the basic structure

the Basic Structure

The Constitution (First Amendment) Act, 1951, shocked the status of Rule of law in India. The question which came up for consideration in Shankari Prasad v. Union of India was whether the fundamental rights can be corrected under Article 368. The Supreme Court held that Parliament has the ability to alter Part III of the Constitution under Article 368 as under Article 13 ‘law’ signifies any administrative activity and not a protected correction. In this manner, a constitutional amendment would be legitimate if abbreviates any of the fundamental rights. The question again came up for consideration in Sajjan Singh v. State of Rajasthan in which the Supreme Court approved the majority judgment in Shankari Prasad case and held that amendment of the Constitution means amendment of all provisions of the Constitution. Hon’ble Chief Justice Gajendra gadkar held that if the framers of the constitution intended to exclude fundamental rights from the scope of the amending power they would have made a clear provision in that behalf.

However, both these cases were overruled by the Apex Court in Golaknath v. State of Punjab and it held that Parliament has no power to amend the Part III of the Constitution so as to take away or abridges the fundamental rights and thus, at the end the Rule of law was sub-served by the Judiciary from abridging away. However, the Rule of law was crumpled down with the Constitution (Twenty-Fourth Amendment) Act, 1971. Parliament by the way of this Amendment inserted a new clause (4) in Article 13 which provided that ‘nothing in this Article shall apply to any amendment of this constitution made under Art 368’. It substituted the heading of Article 368 from ‘Procedure for amendment of Constitution’ to ‘Power of Parliament to amend Constitution and Procedure thereof’. The Amendment not only restored the amending power of the Parliament but also extended its scope by adding the words “to amend by way of the addition or variation or repeal any provision of this constitution in accordance with the procedure laid down in the Article”.

This was challenged in the case of Keshvananda Bharti v. State of Kerala. The Supreme Court by majority overruled the decision given in Golaknath’s case and held that Parliament has wide powers of amending the Constitution and it extends to all the Articles, but the amending power is not unlimited and does not include the power to destroy or abrogate the basic feature or framework of the Constitution. There are implied limitations on the power of amendment under Article 368. Within these limits Parliament can amend every Article of the Constitution. Thus, Rule of law prevailed.

In Keshvananda Bharti v. State of Kerala, the Supreme Court states that “Our Constitution Postulates Rule of Law in the sense of supremacy of the Constitution and the laws as opposed to arbitrariness.” The 13 judge Bench also laid down that the Rule of law is an “aspect of the basic structure of the Constitution, which even the plenary power of Parliament cannot reach to amend.”

Since Keshvananda case, Rule of law has been much expanded and applied differently in different cases. In Indira Nehru Gandhi v. Raj Narain, the Supreme Court invalidated Clause (4) of Article 329-A inserted by the Constitution (Thirty-ninth Amendment) Act, 1975 to immunise the election dispute to the office of the Prime Minister from any kind of judicial review. The Court said that this violated the concept of Rule of law which cannot be abrogated or destroyed even by the Parliament.

The Habeas Corpus case according to many scholars is a black mark on the rule of law. The case entails Dicey’s third principle of rule of law. The legal question in this case was whether there is any rule of law over and above the Constitutional rule of law and whether there was any rule of law in India apart from Article 21 of the Constitution regarding right to life and personal liberty. A five judge Bench with a majority of 4:1 (going by strict interpretation) held in the negative.

The majority judges held that the Constitution is the mandate and the rule of law. They held that there cannot be any rule of law other than the constitutional rule of law. Excluding moral conscience, they held that there cannot be any pre-Constitution or post-Constitution rule of law which can run counter to the rule of law embodied in the Constitution, nor can there be any rule of law to nullify the constitutional provisions during the time of Emergency.

The majority judges held that “Article 21 is our rule of law regarding life and liberty. No other rule of law can have separate existence as a distinct right. The rule of law is not merely a catchword or incantation. It is not a law of nature consistent and invariable at all times and in all circumstances. There cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of the Constitution.” Thus they held that Article 21 is the sole repository of right to life and liberty and during an emergency, the emergency provisions themself constitute the rule of law.

In a powerful dissent, Justice H.R. Khanna observed that “Rule of law is the antithesis of arbitrariness…Rule of law is now the accepted form of all civilized societies…Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every state the problem arises of reconciling human rights with the requirements of public interest. Such harmonizing can only be attained by the existence of independent courts which can hold the balance between citizen and the state and compel governments to conform to the law.”

With the Constitution (Forty-Fourth Amendment) Act, 1978 it has been laid down that even during emergency, Articles 20 and 21 will not be suspended. According to me, Justice Khanna (with due respect to his high moral conscience) has not given a judgment in consonance with the rule of law. His Lordship has on the other hand tried to place the judiciary over and above the rule of law. During emergency, that was the rule of law that Article 21 is suspended. Creating rule of law above the Constitution will create huge implications. Whatever be the case, the Austinian sense of jurisprudence does apply in the present case and the majority judges have not decided wrongly. Though now it remains only an academic question but if a law does not seem to be morally rich then it is the job of the Legislature to amend it and not the Judiciary to come up with its own new law which is non-existent and against the existing law.

In Raman Dayaram Shetty v. International Airport Authority of India, the Supreme Court held that the great purpose of rule of law is the protection of individual against arbitrary exercise of power, wherever it is found. In re: Arundhati Roy, Justice Sethi observed that for achieving the establishment of the rule of law, the Constitution has assigned the special task to the judiciary.

When Article 371-D (5) (Proviso) authorized the A.P Government to nullify any decision of the Administrative Services Tribunal, it was held violative of the rule of law. Holding the provision unconstitutional, the Supreme Court said that it is a basic principle of the rule of law that the exercise of power by the Executive must not only be governed by the Constitution but also be in accordance with law. The Court also held that the power of judicial review should be used to ensure that rule of law is maintained.

Over the years, the Courts have used judicial activism to expand the concept of rule of law.  For example, in Courts are trying to establish a rule of law society in India by insisting on ‘fairness’. In Sheela Barse v. State of Maharashtra the Supreme Court insisted on fairness to women in police lock-up and also drafted a code of guidelines for the protection of prisoners in police custody, especially female prisoners. In Veena Sethi v. State of Bihar also the Supreme Court extended the reach of rule of law to the poor who constitute the bulk of India by ruling that rule of law does not merely for those who have the means to fight for their rights and expanded the locus standi principle to help the poor.



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