Are We Moving from the Rule of Law to Rule by Law?

New Delhi: India is a constitutional democracy founded on the Rule of Law. The police, as one of the State's most visible institutions, have a special responsibility to protect life and liberty, maintain public order impartially, prevent and investigate offences, and facilitate the lawful exercise of citizens' rights. Advertisment Add NewsDrum As A Trusted Source The events surrounding the Jantar Mantar protests on 20 July 2026 provide an important context for examining this responsibility. Students and other protesters had gathered in Delhi in connection with demands concerning the NEET examination controversy. The subsequent attempt to march towards Parliament led to clashes with the police, with reports of lathi charge, injuries and detentions. Delhi Police maintained that the proposed march had not been permitted and that prohibitory orders were in force in the New Delhi district. These competing accounts make independent scrutiny particularly important. The police unquestionably have a duty to maintain public order. But that duty must be exercised alongside their responsibility to respect constitutional rights. The relevant questions are whether protesters were appropriately distinguished from persons actually violating the law, whether any force used was lawful, necessary and proportionate in the circumstances, whether vulnerable participants were adequately protected, and whether complaints concerning police conduct were properly recorded and investigated. The issue therefore goes beyond crowd control. A police force fulfils its constitutional role not only by preventing disorder, but also by protecting the rights of people within a crowd. Peaceful disagreement with government policy is a legitimate part of democratic life, although the right to assemble and demonstrate remains subject to constitutionally permissible restrictions and lawful orders. Where a person is arrested or detained, the existence of a protest or an official direction does not, by itself, settle the question of legality. There must be a lawful basis and compliance with the applicable constitutional and statutory safeguards. Article 22 of the Constitution, for example, requires an arrested person to be informed of the grounds of arrest and provides for production before the nearest magistrate within 24 hours, subject to the constitutional exceptions. Reports concerning the Jantar Mantar protests have also raised allegations about the treatment of students and other participants. Such allegations should neither be presumed true nor dismissed merely because they concern State authorities. They should be examined through a credible, independent and evidence-based process. There is another question that deserves attention. When questions are raised about police action, one sometimes encounters the explanation: 'We were following orders.' The natural question is: 'Whose orders?' If the answer is that the source cannot be identified or disclosed, a basic institutional question follows: What was the legal basis of the order, who was authorised to issue it, and how was its implementation supervised? The existence of an official order does not, by itself, establish the legality of every action taken pursuant to it. Where an order affects personal liberty, the use of force or the exercise of a constitutional right, its legal basis and implementation should be capable of appropriate scrutiny. This brings us to the distinction between the Rule of Law and rule by law. The Rule of Law means that public power is exercised through law and restrained by law. Government authorities have legitimate powers, but those powers operate within constitutional boundaries, procedural safeguards and principles of fairness. Police officers likewise have substantial statutory powers, but those powers are entrusted to them for lawful public purposes and cannot become instruments of arbitrary or selective enforcement. Rule by law, by contrast, describes a situation in which the existence of a legal provision or official order becomes the principal justification for exercising State power, without sufficient regard to constitutional rights, due process, proportionality or meaningful scrutiny. The crucial question then changes from 'Is this exercise of power constitutionally and legally justified?' to 'Can a legal provision be cited for it?' That distinction is particularly important in policing. Law is not merely an instrument through which the State exercises power; it is also a framework through which that power is restrained. The Jantar Mantar episode should therefore be examined not merely as a question of crowd management, but as a question of constitutional policing: Was the force used lawful, necessary and proportionate? Were arrests and detentions supported by a lawful basis and proper procedure? Were peaceful protesters adequately protected? Were complaints concerning police conduct properly recorded and investigated? Were significant operational directions properly documented? Where wrongdoing was established, was responsibility appropriately determined? These are not anti-police questions. They are questions essential to the credibility of policing in a constitutional democracy. Democracy is sustained not only through elections, but through institutions that respect constitutional rights even when those rights are exercised by people who disagree with the government. The police have a duty not merely to enforce the law, but to enforce it impartially. They must protect citizens when protection is required, exercise restraint when restraint is required, and ensure that the powers entrusted to them remain within the boundaries of law. The real test of the Rule of Law is not whether the State possesses legal powers. It is whether those powers are exercised within constitutional limits, according to law, and subject to meaningful scrutiny. [Disclaimer: Virendra Vashist is an advocate and AICC member. The views expressed are the author's own and do not represent NewsDrum.in, which bears no responsibility for the content.]