Seitenhistorie

...

Surya Deva, Associate Professor, School of Law, City University of Hong Kong, Hong Kong

I. Introduction

The term 'rule of law' is not used in the Indian Constitution anywhere. The term is though used frequently by the Indian courts in their judgments. For instance, an online search of the Supreme Court's reportable judgments delivered between 1 January 1950 and 1 January 2010 resulted in 1,299 hits of the term 'rule of law'. (see http://judis.nic.in/supremecourt/chejudis.asp). There is no doubt that the rule of law pervades the Constitution as an underlying principle. In fact, the Supreme Court has declared the rule of law to be one of the 'basic features' of the Constitution (Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2295; SP Gupta v Union of India, AIR 1982 SC 149), so this principle cannot be taken away even by a constitutional amendment. As this Country Report will outline, the Indian conception of the rule of law is both formal and substantive. It is also seen as an integral part of good governance. Questions are though raised as to the extent to which the constitutional promise of the rule of law matches with actual situation in India.

In this Report, I focus on three broad aspects of the rule of law. First, the rule of law as a check on governmental powers, including by requiring that laws are clear, predictable, and prospective. Second, the rule of law as an embodiment of protecting people's human rights. Among others, this will entail a guarantee for equal treatment. Third, judicial review of legislative and executive actions by an independent judiciary. In a way, the last two aspects complement the first aspect in that they limit the power of governmental agencies.   

II. Checks on Governmental Powers

The Indian Constitution establishes a limited government. Bring a federal country, 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 could make law (Constitution of India, 1950, arts 246, 248-254 read with Schedule IX). Any law that breaches these limitations (e.g., a state law made on a matter within the exclusive competence of the central legislature) could be declared unconstitutional by courts (Medical and Educational Charitable Trust v State of Tamil Nadu (1996) 3 SCC 15). Second, the power of executive to make laws by issuing Ordinances is limited - both in terms of duration and situations triggering the exercise of such power (Arts 123 and 213). The executive, of course, cannot make a law on a matter on which the corresponding legislature lacks the competence to legislate (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.').  

...

In addition to these checks, the fundamental rights provisions and the power judicial review provide effective means of checking the power of the legislature and executive. These two aspects are discussed below.

III.Equality Guarantee and the Protection of Human Rights

Establishing an egalitarian society was/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 Articles 12 to 35 which lay down various rights, their limitations and remedies for their enforcement. The rights range from the equality before the law to the freedom of speech and expression, the protection against double jeopardy, the right to life and personal liberty, the freedom of religion, prohibition of discrimination, and the protection against arrest and unlawful detention.

...

It should also be noted that although the constitution framers had expressly rejected the due process requirement in Article 21, the Supreme Court introduced this guarantee by judicial interpretation (Maneka Gandhi v Union of India, AIR 1978 SC 97). Furthermore, by a joint reading of Articles 14 and 21, the courts have basically developed a substantive model of rule of law - any law or executive action which is not 'just, fair and reasonable' could be declared unconstitutional (Singh 2008: 201-04). The Courts, for example, invalidated a penal provision prescribing the mandatory death sentence for murder committed by a life convict (Mithu v State Punjab, AIR 1983 SC 473). More recently, the Delhi High Court ruled that Section 377 of the Indian Penal Code 'insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution' (Naz Foundation v Government of Delhi, WP(C) No.7455/2001 (2 July 2009), para 132).

IV. 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 in place this mechanism. Judges of the Supreme Court and the High Courts are appointed by the President in 'consultation' with relevant judges of these courts (Arts 124(2) and 217). Subsequent to the decision in Supreme Court Advocates on Record Association v Union of India (4 SCC 441 (1993). See also In re, Presidential Reference, AIR 1999 SC 1), judges of the higher judiciary are in essence appointed by the judiciary itself (Singh/ Deva 2005: 673-74.). Detailed provisions have also been made to provide judges security of tenure (Arts 124 and 218), and protect their salaries, allowances and privileges. (Arts 125 and 221) Legislative bodies are barred from debating the conduct of judges unless dealing with impeachment motions (Arts 121 and 211). In fact, on a closer look, it seems that the Indian judiciary has become over-independent in that there are not many checks on its powers and the functioning/conduct of judges. The judiciary, for instance, resists any attempt to introduce accountability measures and impeaching judges so far has proved to be an almost impossible even in suitable cases.

Although the power of judicial review does not require an express recognition in a constitutional text, Article 13(2) of the Indian Constitution provides such recognition by laying down 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. (A similar - in fact wider - power is vested with the High Courts under Article 226.) The Court has widened the scope of this power over the years by implying many new rights within the ambit of Article 21; (ii) chartering the course of public interest litigation as a tool of deepening justice to 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.   

V. Conclusion

On a brief overview of the constitutional provisions and judicial decisions, it can be safely concluded that the Indian Constitution enshrines the rule of law as a fundamental governance principle, though the term is not mentioned expressly in the text of the Constitution. Having said this, there are several challenges that pose threat to building a society based on robust rule of law framework. Continued socio-economic inequalities (despite affirmative active provisions and programmes), large population, pervasive corruption (including in judiciary), judicial delays, law and order problems in view of regionalism and Naxalism, and the general apathy of people towards the rule of law are matters of serious concern. Despite these challenges, there is no doubt about the constitutional mandate or government's commitment to establishing a rule of law society.     

Mahendra P Singh & Surya Deva, 'The Constitution of India: Symbol of Unity in Diversity' (2005) 53 _Jahrbuch des Offentlichen Rechts der Gegenwart_ \[Yearbook of Public Law, Germany\] 649.