Constitution Commanded & Judiciary Ensured – Rule of Law

Chaitanya Kumar Verma[1]

Abstract

Rule of Law is not an abstract term which will exist in a parallel Universe; it has to be implemented through a supreme body which commands authority. We gave ourselves, the Constitution which authoritatively states Rule of Law and Constitutionalism in the country. The founding fathers had understood the significance of Rule of Law in the governance of a state. They drafted the constitutions which included various provisions to ensure the Rule of Law and well beings of the citizen of the country.

Mere jotting down the provisions will not serve the purpose; it needs a body for its proper interpretation. Every soul needs a body for its tangible existence. That power of interpretation of Constitution has been vested with Judiciary and that gives life to the Constitution. Judiciary has acted as a sentinel and ensured the prevalence of Constitution in Country 

Rule of Law is not explicitly mentioned in the constitution anywhere, it has just essence of it in the Constitution. A gem hidden inside the treasure and a real connoisseur can only find it. Judiciary has played that role and with the help of catena of cases, it has aptly evolved the definition of Rule of Law and ensured its prevalence in the governance.

This paper discusses the effort made by the Judiciary to ensure the Rule of Law in the Country. It has taken the A.V. Dicey’s definition as premise to put forth the effort of Judiciary. The paper has discussed the effort in context of Indian Constitution and How it has been interpreted so that it led to the establishment of Rule of Law in Country. How this strong institution, manned by person of high integrity and self – esteem, has upheld the dream of founding fathers and trust of citizens of the country.

Introduction

National People’s Congress of China has recently taken a decision to abolish the two term limit for President[2] i.e. Xi Jinping will remain the President of People’s Republic of China for Life, this news have garnered a lot of hullabaloo in the world politics. Astonishingly, this could have also happened in India decades ago and totalitarianism and authoritarianism would have been the new form of government in India. The 42nd amendment,[3] introduced on August 28, 1976, by the then law minister and also a part of the coterie of advisors to Mrs. Indira Gandhi – H.R. Gokhale. The despotic amendment was brought to satiate the personal lust of power, the objective was to unnerve the judiciary and establish an autocratic rule. Most deplorable of all was section 4 and 55 of Constitution Amendment (forty second) Act, 1976.[4]

  • Section – 4, the centre or state could pass any law and could merely declare that law was to give effect to secure any of Directive Principle[5] and to sprinkle salt on the burn that neither the Supreme Court nor the High court could struck it down even if the law was patently discriminatory or took away the fundamental right to speech.
  • Section – 55(4) needs to be reproduced to understand the constitutional outrage.

No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground.[6]

The devastating effect of this amendment can be understood by even someone who is not acquainted with legal knowledge.

Thus, even if the constitution was amended to make Mrs. Indira Gandhi or any other person as Prime Minister for Life, such an amendment could not be questioned in any court of law. And even if the amendment was brought to change the form of government India to Monarchy, the courts would be helpless. It is evident from recent development that it is not an imaginary scenario. There were several other amendments which could have twisted the whole constitutional setup and eroded the Rule of Law, like the Thirty – Ninth Amendment to the Constitution,[7] election of any Prime Minister could never be questioned in any court. This was to nullify the judgement of Allahabad High Court[8] which had set aside Mrs. Gandhi’s Election. Judiciary, best of its wisdom and judges, best of their legal acumen had aptly anticipated the repercussion of these amendments and declared both of the amendments unconstitutional. Many more instances like that can be recalled where judiciary has protected the Rule of Law and constitutionalism in country.

Constitution and one of its riveting features

The Constitution of India, precursor of Indian renaissance, became effective on 26th January 1950. The Constitution of India being written constitutes the fundamental law of the land. It is under this fundamental law that all laws are made and executed, all government authorities act and validity of their functioning adjudged. It has relied on the Montesquieu’s view of separation of power and divided country’s government into three institutional components.

  1. Legislature to make laws
  2. Executive to implement and execute laws
  3. Judiciary to interpret the laws and administer justice.

All these constitutional components derive its power from the Constitution and have to work under its ambit. India has borrowed the Bicameral Parliament from Britain but Unlike British Parliament, Indian Constitution is the supreme authority in the country. Britain has no doctrine of unconstitutionality of parliamentary legislation and a law enacted by Parliament cannot be questioned or challenged in a court on any ground. The courts do not enjoy the power to declare an act of Parliament to be invalid they certainly have the power to interpret the same.[9] The doctrine of parliamentary sovereignty as it obtains in England does not prevail here except to the extent and in the field provided in the constitution. The entire scheme of the Constitution is such that it ensures the sovereignty and integrity of the country as a republic and the democratic way of life by parliamentary institutions based on free and fair elections.[10]

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Moreover, Indian courts have power to declare any act or statute unconstitutional, if it is digressing the constitutional boundary. The most significant feature of Indian Constitution is the area and nature of the jurisdiction of India’s Supreme Court. It is all pervasive.

Concept of constitutionalism

Besides the concept of the Constitution, there is also all – important concept of “Constitutionalism”. It connotes in essence limited government or a limitation on government, Constitutionalism is the antithesis of arbitrary powers.[11] The underlying difference between the two concepts is that a constitution ought not merely to confer power on the various organs of the government, but also seek to restrain those powers. Constitutionalism recognises the need for government powers. Constitutionalism envisages checks and balances and putting the powers of the legislature and the executive under some restraints and not making them uncontrolled and arbitrary.[12] Judiciary and Doctrine of Rule of Law are some of the principle and norms which promote constitutionalism in the country. Indian Constitution promotes Constitutionalism in form of various checks and balances. It is necessary to understand the Judiciary in context of India and then how it has maintained Rule of Law of India.

Judiciary and judges in India

Judiciary in India commands utmost reverence, obedience and authority. It interprets the Constitution, protects rights and preserves constitutionalism. This incredible institution is run and manned by some of the noted minds of the country i.e. Judges. Judges, by their demeanour they manifest elegance, by their interpretation; profound knowledge and by their judgment; social and economic outlook. Judiciary, since its establishment, has evolved significantly; it has earned a reputation of being indiscriminate and free from fear and fervour. Judiciary is an impregnable bulwark, which has safeguarded the ethos of the constitution and ensured the rule of law in our country.

Judges dispense public justice, their judgments have far-reaching consequences, they balance the interest harmoniously and their nature of work is extra-ordinary. Hence, their profession demands dogged determination, steadfast struggle and unremitting effort. They keep themselves aloof from the society in order to remain unsubscribed to any point of view, which might affect their judgment or thought process. They have, through judicial activism and creativity, developed the definition and ensure the prevalence of Rule of Law.

Rule of law – dicey and Indian constitution

Rule of Law has no fixed or articulate connotation through the Indian courts refer to this phrase time and again. The broad emphasis of Rule of Law is on absence of any centre of unlimited or arbitrary power in the country, on proper structurization and control of power, absence of arbitrariness in the government.

The Doctrine of Rule of Law to A.V. Dicey whose writing in 1885 on the British Constitution included the following three distinct thoughts kindred ideas in Rule of Law:[13]

  1. Absence of Arbitrary Power: No Man is above law. No man is punishable except for a distinct breach of law established in ordinary legal manner before ordinary courts. The government cannot punish anyone merely by its own fiat. Persons in authority in Britain do not enjoy wide, arbitrary or discretionary powers. Dicey asserted that wherever there is discretion there is room for arbitrariness.
  2. Equality before Law: Every man, whatever his rank or condition is subject to the ordinary law and jurisdiction of the ordinary courts. No man is above law.
  3. Individual Liberties: The general principles of the British Constitution, and especially the liberties of the individual, are judge –  made, i.e. these are the result of judicial decisions determining the right of private persons in particular cases brought before the courts from time to time.

The Indian Constitution by and large seeks to promote Rule of Law through many of its provision. For Instance, Article 14 of the Constitution guarantees Right to equality before Law, it has become a fundamental principle of democracy and of government based on the Rule of Law. Sir Hersch Lauterpacht, a renowned jurist and president of the International Court of Justice aptly wrote about pre-eminence of Equality in the governance of states: The Claim to equality before the law in a substantial sense the most fundamental of the right of man. It occupies the first place in most written constitution. It is the starting point of all other liberties.[14]The founding fathers of Indian Constitution and Sir Hersch Lauterpacht were on same page and paid heed to what Sir Hersch once said. They incorporated the idea and envisioned it as rudimentary for Rule of Law in country. The judiciary, with same enthusiasm, has interpreted it and given a wide meaning to it. It has gone beyond mere literal interpretation and tried to make it more inclusive. After the survey of catena of cases, it can be concluded that the meaning and interpretation of Article 14 has undergone through a metamorphosis. So, it is necessary to trace the development to understand the role of judiciary and their immense contribution in maintaining the Rule of Law. As per the Dicey, Equality before Law and Absence of Arbitrary Power are the two important components of rule of Law and Indian Judiciary has played a pivotal role in protecting these quintessence of Rule of Law. The interpretation of Article 14 of our Constitution by the Supreme Court had initially raised some problems as to the approach to be adopted by courts when considering whether a statute enacted by parliament or state legislature was void on account of violating the equality clause and what will be the ambit of Article 14. But by the end of first three decades of constitutional history, these problems had been judicially settled; some of the stellar judgments of Supreme Court, which turn the tides in favour and led to an expansive interpretation of Article 14.

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The doctrine of equality before law is a necessary corollary of Rule of Law which pervades the Indian Constitution.[15]A constitution bench of the Supreme Court has declared in no uncertain terms that equality is a basic feature of the Constitution.[16]Article 14 prescribes equality before law, but the fact remains that all person are not equal by nature, attainment or circumstances, and, therefore, a mechanical equality before the law may result in injustice. Thus, the guarantee against the denial of equal protection of law does not mean that identically the same rule of law should be made applicable to all persons in spite of difference in circumstances and conditions.[17] The principal of equality of law thus means not that the same law should apply to everyone but that a law should deal alike with all in one class; that there should be an equality of treatment under equal circumstances. It means “that equals should not be treated unlike and unlikes should not be treated a like.”[18]

The Royappa[19] judgment marked the changeover of the interpretation of Article 14. It has led a new doctrine and gave a total make over to its interpretation. This was the handiwork of two judges (Justice P.N. Bhagwati and Justice Krishna Iyer) who left their mark on the jurisprudence of Supreme Court:[20]

The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. It is a founding faith, to use the words of Justice Vivian Bose, “A Way of Life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate it’s all – embracing scope. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the Rule of Law in republic while the other, to the whim and caprice of an absolute monarchy.

But this conclusion in Royappa[21] was virtually no more than an aside, since the ratio did not reflect any conscious or critical application of the “new approach” to Article 14. It was only in Maneka Gandhi’s case[22], six judges in a bench of seven applied Royappa[23]test to the procedure prescribed by law under Passport Act, and held that law for purpose of Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. The court said the ‘Law must be right, just and fair, and not arbitrary, fanciful and oppressive – otherwise such a law would not satisfy the requirements of Article 14.’ The old rule was that a law was invalid under Article 14 only if there was discrimination – i.e., only if the classification of persons and things under it was arbitrary and unreasonable. Unreasonableness and arbitrariness of the law per se could not result in the court striking down the law for two reasons: first, because there was a presumption of constitutionality of laws enacted by a competent legislature and, second, because the courts would pay due deference to the will of the legislature and its collective wisdom as to circumstances requiring differential treatment. But after Royappa’s case[24], as affirmed in Maneka Gandhi[25], the law itself, or at least the procedural part of the law, had to be justified before the court as just and fair and not arbitrary, fanciful or oppressive.[26] Further in case of International Airport Authority[27] the Supreme Court of India has authoritatively reaffirmed the dictum that arbitrariness is the antithesis of Article 14. These three cases (Royappa, Maneka Gandhi and International Airport Authority) have evolved new dimensions in judicial process. These cases have given whole new meaning to the Article 14 and now every law under Article 13 has to pass the test mentioned under it i.e., law must be free from the vice of arbitrariness.

Article 21 of the Indian Constitution, which provides that no person shall be deprived of his life or personal liberty except according to procedure established by Law. In 1950s the court stand was enacted law was sufficient justification or deprivation of a person’s life and liberty; this is what a majority of four judges in a bench of five justices said in A.K. Gopalan[28]. But the hydraulic pressure of great events exercises its influence on judicial thinking and helps to shape better decision making. During internal emergency, personal liberties were taken away by enacted law, resulted in excessive harassment and oppression of innocent citizens who were left with no legal recourse. When Fundamental Rights under Article 21 were suspended, under the provisions of Article 359(1) as it then stood, a majority of four justices in a bench of five expressed:[29] Liberty is itself a gift of the law and may by the law be forfeited or abridged.

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In the same case Justice Khanna dissented and this was how he looked upon the concept of Personal Liberty: Men born to freedom are naturally alert to repel invasion of their liberty by evil minded person. The greatest danger to liberty lies in insidious encroachment by men of zeal, well-meaning but lacking in due deference for the Rule of Law. Even in the absence of Article 21 in the constitution, the state has got no power to deprive a person of his life or liberty without the authority of law. The majority view of Supreme Court in ADM Jabalpur was low watermark in Indian human – rights jurisprudence. The powerful dissent by justice Khanna is a testimony to the independent thinking of individual justices in the highest courts of one of the largest democracies of the world.

After the emergency was lifted in March 1977, judges in SC took a second, closer look at Article 21. The words ‘procedure established by law’ could not possibly mean any procedure whatever established by enacted law. Such procedure had to be one which was not arbitrary or discriminatory. It had to meet the test of reasonableness.[30] This is how the concept of Personal Liberty was secured by judiciary without any encumbrance except the procedure established by law.

Conclusion

Government intervention in many daily activities of the citizens is on the increase creating a possibility of arbitrariness in state action. Rule of Law is useful as a country to this situation, because the basic emphasis of Rule of Law is on exclusion of arbitrariness, lawlessness and unreasonableness on the part of the government. Rule of Law does not mean rule according to statutory law pure and simple, because such a law may be harsh, inequitable, discriminatory or unjust. Rule of Law connotes some higher kind of law which is reasonable just and non – discriminatory. Rule of Law to-day envisages not arbitrary power but controlled power. Constitutional values, such as constitutionalism, absence of arbitrary power in the government, liberty of the people, and independence of judiciary imbibed in the concept of Rule of Law.

The Supreme Court has invoked the Rule of Law of several times in its pronouncements to emphasize upon certain Constitutional values and Principles. In Bachan Singh case[31], the court held that Rule of Law excludes arbitrariness and unreasonableness. To ensure this, it is necessary to have a democratic legislature to make laws, but its power should not be unfettered, and there should be an independent judiciary to protect the citizen against the excesses of executive and legislative power.

The founding fathers of the Constitution had envisioned judiciary as the protector of the Constitution and judiciary had lived up to their expectation. It has ensured the prevalence of constitutionalism in country. Several attempts have been made to downplay the history of judiciary and dissolve the independence of judiciary but judiciary has foiled all these attempts and stood firm at the time of adversity. Judiciary has significantly contributed in maintaining the ethos of Constitutionalism and Rule of Law in the country.


[1] Student, Rajiv Gandhi National University Of Law.

[2] Ben Blanchard & Christian Shepherd, China allows Xi to remain president indefinitely, tightening his grip on power, REUTERS (June 21, 2018) , https://in.reuters.com/article/china-parliament/china-allows-xi-to-remain-president-indefinitely-tightening-his-grip-on-power-idINKCN1GN073.

[3] The Constitution (Forty-second Amendment) Act, 1976.

[4] Id.

[5] INDIAN CONSTI. Part – IV.

[6] Supra Note 1.

[7] The Constitution (Thirty – Ninth Amendment) Act, 1975

[8] State of Uttar Pradesh v. Raj Narain 1975 AIR 865.

[9] C.F. Gray, Sovereignty of Parliament to – Day, 10 (1) University of Toronto 54, 54-72 (1953).

[10] Union of India v. Prakash P Hinduja, AIR 2003 SC 2363.

[11] Charles H. Mcilwain, Constitutionalism: Ancient and Modern, (Liberty Fund INC. 1940).

[12] M.P Jain, Indian Constitutional Law, (LexisNexis, 2016).

[13] A.V. Dicey, Introduction to the Study of the Law of the Constitution, (Oxford Publication).

[14] Sir Hersch Lauterpacht, International Bill of the Rights of Man, (Columbia University Press, New York 1945).

[15] Ashutosh gupta v. State of Rajasthan, (2002) 4 SCC 34.

[16] M. Nagraj v. Union of India, AIR 2007 SC 1.

[17] Chiranjeet Lal v. Union of India, AIR 1951 SC 41.

[18] Gauri Shankar v. Union of India, AIR 1995 SC 55.

[19] E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

[20] Id.

[21] Id.

[22] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[23] Supra Note 19.

[24] Id.

[25] Supra Note22.

[26] H.M. Seervai: Constitutional Law of India, (4th Edition, Universal Law Publishers).

[27] Ramana Dayaram Shetty v. International Airport Authority, (1979) 3 SCR 1014.

[28] A.K Gopalan v. State of Madras, AIR 1950 SC 27.

[29] ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.

[30] Supra Note22.

[31] Bachan Singh v. State of Punjab, AIR 1982 SC 1325.