Rule of Law – – part of the Basic Structure part of the Basic Structure
The Constitution (First Amendment) Act, 1951, shocked the status of Rule of law in India. The The Constitution (First Amendment) Act, 1951, shocked the status of Rule of law in India. The question which came up for consideration in
question which came up for consideration in Shankari Shankari PrasaPrasad d v. v. Union oUnion of If I ndia ndia 37 37 was whether was whether the fundamental rights can be amended under Article 368. The Supreme Court held that the fundamental rights can be amended under Article 368. The Supreme Court held that Parliament has the power to amend Part III of the Constitution under Article 368 as under Article Parliament has the power to amend Part III of the Constitution under Article 368 as under Article 13
-13 - „law‟ „law‟ means any legislative action and not a constitutional amendment. Therefore, a means any legislative action and not a constitutional amendment. Therefore, a constitutional amendment would be valid if abridges a
constitutional amendment would be valid if abridges a ny of the fundamental rights.ny of the fundamental rights.
The question again came up for consideration in
The question again came up for consideration inSaSajjjj an San Sinin gh gh v.v. State State of of Rajasthan Rajasthan 38 38 in which in which the Supreme Court approved the majority judgment in
the Supreme Court approved the majority judgment in ShankShank ari ari PrPrasasad cad casase e and held that and held that amendment of the Constitution means amendment of all provisions of the Constitution.
amendment of the Constitution means amendment of all provisions of the Constitution. Hon‟ble Hon‟ble Chi
Chi eef f JuJu sstiti ce ce Gajendragadkar Gajendragadkar held that if the framers of the constitution intended to exclude held that if the framers of the constitution intended to exclude fundamental rights from the scope of the amending power they would have made a clear fundamental rights from the scope of the amending power they would have made a clear provision in that behalf.
provision in that behalf.
However, both these cases were overruled by the Apex Court in
However, both these cases were overruled by the Apex Court in Golaknath Golaknath v. v. SState tate of Puof Pu njnj ab ab 39 39 and it held that Parliament has no power to amend the Part III of the Constitution so as to take and it held that Parliament has no power to amend the Part III of the Constitution so as to take away or abridges the fundamental rights and thus, at the end the Rule of law was sub-served by away or abridges the fundamental rights and thus, at the end the Rule of law was sub-served by the Judiciary from abridging away. However, the Rule of law was crumpled down with the the Judiciary from abridging away. However, the Rule of law was crumpled down with the Constitution (Twenty-Fourth Amendment) Act, 1971. Parliament by the way of this Amendment Constitution (Twenty-Fourth Amendment) Act, 1971. Parliament by the way of this Amendment inserted a new clause (4) in Article 13 which provided that „nothing in this Article shall apply to inserted a new clause (4) in Article 13 which provided that „nothing in this Article shall apply to any amendment of this constitution made u
any amendment of this constitution made under Art 368‟. It substituted the heading of Articlender Art 368‟. It substituted the heading of Article 368 from
368 from „Procedure for amendment of Constitution‟ „Procedure for amendment of Constitution‟ toto „Power of Parliament to amend„Power of Parliament to amend Constitution and Procedure thereof‟.
Constitution and Procedure thereof‟. The Amendment not only restored the amending power of The Amendment not only restored the amending power of the Parliament but also extended its scope by adding the words
the Parliament but also extended its scope by adding the words “to amend by way of the“to amend by way of the addition or variation or repeal any provision of this constitution in accordance with the addition or variation or repeal any provision of this constitution in accordance with the proce
procedurdur e e lailai d dod down iwn in t n t he Article”.he Article”.
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37 AIR 1951 AIR 1951
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38 AIR 1965 AIR 1965
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39 AIR 1971 AIR 1971
This was challenged in the case of
This was challenged in the case of KesKeshavananda Bhhavananda Bh arti arti v.v. SState otate of f Kerala Kerala 40 40 . The Supreme. The Supreme Court by majority overruled the decision given in
Court by majority overruled the decision given in Golaknath‟s caseGolaknath‟s case and held that Parliament has and held that Parliament has wide powers of amending the Constitution and it extends to all the Articles, but the amending wide powers of amending the Constitution and it extends to all the Articles, but the amending power is not unlimited a
power is not unlimited and does not nd does not include the power include the power to destroy or abto destroy or abrogate the basic feature rogate the basic feature oror framework of the Constitution. There are implied limitations on the power of amendment under framework of the Constitution. There are implied limitations on the power of amendment under Article 368. Within these limits Parliament can amend every Article of the Constitution. Thus, Article 368. Within these limits Parliament can amend every Article of the Constitution. Thus, Rule of law prevailed and Supreme Court stated in the same case that
Rule of law prevailed and Supreme Court stated in the same case that “Our Constitution“Our Constitution postulates Rule of
postulates Rule of Law in Law in the sense of the sense of supremacy of supremacy of the Constitution and the Constitution and the laws the laws as opposed as opposed toto arbitra
arbitrariness.”riness.” The 13 judge Bench also laid down that the Rule of law is an The 13 judge Bench also laid down that the Rule of law is an “aspect of the basic“aspect of the basic structure
structure of of the the Constitution, Constitution, which which even even the the plenary plenary power power of of Parliament Parliament cannot cannot reach reach toto amend.”
amend.”
Since
Since Keshavananda case Keshavananda case , Rule of law has been much expanded and applied differently in, Rule of law has been much expanded and applied differently in different cases. In
different cases. In II ndira Nendira Nehru hru GaGandhi ndhi v. v. RaRaj j Narain Narain 4141, the Supreme Court invalidated Clause, the Supreme Court invalidated Clause (4) of Article 329- A inserted by the Constitution (Thirty-ninth Amendment) Act, 1975 to (4) of Article 329- A inserted by the Constitution (Thirty-ninth Amendment) Act, 1975 to immunise the election dispute to the office of the Prime Minister from any kind of judicial immunise the election dispute to the office of the Prime Minister from any kind of judicial review. The Court said that this violated the concept of Rule of law which cannot be abrogated or review. The Court said that this violated the concept of Rule of law which cannot be abrogated or destroyed even by the Parliament.
destroyed even by the Parliament.
The
The HH abeas abeas CorCor pus caspus case e 42 42 according to many scholars is a black mark on the rule of law. The according to many scholars is a black mark on the rule of law. The case entails Dicey‟s third principle of rule of law. The legal question in this case was whether case entails Dicey‟s third principle of rule of law. The legal question in this case was whether there is any rule of law over and above the Constitutional rule of law and whether there was any there is any rule of law over and above the Constitutional rule of law and whether there was any rule of law in India apart from Article 21 of the Constitution regarding right to life and personal rule of law in India apart from Article 21 of the Constitution regarding right to life and personal liberty. A five judge Bench with a majority of 4:1 (going by strict interpretation) held in the liberty. A five judge Bench with a majority of 4:1 (going by strict interpretation) held in the negative.
negative.
The majority judges held that the Constitution is the mandate and the rule of law. They held that The majority judges held that the Constitution is the mandate and the rule of law. They held that there cannot be any rule of law other than the constitutional rule of law. Excluding moral there cannot be any rule of law other than the constitutional rule of law. Excluding moral conscience, they held that there cannot be any pre-Constitution or post-Constitution rule of law conscience, they held that there cannot be any pre-Constitution or post-Constitution rule of law
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40 AIR 1973 AIR 1973
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41 AIR 1975 SC 2299, 1975 Supp SCC 1, 1976 2 SCR 347 AIR 1975 SC 2299, 1975 Supp SCC 1, 1976 2 SCR 347
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42 1976 AIR 1207, 1976 SCR 172 1976 AIR 1207, 1976 SCR 172
which can run counter to the rule of law embodied in the Constitution, nor there any rule of law which can run counter to the rule of law embodied in the Constitution, nor there any rule of law to nullify the constitutional provisions during the time of Emergenc
to nullify the constitutional provisions during the time of Emergenc y.y.
The majority judges held that
The majority judges held that “Article 21 is our rule of law regarding life and liberty. No other“Article 21 is our rule of law regarding life and liberty. No other rule of law can have separate existence as a distinct right. The rule of law is not merely a rule of law can have separate existence as a distinct right. The rule of law is not merely a catchword or incantation. It is not a law of nature consistent and invariable at all times and in catchword or incantation. It is not a law of nature consistent and invariable at all times and in all circumstances. There cannot be a brooding and omnipotent rule of law drowning in its all circumstances. There cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of the Constitution.”
effervescence the emergency provisions of the Constitution.” Thus they held that Article 21 Thus they held that Article 21 is theis the sole repository of right to life and liberty and during an emergency, the emergency provisions sole repository of right to life and liberty and during an emergency, the emergency provisions themself constitute the rule of law.
themself constitute the rule of law.
In a powerful dissent,
In a powerful dissent, JusticJustice H.R. Khanne H.R. Khann a a observed that observed that “Rule of law is the antithesis of“Rule of law is the antithesis of arbitrariness...Rule of law is now the accepted form of all civilized societies...Everywhere it is arbitrariness...Rule of law is now the accepted form of all civilized societies...Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every state the problem arises of reconciling notions of individual liberty and public order. In every state the problem arises of reconciling human rights with the requirements of public interest. Such harmonizing can only be attained by human rights with the requirements of public interest. Such harmonizing can only be attained by the existence of independent courts which can hold the balance between citizen and the state and the existence of independent courts which can hold the balance between citizen and the state and compel governments to conform to the law.”
compel governments to conform to the law.”
With the Constitution (Forty-Fourth Amendment) Act, 1978 it has been laid down that even With the Constitution (Forty-Fourth Amendment) Act, 1978 it has been laid down that even during emergency, Articles 20 and 21 will not be suspended. According to me,
during emergency, Articles 20 and 21 will not be suspended. According to me, JuJu sstiti ce ce KhKh annaanna (with due respect to his high moral conscience) has not given a judgment in consonance with the (with due respect to his high moral conscience) has not given a judgment in consonance with the rule of law. His Lordship has on the other hand tried to place the judiciary over and above the rule of law. His Lordship has on the other hand tried to place the judiciary over and above the rule of law. During emergency, that was the rule of law that Article 21 is suspended. Creating rule of law. During emergency, that was the rule of law that Article 21 is suspended. Creating rule of law above the Constitution will create huge implications. Whatever is the case, the rule of law above the Constitution will create huge implications. Whatever is the case, the Austinian sense of jurisprudence does apply in the present case and the majority judges have not Austinian sense of jurisprudence does apply in the present case and the majority judges have not decided wrongly. Though now it remains only an academic question but if a law does not seem decided wrongly. Though now it remains only an academic question but if a law does not seem to be morally rich then it is the job of the Legislature to amend it and not the Judiciary to come to be morally rich then it is the job of the Legislature to amend it and not the Judiciary to come up with its own new law
up with its own new law which is non-existent and against the exwhich is non-existent and against the existing law.isting law.
In
In Raman DRaman D ayayaram aram SShetty hetty v.v. II ntenternational Airport Authority ornational Airport Authority of If I ndia ndia 43 43 , the Supreme Court, the Supreme Court held that the great purpose of rule of law is the protection of individual against arbitrary exercise held that the great purpose of rule of law is the protection of individual against arbitrary exercise
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43 1979 AIR 1628, 1979 SCR (3)1014 1979 AIR 1628, 1979 SCR (3)1014
of power, wherever it is found.
of power, wherever it is found.II n re: Arunn re: Arun dhadhati Roti Roy y 44 44 ,,JuJu sstiti ce Sce Seethth i i observed that for achieving observed that for achieving the establishment of the rule of law, the Constitution has assigned the special task to the the establishment of the rule of law, the Constitution has assigned the special task to the judiciary.
judiciary.
When Article 371-D (5) (Proviso) authorized the A.P Government to nullify any decision of the When Article 371-D (5) (Proviso) authorized the A.P Government to nullify any decision of the Administrative Services Tribunal, it was held violative of the rule of law. Holding the provision Administrative Services Tribunal, it was held violative of the rule of law. Holding the provision unconstitutional, the Supreme Court said that it is a basic principle of the rule of law that the unconstitutional, the Supreme Court said that it is a basic principle of the rule of law that the exercise of power by the Executive must not only be governed by the Constitution but also is in exercise of power by the Executive must not only be governed by the Constitution but also is in accordance with law. The Court also held that the power of judicial review should be used to accordance with law. The Court also held that the power of judicial review should be used to ensure that rule of law is maintained.
ensure that rule of law is maintained.
Over the years, the Courts have used judicial activism to expand the concept of rule of law. For Over the years, the Courts have used judicial activism to expand the concept of rule of law. For example, in Courts are trying to establish a rule of law society in India by insisting on
example, in Courts are trying to establish a rule of law society in India by insisting on „fairness‟.„fairness‟.
In
In SheeSheella Bara Bar sesev.v. SState tate of Mof M aharahar asashtrhtr a a 45 45 , the Supreme Court insisted on fairness to women in, the Supreme Court insisted on fairness to women in police
police lock-up lock-up and and also also drafted drafted a a code code of of guidelines guidelines for for the the protection protection of of prisoners prisoners in in policepolice custody, especially female prisoners. In
custody, especially female prisoners. In VeeVeena na SeSethth ii v.v. S State tate of Bof B ihih ar ar 46 46 , also the Supreme Court, also the Supreme Court extended the reach of rule of law to the poor who constitute the bulk of India by ruling that rule extended the reach of rule of law to the poor who constitute the bulk of India by ruling that rule of law does not merely for those who have the means to fight for their rights and expanded the of law does not merely for those who have the means to fight for their rights and expanded the locus standi
locus standi principle to help the poor. principle to help the poor.
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44 Contempt Petition (crl.) 10 of 2001 Contempt Petition (crl.) 10 of 2001
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45 JT 1988 (3) JT 1988 (3)
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46 AIR 1983 SC 339, 1983 CriLJ 675, 1982 (1) SCALE 793 AIR 1983 SC 339, 1983 CriLJ 675, 1982 (1) SCALE 793