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RULE OF LAW AND ITS APPLICABILITY IN INDIA: A CRITICAL STUDY
SUBJECT: ADMINISTRATIVE LAW
SUBMITTED BY: SABYASACHI BHADURI
SECTION - A (POLITICAL SCIENCE MAJOR)
ROLL NO. - 120
SEMESTER - VI
SUBMITTED TO: MR. MANOJ KUMAR
(FACULTY OF ADMINISTRATIVE LAW)
SUBMITTED ON: FEBRUARY 25, 2015
HIDAYATULLAH NATIONAL LAW UNIVERSITY
RAIPUR, CHHATTISGARH
ACKNOWLEDGEMENTS
I should like to place on record a special thanks to Mr. Manoj Kumar, faculty of
Administrative Law, for his personal care, timely suggestions, critical evaluation
and creative guidance throughout this project research and with whose help the
practical realization of this project has been possible.
The other person I owe a great deal of gratitude is to the Vice Chancellor of this
University, Dr. Sukhpal Singh for providing extensive database resources in the
Library and through internet.
Some printing errors might have crept in, which are deeply regretted. I would be
grateful to receive comments and suggestions to further improve this project
report.
Sabyasachi Bhaduri
SEM – VI
BATCH – XII
SECTION- A (POL. SCI. MAJOR)
ROLL NO. 120
INDEX OF ABBREVIATIONS
& And
§ Section
AIR All India Reporter
Anr. Another
Bom Bombay
Cr LJ Criminal Law Journal
Cr.PC Criminal Procedure Code
DDT Deception Detection Tests
Hon’ble Honourable
HC High Court
Gov. Government
LR Law Report
M.P Madhya Pradesh
Ors. Others
p. /pp. Page/Pages
PUDR People’s Union of Democratic Rights
PUCL People’s Union of Civil Liberties
SC Supreme Court
SCC Supreme Court Cases
T.N Tamil Nadu
U.S United State
v. versus
INDEX OF CASES
1. ‘X’ v Hospital ‘Z’ (1998) 8 SCC 296
2. A P Pollution Control Board II v M V Nayudu (2001) 2 SCC 62
3. A.L. Kalra v Project & Equipment Corporation (1984) 3 SCC 316
4. Ajay Hasia v Khalid Mujib AIR 1981 SC 487
5. All India Judge’s Association v Union of India, (2002) 4 SCC 247
6. Ameernnisa Begum v Mehboob Begum AIR 1952 SC 91
7. Bandhua Mukti Morcha v Union of India AIR 1984 SC 802
8. Bennett Coleman v. Union of India, AIR 1973 SC 106.
9. Bhim Singh v State of J & K (1985) 4 SCC 677
10. Bijoe Emmanuel v State of Kerala, AIR 1987 SC 748
11. Bodhisattwa Gautam v Subhra Chakraborty (1996) 1 SCC 490
12. Central Inland Water Corporation v B N Ganguly (1986) 3 SCC 156
13. Common Cause v Union of India (1996) 4 SCC 33
14. Consumer Education & Research Centre v Union of India (1995) 3 SCC 42
15. D. C. Wadhwa v State of Bihar, AIR 1987 SC 579
16. DTC Corporation v DTC Mazdoor Congress AIR 1991 SC 101
17. E. P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3
18. Express Newspapers v Union of India, AIR 1958 SC 58
19. Francis Coralie v Union Territory of Delhi AIR 1981 SC 746
20. Gauri Shankar v Union of India (1994) 6 SCC 349
21. Govind v State of MP AIR 1975 SC 1378
22. Hussainara Khatoon v State of Bihar, AIR 1979 SC 1364
23. In re, Presidential Reference, AIR 1999 SC 1
24. Indian Council for Enviro Legal Action v Union of India (1996) 3 SCC 212
25. Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2295
26. K Kunhikoman v State of Kerala AIR 1962 SC 723.
27. Kadra Pahadiya v State of Bihar AIR 1982 SC 1167
28. Kharak Singh v State of UP AIR 1963 SC 1295
29. Khatri v State of Bihar AIR 1981 SC 928
30. Kirloskar Brothers Ltd. v ESIC (1996) 2 SCC 682
31. M C Mehta v Kamal Nath AIR 2000 SC 1997
32. M C Mehta v Union of India (1987) 1 SCC 395
33. M C Mehta v Union of India (1996) 6 SCC 750
34. M H Hoskot v State of Maharashtra AIR 1978 SC 1548
35. Maneka Gandhi v. Union of India (1978) 1 SCC 248
36. Medical and Educational Charitable Trust v State of Tamil Nadu (1996) 3 SCC
37. Mithu v State of Punjab AIR 1983 SC 473
38. Munna v State of UP AIR 1982 SC 806
39. Narmada Bachao Andolan v Union of India (2000) 10 SCC 664
40. Naz Foundation v Government of Delhi, WP(C) No.7455/2001 (2 July 2009) para 132
41. Nilabati Behra v State of Orissa (1993) 2 SCC 746
42. Northern India Caterers Ltd. v State of Punjab AIR 1967 SC 1581
43. Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180
44. P Rajendram v State of Madras AIR 1968 SC 1012.
45. Parmanand Kataria v Union of India AIR 1989 SC 2039
46. Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 SCC 37
47. Prem Shankar v Delhi Administration AIR 1980 SC 1535
48. PUCL v Union of India AIR 1997 SC 568
49. R D Shetty v International Airport Authority AIR 1979 SC 1628
50. R Raj Gopal v State of Tamil Nadu (1994) 6 SCC 632
51. Rajdeo Sharma v State of Bihar (1998) 7 SCC 507
52. Ram Prasad v State of Bihar AIR 1953 SC 215
53. Record Association v. Union of India (1993) 4 SCC 441
54. Rudul Sah v State of Bihar (1983) 4 SCC 141
55. Sheela Barse v Union of India AIR 1986 SC 1773
56. Shivsagar Tiwari v Union of India (1996) 6 SCC 558
57. SP Gupta v Union of India, AIR 1982 SC 149
58. State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75
59. Suk Das v Union Territory of Arunachal Pradesh AIR 1986 SC 991
60. Sunil Batra v Delhi Administration (1978) 4 SCC 494
61. Unni Krishnan v State of AP (1993) 1 SCC 645
62. Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647
63. Visakha v State of Rajasthan AIR 1997 SC 3011
64. Vishaka v State of Rajasthan AIR 1997 SC
TABLE OF INDEX
ACKNOWLEDGEMENTS........................................................................................i
INDEX OF ABBREVIATIONS.................................................................................ii
INDEX OF CASES.................................................................................................iii
RESEARCH METHODOLOGY...............................................................................vi
OBJECTS.............................................................................................................vi
INTRODUCTION..................................................................................................vii
RULE OF LAW IN INDIA........................................................................................1
KEEPING GOVERNMENT POWERS UNDER CHECK.............................................2
EQUALITY GUARANTEE AND THE PROTECTION OF HUMAN RIGHTS................5
JUDICIAL REVIEW BY AN INDEPENDENT JUDICIARY.........................................9
CONCLUSION......................................................................................................12
BIBLIOGRAPHY..................................................................................................13
RESEARCH METHODOLOGY
This research project is qualitative doctrinal in nature. It is largely based on
secondary & electronic sources of data. Books & other reference as guided by
faculty of taxation law are primarily helpful for the completion of this project.
OBJECTIVES
The researcher in this project has aimed to look at the current scenario of the legal
system in India and the role of rule of law affecting the basis of judgement. Also
the advantages and disadvantages of this concept has been evaluated in this
research.
INTRODUCTION
The research underscores that the patrimonial liberal Rule of Law discourse usually
disregards alternative traditions. First, it does not permit any reflection on the normative
socialist Rule of Law conceptions. Second, it disregards the very existence of other Rule of
Law traditions: for example, the pre- colonial, those shaped by the revolt against the Old
Empire, or the non-mimetic contributions by the proud judiciaries in some “developing
societies”.
In this context, the paper analyses the distinctiveness of the Indian Rule of Law and argues
that it offers revisions of the liberal conceptions of rights. The research further adds that the
Indian Rule of Law stands normatively not just as a sword against State domination, but also
as a shield, empowering a “progressive” state intervention in civil society. Finally, the paper
introduces some current trends in the constitutional jurisprudence and highlights the
leadership of the Supreme Court in the development of an extraordinary form of jurisdiction
under the rubric of social action litigation.
RULE OF LAW IN INDIA
Although the term ‘rule of law’ is not used in the Indian Constitution anywhere,1 it is
generally accepted that India is a country governed by the rule of law.2 The rule of law
pervades the Constitution as an underlying principle and since the Supreme Court has
declared it to be one of the ‘basic features’ of the Constitution,3 this principle cannot be
taken away even by a constitutional amendment. There are, however, several red flags. The
following account provided in the 2012 Rule of Law Index of the World Justice Project
appears quite accurate in terms of highlighting both positives and negatives:
India has a robust system of checks and balances (ranked thirty-seventh worldwide and
second among lower middle income countries), an independent judiciary, strong protections
for freedom of speech, and a relatively open government (ranking fiftieth globally and
fourth among the lower-middle income countries). Administrative agencies do not perform
well (ranking seventy-ninth), and the civil court system ranks poorly (ranking seventy-eight),
mainly because of deficiencies in the areas of court congestion, enforcement, and delays in
processing cases. Corruption is a significant problem (ranking eighty-third), and police
discrimination and abuses are not unusual. Order and security — including crime, civil
conflict, and political violence — is a serious concern (ranked second lowest in the world).4
Although the rule of law is a ‘contested concept’,5 is ‘capable of different
interpretations by different people’,6 and may be impossible to define with ‘scientific
precision’,7 one can still identify some of its core features. For instance, with reference to
1 The term is, however, used frequently by Indian courts in their judgments.For instance, an online search of the Supreme Court’s reportable judgments delivered between 1 January 1950 and 31 December 2012 resulted in 1,737 hits of the term ‘rule of law’. See the Judgment Information System <http:// judis.nic.in/supremecourt/chejudis.asp> accessed 10 Feb 2014.2 This position can be contrasted with that of the People’s Republic of China, where Article 5 of the Constitution — after the 1999 amendment — expressly states that China ‘governs the country according to law and … under rule of law’. However, many commentators doubt whether China practices the rule of law. For a promising account of the continuous progress made by China in establishing a rule of law society, see Randall Peerenboom, China’s Long March towards Rule of Law (Cambridge University Press 2002).
3 Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2295; SP Gupta v Union of India, AIR 1982 SC 149.4 Mark David Agrast and others, The World Justice Project: Rule of Law Index 2012–2013 (The World Justice Project 2013), 55.5 Peerenboom, ‘Varieties of Rule of Law’ (n 8) 16 Barnett (n 8) 69. See also Trebilcock and Daniels (n 8) 13.7 Soli J. Sorabjee, ‘Rule of Law: An Unruly Horse? Some Reflections on its Application in India’ (2012) 101(4) The Round Table: The Commonwealth Journal of International Affairs 331.
India specifically, Baxi identifies four core interlinked notions of the rule of law: ‘rights’,
‘development’, ‘governance’, and ‘justice’.8
These four notions can be related to three aspects of the rule of law — combining
features of both thin and thick versions — that I will discuss in this chapter. First, the
rule of law operates as a check on governmental powers, including by requiring that
laws are general, clear, predictable and prospective. Second, the rule of law implies that the
state treats people equally and guarantees their human rights. Third, there should be a
provision for judicial review of legislative and executive actions by an independent judiciary.
These three aspects are interrelated. For example, the last two aspects complement the first
aspect in that they limit the power of governmental agencies. Similarly, the power of judicial
review by an independent judiciary is likely to strengthen the protection of human rights.
KEEPING GOVERNMENT POWERS UNDER CHECK
The Indian Constitution establishes a limited government. Being part of a federal system of
government, both the central and state legislatures have the power to make laws, but only
subject to express and implicit constitutional limitations. First of all, the Constitution
specifies and demarcates the matters on which the central legislature and state legislatures
can make law.9 Any law that breaches these limitations (e.g., a state law made on a matter
within the exclusive competence of the central legislature) can be declared unconstitutional
by courts.10
Second, the power of the executive to make laws by issuing ordinances is limited — both in
terms of duration and situations triggering the exercise of such power.11 The executive, of
ourse, cannot make a law on a matter on which the corresponding legislature lacks the
competence to legislate.12
8 Upendra Baxi, ‘Rule of Law in India: Theory and Practice’ in Peerenboom (ed), Asian Discourses of Rule of Law (n 8) 324, 328 and generally 328–40. Baxi argues that the rule of law in India is not merely a ‘sword’ against state domination but also a ‘shield’ empowering a progressive state intervention in civil society. Upendra Baxi, ‘The Rule of Law in India’ (2007) 3 Sur — Revista Internacional de Derechos Humanos 7, 15 (socialsciences.scielo.org/ pdf/s_sur/v3nse/scs_a01.pdf> accessed 29 Jan 2014.9 Constitution of India 1950, arts 246, 248–254 read with Schedule IX.10 Medical and Educational Charitable Trust v State of Tamil Nadu (1996) 3 SCC
11 Constitution of India, arts 123 and 213. See also D. C. Wadhwa v State of Bihar, AIR 1987 SC 579.
Third, although the Indian Constitution — having established a parliamentary form of
government — does not follow any strict separation of powers,13 a system of checks and
balances has been put in place. For instance, all the bills passed by the parliament require the
president’s assent to become law.14 The parliament, on the other hand, has the power to
impeach the president for violating the Constitution.15
Fourth, courts have held that any executive action without the support of a valid law
will be void, more so if it violates a fundamental right.16 Similar to the position in many
other jurisdictions, laws cannot generally be retroactive, especially if they seek to impose any
penalty or punishment.17 The judiciary also does not treat vague laws or administrative
guidelines favourably.
Fifth, in a multi-party democracy, the presence of a free press and the requirement of periodic
elections can guard against the abuse of governmental power. The Constitution expressly
limits the term of legislatures,18 and the freedom of speech and expression under Article
19(1)(a) has been interpreted to include the freedom of press.19
All these checks — coupled with the fundamental rights provisions and the power
of judicial review discussed later — provide effective means of checking the power of
the legislature and executive. In practice, however, there are several issues that undermine
the rule of law in India. Pervasive corruption in all governance institutions is one major
problem,20 because one can use money, connections or power to bypass rules and
12 Art 123(3) provides: ‘If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.’
13 Article 50 of the Constitution, however, mandates separation of the judiciary from the executive.
14 Constitution of India, art 111.
15 ibid, art 61.16 Kharak Singh v State of UP, AIR 1963 SC 1295; Bijoe Emmanuel v State of Kerala, AIR 1987 SC 748.
17 Art 20(1). See also Mahendra P. Singh, Shukla’s Constitution of India (11th edn, Eastern Book Co. 2008) 177–81.
18 Constitution of India, arts 83 and 172.
19 Express Newspapers v Union of India, AIR 1958 SC 58; Bennett Coleman v. Union of India, AIR 1973 SC 106.
20 The 2012 Corruption Perceptions Index of Transparency International places India at the 94th position out of a total 176 countries and territories in the world. Transparency International, ‘Corruption Perceptions Index 2012’<www.transparency.org/cpi2012/results> accessed 3 Feb 2014.
regulations.21 There are many instances of government officials (including ministers)
abusing their position to grant or secure licenses, permits, concessions and rights to exploit
valuable natural resources. Furthermore, the government in power is often accused of
undermining the autonomy of the Central Bureau of Investigation and using it to pursue
corruption cases selectively — going soft on its political allies, while nailing the opponents.22
The process of making law as well as enforcing them is deficient too: either it may take
several years to introduce laws to redress serious societal problems or the enacted laws are
not implemented due to lack of political will or resources.23 Regarding lack of
implementation of the plethora of laws and constitutional provisions, one commentator
rightly notes that many of the ‘laws — especially those affecting individual rights and
protections — are so unevenly and inadequately enforced that they effectively do not exist for
large segments of India’s population’.24
There have also been instances when the government allegedly misused the executive power
to issue ordinances.25 Despite the inroads made by the Right to Information Act 2005 in
ensuring transparency in governance, decision-making remains shrouded in secrecy and
lacks real participatory character. The role of money in the electoral process and the
election of politicians with criminal backgrounds to the legislature also raise doubts
about the fairness of political process and the legitimacy of democratic institutions.
EQUALITY GUARANTEE AND THE PROTECTION OF HUMAN RIGHTS
Establishing an egalitarian society is one of the main goals of the India Constitution. The
fundamental rights and the directive principles of state policy were the primary tools adopted
to achieve this goal. Part III of the Constitution, entitled ‘Fundamental Rights’, comprises
21 See C. Raj Kumar, ‘Corruption and its Impact on Human Rights and the Rule of Law: Governance Perspectives’ in C. Raj Kumar and K. Chockalingam (eds), Human Rights, Justice, and Constitutional Empowerment (Oxford University Press 2007) 153, 163-67 and generally.
22 See Sandeep Joshi, ‘After Court Rap, Centre Sets Up GoM on CBI Autonomy’ The Hindu (14 May 2013), <www.thehindu.com/news/national/govt-forms- gom-to-look-into-cbi-autonomy/article4714698.ece> accessed 15 May 2013.
23 See International Commission of Jurists (ICJ), Access to Justice: Human Rights Abuses Involving Corporations — India (ICJ 2011) 48–51.
24 Linda D. McGill, ‘Measuring the Rule of Law in India: A Volunteer Lawyer’s Experience’ (2008) 60(2) Maine Law Review 537.
25 See, e.g., A. G. Noorani, Constitutional Questions and Citizens’ Rights, Part I (Oxford University Press 2006) 60–62.
Articles 12 to 35, which lay down various rights, their limitations and remedies for their
enforcement. The rights range from equality before the law to the freedom of speech and
expression, protection against double jeopardy, the right to life and personal liberty, the right
to education, the freedom of religion, prohibition of discrimination, protection of interests of
minorities, and protection against arrest and unlawful detention.
It will be useful to analyse two fundamental rights provisions (Articles 14 and 21) in some
detail. Article 14 prohibits the state from denying ‘to any person equality before the law or
the equal protection of the laws’. The guiding principle of equality being that like should be
treated alike and that unlike should be treated differently, Article 14 permits reasonable
classification.26 The Supreme Court has invalidated several laws under Article 14 because
the classification was without a valid difference,27 or the basis of classification had no nexus
to the object of the law,28 or the law established special courts for trial of certain cases or
types of cases without any reasonable classification or guidelines,29 or the law singled out a
person for special or discriminatory treatment.30
More important, however, has been the judicial employment of Article 14 to develop a broad
principle of reasonableness.31 In E. P. Royappa v. State of Tamil Nadu, the Supreme Court
observed that ‘Equality is a dynamic concept with many aspects and dimensions and it cannot
be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a
positivistic point of view, equality is antithetic to arbitrariness.’32 Later on, the Court in
Maneka Gandhi v. Union of India held that ‘Article 14 strikes at arbitrariness in state action
and ensures fairness and equality of treatment. The principle of reasonableness, which
logically as well as philosophically is an essential element of equality or non-arbitrariness,
pervades Article 14 like a brooding omnipresence.’33 Therefore, an allegation of
26 In order to be considered ‘reasonable’, the classification must be based on intellegible differentia and the differentia must have a rational relation with the objective sought to be achieved by a given law.
27 K Kunhikoman v State of Kerala AIR 1962 SC 723.
28 P Rajendram v State of Madras AIR 1968 SC 1012.29 State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75; Northern India Caterers Ltd. v State of Punjab AIR 1967 SC 1581.30 Ameernnisa Begum v Mehboob Begum AIR 1952 SC 91; Ram Prasad v State of Bihar AIR 1953 SC 215.31 See Mahendra P. Singh, ‘The Constitutional Principle of Reasonableness’ (1987) 3 Supreme Court Cases (Journal) 31.32 (1974) 4 SCC 3, 38.
33 (1978) 1 SCC 248, 284. See also R D Shetty v International Airport Authority AIR 1979 SC 1628; Ajay Hasia v Khalid Mujib AIR 1981 SC 487.
discrimination vis-à-vis others is no longer a pre-condition to attract Article 1434 and courts
will strike down any arbitrary executive or legislative action unconstitutional for infringing
Article 14.35
The jurisprudence surrounding Article 21— which provides that ‘no person shall be deprived
of his life or personal liberty except according to the procedure established by law’—has also
been significant. This provision has proved to be a residuary repository of many fundamental
rights. ‘Life’ in this article has been interpreted by courts to mean more than mere physical
existence;36 it ‘includes right to live with human dignity and all that goes along with it’.37
The ever-widening horizon of Article 21 is illustrated by the fact that the Supreme Court has,
inter alia, read into it the rights to health,38 livelihood,39 free and compulsory education up to
the age of 14 years,40 unpolluted environment,41 shelter,42 clean drinking water,43 privacy,44
34 A. L. Kalra v Project & Equipment Corporation (1984) 3 SCC 316, 328.
35 Mithu v State of Punjab AIR 1983 SC 473; Central Inland Water Corporation v B N Ganguly (1986) 3 SCC 156; DTC v DTC Mazdoor Congress AIR 199140 SC 101; Common Cause v Union of India (1996) 6 SCC 530; Shivsagar Tiwari v Union of India (1996) 6 SCC 558
36 See, for the evolution of such an interpretation, Kharak Singh v State of UP AIR 1963 SC 1295; Sunil Batra v Delhi Administration (1978) 4 SCC 494; Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180; Francis Coralie v Union Territory of Delhi AIR 1981 SC 746; Bandhua Mukti Morcha v Union of India AIR 1984 SC 802; Consumer Education & Research Centre v Union of India (1995) 3 SCC 42; Bodhisattwa Gautam v Subhra Chakraborty (1996) 1 SCC 490; Visakha v State of Rajasthan AIR 1997 SC 3011.
37 Francis Coralie v Union Territory of Delhi, AIR 1981 SC 746, 753 (per Justice Bhagwati).
38 Parmanand Kataria v Union of India AIR 1989 SC 2039; Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 SCC 37.
39 Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180; DTC Corporation v DTC Mazdoor Congress AIR 1991 SC 101.
40 Unni Krishnan v State of AP (1993) 1 SCC 645.
41 Indian Council for Enviro Legal Action v Union of India (1996) 3 SCC 212; M C Mehta v Union of India (1996) 6 SCC 750; Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647; Narmada Bachao Andolan v Union of India (2000) 10 SCC 664.42 Gauri Shankar v Union of India (1994) 6 SCC 349.
43 A P Pollution Control Board II v M V Nayudu (2001) 2 SCC 62.
44 Kharak Singh v State of UP AIR 1963 SC 1295; Govind v State of MP AIR 1975 SC 1378; R Raj Gopal v State of Tamil Nadu (1994) 6 SCC 632; PUCL v Union of India AIR 1997 SC 568; ‘X’ v Hospital Z (1998) 8 SCC 296.
legal aid,45 speedy trial,46 and various rights of under-trials (persons who have been charged
with a crime), convicts and prisoners.47 Another innovative use of this provision has been tore
dress violation of the right to life and personal liberty by non-state actors48 and to grant
compensation for violation of fundamental rights.49
Although the Constitution framers expressly rejected the due process requirement in Article
21, the Supreme Court introduced this guarantee by judicial interpretation.50
Furthermore, by a joint reading of Articles 14 and 21, courts have basically developed a
substantive model of rule of law — any law or executive action that is not ‘just, fair and
reasonable’ can be declared unconstitutional.51 For example, the Supreme Court invalidated a
penal provision prescribing a mandatory death sentence for murder committed by a life
convict.52 More recently, the Delhi High Court ruled that Section 377 of the Indian Penal
Code ‘insofar [as] it criminalises consensual sexual acts of adults in private, is violative of
Articles 21, 14 and 15 of the Constitution.’53
In addition to Part III fundamental rights, Part IV of the Constitution contains a list of
directive principles of state policy. While these principles — most of which relate to socio-
economic rights— are non-justiciable,54 courts have employed these to interpret, and in turn
extend the scope of, fundamental rights. As noted above, Article 21 has been the most
significant beneficiary of this judicial approach.55
45 M H Hoskot v State of Maharashtra AIR 1978 SC 1548; Hussainara Khatoon v State of Bihar AIR 1979 SC 1369; Khatri v State of Bihar AIR 1981 SC 928; Suk Das v Union Territory of Arunachal Pradesh AIR 1986 SC 99146 Hussainara Khatoon (I) to (VI) v Home Secretary, Bihar (1980) 1 SCC 81, 91, 93, 98, 108 and 115; Kadra Pahadiya v State of Bihar AIR 1982 SC 1167; Common Cause v Union of India (1996) 4 SCC 33 and (1996) 6 SCC 775; Rajdeo Sharma v State of Bihar (1998) 7 SCC 507 and (1999) 7 SCC 604.
47 Sunil Batra v Delhi Administration AIR 1978 SC 1675; Prem Shankar v Delhi Administration AIR 1980 SC 1535; Munna v State of UP AIR 1982 SC 806; Sheela Barse v Union of India AIR 1986 SC 1773.48See, for example, M C Mehta v Union of India (1987) 1 SCC 395; Consumer Education & Research Centre v Union of India (1995) 3 SCC 42; Kirloskar Brothers Ltd. v ESIC (1996) 2 SCC 682; Bodhisattwa Gautam v Subra Chakraborty AIR 1996 SC 922; Vishaka v State of Rajasthan AIR 1997 SC.
49 ‘X’ v Hospital ‘Z’ (1998) 8 SCC 296; M C Mehta v Kamal Nath AIR 2000 SC 1997
50 Rudul Sah v State of Bihar (1983) 4 SCC 141; Bhim Singh v State of J & K (1985) 4 SCC 677; Nilabati Behra v State of Orissa (1993) 2 SCC 746; Maneka Gandhi v Union of India, AIR 1978 SC 97.
51 Singh, Shukla’s Constitution of India (n 21) 201-04.52 Mithu v State Punjab, AIR 1983 SC 473.53 Naz Foundation v Government of Delhi, WP(C) No.7455/2001 (2 July 2009) para 132.
54 Art 37.55 See M P Jain, Indian Constitutional Law, Vol I (5th edn, Wadhwa and Company 2003) 1309-36.
Despite these significant provisions in Parts III and IV of the Constitution, many rights
(especially socio-economic rights) remain unfulfilled in practice. Even an activist judiciary
has not made much of a difference to the situation: the mere recognition of a plethora of
rights, without enforcement, only results in ‘symbolic justice’.56
The stark reality of illiteracy, trafficking of women, child and bonded labour, custodial
violence, sexual harassment of women, high mortality rate, hunger deaths, lack of
access to basic facilities like health care and drinking water, violence against
religious minorities, and limited legal aid undermine the constitutional promise of
equality, liberty and justice. This situation is affirmed by the United Nation’s Development
Programme’s Human Development Index (HDI), which ranks India 136th out of 187
countries and places the HDI progress (i.e., a long and healthy life, access to knowledge
and a decent standard of living) in India below the regional average of South Asia. 57
Although there has been a significant drop in the poverty level in view of fast
economic growth and various schemes launched by the government to provide work to
the poor,58 India remains the poorest country in the G20 group.59
The law and order situation in the country is also not conducive for the rule of law,
with certain parts of the country being ‘no-go’ areas even for the administration. Violence
against women, discrimination against people belonging to lower castes and the
displacement of tribal population for development tend to exclude a significant population
from participating in political, social, educational, cultural and economic spheres. People
without resources are also likely to experience denial of the right to a fair hearing or
trial, as the case may be. Last but not least, the government in recent years has shown
decreased tolerance to criticism by the public, and on occasions it has sought to curb
56 Surya Deva, ‘Public Interest Litigation in India: A Critical Review’ (2009) 28 Civil Justice Quarterly 19, 36–37 and generally.57UNDP, ‘India — Country Profile: Human Development Indicator’ <http:// hdrstats.undp.org/en /countries/profiles/IND.html> accessed 15 May 2013.
58 ‘India sees a big drop in poverty as number of poor falls from 37% to 30% in 5 years’, Economic Times (New Delhi, 20 March 2012) <http://articles. economictimes.indiatimes.com/2012-03-20/news/31214810_1_poverty- suresh-tendulkar-expenditure> accessed 15 May 2013.
59 ‘Economic Survey 2012–13: India poorest among G20 nations despite growth’, India Today (New Delhi, 15 March 2012) <http://indiatoday.intoday.in/story/ economic-survey-2012–13-india-growth-poverty/1/177886.html> accessed 15 May 2013.
social media, raising concerns about government restrictions on the freedom of speech and
expression for non-genuine reasons.60
JUDICIAL REVIEW BY AN INDEPENDENT JUDICIARY
The power of an independent judiciary to review the decisions of the other two organs of the
government is considered an integral aspect of the rule of law, and the Indian Constitution
does everything possible to put this mechanism in place. Judges of the Supreme Court and the
High Courts are appointed by the President in ‘consultation’ with relevant judges of these
courts.61 Subsequent to the decision in Supreme Court Advocates on Record Association v.
Union of India,62 judges of the higher courts are in essence appointed by the judiciary itself.63
Detailed provisions have also been made to provide judges security of tenure64 and protect
their salaries, allowances and privileges.65 Legislative bodies are barred from debating the
conduct of judges unless dealing with impeachment motions.66
Although the power of judicial review does not require express recognition in a constitutional
text, Article 13(2) of the Indian Constitution provides such recognition by stating that the
state ‘shall not make any law which takes away or abridges’ the fundamental rights. The
remedy to approach the Supreme Court for violation of fundamental rights under Article 32 is
in itself a fundamental right.67
The Court has widened the scope of this power over the years by (i) implying many new
rights within the ambit of Article 21; (ii) charting the course of public interest litigation to
enhance access to justice for the masses; (iii) declaring judicial review a ‘basic feature’ of the
Constitution and thus putting this beyond the parliament’s amendment power; and (iv)
conferring on itself the power to review the validity of even constitutional amendments.
60 See, e.g., ‘Censoring social media curbs free speech, say netizens’, Hindustan Times (New Delhi, 16 January 2012), <www.hindustantimes.com/India- news/NewDelhi/Censoring-social-media-curbs-free-speech-say-netizens/ Article1-797796.aspx> accessed 15 May 2013.
61 Constitution of India, arts 124(2) and 217.62 (1993) 4 SCC 441. See also In re, Presidential Reference, AIR 1999 SC 1.63 See Mahendra P. Singh and Surya Deva, ‘The Constitution of India: Symbol of Unity in Diversity’ (2005) 53 Jahrbuch des Offentlichen Rechts der Gegenwart 649, 673-74.64 Constitution of India, arts 124 and 218.
65 ibid, arts 125 and 221.66 ibid, arts 121 and 211.67 A similar (and, in fact, broader) power is vested with the High Courts under Article 226.
An independent judiciary armed with extensive power of judicial review is generally
regarded as conducive to sustaining the rule of law. But in reality, there are a few aspects of
the judicial system that are undermining India’s march towards rule of law. Accountability of
judiciary is as critical as its independence; otherwise judges might start behaving as if they
are above the law or a law unto themselves. It is a matter of concern that at this point in time
there are not many checks on the Indian judiciary’s powers and the conduct of judges. The
Supreme Court has usurped — by judicial interpretation — the power of appointment of the
judges of higher judiciary. Vacancies remain unfilled for years,68 and the appointment system
is described as ‘opaque’.69 The Court also continues to encroach upon the domains of the
executive and legislature in an inconsistent and unprincipled manner.70 Moreover, the
judiciary is not free from corruption and accountability measures such as impeachment of the
judges of higher courts do not seem to work.71 The idea of establishing a National Judicial
Commission to enhance accountability of the judges of the higher courts has been discussed
since the 1990s, but no progress has been made so far in accomplishing this goal.72 Any
attempt to bring more transparency and accountability is seen by the judiciary as interfering
with its independence.
Another problem that plagues Indian courts is endemic delay in disposal of cases. Despite
numerous judicial pronouncements on speedy justice,73 the judicial process in India is a live
example of ‘justice delayed is justice denied’. Data on the number of cases pending before
different courts illustrate the scale of the problem. At the end of March 2012, there were
68 As on 31 March 2012, 6 out of 31 positions were vacant in the Supreme Court, while 269 positions were vacant in various High Courts out of a total of 895. Supreme Court of India, ‘Court News’ (January-March 2012) 3 <http:// supremecourtofindia.nic.in/courtnews/2012_issue_1.pdf> accessed 4 Feb 2014.69 ‘Judges’ appointment system opaque, needs reforms, Kapil Sibal says’, Times of India (New Delhi, 14 May 2013) <http://timesofindia.indiatimes.com/ india/Judges-appointment-system-opaque-needs-reforms-Kapil-Sibal-says/ articleshow/20038372.cms> accessed 14 May 2013.
70 See Surya Deva, ‘Constitutional Courts as Positive Legislators: The Indian Experience’ in Allan Brewer-Carias (ed), Constitutional Courts as Positive Legislators: A Comparative Law Study (Cambridge University Press 2011) 587.
71 For example, an attempt to impeach a Supreme Court judge (Justice Ramaswami), against whom corruption charges were upheld by the Inquiry Committee, failed in 1993. Singh, Shukla’s Constitution of India (n 21) 476. See also Noorani (n 29) Part II, 11-24, 47-55; Rajeev Dhavan, ‘Judicial Corruption’, The Hindu (22 February 2002) <www.hinduonnet. com/2002/02/22/stories/2002022200031000.htm> accessed 3 May 2013.
72 See J Venkatesan, ‘Set up National Judicial Commission’, The Hindu (17 September 2008) <www.hindu.com/2008/09/17/stories/2008091756491400. htm> accessed 3 February 2013; Rajindar Sachar, ‘National Judicial Council’ (People’s Union for Civil Liberties Bulletin, December 2006) <www.pucl.org/ Topics/Law/2006/judicial_council.html> accessed 3 February 2013.73 Hussainara Khatoon v State of Bihar, AIR 1979 SC 1364; Common Cause v Union of India, (1996) 4 SCC 33 and (1996) 6 SCC 775; All India Judge’s Association v Union of India, (2002) 4 SCC 247.
59,816 cases pending before the Supreme Court, of which 39,356 had been pending for more
than one year.74 More worrying, however, is the number of pending cases before the High
Courts and lower courts. At the end of December 2011, a total number of 4,327,746 cases
were pending before different High Courts and 26,986,307 before lower courts.75 It is
estimated that the average time taken to dispose of civil cases is 15 years and 5-7 years for
criminal cases.76 Such a backlog of cases and the consequent delay definitely puts in question
the rule of law in India and mocks the judicial recognition of the right to speedy justice.
74 Supreme Court of India, ‘Court News’ (n 72) 5. The number of pending cases has gone up in the last few years from 39,780 at the end of December 2006 to 49,819 at the end of December 2008. Supreme Court of India, ‘Court News’ (October-December 2006) 6; ‘Court News’ (October–December 2008) 7.
75 Supreme Court of India, ‘Court News’ (n 72) 6–7. It is reported that about 25% of the cases pending with the High Courts have remained unresolved for more than 10 years. Centre on Public Law & Jurisprudence, Jindal Global Law School (JGLS), Justice without Delay: Recommendations for Legal and Institutional Reform (JGLS 2010) 8.
76 ‘Curb adjournments, speed up trials, SC tells trial courts’, Times of India (New Delhi, 15 May 2013) <http://timesofindia.indiatimes.com/india/Curb-adjournments-speed-up-trials-SC-tells-trial courts/articleshow/20056726.cms> accessed 15 May 2013.
CONCLUSION
A brief review of constitutional provisions and judicial decisions in this chapter shows that
the Indian Constitution enshrines the rule of law as a fundamental principle of governance.
Apart from limiting the powers of the government, different interconnected strands of this
principle not only enable people to participate in governance in a democratic set-up but also
empower them to realise their full potential in diverse ways. Nevertheless, in practice, several
challenges pose a serious threat to the internalisation and institutionalisation of the rule of law
in India. These challenges — such as poverty, continued socio-economic inequalities,
violence against women, exclusion of lower caste people, pervasive corruption in all
government institutions, endemic delay in judicial process, law and order problems in view of
regionalism and Naxalism and lack of robust democratic institutions — create a chasm
between the rule of law on ‘paper’ and the rule of law in ‘practice’.
One can say that building a rule of law society remains a work in progress in India. In years
to come, the focus should shift to developing a culture for the rule of law and strengthening
institutions, rather than merely introducing more rules and regulations. Improving education
(including legal education) and creating more opportunities for people’s active participation
in governance should help in deepening the commitment of ‘We, the people of India’ towards
the rule of law.
BIBLIOGRAPHY
CONSTITUTIONAL LAW OF INDIA, 4th Edn by H.M Seervai, 2012, Universal Law Publishing Company.
PRINCIPLES OF ADMINISTRATIVE LAW, 6th Edn by M.P. Jain & S.N. Jain, Lexis Nexis (2013).
