Rule of Law Under the Constitution

K. N. WANCHOO
Former Chief Justice of India

Rule of Law, as we understand it today, is a necessity in a democratic State of the Western type. Establishment of the Rule of Law requires a highly civilised society. To begin with when States were governed by absolute rulers, there was no rule of law in its true sense, though even from earliest times some rules regulating human conduct in society were observed and enforced by such rulers through judges appointed by them.

The stage orRule of Law was first reached in the democratic States of the West. Now Rule of Law envisages, first, a uniform body of laws to regulate all human conduct in the State which is a manifestation of a well-organised society; secondly, decision of all disputes by independent courts not only between subject and subject or citizen and citizen but also between the subject or the citizen on the one side and the State on the other, with freedom to the subject/citizen to approach the courts for redress against the State without having to ask for permission before doing so; and thirdly, establishment of regular courts manned by independent judges to decide disputes. It is only when these conditions are fulfilled in any State that we may say that Rule of Law in its true sense prevails in that State.

When the Indian Constitution came into force in 1950 we started with a large volume of laws which already existed and which were to continue except to the extent they were inconsistent with tae fundamental rights conferred by the Constitution. In addition to this large body of laws, which we inherited and which the Constitution continued, there have been during the last 18 years new laws enacted by legislatures–State and Central–set up under the Constitution. These new laws, along with the old laws which the Constitution recognised, form a uniform body of laws which governs our society and regulates all human conduct within our country. So the first condition which must be there before it can be said that there is rule of law in a country is amply fulfilled by these provisions of the Constitution to which reference has already been made.

The next condition is that a citizen should be able to approach courts for redress against the State. This has also been provided in our Constitution by three main provisions. There is a specific provision to the effect that the governments in India may sue or be sued. The second provision which ensures redress to the citizen is contained in Art. 226 That Article gives power to the High Court to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred or for any other purpose. The third provision is contained in Art. 32 which is in the Part relating to fundamental rights. This Article gives the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights.

So far as disputes between citizen and citizen are concerned that is provided by ordinary laws, as for example the Code of Civil Procedure and the Code of Criminal Procedure. Besides these two general laws there are many other laws which provide for approaching the courts if there is a dispute between citizen and citizen. It will thus be seen that the second condition is also amply fulfilled in our country bythe provisions of the Constitution and of existing laws.

Now we have to look at the Constitution to see whether there is provision for the establishment of courts manned by independent judges for dispensation of even-handed justice according to law, and what are the powers of the courts in that behalf, whether conferred by the Constitution itself or by the laws enacted there-under.

The Constitution provides for the establishment of subordinate courts of both civil and criminal jurisdiction and the manner of their appointment. Above the subordinate courts which function in each district, each State, generally, has a High Court of its own, though there are some cases where there is a common High Court for two States. The independence both of the subordinate courts and of the judges of the High Court is provided, first, by tradition, and secondly, by the manner of their appointment under the Constitution. The appointment of the judges of subordinate courts is not left to the executive but is provided for by rules framed in consultation with the High Court and the Public Service Commission and in some cases no appointments can be made of a district judge without the recommendation of the High Court. Further, the independence of subordinate courts is secured by the control over these courts being vested in the High Court and not in the executive.

In the case of the High Courts also the appointment of a judge is made in consultation with the Chief Justice of the High Court concerned, the Governor of the State and the Chief Justice of India. This method of appointment guarantees that judges appointed to the High Court would be persons of ability, integrity and independence.

Above the High Court is the Supreme Court, which is the court of appeal from the High Courts. In addition it has been given original jurisdiction to issue writs for the enforcement of fundamental rights. The appointment of judges of the Supreme Court is again made by the President in consultation with the Chief Justice of India. This system of appointment again provides that the judges of the Supreme Court will be men of ability, integrity and independence.

Let us now turn to what the Constitution provides for safeguarding the rights of the citizens of this country. The rights arising from the laws in force are the basis of the rule of law in our country. But over and above these rights conferred by ordinary laws which are liable to change, our Constitution has provided certain rights to citizens of the country which are known as fundamental rights. The importance of fundamental rights cannot be minimised and they constitute the basis of rule of law prevailing in our country.

It is not necessary to refer in detail to all the fundamental rights provided in Part III of the Constitution; but it is useful to refer to certain basic fundamental rights contained in that Part. To begin with, the Constitution provides the right to equality. The second basic fundamental right is the right of freedom. There are qualifications in respect of these rights indicating what limitations or reasonable restrictions on the above rights can be placed by laws in the interest of society and of the State. But this right to freedom, along with the right to equality already referred to, are the basic rights of citizens when laws cannot take away or abridge except to the extent envisaged in the Constitution itself for the purpose of general welfare. Then there is the right to property and the Constitution provides that no person shall be deprived of his property save by authority of law. It further provides that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned. This right is also subject to certain qualifications in the public interest but it is not necessary to refer to them. Lastly, the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. This protects the life and personal liberty of all persons living in our country.

Having provided the fundamental rights the Constitution also provides that all laws in force in the territory of India before the commencement of the Constitution would be void to the extent of any inconsistency between them and the fundamental rights provided in Part III of the Constitution. Further the Constitution prohibited the State from making any law which takes away or abridges the right conferred by Part III and any law made in contravention of fundamental rights shall to the extent of the contravention be void.

Apart from the power to issue writs, power of what is called judicial review has been conferred on the Supreme Court (Art. 32) as well as on the High Courts (Art. 226). Power is thus conferred on superior court even to declare a law passed by the legislature of a State or by Parliament to be void, if courts come to the conclusion that the law in question takes away or abridges any of the fundamental rights. Such power of judicial review in courts is a clear proof that rule of law prevails in our country under the Constitution.

It may be useful to illustrate what has been said with some of the decisions given by the Supreme Court which highlight how rule of law works in actual practice. In one case, arising out of the seventeenth amendment to the Constitution, the question raised was with respect to the power of Parliament to amend the fundamental rights. How difficult the decision was can be judged from the fact that the full court of eleven judges sat to consider it and when the decision came to be rendered it was by a majority of one. Six of the judges held that it was not open to Parliament to amend the fundamental rights, while five came to the conclusion that the power was contained in Art. 368 which dealt with the amendment of the Constitution.

Generally when a Court; decides what the interpretation of a particular provision of constitutional law or any other law is, the decision means that that interpretation is always the correct interpretation. This retrospective nature of the interpretation has far-reaching effect for it affects the past also. Therefore the majority judges in this case were faced with the problem of the effect of their decision that fundamental rights could not be amended by Parliament. Normally such a decision would have meant that all amendments of fundamental rights which had been made ever since the Constitution (First Amendment) Act (and there were quite a number of them in the last 18 years), would have been bad and everything done on the strength of those amendments would have fallen. If such an effect was given to the majority decision, it would have had a very disturbing effect on various land reforms in particular that had been affected in the last 18 years on the basis of some of the constitutional amendments like the first and fourth amendments. In order to meet this difficulty, five out of the six majority judges evolved a new doctrine of what is called prospective over-ruling, namely, that the interpretation given was to have effect from the date of judgement and would not affect the constitutional amendments to fundamental rights made before the date of the judgment.

This of course was not in accord with the English theory that the court declares the law when it interprets it and that interpretation takes effect from the date the law came into force, but it was in accord with such judgments in the U. S. A. Five of the majority judges adopted the theory of prospective over-ruling which had been favoured in a few decisions of the United States of America.

The importance of this decision in the constitutional field cannot but be of supreme moment to the people of this country. It shows how in our democratic State the rule of law is maintained and even where powers of Parliament are concerned, they are subject to the decision of the superior courts in the land.

Another example which may be given is with respect to the powers, privileges and immunities of the House of the Legislature of a State vis-a-vis the fundamental rights. The question arose in this way: A certain person was said to have committed contempt of the Legislative Assembly of Uttar Pradesh. He was called before the House and sentenced to imprisonment for seven days. He went to the High Court for a writ claiming that the Legislative Assembly had no power to commit him to prison for contempt of itself. The question was eventually referred to the Supreme Court by the President for its advice. The question was whether it was for the court to decide, in view of the fundamental rights, about the power of a House of Legislature to commit for contempt or whether it was the House alone which could decide for itself. If the question was for the court to decide you will undoubtedly see that the rule of law would prevail; on the other hand if it was entirely within the competence of the House of Legislature to decide what powers it had, there would be a dent in the concept of rule of law as prevalent in our country, for then the Houses of Legislature would not only have the power to punish but also the power to decide whether they could punish in the face of the fundamental rights. The case was heard by seven judges of the Supreme Court and the opinion given was that it was within the power of the court to decide whether a House of the Legislature had the particular privilege or power or immunity which it claimed. The court further held that a House could not claim absolute power to say what its powers, privileges and immunities were. It was held that in the context of the Indian Constitution, the question was open to investigation by the court if it was approached by a citizen for protection of his fundamental rights to life and personal liberty. In that case also one of the judges dissented and the decision was by a majority of 6 to 1.

The third case to which reference may be made arose out of a dispute between .he Centre and one of the States. The question was whether the Centre had the right of eminent domain to acquire property belonging to a State. Our Constitution provides that the Centre and the State governments have the power to acquire property for a public purpose on payment of compensation. There was never any doubt that this power could be used to acquire the property of a citizen for a public purpose on payment of compensation. But in a federal or quasi-federal State there is the Central Government on the one hand and the State governments on the other. The question raised in this case was whether the Central Government could acquire the property of the State Government compulsorily on payment of compensation under this right of eminent domain. The argument on one side was that as both the Central and the State governments were included in the word “State” for purpose of eminent domain, the acquiring of property of the State Government by the Central Government compulsorily would really amount to acquiring the property of the State by the State, and this could not be done, and the only manner in which the Central Government could acquire the property of the State Government was by negotiations with the State Government. The argument on the other hand was that though the Central Government and the State Government were included within the word “State” for purposes of eminent domain they were two distinct juristic persons and one of them could acquire the property of the other compulsorily on payment of compensation and it made no difference whether the person whose property was acquired was an individual, a company, or a corporation or even a State. The Supreme Court held by majority that the Centre had the power to acquire the property of the State under the right of eminent domain on payment of compensation. In that case also there was a dissent by one learned judge.

The importance of this case from the point of view of the concept of rule of law is that even where there is a dispute between the Central Government and the State Government or between two State governments, it is the court which has to decide that dispute. Thus the submission of disputes even between one State and another, or between the Centre and the State, to the court for decision completes the concept of rule of law which is prevalent in our country.

The last case to which reference maybe made again came before the Supreme Court on a reference by the President for its opinion. That was a case which arose out of a dispute between the Central Government and the State governments on the question of customs and excise duties which imposes can be levied only by the Central Legislature. The questions that were posed were–(1) whether customs duties could be imposed on goods imported or exported by a State, and (2) whether excise duties could be imposed on the manufacture of goods by the State. That case was heard by a Bench of 9 judges who were divided 5 to 4 and the decision went in favour of the power of Parliament to impose customs and excise duties. The importance of the decision cannot be gainsaid for it affected the revenue of the Central Government materially. If goods (for example) imported by a State Government were free of customs duties, there would be a great loss to the revenues arising from customs to the Central Government. Similarly, if goods manufactured by a State were to be free of excise duties there would be a serious loss of revenue. The importance of the decision for the concept of rule of law is this that the dispute between the Centre and the States was referred to the court for its opinion and naturally the opinion of the court as to the power of Parliament in this behalf once given prevailed.

These cases thus show how in matters of the greatest moment to the country the concept of rule of law prevails and the questions raised are decided in accordance with the opinion or the decision of the courts.

A question has sometimes been asked as to what would happen if the Government–be it State or Central–did not carry out the decisions of the Court. The question has been answered by Article 144 of the Constitution which inter alia says that all civil authorities in the territory of India shall act in aid of the Supreme Court.