Why this chapter matters for UPSC: "Rule of Law" is a foundational GS2 concept. The 2023 criminal law reforms (BNS, BNSS, BSA replacing IPC/CrPC/Evidence Act) are highly current and have been tested in recent Prelims. Understanding how laws are made, challenged, and used for social change is essential for both Polity and Social Justice sections of the UPSC syllabus.

PART 1 — Quick Reference Tables

New Criminal Codes (Effective 1 July 2024)

Old Law New Law Key Changes
Indian Penal Code (IPC) 1860 Bharatiya Nyaya Sanhita (BNS) 2023 358 sections (vs 511 in IPC); adds "organised crime" and "terrorist act" as specific offences; gender-neutral provisions; sedition (S.124A IPC) replaced by S.152 BNS (acts endangering sovereignty/unity)
Code of Criminal Procedure (CrPC) 1973 Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 Mandatory video-recording of crime scene; timelines for trials; "zero FIR" codified; electronic summons/FIR; trial in absentia provisions
Indian Evidence Act (IEA) 1872 Bharatiya Sakshya Adhiniyam (BSA) 2023 Recognises electronic/digital records as primary evidence; secondary evidence widened; oral evidence via electronic means

Types of Laws in India

Type Description Examples
Constitutional Law Governs relationship between state and citizens; supreme law The Constitution of India; Basic Structure
Criminal Law State vs accused; punishment = imprisonment/fine BNS 2023 (ex-IPC); NDPS Act; POCSO 2012
Civil Law Dispute between private parties; remedy = compensation/injunction Contract Act 1872; Transfer of Property Act 1882; Hindu Succession Act 1956
Personal Law Family matters by religion Hindu Marriage Act 1955; Muslim Personal Law (Shariat) Application Act 1937; Indian Christian Marriage Act 1872
Administrative/Regulatory Law Governs exercise of state power; review of administrative decisions Administrative Tribunals Act; Service rules

Ordinance Power — Article 123 vs Article 213

Feature Presidential Ordinance (Art 123) Governor's Ordinance (Art 213)
When? When Parliament is not in session When State Legislature is not in session
On? Union List + Concurrent List subjects State List + Concurrent List subjects
Same force as? Act of Parliament Act of State Legislature
Must be laid before? Both Houses of Parliament State Legislature
Ceases to operate? 6 weeks after Parliament reassembles (or earlier if resolution disapproving it passed) 6 weeks after State Legislature reassembles
Can President/Governor withhold? President cannot be compelled to issue; acts on Council of Ministers' advice Governor acts on Chief Minister/Council's advice; can also reserve for President

PART 2 — Detailed Notes

Rule of Law

Key Term

Rule of Law (A.V. Dicey's formulation, 1885) has three elements:

  1. Supremacy of law: No one can be punished except for a breach of established law; no arbitrary punishment
  2. Equality before law: Every person (including government officials) is subject to the same law and the same courts
  3. Constitution as result of ordinary law: Rights of individuals are determined by courts applying ordinary law — rights are not granted by the Constitution; the Constitution merely reflects rights that already exist

In India, Rule of Law is enshrined in Article 14 (equality before law and equal protection of laws) and underpins the entire constitutional structure.

UPSC Connect

UPSC GS2 — Rule of Law vs Rule by Law: Rule of Law (substantive): Laws must be just, fair, reasonable — not merely formally valid. Courts review laws for constitutionality. Rule by Law (formal): Government uses law as an instrument of domination; laws need only be formally enacted — content does not matter. India's constitutional framework, especially judicial review and the Basic Structure doctrine, pushes towards the substantive version of Rule of Law.

How Laws Are Made

The primary law-making body is Parliament (for Union/Concurrent List) or State Legislatures (for State/Concurrent List). After passage by the legislature, the President or Governor gives assent (or withholds/reserves for President's consideration in case of state bills). Laws are published in the Official Gazette and come into force from the date specified in the Act.

Delegated Legislation: Parliament often grants rule-making powers to the executive — the parent Act lays down broad principles and the executive fills in technical details via rules, regulations, bye-laws, and orders. This is controlled by Parliamentary committees (Committee on Subordinate Legislation).

Ordinance Power and Its Misuse

UPSC Connect

UPSC GS2 — Ordinance and DC Wadhwa Case: In DC Wadhwa v. State of Bihar (1987), the Supreme Court held that the practice of the Bihar government re-promulgating ordinances (without placing them before the Legislature) was a "fraud on the Constitution." The ordinance power is meant for emergencies — using it to bypass Parliament/Legislature violates the principle of legislative supremacy. The SC held that if the government wants a provision to continue, it must get it enacted into law.

Key rule: An ordinance must be placed before the legislature within 6 weeks of it reassembling; if not approved, it lapses. Re-promulgation (issuing a new ordinance as the session ends) without legislative approval is unconstitutional.

Three New Criminal Codes (2023–24)

Key Term

Parliament enacted three new criminal laws in December 2023, which came into force on 1 July 2024:

  1. Bharatiya Nyaya Sanhita (BNS) 2023 — replaces the Indian Penal Code 1860 (a colonial-era law drafted under British rule)
  2. Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 — replaces Code of Criminal Procedure 1973
  3. Bharatiya Sakshya Adhiniyam (BSA) 2023 — replaces the Indian Evidence Act 1872

The three laws together govern the entire criminal justice process: what constitutes a crime (BNS), the procedure for investigation, trial, and sentencing (BNSS), and the rules of evidence in court (BSA).

Key changes in the new criminal codes:

  • Sedition replaced: Section 124A IPC (sedition) — which was frequently misused against journalists and activists — has been replaced by Section 152 BNS, which penalises "acts endangering sovereignty, unity and integrity of India" (narrower scope, though critics argue implementation will be similar)
  • Organised crime defined: First time "organised crime" and "terrorist act" are defined in the general criminal code (previously only in special laws like UAPA, MCOCA)
  • Gender-neutral provisions: Some offences like acid attack provisions are now gender-neutral
  • Digital evidence: BSA makes electronic records primary evidence (not merely secondary), keeping pace with digital transactions
  • Zero FIR: Codified in BNSS — an FIR can be registered at any police station regardless of jurisdiction; transferred to proper station later

Controversial Laws — Civil Liberties Tensions

Explainer

Several Indian laws raise civil liberties concerns, frequently debated in UPSC Mains:

AFSPA (Armed Forces Special Powers Act, 1958):

  • Applies in "disturbed areas" — currently: Manipur (partially), Nagaland (partially), Arunachal Pradesh (partially), Jammu & Kashmir (partially)
  • Grants army/paramilitary special powers: arrest without warrant, shoot-to-kill with reasonable suspicion, search without warrant
  • No prosecution of armed forces without Central government sanction
  • Redress Committee (Justice B.P. Jeevan Reddy, 2005) recommended repeal; Committee of Experts (Justice Santosh Hegde, 2013 — Manipur encounter killings) found fake encounters

UAPA (Unlawful Activities Prevention Act, as amended in 2019):

  • Government can designate an individual (not just organisation) as a terrorist without trial
  • Bail conditions are very stringent; bail rarely granted
  • Criticism: Used against civil society activists, journalists, academics (Bhima Koregaon cases)
  • SC in NIA v. Zahoor Ahmad Shah Watali (2019) — courts cannot critically examine evidence while deciding bail in UAPA cases

Law and Social Change

UPSC Connect

UPSC GS2 — Law as Instrument of Social Change: Law can be a leading vehicle for social change (when it runs ahead of society) or a lagging indicator (when it merely codifies what society has already accepted). Examples:

Law leading society: Abolition of Sati (1829 — before social consensus); Hindu Succession Act amendment (2005 — gave daughters equal coparcenary rights in ancestral property); Right to Education Act (2009)

Society leading law: Decriminalisation of homosexuality — Section 377 IPC; Supreme Court first upheld it (Suresh Koushal, 2013), social pressure grew, and the Constitution Bench overturned it (Navtej Singh Johar, 2018)

PIL as Tool: Public Interest Litigation (introduced in India by Justice P.N. Bhagwati and Justice V.R. Krishna Iyer in the 1980s) allows any public-spirited citizen to move courts for matters affecting public interest — used for environmental protection (MC Mehta cases), prison reform, child labour elimination, bonded labour

Exam Strategy

Prelims traps:

  • BNS, BNSS, BSA came into force on 1 July 2024 — not December 2023 (when passed by Parliament)
  • Sedition under IPC Section 124A has been replaced (not abolished) — Section 152 BNS covers similar ground
  • Ordinances under Art 123 must be laid before Parliament within 6 weeks of reassembly — not within 6 weeks of promulgation
  • AFSPA was enacted in 1958 (not during Emergency 1975–77)
  • POCSO (Protection of Children from Sexual Offences) Act was enacted in 2012 — applies to children below 18 years
  • The SC/ST (Prevention of Atrocities) Act was enacted in 1989 (not 1955 — 1955 is Untouchability Offences Act, now PCR Act 1976)

Mains angles:

  • "Mere enactment of laws is insufficient for social transformation; effective implementation is equally critical." Examine
  • Critically analyse the three new criminal codes (BNS, BNSS, BSA) — do they truly decolonise Indian criminal law?
  • Discuss the challenges to Rule of Law in India with reference to arbitrary use of ordinance power and special laws

Previous Year Questions

Prelims:

  1. Which of the following replaced the Indian Penal Code (IPC) 1860?
    (a) Bharatiya Nagarik Suraksha Sanhita
    (b) Bharatiya Sakshya Adhiniyam
    (c) Bharatiya Nyaya Sanhita
    (d) Bharatiya Dand Sanhita

  2. Under which Article of the Constitution can the President promulgate an Ordinance when Parliament is not in session?
    (a) Article 110
    (b) Article 117
    (c) Article 123
    (d) Article 213

Mains:

  1. "The three new criminal codes enacted in 2023 represent a significant step in decolonising India's criminal justice system but leave several concerns unresolved." Critically examine. (CSE Mains 2024, GS Paper 2, 15 marks)

  2. Discuss the role of Public Interest Litigation (PIL) in advancing social justice and the Rule of Law in India. Also highlight the concerns associated with its misuse. (CSE Mains 2019, GS Paper 2, 15 marks)