EXPANSION OF RULE OF LAW AND JUDICIARY: THE INDIAN EXPERIENCE
Author: Alina Khan, II Year of B.A.,LL.B(Hons.) From Faculty of Law, Jamia Millia Islamia, New Delhi.
Co-author: Rushan Salim Suri, II Year of B.A.,LL.B(Hons.) From Faculty of Law, Jamia Millia Islamia, New Delhi.
The concept of Rule of Law is derived from the French expression ‘la principe de legalite’ (the principle of legality) which refers to the supremacy of law and not of men. It implies that no one, including those in power can be above law, and all are subject to law equally. It is based on the principles of fairness, equality and justice, and finds reference in the Constitution of India as well. Rule of law is the mechanism, process, institution, practice or norm that supports the equality of all citizens before the law. The demand of Rule of Law is that those in positions of authority exercise their power within a constrained framework of well-established public norms, rather than in an arbitrary, ad hoc, or entirely discretionary manner based on their personal preferences or ideology. It maintains that the government should function within the confines of the law in whatever it does, and that it should be held accountable by the law when any arbitrary or unlawful act by those in authority is suspected.
In the ancient era, the Greek philosopher Plato had expressed his views on the same, and wrote:
“Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off: but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state”
Aristotle, in the same spirit as Plato wrote about rule of law, wherein he said, “law should govern and those in power should be servants of the laws”
In the Indian context, the basic premise behind rule of law is that the judiciary has given meaning and force by judicial pronouncements to a concept which is not otherwise present in the Constitution explicitly, through the exercise of judicial activism. This reflects the importance that rule of law holds in a democratic society and to safeguard the common citizen against the might and power of the State.
DEVELOPMENT AND EVOLUTION OF RULE OF LAW
As discussed, in the ancient era, Plato and Aristotle were among the first philosophers who discussed about rule of law and its significance. Since then, many jurists and philosophers like Sir Edward Coke, the Chief Justice during the reign of King James I who said that ‘the King should be under God and the Law’ and Thomas Paine who to this effect remarked ‘The King is not the law but the law is king’ have given their own understanding of this concept and its idea has evolved over the period of time. Among the contributions made by various jurists, the work of Professor Albert Venn Dicey is regarded as the most celebrated and important in the modern day period, which deserves contemplation and discussion.
Dicey, in his famous work ‘Introduction to the Study of the Law of the Constitution’ has mentioned that there are three principles of rule of law, which are discussed below:
1. Supremacy of Law
According to Dicey, ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.
It implies that a man may be punished only when he violates the law and not for any other reason. An alleged offence is required to be proved before the ordinary courts in accordance with the ordinary procedure.
This principle is enshrined in Article 20 of the Constitution of India which provides that no person shall be punished except for the violation of a law in force at the commission of the act charged as an offence and in Article 22 which makes it mandatory that an accused has the right to know the reasons for his arrest. The said provision has been upheld by the Supreme Court in cases of A.K. Gopalan v State of Madras and Hansmukh v State of Gujarat. Moreover, in the same spirit, the Universal Declaration of Human Rights also provides that “No one shall be subjected to arbitrary arrest, detention or exile.”
The Hon’ble Supreme Court in the case of Indira Nehru Gandhi v Raj Narain further explained this principle and held:
“Rule of Law postulates that the decisions should be made by the application of known principles and rules and in general such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is not predictable and such decision is the antithesis of a decision taken in accordance with the rule of law.”
2. Equality before Law
The second principle of Rule of Law, as discussed by Dicey is ‘With us no man is above the law [and] every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.’ It implies that no person is above law regardless of his rank or position in society, and that right from the Prime Minister down to a Constable, everyone is under the same responsibility for every act done without legal justification as any other citizen.
This principle finds place in Article 14 of the Constitution of India, which provides that the State shall not deny to any person equality before law and equal protection of the law. ‘Equality before law’ implies the absence of any special privilege in favour of any individual and ensures that all are equal before the law. In the international sphere, a reference of the said principle is made in the Universal Declaration of Human Rights, which provides that “All are equal before the law and are entitled without any discrimination to equal protection of the law”.
3. Predominance of Legal Spirit
The third principle of Rule of Law relates to the aspect that the general principles of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before the Court.
Dicey enumerated this principle in his book as saying that ‘The laws of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequences, of the rights of individuals, as defined and enforced by the courts.’
In India, the independence of judiciary and the power of judicial review is a facet of the predominance of legal spirit. In the case of In Re: Arundhati Roy the Supreme Court of India observed that:
“It is only through court that rule of law can unfold its contents and establish its concept. For the judiciary to perform its function and duties effectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the court have to be respected and protected at all cost”.
RULE OF LAW UNDER THE INDIAN CONSTITUTION
At the outset, it is made clear that there exists no provision in the Constitution of India, which directly refers to rule of law. However, that being said, the Constitution, which is the grundnorm of the Country, does have indirect references to the same, which are contemplated in various provisions. The Preamble to the Constitution of India resolves to secure to the citizens justice, equality, fraternity and equality of status and of opportunity. There is a reference in Article 14 of the Constitution, which is similar to the Dicey’s second principle of rule of law viz., equality before law. Moreover, Article 21 of the Constitution, which provides for the right to life and personal liberty, is a crucial aspect for the existence of rule of law, and similar to the right guaranteed under the Universal Declaration of Human Rights, which provides that “Everyone has the right to life, liberty and the security of person.” The Fundamental Rights enshrined under Part III of the Constitution, which are in the form of safeguards against exercise of arbitrary and unlimited powers by the State and can be protected in case of a violation under Article 32 by moving the Supreme Court or High Courts under Article 226. The said provisions limit the unlimited powers which is an essential aspect of Rule of Law and similar to the Magna Carta of 1215, and also the provision under Article 13(2) which provides that “the State shall not make any law which takes away or abridges the rights conferred by Part III (Fundamental Rights) and any law made in contravention of this clause shall be void.
EXCEPTION TO THE RULE OF LAW UNDER THE INDIAN CONSTITUTION
In spite of the various provisions upholding Rule of Law, most important of them being Article 14 providing for equality before law, there are certain exceptions to the same that are enumerated in the Constitution and other laws. The same are discussed as follows:
Article 361 provides complete civil and criminal immunity to the President of India and the Governor of States for discharge of their functions during the term of their office.
Articles 105 and 194 provide absolute immunity to the Members of Parliament and Legislative Assemblies respectively for anything said or for any vote given by him in Parliament.
Foreign rulers, ambassadors, diplomats enjoy diplomatic immunity with respect to civil and criminal proceeding under Vienna Convention on Diplomatic Relations, 1961 as well as Vienna Convention on Consular Relations, 1963.
However, it cannot be assumed that the Constitution is contradicting its own provisions by providing immunity from civil and criminal proceedings. The reason for the same is that by virtue of holding a Constitutional post, there is a high level of responsibility attached to the person and for an independent and apolitical approach, the immunity is required. It is to be noted however, that the exception do not extend to the person as mentioned above in their personal capacity, it is only during the term of the office, which they hold that they are immune from proceedings against them. An example of the same is that of Kalyan Singh, who could not be prosecuted for his alleged role in the 1992 Babri Masjid demolition case since he was the Governor of Rajasthan at that time. However, when his term ended in 2019, his immunity under Article 361 by virtue of being a Governor also ended, and subsequently, charges were framed against him, leading to the commencement of the criminal trial.
EXPANSION OF RULE OF LAW AND JUDICIARY: THE INDIAN EXPERIENCE
After discussing the basic principles of rule of law, its evolution and subsequent developments in India and elsewhere, we now come to one of the most important topic of the assignment, i.e. expansion of rule of law by the Indian judiciary. We shall discuss and understand how this principle which otherwise finds no express mention in the Constitution of India has been interpreted over the years by the judiciary, how has its scope expanded and the contemporary position in India with respect to the same. The Courts in India are the guardian and guarantor of fundamental rights and in discharge of its duties, the Court acts as a ‘sentinel on the qui vive’ (watchful guardian) and ensure that the fundamental rights of the citizens are protected ‘zealously and vigilantly’.
The first landmark judgement with respect to Rule of Law in India was in the case of Kesavananda Bharati v. State of Kerala where the Supreme Court held that the Rule of Law is a part of the “basic structure” of the Constitution. By virtue of this judgement and Rule of Law, being included in the Basic Structure as propounded by the Court meant that Parliament, in exercise of its amending powers of the Constitution cannot violate the basic features of the Constitution, viz. Rule of Law. This is considered to be the most definitive judicial interpretation with respect to Rule of Law, and has given it a permanent place in the Constitution of India. Similarly, in I.R.Coelho v. State of Tamil Nadu, the Court again held that Rule of Law is a basic structure of the Constitution and this basic structure cannot be amended even by a Constitutional amendment. It was also held that the Parliament cannot resort to violate the Basic Structure by seeking the protection of the Ninth Schedule of the Constitution of India after the Hon’ble Court’s judgement in the case of Kesavananda Bharati v State of Kerala.
The next judgement to be discussed is by far the most controversial and considered a blot on the Indian judiciary, i.e. the case of ADM Jabalpur v Shivkant Shukla.
The question before the Court related to the suspension of Articles 14, 21 and 22 when a proclamation of National Emergency is made by the President of India. The judgement in this case was criticised on the part that it was antithetical to concept of Rule of Law. The court held that in the event of a National Emergency, all the fundamental rights including the Right to Life under Article 21 stand suspended, and there exists no remedy to be exercised before the Courts to challenge such suspension of rights. However, the reason to discuss this case is to bring attention to the dissenting opinion of Justice H.R. Khanna, who held that:
“Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning……Rule of Law is true antithesis of arbitrariness……..Rule of Law is now the accepted norm of all civilized societies……Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order.”
The dissenting opinion of Justice Khanna was upheld by the Supreme Court in the case of Justice K.S.Puttaswamy (Retd.) v. Union of India. The Court while overruling the judgement of ADM Jabalpur v Shivkant Shukla held that that even in times of emergency, the right to life under Article 21 cannot be suspended and observed, “it would be preposterous to have a Constitution without fundamental rights”. This proved to be another landmark judgement in upholding the Rule of Law as an essential feature of the Constitution of India.
The case of Maneka Gandhi v Union of India is one where the Supreme Court discussed in detail the scope of Rule of Law, and held that right to life and personal liberty under Article 21 cannot be curtailed except according to procedure established by law. At the same time, the Court held that certain conditions must be fulfilled before the right under Article 21 can be taken away which are:
That there must be a valid law.
The law must provide procedure.
The procedure must be just, fair and reasonable to fulfil the principles of natural justice.
The next landmark judgement with respect to rule of law which deserves discussion is the case of Bachan Singh v. State of Punjab, where the Supreme Court, while dealing with constitutional validity of Death Penalty as a punishment held that Rule of Law has three basic and fundamental assumptions, which are:
Law making is the prerogative of a democratically elected legislature;
Even while exercising the power under the Constitution to make and enact laws, there should not be unfettered legislative power; and
An independent judiciary is required to protect the citizens against excesses of legislative and executive power.
The Supreme Court, while dealing with the importance of the procedure being just, fair and reasonable under Article 21 as laid down in the Maneka Gandhi case, emphasised upon Right to free legal aid as an essential ingredient of Rule of Law. This was in the case of Khatri v State of Bihar where the Court taking into account the plight of those persons who are accused in some offence and are not able to secure legal assistance because of poverty held that:
“Right to free legal aid is the fundamental right of the citizen and comes with the purview of Article 21; also it is the responsibility of the State to provide legal services to the poor section of the society who can’t afford the charges of the Court.”
The effect of this judgement was the enactment of Legal Services Authorities Act, 1987 that seeks to provide free legal aid to persons belonging to Scheduled Castes, Scheduled, economically weaker sections, women, minors, senior citizens, among others, upholding the Supreme Court’s judgement on Rule of Law as a basic feature of the Constitution.
On the similar lines of Khatri case, another aspect of Rule of Law stemmed i.e., the access to courts of law to enforce rights, especially of those belonging to poorer sections of society. The Supreme Court in the case of People’s Union for Democratic Rights v Union of India, held Public Interest Litigation (PIL) is one of the necessary components of Rule of Law and equal protection of laws does not mean that it must be available to only the affluent class but also to the poorer sections of society as well.
In the political context, the Supreme Court has also given judicial pronouncements with respect to Rule of Law, observing that it implies that no one can be above the law. One such instance where the Rule of Law was upheld contrary to the mandate and opinion of the people. It was the case of B. R. Kapur v. State of Tamil Nadu, where J. Jayalalitha who was convicted under Section 13 of the Prevention of Corruption Act and as per Section 8(3) of the Representation of People’s Act 1951, a person who is convicted for more than 2 years is disqualified from contesting elections for a period of 6 years. However, her party won the elections and she took oath as the Chief Minister of Tamil Nadu, the decision of the then Governor M. Fathima Beevi, who was a retired judge of the Supreme Court herself was also criticised to invite Jayalalitha to form the government. In the Supreme Court, it was contended in Parliamentary Democracy, the will of the people must prevail and the Jayalalitha should continue as Chief Minister since it is the will of the people.
The Court, while rejecting the said contention held that a person who is otherwise disqualified from contesting an election by a provision of law cannot in any circumstance be allowed to contest and continue as a Minister and that everyone is equal before law and no exception can be made, upholding Rule of Law.
Moreover, the case of Basant Kumar Chaudhary v. Union of India is worth mentioning in this regard, where the Court held that Members of Parliament and Legislative Assemblies who if convicted of a crime or are in jail, become ineligible to run for elections or hold an elected seat.
The implication of this judgement was that politicians who otherwise enjoy the protection under Section 8(4) of Representation of People’s Act, 1951, which provides if a MP, MLA, or minister if convicted of a crime can continue to hold their respective post, was declared unconstitutional. The Court followed its decisions in Anukul Chandra Pradhan v Union of India and Jan Chaukidar v Chief Election Commissioner where the Court held that prisoners do not have the right to vote, and therefore, if one does not have the right to vote, they cannot be allowed to contest an election as well.
Recently, the Supreme Court in the case of In Re: Prashant Bhushan and Anr., where the Court held Advocate Prashant Bhushan guilty of contempt of court and said:
“The act committed by the contemnor is a very serious one and he tried to degrade the reputation of the institution of the administration of justice and we have to save the faith of the citizen of the country in and institution of justice, the foundation of which is rule of law which is an essential factor in a democratic setup.”
The Court while passing the above judgement did not take into account the fact that the contemnor is an advocate and with this judgement, the Court made it clear that not even an advocate of repute like Prashant Bhushan is above the law, and that even advocates, like any other person must respect rule of law.
Therefore, on a perusal of the above mentioned judicial pronouncements, it can be said that judiciary by taking a proactive and positive approach in its interpretation have played an important role in creating the country's rule of law, which in itself is a classic example of Judicial Activism as well.
There can be no doubt about the importance of rule of law in a democratic society, and the same has been emphasised by the Hon’ble Courts on various occasions. However, the fact remains that the ideals and principles of rule of law are not followed in the true spirit. Instances of custodial death, fake encounter, police brutality, barbaric and brutality of police, special treatment to politicians, among others still exist, which are antithetical to Rule of Law. Recently, the Lakhimpuri Kheri incident where farmers were crushed to death allegedly by the son of a Union Minister of State, and there were allegations of foul play by the victims’ families contending that the accused is being shielded by the police as he is the son of a Union Minister. It is instances where the role of the Supreme Court was appreciated, as it swiftly took note of the gross violation of Rule of Law and directed that FIR be registered against the accused and a Special Investigation Team (SIT) should be constituted to investigate the matter. The Court expressed its displeasure over the lackadaisical attitude of the State authorities in arresting the accused, hinting that he is getting preferential treatment and the Court orally remarked that “Is this the same way you treat the accused in other cases as well?” A dangerous pattern has been observed in the present times, where the citizenry based on media reports, makes a perception against the person who is killed, that he is a dreadful criminal and has instant justice for the crimes he committed, celebrates matters such as extra-judicial killings. Such instances happened in Vikas Dubey Encounter Case as well as Hyderabad Encounter Case. This is clearly a gross violation of the essence of rule of law, that only law can punish a person for a crime, for which he should be convicted by a competent court of law, and not based on popular opinion or media trials.
At the same time, the judiciary should also be mindful of its judgements on the scope and extent of Rule of Law and should not itself violate Rule of Law, however, in certain exceptional circumstances, the Hon’ble Court has admitted to violate Rule of Law on humanitarian grounds, as recently remarked by Justice D.Y. Chandrachud. Therefore, it is imperative that there is proper coordination between the judiciary and the legislature that can help in achieving the rule of law in the true sense, and there should be check on the exercise of excessive powers of the State by the judiciary.