CHANAKYA NATIONAL LAW

UNIVERSITY, PATNA

PROJECT OF CONSTITUTIONAL LAW-I

INDIA AS A SOVEREIGN DEMOCRATIC REPUBLIC

SUBMITTED TO: -
Dr. Anirudh Prasad
FACULTY OF Constitutional Law-I

SUBMITTED BY: -
ADITYA VIJAY SINGH
ROLL NO. -1507
B.A. LL. B
5TH SEMESTER
ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges, I have ever
faced. Though this project has been presented by me but there are many people
who remained in veil, who gave their all support and helped me to complete this
project.

First, I am very grateful to my subject teacher DR. ANIRUDH PRASAD

without the kind support of whom and help the completion of the project was a
herculean task for me. He donated his valuable time from his busy schedule to
help me to complete this project and suggested me from where and how to
collect data.

I acknowledge my friends who gave their valuable and meticulous advice which
was very useful and could not be ignored in writing the project. I want to
convey most sincere thanks to my 4th year senior Shri Ashutosh Kashyap, for
helping me throughout the project.

Last but not the least, I am very much thankful to my parents and family, who
always stand aside me and helped me a lot in accessing all sorts of resources.

I thank all of them!

Aditya Vijay Singh

R.No.1507,
SEMESTER 5TH
B.A.L.L.B. (Hons.)
 CONTENTS

INDIA AS A SOVEREIGN DEMOCRATIC REPUBLIC ................................................................................................ 1

ACKNOWLEDGEMENT......................................................................................................................................... 2
1. INTRODUCTION ......................................................................................................................................... 4
1.1. OBJECTIVE OF STUDY ........................................................................................................................... 5
1.2. RESEARCH METHODOLOGY ................................................................................................................ 5
1.3. FORMATTING METHODOLOGY ............................................................................................................ 5
1.4. LIMITATION OF THE STUDY ................................................................................................................. 5
1.5. HYPOTHESIS .......................................................................................................................................... 6

 India became a Sovereign............................................................................ Error! Bookmark not defined.

 Democratic Republic with the commencement of Constitution of India ...... Error! Bookmark not defined.
2. SOVEREIGNTY ............................................................................................................................................ 7
3. DEMOCRACY ............................................................................................................................................ 12
4. REPUBLIC ................................................................................................................................................. 16
5. DIFFERENCE BETWEEN DEMOCRACY AND REPUBLIC .............................................................................. 18
6. CONCLUSION ........................................................................................................................................... 20
BIBLIOGRAPHY .................................................................................................................................................. 21
 1. INTRODUCTION

As defined by R.H. Soltan1, “Sovereignty is the exercise of the final legal coercive
power of the State.” According to another definition by Woodrow Wilson2, “Sovereignty is
the daily operative power of framing and giving efficiency to the laws.”
In other words “sovereign” stands for the power which is absolute and uncontrolled
within its own sphere3. In the words of Cooley, “A State is sovereign when there resides
within itself a supreme absolute power, acknowledging no superior.” The term ‘sovereign’
used in the Preamble seems to have been taken from Article 5 of the Constitution of Ireland.4
The word “sovereign” emphasizes that India is no more dependent upon any outside
authority. However, India is still a member of the Commonwealth of Nations but its
membership of the Commonwealth of Nations is not inconsistent with her independent
sovereign status5 and it is merely a voluntary association of India and it is open to India to
cut off this association at her will, and that it has no Constitutional significance.
In very simple and concise terms we can say that the intention behind inserting the
word “sovereign” into the Preamble was to highlight the face that India is not dependent on
any outside authority and that both externally and internally India is a sovereign. India
recognizes no foreign power as its master.
The term democracy has been derived from the Greet root ‘demos’ which means ‘the
people’: ‘Kratos’ stands for ‘rule’ or ‘government’. Thus literally, democracy signifies ‘the
rule of the people.’6 The definition given by Abraham Lincoln reads “Democracy is the
government of the people, by the people, and for the people.”7
The Constitution of India sets up India a “Democratic Republic”. Democracy may be
properly defined as that form of Government in the administration of which the mass of adult
population has some direct or indirect share.8 The Supreme Court in Mohan Lal v. Dist.
Magistrate Rai Bareilly,9 observed: “Democracy is a concept, a political philosophy, an
ideal practiced by many nations culturally advanced and politically mature by resorting to

1
Myneni, SR., Political Science for Law Students, 12th Ed., Allahabad Law Agency, Allahabad, 2018. 100.
2
Ibid.
3
Kumar, Narender, Constitutional Law of India, Allahabad Law Agency, 2018, 27.
4
Kumar, Narender, Constitutional Law of India, Allahabad Law Agency, 2018, 27.
5
Pandey, J.N., The Constitution of India, 47th Edition, Central Law Agency, Allahabad, 2010, 31.
6
Gauba, OP., An Introduction to Political Theory, 7th Edition, Macmillan India Ltd., Delhi, 2014. 421.
7
Ibid.
8
Kumar, Narender: Constitutional Law of India, Allahabad Law Agency, 2018, 31.
9
AIR 1993 SC 2042.
governance by representatives of the people elected directly or indirectly.” Democracy thus
may be direct or indirect. In the case mentioned above it was also inferred that direct
democracy is one where the people directly exercise their power of the government and carry
on the government and change the government by their direct vote. In an indirect democracy,
the people elect their representatives who carry on the administration of the government
directly.
The term Republic is used in distinction to ‘Monarchy.’10 In other words India is a
republic because the head of the State is not a hereditary monarch. Hence, in India the head
of State is not a heredity position as seen in the case of the Queen of the United Kingdom of
Great Britain and Northern Ireland; the head of the state in India is an elected person who is
elected by the citizens of India. The Constitution of India sets up in India a ‘republican form
of Government’, in which, the ultimate power resides in the body of the people, enfranchised
by universal adult franchise. The President of India, is the Executive Head of the State, is
elected by the people and holds office for a term of five years.

1.1. OBJECTIVE OF STUDY

The objective of the researcher’s study on this topic is to dissect and give a holistic analysis
of the various aspects of the Indian Government structure. This project analyses various
provisions related to the same.

1.2. RESEARCH METHODOLOGY

The nature of research methodology adopted by the researcher for this particular topic is
purely doctrinal. The researcher has used resources available at the library of CNLU and the
World Wide Web. Thus, the researcher of this project has used secondary data for the
successful completion of this project. No primary data has been included.

1.3. FORMATTING METHODOLOGY

The project is in Times New Roman, font Size 14 for the main headings and 12 for other
parts of the study with 1.5 spacing. The footnotes are of font size 10 with 1.0 spacing.
Uniform method of footnoting has been followed.

1.4. LIMITATION OF THE STUDY

10
Kumar, Narender, Constitutional Law of India, Allahabad Law Agency, 2018, 32.
Due to paucity of time and lack of resources, a complete comparative study with scheme
prevalent in other nations could not be be undertaken by the researcher. However exhaustive
use the internet and library resources for the successful completion of this project

1.5. HYPOTHESIS

 India became a Sovereign

 Democratic Republic with the commencement of Constitution of India
1.6. SOURCES OF DATA

 I. Primary sources- The Constitution of India Act,1950

 II. Secondary sources- Books on constitutional law, websites, Journal, articles, magazines
 2. SOVEREIGNTY

A State and the doctrine of sovereignty are inseparable parts of the same machine. In the
simplest terms, the doctrine of sovereignty refers to the quality of enjoying a superseding
authority over a geographical area or a populace. Sovereignty means the supreme power of
the state over all individuals and associations within its own territorial limits. This is internal
sovereignty of the state whereby the state is the final authority to make laws, issue commands
and take political decisions which are binding upon all individuals and associations within its
jurisdiction. It has the power to command obedience to its laws and commands and to punish
the offenders who violate the same. At the same time, sovereignty also involves the idea of
freedom from foreign control, i.e., the independence of the state from the control or
interference of any other state in the conduct of its international relations. This is what is
called external sovereignty whereby a state has the power to independently determine its own
foreign policy and has the right to declare war and make peace. At the same time, external
sovereignty implies that each state, big or small, by virtue of its sovereign status is equal to
every other state. It can command no other state and it cannot itself be commanded by any
other state11.

Sovereignty is an essential element of the state and with every change in the conception of
the state, the concept of sovereignty has also varied from age to age. The Greek philosopher
Aristotle spoke of the “supreme power” of the state. The Roman jurists were also familiar
with the notion. During the Middle Ages, the idea of sovereignty was associated either with
the authority of the king or with the Pope.

Characteristics of Sovereignty

There are many characteristics or attributes of sovereignty. These are discussed below:

 Absoluteness: Sovereignty is regarded as absolute. This means that neither within the
state nor outside it , is there any power which is superior to the sovereign. The will of
the sovereign reigns supreme in the state. His obedience to customs of the state or
international law is based on his own free will.

11
Hugo Grotius, History of International Law (2nd Edn., Pg. 26).
  Permanence: The sovereignty of a state is permanent. Sovereignty lasts as long as an
independent state lasts. The death of a king or president or the overthrow of the
government does not mean the destruction of sovereignty as the ruler exercises
sovereign power on behalf of the state and therefore, sovereignty lasts as long as the
state lasts.

 Universality: Sovereignty is a universal, all-pervasive or all-comprehensive quality in

the sense that it extends to all individuals, groups, areas and things within the state.
No person or body of persons can claim exemption from it as matter of right. The
immunity granted to diplomats from other countries is only a matter of international
courtesy and not of compulsion.

 Inalienability: Sovereignty is inalienable. It means that the state cannot part with its
sovereignty. The state as a sovereign institution ceases to exist, if it transfers its
sovereignty to any other state.

 Indivisibility: As sovereignty is an absolute power, it cannot be divided between

different sets of individuals or groups. In every state, sovereignty must be vested in a
single legally competent body, to issue the final commands. Division of sovereignty is
bound to give rise to conflicting and ambiguous commands.

 Imprescriptibility: This implies that sovereignty can neither be destroyed nor lost if it
has not been exercised for a long period. A people may not have exercised
sovereignty for some time due to control by a foreign power. But non-exercise of
sovereign power does not put an end to sovereignty itself. It can only shift to a new
bearer.12

 Originality: The most important characteristic of sovereignty is its original character.

Sovereignty cannot be manufactured. Dependence on another for supreme power
cannot make a state a sovereign one.

Who, is the real sovereign in India in terms of law making power is ambiguous to say the
least. Who is the authority in India that can convoke a new Constituent Assembly without the
prospect of judicial review and possible judicial veto? If the Indian Parliament under the
present Constitution should call it, it can do so only by enacting a law. That law is, however,

12
Lord Bryce, Studies in the History and Jurisprudence, Vol. II, p. 537
subject to judicial review and is bound to be vetoed by the court since its object is to over-
ride the judgment of the court. If, then, the Indian Parliament under the present Constitution
cannot call a new Constituent Assembly, who can? It has been said that the constituent power
vests in the sovereign people of India and they can convoke a new Constituent Assembly,
even as it was claimed that they convoked the first Constituent Assembly in 1946. But was it
true?

The Preamble of the current Constitution of India said that the People of India had resolved to
constitute India into a Sovereign Republic and had enacted the Constitution in the Constituent
Assembly. Was this claim based on constitutional facts or on political rhetoric? The Indian
Constituent Assembly met for the first time on December 9, 1946. Accordingly, the idea of
popular sovereignty implies that the supreme power in the state rests with the people. The
Preamble to the Constitution of India contains the idea of popular sovereignty. It begins with
the phrase, “WE, THE PEOPLE OF INDIA …” and ends with the phrase, “…HEREBY
ADOPT, ENACT, AND GIVE TO OURSELVES THIS CONSTITUTION.” 13
. It was not
called into being by the people of India by virtue of their sovereign authority but by the
British Governor General in accordance with, and subject to, the statement of the British
Cabinet Mission. The Assembly had no more constitutional or sovereign status than, say, the
Indian Round Table Conference called by the British Government in 1930-’32. In moving the
Resolution on “Alms and objects” on December 13, 1946, Pandit Jawaharlal Nehru, then
Prime Minister of India, said: “You all know that this Constituent Assembly is not what many
of us wished it to be. It had come into being under peculiar conditions, and the British
Government had a hand in its birth. They have attached to it certain conditions. We accepted
the State Paper, which may be called the foundation of this Assembly.”14

Mr. N. Gopalaswami Aiyangar sought to claim “sovereignty” to the Assembly in “residuary”

matters which were not covered by the limitations imposed by the Cabinet Mission. But, Sir
Alladl Krishnaswami Iyer was not impressed by the argument. He said on December 19,
1946, that, though the Cabinet Mission Statement was not statutory, it was not open to the
Constituent Assembly to deviate from its main principles. Prime Minister Nehru clinched the
matter finally on April 28, 1947, when he admitted that the Constituent Assembly had
accepted the Cabinet Mission Statement of May 16, 1946 and was functioning in accordance
13
Jibin Mary George, Doctrine of Sovereignity,(7 Sept,2018,01:37 AM),
https://www.lawctopus.com/academike/doctrine-of-sovereignty/( last updated on April 30,2015)
14
P.Kodanda Rao, Is India a Sovereign?,(6 Sept,2018,01:15 AM),
http://www.yabaluri.org/CD%20&%20WEB/isindiasovereignapr69.html
with it, and there the matter ended. He added:“We rather doubted the authority of the
Constituent Assembly to deal with all manner of matters, that is to say, the Constituent
Assembly, as it is constituted at present.”

The Constituent Assembly was not free even to give its own interpretation to the Cabinet
Mission Statement regarding “grouping.” Nehru did not claim that the Assembly was
“sovereign.” Though it was not limited by an Act of the British Parliament, it was limited by
British Cabinet Mission Plan.

The Indian Independence Act was passed by the British Parliament and received the Royal
Assent on July 18, 1947. Dr. K. M. Mushi claimed on July 14, 1947, that the limitations
imposed on the Constituent Assembly by the Cabinet Mission had been removed. But
simultaneously the Constituent Assembly became a statutory body, governed by the Indian
Independence Act of the British Parliament. If, before the Act, the Assembly was based upon,
and limited by, the Cabinet Mission, after the Act it was based upon, and limited by, the Act.
Both of them were made by “sovereign” Britain and not by India.

On July 25, 1947, Mr. Sri Prakasa questioned the constitutional propriety of the whole affair.
Pandit Nehru admitted the charge and secured the appointment of a committee of very
eminent constitutional lawyers to evolve a method to validate the impropriety and sustain the
claim to sovereignty of the Assembly, as suggested by Mr. Sri Prakasa. But the Committee
never reported, since the British Parliament, by a clause in the Indian Independence Act,
validated all the actions of the British Governor-General retrospectively15.

If the Indian Constituent Assembly had been convoked by the people of India by virtue of
their sovereignty, the British Government would have had no constitutional part in its
convocation composition and functions even as it had no part in the convocation, composition
and functions of Constituent Assemblies in, say, America or France.

The Indian Independence Act conferred Dominion Status on India and not “sovereignty”, if
only because no sovereign state, by an Act of its legislature, can confer sovereignty on
another state, since it is constitutionally competent to repeal its own enactments. The
sovereign State can, by a policy of political self-restraint, refrain from interfering with the
policies of the constitutionally subordinate and non-sovereign State, as even Britain does not

15
P.Kodanda Rao, Is India a Sovereign?,(6 Sept,2018,01:15 AM),
http://www.yabaluri.org/CD%20&%20WEB/isindiasovereignapr69.html
interfere with the doings of the Dominions. The latter have political autonomy, but not
constitutional sovereignty, on a par with Britain. Similarly, India has political autonomy as
the other Dominions and Britain, but has not constitutional sovereignty as Britain.

It may be recalled that, when Mr. Gopala Krishna Gokhale was once challenged if there was
any instance of a subject country attaining freedom by constitutional action, he had said that
the last chapter of constitutional developments had not yet been written, and that it might be
given to India to write a new chapter by attaining her political freedom by constitutional
means. His hope has been realised. India won her freedom constitutionally by an Act of the
British Parliament, and not after snapping her constitutional relation with Britain as America
had done.In the whole Commonwealth Britain alone is constitutionally sovereign, while all
its members, including Britain and India, have equal political autonomy. There is thus no
sovereign authority in India which can constitutionally convoke a new Constituent Assembly
to make a new Constitution.

Mr. Nehru decided that India should stay in the Commonwealth as an equal member with the
others. He went further and acknowledged the British Sovereign as the Head of the
Commonwealth, which meant that the President of India as the Head of the member State has
a status lower than that of the British Sovereign, the Head of the Commonwealth. He even
invited Lord Mountbatten to be the first constitutional Governor-General of India. These
developments were more mature signs of international co-operation within the smaller and
more effective association than the United Nations, in spite of conflicts which are not
unknown to closer families. Mrs. Indira Gandhi, the present Prime Minister of India, has done
wisely in rejecting the pressure to quit the Commonwealth and in adhering to it as her father
had done16.

16
P.Kodanda Rao, Is India a Sovereign?,(6 Sept,2018,01:15 AM),
http://www.yabaluri.org/CD%20&%20WEB/isindiasovereignapr69.html
 3. DEMOCRACY
Democracy is a form of government in which all eligible citizens participate equally—either
directly or through elected representatives—in the proposal, development, and creation of
laws. It encompasses social, economic and cultural conditions that enable the free and equal
practice of political self-determination.17And when we consider India the success of
democracy defies many prevailing theories that stipulate preconditions.18 Indian democracy is
best understood by focusing on how power is distributed.

The term originates from the Greek word “demokratia”, “rule of the people” which was
coined from (dêmos) “people” and (kratos) “power” or “rule” in the 5th century BCE to
denote the political systems then existing in Greek city-states, notably Athens.

PLATO- Democracy is a charming form of government, full of variety and disorder, and
dispensing a sort of equality to equals and unequal alike.19

ARISTOTLE has rightly said- “Democracy is when the indigent, and not the men of
property, are the rulers.”20

Democracy means simply the bludgeoning of the people by the people for the people.

Democracy in India-

The decision to adopt cabinet system of democracy was the result of a long decision in the
assembly in one of its earlier sessions. It had in its support the favourable recommendations
of the constitution committee presided over by J.L.NEHRU.

The 2 issues which were raised during the discussion were:

(i) What would make for the strongest executive consistent with a Democratic Constitutional
Structure?

(ii) What was the form of executive which was suited to the conditions of this country?

17
http://www.sciencedaily.com/articles/d/democracies.html retrieved on 6 Sept,2018 01:45 AM
18
http://democracyatwork.wikispaces.com/6 Sept,2018 01:47 AM

19
http://www.brainyquote.com/quotes/quotes/a/aristotle124800.html6 Sept,2018 01:53 AM

20
http://schools-wikipedia.org/wp/d/Democracy.htm 6 Sept,2018 01:59 AM
K.M. MUNSHI has replied to this question:“The strongest government and the most elastic
executive have been found to be in England and that is because the executive powers vest in
the Cabinet supported by a majority in the Lower House which has financial powers under
the constitution.Our constitutional traditions have been parliamentary and we have now all
our provinces functioning more or less on the British Model. Today, the Dominion
government of India is functioning as a full- fledged parliamentary government.21

“After this experience why should we go back upon the tradition that has been built for over a
hundred years and try a novel experiment.”

Emergency- 26th June, 1975

That morning the Bombay Edition of TIMES OF INDIA Printed in its OBITUARY
COLUMN that read:

“DEMOCRACY, Beloved husband of TRUTH, loving father of LIBERTIE, Brother of

FAITH, HOPE AND JUSTICA expired on 26th JUNE”.

This was the day when the wee hours of night just passed, and Mrs. Gandhi had been
composing DEMOCRACY’S DEATH NOTICE.The government’s action was not utterly
without justification. Opposition parties’ frustration with Mrs. Gandhi imperturbability and
their own powerlessness had boiled over. The two sides’ behaviour had combined to stretch
democracy until it snapped.This was an aberration in the history of INDIAN DEMOCRACY,
and also was the culmination of long tendencies.

With the sweep of her hand, MRS GANDHI had snuffed out democracy. Repression would
be piled upon Repression. The government attacked liberty first, this being the most
dangerous to it.22 On 27 June, a PRESIDENTIAL ORDER issued suspended the RIGHT TO
MOVE TO THE COURTS For the enforcement of FUNDAMENTAL RIGHTS guaranteeing
the citizens-

 Article 14- equality before law and equal protection of the law

21
https://docs.askives.com/who-was-allowed-to-vote-according-to-the-declaration-of-the-rights-of-
man-and-of-the-citizen.html 6 Sept,2018 02:05 AM
22
http://www.nosmut.com/Democracy.html 6 Sept,2018 02:11 AM
  Article 21- no deprivation of life and liberty except according to procedure
established by law.

 Article 22- no detention without being informed of the grounds.

 Section 144 (Cr.Pc) – Under this meeting of 5 or more people were banned.

The elections held between 16 and 20 March dealt the congress party a massive defeat almost
everywhere. It deprived party of all its seats from BIHAR, UTTAR PRADESH, WEST
BENGAL, PUNJAB etc. Out of 542 seats JANTA PARTY won 270 seats and Congress 153
seats. INDIRA GANDHI lost to RAJ NARAIN. Around thirty four central government
ministers were defeated.

Democracy From The Eyes Of Nani A. Palhivala

SIR NANI A. PALKHIVALA has argued in the PRIVY PURSE CASE- “The survival of our
democracy and the unity and integrity of the nation depend upon the realisation that
constitutional morality is no less essential than constitutional legality. DHARMA
(Righteousness; sense of public duty or virtue) lives in the hearts of public men; when it dies
there, no constitution, no law, no amendment can save it.”23

“Palkhivala had deep respect and indeed reverence for the Constitution and the essence of
democracy furrowed in it. He realised the importance of preserving the cardinal values of the
Constitution, and democracy its one of the basic and essential features". HE SAID:
“Constitution is intended not merely to provide for the exigencies of the moment, but to
endure over the ages and democracy is an instrument which will ensure this. Constitution
was meant to impart such a momentum to the living spirit of rule of law that DEMOCRACY
in India may survive in India beyond our own times. Constitution provides for stability
without stagnation and growth and without destruction of human values. He lamented that the
recent amendments had only achieved stagnation without stability. Democracy will die as
human values will be left without growth.

HE ALSO QUOTED ONCE AGAIN: “Some men look at constitutions with sanctimonious
reverence and deem them like the Ark of the Covenant too scared to be touched. They ascribe
Democracy of the India to the men of the pre-ceding age wisdom more than human and

23
http://www.preservearticles.com/2011111216798/essay-constitution-of-india-has-adopted-the-
british-model-of-the-cabinet-system.html 6 Sept,2018 02:22 AM
suppose what they did, are beyond amendment. I am certainly not an advocate for frequent
and untried changes in laws and democracy in the constitution. But I know that the laws and
institutions must go hand in hand with the progress of human mind. As new discoveries are
made, new truths discovered and manners and opinions change in a democracy. The change
of circumstances and institutions also must advance and keep pace with the times.”

He has appreciated the saying of Nehru in his words: “The democracy of Constitution which
is unchanging and static, it does not matter how good it is, how perfect it is, is a Constitution
that has past its use. It is in its old age already and gradually approaching its death. A
Constitution to be living must be growing; must be adaptable; must be flexible; must be
changeable. As society changes, as conditions change, we amend it in the proper way.”

What outraged Palkhivala was the tinkering with the Constitution and its essence of
democracy by the politicians, its frequent amendment as if it were a Municipal Licensing Act
or the Drugs Act. The failure to preserve the integrity of our DEMOCRACY against many
hasty and ill-considered changes, the fruits of passion and ignorance. His firm belief was that
Parliament’s amending power is not absolute; the amending power is subject to inherent and
implied limitations, which do not permit Parliament to destroy any of the essential features of
the Constitution and thereby, damage the basic structure of the Constitution, Democracy
being a part of it.24

The democracy at times was tried to be confined in the boundaries and MR. PALKHIVALA
argued to safeguard it brilliantly:

“Decision of the Supreme Court in Minerva Mills was another of Nani’s triumphant efforts to
prevent the defacement and defilement of our Constitution. His unsurpassable advocacy in
the case led the Supreme Court to declare that clause (4) of Article 368 of the Constitution
which excludes judicial review of constitutional amendments was unconstitutional.”

“IF there is one strait jacket formula for the existence of our constitution in entirety then it is
our democracy. THE THOUGHT IS NOT PRESUMPTIVE BUT A CUT DRIED TEST
executed, operated and functionalised in different eras of human kind and its subsequent
evolution.25

24
http://en.wikipedia.org/wiki/Nanabhoy_Palkhivala 6 Sept,2018 02:30 AM
25
http://https://indialawyers.wordpress.com/2010/02/21/palkhivala-and-the-constitution-of-india/6
Sept,2018 02:33 AM
 4. REPUBLIC

The Preamble to the Constitution of India records the solemn resolve of the people 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,
within the framework of a sovereign, socialist, secular, democratic republic. Rule of law is
one of the pillars to the Indian Constitution.

Professor A.V. Dicey, in his Introduction to the Study of the Law of the Constitution
attributed three meanings to the rule of law. In the first place, it meant absence of arbitrary
power on the part of the Government. Next it meant that no man was above the law and every
man, whatever be his rank or condition, was subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunals, i.e. equality before the law or the equal
subjection of all classes to the ordinary law of the land, administered by the ordinary law
courts. The third meaning given by Dicey was that the Law of the Constitution was not the
source but the consequence of rights of individuals, as defined and enforced by the Courts.
This last meaning does not apply to written Constitutions incorporating the rights of
individuals which are enforceable by Courts. Sir Ivor Jennings commented that Dicey’s view
was influenced by the doctrine of laissez-faire and pointed out that the Rule of Law implies
many notions which are imprecise such as, the State regulated by law; law and order;
separation of powers; equality etc. “The truth is that the rule of law is apt to be rather an
unruly horse”

The “rule of law” is part of the basic structure of the Constitution of India26 It means the
absence of arbitrary power. “Discretion when conferred upon executive authorities must be
confined within clearly defined limits…. Decisions should be predictable and the citizen
should know where he is”. Rule of law is the sworn enemy of caprice. “‘Discretion’ means
sound discretion guided by law. It must be governed by rule, not by humour: it must not be
arbitrary, vague and fanciful”27. Another meaning of the rule of law is that a party to whose
prejudice an order is intended to be passed, is entitled to hearing. “If the essentials of justice

26
Indira Nehru Gandhi v. Raj Narain, 2 SCR 347, 503 (K.K. Matthew, J.) = AIR 1975 SC 2299 = (1975) Supp. SCC 1
(1976, Supreme Court)
27
S.G. Jaisinghani v. Union of India 2 SCR 703, 718 – 719 = AIR (1967) SC 1427 (1967, Supreme Court) quoting
Lord Mansfield in the Case of John Wilkes.
be ignored and an order to the prejudice of a person is made, the order is a nullity”28. The rule
of law also means that every act done by the government or by its officers must, if it is to
operate to the prejudice of any person, have the authority of law to support it. Where there is
rule of law, the law is supreme. Everyone, however high he may be, is under the law. The
judiciary is the guardian of the rule of law.

In the words of Justice H.R. Khanna, “liberty, democracy and the rule of law are indices of a
free and civilised society – the three faces of the Holy Trinity which presides over the destiny
of all free societies…. The rule of law depends upon the existence of independent courts….
The independence of the Judiciary can be ensured only in an atmosphere of sanctity for
human rights. Rule law enshrining within itself the principles of equality before the law and
equal protection of the laws is an essential ingredient of human rights…. The content of the
rule of law varies from country to country, but everywhere it is identified with the liberty of
the individual…. Rule of men, as distinguished from rule of law has often paved the way to
authoritarianism and dictatorship…. The rule of law postulates a recognition of civil rights
and liberties. Such rights and liberties which are essential attributes of democratic societies,
have always been frowned upon by dictatorships”29. The Constitution aims at a ‘socialist’
republic, therefore, the greatest good of greatest number of people should be considered. It is
inconceivable that in a socialist State children will be without education. A sizeable section
of the population continues to remain illiterate and live below the poverty line. Except in a
few States, 100% literacy is yet to be achieved.

28
State of Orissa v. Dr. (Miss) Binapani Dei 2 SCR 625, 628 – 629 = AIR 1967 SC 1269 (1967, Supreme Court)
29
Interdependence of Human Rights and Independence of Courts – an article in the book ‘Human rights in the
changing world’ edited by Justice E.S. Venkataramaiah (1988), International Law Association, Regional Branch
(India) p. 108.
 5. DIFFERENCE BETWEEN DEMOCRACY AND
REPUBLIC

BASIS FOR
DEMOCRACY REPUBLIC
COMPARISON

Meaning Democracy typically The republic is the form of

means, people's government in which the people
system. choose representatives to
represent them.

Rule By majority By law

Origin Greek language Latin language

Minority rights Overridden by Inalienable

majority

Sovereignty rests The population (all The people (individuals)

with the people taken
together)

Revenue through Illegitimate taxes, Legitimate taxes and fees

fees, fines and
licenses

Mobocracy Prevails Does not prevails

The major differences between democracy and republic are provided in the points given
below:

1. Democracy is defined as a political system which is made by/of/for the people. The
republic is the representative democracy with the chief of the state known as
president.

2. In a democracy, the rule of majority people prevails whereas in the case of the
republic the rule of law prevails.
 3. The term democracy is derived from two Greek words ‘demos’ and ‘creating’ that
means ‘the rule of the people’. On the other hand, the term republic comes from a two
Latin words, i.e. ‘res’ and ‘publica’ that refers to ‘a public thing, which is the law’.

4. In a democracy, minority rights are overridden by the majority. Conversely, Republic

system protects the rights of minority groups or an individual.

5. In a democracy, the power rests with the population, however in the case of the
Republic the power is in the hand of law which are created to safeguard the interest of
the people.

6. The Democratic system gets finance through illegitimate taxes, fees, fines and
licenses. Unlike Republic, where legitimate taxes and fees.

7. Democracy amounts to mobocracy which is not in the case or the republic30.

30
Surbhi S, Difference Between Democratic and Republic,(7 Sept,2018 02:07 AM),
https://keydifferences.com/difference-between-democracy-and-republic.html,( last updated on Nov 10,2015)
 6. CONCLUSION

The ground realities today are more disturbing than in 1950 when the Constitution came into
force or in 1993 when the Human Rights Protection Act was enacted. Performance of
institutions depends largely on the incumbents in office. When men and women of vision,
character, ability and integrity were at the helm of affairs they did their best to protect the rule
of law and safeguard human rights. Since the quality of leadership in the Legislature,
Executive and the Judiciary has progressively declined, Herculean effort is needed to reverse
the trend and restore credibility of the institutions. Here lies the challenge before all public-
spirited and patriotic citizens who stand by the rule of law and cherish human rights.

The constitution of India draws extensively from Western legal traditions in its outline of the
principles of liberal democracy. It is distinguished from many Western constitutions,
however, in its elaboration of principles reflecting the aspirations to end the inequities of
traditional social relations and enhance the social welfare of the population. According to
constitutional scholar Granville Austin, probably no other nation's constitution "has provided
so much impetus toward changing and rebuilding society for the common good." Since its
enactment, the constitution has fostered a steady concentration of power in the central
government especially the Office of the Prime Minister31. This centralization has occurred in
the face of the increasing assertiveness of an array of ethnic and caste groups across Indian
society. Increasingly, the government has responded to the resulting tensions by resorting to
the formidable array of authoritarian powers provided by the constitution. Together with the
public's perception of pervasive corruption among India's politicians, the state's centralization
of authority and increasing resort to coercive power have eroded its legitimacy. However, a
new assertiveness shown by the Supreme Court and the Election Commission suggests that
the remaining checks and balances among the country's political institutions continue to
support the resilience of Indian democracy.

31
http://countrystudies.us/india/109.html/(retrieved on 7 Sept 03:03 AM)
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 Kumar, Narender; Introduction to the Constitutional Law of India, 1st Ed., Allahabad
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