December 6, 2020

Evolution of the Rule of law in India

Administrative law is a historical concept -its philosophies and techniques are what mandates it in the present world.[1] With time, it develops, however, retaining principles that have formed the basis of this law. They have not lost their underlying ideologies, but have been amended with time to fit the legal system accordingly, for example, be the separation ofpowers between the legislature, judiciary, and executive, could be one and another would be the Rule of law. It is an ideal that ensures justice, equality, and fairness[2], preventing arbitrariness on the government’s side. It can be inferred that the Rule of law (Dicey’s interpretation) has three essential features (i) supremacy of law (ii) equality before the law (iii) judge-made law. This ideal is what prevents the state from turning into a totalitarian authority since it helps preserve the structure of the democratic values.[3] Democratic values also include individual rights (Fundamental Rights), significantlybeing the protection of freedom of thought, freedom to practice any religion, freedom of choice of work, and liberty to necessary living facilities.[4] When individuals assert their rights, it helps preserve the democratic structure, since it is this respect that forms the basis for a democratic society, ethically and morally.

The basic concept of the Rule is that its representatives govern the state. Hence, it can be said that the Grundnorm of the country would be one that enshrines the Rule of law[5]. Grundnorm is the basic or core structure from which the government derives its authority. Usually, this is the constitution of every country. A country’s representative and for that reason, even the monarch, derive their power from the grundnorm, not vice versa. The king is not the law, but the law is king.[6] The grundnorm is such that it limits any authorities’ power through its constitution. Additionally, people must be governed by the rules that are known, specific, general, and equal before. It is only when the law is efficient and effective, that the government secures the lives of its citizens without violating their rightto benefit.

The phrase has been derived from the French term, la principle de legalite, which stands for the principle of legality. This principle holds that the government is based on rules made by laws and not men[7]. While this term had been taken from England, the country,however,never believed that administrative law existedfor the longest time. The concept flowed into the country through the Droit administrativesystem, otherwise known as the French legal system.

India incorporated the theory of the Rule of law from the legal system of Britain, which itself interpreted the concept from the legal principles of France. It was the postcolonial era that introduced this legal concept concerning the constitution. Although this was nowhere explicitly mentioned was,however, questioned and recognized in the case of ADM Jabalpur v UOI[8]. The issue before the Court was “whether the rule of law was present in the constitution other than Article 21[9]”. This issue arose when rights under Articles 14, 21, and 22 were suspended during the proclamation of an emergency. The majority judgment ruled in the negative. However, Justice H.R Khanna delivered a dissenting opinion and held that –

“Even in the absence of Article 21 in the Constitution, the state has 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.”[10]

The importance of the Rule of law lies in the regulation of powers exercised by government authorities. Since the scope of our legal system is extensive and diverse, it becomes imperative to maintain checks and balances concerning the Administrative Actions that directly or indirectly affect an individual’s rights guaranteed by the constitution. The case of Som raj v State of Haryana[11]acknowledged the existence of the Rule of law and added the absence of arbitrary power as a vital aspect. To further maintain a good standard of checks and balances on the actions of Administrative authorities, the Court in the case of Union of India v Raghubir Singh[12] held Independence of the judiciary and the supremacy of courts as a critical element of the Rule. Furthermore,the Rule of law also entails that a specific procedure is to be followed in the exercise of power affecting the rights of the citizen. Acts contrary to the due process of law can be held as a violation of said law. Article 21 clearly states that a ‘procedure established by law’ has to follow when a citizen’s right to life and liberty has been infringed. The Court, in the case of Commissioner of Punjab vs. Om Prakash,[13] observed that the essential feature of the Indian constitution is the Rule of law. If any administrative action does not meet the standard, then it shall be set aside if the aggrieved person brings forth the matter.

The most critical case in Indian Judicial History with respect to the Rule of law was the Kesavananda Bharti v State of Kerela[14]case, whereit was added to the basic structure of the constitution, to be upheld at all times. This marked a permanent establishment of Dicey’s theory of the Rule of law in the Indian legal system. In another case of Sukhdev v Bhagatram[15], Justice Mathew J. ruled that having a democracy where the executive possessed arbitrary power would be to the collapse of the country, as it would become one lead by individual interest.

The Rule is a well-recognized theory in India upheld overtime to strike abalance between Administrative/executive action and infringement of an individual’s rights. We can state that the Rule of law is subjected to law, morality, and justice since it forms a fundamental element of democracy and competent authority. It prevents wars and maintains a check on the protection of Human Rights. However, it has not been sufficiently maintained in India due to multiple frauds Inthe last decade, a clear sign of abuse of administrative power and action, thus, a violation of said law. Its necessity cannot be denied in a country, and its development and maintenance must be kept in mind with the progress of the nation.

ORIGINS OF DUE PROCESS AND PROCESS ESTABLISHED BY LAW

For the sake of clarity, the origins of due process and process established by law, from the Constitution of India and the Constitution of USA have been identified. The 5th Amendment of the U.S. Constitution lays down, inter alia, that “no person shall be deprived of his life, liberty or property, without due process of law”.

In India, this expression has been embodied in Article 21 as “Right to Life” which is as follows: “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”

Due process consists of two parts: procedural and substantive. Here, procedural due process requires fair procedure, i.e., notice and hearing while substantive due process examines substantive content of legislation .On the other hand, the expression “procedure established by law” means procedure laid down by statute or procedure prescribed by the law of the state. Accordingly, three premises are laid down. First, there must be a law justifying interference with the person’s life or personal liberty. Second, the law should be a valid law and third, the procedure laid down by the law should have been strictly followed.

‘PROCEDURE ESTABLISHED BY LAW’ AS SYNONYMOUS WITH ‘DUE PROCESS’ AFTER 1978

The Vth amendment of U.S Constitution lays down that “ no person shall be deprived of his life, liberty or property without due process of law. Under the concept of due process , the courts becomes the arbiter of reasonableness of both substansive as well as procedural provisions in alaw. Article 21 of Indian Constitution says that- ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. In India, there is no mention of the word ‘Due Process’.

  • Firstly, This was a significant omission for the entire efficacy of the procedural due process concept emanates from the word “due”.
  • Secondly, the draft constitution had contained the words “due process of law” but these words were later dropped and the present phraseology adopted instead.

his was a strong evidence to show that the Constituent assembly did not desire to introduce into India the concept of procedure due process. This was done mainly to avoid the uncertainity surrounding the due process concept in the U.S.A. The judicial decisions in the USA on what was reasonable had not been uniform. The concept of ‘reasonable’ had varied from judge to judge, statute to statute, time to time and subject to subject.

A strict literal interpretation of Procedure established by Law give the legislative authority an upper hand and they may enact laws which may not be fair from a liberal perspective. The difference between “due process of law” and “procedure established by law” is that under the American system, a law must satisfy the criteria of a liberal democracy. In India “procedure established by law”, on the other hand, means a law duly enacted is valid even if it’s contrary to principles of justice and equity. In A. K.Gopalan v. UoI [16]the Court held that procedure established by law means any procedure laid down by the legislature in India. It settled 2 major principles in relation to Article 21. One article 19, 21 and 22 were mutually exclusive and independent of each other and article 19 was not to apply to a law affecting personal liberty to which Article 21 would apply. And secondly a “law” affecting life or personal liberty could not be declared unconstitutional merely because it lacked natural justice or due procedure.

However, in India a liberal interpretation was made by judiciary after 1978 and it has tried tomake the term ‘Procedure established by law’ as synonymous with ‘Due process’ when it comes to protect individual rights. In Maneka Gandhi vs Union of India case (1978), Supreme court held that Procedure established by law’ within the meaning of article 21 must be ‘reasonable, just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. This case has been exerting multi dimensional impact on development of Constitutional law in India.

The brief facts of this case are that Maneka Gandhi’s passport was confiscated at the airport under Section 10(3)(c)of the Passport Act 1967.One being asked upon, she was communicated that it was the decision of the Government of India to impound the passport in the interest of the general public. It was held that

  • Firstly, Section 10(3)(c) of the Passport Act is violative of Article 14 of the Constitution[17] since it confers vague unlimited powers on the passport authorities In E.P Royappa v. State of Tamil Nadu & Another,[18], It was held in this case that Article 14 is one of the pillars of the Indian Constitution and hence cannot be bound by a narrow and inflexible interpretation. Article 14 should thus be given the widest interpretation possible, which also includes reasonableness and arbitrariness of certain provisions of the legislations.
  • Secondly, there was Violation of the Principle of Natural Justice i.e The Audi Alteram Partem Rule which forms an important part in defining the constitutionality and fairness of any procedure. In the present case, Maneka Gandhi was denied reasons for the impounding of her passport, which is unfair since every person has the right to know the grounds on which any executive action is being taken against them. Also, she was never given a chance to present her own case before the authorities.
  • Thirdly, the order is violative of Article 21 of the Indian Constitution since the right to travel abroad under personal liberty was denied by the passport authorities without giving reason for the same. Also, the clause talking about ‘procedure established by law’ adopted in this case was arbitrary and unfair.

The court decided that it is not just about the procedure, but also about the substantive due process of law i.e. the fairness of the law. The Supreme Court judgement in Maneka Gandhi demonstrates a sharp shift in jurisprudence and interpretation adopted by the judiciary, which resulted in profound constitutional change. With this change in jurisprudence, we can say that the phrase ‘procedure established by law’ under Art. 21 of the Indian Constitution has acquired the same significance as the ‘due process of law’ clause in the Constitution of United States of America, post Maneka Gandhi judgement.

POST MANEKA GANDHI JUDGEMENT

Article 21 which has lain dormant for nearly three decades was brought to life by the now famous Supreme court decision in Maneka Gandhi. Since then, Article 21 has been on its way to emerge as the Indian version of the American concept of due process. It has become the source of many substanstive rights and procedural safeguards to the people. Now it is settled that that article 21 confers positive rights to life and liberty The word “life” in article 21 means a life of dignity and not just mere animal survival which was also upheld in the case of Francis caralie[19]. The procedure of depriving a person of his life and liberty must be reasonable, fair and just.

In the 1978, the 44th amendment of the constitution took place, article 359 was amended, and it provided that article 20 and 21 could not be suspended even during declaration of an emergency. A.k. Bindal vs. Union of India[20], It was held that no person should be deprived of his life and personal liberty except according to the procedure established by law. Thus with the above brief preview of article 21 it is clear that it has a multidimensional interpretation. Any arbitrary, whimsical and fanciful act of the part of any state depriving the life or personal liberty would be against article 21 of the Indian constitution.

The Supreme Court has asserted in Kartar Singh v. State of Punjab that the procedure comemplated by Article 21 is that it must be “right, fair and just” and not arbitrary, fanciful and oppressive. The expression “procedure established by law” extends to both substansive as well as procedural law. A procedure not fulfilling these attributes is no procedure at all in the eyes of Article 21.

References

[1] P.B Mukherji, “ADMINISTRATIVE LAW”, 1958

[2] James Dobbins, Seth G. Jones, Keith Crane and Beth Cole DeGrasse,”The Beginner’s Guide to Nation-Building”, 2007

[3]Id.

[4]Id.

[5]MridushriSwarup , Kelsen‟s Theory of Grundnorm‟

[6] Thompson Paine, “common sense”

[7]Id.

[8] (1976) 2 SCC 521

[9] Article 21, The Constitution of India, 1950

[10]Id.

[11]1990 AIR 1176, 1990 SCR (1) 535

[12]1989 AIR 1933, 1989 SCR (3) 316

[13]1969 AIR 33, 1968 SCR (3) 655

[14]AIR 1973 SC 1461

[15]AIR 1975 SC 1331, 1975 (30) FLR 283,

[16] AIR 1950 SC 27,

[17] Article 14, The Constitution of India, 1950

[18][ 1974] 2 SCR 348

[19] (1993)1 SCC 645

[20] (2003) 5 SCC 163


Author Details: Janavi Venkatesh (OP Jindal Global University)

Editor: Ruchika Baweja (Institute of Law, Nirma University)

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