Exceptional Legislation and the Rule of Law: An Assessment

In one line

A State can keep the rule of law while using exceptional powers, but only if the exception is authorised by law, limited in time, controlled by courts, and answerable afterwards.

In the wording a student can write in an exam: exceptional legislation is compatible with the rule of law where four conditions are satisfied: the power is conferred by a law of general application and not by executive fiat; the law states the conditions of its own use and is limited in duration; its exercise is subject to independent adjudication which cannot be ousted; and the officers who exercise it are answerable for excess. Indian exceptional legislation satisfies the first and third conditions well, the fourth partly, and the second badly, which is where the criticism of it properly bites.

Restating the standard

The rule of law was set out in [Rule of Law: Dicey's Three Meanings] and [Rule of Law: The Modern Formulations], and the parts of it that bear on this question are four.

Nobody may be made to suffer except for a distinct breach of law established before the ordinary courts. That is Dicey's first limb, and preventive detention contradicts it outright.

The law must be general, prospective, clear and stable, and the courts must be accessible, in the modern formulations.

In the Indian Constitution the rule of law is not a preamble word but a structural one, as [Rule of Law in the Indian Constitution] shows, running through article 14, article 21, article 265, article 300A and the basic structure.

Rule by law is not the rule of law, as [Rule by Law, and Why the Difference Decides This Paper] shows. A statute conferring an arbitrary power is still a statute, and the question is always whether the law does more than authorise.

The four conditions, tested against the Indian statutes

First: the power must be conferred by law

Indian exceptional legislation satisfies this. Every statute in this module is an Act of Parliament or of a State Legislature, passed in the ordinary way, published, and open to challenge. There is no Indian analogue of a power exercised without statutory basis.

Two consequences follow that are worth stating. Because the power is statutory, its limits are readable and enforceable: an officer acting outside a declared disturbed area has no power at all. And because it is statutory, Parliament can be asked to justify it, which is what the Commission's Opinion in [TADA in Practice, and the NHRC's Comments] does.

Second: the exception must be limited in time and scope

This is where the Indian record is weakest, and an assessment should say so plainly.

Time. TADA's two years became eight. POTA's three years became two, but its substance became permanent in 2004. The statute now in force has no sunset clause. AFSPA has been in force since 1958, its declarations renewed at six month intervals under a judicial direction rather than a statutory one.