The Rule of Law Inside the Indian Constitution

And the remedies: articles 32 and 226. Article 32 guarantees the right to move the Supreme Court for the enforcement of Part III and is itself a fundamental right. Article 226 empowers a High Court to issue directions, orders or writs for the enforcement of Part III rights and for any other purpose, which is wider.

The two express qualifications, which an honest answer states

Article 33 permits Parliament to modify the rights in their application to the armed forces, to the forces charged with the maintenance of public order, to persons employed in intelligence or counter-intelligence organisations, and to persons employed in telecommunication systems set up for those forces, so as to ensure the proper discharge of duties and the maintenance of discipline.

Article 34 permits Parliament to indemnify acts done during martial law, by providing for the indemnification of any person in the service of the Union or of a State for any act done in connection with the maintenance or restoration of order in an area where martial law was in force, and for validating any sentence passed or act done under martial law.

Both are real derogations and both are limited. Article 33 requires an Act of Parliament and only in relation to the named services; article 34 requires an Act of indemnity and only in relation to an area where martial law was in force. The rule of law in India is therefore not absolute, and a candidate who does not mention these two articles has described the Constitution as they would like it rather than as it is.

From Gopalan to Maneka: the change that made article 21 mean something

In the beginning the rights were read as separate compartments. In A.K. Gopalan v. State of Madras, AIR 1950 SC 27. Facts. A challenge by a detenu to the Preventive Detention Act 1950. Held, upholding the Act except for section 14 which was severable. The fundamental rights are separate and self-contained: a law of preventive detention was to be tested against article 22 alone, article 19 had no application to a person lawfully detained, and "procedure established by law" in article 21 meant procedure laid down by a duly enacted law and not procedure a court would find fair. Fazl Ali J. dissented. Why it matters here is that on this reading article 21 added almost nothing to the rule of law: any procedure Parliament chose was, by definition, procedure established by law.

Twenty-eight years later the Court reversed the premise. In Maneka Gandhi v. Union of India, AIR 1978 SC 597. Facts. The petitioner's passport was impounded under the Passports Act 1967 in the public interest, without reasons and without a hearing. Held. Articles 14, 19 and 21 are not mutually exclusive but form a single scheme, so a law depriving a person of personal liberty must answer the tests of all three; that the procedure established by law in article 21 must be right, just and fair and not arbitrary, fanciful or oppressive, and that a procedure which is arbitrary is no procedure at all; and that the right to travel abroad is part of personal liberty. Why it matters here is that it imported the substance of due process into article 21 without the words, and made the Indian rule of law substantive rather than formal. The relationship between the two phrases is worked in [Procedure Established by Law, and Due Process].

A worked example

A municipal corporation demolishes a row of shops without notice, relying on a byelaw permitting the removal of unauthorised structures. The shopkeepers had been in occupation for eleven years and had been paying a licence fee to the corporation.

Article 300A is the first provision, and it does less work than students expect. It requires authority of law for a deprivation of property, and the byelaw is law. It does not by itself require a hearing.

Article 21 supplies the hearing, and this is the Maneka effect in practice. The shops are the shopkeepers' livelihood, livelihood has been held part of the right to life, and after Maneka the procedure by which a person is deprived must be right, just and fair. A demolition without notice, where the occupation was long and the corporation itself had been taking money for it, is not a fair procedure.

Article 14 supplies the second objection. If other unauthorised structures in the same street were left standing, the selection of these shops requires an explanation, and an unexplained selection is arbitrary, which Royappa makes a breach of article 14.

Article 226 supplies the remedy, and note that it is wider than article 32 here. The High Court may issue a writ not only for a Part III right but for any other purpose, which covers the article 300A point, and it may mould relief, for example by directing rehabilitation rather than restoration.

The example shows the Indian rule of law working as a system of rights rather than as a presumption. In a system without a written constitution the shopkeepers would be arguing that the corporation had misconstrued its byelaw. Here they are arguing that the byelaw, so applied, is void.

The cases

A law that allows the executive to choose who gets which procedure offends article 14. In State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75. Facts. The West Bengal Special Courts Act 1950, intituled an Act to provide for the speedier trial of certain offences, empowered the State Government by section 5(1) to direct that a Special Court try such offences, classes of offences, cases or classes of cases as it directed, the Special Court following a truncated procedure. Held. Section 5(1) discriminatory and void under article 14 so far as it permitted the State Government to refer "any case" to a Special Court; the special procedure was not on its face calculated to prejudice a fair trial and the need for a speedier trial could form the basis of a reasonable classification, so the section was unobjectionable in authorising the reference of offences or classes of offences or classes of cases. Why it matters here is that it is the generality requirement in its Indian form: classify by a criterion related to the object, and the classification stands; pick individuals, and it does not.

And the rule of law reaches into a police station. In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; AIR 1997 SC 610. Facts. A letter to the Chief Justice about deaths in police custody, treated as a writ petition. Held. Custodial violence strikes a blow at the rule of law and issued eleven requirements to be followed in all cases of arrest and detention, including accurate identification of the arresting officers, a memo of arrest attested by a witness and countersigned by the arrestee, notification to a friend or relative, an entry in a diary, medical examination every forty-eight hours, and communication to the local magistrate. Why it matters here is that the rule of law is enforced in India not only by striking laws down but by supplying procedure where the statute left a gap, which is a use of article 32 that Dicey's system had no equivalent for.

Distinctions

What it does NOT mean

It does not mean India's rule of law has no exceptions. Articles 33 and 34, and the preventive detention clauses of article 22, are express qualifications, and preventive detention without trial is permitted by the Constitution itself.

It does not mean Gopalan was overruled on everything. What Maneka rejected was the compartment theory and the formal reading of "procedure established by law". Preventive detention remains constitutionally permissible.

It does not mean article 300A is as strong as a fundamental right. It was moved out of Part III by the Forty-fourth Amendment in 1978, so it cannot be enforced under article 32 as a fundamental right, though it is enforceable under article 226 and has been read with article 14.

And it does not mean the rule of law is a stand-alone ground of challenge. A petitioner does not succeed by saying a statute offends the rule of law in the abstract. The argument must be routed through an article, which is why this chapter is organised by article rather than by principle.

Quick revision

Article 14 carries equality before the law and equal protection; article 20 forbids retrospective crime, double jeopardy and compelled self-incrimination; article 21 requires a procedure that is right, just and fair after Maneka; article 22 protects on arrest and permits preventive detention; article 265 forbids tax without authority of law; article 300A forbids deprivation of property without authority of law and sits outside Part III since the Forty-fourth Amendment; articles 32 and 226 supply the remedy, article 32 being itself a fundamental right. Articles 33 and 34 are express derogations, for the armed forces and for martial law indemnity. Gopalan read the rights as compartments and "procedure established by law" formally; Maneka held articles 14, 19 and 21 a single scheme and made the procedure substantive. Anwar Ali Sarkar voids a power to pick individual cases for a special procedure. D.K. Basu supplies eleven arrest requirements where the statute was silent.

Test yourself

1. Name six articles that carry the rule of law and say what each does. Article 14, equality before the law and equal protection; article 20, no retrospective crime, no double jeopardy, no compelled self-incrimination; article 21, no deprivation of life or liberty except by fair procedure; article 265, no tax without authority of law; article 300A, no deprivation of property without authority of law; article 32, the right to move the Supreme Court for enforcement.

2. What did Gopalan decide and what did Maneka change? Gopalan held the rights separate and self-contained and read "procedure established by law" as any duly enacted procedure. Maneka held articles 14, 19 and 21 to form a single scheme and required the procedure to be right, just and fair, so that an arbitrary procedure is no procedure at all.

3. What are articles 33 and 34, and why must an answer mention them? Article 33 lets Parliament modify the fundamental rights in their application to the armed forces and forces charged with public order; article 34 lets Parliament indemnify acts done during martial law and validate sentences passed under it. They are express derogations, and omitting them describes a Constitution more absolute than the real one.

4. Why is article 300A weaker than a fundamental right? Because the Forty-fourth Amendment 1978 moved the right to property out of Part III into Part XII, so it cannot be enforced under article 32 as a fundamental right, though it remains enforceable under article 226.

5. What was wrong with section 5(1) of the West Bengal Special Courts Act? It let the State Government send "any case" to a Special Court with a truncated procedure without any stated criterion, so the executive chose who got which procedure. Classification by offence or class of case for speedier trial was permissible; selection of individual cases was not.

6. Give one example of the rule of law being enforced by supplying procedure rather than by striking a law down. D.K. Basu, where the Court issued eleven requirements for every arrest and detention, including a memo of arrest attested by a witness, notification to a relative and medical examination every forty-eight hours.