Rule of Law

Second meaning: equality before the law

Every person, whatever his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary courts. There is no separate body of law for officials, and no separate set of courts to administer it. Dicey contrasted this with the French system of droit administratif, discussed in [How Administrative Law Grew: England, United States, France and India].

Criticism. Three, and all are examinable. First, Dicey's account of droit administratif was mistaken: the Conseil d'Etat is a genuine court and has often controlled the administration more effectively than the English courts. Second, complete equality never existed even in England: the Crown enjoyed immunities until the Crown Proceedings Act 1947, and judges, diplomats and members of Parliament have always had privileges. Third, in India there are express exceptions: Article 361 gives the President and the Governors immunity from court proceedings while in office, and Articles 105 and 194 give members of the legislatures privileges. Special tribunals for special classes of dispute are now universal.

Third meaning: the constitution is the result of the ordinary law of the land

In England the general principles of the constitution, such as the right to personal liberty, are the result of judicial decisions determining the rights of private persons in particular cases, rather than the source of those rights as in a country with a written constitution guaranteeing them.

Criticism. This is the meaning that has worn worst, and it is a description of English peculiarity rather than a general principle. It is also, on Dicey's own logic, the weaker arrangement: rights that rest only on judicial decisions can be taken away by an ordinary statute, whereas rights written into a constitution cannot. India shows why. The Indian citizen's rights are guaranteed by Part III and the remedy to enforce them is itself a fundamental right under Article 32, which is a stronger protection than the common law can offer.

The rule of law under the Indian Constitution

The Indian position is not Dicey's. It is stronger in some ways and expressly qualified in others, and this is the part of the chapter an Indian examiner cares about most.

Where the Constitution gives the rule of law legal force:

Where the Constitution qualifies it: Article 361 immunity for the President and Governors; Article 359, under which the President may suspend the right to move a court for enforcement of specified fundamental rights during an emergency; and the special provisions for preventive detention in Article 22(3) to (7).

The rule of law is part of the basic structure

This is the proposition that makes the rule of law a legal rule in India rather than a political ideal, and it comes from two cases.

Facts. Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461, was six writ petitions raising the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments of the Constitution. The lead petitioner was the head of a mutt in Kerala whose property was affected by the State's land reform legislation, which the Twenty-ninth Amendment had placed in the Ninth Schedule. The Twenty-fourth Amendment had been passed to reverse the earlier decision in Golak Nath by declaring that Parliament could amend any provision of the Constitution, including the fundamental rights. Thirteen judges heard the case, the largest bench ever assembled in India.

Held. The amending power in Article 368 does not extend to destroying or abrogating the basic structure or framework of the Constitution. Khanna J reasoned that an amendment necessarily contemplates that the Constitution is not abrogated but only changed, so that the old Constitution survives without loss of its identity; retaining the old Constitution means retaining its basic structure or framework; and the words "amendment of the Constitution", with all their wide sweep and amplitude, cannot have the effect of destroying or abrogating that basic structure. It would not be competent, under the garb of amendment, to turn a democratic government into a dictatorship or a hereditary monarchy, to abolish the two Houses, or to do away with the secular character of the State.

Why it matters here. It created the doctrine into which the rule of law was then placed. On its own it does not decide that the rule of law is part of the basic structure; that came next.

Facts. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, arose after the Allahabad High Court set aside the election of the Prime Minister for corrupt practice and appeals were pending in the Supreme Court. While they were pending, Parliament passed the Constitution (Thirty-ninth Amendment) Act 1975, inserting Article 329A, clause (4) of which provided that the pending appeals and the High Court's judgment were void and that the election of a person holding the office of Prime Minister or Speaker could not be called in question except before a body constituted by Parliament. Parliament also amended the election law and placed the amending Acts in the Ninth Schedule.

Held. Clauses (4) and (5) of Article 329A were unconstitutional and void as destroying the basic structure. The amending power under Article 368 is a constituent power and cannot be used to decide an individual dispute, which is the exercise of judicial power; and the provision withdrew the determination of the validity of a particular election from every judicial forum. The amending election Acts were upheld, and because they removed the basis of the High Court's findings retrospectively, the appeal succeeded on the merits.

Why it matters here. It is the case in which the rule of law, free and fair elections and the separation of powers were treated as features of the basic structure, and used to strike down a constitutional amendment. It is the clearest Indian illustration of a legislature attempting to decide a case about a named individual, which is the precise thing the rule of law forbids. It is discussed again in [Separation of Powers].

The lowest point, and its correction

An honest treatment of the rule of law in India has to include the case in which the Supreme Court abandoned it, and the case that put it right. A student who knows only the doctrine and not this episode does not understand what the doctrine is for.

Facts. Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, arose during the Emergency. A proclamation of emergency on the ground of internal disturbance was made on 25 June 1975, and on 27 June 1975 the President made an order under Article 359(1) suspending the right of any person to move any court for the enforcement of Articles 14, 21 and 22. Persons detained under the Maintenance of Internal Security Act 1971 filed habeas corpus petitions in the High Courts challenging their detention. The question was whether such a petition was maintainable at all while that order was in force.

Held. By a majority of four to one, no person had any locus standi to move a writ petition under Article 226 for habeas corpus, or any other writ, to challenge the legality of a detention order on the ground that it was not in compliance with the Act, or was illegal, or was vitiated by mala fides, whether factual or legal, or was based on extraneous considerations. Article 21 was said to be the sole repository of the right to life and personal liberty against the State, so that a claim to habeas corpus was an enforcement of Article 21 and was barred by the Presidential Order. Sections 16A(9) and 18 of the Act were upheld. Khanna J dissented, and his dissent, which cost him the Chief Justiceship, is the passage students are expected to know: the rule of law does not depend on Article 21 alone, and the State has no power to deprive a person of life or liberty without the authority of law even when the right to move a court is suspended.

Why it matters here. It is what the rule of law looks like when it fails. The consequence of holding that Article 21 was the sole repository of the right to life was that a detention which was admittedly illegal, or mala fide, could not be questioned by anybody in any court.

Facts. Justice K.S. Puttaswamy (Retd) v. Union of India, AIR 2017 SC 4161, was decided by a bench of nine judges on a reference asking whether the right to privacy is a fundamental right under the Constitution. In deciding it the Court had to consider the majority view in the Emergency detention case that Article 21 was the sole repository of the right to life and personal liberty, so that the right could be suspended altogether.

Held. The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III. As to the Emergency detention case, the Court said in terms that its decision must be and is accordingly overruled, and it also overruled the decision that had followed it. The Court noted that it had already been said in an earlier decision that the restrictive reading of the right to life and liberty in the Emergency case stood impliedly overruled by later decisions.

Why it matters here. It is the express, dated authority that the Emergency decision is no longer law. A chapter or an answer that describes that case without saying it has been overruled is teaching a position abandoned in 2017.

A worked example

The Commissioner of Police issues an order prohibiting a named journalist, Farida Sheikh, from entering a district for six months. There is a statute empowering the Commissioner to make such an order where he is satisfied that a person's presence is likely to cause a breach of the peace. Farida is given no notice and no reasons, and the order recites only the statutory words.

Test the order against the rule of law, meaning by meaning.

Supremacy of law. Is there a law authorising the order? Yes. Would there be a breach if there were none? Yes, and this is the first question in every administrative law problem: show the power.

No arbitrary power. The statute confers discretion, which is permissible. But the discretion must be exercised on material, for the purpose for which it was given, and on relevant considerations. An order made because the journalist has criticised the Commissioner is made for an improper purpose and is void: [Grounds of Judicial Review: Abuse of Discretion].

Equality before the law. If other journalists in the same position are not restrained, Article 14 is engaged.

Fair procedure. Article 21 covers freedom of movement as an aspect of personal liberty, and a procedure that is fair, just and reasonable would ordinarily require notice and an opportunity to be heard, unless urgency excludes it: [Exceptions to the Principles of Natural Justice].

Remedy. Farida may move the High Court under Article 226 or the Supreme Court under Article 32.

Notice that the rule of law does not decide the case by itself. It generates the questions; the answers come from the doctrines in Modules II and III. That is exactly how the principle works in practice, and saying so is worth marks.

Distinctions worth having straight

What it does NOT mean

It does not mean the government may not have discretion. Dicey's first meaning taken literally would make the welfare State impossible. The modern rule is that discretion must be conferred by law, exercised for its proper purpose and subject to review.

It does not mean everybody is treated identically. Article 14 permits reasonable classification. The rule of law forbids arbitrary distinctions, not all distinctions.

It does not mean the rule of law is only a moral idea in India. It is a legal rule with three legal consequences: laws inconsistent with fundamental rights are void under Article 13; arbitrary State action is void under Article 14; and a constitutional amendment that destroys the rule of law can be struck down as violating the basic structure.

Quick revision

1. Dicey's three meanings: supremacy of law as against arbitrary power; equality before the law and the ordinary courts; and the constitution as the result of the ordinary law.
2. Criticisms: discretion is unavoidable in a welfare State; equality was never absolute, and Article 361 proves it in India; the third meaning describes English peculiarity and is weaker than a written guarantee.
3. Dicey misunderstood droit administratif.
4. Indian foundations: Articles 13, 14, 20, 21, 22, 32, 226 and an independent judiciary. Qualifications: Articles 359, 361 and preventive detention.
5. Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461: the amending power cannot destroy the basic structure.
6. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299: clauses (4) and (5) of Article 329A struck down; rule of law and separation of powers treated as basic features.
7. Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207: the low point, four to one, Khanna J dissenting.
8. Justice K.S. Puttaswamy (Retd) v. Union of India, AIR 2017 SC 4161: that case is expressly overruled.
9. Rule of law is not rule by law.

Test yourself

1. Explain Dicey's three meanings of the rule of law and criticise each. First, supremacy of law: no one is punished except for a distinct breach of law established before the ordinary courts, and wide discretionary power is inconsistent with the rule of law. The criticism is that a welfare State cannot work without discretion; the modern answer is to control discretion rather than abolish it. Second, equality before the law: everyone whatever his rank is subject to the ordinary law and the ordinary courts. The criticism is that Dicey misdescribed droit administratif, that the Crown itself had immunities until 1947, and that in India Article 361 gives the President and Governors immunity. Third, the constitution as the result of the ordinary law: rights come from judicial decisions rather than from a written guarantee. The criticism is that this describes an English peculiarity, and that rights resting only on decisions are weaker than rights entrenched in a constitution, as Part III and Article 32 show.

2. Discuss the rule of law under the Indian Constitution. The rule of law in India is a legal rule with constitutional force. Article 13 voids any law, including delegated legislation, inconsistent with fundamental rights. Article 14 guarantees equality before the law and has been read as a guarantee against arbitrariness. Articles 20, 21 and 22 protect against conviction without law and deprivation of liberty without a fair procedure. Articles 32 and 226 supply the remedy, and Article 32 is itself a fundamental right. An independent judiciary is secured by Articles 50, 124 and 217. It is qualified by Article 361, by Article 359 and by preventive detention. Beyond all this, it forms part of the basic structure, so that even a constitutional amendment which destroys it may be struck down, as clauses (4) and (5) of Article 329A were in Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.

3. "The Emergency showed the limits of the rule of law in India." Comment. In Additional District Magistrate, Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, the Supreme Court held by four to one that after the Presidential Order under Article 359(1) no person had locus standi to move any court for habeas corpus, even to argue that a detention was illegal or mala fide, because Article 21 was the sole repository of the right to life and personal liberty. The practical consequence was that an admittedly unlawful detention could not be questioned anywhere. Khanna J dissented. The decision was expressly overruled in Justice K.S. Puttaswamy (Retd) v. Union of India, AIR 2017 SC 4161. The episode shows both that the rule of law can fail when the courts do not enforce it and that the constitutional structure allowed the failure to be corrected.

4. Distinguish the rule of law from rule by law. Rule by law requires only that the government act through legal forms, and is satisfied by any tyranny that legislates. The rule of law requires in addition that the law meet certain standards, that it be general, certain, prospective and administered by independent courts, and that the government itself be subject to it. In India the difference is enforced by Article 14, which strikes down arbitrary laws and actions, and by the basic structure doctrine.

5. Is administrative discretion inconsistent with the rule of law? Not in the modern understanding, though it was on Dicey's first meaning. A welfare State must confer discretion, because no statute can provide in advance for every case. Discretion is consistent with the rule of law where it is conferred by law, confined to the purpose for which it was conferred, exercised on relevant considerations and on material, and subject to judicial review. It becomes inconsistent when it is unguided, unreviewable, or exercised for a purpose other than the one for which it was given.