Two Dimensions of Rule of Law: Applying it to the Constitution of India
Rule of law is a legal concept which doesn't have a precise meaning. Anything
commendable, rules and regulations, made to govern the people are Rule of law.
It has gone through several evolutions over the years. Even though it is found
in ancient societies also, AV Dicey in 19th century put forth some specific
conditions of Rule of law, most of them concerned with the fundamental personal
rights and liberties. By the passage of time, this libertarian interpretation of
rule of law gave its way to a society-friendly one; necessity of the welfare of
the people was included in the conditions of achieving rule of law.
Disintegration of USSR in 1991, Thatcherism and Reaganism in UK and USA revived the liberal side of Rule of law but, this time it emerged in another form, instead of focusing on minimal law it introduced globalized liberalism with maximum rules and regulations. Indian constitution adopted both these dimensions in its various provisions. Being mostly inclined towards the socialist block during the cold war, it incorporated a lot of socio-economic principles, but the lack of resources and post-partition dilemmas played a spoiler in emphasizing and implementing substantially.
Fundamental rights with enforceability were the salient features embodying the first dimension mentioned earlier. This paper will analyze both the dimensions of Rule of law in some length and apply it to Indian constitutions, elaborating on the provisions and judgments of various courts with respect of rule of law.
One of the essential features which is of the concept agreed upon by jurists is that there should be rule of law not of men (la Principe de legalite)[2] and that every authority within the State including the Executive Government should consider itself bound and obey the law[3]. Bracton's treatise De Legibus et Consuetudinibus Angliae which was written during the period of Magna Carta amounts to the first ever systematic treatment of the Rule of law as it declared that the king ought not to be under man but under God, and under the law, because the law makes the king[4].
Later, it's sir Edwar Coke who reasserted it during the tyrannical reign of James 1 and reminded him that, as Bracton stated, the king is 'under God and the law, for the law makes the king.'[5] In 20th century AV Dicey, a British jurist gave a structured definition for "Rule of Law" in the context British governance, individual liberties, and role of judiciary. But, still even after Dicey's attempt the definition remains inexhaustive[6].
Since it was found difficult to give a concrete definition to rule of law, jurists concluded to give it a normative definition describing its purpose and elements. So, to the extend these elements exist, rule of law is realized [7]:
Till then people and state were governed by Common Law, the state, and the king interfered in the matter of public either for the protection of personal liberties or for the benefit of its own. the common law was individualist in bent well prior to the emergence of liberalism[12]. This priority of common law made the philosophers of the time vehemently argue for the common law and individual liberty against positive laws which will affect the natural cycle of life.
John Lock restricted the duty of state to protect natural rights of a citizen (Right to life, property, liberty) being infringed by others including state. people in state of nature are born free and provided with natural rights which are to be preserved until and unless good for another [13]. Edward coke in Bonham's case ruled that "in many cases, the common law will control Acts of Parliament" and could render them void.[14] This emphasized the dialogue of common law with individual rights. Adam Smith's economic theory of less interference of state was a nudging factor for the common law against legislative interference [15].
AV Dicey who is known as the one who Propounded the "Rule of Law" in 19th century gave the same interpretation. Rule of law was to him rule of common law. Once man-made laws are included in these laws it goes against the essential principles and turns to "Rule of man". His principles were in some way or other completely against administrative laws. Everyone should be treated by the same law and no discretion is to be given even to judicial officers. Judges were to interpret law as per natural laws and common law customs, they are not intended to evolve new laws. Common law for him was the totality of "judicial decisions determining the rights of private persons in particular cases brought before the Courts.[16]"
Dicey wrote, "have inherited from their utilitarian predecessors a legislative doctrine, a legislative instrument, and a legislative tendency pre-eminently suited for the carrying out of socialistic experiments.[17]" since socialism puts forth a centralized form of government where all affairs will be regulated by legislations made by those in power, it was considered contrary to rule of law.
Friedrich Hayek, the British economist, was vociferous advocate of liberal interpretation after Dicey. Post world war every country including western countries were planning for establishment of a welfare state. State intervention in economy was felt need of the hour in the context of Keynesian economics post the financial crisis of 1920s and potential growth of USSR. Even at this cusp of change Hayek contended the introduction of legislative laws.
He argued "Any policy aiming directly at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law."[18] Free cycle of economy and minimal state intervention was an essential feature of "Rule of Law" for him. He wrote "legal positivism from the very beginning could have no sympathy with and no use for those meta-legal principles which underlie the ideal of the rule of law"[19].
Aforementioned facts gave us an idea regarding post war world order. The scope of arbitrariness was seen minimal. This created the necessity of positive laws. The growth of USSR within a short span of time stipulated the inevitability of state regulation. Western countries including USA and UK brought regulations for the establishment of welfare state. The concept of Judicial review was a turning point, legislative laws were to be examined by judiciary in conformity with constitutional laws. Adoption of written constitution by most of the new countries unlike Britain facilitated the enactment of new laws.
Failure of league of nations to fulfil its purpose of preventing future wars necessitated adoption of certain rules and regulations. Establishment of United Nations and its subsidiaries universalised the importance of positive laws. Conventions pertaining to wars, prisoners were enacted by UNGA. Inter-governmental organisations were formed for necessary and unnecessary reasons. Treaties on different array of matters ranging from environmental issues to free trade were signed between countries. The potential ability of common law to regulate the affairs was negated by all these factors.
International commission of Jurists, formed in 1952 after the second world war with an objective to preserve Rule of law by protecting fundamental rights and freedoms of an individual inculcating the ideals of administration of justice, gave a systematic exposition of "Rule of law"-though not comprehensive- differing from that of Dicey and Hayek. "The rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld.
This dignity requires not only the recognition of certain civil or political rights but also the creation of certain political, social, economic, educational, and cultural conditions which are essential to the full development of his personality"[20]. So, the role of law from a minimal protector of individual rights to the creation of conditions in which human dignity is upheld points to the deviation in the understanding of the concept.
The relationship between Rule of law and liberalism was improvised in financial sector also. in 1960s western nations commenced an expedition of establishing Rule of law in new decolonialised countries. Western style of rule of law was shown parallel to the practical form of rule of law.[21] So, the prerequisite to develop a country financially was to modify the rule of law to western level. Consequently, IMF, World Bank, and other international lending organizations altered how they allocated aid. Spending money directly on infrastructure development and economic projects came to be seen as wasteful when established legal institutions are lacking. The resultant shift in expenditures has been dramatic.
"Thirty years ago," the General Counsel to the World Bank recently observed, "the Bank had 58% of its portfolio in infrastructure, today it is reduced to 22% while human development and law and institutional reform represent 52% of our total lending."[22]
Beginning in the late 1980s and accelerating in the 1990s, Western nations and international financial institutions implemented world-wide a set of reforms labelled the "Washington consensus.[23]" The World Bank and the International Monetary Fund began to condition loans and grants to developing countries on a package of economic and political reforms called "good governance" and "structural adjustment programs," which entailed reducing market restrictions and trade barriers, freeing capital flow, privatizing publicly held assets, protecting property and enforcing contracts, protecting foreign investments, enacting western commercial laws, reducing corruption, establishing independent courts, enhancing democracy, and, prominently, building the rule of law[24]. The countries which wanted the aid "voluntarily" implemented these reforms.
Within a period of 50 years, Rule of law subjected to a long transition from minimal state intervention and man-made laws to implementing man-made laws to get recognized with Rule of law. Positive laws and regulations become integral part. Sovereign countries started to dictate each other for the establishment of rule of law. Even when the substantive definitions changed over the years, the entangled relationship between rule of law and liberalism remained constant.
Rule of law has been incorporated in the preamble of Indian constitution itself which follows: to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and opportunity;[27]
These are all ideals of Rule of law.
Fundamental rights enshrined in Part III is the magna carta of the constitution. It gives for the rights to be enjoyed by a person as a citizen of India; most of the rights can be availed by non-citizens also. Article 32 which known as the "heart and soul of Indian constitution" works a mechanism to enforce these rights, it confers the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part[28]. Supreme Court (Further referred by SC) in various judgements has emphasized the importance of the Article 32; in L Chandra Kumar vs Union of India and Others it held:
Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure[29].
Article 32 along with Article 13 wrests the power of "Judicial review" on SC. It has the power to test constitutionality of an act passed by the legislature and rule the law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause, to the extent of the contravention, void[30]. In Romesh Thappar v. State of Madras SC held that Article 32 provides a "guaranteed" remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights[31]
Judicial review is one of the essential features of Rule of law as it requires the laws to be reasonable, against arbitrariness and it should protect fundamental rights of individuals. The reasonability of laws is to be tested by the provisions of our constitution. After long period of colonialisation and witnessing arbitrariness and usurpation of power by colonial forces, the legal luminaries in our constituent assembly had realized the importance of Rule of law. Our Constitution is framed by a Constituent Assembly which was not Parliament. It is in the exercise of law-making power by the Constituent Assembly that we have a controlled Constitution[32]. The necessity of checks and balance was felt by them, and it was inducted in various provisions of our constitution.
In S.R. Bommai v. Union of India[33] it was reiterated that the judicial review is a basic feature of the Constitution and that the power of judicial review is a constituent power that cannot be abrogated by judicial process of interpretation. It is a cardinal principle of our Constitution that no one can claim to be the sole judge of the power given under the Constitution and that its actions are within the confines of the powers given by the Constitution.
In the case of Chief Settlement Commissioner vs Om Parkash & Ors[34] the supreme court held that one of the most prominent features of the Rule of Law prevalent in India, is the authority given to the courts to determine the legal standard of the decision taken by the administrative. Any administrative or executive action which fails to meet the given standard will be set aside by the court.
In Union of India v. Raghubir Singh[35] it was held that that the lives of the people and the State functions are governed by the decisions taken by the superior courts. Judicial Review plays a significant role in maintaining law and order in the working of the government. Hence, any provision that intends to curtail this power of the court would be held to be against the principle of Rule of Law.
Judicial review has been exercised by the SC in various circumstances, mostly these were when the fundamental rights of an individual were infringed due to state actions. The most famous and remarkable judgement of SC in this cause was delivered by 7 judges' bench in the case of Maneka Gandhi v. Union of India[36], in this case the passport of the petitioner was requested to be surrendered under the section 10(3)(c) of the Passports Act, 1967 "in the interest of general public".
C while delivering its judgement counted some primary aspects of Rule of Law, reversing the judgement of A.K. Gopalan v. State of Madras[37] SC held that the fundamental rights given Articles 14, 19, 21 shouldn't be given an exclusive interpretation, all these Articles are interrelated to each other, when a fundamental is infringed it has to be reasonably tested on the basis of other fundamental rights also, along with this the judgement of SC created a milestone in the legal interpretation of fundamental rights, they should be given a wide and protracted interpretation, since the judgement several fundamentals of personal liberty have been counted as the part of Article 21. two basic principles of Rule of law were elucidated:
the doctrine of natural justice consists principally of two rules, namely, nemo debet esse judex in propria causa: no one shall be a judge in his own cause, and audi alteram partem: no decision shall be given against a party without affording him a reasonable hearing[38].
This was reiterated by SC in the case of A.K. Kraipak v. Union of India also[39].
In Menaka Gandhi SC quoted E.P. Royappa v. State of Tamil Nadu[40]namely, that "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 a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14".
Widening the principle of "Procedure established by law" SC held that procedure doesn't mean all arbitrary procedures and rules established by the legislature. Procedure established by law, with its lethal potentiality, will reduce life and liberty to a precarious plaything if we do not ex necessitate import into those weighty words an adjectival rule of law, civilised in its soul, fair in its heart and fixing those imperatives of procedural protection absent which the processual tail will wag the substantive head[41]. Due process of law is an integral part of "Rule established by law", to fulfil the principle given in Article 21 following conditions must be fulfilled:
In Rustom Cavasjee Cooper v. Union of India [43] Popularly known as Bank Nationalisation case in which the validity of Ordinance 8 of 1969 called the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance was questioned, Chief justice J.C. Shah regarding the application of Article 21 of the Constitution of India held:
"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 negative language of fundamental right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantee of the individual to that fundamental right. The limitation and guarantee are complimentary. The limitation of State action embodied in a fundamental
right couched in negative form is the measure of the protection of the individual."
One of the recent examples is K.S. Puttaswamy (Aadhaar-5J.) v. Union of India[44] famously known as Aadhar Case in which SC held that the right to privacy is a fundamental right as part of Right to life and personal liberty under article 21. In this case SC elaborately discussed the concept of Rule of law. Rule of law is not mere Rule of laws made legislature, Democracy is not "formal democracy" in India, but it has a substantive and liberal form, so it includes all principles of natural law including separation of power, judicial review etc. Rule of law was compared to constitutionalism so basically rule of law is adherence constitution and its provisos.
Article 245 of the constitution also works as a check on legislature, it requires that the laws to be made by the parliament or state legislature should be "Subject to provisions of the constitution", this article imposes further restrictions on the power of legislature. Article 246 states that the centre is entitled to make laws on subjects listed in "Union" list given in 7th Schedule, State can make laws on subjects listed in "State " list, "Concurrent" lists out the subjects on which both the state and centre can make laws, in case of conflict centre laws will prevail unless the law made by the state has been approved by the president before or after the law was passed by the centre. Article 245 discusses that the centre and state have the power to make laws for whole or any part of India and whole or any part of the state respectively. These are territorial and subject matter restrictions imposed by the constitution.
Rule of law requires not only the restraint on executive and legislature. There should be limitations to be exercised by the courts also, limitless, and arbitrary power given to the courts without any reasonable restriction will also destruct the edifice of Rule of law. The court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and the Legislature by the Constitution[45]. Especially after the introduction Public Interest Litigation (PIL) , there have been plethora of experiences of misusing judiciary for personal and political gains.
In S.P. Gupta v. Union of India the supreme court opined that But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective[46].
There have been instances of judiciary overreaching the power of legislature in several cases. But all these instances can't be considered ultra vires. It is said that even if Parliament and State Legislatures in India make laws for 24 hours a day and 365 days a year, the quantum of law cannot be sufficient to the changing needs of the modern society[47].
Article 141 of the constitution defines the legislative power of supreme court, all the laws made by the supreme court are binding on the lower courts.[48] This endorses the fact that constituent assembly expected the courts to legislate in necessary circumstances. It will be absurd to think that the courts have no legislative power when the rulings and verdicts of courts are used as the precedent in future cases.
Primarily it may seem like that the function of the courts are to interpret and discover laws, but in the long run most of the judicial interferences have legislative intentions[49]. In a democratic society where the legislatures are elected through the democratic elections, laws and rules made by the legislature sometimes may not be primarily for the welfare and betterment of its people, there are political and other pressures behind the enactment of an act, in this case the legislature itself deliberately or inadvertently leave out a leeway for the judiciary to find out those lacunae and make a better law[50].
There are number of examples where judicial legislation marked a fundamental change in legal history of India. Guidelines issued by Supreme court in D.K. Basu v. State of W.B was a landmark in the criminal procedure system of India[51], it's still used against the abusive misuse of power while detaining persons. In Rudul Sah v. State of Bihar, reprimanding the state inaction for keeping the petitioner in the prison for 14 years after his acquittal by the court in 1968, the court held the state liable to pay compensation for violating the fundamental right to life and personal liberty[52]. the rule was reiterated by the SC in DK Basu also[53]. In S.R. Bommai v. Union of India[54], putting an end to frequent toppling of state governments, misusing the power under Article 356, SC issued guidelines to be followed while imposing president's rule.
The judgement forced A.B Vajpayee government to reinstate Rabri devi government which was sacked in 1999. In response to class suit filed by an organisation called "Vishaka" and other NGOs following the gang rape of a female worker in her workplace, SC issued guidelines (Vishaka Guidelines), to regulate sexual harassment at workplace noticing the loopholes and shortcomings in Indian Penal Code to punish such acts[55], this guidelines continued to be followed still enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013[56].
In Laxmi v. Union of India, (2014) 4 SCC 427, regulating the selling and purchasing of acid, SC made it compulsory to maintain a log recording the details of the person purchasing acid, all the sellers should show an ID issued by authorised entity showing the purpose for which the acid is stored, to add to this a lot more instructions were also prescribed[57].
In the pursuit of a suit regarding poor state of air quality in Delhi SC in the case of Arjun Gopal v. Union of India issued guidelines to regulate the usage of firecrackers during Diwali[58], in the same case the concept of green crackers was also introduced[59].
The principles and legal precedents given above don't confer a limitless power on the courts to interfere in all administrative matters. It is of the essence of the rule of law that every authority within the State including the executive Government should consider itself bound by and obey the Law[60]. So, there are restraints and limitations on the power to be exercised by the courts, once they transgress the limits, it's against rule of law. Under our Constitution the rule of law pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated and controlled by the rule of law. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner[61]. In the Indian Drugs & Pharmaceuticals Ltd. v. Workmen SC held that This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits[62].
Constitution of India though various articles has constrained the encroachment of judiciary. Articles 122 prohibits the judiciary from adjudicating a parliament official for exercising his duty of following procedures, 212 does the same in case of state legislature. Article 105 (2) precludes the judiciary from making a person liable for his sayings or vote in Parliament or any other committee thereof and 194(2) confers the same prejudice on state legislature. So, these articles protect the legislators from the interference of the Courts with regards to his/her freedom of speech and freedom to vote.
There are several instances of judicial overreach, the dramatic incidents following the Lodha committee report on corruption and misdemeanour In the Board of Control for Cricket in India (BCCI) is famous of them. The reasonableness of report and its recommendations is out of question. There were undoubtedly corrupt and unlawful practices in BCCI and affairs related to it. But the way court handled it raised question on rule of law. BCCI is a sports administrative body, SC could interfere in its matters to an extent, but by ousting then Chairman Anurag Thakur from the post and wresting power on interim basis in the hands of Lodha committee, SC transgressed the power given to it. SC could have waited for bit more as Number of State cricket boards were turning in favour of it.
Courts itself in its various judgements have put forth the concept of Judicial restraint, and there should be limitations on the judicial activism of courts. Overruling the impugned order of Allahabad High Court directing the UP Government to increase the number of consumer dispute redressal forums and giving instructions regarding salaries and allowances of judicial officers Justice Markandey Katju in U.P. v. Jeet S. Bisht stated that Courts have to maintain judicial self-restraint and they should not try to take over the functions of the executive or the legislature., the court may feel the necessity of amending an act, but it can't do it directly, it may give directions, the methods to amend and solve problem should be spared to the discretion of legislature and executive[63]. In this judgement he also quoted Frankfurter, J. of the US Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles[64]:
"All power is, in Madison's phrase, "of an encroaching nature". Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint…."
In another case Aravali Golf Club v. Chander Hass, SC overruled the direction of high court to create a post for the regularisation of employees and held Under the Constitution, the legislature, the executive, and the judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like emperors[65].
To conclude, Rule of law in India is a totality of all basic principles of natural law. Since Indian constitution is assumed to contain all these principles, rule of law is the complete adherence to constitutional values. All organs of the state should act subject to constitution while performing its duties and the relation between the state and its subjects should be regulated by the constitution. to check and balance these duties and relations, there are various mechanisms, these too are part of rule of law.
Salus populi est suprema lex: Rule of Law in India
"Salus populi est suprema lex" means that the happiness of the people is the supreme law. Rule of law doesn't always mean the balance of power and regulation of power relations between individual and the state. Apart from political implications it has social and economic implications also. Rule of law augurs for a welfare state which strives for social and economic betterment of its people. As we discussed earlier our constitution also doesn't give a mere liberal interpretation for rule of law as observed by Dr. Ambedkar "The aim of constitution is to establish a state which shall be the democracy not only in political field where legislative authority is based on adult franchise and the executive in Parliamentary that also promote a welfare state where social and economic democracy prevails". There are a lot of ways adopted by the constitution to ensure social and economic justice.
One such way adopted by Indian constitution is imposing restrictions on fundamental rights. Article 15 (4), (5), (6) and Article 16(3), (4) empower the parliament to make special provisions for the upliftment and reservations for backward classes, SC, ST, Children and women. In Indra Sawhney v. Union of India in which case a ceiling of 50% on overall reservation was imposed SC describes the necessity of reservation elaborately.
The aim of Indian constitution is to form a civilised society with no discrimination, the values enshrined in the preamble of Indian Constitution will remain to be dream until and unless everyone is given equal opportunities to grow and is provided with a dignified status, involvement of a person in public life is one of the essential factors for upliftment of a person in social and political sphere. For the attainment of the said social and political justice, there should be economic justice also for which remunerative employment both in private and public sector is pertinent. so, deliberate attempt to secure it to those who were designedly denied the same in the past, is an attempt to do social and economic justice to them as ordained by the Preamble of the Constitution.
The trinity of the goals of the Constitution, viz., socialism, secularism and democracy cannot be realised unless all sections of the society participate in the State power equally, irrespective of their caste, community, race, religion and sex and all discriminations in the sharing of the State power made on those grounds are eliminated by positive measures. SC goes on describing the necessity if reservation quoting US SC judgements in various cases regarding Affirmative actions, equality mentioned in Constitution can be realized when the equals are treated equally, so for building a society united and integrated in a common cause everyone must be represented especially in a colourful society like India[66].
Restrictions on freedom given in Article 19 of the Constitution, even though primarily intended to protect the sovereignty of the nation and its major institutions, also envisages the welfare of the society also as perceived by SC Bachan Singh v. State of Punjab the reasonableness of restrictions imposed on the rights guaranteed under Article 19 must be balanced with the social welfare or social purpose sought to be achieved. The right of the individual has therefore to be sublimated to the larger interest of the public[67].
In the famous case of K.S. Puttaswamy (Aadhaar-5J.) v. Union of India popularly known as Aadhar case or Right to privacy case also SC explained the importance of judiciary to ensure social and economic justice along with protection of individual rights, first function of judiciary for upholding Rule of law is to protect democracy as well as constitution, the second one is to abridge gap between the law and the society, the third and foremost function for upholding the rule of law and fulfilling the given functions is to ensure that the social and economic justice are meted to the deserving by affirmative action of the sate within constitutional norms[68].
Another way adopted by the constitution is Part IV. This part is the cornerstone for ensuring Social and economic justice. The part comprising of Articles 36 to 51 enumerates Directive Principles of State Policy (DPSP). DPSP provides for the principles to be kept in mind when the parliament or a sate legislature enacts a law. DPSP highlights the distinction of Indian Constitution from other prominent constitutions. the Indian Constitution is first and foremost a social document and the majority of its provisions are aimed at furthering the goals of social revolution by establishing the conditions necessary for its achievement[69].
Article 38 states the general principle of DPSP, the state shall strive to promote welfare of the people by securing social, economic, and political justice and it shall endeavour to minimise inequalities in income. Further Articles 39, 39A,41, 42, 43A, 45, 46, 47 ensure economic and social justice by various means including special provisions for women, SC, ST, and children.
DPSP can't be enforced in court of law unlike Fundamental rights Because implementing all the principles was hardly possible at the time of adoption of the Constitution. Resources were not plenty to execute all the principles, moreover people were not completely prepared to adopt those. Because of the unenforceable nature of DPSP, from time to time there has been conflict regarding the protection of fundamental rights and implementing DPSP. our constitution has ensured a dignified life of individuals with protection of fundamental rights enshrined in Part III, but these are just means to the end, ends are given in Part IV.
So, enforcing a blanket protection of fundamental rights will be a futile practice, hence reasonable restrictions can be imposed on Fundamental right for enforcement of DPSP. just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if the price to be paid for achieving that ideal is human freedoms[70].
To review, the constitution of India is not only Magna Carta of Fundamental right, it envisions a welfare society ensuring Social and Economic justice. Even when welfare otherwise egalitarian society envisaged by the constituent assembly is still miles away, governments of both the centre and the states over the time have strived to implement the directions. Implementing the whole directions may seem impossible as Some of them might perceive utopian principles. Can a diverse society like India afford a uniform civil code, prohibition of slaughtering milch animals and prohibition of intoxicating drugs?
Conclusion
From the discussion we have had, it can be concluded that the Constitution of India had adopted both the libertarian and socialist aspects of rule of law. Fundamental rights ensure the protection basic rights, and it gives the provision for the enforceability in the case of violation. The court has stepped down to its shoes of protecting the fundamental rights in various instances.
Further parts of the Constitution provide for the functions of the various organs of the government and regulates its relationship with the people, these provisions also ensure the Rule of law by limiting the powers of the institutions and keeping a check on them by others though various measures.
The DPSP, Directive principles of State Policy, enumerates the principles to be kept in mind during the enactment of an act and making a policy decision. Most of these directions emphasise the fundamentals of Social and economic welfare. The directive principles are intended to be brought into effect by the the centre and the states in the convenient periods.
The policies of the incumbent and recent governments of preferring the principles which attain the political willing of the party in power over the the principles of social and economic interests are overwhelmingly defeating the purpose of the directive principles, consequently staining the purity of rule of law.
Recently SC and HCs have interfered in the domain of rule of law vigorously. The sate of affairs necessitating those interferences are really alarming for everyone who wants the existence of rule of law at full swing in India. Mob lynchings, honour killings, communal violences, destroying the pillars of federalism, excessive interference in the field of the judiciary by the legislature and the executive and etc make up some of the instances that leave the rule of law in India in a precarious state. This is where the judiciary should get on to its shoes and maintain the rule of law which flourished here over the years. The people of India , the sovereign from whom the constitution derives its authority should also play their role.
End-Notes:
Disintegration of USSR in 1991, Thatcherism and Reaganism in UK and USA revived the liberal side of Rule of law but, this time it emerged in another form, instead of focusing on minimal law it introduced globalized liberalism with maximum rules and regulations. Indian constitution adopted both these dimensions in its various provisions. Being mostly inclined towards the socialist block during the cold war, it incorporated a lot of socio-economic principles, but the lack of resources and post-partition dilemmas played a spoiler in emphasizing and implementing substantially.
Fundamental rights with enforceability were the salient features embodying the first dimension mentioned earlier. This paper will analyze both the dimensions of Rule of law in some length and apply it to Indian constitutions, elaborating on the provisions and judgments of various courts with respect of rule of law.
Rule of Law: What does it mean?
"Rule of law" is per se a vague term which doesn't qualify a specific definition. The first Question to be answered while discussing the concept is "rule of what?". Rule of positive laws made by the people, rule of natural laws or do we have to go too far when we agreed upon a "common will". Legal theorists have called it an 'essentially contested concept.'[1]One of the essential features which is of the concept agreed upon by jurists is that there should be rule of law not of men (la Principe de legalite)[2] and that every authority within the State including the Executive Government should consider itself bound and obey the law[3]. Bracton's treatise De Legibus et Consuetudinibus Angliae which was written during the period of Magna Carta amounts to the first ever systematic treatment of the Rule of law as it declared that the king ought not to be under man but under God, and under the law, because the law makes the king[4].
Later, it's sir Edwar Coke who reasserted it during the tyrannical reign of James 1 and reminded him that, as Bracton stated, the king is 'under God and the law, for the law makes the king.'[5] In 20th century AV Dicey, a British jurist gave a structured definition for "Rule of Law" in the context British governance, individual liberties, and role of judiciary. But, still even after Dicey's attempt the definition remains inexhaustive[6].
Since it was found difficult to give a concrete definition to rule of law, jurists concluded to give it a normative definition describing its purpose and elements. So, to the extend these elements exist, rule of law is realized [7]:
- Law should be easy and accessible to everyone. People can be cautious once infringement on law happens and comply with it in ordinary course of life [8].
- Law should be efficient enough to guide people in most part of their life.
- Law should be stable enough to an extend to enable coordinated activities in long term [9].
- Law should be supreme, ordinary citizens, officials including judges should be governed by law [10].
- There should be mechanisms to make sure that everything is done in consistent with law. Courts to be given powers to enforce them in case of violations [11].
Rule of Common Law: Liberal Interpretation of Rule of Law
Rule of law as we discussed earlier emerged in again early 17th century through the writings and judgments of jurists like Sir Edward coke and other liberal philosophers including John Locke and Adam Smith. It was a period of classical liberalism. The renaissance which happened during the same time affected every sphere of life. Governance by the church and clerical state by divine power was questioned rationally. This raised the need of a new structure of state. To what extent a state should interfere in the matters of its subjects?Till then people and state were governed by Common Law, the state, and the king interfered in the matter of public either for the protection of personal liberties or for the benefit of its own. the common law was individualist in bent well prior to the emergence of liberalism[12]. This priority of common law made the philosophers of the time vehemently argue for the common law and individual liberty against positive laws which will affect the natural cycle of life.
John Lock restricted the duty of state to protect natural rights of a citizen (Right to life, property, liberty) being infringed by others including state. people in state of nature are born free and provided with natural rights which are to be preserved until and unless good for another [13]. Edward coke in Bonham's case ruled that "in many cases, the common law will control Acts of Parliament" and could render them void.[14] This emphasized the dialogue of common law with individual rights. Adam Smith's economic theory of less interference of state was a nudging factor for the common law against legislative interference [15].
AV Dicey who is known as the one who Propounded the "Rule of Law" in 19th century gave the same interpretation. Rule of law was to him rule of common law. Once man-made laws are included in these laws it goes against the essential principles and turns to "Rule of man". His principles were in some way or other completely against administrative laws. Everyone should be treated by the same law and no discretion is to be given even to judicial officers. Judges were to interpret law as per natural laws and common law customs, they are not intended to evolve new laws. Common law for him was the totality of "judicial decisions determining the rights of private persons in particular cases brought before the Courts.[16]"
Dicey wrote, "have inherited from their utilitarian predecessors a legislative doctrine, a legislative instrument, and a legislative tendency pre-eminently suited for the carrying out of socialistic experiments.[17]" since socialism puts forth a centralized form of government where all affairs will be regulated by legislations made by those in power, it was considered contrary to rule of law.
Friedrich Hayek, the British economist, was vociferous advocate of liberal interpretation after Dicey. Post world war every country including western countries were planning for establishment of a welfare state. State intervention in economy was felt need of the hour in the context of Keynesian economics post the financial crisis of 1920s and potential growth of USSR. Even at this cusp of change Hayek contended the introduction of legislative laws.
He argued "Any policy aiming directly at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law."[18] Free cycle of economy and minimal state intervention was an essential feature of "Rule of Law" for him. He wrote "legal positivism from the very beginning could have no sympathy with and no use for those meta-legal principles which underlie the ideal of the rule of law"[19].
Rule of Law Post World War II
Post World War era witnessed a complete revamp in world order. Imperial powers lost its credibility by the disintegration of number of colonial territories. The wind of competition among the nations started to blow in different directions. Number of colonialised territories were no more a matter of boast. World was polarised into two distinct poles: East pole supporting USSR and West supporting USA flagging off the cold war after a long period of devastating "Hot war". It was a battle of ideologies, battle between capitalist front and socialist front.Aforementioned facts gave us an idea regarding post war world order. The scope of arbitrariness was seen minimal. This created the necessity of positive laws. The growth of USSR within a short span of time stipulated the inevitability of state regulation. Western countries including USA and UK brought regulations for the establishment of welfare state. The concept of Judicial review was a turning point, legislative laws were to be examined by judiciary in conformity with constitutional laws. Adoption of written constitution by most of the new countries unlike Britain facilitated the enactment of new laws.
Failure of league of nations to fulfil its purpose of preventing future wars necessitated adoption of certain rules and regulations. Establishment of United Nations and its subsidiaries universalised the importance of positive laws. Conventions pertaining to wars, prisoners were enacted by UNGA. Inter-governmental organisations were formed for necessary and unnecessary reasons. Treaties on different array of matters ranging from environmental issues to free trade were signed between countries. The potential ability of common law to regulate the affairs was negated by all these factors.
International commission of Jurists, formed in 1952 after the second world war with an objective to preserve Rule of law by protecting fundamental rights and freedoms of an individual inculcating the ideals of administration of justice, gave a systematic exposition of "Rule of law"-though not comprehensive- differing from that of Dicey and Hayek. "The rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld.
This dignity requires not only the recognition of certain civil or political rights but also the creation of certain political, social, economic, educational, and cultural conditions which are essential to the full development of his personality"[20]. So, the role of law from a minimal protector of individual rights to the creation of conditions in which human dignity is upheld points to the deviation in the understanding of the concept.
The relationship between Rule of law and liberalism was improvised in financial sector also. in 1960s western nations commenced an expedition of establishing Rule of law in new decolonialised countries. Western style of rule of law was shown parallel to the practical form of rule of law.[21] So, the prerequisite to develop a country financially was to modify the rule of law to western level. Consequently, IMF, World Bank, and other international lending organizations altered how they allocated aid. Spending money directly on infrastructure development and economic projects came to be seen as wasteful when established legal institutions are lacking. The resultant shift in expenditures has been dramatic.
"Thirty years ago," the General Counsel to the World Bank recently observed, "the Bank had 58% of its portfolio in infrastructure, today it is reduced to 22% while human development and law and institutional reform represent 52% of our total lending."[22]
Beginning in the late 1980s and accelerating in the 1990s, Western nations and international financial institutions implemented world-wide a set of reforms labelled the "Washington consensus.[23]" The World Bank and the International Monetary Fund began to condition loans and grants to developing countries on a package of economic and political reforms called "good governance" and "structural adjustment programs," which entailed reducing market restrictions and trade barriers, freeing capital flow, privatizing publicly held assets, protecting property and enforcing contracts, protecting foreign investments, enacting western commercial laws, reducing corruption, establishing independent courts, enhancing democracy, and, prominently, building the rule of law[24]. The countries which wanted the aid "voluntarily" implemented these reforms.
Within a period of 50 years, Rule of law subjected to a long transition from minimal state intervention and man-made laws to implementing man-made laws to get recognized with Rule of law. Positive laws and regulations become integral part. Sovereign countries started to dictate each other for the establishment of rule of law. Even when the substantive definitions changed over the years, the entangled relationship between rule of law and liberalism remained constant.
Rule of Law in India: A constraint on Ultra Vires practices
Rule of Law as we discussed has no precise meaning or stark definition. Indian courts have used the concept in various circumstances now and then. Different principles inculcated in Indian constitution have been declared as part of Rule of Law. It's absence of arbitrary decisions, separation of power without one organ infringing upon the territory of others, judicial review, constitutionalism etc. Ultimately, the emphasis of Rule of Law is on exclusion of arbitrariness, lawlessness, and unreasonableness on the part of the government[25]. In I.R. Coelho Vs. State of Tamilnadu[26], Hon'ble Supreme Court has specifically held that Rule of Law is a basic structure of the Constitution and that this basic structure cannot be abolished even by a constitutional amendment.Rule of law has been incorporated in the preamble of Indian constitution itself which follows: to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and opportunity;[27]
These are all ideals of Rule of law.
Fundamental rights enshrined in Part III is the magna carta of the constitution. It gives for the rights to be enjoyed by a person as a citizen of India; most of the rights can be availed by non-citizens also. Article 32 which known as the "heart and soul of Indian constitution" works a mechanism to enforce these rights, it confers the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part[28]. Supreme Court (Further referred by SC) in various judgements has emphasized the importance of the Article 32; in L Chandra Kumar vs Union of India and Others it held:
Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure[29].
Article 32 along with Article 13 wrests the power of "Judicial review" on SC. It has the power to test constitutionality of an act passed by the legislature and rule the law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause, to the extent of the contravention, void[30]. In Romesh Thappar v. State of Madras SC held that Article 32 provides a "guaranteed" remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. This Court is thus constituted the protector and guarantor of fundamental rights[31]
Judicial review is one of the essential features of Rule of law as it requires the laws to be reasonable, against arbitrariness and it should protect fundamental rights of individuals. The reasonability of laws is to be tested by the provisions of our constitution. After long period of colonialisation and witnessing arbitrariness and usurpation of power by colonial forces, the legal luminaries in our constituent assembly had realized the importance of Rule of law. Our Constitution is framed by a Constituent Assembly which was not Parliament. It is in the exercise of law-making power by the Constituent Assembly that we have a controlled Constitution[32]. The necessity of checks and balance was felt by them, and it was inducted in various provisions of our constitution.
In S.R. Bommai v. Union of India[33] it was reiterated that the judicial review is a basic feature of the Constitution and that the power of judicial review is a constituent power that cannot be abrogated by judicial process of interpretation. It is a cardinal principle of our Constitution that no one can claim to be the sole judge of the power given under the Constitution and that its actions are within the confines of the powers given by the Constitution.
In the case of Chief Settlement Commissioner vs Om Parkash & Ors[34] the supreme court held that one of the most prominent features of the Rule of Law prevalent in India, is the authority given to the courts to determine the legal standard of the decision taken by the administrative. Any administrative or executive action which fails to meet the given standard will be set aside by the court.
In Union of India v. Raghubir Singh[35] it was held that that the lives of the people and the State functions are governed by the decisions taken by the superior courts. Judicial Review plays a significant role in maintaining law and order in the working of the government. Hence, any provision that intends to curtail this power of the court would be held to be against the principle of Rule of Law.
Judicial review has been exercised by the SC in various circumstances, mostly these were when the fundamental rights of an individual were infringed due to state actions. The most famous and remarkable judgement of SC in this cause was delivered by 7 judges' bench in the case of Maneka Gandhi v. Union of India[36], in this case the passport of the petitioner was requested to be surrendered under the section 10(3)(c) of the Passports Act, 1967 "in the interest of general public".
C while delivering its judgement counted some primary aspects of Rule of Law, reversing the judgement of A.K. Gopalan v. State of Madras[37] SC held that the fundamental rights given Articles 14, 19, 21 shouldn't be given an exclusive interpretation, all these Articles are interrelated to each other, when a fundamental is infringed it has to be reasonably tested on the basis of other fundamental rights also, along with this the judgement of SC created a milestone in the legal interpretation of fundamental rights, they should be given a wide and protracted interpretation, since the judgement several fundamentals of personal liberty have been counted as the part of Article 21. two basic principles of Rule of law were elucidated:
the doctrine of natural justice consists principally of two rules, namely, nemo debet esse judex in propria causa: no one shall be a judge in his own cause, and audi alteram partem: no decision shall be given against a party without affording him a reasonable hearing[38].
This was reiterated by SC in the case of A.K. Kraipak v. Union of India also[39].
In Menaka Gandhi SC quoted E.P. Royappa v. State of Tamil Nadu[40]namely, that "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 a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14".
Widening the principle of "Procedure established by law" SC held that procedure doesn't mean all arbitrary procedures and rules established by the legislature. Procedure established by law, with its lethal potentiality, will reduce life and liberty to a precarious plaything if we do not ex necessitate import into those weighty words an adjectival rule of law, civilised in its soul, fair in its heart and fixing those imperatives of procedural protection absent which the processual tail will wag the substantive head[41]. Due process of law is an integral part of "Rule established by law", to fulfil the principle given in Article 21 following conditions must be fulfilled:
- There must be a valid law.
- Law must provide a valid procedure.
- The procedure must be fair, just, and reasonable.[42]
In Rustom Cavasjee Cooper v. Union of India [43] Popularly known as Bank Nationalisation case in which the validity of Ordinance 8 of 1969 called the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance was questioned, Chief justice J.C. Shah regarding the application of Article 21 of the Constitution of India held:
"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 negative language of fundamental right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantee of the individual to that fundamental right. The limitation and guarantee are complimentary. The limitation of State action embodied in a fundamental
right couched in negative form is the measure of the protection of the individual."
One of the recent examples is K.S. Puttaswamy (Aadhaar-5J.) v. Union of India[44] famously known as Aadhar Case in which SC held that the right to privacy is a fundamental right as part of Right to life and personal liberty under article 21. In this case SC elaborately discussed the concept of Rule of law. Rule of law is not mere Rule of laws made legislature, Democracy is not "formal democracy" in India, but it has a substantive and liberal form, so it includes all principles of natural law including separation of power, judicial review etc. Rule of law was compared to constitutionalism so basically rule of law is adherence constitution and its provisos.
Article 245 of the constitution also works as a check on legislature, it requires that the laws to be made by the parliament or state legislature should be "Subject to provisions of the constitution", this article imposes further restrictions on the power of legislature. Article 246 states that the centre is entitled to make laws on subjects listed in "Union" list given in 7th Schedule, State can make laws on subjects listed in "State " list, "Concurrent" lists out the subjects on which both the state and centre can make laws, in case of conflict centre laws will prevail unless the law made by the state has been approved by the president before or after the law was passed by the centre. Article 245 discusses that the centre and state have the power to make laws for whole or any part of India and whole or any part of the state respectively. These are territorial and subject matter restrictions imposed by the constitution.
Rule of law requires not only the restraint on executive and legislature. There should be limitations to be exercised by the courts also, limitless, and arbitrary power given to the courts without any reasonable restriction will also destruct the edifice of Rule of law. The court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and the Legislature by the Constitution[45]. Especially after the introduction Public Interest Litigation (PIL) , there have been plethora of experiences of misusing judiciary for personal and political gains.
In S.P. Gupta v. Union of India the supreme court opined that But we must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective[46].
There have been instances of judiciary overreaching the power of legislature in several cases. But all these instances can't be considered ultra vires. It is said that even if Parliament and State Legislatures in India make laws for 24 hours a day and 365 days a year, the quantum of law cannot be sufficient to the changing needs of the modern society[47].
Article 141 of the constitution defines the legislative power of supreme court, all the laws made by the supreme court are binding on the lower courts.[48] This endorses the fact that constituent assembly expected the courts to legislate in necessary circumstances. It will be absurd to think that the courts have no legislative power when the rulings and verdicts of courts are used as the precedent in future cases.
Primarily it may seem like that the function of the courts are to interpret and discover laws, but in the long run most of the judicial interferences have legislative intentions[49]. In a democratic society where the legislatures are elected through the democratic elections, laws and rules made by the legislature sometimes may not be primarily for the welfare and betterment of its people, there are political and other pressures behind the enactment of an act, in this case the legislature itself deliberately or inadvertently leave out a leeway for the judiciary to find out those lacunae and make a better law[50].
There are number of examples where judicial legislation marked a fundamental change in legal history of India. Guidelines issued by Supreme court in D.K. Basu v. State of W.B was a landmark in the criminal procedure system of India[51], it's still used against the abusive misuse of power while detaining persons. In Rudul Sah v. State of Bihar, reprimanding the state inaction for keeping the petitioner in the prison for 14 years after his acquittal by the court in 1968, the court held the state liable to pay compensation for violating the fundamental right to life and personal liberty[52]. the rule was reiterated by the SC in DK Basu also[53]. In S.R. Bommai v. Union of India[54], putting an end to frequent toppling of state governments, misusing the power under Article 356, SC issued guidelines to be followed while imposing president's rule.
The judgement forced A.B Vajpayee government to reinstate Rabri devi government which was sacked in 1999. In response to class suit filed by an organisation called "Vishaka" and other NGOs following the gang rape of a female worker in her workplace, SC issued guidelines (Vishaka Guidelines), to regulate sexual harassment at workplace noticing the loopholes and shortcomings in Indian Penal Code to punish such acts[55], this guidelines continued to be followed still enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013[56].
In Laxmi v. Union of India, (2014) 4 SCC 427, regulating the selling and purchasing of acid, SC made it compulsory to maintain a log recording the details of the person purchasing acid, all the sellers should show an ID issued by authorised entity showing the purpose for which the acid is stored, to add to this a lot more instructions were also prescribed[57].
In the pursuit of a suit regarding poor state of air quality in Delhi SC in the case of Arjun Gopal v. Union of India issued guidelines to regulate the usage of firecrackers during Diwali[58], in the same case the concept of green crackers was also introduced[59].
The principles and legal precedents given above don't confer a limitless power on the courts to interfere in all administrative matters. It is of the essence of the rule of law that every authority within the State including the executive Government should consider itself bound by and obey the Law[60]. So, there are restraints and limitations on the power to be exercised by the courts, once they transgress the limits, it's against rule of law. Under our Constitution the rule of law pervades over the entire field of administration.
Every organ of the State under our Constitution is regulated and controlled by the rule of law. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner[61]. In the Indian Drugs & Pharmaceuticals Ltd. v. Workmen SC held that This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, too, must know its limits[62].
Constitution of India though various articles has constrained the encroachment of judiciary. Articles 122 prohibits the judiciary from adjudicating a parliament official for exercising his duty of following procedures, 212 does the same in case of state legislature. Article 105 (2) precludes the judiciary from making a person liable for his sayings or vote in Parliament or any other committee thereof and 194(2) confers the same prejudice on state legislature. So, these articles protect the legislators from the interference of the Courts with regards to his/her freedom of speech and freedom to vote.
There are several instances of judicial overreach, the dramatic incidents following the Lodha committee report on corruption and misdemeanour In the Board of Control for Cricket in India (BCCI) is famous of them. The reasonableness of report and its recommendations is out of question. There were undoubtedly corrupt and unlawful practices in BCCI and affairs related to it. But the way court handled it raised question on rule of law. BCCI is a sports administrative body, SC could interfere in its matters to an extent, but by ousting then Chairman Anurag Thakur from the post and wresting power on interim basis in the hands of Lodha committee, SC transgressed the power given to it. SC could have waited for bit more as Number of State cricket boards were turning in favour of it.
Courts itself in its various judgements have put forth the concept of Judicial restraint, and there should be limitations on the judicial activism of courts. Overruling the impugned order of Allahabad High Court directing the UP Government to increase the number of consumer dispute redressal forums and giving instructions regarding salaries and allowances of judicial officers Justice Markandey Katju in U.P. v. Jeet S. Bisht stated that Courts have to maintain judicial self-restraint and they should not try to take over the functions of the executive or the legislature., the court may feel the necessity of amending an act, but it can't do it directly, it may give directions, the methods to amend and solve problem should be spared to the discretion of legislature and executive[63]. In this judgement he also quoted Frankfurter, J. of the US Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles[64]:
"All power is, in Madison's phrase, "of an encroaching nature". Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint…."
In another case Aravali Golf Club v. Chander Hass, SC overruled the direction of high court to create a post for the regularisation of employees and held Under the Constitution, the legislature, the executive, and the judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like emperors[65].
To conclude, Rule of law in India is a totality of all basic principles of natural law. Since Indian constitution is assumed to contain all these principles, rule of law is the complete adherence to constitutional values. All organs of the state should act subject to constitution while performing its duties and the relation between the state and its subjects should be regulated by the constitution. to check and balance these duties and relations, there are various mechanisms, these too are part of rule of law.
Salus populi est suprema lex: Rule of Law in India
"Salus populi est suprema lex" means that the happiness of the people is the supreme law. Rule of law doesn't always mean the balance of power and regulation of power relations between individual and the state. Apart from political implications it has social and economic implications also. Rule of law augurs for a welfare state which strives for social and economic betterment of its people. As we discussed earlier our constitution also doesn't give a mere liberal interpretation for rule of law as observed by Dr. Ambedkar "The aim of constitution is to establish a state which shall be the democracy not only in political field where legislative authority is based on adult franchise and the executive in Parliamentary that also promote a welfare state where social and economic democracy prevails". There are a lot of ways adopted by the constitution to ensure social and economic justice.
One such way adopted by Indian constitution is imposing restrictions on fundamental rights. Article 15 (4), (5), (6) and Article 16(3), (4) empower the parliament to make special provisions for the upliftment and reservations for backward classes, SC, ST, Children and women. In Indra Sawhney v. Union of India in which case a ceiling of 50% on overall reservation was imposed SC describes the necessity of reservation elaborately.
The aim of Indian constitution is to form a civilised society with no discrimination, the values enshrined in the preamble of Indian Constitution will remain to be dream until and unless everyone is given equal opportunities to grow and is provided with a dignified status, involvement of a person in public life is one of the essential factors for upliftment of a person in social and political sphere. For the attainment of the said social and political justice, there should be economic justice also for which remunerative employment both in private and public sector is pertinent. so, deliberate attempt to secure it to those who were designedly denied the same in the past, is an attempt to do social and economic justice to them as ordained by the Preamble of the Constitution.
The trinity of the goals of the Constitution, viz., socialism, secularism and democracy cannot be realised unless all sections of the society participate in the State power equally, irrespective of their caste, community, race, religion and sex and all discriminations in the sharing of the State power made on those grounds are eliminated by positive measures. SC goes on describing the necessity if reservation quoting US SC judgements in various cases regarding Affirmative actions, equality mentioned in Constitution can be realized when the equals are treated equally, so for building a society united and integrated in a common cause everyone must be represented especially in a colourful society like India[66].
Restrictions on freedom given in Article 19 of the Constitution, even though primarily intended to protect the sovereignty of the nation and its major institutions, also envisages the welfare of the society also as perceived by SC Bachan Singh v. State of Punjab the reasonableness of restrictions imposed on the rights guaranteed under Article 19 must be balanced with the social welfare or social purpose sought to be achieved. The right of the individual has therefore to be sublimated to the larger interest of the public[67].
In the famous case of K.S. Puttaswamy (Aadhaar-5J.) v. Union of India popularly known as Aadhar case or Right to privacy case also SC explained the importance of judiciary to ensure social and economic justice along with protection of individual rights, first function of judiciary for upholding Rule of law is to protect democracy as well as constitution, the second one is to abridge gap between the law and the society, the third and foremost function for upholding the rule of law and fulfilling the given functions is to ensure that the social and economic justice are meted to the deserving by affirmative action of the sate within constitutional norms[68].
Another way adopted by the constitution is Part IV. This part is the cornerstone for ensuring Social and economic justice. The part comprising of Articles 36 to 51 enumerates Directive Principles of State Policy (DPSP). DPSP provides for the principles to be kept in mind when the parliament or a sate legislature enacts a law. DPSP highlights the distinction of Indian Constitution from other prominent constitutions. the Indian Constitution is first and foremost a social document and the majority of its provisions are aimed at furthering the goals of social revolution by establishing the conditions necessary for its achievement[69].
Article 38 states the general principle of DPSP, the state shall strive to promote welfare of the people by securing social, economic, and political justice and it shall endeavour to minimise inequalities in income. Further Articles 39, 39A,41, 42, 43A, 45, 46, 47 ensure economic and social justice by various means including special provisions for women, SC, ST, and children.
DPSP can't be enforced in court of law unlike Fundamental rights Because implementing all the principles was hardly possible at the time of adoption of the Constitution. Resources were not plenty to execute all the principles, moreover people were not completely prepared to adopt those. Because of the unenforceable nature of DPSP, from time to time there has been conflict regarding the protection of fundamental rights and implementing DPSP. our constitution has ensured a dignified life of individuals with protection of fundamental rights enshrined in Part III, but these are just means to the end, ends are given in Part IV.
So, enforcing a blanket protection of fundamental rights will be a futile practice, hence reasonable restrictions can be imposed on Fundamental right for enforcement of DPSP. just as the rights conferred by Part III would be without a radar and a compass if they were not geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if the price to be paid for achieving that ideal is human freedoms[70].
To review, the constitution of India is not only Magna Carta of Fundamental right, it envisions a welfare society ensuring Social and Economic justice. Even when welfare otherwise egalitarian society envisaged by the constituent assembly is still miles away, governments of both the centre and the states over the time have strived to implement the directions. Implementing the whole directions may seem impossible as Some of them might perceive utopian principles. Can a diverse society like India afford a uniform civil code, prohibition of slaughtering milch animals and prohibition of intoxicating drugs?
Conclusion
From the discussion we have had, it can be concluded that the Constitution of India had adopted both the libertarian and socialist aspects of rule of law. Fundamental rights ensure the protection basic rights, and it gives the provision for the enforceability in the case of violation. The court has stepped down to its shoes of protecting the fundamental rights in various instances.
Further parts of the Constitution provide for the functions of the various organs of the government and regulates its relationship with the people, these provisions also ensure the Rule of law by limiting the powers of the institutions and keeping a check on them by others though various measures.
The DPSP, Directive principles of State Policy, enumerates the principles to be kept in mind during the enactment of an act and making a policy decision. Most of these directions emphasise the fundamentals of Social and economic welfare. The directive principles are intended to be brought into effect by the the centre and the states in the convenient periods.
The policies of the incumbent and recent governments of preferring the principles which attain the political willing of the party in power over the the principles of social and economic interests are overwhelmingly defeating the purpose of the directive principles, consequently staining the purity of rule of law.
Recently SC and HCs have interfered in the domain of rule of law vigorously. The sate of affairs necessitating those interferences are really alarming for everyone who wants the existence of rule of law at full swing in India. Mob lynchings, honour killings, communal violences, destroying the pillars of federalism, excessive interference in the field of the judiciary by the legislature and the executive and etc make up some of the instances that leave the rule of law in India in a precarious state. This is where the judiciary should get on to its shoes and maintain the rule of law which flourished here over the years. The people of India , the sovereign from whom the constitution derives its authority should also play their role.
End-Notes:
- Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (In Florida)?, 21 Law & Phil 137 (2002).
- See Marbury, 5 U.S. (1 Cranch) at 163; As Professor Radin has observed, "[t]he ideal of 'the rule of law, not of men"' should be rephrased as "'the rule of law, not rule of individuals."
- The State of Bihar v. Sonabati Kumari, MANU (SC 1960).
- Bracton: Thorne Edition: English. Volume 2, Page 33 - Harvard University
- Sir Edward Coke, Reports (1602) vol 2 pt iv xix.
- A.V. Dicey, Introduction to the Study of the Law of the Constitution 181-205 (2d ed. 1959).
- Richard H Fallon & Jr, "The Rule of Law" as a Concept in Constitutional Discourse Source, 97 Columbia Law Review 8 (1997).
- This precept demands that laws be known and express promulgated, that their meaning be clearly defined, that statutes be general both in statement and intent. For if, say, statutes are not clear in what they enjoin and forbid, the citizen does not know how he is to behave. A tyrant might change laws without notice and punish (if that is the right word) his subjects accordingly, because he takes pleasure in seeing how long it takes them to figure out what the new rules are from observing the penalties he incurs. But these rules would not be a legal system since they would not serve to organize social behaviour by providing a basis for legitimate expectations. See John Rawls, A Theory of Justice 209-210 (1971).
- Rules that make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs based on this knowledge. Thus, within the known rules of the game, the individual is free to pursue his personal ends, certain that the powers of government will not be used deliberately to frustrate his efforts. See Friedrich A. Hayek, The Road to Serfdom with The Intellectuals and Socialism, 57-58.
- The Rule of Law, the absence of legal privileges of particular people designated by authority, is what safeguards that equality before the law which is the opposite of arbitrary government. See Ibid.
- Thus, a legal system must make provisions for conducting orderly trials and hearings; it must contain rules of evidence that guarantee rational procedures of inquiry. While there are variations in these procedures, the rule of law requires some form of due process: that is, a process reasonably designed to ascertain the truth, in ways consistent with the other ends of the legal system, as to whether a violation has been taken place and under what circumstances. For example, judges must be independent and impartial, and no man may judge his own case. Trials must be fair and open, but not prejudiced by public clamour. The precepts of natural justice are to ensure that the legal order will be impartially and regularly maintained. See Supra Note.8.
- Alan Macfarlane, The Origins of English Individualism (1978).
- John Locke, Two Treatises of Government, ed. Thomas Hollis (London: A. Millar et al., 1764). 12/16/2019.
- Thomas Bonham v. College of Physicians, 8 Co Rep 114 (1610).
- A.V Dicey, Introduction to The Study of The Law of The Constitution 115, Liberty Fund (1982).
- A.V. Dicey, Opus 310, quoted in William H. Coates, Benthamism, Laissez Faire, and Collectivism, 11 J. OF THE HIST. OF IDEAS 357, 357 (1950).
- Friedrich A. Hayek, The Road to Serfdom, 87-88 (1994)
- Friedrich Hayek, The Constitution of Liberty, 155-56 (1960).
- Jubaer, Shah & Hoque, Lipa. (2017). Modern Concept of the Rule of Law: A Comparative approach. 10.13140/RG.2.2.30804.12161. See also Broadly speaking, in the historical development of free societies the main emphasis has been laid on the right of the individual to assert his freedom from State interference in his spiritual and political activities, a freedom which finds expression in such classic rights as freedom of worship, speech and assembly. The recognition that rights of this kind without a certain standard of education and economic security may for large sections of the population be more formal than real has led to greater emphasis being put on a second kind of individual rights. These latter are concerned with the claim of every individual on the State to have access to the minimum material means whereby he may at least be able to take advantage of his spiritual and political freedom. Both kinds of individual rights are essential to that free society, which is the embodiment of the values underlying the conception of the Rule of Law put forward in this paper. The Rule of Law in A Free Society A Report on The International Congress of Jurists, New Delhi, India January 5-10, 1959, page. 191.
- Thomas Carothers, Promoting the Rule of Law Abroad the Problem of Knowledge, Rule of Law Series Democracy and Rule of Law Project Number 34 January 2003, Carnegie Endowment for International Peace.
- Roberto Danino, The Legal Aspects of the World Bank's Work on Human Rights, The International Lawyer, Vol. 41, No. 1 (SPRING 2007), pp. 23.
- Brian Z. Tamanaha, The Dark Side of The Relationship Between the Rule of Law and Liberalism, NYU Journal of Law & Liberty 2008 [Vol. 3:516].
- David P. Fidler, A Kinder, Gentler System of Capitulations? International Law, Structural Adjustment Policies, and the Standard of Liberal, Globalized Civilization, 35 TEX. INT'L. L.J. 387, 398-408 (2000) (overview of World Bank and IMF programs).
- M. P. Jain, Indian Constitutional Law, 8th ed Nagpur: Lexis Nexis Butterworths Wadhwa, 2018, p.10.
- I.R. Coelho v. State of T.N., (2007) 2 SCC 1, Para. 129.
- The Constitution of India, The preamble.
- Supra note 27, Art. 32(1).
- 1997, 3 SCC 261, at SCC p. 301, Para 78
- [30] Supra note 27, Art. 13(2).
- 1950 SCC 436, Para.4.
- Supra note 26, Para.48.
- (1994) 3 SCC 1.
- Chief Settlement Commissioner vs Om Parkash & Ors ,1969 AIR 33, Para.7.
- Union of India v. Raghubir Singh, 1989 AIR 1933, Para.7.
- 1978 1 SCC 248
- 1950 SCC 228
- Supra note 36, Para.14.
- A.K. Kraipak v. Union of India, (1969) 2 SCC 262, Para20.
- 1974 4 SCC 3
- Supra note 36, Para.81.
- Supra note 36, Para.28.
- (1970) 1 SCC 248
- (2019) 1 SCC 1
- S.P. Gupta v. Union of India, 1981 Supp SCC 87, Para. 17.
- Supra note 36, Para.24.
- I.P. Massey, Administrative Law (2017), EBC Books, 9th Edition, Pp.11.
- Supra note 27, Art. 141.
- Each judicial decision is a potential element in the settlement, or even the prevention, of future controversies. Temporarily, a decision may have an unsettling effect on the law. In the long run, as a precedent, the effect may be quite the opposite. Of course, the reach of precedent beyond a particular case widens the importance and function of the judicial process, and in this special sense, each decision makes law. Jack G. Day, Why Judges Must Make Law, 26 Case W. Rsrv. L. Rev. 563 (1976), Pp.565.
- See Supra Note 4o, Pp 580-590.
- D.K. Basu v. State of W.B., (1997) 1 SCC 416, Para.37.
- Rudul Sah v. State of Bihar, (1983) 4 SCC 141, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated., Para.10.
- The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, not by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. See Supra note 42, Para.41.
- S.R. Bommai v. Union of India, (1994) 3 SCC 1.
- Vishaka v. State of Rajasthan, (1997) 6 SCC 241, Para. 17.
- No. 14 of 2013.
- See Laxmi v. Union of India, (2014) 4 SCC 427, Para.9,10,11.
- Arjun Gopal v. Union of India, (2019) 13 SCC 523, Para.48.
- See Supra note 49, Para. 47. Green crackers: Safe water and air sprinklers (SWAS) — Low emission sound and light emitting functional crackers with PM reduction by 30-35% and significant reduction in NOx and SO2 due to in-situ water generation as dust suppressant and low cost due to usage of low-cost oxidants.
- State of Bihar v. Sonabati Kumari, 1960 SCC OnLine SC 20, Para.33.
- A.K. Kraipak v. Union of India, (1969) 2 SCC 262 Para.13.
- Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408, Para.37.
- U.P. v. Jeet S. Bisht, (2007) 6 SCC 586, See Para. 37,38.
- 1958 SCC OnLine US SC 62, Para.57
- Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, Para. 18,20,22.
- Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, 411 to 422.
- Bachan Singh v. State of Punjab, (1982) 3 SCC 24
- K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1, Para.99.
- Granville Austin, The Indian Constitution: Cornerstone of a Nation, p. 50.
- Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, Para.58.
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