Rule of Law in India Part-I

December 9th, 2012

Rule of law during emergency
1
INTRODUCTION
In India during the period of national emergency, there was gross violation of
fundamental right. The increased central authority over the states ended the bargaining
federalism of the Nehru years, and the federal structure of the congress party disappeared as
many ministers became New Delhi’s instruments and P.M gained control of Congress party
machinery.1 The executive branch came to dominate Parliament to such a degree that
Parliament lost any effective identity of its own and, authority within the executive became
concentrated in the P.M’s office and then was exercised from Mrs. Indira Gandhi’s residence,
to the exclusion of all but a few and the two branches, the judiciary, intending to end its
function as a co-equal branch of government2.
During 1975 national emergency question arose as to whether there was a right to
challenge the detention order independently of art. 21, which was suspended by an order
under art. 359. In ADM Jabalpur v. Shiv Kant Shukla3, the Supreme Court by 4:1 decided
that while the proclamation of emergency is in force, and a Presidential order under art. 359
in operation, the Court could not examine action, even on the ground that it was ultra vires
the enabling statute or malafide.4 The principle that an individual’s liberty could not be taken
away except by authority of law existed in India well before the Constitution came into
force.5 It continued by virtue of art. 372 of the constitution6. The court could have permitted
limited judicial review under administrative law. Chandrachud J. expressed hope that the
power reposed by art. 359 in the executive government would not be abused.7 Ray CJ.
characterized arguments about the possible abuse of power by the government as ‘diabolic
distortion and mendaciously malignant’.8 A.N. Ray, C.J. held that “liberty is itself the gift of
the law and may by the law be forfeited”. It was held that suspension of the fundamental right
1 Granville Austin, Working a democratic constitution, a history of the Indian experience, oxford university press, New Delhi,
1999, p. 173.
2 ibid
3 AIR 1976 SC 1207.
4 Seervai H.M, The Emergency, Future Safeguards and the Habeas Corpus Case: A Criticism, N.M Tripathi, Bombay, 1978.
5 Eshugbayi v. Govt. of Nigeria 1931 LR 640 (CA); 1931 All ER 44.
6 Sathe SP, India: Positivism v. Structuralism, Interpreting Constitutionalism,2008 ed, Oxford University Press, New Delhi at p.
227.
7 AIR 1976 SC 1207 at p. 1349.
8 Ibid 1223.
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under Article 21 implied the suspension of the right to file a habeas corpus petition and the
detainee has no right to move any court for his release, the result of the majority view was
that even if a wrong person was detained or if a person was detained for malafide or
irrelevant reasons that the detainee had no right to release from the courts.
Unlike the reasoning in Gopalan case9, this was not the legal positivism. It is better
described as escapism, helplessness, and even timidity10. Ray CJ had superseded three senior
most judges. Two other members of the majority went on to become Chief Justices in order
of their seniority, while the third member, Beg J. superseded Khanna J, who wrote dissenting
judgment. Khanna J’s dissenting judgment was reminiscent of Lord Atkin’s dissent in
Liversidge v. Anderson.11
In answer to the query from Khanna, J. if a person had any remedy if he was
summarily to be imprisonment or even executed, the Attorney General stated regrettably he
would have to say that he had none as a right to personal freedom if it had been suspended.
This recalls similar queerly by Lord Shaw who dissented in R. Haliday ex Parte Zadig12 to
the Attorney General if a regulation could be validly enacted putting a man to death, to be
told that “the grave result seen perfectly logical”.13
Khanna, J. alone stoutly held that Article 21 was not the sole repository of the
right to life and personal liberty and the courts retained the power to examine the legality of
orders of detention. Khanna, J.’s outspoken dissent incurred the displeasure of the
Government which superseded him in the next vacancy in the position of the Chief Justice
and appointed a judge who was his junior as the Chief justice who had formed part of the
majority.
To avoid such situations to occur again it is important that there must be Rule of Law.
During the reign of Hitler, Germany was also ruled by law, but it was not rule of law but rule
9 A.K Gopalan v. State 1950 SCR 88 at p. 90.
10 Sathe SP, India: Positivism v. Structuralism, Interpreting Constitutionalism,2008 ed, Oxford University Press, New Delhi at p.
250.
11 1942 AC 206.
12 1917 AC 260
13 R. Haliday ex parte Zadig, 1917 AC 260, reported by David Foxton in 2003 119 Law Quaterly Review 455-83.
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by law. It is important that there must be checks and balance amongst the three organs of the
government, so that there exists Rule of Law and not dictatorship. Rule of Law represents
civil society’s endeavor to combine that degree of liberty without which law is tyranny and
with that degree of law without which liberty becomes license14. It is not sufficient to have
law but fair just and reasonable law.
This project examines the interpretation of Constitution during the time of
emergency by the Supreme Court of India. The sole responsibility of interpreting the Indian
Constitution is on Supreme Court. Therefore, its role in interpreting the Constitution becomes
important especially during the time of national emergency when fundamental rights of the
people are suspended. I have also tried to answer the difficulty which arises in interpreting
art. 359 of the Constitution.
359. (1) Where a Proclamation of Emergency is in operation, the President may by
order declare that the right to move any court for the enforcement of such of rights [the rights
conferred by Part III (except articles 20 and 21)] as may be mentioned in the order and all
proceedings pending in any court for the enforcement of the rights so mentioned shall remain
suspended for the period during which the Proclamation is in force or for such shorter period
as may be specified in the order.
The question which art. 359 pose is that whether the interpretation of art. 20 and art.
21 will be a confined one during the proclamation of emergency or will the Court interpret
art. 20 and art. 21 of the Constitution irrespective of any emergency situation. Since art. 20
and art. 21 of the constitution cannot be suspended during the time of emergency, so a person
even during the emergency period can approach the Court for violation of art. 20 and art. 21
of the Constitution. Art. 21 in Maneka Gandhi case15 was held to include all the freedom
mentioned under art. 19(1) of the constitution. Along with passage of time, the scope of art.
21 was extended to include right to privacy16 , right to shelter17, right to heath and medicinal
14 Soli J. Sorabjee, Rule of Law its Ambit and Dimension, Rule of law in a Free Society, Oxford University Press, 2008, p.19.
15 Maneka Gandhi v. UOI 1978 AIR
16 People’s Union for civil liberties v. UOI 1993 3 SCC 258. (telephone tapping case); also see R. Rajagopal v. State of T.N 1994 6
SCC 632. (Auto shanker case); State of Maharastra v. Madhulkar Narain AIR 1991 SC 207; Mr. X v. Hospital Z AIR 1995 SC 495.
17 Hameli Singh v. State of UP 1996 2 SCC 549.
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assistance18, right to get pollution free water19, protection of ecology and environment
pollution20, Right to education21 and many more rights. So, whether during the time of
emergency such a broad construction may be given to art. 21 or will the interpretation of art.
21 will be affected by the situation of emergency. The approach of Supreme Court has been
that during emergency, fundamental rights are interpreted in a confine manner.
It is my submission that interpretation of Constitution must not be affected by the
situation of emergency. It is so because once the Court interprets any article, it becomes the
law of land and affects the rights of the people till the time a larger bench over rule such a
decision.
The judgment given in A.K Gopalan case (7 bench decision) was criticized in
Bank Nationalization case (11 bench decision). However, it is submitted that the decision of
Bank Nationalization case, as far as co-relation of art. 19 and art. 20 of the Indian constitution
is concerned is wrongly decided. I have also come to a conclusion that art. 21 and art. 19 are
not linked. Therefore, the interpretation of ‘personal liberty’ by the Court during the time of
emergency must be confined one and cannot be extended to include the freedoms enshrined
in art. 19(1) of the Constitution. Thus if the court interpret art. 21 as distinct from art. 19,
there will arise no problem while interpret ting art. 359 of the Constitution. Art. 358 provide
that the rights mentioned under art. 19 will automatically be suspended during the time of
emergency22. So, the question which now arises is, if art. 19 are suspended and art. 21 cannot
be suspended than how will the Court interpret ‘art. 21’ during the time of proclamation of
emergency. Supreme Court right since R.C Cooper case23 to the present time has considered
18 Parmananda Katara v. UOI AIR 1989 SC 2039; Paschim bang Khet Mazdoor Samiti v. State of W.B 1996 4 SCC 37; Consumer
Education and Research Centre v. UOI 1995 3 SCC 42; Kirloskar Brithers Ltd. V. Employees’ State Insurance Corpn. 1996 2 SCC
682
19 Subhas Kumar v. State of Bihar AIR 1991 SC 420.
20 Rural Litigation and Entitlement Kendra v. State of U.P 1985 2 SCC 431; Sriram Food and Fertilizer case 1986 2 SCC 176 ( M.C
mehata v. UOI ); MC Mehata v. UOI 1987 4 SCC 463; Indian Council for Enviro- Legal Action v. UOI 1996 3 SCC 212.
21 Mohini Jain v. State of Karnataka 1992 3 SCC 666
22 358. (1) While a Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened
by war or by external aggression is in operation], nothing in article 19 shall restrict the power of the State as defined in Part III to
make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to
make or to take, but any law so made shall, to the extent of the incompetence, cease to have effect as soon as the Proclamation
ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:
23 R.C Cooper v. UOI
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that art. 21 and art. 19 are co related and violation of art. 21 will automatically violate art. 19
of the constitution. But, it is humbly submitted that art. 19 and art. 21 are not co- related.
Once, this is established, there will arise no problem as to the interpretation of art.21 during
the time of emergency. Other than the co- relation of art. 19 with art. 21, the interpretation of
word ‘life’ in art. 21 of the Constitution must not be confined one and should be given same
effect even during the time of emergency.
Seervai had commented on the role of judges in interpreting constitution, he said
“Aristotle went to the root of the matter when he said: ‘Plato is dear to me, but the dearer is
the truth’. Adapting his words a judge should say to himself: ‘Fundamental rights are dearer
to me, but dearer still is truth, and justice founded on truth, and they must prevail in a court of
justice”.24
In the light of above issues, I finally have suggested that the role of Judges or any
organ of the government must be to establish rule of law in the country. There has to be
fairness in application of law.
1. Rule of Law and the Supreme Court of India
Rule of Law is a concept which is not new to India. In ancient India we find the concept of
Ram Rajya, which means that no one is above law and even the King and its family has to
obey the law. The ancient Indian scripture depicted the state of affairs during reign of Lord
Rama. In Ram Rajya everyone was happy and animals too had a right to live without any
torture and atrocities. But this is an ideal state which in today’s world cannot exist. We are
still striving to provide basic human rights to our people.
Rule of law in the words of Benthem who is the propounder of Utilitarian theory is based on
the theory of pleasure and pains. He provides a formula for it and states that one must take
into account the pleasure produced in the first instance (by the act under consideration), then
the pain; now see the value of each pleasure produced by it after the first, which constitutes
the fecundity of first pleasure, then the value of each pain produced by it after the first, which
24 Seervai H.M, Constitutional Law of India, 3rd ed, vol- 1, Tripathi Pvt. Ltd., 1983, Bombay, at p. 732.
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constitutes the fecundity of the first pain and finally balance out the pains and pleasures, with
respect to that individual person and then repeat the exercise with respect to each person
whose interest is in concern.
But Utilitarianism fails to take into account the distinctiveness of individuals as it tries to
project the rational choice of one man as the social choice.12 Ito maximize the happiness in
aggregate is not the answer as it is necessary to distribute happiness equitably, thus equalising
welfare is more important than maximising it.10 Mathematical precision which utility seeks to
inject in the system erstwhile guided by morals has been criticised as it presumes that
pleasures and pains are commensurable inter se, which has been criticised for it seeks to use
human sentiments as mathematical tools for arriving at the answer.
In an exclusively utilitarian philosophy there is something very dangerous to the
contemporary as well as to older conceptions of civil liberties.15 Utilitarianism cannot be
stretched to unimaginable limits and applied in every possible situation because often the
result would be unconscionable for the society, which professes, by the doctrine of
inalienable, non derogable natural rights. Terrorism has to be fought no doubt but AFSPA is
no answer. The Government has tried by meeting force with force; it is time to use the other
alternative: repeal the Act.
The concept of Rule of Law is very vast and the Indian Judiciary has recognized its vastness.
The need is to implement it even during the time of declaration of emergency. In Ram Prasad
Narayan v. State of Bihar25 it was held by Supreme Court that nothing more is likely to drain
the vitality from the Rule of Law than legislation which singles out a particular individual
from his fellow subjects and visits him with a disability not imposed on others. Again in
Wazirchand v. State of Himachal Pradesh26 the Court said that the Rule of Law meant that
the State or its executive officers cannot interfere with the rights of persons unless they can
show some specific Rule of Law which authorizes their acts. In 196127, the Supreme Court
declared that Rule of Law means that the government could not take the law into its own
hands, that it cannot dispossess persons by a display of force, and it cannot disregard the
normal requirements of procedures in a society governed by a Constitution that guarantees its
citizens protection against arbitrary invasion of their rights. This is the principle that nobody
25 AIR 1953 SC 213.
26 AIR 1961 SC 1570
27 Bishan v. State of Punjab AIR 1961 SC 1570
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is above the law including the State. In Som Raj v. State of Haryana28 it was observed that the
basic postulate of the Rule of Law is the absence of unguided discretion, so that when
discretion is conferred on an executive authority it must be within clearly defined limits. This
is another side of Rule of Law which is fairness and reasonableness in the state action29.
Rule of law as a concept resides in the minds of people and in their attitude towards the
state and its institutions. Therefore even if there are occasional challenges and setbacks, the
principle will continue to govern the nation whose people are collectively committed to
organizing themselves under the law and legal institution30.
Jeffrey Goldsworth in introduction to ‘Interpretation of Constitution’ has mentioned
that if the Courts are guardians of their nation’s Constitution, what exactly is that they are
guarding? Is it a set of reasonably fixed rules and principles, laid down at the founding, that
must not be changed except by formal rules and principles, laid down at the founding, and
that must not be changed except by formal amendment31? Or does the force of those rules and
principles ultimately depend on abstract principles and values, whose effective protection
may justify considerable creativity in response to perceived threats32.
In Special Reference No. 1 of 200233 it was observed that liberal and visional
interpretation is necessary to interpret the provisions of the constitution. The reasoning given
was that the old legal pillars suffer new stresses. So the Court has to adopt the law and
develop its latent capabilities if novel situations are encountered. It was also held that the
meaning of the words in the constitution should be understood having regard to their line of
growth and change of concepts.
Justice Cardozo, observed that a written constitution ‘states or ought to state not rules
for the passing hours, but principles for an expanding future’.34 The Indian courts has also not
28 AIR 1990 SC 1176
29 Goolam E. Vahanvati, Rule of Law The Sieges Within, Rule of law in a Free Society, Oxford University press, 2008, p. 28.
30 N.R Madhava Menon, Rule of Law in a Free Society, Oxford University Press, 2008, p. ix
31 Supra note n. 9 at p. 2.
32 Jackson V and Tushnet M, Comparative constitutional Law (Founding Press, New York, 1999) at p. 145.
33 2002 8 SCC 237.
34 Cardozo BN, The nature of judicial process, 33rd printing, Yale university press, New Haven, 1974 83.
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taken a positive approach to Constitutional interpretation but has expanded the rights to
people by interpreting the Constitution liberally. Liberal interpretation of legislative power
was combined with a positivist interpretation of the constitutional limitation imposed on it.35
H.M Seervai stated:
“well established rules of interpretation requires that the meaning and the intention of
the framers of a constitution – be it a Parliament or a constituent Assembly – must be
ascertained from the language of the constitution itself; with the motives of those framed it,
the Court has no concern”.36
The provisions of national constitutions, like other laws, are often ambiguous, vague,
contradictory, insufficiently explicit, or even silent as to constitutional disputes that judges
must decide37. In addition they sometimes are even silent as to constitutional disputes that
judges must decide. In addition they sometimes seem inadequate to deal appropriately with
the development that threaten principles the constitution was intended to safeguard,
developments that its founders either failed, or were unable to anticipate.38 However in India
the Indian Judiciary has always tried to save the people from the arbitrariness of the
executive. Arbitrariness is antithesis to Rule of Law. So, it is important that all the three
wings should aid each other and should not endeavor to impose before the people that it is
Supreme than the other.
Keshvananda Bharti case39 was pronounced at a stage when the politicians of the
country thought that Parliament is the Supreme authority regarding everything in India. But
Supreme Court in a detailed analysis held that Constitution is supreme and Parliament is mere
creation of it. Court decided this case before the proclamation of emergency, yet that decision
invited the wrath of the ruling politicians and they started mounting attacks on the
Supreme Court from different anglers. On the day after pronouncing the judgment in that
35 Sathe SP, India: Positivism v. Structuralism, Interperating Constitutionalism,2008 ed, Oxford University Press, New Delhi at p.
227.
36 Supra n. 24 at p.172,
37 Goldsworth Jeffrey, Interpreting Constitution – a comparative study, oxford university press, 2008 ed, New Delhi at p. 1.
38 Ibid.
39 1973 4 SCC 225.
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case, the then Chief justice Sirki retired. The central govt. appointed the Junior A.N ray, who
gave dissenting opinion was appointed as CJI by superseding the three senior most judges40.
Executive filed an application for reviewing the judgment. So the next Chief Justice then
formed a new bench of thirteen judges which contained four new judges. The govt. fondly
hoped that the new combination would reverse the verdict and uphold parliamentary
supremacy41. When all the thirteen judges retired to the chamber of the CJI, many of them
disclosed in confidence that they would not agree for the reversal of the majority verdict in
the case42.
How can there be Rule of Law when Parliament who is under an obligation to make law
tries to be Supreme. Rule of Law can be achieved when there is balance between the organs
of the government. The role of the three organs of the government must be complementary so
that the constitutional goal can be fulfilled. The key determinant in the continuance of rule of
law is the provision of adequate safeguards against the abuse of power, articulately an
affective government.43
Democracy by itself does not assure the rule of law because the latter presupposes the
existence of representative democracy, liberty and equality in varying degrees44. A disturbing
inequality has developed between the ruler and the ruled. People, following their leader tend
to show contempt for institutions of law. The administration has turned anti people and rule
of law gets subverted in a conspiracy between the political executive and the civil servants45.
In the process they have lost the trust of the people and the system has become oppressive,
the very negative of rule of law. Observance of rulers by all institution of democracy is the
key to the maintenance of rule of law46. Instead, what we have today, is Rule of Law under
which those who are charged with the responsibility of enforcing the law behave as if they
are themselves above the law47.
40 K.T Thomas,The constitution of India and the rule of law, Rule of Law in a Free Society, Oxford University Press, 2008, p.33-38.
41 Ibid.
42 Ibid
43 N.R Madhava Menon Supra note 25.
44 P. Chidambram, The Citizens and the Rule of Law, Rule of Law in a Free Society, Oxford University Press, 2008, p. 10- 21
45 ibid
46 ibid
47 Ibid.
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Thus it is important that all the wings of government perform their act within the
confine of Constitution. Court has the responsibility to interpret Constitution as per the
objective which the Constitution sought to achieve.
In the United States the case of Korematsu v. United States48 the Supreme Court
submitting to national pressure during World War II. The court held legal a military order
under which more than 1,12,000 residents western states all of Japanese descent and of which
more than two out of three were natural- born US citizens were removed from their homes
and herded into temporary camps and later into relocation centers in several states.
Korematsu, a native American born of Japanese ancestry was convicted of disobeying the
exclusion order .
Black, J. delivering the majority opinion of the court said:
Korematsu was excluded because we are at war with the Japanese Empire,
because the properly constituted military authorities feared an invasion of our West coast and
felt constrained to take proper security measure, because they decided that the military
urgency of the situation demanded tat all situation of Japanese ancestry be segregated from
the west coast temporarily, and finally, because of Congress, reposing its confidence in this
times of war in our military leaders—-as inevitably it must- determined that they should
have the power to do just this.49
In his dissenting opinion Roberts, J. spoke of the disproportion and lack of reasonable
relationship of the exclusion even if military necessity demanded it.
“…….the exclusion either temporarily or permanently, of all persons with
Japanese blood in their veins has no such reasonable relation. And that relation is lacking
because the exclusion order must necessarily rely for its reasonableness on the assumption
that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and
espionage and to aid our Japanese enemy, in other ways. It is difficult to believe that reason,
logic or experience could be marshaled in support of such an assumption.”50
]48 89 L ED 194; 323 US 214 (1944)
49 IBID at P. 223.
50 IBID at P. 235.
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Jackson, J. also dissented from the majority of words which must caution Judges who
succumb to giving a convenient interpretation of the Constitution in times of national crisis.
He said “………a judicial construction of the due process clause that will sustain this order is
a far more subtle blow to liberty than the promulgation of the [military] order itself. A
military order, however unconstitutional, is not apt to last longer than the military
emergency…..once a judicial opinion rationalizes such an order to show that it conforms to
the Constitution, rather rationalizes the constitution to show that the constitution sanctions
such an order, the court for all times has validated the principle of racial discrimination in
criminal procedure and of transplanting American citizens. The principle then lies about like
a loaded weapon ready for the hand of any authority that can bring forward a plausible claim
of an urgent need.”51
An independent judiciary which is obliged to uphold human rights has an unenviable
task in times of combating terrorist who themselves have no regard for human rights. This is
the agonizing dilemma of the judges in a democracy committed to the rule of law.
In India too the Judiciary while interpret ting at 21 of the Constitution held that during
emergency there exist no right to life and its violation can not be challenged under any
ground52. This decision is a bad law and is subject to criticism even today. It is so because
neither the grammatical interpretation nor the situation of emergency warrant for such an
interpretation of art 21. Court failed to check the acts of executive and thus failed in restoring
the Rule of Law. So, it can be said that Rule of Law can be achieved only when all three
wings of government perform their role in respective manner.
The Indian Supreme Court has radically changed its interpretative philosophy. It was
so because after Shiv Kant Shukla case the Supreme Court was losing its credibility before
the people. From positivism it has shifted to liberal interpretation. But what ever be the mode
of interpretation there must be checks and balance amongst the various organs of the
government. It can take place only when there rule of law prevails. The contrast between the
rule of men and the rule of law is first found in Plato’s Statesman and Laws and subsequently
in Aristotle’s Politics, where the rule of law implies both obedience to positive law and formal
checks and balances on rulers and magistrates. Dicey identified three principles which
51 IBID at P. 245-46.
52 ADM Jabalpur v. Shiv kant Shukla
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together establish the rule of law53: (1) the absolute supremacy or predominance of regular
law as opposed to the influence of arbitrary power; (2) equality before the law or the equal
subjection of all classes to the ordinary law of the land administered by the ordinary courts;
and (3) the law of the constitution is a consequence of the rights of individuals as defined and
enforced by the courts.”54
2. CO-RELATION OF ART. 21 AND ART. 19.
The co-relation of art. 21 to art. 19 was one of the central issues in A.K Gopalan v.
The State55 case. In this case it was contended that ‘personal liberty’ in art. 21 included all
the freedoms conferred by art. 19(1)(a) to (g). The correctness of the law laid down in
Gopalan case was never seriously doubted by any judgment of the Supreme Court till in R.C
Cooper v. UOI56 (Bank Nationalization case), a Bench of 11 judges, by a majority of 10:1,
“reconsidered Gopalan case and held that it was wrongly decided as because, according to the
Court its main premises, namely, that Art. 22 were a complete code was wrong, and also
because the majority in Gopalan case treated the fundamental rights conferred by various
articles as exclusive. It may be added that three majority Judges in Gopalan’s case held that
art. 22 was not a complete code57; and they did not hold that the fundamental rights conferred
by different articles were mutually exclusive.
Fazal Ali (dissenting opinion) held that in Art. 19(1) (d) the concept of ‘right to move
freely throughout the territory of India’ was entirely different from the concept of the ‘right to
personal liberty’. Kania C.J. said that in the right to move freely throughout the territory of
India the emphasis was not on ‘free movement’ simpliciter, but on the right to move freely
throughout the territory of India and that Art. 19(1)(d) read with sub-Art. (5), meant that if
restrictions were put on the movement of a citizens from State to State or even within a State,
such restrictions must satisfy the requirements of Art. 19(5) and that Art. 19(1)(d) had
53 Law of the Constitution (10th Ed., 1959), pp. 187, et seq.,
54 Halsbury’s Laws of England, Vol: Constitutional Law and Human Rights, paragraph 6, footnote 1
55 1950 S.C.R. 88.
56 1970 3 SCR 530.
57 Mahajjan J. alone of all the judges held that Art. 22 was a complete Code.
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nothing to do with detention, preventive or punitive. This position was made clear by Art.
19(5) which permitted ‘reasonable restrictions’ to be imposed on the right in the interest of
the general public or the protection of the interest of any Schedule Tribe. Thus it deals with
provincialism and not with detention.
Justice Mukherjee, held that “Art. 19…gives a list of individual liberties and
prescribes in the various clauses the restraint that may be placed upon them by law, so that
they may not conflict with public welfare or general pubic morality. On the other hand art.
20, 21 and 22 are primarily concerned with penal enactment or other laws under which
personal safety or liberty of persons would be taken away in the interests of the society and
down the limits within which State control should be exercised.”58 Also art. 19 confers the
freedom on citizens alone where as the rights conferred under art. 21, 22 and 20 apply to all
the persons. Art. 19 is positive in form and 20 and 22 are negative in form.
H.M Seervai has commented that the whole discussion on the merits would have been
unnecessary if Art. 19(1) and Art. 21 had been held to be mutually exclusive in Gopalan
case59. Assuming that the right to move freely was of the essence of personal liberty the
majority held that it did not fall under Art. 19(1)(d) which conferred a different right namely,
the right to move freely throughout the territory of India.60
Also the insertion of word ‘personal’ before the word ‘liberty’ has restricted the scope
of art. 21. The Draft Committee Report on Draft art. 15 (now art. 21) was discussed by the
Judges to further support this argument. The report stated that the word liberty should be
qualified by the word ‘personal’ before it for otherwise it might be construed very widely so
as to include even the freedoms already dealt with in art. 13 (now art. 19).
Kailashsam J. has made it clear in Maneka Gandhi case61 that the decision of the
Bank Nationalization case in so far as it relate to art. 21 and 19(1) is in the nature of obiter
dicta. Though it is a decision of a court of 11 Judges and is entitled to the highest regards, as
the court had not applied its mind or decided the specific question and as it is in the nature of
58 1950 SCR at p. 254.
59 Seervai H.M, Constitutional Law of India, 3rd ed, vol- 1, Tripathi Pvt. Ltd., 1983, Bombay. At p. 700.
60 ibid
61 Maneka Gandhi v. UOI 1978 AIR SC at p. 681.
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a general casual observation on a point not calling for decision and not obviously argued
before it the case cannot be taken as an authority on the subject when no occasion arose for it
to consider and decide the question.62
In Bacchan Singh case, it was held that the rights mentioned in art. 19(1)(a) to (e)
shows that the rights there mentioned are not absolute; they have to be exercised so as not to
injure the rights of others. They are subject to the power of the State to make laws imposing
reasonable restrictions, which may even extend to prohibition, on the exercise of those rightsa
power which if properly exercised, is the best guranteed of those freedoms. The argument
for Gopalan’s case that all imprisonment in a cell as a result of preventive detention affected
his rights under art. 19(1) was rejected on two grounds:
i. That it would render several sections of the Penal Code, for theft, cheating, forgery and
even ordinary assault illegal, and such a result was not the outcome of the constitution.63
ii. That the correct test is to consider the direct impact of the impugned law on the
fundamental right and not what would be the result of the detention otherwise valid on the
mode of the detnu’s life. The test of direct and indirect effect adopted in Gopalan’s case was
approved by a full court in Ram Singh v. Delhi64, and although Mahajan and Bose JJ.
Differed on the merits, there was no dissent on this point among all the Judges. Also in
Express newspaper case, Bhagwati J., added that the impugned act could be legitimately
characterized as a measure which affected the press, but its ‘intention or the proximate effect
and operation’ was not such as to violate art. 19(1), and therefore, it could not be held invalid.
iii. Thus the content of art. 19 and 21 are not same.65
Art. 19 will be attracted only to such laws, the provisions of which are capable of
being tested under cls. (2) to (5) of art. 19.66 Finally as per Sarkaria J. it can be said that:
a. The Bank Nationalization case and Maneka Gandhi’s case had not over ruled or
‘rendered bad’ the conclusion of the judges in Gopaln’s case ‘that the IPC particularly
62 Maneka Gandhi v. UOI 1978 AIR SC at p. 681.
63 A.K Gopalan at AIR p. 908.
64 1951 SCR 451.
65 Ibid Sarkaria J. at p. 908.
66 Ray C.J in saha case
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Rule of law during emergency
15
those of its provisions which do not have a direct impact on the rights conferred by
art.19(1), is not a law imposing restrictions on those rights.
b. The reasoning, explicit and implicit, of Kania C.J., Patanjali Sastri and Das JJ., that
a construction which treated every section of the IPC as a law imposing ‘restriction’
on the rights conferred by art. 19(1) would lead to absurdity is unassailable and must
be avoided.
c. The approach of Das C.J in Chamarbaugwalla’s case that crime or criminal activities
were not protected by art. 19(1) ‘still holds the field’ as it has been approved in
Fatechand’s case.
It is submitted that the fundamentals rights enshrined in the Constitution are not a
water tight compartment and they are over lapping. But it was never the intention of the
Constitution maker to provide all the freedom conferred by art. 19 to be included in personal
liberty under art. 21. This construction of art. 21 will in no way affect the scope of personal
liberty. Art. 21 is worded in negative terms but it is well settled now that art. 21 has both
negative and affirmative dimension. Positive rights are very well conferred under art. 21 of
the constitution. But the rights enshrined in art. 19 are not the part of art. 21 of the
constitution.
The decision of Maneka Gandhi so far it relate to co relation of art. 21 and art. 19 is
wrong as art. 19(1)(d) did not confer a right of free movement simpliciter, but a right to move
freely throughout India. However interpretation of word ‘procedure established by law’ in art.
21 as ‘fair, just and reasonable procedure’ is a valid interpretation of art. 21. It has over
ridden the narrow interpretation laid down in Gopalan case regarding ‘procedure established
by law’. It is submitted that the outcome of Maneka Gandhi case was right but the method by
which the judges arrived it was contrary to the intention of the Constitution maker.
In Gopalan Case, relation of art. 14 and art. 21 was not dealt in. However violation
of art. 14 can take place when state discriminate between two classes and such classification
is not a reasonable classification. The approach of Indian judiciary in Gopalan case was
positivist which in Maneka Gandhi case become liberal. The liberal interpretation of art. 21
by the court since than had included several new rights, including a right to privacy67, right of
67 Neera Mathur v. LIC 1992 1 SCC 286.
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Rule of law during emergency
16
prisoners to be treated according to prison rules68, a right to shelter69, a right to education70, a
right o sufficient food to avoid starvation71. In Francis Coralie Mullin v. UT of Delhi,
Justice Bhagwati said:
‘The fundamental right to life which is the most precious human right and which
forms the arc of all other rights must therefore be interpreted in a broad and expansive spirit
so as to invest it with significance and vitality which may endure for years to come and
enhanced the dignity of the individual and the worth of the human person.’72
Therefore it is submitted that the broad interpretation of the word ‘life’ and
‘procedure established by law’ in art. 21 has to be interpreted in a same manner even during
the time of emergency.
3. Role of Judiciary during Emergency
The approach that the Constitution has to be interpreted differently during different
times is a wrong concept. Law has to be certain and once any article is interpreted by the
Court, it becomes the law of the land and has effect on the rights of the people. Court must
not act as the rubber stamp. The system of governance can only succeed if judiciary is
fearless and checks the executive whenever there a need.
After Jabalpur case the judges had to rehabilitate themselves, and this may have
inspired their post emergency activism. They may have realized that the Court might lose its
credibility permanently, if it were seen as a mere rubber stamp of the ruling majority. The
independence of judiciary depends on the strong public support, as well as constitutional
guarantees. The court’s activism in later years was directed towards both the ends73. For rule
of law to prevail in India, it is important that there must be avoidance of arbitrariness. It can
be done when there is adherence to the supremacy of law. Court must not succumbs to the
68 Sunil Batra v. Delhi Administration AIR 1978 SC 1675.
69 Olga Tellis v. Bombay Municipal corporation AIR 1986 SC 180.
70 Unnikrishnan v. AP 1993 1 SCC 645.
71 PUCL v. India W.P (civil no. 196 of 2001)
72 1981 1 SCC 608.
73 Sathe SP, India: Positivism v. Structuralism, Interperating Constitutionalism,2008 ed, Oxford University Press, New Delhi at p.
251.
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Rule of law during emergency
17
pressure of executive or interpret the constitution under constraint during the time of
emergency.
The Preventive detention laws are used by the executive cruelly during emergency
times. So, the role of Court is to see whether the detention of the persons if by a fair just and
reasonable procedure. The preventive detention laws were first challenged in A.K Gopalan
case. A.K Gopalan was the President of Communist Party’s All India Kisan Sabha. He was
alleged of threatening the Police in a speech and otherwise speaking his mind and arrested
under Madras Maintenance of Public Order Act, 1947 but in A.K Gopalan v. District
Magistrate Malabar74 Supreme Court dismissed the case on the ground that the magistrate
had paid insufficient attention to the major question involved. But after this release Gopalan
was detained again under Preventive Detention Act, 1950. Although the majority held that
detention is legal but they failed to rule on the contention that detention is bad in faith as it
did not know the grounds for detention. All the six judges struck down section 14 of the act
as being violative of art 22(5) which provides that grounds for detention should be given to
detune. Justice Mahajan commented that sec. 14 is in the nature of an iron curtain around the
acts of authority making the order of preventive detention. Judges Fazal Ali and Mahajan
held that the detention is illegal on the ground that sec. 12 of the act which provides that
detune could be held up to a year without an advisory board review. The Act and Supreme
Court ruling on it aroused apprehensions.75
Within a few days of this ruling, the Court heard and reserved orders on 17 other
petition from detunes who challenged it on the basis of sec. 14 being struck down. Homi
Modi, then governor of UP, wrote to president quoting Justice Sen of Calcutta High Court;
the judiciary is being converted into a legislature with limited powers and the executive is
converted into a judiciary whose decisions were to be final.76
On 19 February 1951, Parliament extended the act fro another year. On the day the
President gave his assent on 22 February, the Madras High Court released A.K Gopalan,
ruling his detention illegal on the grounds that the order was vague and indefinite. But no
sooner had Gopalan’s feet touched the Courthouse steps than a policeman who had been
74 AIR 1949 Madras 596ff.
75 Times of India, issue of 23 May 1q950, the paper regretted the absencde of unanimity in the Courts decisions,
which detracted from the courts authority and caused bewilderment and consternation in Puublic mind.
76 Modi in his Forthnight letter to the President, dated 8.4.1950 wrote that in states where there was preohibition,
ministers are talking of punitive police and collective fines for offences and one minister even talked of
concentration camps. He deplored this frame of mind and wrote that it is against the Constitution. Austin, Working
a Democratic Constituion, Oxford University Press, p. 60.
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Rule of law during emergency
18
waiting in the Court detained him under the new Act. Worried about the case, Nehru wrote to
Rajagopalachari on 25 February that Gopalan arrest within a few yards of High Court
building gives a shock and creates a good deal of prejudice against us.77 A year later, Gopalan
was elected to the Lok Sabha from a Madras constituency and he was re elected in the second
general election of 1957 from a constituency in Kerla and again in 1964-65 he was detained.
In 1962 India first national emergency was proclaimed where art. 21, 22 and art. 14
were suspended by a proclamation by the President. This proclamation resembled to the
Defense of India Act which was passed on 19.9.1939, where the British Empire were at war
with Germany. The Defense of India rules empowered the Governor to proclaim the state of
emergency of the situation of grave emergency exists78.
To avoid such situation to occur again the role of Supreme Court has to be to act as an
independent body and must check the legislature and executive for violating the limits set up
by the Constitution. Fundamental rights must be treated as fundamental and their suspension
was not to be warranted unless there was a genuine emergency, which springs of 1963, there
was not.
While interpreting Constitution Courts define the rights of the citizens, it limits the
powers of legislature so its interpretation has a profound effect on the institutional structure
of the society. There can be a situation which had not been foreseen by the constitutional
maker because of which a constitution might fail to achieve one of its important purposes.
Therefore in re, C.P and Berar Sales of Motor Spirit and Lubricants Taxation Act, 193879
Gwyer J. of Federal Court of India relied on the observations of Lord Wright in James v.
Commonwealth of Australia80 and observed that a constitution must not be constructed in
any narrow or pedantic sense, and that construction must not be constructed in any narrow or
pedantic sense, and that construction most beneficial to the widest possible amplitude of its
powers, must be adopted. The learned Chief Justice emphasized that a broad and liberal
should inspire those whose duty is to interpret the constitution, but they are not free to stretch
77 Gopalan, Selected Works of Nehru, Vol. 15, Part-II, p. 156.
78 See Kamat, A.N, The Defence of India Act, 1939 and the Rules Made thereunder, Hindumata Printing House,
Dharwar, 1944. see also Prasad, S. and B.M Mehrotra, Defence of India Laws and Rules, $vols. Law Publishers All.
1963.
79 AIR 1939 FC 1; 1939 FCR 18: 180 IC 161.
80 1936 AC 578.
Page No.
Rule of law during emergency
19
or pervert the language of the enactment in the interest of any legal or constitutional theory,
or even for the purposes of supplying omissions or correcting supposed errors. A Federal
Court will not strengthen, but only derogate from, its position, if it seeks to do anything but
declare the law; but it may rightly reflect that a constitution of a constitution of a country is a
living and organic thing, which of all instruments has the greatest claims to be constructed ut
re magis valeat quam periapt- it is better that it should live than it should perish.
The concept of Rule of Law is very vast and the Indian Judiciary has recognized its
vastness. The need is to implement it even during the time of declaration of emergency. In
Ram Prasad Narayan v. State of Bihar81 it was held by Supreme Court that nothing more is
likely to drain the vitality from the Rule of Law than legislation which singles out a particular
individual from his fellow subjects and visits him with a disability not imposed on others.
Again in Wazirchand v. State of Himachal Pradesh82 the Court said that the Rule of Law
meant that the State or its executive officers cannot interfere with the rights of persons unless
they can show some specific Rule of Law which authorizes their acts. In 196183, the Supreme
Court declared that Rule of Law means that the government could not take the law into its
own hands, that it cannot dispossess persons by a display of force, and it cannot disregard the
normal requirements of procedures in a society governed by a Constitution that guarantees its
citizens protection against arbitrary invasion of their rights. This is the principle that nobody
is above the law including the State. In Som Raj v. State of Haryana84it was observed that the
basic postulate of the Rule of Law is the absence of unguided discretion, so that when
discretion is conferred on an executive authority it must be within clearly defined limits. This
is another side of Rule of Law which is fairness and reasonableness in the state action85.
Rule of Law can function most effectively n democracy and Judiciary has a role to see
that the democratic principle imbibed in our Constitution is never allowed to be shatters n the
hands of executive during emergency and in normalcy times too. N.A Palkhiwala observed
that the danger to our democracy is that the noise created by few politicians is misunderstood
as the voice of the masses and the well thought out advice tendered by experts and persons of
maturity are ignored as the voice of reaction. Rule of law is under serious threat even today86.
81 AIR 1953 SC 213.
82 AIR 1961 SC 1570
83 Bishan v. State of Punjab AIR 1961 SC 1570
84 AIR 1990 SC 1176
85 Goolam E. Vahanvati, Rule of Law The Sieges Within, Rule of law in a Free Society, Oxford University press, 2008, p. 28.
86 K.T Thomas,The constitution of India and the rule of law, Rule of law in a Free Society, Oxford University press, 2008, p.33-38
Page No.
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So, Judiciary has to be more cautious. However there should not be a situation of conflict
between various Constitutional organs. So, the judiciary has to check the executive and
executive has to keep vigil on the Judiciary within the limits of the constitution.
Today the situation has become such that we, the people no longer has a faith in executive
and when Judiciary fails to check such acts of executive, the existence of Judiciary itself
becomes also questionable. Government is seen as a necessary evil which is anti people. This
mistrust has to be removed from the minds of people so that they can enjoy freedom within
themselves. It will come only when the arbitrary act of executive is checked the
Judiciary. Whenever there is conflict between Public and private interest, former has to be
given importance. A fair interpretation of the constitution is required. Judiciary has to
dynamic in interpreting the constitution. There decisions must not be affected by the situation
of emergency or any other circumstances. What has happed in ADM Jabalpur case must not
be repeated. This decision was neither a liter interpretation of art. 21 nor was the judiciary
concerned about the Rule of Law. It can be said that it was a black history of the Supreme
Court where the Judiciary succumb to the pressure of executive and failed to recognize the
right of life of the people. It was a mockery of justice when the majority held that during
emergency the arrest of innocent parsons can also not be challenged and there lies no remedy
to the arbitrary act of executive but only a hope that the executive will not violate Rule of
Law.
Rule of law means that the law is supreme and not the state. Indian Constituent provides
various limitations in exercise of powers by different organs and also provides with special
powers to various wings of the government. These powers have to be exercised whenever the
Rule of Law is breached and the faith of people is shaken in the administration of justice.
Court has to interpret the constitution in a dynamic manner to make it a living constitution.
The mistake of ADM Jabalpur case must not be repeated. Our constitution has enough
safeguards for the protection of Rule of Law in India. What is needed is a proper execution of
these principles and whenever there is encroachment by the executive, the role of judiciary is
to check such acts of executive. Constitution must be interpreted as per the views of
Constitution maker and keeping in minds the objective of the Constitution. In this regard the
broad interpretation of art. 21 of the Constitution by the Judiciary are laudable.
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CONCLUSION
On of the greatest Prime Minister who held office for the longest period as British
Prime Minister was William Pitt the younger. He was a great apostle of the pristine doctrine
of the Rule of Law. To highlight its importance he said thus 200 years ago: Where law ends
tyranny begins. Rule of law is a sentinel or watch-guard for protecting a republic from
tyranny. Our constitution has provided the coverage of the Rule of Law for this republic.87
Rule of law can work only if there are checks and balances between various organs of
the government. The moment one organs fails to perform its duty, it allows the other organ to
become arbitrary and this arbitrianess results in the state of anarchy. Same happened in India
when the judiciary did not check the arbitrary act of executive headed by Mrs. Indira Gandhi
and allowed it to be whimsical. In international arena also the policy of appeasement
followed by Britain and France allowed Hitler to take steps leading towards Second World
War.
It is always the people who suffer. In the reign of Indira Gandhi too, many innocent
persons were arrested and put in bars and Second World War too the life of many persons.
Checks and balance doesn’t means that there must be conflict between various organs, but it
means aiding each other in achieving the constitutional goal. Judiciary must not interfere in
the policy matter of executive but it has a duty to interfere when the decision of executive is
inimical to public interest. Each institution has to be within the confines of its limit and must
create an atmosphere where the all of them can function effectively.
Mr. Justice Vivian Bose, ‘the rule of law is neither of the east nor of the west it is to be
found everywhere. It is the heritage of all mankind….why are we advocating it? Because it is
right. Because it is human worth and dignity, because, on analysis and reflection, it is the
only same way to live at peace and amity with our neighbors in this complex world. Because
it is the only sane way to live in an ordered society. The only true foundation on which the
rule of law can rest is its wilingliness acceptance by the people of each country until it
becomes part of their own way of life, built on the foundations of their own tradition and
87 K.T Thomas,The constitution of India and the rule of law, Rule of Law in a Free Society, Oxford University Press, 2008, p.33-38.
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22
culture and rooted their own history, the Rule of law in its fullest stature and dignity, should
be discernable in them all.88
Thus in India it is necessary that Judiciary must be independent of executive control. But
this does not means that removal of Judges be made almost impossible and therefore the
solution becomes problem. So, Rule of Law can be restored in India only when all the three
wings of the Government work in consonance with the Constitution.
88 N.R Madhava Menon, Rule of Law in a Free Society, Oxford University Press, 2008, P.XI.

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