1 Introductory PART I CHAPTER I INTRODUCTORY SYNOPSIS A. Constitutional Law........................................................................... 1 B. Constitutionalism ............................................................................. 8 C. Rule of Law ...................................................................................... 9 D. Historical Perspective...................................................................... 12 E. Salient Features of the Indian Constitution ..................................... 13 (a) Modern Constitution ............................................................. 13 (b) Written Constitution .............................................................. 14 (c) Preamble ............................................................................... 16 (d) Socialist State ........................................................................ 18 (e) Welfare State ......................................................................... 20 (f) Secular State.......................................................................... 20 (g) Responsible Government....................................................... 21 (h) Fundamental Rights .............................................................. 22 (i) Minorities and Backward Classes......................................... 24 (j) Elections................................................................................ 24 (k) Judiciary................................................................................ 25 (l) Federal Constitution ............................................................. 26 F. Fundamental Law............................................................................. 28 A. CONSTITUTIONAL LAW Constitutional Law Syn A Chap 1 A state is defined in International Law as “an independent political entity” “occupying a defined territory” “the members of which are united together for the purpose of resisting external force and preservation of internal order.” This statement lays stress on what may be called ‘police functions’ of the state, viz., preservation of law and order and defence of the country from external aggression. It needs to be emphasized however that no modern state today rests content with such a limited range of functions. A modern state does not rest con- tent with being merely a ‘police’ or ‘law and order’ state. It is much more than that. It tends to become a social welfare state. 2 Introductory [Chap 1 The significant point however is that in order to carry out its activities and functions, whatever may be their range, it becomes necessary for any state to es- tablish certain basic organs or agents or instrumentalities which act on its behalf and through which the state can function and operate. All the people in a state cannot combine and operate all together all the time to achieve the desired goals. Thus, certain fundamental organs become necessary. This creates the need for Constitutional Law. If there is need for certain organs through which the state acts, there must be some law to lay down how these organs are to be established? How these organs are to function? What their powers are going to be? What is to be their mutual relationship with each other? A state cannot govern itself on an ad hoc basis without their being some norms to regulate its basic institutions. There must be a predictable body of norms and rules from which the govern- mental organs must draw their powers and functions. The purpose of having a Constitution is to have a frame-work of government which is likely to endure through the vicissitudes of a nation. This purpose does not appear to have been achieved in India. There have been nearly 300 amendments to the Constitution. The Legal System of a country is divisible into—(i) Law governing the state; (ii) Law by which the state governs or regulates the conduct of its members. Laws like Contracts, Torts, Property, Criminal Law fall in the second category. Constitutional Law, Administrative Law and Public International Law fall in the first category. These are laws which seek to govern the state. Laws governing the state fall in the category of Public Law. Laws governing the affairs of the citizens fall in the category of Private Law. Speaking generally, the Constitution of a country seeks to establish its funda- mental or basic or apex organs of government and administration, describe their structure, composition, powers and principal functions, define the inter- relationship of these organs with one another, and regulate their relationship with the people, more particularly, the political relationship.1 And even about these basic institutions, only the basic norms are inscribed in the Constitution. All and sundry rules are not brought into discussion under the rubric of Constitutional Law. It may be noted that the term “Constitutional law” is broader than the term “Constitution”, as it comprises of the “Constitution”, relevant statutory law, judi- cial decisions and conventions. Traditionally, the structure of a country’s government is divided into three in- stitutional components; (1) Legislature to make laws; (2) Executive to implement and execute laws; and (3) Judiciary to interpret the laws and administer justice. Thus, the Constitution deals with such questions as: How is the Legislature structured, composed and organised? What are its powers and functions? Similar questions are to be asked about each of the other two organs as well. Some other questions which the Constitution has to answer are: What is the mutual relation- ship between the Legislature and the Executive? Or, between the Executive and the Judiciary? Or, between the Legislature and the Judiciary? What is the rela- tionship between these organs and the people? Does the Constitution guarantee any rights for the people? While these three organs are basic in any country, and the Constitution does invariably deal with them, the Constitution may also create any other organ 1. Wade & Phillips, Const. & Adm. Law, 1, 5 (IX Ed., ed Bradley); K.C. Wheare, Modern Con- stitutions, 1 (1971); O Hood Phillips, Const. And Adm. Law, 5 (1987). Syn A] Constitutional Law 3 which it may regard as significant and fit for inscription in the Constitution. For example, the Indian Constitution provides for the creation of a Finance Commis- sion every five years to settle the financial relationship between the Centre and States and it also establishes on a permanent footing an Election Commission to ensure free and fair elections. In Chander Hass2 a two judge Bench of the Su- preme Court citing Montesquieus has unqualifiedly stated the Montesquieus view of separation of powers and the dangers involved in deviating from his view was an apt warning for the Indian Judiciary which has been “rightly criticized for ‘overreach’ and encroachment in the domain of the other two organs” i.e., the Parliament and the Executive. The Bench seems to have broken down in the face of intensely adverse criticism launched principally against the Supreme Court’s ‘activist’ role by the legislators as well as the Executive.3 All the observations of the Court relating to separation of powers was wholly uncalled for since the real question in controversy was whether the Punjab and Haryana High Court could direct creation of posts to accommodate daily wage earners who, according to the High Court, ought to have been regularized. This issue had been answered in the negative by a long line of cases and, therefore, the law was well settled on the issue. In fact the sudden attack on the Judiciary by the Judiciary finds place in the judgment after the Court, having considered the merits concluded: “Consequently, this appeal is allowed and the judgment and order of the High Court as well as that of the first appellate court are set aside and the judgment of the trial court is upheld. The suit is dismissed. No costs”. Then they said: “Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism judges cannot cross their limits and try to take over functions which belong to another organ of the State.” What followed covering about 7 pages of the report is not only obiter but be- trays a constitutional fundamental that the judges cannot convert the courts into hustings. Uninformed, obiter of the Supreme Court can attract media attention to the Judges who author such obiter but tends to lower reputation of the Court amongst the right thinking members of the society and shake the confidence of the people in an institution charged by the Constitution to enforce the rule of law.4 These observations are not ‘law declared’ within the meaning of Art. 141 of the Constitution. A significant aspect of the relationship between the government and the people is the guaranteeing of certain Fundamental Rights to the people. Modern Consti- tutions lay a good deal of emphasis on people’s Fundamental Rights. The under- lying idea is that there are certain basic rights which are inherent in a human 2. Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683 : (2007) 12 SCR 1084 : (2008) 3 JT 221. 3. Significantly, while condemning what is currently referred to as judicial activism the Bench displayed an amazing lack of courage in pointing out any particular precedent when the Courts have exceeded their jurisdictions and usurped the powers of the other two organs of the State. 4. It will be out of place to go into the question at greater length in a book like this. 4 Introductory [Chap 1 being and which no government should seek to take away either by legislation or by executive action. The judiciary is endowed with the function of protecting these rights and acting as the guardian thereof. If the legislature passes any law or the executive takes an action, so as to infringe any of the Fundamental Rights, then the courts may declare such a law or action as unconstitutional. Some of these basic rights are: freedom of the person, freedom of speech, right to equality, freedom of conscience and religion, etc. The Constitution of a country may be federal or unitary in nature. In a federal Constitution there is a Central Government having certain powers which it exer- cises over the entire country. Then there are regional governments and each of such governments has jurisdiction within a region. All kinds of relations arise between the Central Government and the Regional Governments. India is an ex- ample of a federal Constitution. Some other federal Constitutions are: U.S.A., Canada, Australia, Malaysia, Germany, etc. A federal Constitution is a much more complicated and legalistic document than a unitary Constitution which has one Central Government in which all pow- ers of government are concentrated and which can delegate such of its powers to such of its agencies as it likes. A federal Constitution must settle many details (like distribution of powers between the Central Government and the regional governments) which a unitary Constitution is not concerned with. Britain, Sri Lanka, Singapore have unitary Constitutions. The Constitutional law of a country consists of both ‘legal’ as well as ‘non- legal’ norms. ‘Legal’ norms are enforced and applied by the courts and if any such norm is violated, courts can give relief and redress. On the other hand, ‘non- legal’ norms arise in course of time as a result of practices followed over and over again. Such norms are known as conventions, usages, customs, practices of the Constitution. There may be nothing in the Constitution sanctioning them, nevertheless, they exist. In the words of Jennings: “Thus within the framework of the law there is room for the development of the rules of practice, rules which may be followed as consistently as the rules of law which determines the proce- dure which the men concerned with Government follow.”5 According to KEETON, the conventions of the Constitution are ‘the unwritten principles which, though they could never be enforced as law in the courts are nonetheless rules since in fact the players of the constitutional game do observe them, for if they are not observed, the constitutional game would immediately degenerate into a political fracas or, worse still, a bloody revolution.6” The sanction behind conventions is mostly political or public opinion. As AHMADI, C.J., has observed about the growth of conventions: “Conventions grow from long-standing accepted practice or by agreement in areas where the law is silent and such a convention would not breach the law but fill the gap.”7 Constitutional conventions provide the flesh which clothes the dry bones of the law. 5. W.I. Jennings, Law and the Constitution. 6. KEETON, THE UNITED KINGDOM, COMMONWEALTH SERIES, I, 36-37 (1955). 7. S.P. Anand v. H.D. Deve Gowda, AIR 1997 SC 272, 279 : (1996) 6 SCC 734. For discussion on this case, see, Ch. III, infra. On conventions, also see, Ch. XL, infra. Syn A] Constitutional Law 5 Conventions play a more significant role in an unwritten Constitution than in a written Constitution but to have a full picture of a country’s Constitutional law, reference needs to be made not only to ‘legal’ but to ‘non-legal’ norms as well. Britain is a very good example of a country where conventions play a very active role. In India, conventions operate in several areas, the most significant of which is the relationship between the Executive and the Legislature. Reference to con- ventions is made at several places in the following pages.8 Generally, it is said that conventions may not lead to any court case and are not enforceable by the courts. But there are instances of conventions being rec- ognised, and even applied by the Courts in India as well as abroad. Reference may be made in this connection inter alia to the following cases : Carltona Ltd. v. Commissioners of Works;9 Madzimbamuto v. Lardner-Burke;10 Att. Gen. v. Jonathan Cape Ltd.,11 Adegbenx v. Akintola,12 Re Amendment of the Constitution of Canada13, Ram Jawaya v. State of Punjab;14 U.N.R. Rao v. Indira Gandhi;15 Samsher Singh v. State of Punjab16. These examples show that constitutional conventions do influence judicial decisions to some extent. With the judicial rec- ognition of conventions, the distinction between law and conventions has become blurred in course of time. It may also be noted that even some legal rules may be characterised as ‘di- rectory’ and not ‘mandatory’. This may especially be so with respect to proce- dural rules contained in the Constitution.17 The Constitution is a source of, and not an exercise of, legislative power.18 A Constitution may be written or unwritten. A written Constitution is one which is written down in the form of a Constitutional document. The British Constitution is characterised as ‘unwritten’ because it is not embodied in one comprehensive Constitutional document. It is interspersed in several statutes which define some Constitutional principles; in court decisions; in common law principles and in conventions and usages. The central doctrine of the British Constitution is Sovereignty of Parliament which means that Parliament can make or unmake any law and no distinction is drawn between an ordinary law and the Constitutional law. The cornerstone of the British Constitution, the principle of Sovereignty of Parliament, is in itself nothing more than a concept based on tra- dition which is recognised and enforced by the courts. Characterising this as the “formlessness of the British Constitution”, KEETON goes on to observe: “The absence of a written Constitution deprives us of a fundamental starting point from which all Constitutional law can be derived. We have no grundnorm 8. See, for example, Chs. III, VII and XL. 9. [1943] 2 All ER 560. 10. [1969] 1 AC 645. 11. (1976) Q.B. 752 (known as the Crossman Diaries case). 12. (1963) A.C. 614. 13. (1981) 123 DLR (3rd) (Canada). 14. AIR 1955 SC 549 : (1955) 2 SCR 225; Ch. III, infra. 15. AIR 1971 SC 1002 : (1971) 2 SCC 63; Ch. III, infra. 16. AIR 1974 SC 2192 : (1974) 2 SCC 831. Also see, infra, Chs. III, VII and XL. 17. S.A. de Smith, Constitutional and Administrative Law, 44-62, 99-108, 144-172 (1977). An example of a “directory” rule in India is to be found in Art. 77 of the Constitution, see, Ch. III, infra. Also see, “Directive Principles”, Ch. XXXIV, infra. 18. Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551 : AIR 2005 SC 2731. 6 Introductory [Chap 1 from which the individual norms of Constitutional law can receive their valid- ity.” Most of the modern Constitutions are of the written type. The U.S.A. wrote its Constitution in 1787, Canada in 1867, and Australia in 1900. The U.S. Constitu- tion is a brief, compact and organic instrument which shuns details.19 Even in Britain, many voices can be heard now that it ought to write down its Constitu- tion and that Fundamental Rights should be guaranteed therein.20 However, even a written Constitution generates some conventions and customs which help in bringing the Constitution in conformity with the constantly changing social and economic conditions. Also, no written Constitution can contain all the detailed rules needed for the working of various bodies and institutions in the country. Therefore, subject to the Constitution, a number of statutes may have to be en- acted laying down the detailed working rules for many purposes. The difference between a written and unwritten Constitution is somewhat ba- sic. A written Constitution is the formal source of all Constitutional law in the country. It is regarded as the supreme or fundamental law of the land, and it con- trols and permeates each institution in the country. Every organ in the country must act in accordance with the Constitution. This means that the institutions of government created by the Constitution have to function in accordance with it. Any exercise of power outside the Con- stitution is unconstitutional. The government being the creature of the Constitu- tion, Constitution delimits the powers of governmental organs and any exercise of power beyond the constitutional parameters becomes unauthorized. Therefore, any law made by the Legislature, any action taken by the Executive, if inconsis- tent with the Constitution, can be declared unconstitutional by the courts21. The Constitution is an organic living document. Its outlook and expression as perceived and expressed by the interpreters of the Constitution must be dynamic and keep pace with the changing times. Though the basics and fundamentals of the Constitution remain unalterable, the interpretation of the flexible provisions of the Constitution can be accompanied by dynamism and lean, in case of con- flict, in favour of the weaker or the one who is more needy.22 The courts are regarded as the interpreters as well as the guardian of the Con- stitution. It is for the courts to scrutinize every act of the government with a view to ensure that it is in conformity with the Constitution. If a law passed by the legislature or an act done by the executive is inconsistent with a constitutional provision, the court will say so, and declare the law or the act as unconstitutional and void. It is the obligation of the judiciary to see that the Constitution is not violated by any governmental organ and hence the judiciary is called as the guardian 19. “The Constitution of the United States is not a prolix document. Words are sparingly used; and often a single phrase contains a vast arsenal of power.” Douglas, From Marshall To Mukherjea, 146 (Tagore Law Lectures, 1956). 20. Leslie Scarman, English Law—The New Dimension. A debate was held on this issue in the House of Lords: See, The Times, Nov. 30, 1978. Also see, Lord Hailsham's Richard Dimbleby Lecture in The Times, Oct. 15, 1976. Lord Hailsham has characterised the present-day government in Britain as “elective dictatorship”. Also see, infra, Ch. XX. 21. For further discussion on this point, see, Chs. IV, VIII, XX, XXXIII and XL, infra. 22. State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201 : AIR 2005 SC 1646. Syn A] Constitutional Law 7 and protector of the Constitution. Judicial review has come to be regarded as an integral part of a written Constitution.23 The courts thus play a much more creative role under a written Constitution than they do under an unwritten Con- stitution. In a written Constitution, courts not only interpret ordinary laws and do justice between man and man, they also give meaning to the cold letter of the Constitution and this may, at times, vitally affect the Constitutional process in the country. What do the words used in a constitutional document actually mean? When- ever such a question arises, it is ultimately for the courts to decide. In the ulti- mate analysis, the word of the Apex Court as to what the Constitution means prevails. The role of the judiciary in the U.S.A. has been underlined in the fol- lowing words by HUGHES who later became the Supreme Court Chief Justice: “We are under a Constitution but the Constitution is what the judges say it is”. DOWLING emphasizes the judicial role in the U.S.A. by saying: “The study of Constitutional law... may be described in general terms as a study of the doc- trine of judicial review in action”.24 These statements do reveal the truth al- though they give a much more exaggerated picture of the courts’ role than what it truly is. Another significant feature of a written Constitution is the need of special pro- cedure to amend it. This procedure is more complicated and rigorous than pass- ing an ordinary law and is characterised as the constituent process as distin- guished from ordinary legislative process.25 Thus, a written Constitution is often characterised as rigid as contrasted with an unwritten Constitution, which is called flexible, as it can be changed by an ordinary legislation. It can be appreci- ated that if the written Constitution is not rigid, if it can be amended easily, and if it is not deemed to be the fundamental law of the country, then it ceases to effec- tively limit and restrain power. It is also to be noted that a Parliament functioning under a written Constitution cannot claim for itself unlimited power to do what it likes. It has become fash- ionable for politicians in India to say that Indian Parliament is sovereign, mean- ing it can do whatever it desires. Such an assertion is not realistic. Parliament is sovereign to the extent that India is a sovereign country and that it is not subject to any external power. But Indian Parliament is not sovereign if it means that it has uncontrolled power to do what it likes. Since Parliament functions under a written Constitution, it has to observe the restrictions imposed on it by the Con- stitution. It can do what the Constitution permits it to do but cannot do what the Constitution prohibits.26 Similar is the position of the Executive.27 Thus, a written Constitution may seek to put formal restraints upon the abuse of power. This may be lacking in an unwritten Constitution. All the points mentioned above will become clear as we go along through the following pages. 23. See, Ch. XL, infra. 24. DOWLING, CASES AND MATERIALS ON CONSTITUTIONAL LAW, 19 (1965). 25. See, Ch. XLI, infra. 26. See, Ch. II, Sec. M, infra. Also, Ch. XL, infra. 27. See, Ch. III, infra. 8 Introductory [Chap 1 B. CONSTITUTIONALISM Constitutionalism Syn B Besides the concept of the Constitution, there is also the all-important concept of ‘Constitutionalism’. Modern political thought draws a distinction between ‘Constitutionalism’ and ‘Constitution’. A country may have the ‘Constitution’ but not necessarily ‘Con- stitutionalism’. For example, a country with a dictatorship, where the dictator’s word is law, can be said to have a ‘Constitution’ but not ‘Constitutionalism’. The underlying difference between the two concepts is that a Constitution ought not merely to confer powers on the various organs of the government, but also seek to restrain those powers. Constitutionalism recognises the need for gov- ernment but insists upon limitations being placed upon governmental powers. Constitutionalism envisages checks and balances and putting the powers of the legislature and the executive under some restraints and not making them uncon- trolled and arbitrary. Unlimited powers jeopardise freedom of the people. As has been well said: power corrupts and absolute power corrupts absolutely. If the Constitution con- fers unrestrained power on either the legislature or the executive, it might lead to an authoritarian, oppressive government. Therefore, to preserve the basic free- doms of the individual, and to maintain his dignity and personality, the Constitu- tion should be permeated with ‘Constitutionalism’; it should have some in-built restrictions on the powers conferred by it on governmental organs. ‘Constitutionalism’ connotes in essence limited government or a limitation on government. Constitutionalism is the antithesis of arbitrary powers.28 ‘Constitu- tionalism’ recognises the need for government with powers but at the same time insists that limitations be placed on those powers. The antithesis of Constitution- alism is despotism. Unlimited power may lead to an authoritarian, oppressive, government which jeopardises the freedoms of the people. Only when the Con- stitution of a country seeks to decentralise power instead of concentrating it at one point, and also imposes other restraints and limitations thereon, does a coun- try have not only ‘constitution’ but also ‘constitutionalism’. ‘Constitutions spring from a belief in limited government’.29 According to SCHWARTZ, in the U.S.A., the word Constitution means “a written organic in- strument, under which governmental powers are both conferred and circum- scribed”. He emphasizes that “this stress upon grant and limitation of authority is fundamental”.30 As PROFESSOR VILE has remarked:31 “Western institutional theorists have concerned themselves with the prob- lems of ensuring that the exercise of governmental power, which is essential to the realisation of the values of their societies, should be controlled in order that it should not itself be destructive of the values it was intended to promote.” The idea of Constitutionalism is not new. It is embedded deeply in human thought. Many natural law philosophers have promoted this idea through their writ- 28. CHARLES H. MCILWAIN, CONSTITUTIONALISM : ANCIENT AND MODERN, 21; S.A. DE SMITH, CONSTITUTIONAL AND ADMINISTRATIVE LAW, 34 (1977); GIOVANNI SARTORI, Constitutionalism : A Preliminary Discussion, (1962) 56 Am. Pol. SC Rev., 853 29. WHEARE, op. cit., 7. 30. SCHWARTZ, CONSTITUTIONAL LAW : A TEXT BOOK, 1 (1972). 31. M.J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS, 1 Syn C] Rule of Law 9 ings. Some of these philosophers are: ACQUINAS, PAINE, LOCKE, GROTIUS AND ROUSSEAU.32 The Magna Carta (1215) strengthened the traditional view that law is supreme. As observed by ARTHUR SUTHERLAND, “The Great Charter was obviously a cherished standard, a welcome assurance that people could set some limitation on the arbitrary power of the king.”33 A written Constitution, independent judiciary with powers of judicial review, the doctrine of rule of law and separation of powers, free elections to legislature, accountable and transparent democratic government, Fundamental Rights of the people, federalism, decentralisation of power are some of the principles and norms which promote Constitutionalism in a country. C. RULE OF LAW Rule of Law Syn C A few words may be said here about the concept of Rule of Law as other ideas and concepts relating to Constitutionalism will be discussed in due course in the following pages. The doctrine of Rule of Law is ascribed to DICEY whose writing in 1885 on the British Constitution included the following three distinct though kindered ideas in Rule of Law:34 (i) Absence of Arbitrary Power : No man is above law. No man is pun- ishable except for a distinct breach of law established in an ordinary legal manner before ordinary courts. The government cannot punish any one merely by its own fiat. Persons in authority in Britain do not enjoy wide, arbitrary or discretionary powers. Dicey asserted that wherever there is discretion there is room for arbitrariness. (ii) Equality before Law : Every man, whatever his rank or condition, is sub- ject to the ordinary law and jurisdiction of the ordinary courts. No man is above law. (iii) Individual Liberties : The general principles of the British Constitu- tion, and especially the liberties of the individual, are judge-made, i.e., these are the result of judicial decisions determining the rights of pri- vate persons in particular cases brought before the courts from time to time. DICEY asserted that the above-mentioned features existed in the British Constitu- tion. The British Constitution is judge-made and the rights of the individual form part of, and pervade, the Constitution. The rights of the individuals are part of the Constitution because these are secured by the courts. The British Constitutional 32. FRIEDMANN, LEGAL THEORY; Dias and Hughes, JURISPRUDENCE; Lloyd, INTRODUCTION TO JURISPRUDENCE. 33. CONSTITUTIONALISM IN AMERICA, 13. 34. DICEY, A.V., INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, Ch. 4 (X ed.). For discussion on DICEY’S views see COSGROVE, THE RULE OF LAW, 66-113 (1980). WADE & PHILLIPS, CONSTITUTIONAL AND ADMINISTRATIVE LAW, 86 (ed, Bradley, IX Ed.); O’ HOOD PHILLIPS, CONST. AND ADM. LAW, 33-39 (1987); S.A. DE SMITH, op. cit., 35, JAIN, M.P. A TREATISE ON ADM. LAW, I, 17-23. 10 Introductory [Chap 1 Law is not the source, but the consequence, of the rights of the individuals as de- fined by the courts. DICEY was thinking of the common law freedoms, such as, personal liberty, freedom of speech, public meeting, etc. What DICEY was saying was that certain Constitutions proclaim rights but do not provide adequate means to enforce those rights. In the British Constitution, on the other hand, there is inseparable connec- tion between the means of enforcing a right and the right to be enforced. Referring in particular to the Habeas Corpus Act, DICEY said that it was “worth a hundred Constitutional articles guaranteeing individual liberty.” DICEY however accepted that there was rule of law in the U.S.A., because there the rights declared in the Constitution could be enforced, and the Constitution gave legal security to the rights declared. The third principle is peculiar to Britain. In many modern written Constitu- tions, the basic rights of the people are guaranteed in the Constitution itself. This is regarded as a better guarantee for these rights and even in Britain there exists at present strong opinion that basic rights should be guaranteed. DICEY’S thesis has been criticised by many from various angles but, the basic tenet expressed by him is that power is derived from, and is to be exercised ac- cording to law. In substance, DICEY’S emphasis, on the whole, in his enunciation of Rule of Law is on the absence of arbitrary power, and discretionary power, equality before Law, and legal protection to certain basic human rights, and these ideas remain relevant and significant in every democratic country even to-day. It is also true that dictated by the needs of practical government, a number of exceptions have been engrafted on these ideas in modern democratic countries, e.g., there is a universal growth of broad discretionary powers of the administra- tion35; administrative tribunals have grown36; the institution of preventive deten- tion has become the normal feature in many democratic countries37. Neverthe- less, the basic ideas are worth preserving and promoting. The concept of Rule of Law has been discussed in several international fo- rums.38 The effort being made is to give it a socio-legal-economic content and a supranational complexion.39 Rule of Law has no fixed or articulate connotation though the Indian courts re- fer to this phrase time and again. The broad emphasis of Rule of Law is on ab- sence of any centre of unlimited or arbitrary power in the country, on proper structurisation and control of power, absence of arbitrariness in the government. Government intervention in many daily activities of the citizens is on the increase creating a possibility of arbitrariness in State action. Rule of Law is useful as a counter to this situation, because the basic emphasis of Rule of Law is on exclu- sion of arbitrariness, lawlessness and unreasonableness on the part of the gov- ernment. 35. For a detailed discussion on Discretionary Powers, see, JAIN, A TREATISE ON INDIAN AD- MINISTRATIVE LAW, I, Chs. XVII-XIX; JAIN, CASES & MATERIALS ON INDIAN ADM. LAW, III, Ch. XVI. 36. For Tribunals, see JAIN, TREATISE, Ch. XIII; CASES, II, Ch. XII; infra, Ch. VIII. 37. Infra, Ch. XXVII. 38. INTERNATIONAL COMMISSION OF JURISTS, DELHI DECLARATION, 1959. 39. WADE & PHILLIPS, 93-5. Syn C] Rule of Law 11 Rule of Law does not mean rule according to statutory law pure and simple, because such a law may itself be harsh, inequitable, discriminatory or unjust. Rule of law connotes some higher kind of law which is reasonable just and non- discriminatory. Rule of Law to-day envisages not arbitrary power but controlled power. Constitutional values, such as constitutionalism, absence of arbitrary power in the government, liberty of the people, an independent judiciary etc. are imbibed in the concept of Rule of Law. The Indian Constitution by and large seeks to promote Rule of Law through many of its provisions. For example, Parliament and State Legislatures are democratically elected on the basis of adult suffrage.40 The Constitution makes adequate provisions guaranteeing independence of the judiciary.41 Judicial review has been guaranteed through several constitutional provisions.42 The Supreme Court has characterised judicial review as a “basic feature of the Constitution”43 Art. 14 of the Constitution guarantees right to equality before law.44 This Con- stitutional provision has now assumed great significance as it is used to control administrative powers lest they should become arbitrary.45 The Supreme Court has invoked the Rule of Law several times in its pro- nouncements to emphasize upon certain Constitutional values and principles. For example, in Bachan Singh,46 Justice BHAGWATI has emphasized that Rule of Law excludes arbitrariness and unreasonableness. To ensure this, he has suggested that it is necessary to have a democratic legislature to make laws, but its power should not be unfettered, and that there should be an independ- ent judiciary to protect the citizen against the excesses of executive and leg- islative power. In P. Sambamurthy v. State of Andhra Pradesh,47 the Supreme Court has de- clared a provision authorising the executive to interfere with tribunal justice as unconstitutional characterising it as “violative of the rule of law which is clearly a basic and essential feature of the Constitution.”48 In Wadhwa,49 the Supreme Court has again invoked the Rule of Law concept to decry too frequent use by a State Government of its power to issue ordinances as a substitute for legislation by the Legislature.50 In Yusuf Khan v. Manohar Joshi,51 the Supreme Court has laid down the proposition that it is the duty of the state to preserve and protect the law and the 40. Infra, Chs. II, VI and XIX. 41. Infra, Chs. IV and VIII. 42. Infra. Chs. IV, VIII, XXIII, XL and XL. 43. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 : (1980) 2 SCC 591. For discussion on the doctrine of Fundamental Features of the Constitution, see, infra, Ch. XLI. 44. Infra, Ch. XXI. 45. Ibid. Also see, M.P. JAIN, A TREATISE OF ADMINISTRATIVE LAW, I, Ch. XVIII; M.P. JAIN, INDIAN ADM. LAW—CASES & MATERIALS, II, Ch. XV. 46. Bachan Singh v. State of Punjab, AIR 1982 SC 1325 : (1982) 3 SCC 24; infra, Ch. XXVI. 47. AIR 1987 SC 663 : (1987) 1 SCC 362. 48. Infra, Ch. IX. 49. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579 : (1987) 1 SCC 378; infra, Ch. III, Sec. D(ii)(d) and Ch. VII, Sec. D(ii)(c). 50. On Ordinance-Making Power, see, infra, Ch. III and Ch. VII. 51. (1999) SCC (Cri) 577. 12 Introductory [Chap 1 Constitution and that it cannot permit any violent act which may negate the rule of law. The two great values which emanate from the concept of Rule of law in mod- ern times are: (1) no arbitrary government; and (2) upholding individual liberty. Emphasizing upon these values, KHANNA, J., observed in A.D.M. Jabalpur v. S. Shukla.52 “Rule of law is the antithesis of arbitrariness...Rule of law is now the ac- cepted norm of all civilised societies...Everywhere it is identified with the lib- erty of the individual. It seeks to maintain a balance between the opposing no- tions of individual liberty and public order. In every state the problem arises of reconciling human rights with the requirements of public interest. Such harmo- nizing can only be attained by the existence of independent courts which can hold the balance between citizen and the state and compel governments to con- form to the law”. A significant derivative from ‘Rule of Law’ is judicial review. Judicial review is an essential part of Rule of Law. Judicial review involves determination not only of the constitutionality of the law but also of the validity of administrative action. The actions of the state public authorities and bureaucracy are all subject to judicial review; they are thus all accountable to the courts for the legality of their actions. In India, so much importance is given to judicial review that it has been characterised as the ‘basic feature’ of the Constitution which cannot be done away with even by the exercise of the constituent power.53 D. HISTORICAL PERSPECTIVE Historical Perspective Syn D The Constitution of India, the precursor of the new Indian renaissance, became effective on January 26, 1950.54 Before the advent of the Constitution, India was governed under the Government of India Act, 1935, which became effective in 1937. India was then a part of the British Empire; sovereignty of the British Crown prevailed over the country and it was in the exercise of this sovereignty that the British Parliament had enacted the Act of 1935. Only two major features of the Act need be mentioned here. First, the Act con- ferred only a very limited right of self-government on the Indians. The executive authority in a Province was vested in the Governor appointed by the Crown. He was to act ordinarily on the advice of the Ministers who were to be responsible to the Provincial Legislature which was elected on a limited franchise. But the Gov- ernor could exercise certain functions ‘in his discretion’ or ‘individual judgment’ in which case he was not bound by the ministerial advice and was subject to the control of the Governor-General. 52. AIR 1976 SC 1207, at 1254, 1263 : (1976) 2 SCC 521; see, Ch. XXXIII, Sec. F. 53. State of Bihar v. Subhash Singh, AIR 1997 SC 1390 : (1997) 4 SCC 430. Also see, infra, Ch. XLI. 54. However, a few provisions of the Constitution, viz., Arts. 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392, 393 and 394, came into force on November 26, 1949. Syn E] Salient Features of the Indian Constitution 13 The executive authority at the Centre was vested in the Governor-General ap- pointed by the Crown. Though ordinarily the Governor-General would act on ministerial advice, he could discharge certain functions ‘in his discretion’ or ‘in- dividual judgment’ in which case he was not bound by ministerial advice but was subject to the control of the Secretary of State for India who was a member of the British Cabinet. Defence and external affairs, among others, fell in this category. Secondly, the Act of 1935 sought to change the character of the Indian Govern- ment from unitary to federal. The Indian Federation was to consist of the Provinces in which British India was divided, and the States under the native princes. The federal scheme, however, never became fully operative as the princes did not join the Federation; the federal concept was implemented partially in so far as the relationship between the Centre and the Provinces was ordered on this basis. Further, the ministerial form of government, as envisaged by the Act of 1935, could not also be introduced at the Centre which continued to function under the Government of India Act, 1919. Accordingly, the Central Government consisted of the Governor-General and a nominated Executive Council. In this structure, the Governor-General occupied the key position as he could overrule his Council on any point if in his opinion the safety, tranquility or interests of British India were materially affected.55 In short, before 1947, the effective power and control over the Indian Admini- stration lay with the Secretary of State, the Governor-General and the Governors; Indian participation in the governmental process was minimal and naturally the Indians never felt reconciled to such a dispensation. There thus arose an insistent demand for independence which resulted in the setting up of a Constituent Assembly for drafting a Constitution for a free India. The Assembly formally commenced its task of Constitution-making from De- cember 9, 1946, when it held its first meeting but could not make much headway because of the political impasse arising from a lack of understanding between the two major political parties, the Indian National Congress and the Muslim League. The political deadlock was resolved in 1947 when the British Parliament enacted the Indian Independence Act which partitioned the country into two independent units—India and Pakistan. The Constituent Assembly then embarked on its work in right earnest, and after three years’ hard labour finalised and adopted the Con- stitution of India on November 26, 1949. E. SALIENT FEATURES OF THE INDIAN CONSTITUTION (a) MODERN CONSTITUTION Salient Features of the Indian Constitution Syn E The fact that the Indian Constitution was drafted in the mid-twentieth century gave an advantage to its makers in so far as they could take cognisance of the various constitutional processes operating in different countries of the world and thus draw upon a rich fund of human experience, wisdom, heritage and traditions in the area of governmental process in order to fashion a system suited to the 55. For details see, KEITH, CONSTITUTIONAL HISTORY OF INDIA, 331-357 (1937); GLEDHILL, THE REPUBLIC OF INDIA, 17-42 (1964); M. RAMASWAMY, CONSTITUTIONAL DEVELOPMENTS IN INDIA, (1955) Stanford Law Review, 326. 14 Introductory [Chap 1 political, social and economic conditions in India.56 In the end result, the Indian Constitution has turned out to be a very interesting and unique document. One could discern in it the impact of several Constitutions. As for instance, the Indian Federalism is influenced by the American, Canadian and Australian Fed- eralism. Fundamental Rights in India owe a great deal to the American Bill of Rights; the process of Constitutional amendment adopted in India is a modified version of the American system. The influence of the British Constitutional Law, theories and practices on the Indian Constitution is quite pervasive. As for example, the parliamentary form of government in India closely follows the British model in substance; the system of prerogative writs which plays a crucial role in protecting peoples’ legal rights and ensuring judicial control over administrative action is Britain’s contribution to India. Australia’s experiences have been especially useful for ordering the Cen- tre-State financial relationship, and for promoting the concept of freedom of trade and commerce in the country. Inspiration has come from the Irish Constitution in the shaping of the Directive Principles of State Policy. The Government of India Act, 1935, which preceded the Indian Constitution, has furnished not only administrative details, but also the verbatim language of many provisions of the Constitution. It will, however, be wrong to suppose that the Indian Constitution is just a car- bon copy of other Constitutions and contains nothing new and original. While adopting some of the principles and institutions developed in other democratic and federal countries, it yet strikes new paths, new approaches and patterns, in several directions. It makes bold departures in many respects from the established Constitutional norms and introduces many innovations. For example, in the area of Centre-State relationship, with a view to achieve the twin objectives of pro- moting the unity of India and reducing rigidity inherent in a federal system, the Indian Constitution makes several provisions which are original in conception as nothing parallel to these is to be found in any other federal Constitution and, to this extent, it makes a distinct contribution to the development of theories and practices of federalism in general. (b) WRITTEN CONSTITUTION India’s Constitution is a lengthy, elaborate and detailed document. Originally it consisted of 395 Articles arranged under 22 Parts and eight Schedules. Today, after many amendments, it has 441 Articles and 12 Schedules. It is probably the longest of the organic laws now extant in the world. 56. The Draft Constitution was criticized on the floor of the Constituent Assembly on the ground that most of it had been borrowed from other constitutions and that it could claim very little originality. In reply to this, AMBEDKAR observed: “One likes to ask whether there can be anything new in a Constitution framed at this hour in the history of the world. More than hundred years have rolled over when the first written Constitution was drafted. It has been followed by many other countries reducing their Con- stitutions to writing. What the scope of a Constitution should be has long been settled. Simi- larly, what are the fundamentals of a Constitution are recognised all over the world. Given these facts, all Constitutions in their main provisions must look similar. The only new things, if there can be any, in a Constitution framed so late in the day are the variations made to re- move the faults and to accommodate it to the needs of the country.” See, VII CONSTITUENT ASSEMBLY DEBATES (hereinafter cited as CAD), 35-56. Syn E] Salient Features of the Indian Constitution 15 Several reasons contributed to its prolixity. First, the Constitution deals with the organisation and structure not only of the Central Government but also of the States. Secondly, in a federal Constitution, Centre-State relationship is a matter of crucial importance. While other federal Constitutions have only skeletal provi- sions on this matter, the Indian Constitution has detailed norms. Thirdly, the Constitution has reduced to writing many unwritten conventions of the British Constitution, as for example, the principle of collective responsibility of the Ministers, parliamentary procedure, etc. Fourthly, there exist various communities and groups in India. To remove mutual distrust among them, it was felt necessary to include in the Constitution detailed provisions on Fundamental Rights, safeguards to minorities, Scheduled Tribes, Scheduled Castes and Backward Classes. Fifthly, to ensure that the future India be based on the concept of social wel- fare, the Constitution includes Directive Principles of State Policy. Lastly, the Constitution contains not only the fundamental principles of govern- ance but also many administrative details such as the provisions regarding citizen- ship, official language, government services, electoral machinery, etc. In other Con- stitutions, these matters are usually left to be regulated by the ordinary law of the land. The framers of the Indian Constitution, however, felt that unless these provi- sions were contained in the Constitution, the smooth and efficient working of the Constitution and the democratic process in the country might be jeopardised. The form of administration has a close relation with the form of the Constitu- tion, and the former must be appropriate to, and in the same sense as, the latter. It is quite possible to pervert the Constitutional mechanism without changing its form by merely changing the form of the administration and making it inconsis- tent with, and opposed to, the spirit of the Constitution. Since India was emerging as an independent country after a long spell of foreign rule, the country lacked democratic values. The Constitution-makers, therefore, thought it prudent not to take unnecessary risks, and incorporate in the Constitution itself the form of ad- ministration as well, instead of leaving it to the legislature, so that the whole mechanism may become viable. It would, however, be wrong to suppose that the Indian Constitution with all its prolixity finally settles all problems of government. It leaves a number of matters to be taken care of by ordinary legislation. It also provides scope, though not so much as in Britain, for the growth and development of conventions.57 Thus, the relationship between the P...