K.
N. WANCHOO
Former
Chief Justice of
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 or Rule 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
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 by the
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
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 may be 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.