Addressing Challenges to the Rule of Law in Contemporary Society

India’s Constitution opens with a solemn promise – justice, liberty, equality, and fraternity for every citizen. The rule of law is the mechanism through which this promise is supposed to be delivered. It means that no one is above the law, that laws apply equally to all, and that justice is administered through fair and established procedures rather than arbitrary power. But the distance between this ideal and ground reality in India is significant. Poverty, communalism, regionalism, terrorism laws, and state violence each chip away at the rule of law in distinct ways – and understanding how these challenges operate is essential to any honest assessment of India’s legal system.

The rule of law and why its challenges matter
Poverty and the unequal access to justice
Reservations: substantive equality vs. formal equality
Communalism and the fragmentation of legal order
Regionalism and the coherence of legal governance
Terrorism laws and the security-liberty trade-off
State violence and the crisis of accountability
Toward a more inclusive understanding of rule of law

The rule of law and why its challenges matter

The rule of law is not just a legal concept – it is the foundation of a functioning democracy. When it erodes, so does public confidence in courts, legislatures, and the state. A policy analysis by the Carter Center noted that the number of pending civil and criminal cases in India rose from 29 million in 2018 to 48 million in 2022, and that the ineffectiveness of the justice system has led people to take matters into their own hands – itself a further erosion of legal order. Each of the concerns examined below contributes to this broader crisis in different ways.

Poverty and the unequal access to justice

The first and perhaps most structurally embedded challenge is poverty. Equal protection before the law is guaranteed under Article 14 of the Constitution, but legal equality on paper means little when a person cannot afford a lawyer, cannot take time off work to attend hearings, or cannot read the documents being filed in their name. Over 20% of Indians cannot access legal help due to insufficient funds, making formal equality a privilege of the economically secure.

The Constitution acknowledged this gap through Article 39A, added by the 42nd Amendment in 1976, which directs the state to provide free legal aid so that no citizen is denied justice due to economic or other disabilities. The Supreme Court has progressively read Articles 14, 21, and 39A together to make free legal representation an enforceable right rather than a mere directive. In the landmark Hussainara Khatoon v. State of Bihar, the Court ordered the immediate release of undertrials who had spent years in jail awaiting trial for offences whose punishment was shorter than their detention – a damning indictment of what happens when legal aid fails in practice.

Reservations: substantive equality vs. formal equality

Poverty and historical discrimination also raise a more nuanced question about the rule of law: can a principle of equal treatment accommodate special treatment for those who were never treated equally to begin with? The system of reservations for Scheduled Castes, Scheduled Tribes, and Other Backward Classes appears, on its face, to create differential treatment based on group identity. But the constitutional rationale – upheld repeatedly by the Supreme Court – is that formal equality without substantive correction only entrenches existing hierarchies. The Constitution’s framers understood that applying a uniform rule to an unequal society merely preserves that inequality. Reservations, in this framework, are not an exception to the rule of law but a means of making the rule of law meaningful for those previously excluded from it.

Communalism and the fragmentation of legal order

Communalism – the use of religious or ethnic identity as a political tool to create insecurity among groups – poses a direct threat to the equal application of law across communities. When communal politics takes hold, law enforcement tends to become selective, institutions lose their neutral character, and entire communities are treated as suspects rather than rights-bearing citizens. Communal violence erodes not just public safety but the legitimacy of legal institutions themselves.

India’s history of communal violence – from Partition through the 1984 anti-Sikh riots to the 2002 Gujarat violence – demonstrates how badly legal institutions can fail when communal pressures override professional and constitutional obligations. Human Rights Watch has documented instances where authorities failed to investigate violence, where demolitions of minority-owned properties were carried out without legal authorization as a form of collective punishment, and where UN special rapporteurs raised concerns about the selective application of law. When law is seen to operate differently depending on the community of the victim or perpetrator, the rule of law loses its core meaning.

Regionalism and the coherence of legal governance

Regionalism operates on a different plane but poses similar risks. The federal structure of India distributes legislative and executive power between the Centre and states, which is constitutionally sound. But when regional movements become militant, or when political actors use regional identity to resist constitutional authority, the uniform application of national law becomes difficult. As one academic analysis published in the Sur International Journal of Human Rights observed, the near-constant creation of new states along linguistic, cultural, and identity lines in India has often involved considerable insurgent and state violence, pointing to a deep tension between regional demands and the coherence of legal governance.

Terrorism laws and the security-liberty trade-off

Perhaps the most contested challenge to the rule of law in contemporary India concerns anti-terrorism legislation – specifically the Unlawful Activities (Prevention) Act (UAPA), first enacted in 1967 and significantly expanded through amendments in 2008, 2012, and most recently 2019. The 2019 amendment introduced one of its most controversial features: the power to designate individuals as terrorists without a formal judicial process, a power previously limited to organizations.

The UAPA allows detention without charge or trial for up to 180 days. Normal bail rules do not apply – courts are required to deny bail unless satisfied that the case against the accused is prima facie untrue, effectively reversing the presumption of innocence. The data tells its own story: out of 10,440 arrests made under UAPA between 2019 and 2023, only 335 persons were convicted – a conviction rate that makes it hard to argue the law is being used narrowly against genuine threats. In the years 2016 to 2020, 97.5% of those arrested under UAPA remained in prison awaiting trial.

Critics – including UN special rapporteurs, Amnesty International, and former Supreme Court judges – argue that the UAPA has been increasingly deployed against journalists, human rights defenders, students, and activists rather than against terrorist networks. Supporters counter that India’s security environment – marked by cross-border terrorism and internal insurgencies – justifies robust legal tools. The Supreme Court has tried to navigate this tension, holding in Union of India v. K.A. Najeeb (2021) that constitutional courts retain the power to grant bail when an accused’s fundamental rights have been violated, even under the UAPA’s restrictive regime. The underlying question – how much individual liberty can legitimately be sacrificed in the name of collective security – has no clean answer, but it sits at the heart of any serious engagement with rule of law in India.

State violence and the crisis of accountability

The rule of law depends not only on laws that are fair but on institutions that enforce those laws without themselves becoming instruments of violence or discrimination. When state actors – police, paramilitary forces, or administrative authorities – operate outside legal constraints, the rule of law is undermined at the very point meant to uphold it.

Custodial deaths, extrajudicial killings, and the use of demolitions as punishment without court orders are documented phenomena in India. Amnesty International’s annual India report has noted how authorities have used financial and investigative agencies to harass civil society organizations, canceled FCRA licenses of NGOs, and imposed internet shutdowns during protests – measures that suppress accountability rather than promote it. The Carter Center’s analysis flagged extrajudicial killings and curbs on free expression as significant contributors to India’s declining rule of law indicators.

Police reforms – including clearer accountability mechanisms, functional autonomy from political pressure, and stronger oversight through bodies like the National Human Rights Commission – are widely recognized as necessary steps. The Supreme Court’s guidelines in D.K. Basu v. State of West Bengal (1997) on arrest and detention procedures represent an important constitutional safeguard, but their implementation remains inconsistent across states.

Toward a more inclusive understanding of rule of law

What these challenges collectively reveal is that India cannot approach the rule of law as a purely formal concept – a set of procedures to be technically complied with. The socio-economic and political realities of a diverse, unequal society demand a substantive understanding of legal equality: one that accounts for historical disadvantage, protects all communities from discriminatory treatment, and keeps state power genuinely accountable to citizens rather than the reverse.

This does not mean lowering the standards of the rule of law. It means taking them seriously enough to apply them to everyone – to the poor who cannot afford a lawyer, to minorities facing selective enforcement, to activists detained without timely trial, and to ordinary citizens who encounter a state apparatus that does not always operate within legal bounds. Building a stronger rule of law in India requires judicial vigilance, legislative reform, institutional accountability, and an informed citizenry – none of which can substitute for the others.

What do you think? Can a system of reservations and special provisions for historically marginalized groups be genuinely reconciled with the rule of law’s demand for equal treatment – or does it require us to rethink what equality under law actually means? And if anti-terror laws like the UAPA have a conviction rate in low single digits, at what point does the balance between security and liberty tip so far that the law itself becomes a threat to the rule of law?

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Table of Contents

The rule of law and why its challenges matter 🔗

Poverty and the unequal access to justice 🔗

Reservations: substantive equality vs. formal equality 🔗

Communalism and the fragmentation of legal order 🔗

Regionalism and the coherence of legal governance 🔗

Terrorism laws and the security-liberty trade-off 🔗

State violence and the crisis of accountability 🔗

Toward a more inclusive understanding of rule of law 🔗