUIEU’S DOCTRINE 12

13. CONCLUSION 13

14. BIBLIOGRAPHY 14
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INTRODUCTION TO RULE OF LAW1

➢ Constitution of India – Preamble

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
[SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC] and to secure to
all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression,
belief, faith and worship;
➢ EQUALITY of status and of opportunity; and to promote among them all;FRATERNITY
assuring the dignity of the individual and the [unity and integrity of the Nation];IN OUR
CONSTITUENT ASSEMBLY this twenty- sixth day of November, 1949, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
➢ Means supremacy of law or predominance of law.It is based on the foundation of
values.“Law is the King of Kings,… nothing can be mightier than Law, by whose aid, …
even the weak may prevail over the strong”.
➢ “Rule of Law is preferable to that of an individual.”Aristotle Rulers and the ruled are equally
subject to Law.“The Rule of Law stands for the view that decisions should be made by the
application of known principles and Laws; in general, such decisions will be predictable and
the citizen will know where he is” - Frank Committee Report (U.K ).Endorsed by the
Supreme Court of India in S.G. Jaisinghani vs. Union of India and others (vide AIR SC
1427).
➢ Based on the respect for the supreme value of human dignity.Designed to protect the
individual against arbitrary exercise of power, wherever it may be found.Aimed at
harmonising the opposing notions of individual liberty and public order, personal freedom
and social security.
➢ It is the law and not the individual or group of individuals which rules or governs the people.
Law is supreme, above everything and everyone. Nobody is above law.Equality before Law
and equal protection of Law.

1 Hariharan, Rule of Law in India, Academike, November 16 2014

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➢ A discretionary power is to be exercised for the purpose for which it has been conferred.
Otherwise, the administrative action taken shall not be sustained by the Court in the exercise
of its power of judicial review. Discretion vested in any Administrative Authority cannot be
unguided, and unlimited. Government cannot distribute at its sweet will or withhold
arbitrarily largess or licence or contract. In fact, the arbitrariness is the sworn enemy of
equality which has been enshrined in Article 14 of the Constitution of India.

DEVELOPMENT OF RULE OF LAW 2

The British people strongly believed in the Divine Theory of State. The king was given the power
to govern the people by the Divine Authority (God). This theory propagates that, “King can do no
wrong, king is above law”. Parliamentary Democracy based on the principle of equality rooted in
Britain. All persons are governed by the same law and same set of rules and regulations is called
the Rule of Law.

The Rule of Law was first originated by Sir Edward Coke, the Chief Justice in England at the time
of King James I. Coke was the first person to criticise the maxims of Divine Concept. He strongly
believed that the King should also be under the Rule of Law. The Rule of Law doctrine was later
developed by A.V. Dicey in his book, “Introduction to the Law of Constitution (1885).” The Rule
of Law according to Dicey means that no man is punishable or can be lawfully made to suffer in
body or goods except for distinct breach of law and no man is above the law. The term Rule of
Law thus, means the paramountcy of Law over Government.

THREE PRINCIPLES PROPOSED BY A.V. DICEY

1. Absolute supremacy of Law

2. Equality before law

3. Predominance of legal spirit.

THE BASIC FEATURES OF RULE OF LAW AS PER DICEY:

2https://www.legalserviceindia.com/legal/article-85-development-of-the-rule-of-law.html by preeti
Ramanujan
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➢ Law does not recognise any special rights for any individual or group of individuals.
➢ Law does not recognise any distinction between one individual and the other on the
basis of religion, race, sex, etc.
➢ None is punished without proper trial.
➢ All will be tried by the same court under the same law.
➢ The rule of law does not give scope to absolute and arbitrary powers to the executive.

MERITS OF THE RULE OF LAW:

➢ It reverses the tyranny or anarchy.

➢ It puts legal barriers to governmental arbitrariness.

➢ It provides safe guards for the protection of individuals.

➢ It echoes the Magna Carta’s saying, “No free man shall be taken or imprisoned or diseased
or outlawed or exiled nor will we go or send for him, except by the lawful judgment of his
peers or by the law of the land.

➢ Rules of law are rooted in conventions and customs of the country.

➢ It gives freedom to the judiciary to control the executive who exceeds their jurisdiction.

➢ Public welfare should be the dominant consideration.

CRITICISMS:

➢ Dicey explained the concept Rule of Law in 1885. Many changes have taken place since
then. So, it is in different shapes due to the following conditions:
➢ Certain privileges are granted to the officials in UK through enacting the Public Authorities
Protection Act.
➢ With the development of Welfare State concept, the role of state had expanded. It gave power
of adjudication to the administrative agencies, who sometimes decide cases.
➢ In emergency, Fundamental rights are suspended by the executive.
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RULE OF LAW IN INDIA:

➢ 1.The doctrine of rule of law was not known to ancient and medieval India. The king was
the fountain head of justice and the protector of all laws. He was considered to be above
the law.
➢ 2.During the British rule, the principle of the Rule of Law was neglected though this
principle was followed in Britain. The East India Company was interested in the expansion
of its trade, revenue and territorial expansion. It gave lesser importance to rule of law and
fair justice.
➢ 3. Even in 1694, East India Company dismissed the Chief Judge of the Admiralty Court of
Madras, John Dollen for the judgement against the Company on the pretext of taking a
bribe. It always preferred civil servants of the Company as judges. Chief Justice Parker and
Chief Justice Braddy II were also dismissed for their refusal to subordinate their
judgements to the wishes of the executive.
➢ 4. With the establishment of the Mayor’s Courts under the Charter of 1726, Judges started
to work with the spirit of judicial independence and rule of law and this resulted in conflict
between the judges and the Governors-in-Council. By the charter of 1753, the Judiciary
was made subservient to the executive.
➢ 5. When the Supreme Court of Calcutta was started under the Charter of 1774, Chief Justice
Impey acted as per the rule of law. So he was called back to England as he conflicted with
the Governor General.
➢ 6. During the Crown’s rule, Indian High Courts Act was passed in 1861 and High Courts
were given wide jurisdiction. The Law Commissions were appointed for the purpose of law
reforms. Judicial position improved much compared to the rule of the East India Company
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INTRODUCTION TO INDEPENDENT JUDICIARY3

“The bedrock of our democracy is the rule of law and that means we have to have an independent
judiciary, judges who can make decisions independent of the political winds that are blowing.”

An independent judiciary is the sine qua non of a vibrant democratic system. Only an impartial
and independent judiciary can stand as a bulwark for the protection of the rights of the individuals
and mete out even handed justice without fear or favour. The judiciary is the protector of the
Constitution and, as such, it may have to strike down executive, administrative and legislative acts
of the Centre and the states. For Rule of law to prevail, judicial independence is of prime necessity.
The independence of the judiciary is normally assured through the Constitution but it may also be
assured through legislations, conventions and other suitable norms and practices. The constitutions
or the foundational laws on judiciary are however, only the starting point in the process of securing
judicial independence. Ultimately the independence of the judiciary depends on the totality of a
favorable environment created and backed by all state organs including the judiciary and the public
opinion. The independence of judiciary also needs to be constantly guarded against the unexpected
events and the changing social, political, economic conditions; it is too fragile to be left unguarded.
In India, the question of independence of the judiciary has been a subject of heated national debate
over the last many years. It has exercised the minds of legislators, jurists, politicians and the
laymen. Both the supporters and the opponents have cogent arguments in support of their views.
This question assumes great importance whenever the Supreme Court holds a particular Act or
particular Clause of an Act passed by Parliament ultra vires of the constitution

PRE INDEPENDENCE-INDIAN JUDICIARY4

3 Poonam Kataria, “Judicial Independence in India: An Overview” 1

International Journal of Applied Research 397-400 (2015)
4 Poonam Kataria, “Judicial Independence in India: An Overview” 1
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➢ This year, India has completed 74 years of independence from the Crown Rule of British.
On 14th August, 1947 the Indian Independence Act, 1947, was given royal assent by the
British Parliament which made provisions for creating two independent dominions namely,
India and Pakistan. Consequently, India gained independence on 15th August 1947. Indian
Independence Act, 1947, marked the establishment of sovereignty of India which now
would be governed under a democratic framework.

➢ The post-independence era also saw major changes in the country’s judicial and executive
structure. The form and structure of government as of now is a result of its evolution which
has been shaped by various enactments. The organisation of judiciary at present differs
from that in the pre-independence era where most of its control was in the hands of the
British.

➢ Pre-independence Judiciary of India

➢ The Britishers started modifying the judiciary in India according to their conveniences with
a view to facilitate their rule over India. Warren Hastings who was the first Governor
General of India (1732-1818) established the civil administration system. Concurrently, he
also helped set up the Civil Court and Criminal Court in each district in 1772.

➢ In 1774, Sir William Jones who was one of the first judges of the Supreme Court of
Judicature of Bengal, took to learning Sanskrit and oversaw the authoritative translation of
Manusmriti.

➢ Lord Cornwallis brought various reforms in the legal and civil administration. To increase
efficiency in the working of judicial system, he also took the initiative to establish
provincial circuit criminal courts in places such as Kolkata, Patna, etc. A higher form of

International Journal of Applied Research 397-400 (2015)

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criminal court called Sadar Nizamat was set up in Kolkata. In addition to this, Mun–sifs
which were the local courts that looked over civil matters were also set up.

➢ Subsequently, around 1829, India saw the abolishment of circuit courts and the codification
of the law system and its procedures. Later in the year 1861, we witnessed the landmark
formation of the Indian Penal Code, the draft of which was prepared by Thomas Babington
Macaulay who chaired the First Law Commission in 1834. Thereafter, the Criminal
Procedure Code was passed by British Parliament in the year 1861.

➢ Taking a step ahead, the Government of India Act, 1935 established the Federal Court of
India in New Delhi on the 1st of October, 1937. It supervised all the three types of
jurisdiction; original, appellate and advisory. Later, the British Rule saw its end under the
Indian Independence Act, 1947. In the historic feat, India bore the title of an independent
dominion on what we now celebrate as our Independence Day.

INTRODUCTION TO SEPERATION OF POWERS5

It is a privilege and an honor for us to write about the legacy of Justice John Paul Stevens with
respect to the executive power specifically and the separation of powers more generally. Justice
Stevens has had a huge impact on this subject, which all of us care about deeply. Justice Stevens
was the author of two of the most momentous and consequential separation of powers opinions of
the last thirty years: Chevron U.S.A. Inc. v. NRDC1 and Clinton v. City of New York. 2 In the
first case, Justice Stevens wrote a seminal opinion for the Court arguing for deference by courts to
reasonable executive branch interpretations of law3 —a view that he later wisely qualified in
subsequent cases when some of his colleagues tried to take it too far.4 In the second case, Justice
Stevens limited presidential power by holding unconstitutional a statute that purported to give the
President a line item veto by delegating enormous impoundment powers to the President.5 The
Chevron opinion and its progeny recognized that the President and his executive subordinates are
often functionally lawmakers.6 The Clinton case sets outer limits on Congress’s power to delegate
its appropriations power to the President.7 Taken together, these two cases suggest that the very

5 Basu, DD 1986 Administrative Law Kamal Law House, Kolkata.

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idea of the separation of powers is in a state of crisis today. Congress often passes sweeping
delegations of legislative power to the Executive Branch,8 thereby placing courts in a quandary
when they are called upon to review the

BACKGROUND OF SEPARATION OF POWER6

➢ It is widely accepted that for a political system to be stable, the holders ofpower need to be
balanced off against each other. The principle of separation of powers deals with the mutual
relations among the three organs of the government, namely legislature, executive and
judiciary. This doctrine tries to bring exclusiveness in the functioning of the three organs
and hence a strict demarcation of power is the aim sought to be achieved by this principle.
This doctrine signifies the fact that one person or body of persons should not exercise all
the three powers of the government.

➢ Montesquieu, a French scholar, found that concentration of power in one person or a group
of persons /results in tyranny. And therefore for decentralization of power to check
arbitrariness, he felt the need for vesting the governmental power in three different organs,
the legislature, the executive, and the judiciary. The principle implies that each organ
should be independent of the other and that no organ should perform functions that belong
to the other.
➢ There would be an end of everything, were the same man or same body, whether of the
nobles or of the people, to exercise those three powers, that of enacting laws, that of
executing the public resolutions, and of trying the causes of individuals.
➢ Through his doctrine Montesquieu tried to explain that the union of the executive and the
legislative power would lead to the despotism of the executive, for it could get whatever
laws it wanted to have, whenever it wanted them. Similarly the union of the legislative

6Garg, B. L.1964 "Problem of the Separation of Judiciary in India." The Indian Journal of Political Science
25, no. 3/4: 331-38.
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power and the judiciary would provide no defence for the individual against the state. The
importance of the doctrine lies in the fact that it seeks to preserve the human liberty by
avoiding concentration of powers in one person or body of persons.
➢ ‘The accumulation of all powers, legislative, executive and judicial, in the same hands
whether of one, a few, or many and whether hereditary, self-appointed or elective, may
justly be pronounced the very definition of tyranny”.
➢ Therefore, separation of powers doctrine acts as a check against Tyrannical rule. The
purpose underlying the separation doctrine is to diffuse governmental authority so as to
prevent absolutism and guard against arbitrary and tyrannical powers of the state, and to
allocate each function to the institution best suited to discharge.

MONTESQUIEU’S DOCTRINE OF SEPARATION OF POWERS7

➢ Montesquieu expounds his theory of separation of powers to set forth the governmental
organization in order to safeguard the political liberty. He believed that the separation of
powers among the different organs of the government is the best safeguard against tyranny.
He pleads that each power must be exercised by a separate organ and a system of checks
and balances should thus be established for solidarity and harmony of the state.
➢ The theory of separation of powers among Legislative, Executive and Judicial branches of
government was best realized in the British Constitution. He came to realize that for
maintaining liberty, the separation of powers was absolutely essential. Montesquieu did not
rely upon observation. Locke and Harrington had taught him what to expect and for the rest
he adopted the myth which was current among the English themselves. Bolingbroke said,
“It is by this mixture of monarchial, aristocratically and democratically power blended
together in one system and by these three estates balancing one another, that our free
constitution of Government has been preserved so long inviolate.”
➢ According to Montesquieu there are three kinds of power:
o By virtue of the legislative power, the prince or magistrate exerts
temporary or permanent laws and amends or abrogates those laws, which
are contrary to the will of the subject.

7Garg, B. L.1964 "Problem of the Separation of Judiciary in India." The Indian Journal of Political Science
25, no. 3/4: 331-38.
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o By virtue of the executive powers, he makes peace or war, sends or receives

Ambassadors, establish the public security and provide protection against
invasions.By virtue of the judiciary powers, he is vested with the powers
to punish criminals and also to safeguard the life and property of the
individuals.
➢ When the executive and legislative are united in the same person, there can be no liberty
because apprehensions may arise. If the judiciary power be not separated from the legislative
and the executive then again there will be no liberty. When it is combined with the legislative,
the existence and liberty of people would be exposed to arbitrary rule. When it is combined
with executive organ, then there will be violence and oppression in the capacity of a mortal
God.
➢ It is quite obvious from all above cited discussion, that the separation of powers among the
three organs of governments fully ensures liberty and freedom, by imposing healthy checks
on the despotism of the government bureaucrats. Montesquieu was of the view that liberty
is an indispensable fundamental for human progress and glory. Everyone is born to enjoy it
without any distinction of color, creed and religion.

CRITICISM:8

➢ Montesquieu’s study of English constitution is not very correct until this day; there is no
full separation of powers between different governmental agencies. There the House of
Lords is a legislative as well as a judicial body. The Lord Chancellor partakes of all the
three functions of government.
➢ If all the branches are made separate and independent of each other, each branch will
endeavour to safeguard its interests and possibly may jeopardize other’s interest.
➢ Perfect separate power in the functions of the government is impossible.
➢ Mill was of the view “the separation of powers will result in a clash between the three
different organs of the government because each one will take interest only in its own
powers.”
➢ In spite of all inconsistencies in the theory of separation of powers, it too wielded a
considerable influence in Pakistan, France and America. Montesquieu is placed in the first

8Garg, B. L.1964 "Problem of the Separation of Judiciary in India." The Indian Journal of Political Science
25, no. 3/4: 331-38.
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rank of those distinguished thinkers who in the eighteenth century, held high standard of
idealism in all that pertains to liberty.

CONCLUSION:

➢ From the above-mentioned discussion, it can be concluded that Supremacy of law is the
Aim, Rule of Law is the best tool to achieve the Aim. Some of the efforts are also taken by
the court where the Rule of Law is linked with Human Rights of the people. Strategy is
being evolved by the court by which government can be forced not only to submit to law
but also to create conditions where capacities can be developed by the people so as to enjoy
their rights in proper and meaningful manner.In the Indian society, the rule of law has not
achieved the intended results. A few examples where rule of law was upheld by our
judiciary and ensured justice can be clearly seen in the creation of new avenues seeking
remedies for human rights violations by filing of PIL pleas.
➢ The pre-independence judiciary of India was under direct control of the British rule and
the post-independence era, marked an organised and an independent judiciary. The role of
judiciary has been significantly increased by the Constitution of India which is the longest
written Constitution of the world. The Independent judiciary has proved to be a driving
factor for an efficient delivery of justice in India by upholding the principles of a democratic
system.
➢ The doctrine of separation of powers in the strict sense is undesirable and unpractical and
therefore till now it has not been fully accepted in any of the country, but this does not mean
that the doctrine has no relevance in the world of today. The logic behind this doctrine is
still valid.The logic behind the doctrine is of polarity rather than strict classification,
meaning thereby that the centre of authority must be dispersed to avoid absolutism. It has
been well said by Lord Action, "Power corrupts and absolute power tends to corrupt
absolutely" Conferment of power in a single body leads to absolutism. Thus, though it is
important that power shouldn't get concentrated in one hand, a system of checks and
balances must be maintained for a smooth functioning.
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BIBLIOGRAPHY:

Books:
• Hariharan, Rule of Law in India, Academike, November 16 2014 Avasthi, A.P, Indian
Government and Politics, Narain Agarwal, Agra, 2001
• Poonam Kataria, “Judicial Independence in India: An Overview” 1
• Garg, B. L.1964 "Problem of the Separation of Judiciary in India." The Indian Journal of
Political Science 25, no. 3/4: 331-38.
• Basu, DD 1986 Administrative Law Kamal Law House, Kolkata.

Web addresses:
o THE BASIC FEATURES OF RULE OF LAW AS PER DICEY:
https://www.legalserviceindia.com/legal/article-85-development-of-the-rule-of-
law.html by preeti Ramanujan