Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018
human rights, independence of judiciary, separation of powers, etc. The framers of Indian
Constitution duly recognized the aforesaid precepts of liberal and substantive democracy with rule
of law as an important and fundamental pillar. At the same time, in the scheme of the Constitution,
it is the judiciary which is assigned the role of upholding rule of law and protecting the Constitution
and democracy.
The essence of rule of law is to preclude arbitrary action. Dicey, who propounded the rule of law,
gave distinct meaning to this concept and explained that it was based on three kindered features,
which are as follows:
(i) absence of arbitrary powers on the part of authorities;
(ii) equality before law; and
(iii) the Constitution is part of the ordinary law of the land.
There are three aspects of the rule of law, which are as follows:
(a) A formal aspect which means making the law rule.
(b) A jurisprudential or doctrinal aspect which is concerned with the minimal condition for the
existence of law in society.
(c) A substantive aspect as per which the rule of law is concerned with properly balancing between
the individual and society.
When we talk of jurisprudential rule of law, it includes certain minimum requirements without
which a legal system cannot exist and which distinguished a legal system from an automatic system
where the leader imposes his will on everyone else. Professor Lon Fuller has described these
requirements collectively as the 'inner morality of law'. In addition to jurisprudential concept, which
is important and an essential condition for the rule of law, the substantive concept of the rule of law
is equally important and inseparable norm of the rule of law in real sense. It encompasses the 'right
conception' of the rule of law propounded by Dworkin. It means guaranteeing fundamental values of
morality, justice, and human rights, with a proper balance between these and the other needs of the
society. Justice Aharon Barak, former Chief Justice of Israel, has lucidly explained this facet of rule
of law in the following manner:
The rule of law is not merely public order, the rule of law is social justice based on
public order. The law exists to ensure proper social life. Social life, however, is not a
goal in itself but a means to allow the individual to live in dignity and develop
himself. The human being and human rights underlie this substantive perception of
the rule of law, with a proper balance among the different rights and between human
rights and the proper needs of society. The substantive rule of law is the rule of
proper law, which balances the needs of society and the individual. This is the rule of
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