The Rule of Law After Independence

And the writ jurisdiction is discretionary in its exercise. A High Court may decline relief under article 226 where an alternative remedy exists. The remedy is constitutional; the practice around it is judge-made restraint.

The three cases that made the rule of law enforceable against Parliament

This is the part of the topic that carries the marks, and the three cases should be given in order, because each builds on the last.

Kesavananda Bharati Sripadagalvaru v. State of Kerala (1973), thirteen judges. The petitioner, the head of a mutt in Kerala, challenged State land reform legislation, and the case widened into the extent of Parliament's power to amend the Constitution under article 368. The Court held, by a majority, that the amending power is wide and reaches every article and every part of the Constitution, but that Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution, naming as illustrations the sovereignty of India, the democratic character of the polity, the unity of the country and the essential features of the individual freedoms secured to the citizens, and stating that the limitations were illustrative and not exhaustive.

Indira Nehru Gandhi v. Raj Narain (1975), five judges. The Allahabad High Court had set aside the election of the Prime Minister. While the appeal was pending, the Thirty-ninth Amendment inserted article 329A, clause (4) of which provided that the election of a person holding the office of Prime Minister or Speaker should not be called in question in any court, that any pending proceeding should abate and that any existing judgment declaring such an election void should itself be void. The Court declared clause (4), and the connected clauses (5) and (6), invalid. The grounds argued and accepted were that the clause was an exercise of purely judicial power, which is not within the constituent power conferred by article 368; that removing the judicial determination of an election destroyed the democratic character of the Constitution; that it abrogated equality; and that free and fair elections, the rule of law and judicial review are part of the basic structure.

L. Chandra Kumar v. Union of India (1997), seven judges. Held that the power of judicial review vested in the High Courts and the Supreme Court under articles 226 and 32 is integral to the constitutional scheme and part of its basic structure, and struck down the clauses of articles 323A and 323B that excluded it.

Put the three together and the proposition a student needs is this: in India the rule of law is not merely a principle of interpretation but a limit on the power to amend the Constitution itself. Nothing in Dicey, and nothing in Modules I and II, comes close to that.

The Emergency, and what followed it

The most useful test of the rule of law in independent India is what happened between 1975 and 1977, and a student should treat it as evidence rather than as politics.

What the Constitution permitted. Article 359 allowed the President, during a Proclamation of Emergency, to declare that the right to move any court for the enforcement of Part III rights, as specified in the order, should remain suspended. That is the qualification article 32(4) refers to.

What was attempted. The Thirty-ninth Amendment's article 329A, clause (4), described above, is the clearest instance: a constitutional amendment that decided one case.

What the courts did. Indira Nehru Gandhi struck clause (4) down, on the basic structure doctrine established two years earlier.

What Parliament did afterwards. The Forty-fourth Amendment 1978 narrowed article 359 so that the rights under articles 20 and 21 can no longer be suspended, and made other changes restoring the position. That is the rule of law being strengthened by legislation in response to its own failure, and it is the single best piece of evidence for the topic.

A worked example

Compare the same problem in 1780 and in 1980.

1780. A government resists the process of the highest court in the province. There is no institution in India competent to decide between them. Parliament settles it by an Act that indemnifies the government for what it did.

1980. A government wishes to place a matter beyond the courts. It must either legislate, in which case articles 13, 14, 21, 32 and 226 apply and the law can be struck down; or amend the Constitution, in which case Kesavananda Bharati applies and the amendment can be struck down if it damages the basic structure; or proclaim an Emergency and suspend the right to move the courts under article 359, and even then, after 1978, articles 20 and 21 are beyond its reach.

That is the whole of Module III in one comparison, and it is the right way to end an answer on the rule of law.

What beginners get wrong

"The rule of law is guaranteed by article 14." Article 14 guarantees equality before the law and the equal protection of the laws, which is Dicey's second limb. The rule of law as a whole rests on articles 13, 14, 21, 32 and 226 together, and on the basic structure doctrine.

"The basic structure doctrine is in the Constitution." It is not. It is a construction of article 368 by the Supreme Court in Kesavananda Bharati, and its content has been settled case by case.

"Fundamental rights cannot be suspended." Article 359 permits the suspension of the right to move any court for their enforcement during an Emergency, and since the Forty-fourth Amendment articles 20 and 21 are outside even that.

"Article 361 shows there is no rule of law in India." It gives two offices a personal immunity of a narrow kind. Compare sections 15 and 17 of the Regulating Act, which covered the whole executive government of Bengal and its judges.

Limits and criticism

Three criticisms are commonly made and a student should be able to state each in a sentence and answer it in another.

"The basic structure doctrine is undemocratic, because unelected judges limit an elected Parliament." The answer given in Kesavananda Bharati is that a power capable of being used against the people themselves cannot be regarded as a power exercised on their behalf, and that an unlimited amending power could make the Constitution unamendable in substance by removing the very rights that make amendment meaningful.

"Judicial review has become judicial government." The answer is that the remedy for an excess of judicial power is not the removal of judicial power, and that the alternative, tested between 1975 and 1977, is worse.

"The rule of law is a formality when justice takes twenty years." This is the strongest criticism and it has no good answer. Delay is the standing failure of the Indian legal system, it is recorded in this book from the 1790s onwards, and no constitutional provision has cured it.

Quick revision

• Article 13: laws inconsistent with fundamental rights are void. Article 14: equality before the law and the equal protection of the laws. Article 21: no deprivation of life or liberty except according to procedure established by law. Articles 32 and 226: the remedy.
• Kesavananda Bharati (1973): the amending power reaches every article, but Parliament cannot abrogate or emasculate the basic elements or fundamental features.
• Indira Nehru Gandhi (1975): clause (4) of article 329A invalid; a constitutional amendment cannot decide an individual case, and free and fair elections, the rule of law and judicial review are basic features.
• L. Chandra Kumar (1997): judicial review under articles 226 and 32 is part of the basic structure.
• Article 359 permits suspension of the right to move a court during an Emergency; the Forty-fourth Amendment 1978 placed articles 20 and 21 beyond it.
• Article 361 keeps a narrow personal immunity for the President and the Governors.

Test yourself

1. How does the Indian position improve on Dicey's first two limbs? Article 13 makes laws inconsistent with fundamental rights void, article 21 requires a procedure established by law before life or liberty is taken, and articles 32 and 226 give an enforceable remedy, so the supremacy of law does not depend on the legislature's self-restraint; and article 14 guarantees both equality before the law and the equal protection of the laws, so a classification must be reasonable and related to the object of the law.

2. State the holding in Kesavananda Bharati in one sentence. That the power to amend under article 368 is wide and reaches every article and every part of the Constitution, but that Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution, the illustrations given being illustrative and not exhaustive.

3. What was struck down in Indira Nehru Gandhi v. Raj Narain, and on what ground? Clause (4) of article 329A, and the connected clauses (5) and (6), inserted by the Thirty-ninth Amendment, which had placed the election of a person holding the office of Prime Minister or Speaker beyond any court and made an existing judgment void. The grounds were that it was an exercise of purely judicial power outside the constituent power, that it destroyed the democratic character of the Constitution by removing judicial determination, that it abrogated equality, and that free and fair elections, the rule of law and judicial review are part of the basic structure.

4. What did the Forty-fourth Amendment do for the rule of law, and why does it matter? It narrowed article 359 so that the right to move a court for the enforcement of articles 20 and 21 can no longer be suspended during an Emergency. It matters because it is an instance of the rule of law being strengthened by legislation in response to its own failure.

5. What is the strongest criticism of the rule of law in India today, and why is it hard to answer? That a right which takes many years to enforce is a right in form only. It is hard to answer because delay is documented in this book from the 1790s and no constitutional provision has cured it.