Imperial Journal of Interdisciplinary Research (IJIR)
Vol-2, Issue-7, 2016
ISSN: 2454-1362, http://www.onlinejournal.in
Rule of Law ‘protecting’ Human Rights
Shubhani Joshi
in their judgments. For example, in an online search 3
of the judgments, of Supreme Court as well as of High
Courts, the reportable judgments till date 4 resulted in
26,147 5 total hits for the phrase ‘Rule of Law’. Hence
there is no doubt that Rule of Law diffuse through the
constitution as an underlying principle. Even,
Supreme Court in its judgments 6 has declared Rule of
Law as one of the basic feature of Indian Constitution
which is the very essence of the Constitution and thus,
cannot be taken away even by any constitutional
amendment.
Abstract: This paper presents the very
scenario of current human rights violations and its
impact over the rule of law or in other words it
focuses over the importance of the principle of Rule of
Law to protect the rights of the human beings.
Human Rights are always considered as
rights which are inherent to all humanbeings,
regardless of any discrimination on any ground.
Human Rights thus, are of a non-discriminatory nature
meaning thereby that no-one can be excluded or
restrained from them and each and every human being
is entitled to them. 1 Human rights are always
available to an individual since his/her birth thus they
are also considered as the very essential and basic
rights without which the overall development of the
human kind is impossible. When it comes to Human
Rights, there exist different categories of the same
such as political rights, economic rights, civil rights,
social rights, cultural rights.
Rule of Law in the common parlance when
applied to the powers of the government, requires that
every government authority which does some act
which would otherwise be a wrong for example taking
an individual’s land or which infringes a person’s
liberty or freedom, must be able to justify its action as
authorized by law and in each and every case it will
mean authorised directly or indirectly by Act of
Parliament. The secondary meaning of Rule of Law is
that the government must be conducted within a
framework of recognised rules and principles which
restrict the discretionary powers. The third meaning of
Rule of Law highlights the supremacy of courts and
independence of judiciary i.e. if there is no authority
to protect and enforce the rights which have been
granted to the individuals, their existence in any
document is of little importance.
Rights
Dr. Chitra Singh**
Though human rights having been regarded
as the backbone or the basis of the just society yet too
frequently they have been violated, destroyed,
disregarded and revoked whenever they are observed
or viewed as an obstacle to political, environmental or
economic objectives. 2 Human rights protection
enables every human being to pursue their desired
goals and to fulfill them. Under Indian Constitution
these human rights have been found to be mentioned
under part III i.e. fundamental rights and part IV i.e.
directive principles of state policy along with the
preamble and fundamental duties.
When it comes to protecting Human Rights
there enters the principle of Rule of Law which has
been made the protector or guardian of Human Rights.
Though Rule of Law has not been found mentioned
expressly anywhere in the Indian Constitution, the
term has been seen frequently used by Indian Courts
*Research Scholar, Singhania University, Rajasthan.
**Research Guide, Singhania University, Rajasthan.
1
http://www.endslaverynow.org/act/educate/humanrights-and-slavery.
2
http://worldjusticeproject.org/issues/human-rights.
For the past, various instances have been
noticed whereby the humanity has been shaken and
threats have been imposed over the human rights of
individuals. For example, the occurrence in Dadri 7 ,
Uttar Pradesh wherein a Muslim man was lynched to
death and his family assaulted in view of (false) bits of
gossip that they had put away meat (beef) in their
home. Different states like Karnataka, Haryana,
Maharashtra, and Gujarat are all in the race for
ventures. Here, Karnataka as of late saw an occurrence
where religious narrow mindedness prompted the
3
http://www.scconline.com/Members/SearchResult20
14.aspx.
4
24.05.2016.
5
2117 of Supreme Court and 24030 of High Courts.
6
Indira Nehru Gandhi vs Raj Narain, AIR 1975 SC
2295; S. P. Gupta vs Union of India, AIR 1982 SC
149.
7
http://indianexpress.com/article/india/indiaothers/next-door-to-delhi-mob-kills-50-year-oldinjures-son-over-rumours-they-ate-beef/
Imperial Journal of Interdisciplinary Research (IJIR)
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Imperial Journal of Interdisciplinary Research (IJIR)
Vol-2, Issue-7, 2016
ISSN: 2454-1362, http://www.onlinejournal.in
homicide of a previous college professor; Haryana has
khap panchayats running parallel courts; Maharashtra
is attempting to head out transient works 8 , also
Hyderabad University witnessing suicide by its dalit
student. 9 Every now and then there have been
incidents noticed of violation of human rights in a
country that claims itself to be abided by Rule of Law.
Even, one of the most ancient document, The
United Nations' Universal Declaration of Human
Rights (UDHR) notices in the preamble that "human
rights ought to be ensured by the principle of law,"
despite the fact that this is the main notice of Rule of
Law in UDHR. Experts of Rule of Law think of it as
principally as a measure of democracy. They
additionally investigate the institutional viewpoints
that are important to work Rule of Law towards
changes. This would suggest Rule of Law as both
solution and measure. The standard of Rule of Law is
embedded in India yet unfortunately the term is
frequently utilised (and abused) in talk and political
contentions.
disintegration and in-streets into the space of Rule of
law, the human rights will be at risk. The Supreme
Court in numerous judgments has offered supremacy
to the directive principles in inclination to
fundamental rights of the citizens. Rights and
obligations run parallel and they are supplementary to
each other. Rights without comparing obligations and
commitments on the part of nationals will make these
rights futile. Then again, obligations of the individual
towards State and common society will reinforce the
magnificence of Rule of law which would make ready
for a just social order in view of the standards of
liberty, equality and protection of human rights.
Appropriately, major obligations, in this way, have
been cherished in the Constitution. Law is the
statement of the general will of the general public.
Law directs human behaviour, exercises and issues
and their association with fellowmen, State and
society. Law makes a man trained.
Globally, India was positioned 59th in the
Rule of Law Index, 2015 discharged by the World
Justice Project (WJP) 10 which gives unique, unbiased
information on how the Rule of Law is experienced by
the overall population in 102 nations around the
world. An aggregate of 102 nations were looked into,
and Denmark was positioned first and Venezuela was
positioned the last. India's quick neighbours: Nepal,
Sri Lanka, Bangladesh and Pakistan were positioned
48, 58, 93 and 98 individually. The said Index
presents a picture of the Rule of Law in each country
by providing them the rankings organised around nine
themes which are constraints on government powers,
absence of corruption, open government, fundamental
rights, order and security, regulatory enforcement,
civil justice, criminal justice and informal justice.
There might be incidences noticed of human
rights being infringed yet the judicial interventions,
time to time, has come up in safeguarding most of the
individual’s right. Supreme Court in most of the cases
has laid down the proposition that it is the duty of the
state to preserve and protect the law and the
constitution and that it cannot permit any violent act
which may negate the rule of law. It is satisfying to
note that the Rule of law and the idea of human rights
are inseparably joined and they are entwined. The
vindication of human rights is subject to run the rule
of law, to be nourished and supported by the state and
common society. In the event that there is decrease,
8
http://www.huffingtonpost.in/nikhil-g-nair/the-ruleof-law-conundrum_b_8705982.html
9
http://indianexpress.com/topic/rohith-suicide-case/
10
http://data.worldjusticeproject.org/#table
Imperial Journal of Interdisciplinary Research (IJIR)
Law has turned into an instrument of social
building and law has components of advancement and
social solidarity. We are not living in a police state
and our country is a vote based i.e. democratic nation
in view of rule of law and appreciation for human
rights. Law has limiting power as well as it has
additionally positive substance to serve societal
necessities. In perspective of the progressive changes
acquired in the sphere of administration of justice,
judicial process in the idea of Rule of law has been
reinforced throughout the years. Supreme Court on
various occasions either under the specific provisions
enumerated under fundamental rights for example
Article 14, 19 and most importantly under Article 21
has come up with various aspects of human rights. It
has always turned to be a protector of these rights.
Indian society has witnessed various instances of
human rights violation be that be through any crime
being committed against any human being or any
wrong/ discrimination being done against any human
being. Though such instances are gradually increasing
either by way of corruption, terrorism or poverty,
there have been a strengthened judiciary always
protecting, safeguarding or directing to stop violations
of human rights be it be of any form or type.
Hence, it is quite evident that the concept of
rule of law is gaining importance and attention and
judicial efforts are made to make it stronger. On a
brief overview of the constitutional provisions and
judicial decisions, it can be safely concluded that the
Indian Constitution enshrines the rule of law as a
fundamental governance principle, though the term is
not mentioned expressly in the text of the
Constitution. Having said this, there are several
challenges that pose threat to building a society based
on robust rule of law framework. Continued socioeconomic inequalities (despite affirmative active
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Imperial Journal of Interdisciplinary Research (IJIR)
Vol-2, Issue-7, 2016
ISSN: 2454-1362, http://www.onlinejournal.in
provisions), large population, pervasive corruption
(including in judiciary), judicial delays, law and order
problems in view of regionalism and Naxalism, and
the general apathy of people towards the rule of law
are matters of serious concern. Despite these
challenges, there is no doubt about the constitutional
mandate or government's commitment to establishing
a rule of law society.
Imperial Journal of Interdisciplinary Research (IJIR)
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