RULE OF LAW IN INDIA

Rule of law is a fundamental concept that has been incorporated in various forms in Constitutions around the World. Likewise, the framers of Indian Constitution have also adopted the doctrine and included it in the Constitution. The Preamble mentions the ideals of justice, equality, and liberty. Part III of the Constitution describes the Fundamental Rights of the citizens and enforces it.

The Constitution is above all the branches of government i.e.  legislative, executive and judiciary. All the powers are derived from it, and all the organs must work in consonance with the constitution. The concept of judicial review gives a protection to the citizens. If there is any abuse of power by the government or executive, then in can be easily controlled and quashed by the ordinary laws.

Law is defined under Article 13 of the Constitution, that also includes Ordinances, bye-laws, rules, regulations, notification, custom or usage. It also provides that if any law is inconsistent in nature, then it can be declared ultra vires by the Supreme Court and the High Courts. The President also takes the oath to protect, preserve and defend the Constitution in his tenure.

All citizens are assured the right of liberty unless detained by a procedure established by law that is enshrined under Article 21. All the powers of the State and the Union must be in accordance with the Constitution. The maxim “King can do no wrong” does not apply in India. Everyone is equal in front of the law and will be protected equally by the law. It is clearly seen that even government officials are subject to the jurisdiction of the law and can be tried and punished accordingly. There is no special jurisdictional tribunal or separate legal process. They are not immune to the ordinary legal proceedings and the damages can be recovered from them as done from the citizens in ordinary law.

Social equality, social justice, political independence, and internal order must strike balance with the personal liberty and dignity of life. The third point in A.V. Dicey’s definition of rule of law i.e. judge made constitution was developed in India predominantly after the case of ADM Jabalpur vs Shivakant Shukla,  (1976) 2 SCC 521 :AIR 1976 SC 1207 also known as the Habeas Corpus Case.

HABEAS CORPUS CASE

During the proclamation of Emergency in 1975 by Indira Gandhi’s government on account of “internal disturbances”, Article 358 and Article 19 that guaranteed the fundamental rights were automatically suspended. In June 1975, the President of India issued an order under Article 359 suspending Article 14, 21 and 22. Article 21 guaranteed the right to life and personal liberty. Thereafter, many of the leaders of opposing parties were detained under the MISA Act, 1971 and many were not even given a proper explanation of the detention. Due to this, many writ petitions were filed by various individuals, organizations in various High Courts stating that the detentions were illegal and unconstitutional in nature.

The government challenged the writ stating that Article 21 was already suspended by the Presidential order and therefore there was no question of procedure of law being followed or not. The case was then taken to the Supreme Court by the concerned states (Madhya Pradesh through Addl. District Magistrate, Jabalpur). The case was heard by a five judge Constitutional Bench- Chief Justice A.N. Ray, Justice M. Hameedullah Beg, Justice P.N. Bhagwati, Justice Y.V. Chandrachud and Justice H.R. Khanna.

The issue before the court was that whether there was any “rule of law” in India apart from and different from Article 21 of the Constitution.

The majority of the Bench (Chief Justice A.N. Ray, Justice M. Hameedullah Beg, Justice P.N. Bhagwati, Justice Y.V. Chandrachud) gave a gave a negative reply to the issue and stated that the Constitution was supreme and the rule of law. There cannot be a preceding or succeeding rule of law that can be invoked when the originally established rule of law is nullified during Emergency. Article 21 was regarding life and liberty and is a distinct right.

The only judge who did not agree with the majority opinion was Justice H.R. Khanna. He stated that though rule of law is accepted by all the civilized nations some rights like the right to life and liberty is not bound by the Constitution nor is a gift from the Constitution to the citizens. This right was prevalent even before the formation of the Constitution.  Even in absence of Constitution, the State or the Centre does not have any power to deprive any person their right to life and liberty.

CONCLUSION

After reading and analyzing the Habeas Corpus case, I feel that the dissenting opinion of Justice H.R. Khanna was apt. The right to life and liberty is protected by the Constitution and not conferred upon the citizens by it. After considering the historical perspective of rule of law and the definition given by A.V. Dicey, I feel that rule of law has been an integral part of our Constitution to a great extent. Though there may be some omissions, discussions and moderation, there has been a great extent to strike a balance between all three organs of the government. The rule of law keeps a check on the authorities as well as provides necessary protections to the common citizens in the same time.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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