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Significance Of Rule Of Law In Upholding The Constitutional Orders And Its Impact On Individual Liberties
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SIGNIFICANCE
OF RULE OF LAW IN UPHOLDING THE CONSTITUTIONAL ORDERS AND ITS IMPACT ON
INDIVIDUAL LIBERTIES
AUTHORED BY-TEJASVA GULATI
ABSTRACT
In
this paper firstly we will go through the history of Rule of Law and we will
see that how it came to the India, and what is the current scenario in today’s
time. Rule of Law while an individual speaks it, the scope of it seems really
small, but that’s exactly not the scenario. To talk more about the topic we
will discuss our topic with the help of relevant articles and case laws
provided in the Indian Constitution and also we will discuss that how it
reflects it’s impact in the matter of individual liberties, as individual
liberties previously faced many difficulties and providing justice to them is
also one of the major duties of the government, while upholding the dignity of basic
structure as well.
INTRODUCTION:
So
now, before we understand and go through the full details of or topic , it’s
important that we first shift our focus towards in understanding the definition
of Law, as it will be better to say that Law itself is a very vast term and if
we just simply define law by one single definition ,it won’t be fair. As many
of the people when asked about, ‘what law is’ they just simply answer that Law
is nothing but a set of rules and regulations made by the government for the
sake of their country, this is the most common definition of Law that mostly
people say , while different authors after sharing their own experiences have
tried to built their own definitions of Law, like according to [1]Salmond,
Law is the set of rules which is made by the government for the well being of
the society. Now if we carefully observe this definition , it can be found out
that there is some kind of rigidity in this definition of Law, another
definition which was made by [2]John
Austin, that says Law is the command of sovereign backed by the sanction, which
basically means that Law is order of the sovereign governed by the supreme
authority , now here in this definition of Law the question is raised about
that till what limit can the Law be allowed to use its freedom , there must be
some boundaries. So Salmond’s definition and Austin’s definition of Law is
basically opposite to each other, one is saying about the rigidity and the
other is saying about freedom, but what if we just combine these 2 definitions,
then it can be said as that Law is basically the freedom of the society , with
certain rules and regulations on it. Now this is something more rational than
before as Law works both on society as well as logic.
Now
that we have got an understanding about what Law is , it will be more easy to
learn about the concept of Rule of Law. In simple words, it means that how the
procedure of law should be applied on everyone and that procedure must be just,
fair and reasonable. Now coming to our topic of which the 1st part
speaks about the importance of Rule of Law on Indian Constitution. Before
talking on this we must reflect our thoughts that how the Rule of Law was
adopted by our country and also the history of Rule of Law.
HISTORY
OF RULE OF LAW:
irstly
we will talk about the origin of Rule of Law which was introduced by [3]Sir
Edward Coke in the year 1628 , where in England he was the first person to go against the
rule that is popularly known as, ‘King
is above all’. While expressing his views , he said there must not be any kind
of Law which forms any kind of colonization and also said that everyone
including the King must be treated equally before Law and there also must not
be any kind of arbitrariness in the Government. Hence by this the concept of
Rule of Law was introduced .
After
Sir Edward Coke there was the entry of [4]Sir
Albert Venn Dicey (A.V. Dicey) who further elaborated his thoughts on the topic
of Rule of Law. For this he also wrote a book popularly known as , ‘An
Introduction to the Study of the Law of the Constitution’ in the year 1885 in
which he majorly relied on the three major principles of the topic that are as
follows:-
1.
[5]Supremacy
of the Law- Basically in his principle of Dicey explained that in this world
there must not be any kind of arbitrariness in the system, by stating the term
arbitrariness he meant that for punishing a man , there must be a procedure
established by Law which states that the Law must be just, fair and reasonable
and also he explained that no authority is greater than Law and for the sake of
society , people must accept that Law is Supreme.
2.
[6]Equality
before Law- In this principle, Dicey explained that there must not be any kind
of wrong towards any person, irrespective of
the religion , race and cast that he belongs and irrespective of what’s
his gender. Everyone must be treated equally before Law and there must be same
sets of rules that every person has to follow and there must not be any person
who should get any kind of special
treatment under the supervision of Law.
3.
[7]Independent
Judiciary – While explaining his third principle, Dicey relied his thoughts on
the functioning of the Judiciary. He said that in the working of the
constitution Judiciary plays a major role in it. He further explained that there
must always be an Independent Judiciary means they are free to make their own
decisions, can enforce laws and even overrule the decisions made by the
Legislative and the Executive that are not compatible with the functioning of
the society. Also, Article 13 of our constitution defines about Independent
Judiciary and about its review.
These
were the three major principles that explained the fundamental nature about how
a Law must be and accordingly the state must work under it for the development
of Society.
Now
that we have talked about the origin of Rule of Law we must also talk about the
Indian History of it.
INDIAN
HISTORY OF RULE OF LAW.
Now
basically if we talk about the concept of Rule of Law and it’s principles it
was originally borrowed from England and later we adopted it, but India way
before this concept has it’s own meanings of Law. Firstly, [8]India
is country that follow traditions , customs , rituals and also ethnicity, so if
we talk about the relation between Law and India , India has it’s own
precedents. So as I was saying that India is a country that believes in
traditions , so rule of Law in India has originated from the concept of , [9]‘Dharma’
that was already existing way before than the concept of rule of law, the
concept of Dharma is really simple and even today if somebody explore our
country , they can see that the concept of Dharma is known to every Indian
Child, basically by saying this what we mean is , that since our childhood we
are being thought to worship GOD , i.e [10]Brahma
ji, Vishnu ji and Shiva ji as nothing is above him. The concept of Dharma
basically leads someone in the good direction of his life by showing him the
path of peace and discipline. This concept of Dharma is derived from the great
Hindu Mythology and there are a lot of things in it , that people all over the
world rely on those things to lead their life.
RULE
OF LAW IN INDIAN CONSTITUTION.
Now as we got an idea about the
history of Rule of Law, we will now discuss about our our topic which talks
about the Rule of the Law in upholding the Constitution and it’s impact on
individual liberties. Now, Rule of Law is such a wide term that defining it
can’t be defined in the practical field , but it can be witnessed. [11]Article
14 of our Indian Constitution which says about equality before Law defines the
concept of Rule of Law, but all the other articles are also covered under the
ambit of Rule of Law, such that each and every law made till now in India
covers the concept of Rule of Law. Each and every article of our constitution
is made for the sake of people only. In fact [12]Article
32 of our Indian Constitution which talks about constitutional remedies highlights the issues of individual liberties in
which individuals are allowed to move to the Supreme Court in the case of
violation of their fundamental Rights. In our country there are laws for
everyone starting from the person who is a victim and coming to the person who
has committed the wrong. If we talk about the significance of Rule of Law in
our Constitution , it has played such an important role that the concepts such
as [13]’Judicial
Review, Separation of Powers, Fundamental Rights , Directive Principles of
State Policy, Fundamental Duties and the system of checks and balances’ are all
covered under the ambit of Rule of Law. The Preamble which is the
most important part of our Indian constitution and in the case of [14]Keshavananda
Bharati v State of Kerala, the supreme court observed that Rule of law is the
one of the most important feature under the Doctrine of Basic Structure. Also
in this case , Supreme court also observed that Preamble is the part of Indian
Constitution by overruling the [15]Berubari
case. The case of Keshavananda Bharati is so important because the Supreme
court laid down such principles which followed the basic structure doctrine and
these principles are still being used today for the development of our country.
Also, Article 14 of the Indian Constitution which talks about equality before
law as mentioned in one of the Dicey’s principles too, reflects the concept of
Rule of Law. For better understanding of it lets discuss some important cases
of it.
1.
[16]State
of West Bengal v Anwar Ali Sarkar(1952)
So
, basically what happened in this case was that there was this act known as
,The west Bengal special offences acts in the year 1950, and this act mentioned
about the availability of special courts in the case of some certain offenses.
Section 3 of this Act allowed the state government to enable the establishment
of Special Courts. Section 5 of this Act, mentioned that in the cases of such
certain offenses the proceedings will be heard in these special courts, rather
than the normal procedure. The other party in this case , when received an
order from the special court, they filed a complaint against it and the matter
went in the Supreme Court. The SC in this matter , hence declared this act
unconstitutional as it as going against the normal procedure , and the SC said
that it also violates Article 14 of the Constitution.
2.
[17]EP
Royappa v State of Tamil Nadu(1974)
So,
basically the petitioner in this case was a member of the government authority
and somewhere in the year 1969 what happened was that the seat of the Chief
Secretary fell vacant and hence the petitioner i.e. Ep royappa was appointed
for it after the ord+er of the Chief Minister, but this post appointed to him
was only for a temporary period of time. After this the another post of Special
Duty of sales tax department was created which was also of the same level to
that of the post of Chief Secretary, and accordingly the petitioner was
appointed for it , but he didn’t joined that post. After he came back , the
post of Chief Secretary was appointed to the officer junior than the petitioner
, and accordingly he filed a writ petition under Article 32 of the
constitution. The Supreme court in this case , while giving their judgement
said that there was no bad intention of the state to make such changes, but
observed that giving the post of Special Duty equal status as to the post of
Chief Secretary and appointing a junior for the post of Chief Secretary who is
less experienced than the petitioner was arbitrary and hence violative towards
Article 14 and Article 16 of Indian Constitution. This case also laid down the
test of arbitrariness.
3.
[18]National
Legal Services Authority v Union OF India(2014)
So,
basically this case was regarding the rights of the transgender community, and
as know this community back then faced a lot of problems regarding their
establishment in the society. In this the SC while giving their judgement
relied on various sources and said that Transgender Community is now being
recognized as the third gender and they now will be given equal opportunities
just like the other genders , as depriving them of the equal status in the
society will lead to a violation of Article 14, Article 15 ,Article 16 and 21
of the Indian Constitution. Also, I would like to tell that these transgenders
are way before recognized by our great Hindu Mythology, like the best example
of it I can present here is of Shikhandi from Mahabharat, the great warrior who
actually killed Bhishma along with the help of Arjuna.
4.
[19]Javed
v State of Haryana(2001)
In
this case , there was an act known as Haryana Panchayati Raj act, and what this
act told was that if any couple has more than 2 children in the state, then
that particular couple would be disqualified from having the status in the
panchayat, however there was an exception that the couples already having more
than 2 children before the commencement, then the effect of the status in the
panchayat would not fall on them, Hence regarding the constitutionality of this
act a petition was filed before the Supreme Court.
The
Supreme court while giving their judgement, observed that the provisions
regarding this act was not arbitrary and hence fair and also observed there the
Article 14 of the Indian constitution limits the concept of class legislation
and not the test of reasonable classification.
5.[20]Air
India v Nargesh Mirza(1981)
In
this case an airline company known as Air India made some rules and regulations
regarding the retirement of air hostesses
that majorly carried three conditions that are as follows-
1,
Once they turn the age of 35
2.
Once they get pregnant
3.
If the women working for them got married within the time of 4 years.
If
any of these three conditions were fulfilled , women were considered to be as
retired and the same rules and regulations was not applicable for men working
over there and accordingly a petition was filed for the same in the supreme
court. The Supreme Court while giving their judgement said that the actions
taken by the Air India were completely discriminatory and was violative of
Article 14,15 and 16 of the Indian Constitution.
6.
[21]Joseph
Shine v UOI(2018)
So
basically this case is related with the issue regarding extramarital affairs
and what happened in this case was that a man named Joseph Shined filed a writ
petition under Article 32 challenging the constitutional validity of Section
497 of IPC which says about the offence of adultery and along with that section
198(2) of CRPC was also included. In this case the arguments of the petitioner
contended that this offence was arbitrary and discriminatory in nature as it
only provides men with the right to file a complaint, if they find their wife
got engaged in the extramarital affairs and the women in this case, have no
right to file complaint against men if they found their husband getting
involved with another women. The Supreme court in this case hence ruled that
this act was unconstitutional as it was arbitrary and was completely biased
towards men and hence violative of Article 14 and 15 of the Indian Constitution.
Now
as we saw, that in all these cases, how the decisions were taken by the Supreme
court and how people of India are also
allowed to approach the Supreme Court in case if they face some difficulty,
This is what explains the fundamentality of Rule of Law and the ways it adopts
to maintain the structure of constitution and at the same time giving the
rights and duties to the citizens of the country to enjoy individual liberty as
well. Coming to these topics we will also cover some cases regarding Article 19
and Article 21 of the Indian Constitution.
1.
[22]Romesh
Thappar v State of Madras(1950)
So
basically in this case, the petitioner did not like Pandit Jawaharlal Nehru and
his policies, so he wrote and published the few articles about him, in a
magazine called as Crossroads, So one day the state government of madras banned
the spreading of the magazine so that readers could not the ideas and thoughts
reflected by the petitioner about Pandit Nehru. The issue ultimately showcased
it’s way in the front of Supreme Court of India and after hearing the complete
matter, the Supreme Court ruled in the favour of Petitioner saying that banning
the spreading of the magazines violates the fundamental right of the petitioner
and is against Article 19 of the Indian Constitution which talks about the
freedom of speech and expression.
2.
[23]Brij
Bhushan Sharma v State of Delhi(1950)
In
this case there was this petitioner known as Brij Bhushan Sharama who published
some article that mentioned about the criticizing of the Indian Government and
he was a news journalist. In response to that the state government found that
the article contains bad comments about the Indian Government and hence charged
the petitioner liable under the offense of sedition, while the petitioner in
his arguments presented that it was his right to freedom of speech and
expression and hence challenged the constitutionality of the said act. The case
hence was presented before the Supreme Court and Supreme Court while giving
their judgement ruled in the favour of Brij Bhushan sharma saying that freedom
of press also includes the freedom of speech and expression and also told that
restrictions must only be there if there is really a danger towards the
society.
3.
[24]Bombay
Art International v Om Pal Singh(1996)
This
case is also popularly known as the Phoolan Devi case. She is a well known
identity in today’s times also. Her story was that when she was a child she
grew up in poverty as her family was not very financially well at that time and
also she was a rape victim, she was raped multiple times by the people of her
village and then later when she grew old , she joined some gang and later then
started building her status and she also killed the people who raped her ,
eventually she became the member of the parliament and till now she is being
respected by the society. There was this film named as Bandit Queen which was
based on the full story of Phoolan devi, and in that movie , multiple scenes
were there which showcased the act of rape and sexual harassment as well,
regarding this a petition was filed in the supreme court and the issue was
framed regarding the obscenity in this case. After hearing the arguments of
both the sides the supreme court in this cased ruled in the favour of the movie
bandit queen and said that the movie reflected the work of artistic freedom and
the nudity which was reflected in that movie, doesn’t actually gave way to the
obscenity, as supreme court said that while seeing that movie no person will
have the feelings of lust, but may have other opinions.
4.
[25]Ak
Gopalan v state of madras(1950)
In
this case, there was this person whose name was Ak gopalan and he was the
communist leader and he said things which mainly opposed the ideologies of the
govt, so one day the madras govt brought him to jail because of his actions and
after this when some time got passed and he was already in jail at that time, a
new order was drafted against him under the prevention detention act which was
for further punishment, so Ak Gopalan in response approached to the supreme
court , under Article 32 of the constitution challenging the constitutionality
of this act, and the issues were framed regarding the violation of Article 19
and Article 21 in this case. The judges while giving their judgement denied the
arguments given by the petitioner in this case and limited the scope of Article
19 and 21 as well and later said that personal liberty can be given under
physical1 capacity only and freedom under Article 19 was only for free people
in India and not the ones who are suffering for their actions. This judgement
of Supreme Court created a question mark for the matters regarding individual
liberties in India and also regarding Rule of Law.
So
in this case there was this women, popularly known as Maneka Gandhi and she
then got her passport registered under the Passport Act of 1967. After some
days she received a letter of order from the Passport department and in that
letter, an order has been issued against her for the seizure of her Passport.
After this happened, she wrote a letter to the Passport Department, asking to
know for the vali reasons for her Passport Seizure. After some days she got a
reply , that the reason for the seizure of her passport is because of public
safety and in that letter as she demanded the valid list of reasons, that was
not provided. She then filed a writ petition under Article 32 and approached
the Supreme Court of India regarding the constitutionality of the act and the
violation of her fundamental rights under Article 14 ,19 and 21. After hearing
to both the sides, judges while giving their judgement ruled in the favor of
Maneka Gandhi and said that Article 21 defines the term that says about,
‘procedure established by law’ and also said that the scope of Article 21 can’t
get isolated and have to be used in a wider perspective , also referring to
Article 19 the judges said that the freedom in India has the broad meaning and
it cant be defined for the limited number of audience only, and hence by saying
they overruled the case of AK Gopalan v state of Madras.
6.
[27]KS
Puttaswamy v Union of India(2017)
In
this case , there was an retired high court judge whose name is KS Puttaswamy
and he then filed a writ petition under Article 32 of the Constitution and
raised an issue regarding privacy in India because of government guidelines
that had mandated the Aadhaar scheme in India. The main issue that was
presented before the Supreme Court regarding this problem was to make Privacy a
fundamental right under Article 21 of the Indian Constitution. The Supreme
Court here while giving the judgement in this case, ruled in the favor of Mr.
Puttaswamy and said that Privacy in India is a big concern and it should be
added as a fundamental right under Article 21 of the Indian Constitution. Hence
by this judgement, all the previous judgements like the [28]Kharak
Singh case and the [29]MP
Sharma case. This case is often referred to as the landmark judgment under
Article 21 of the Constitution.
Now
the every article under Indian Constitution, defines the concept of Rule of Law
and it’s impact on Individual Liberties , but the reason that we have
taken Article 14, 19 and 21 is that
these three is popularly known as to form the Golden Triangle of the
Constitution , which basically defines the core concept of Rule of Law and also
ensures the people that it will not lead to violation of their basic rights and
duties.
RESEARCH
METHADOLOGY
During
the writing of this paper , we have gone through the various research materials
to understand the topic and also gone through the various articles and cases of
the Indian Constitution, and on the basis of that the paper has showcased the
key factors of our topic.
CONCLUSION
Now
that we have talked about the topic, we have got a brief idea about it that how
the governance of Law takes place in our country. Currently if we look at the
current scenario, we can observe that Indian Economy is growing in a very good
rate, and this indicates that the government of India is taking their efforts
to improve the overall conditions of our country and as we generally talk about
the Laws in India, we can observe that for every possible act of a person,
there is a Law to talk about and if the people of India are not justified by
it, then there are amendments that take place in the overall procedure. So by
this we can say that Rule of Law in India has played it’s role both in
upholding the constitutional orders and also have given the space towards
individual liberties.
[3] Williams, I. (2012). The Tudor Genesis of Edward Coke’s
Immemorial Common Law. The Sixteenth Century Journal, 43(1),
103–123. http://www.jstor.org/stable/23210757
[5] Supra
footnote 4
[6]
Supra footnote 4
[14] AIR 1973 SC 1461
[15] AIR 1960 SC 845
[16] AIR 1952 SC 75
[17] 1974 AIR 555
[20] AIR 1981 SC 1829
Article Information
Significance Of Rule Of Law In Upholding The Constitutional Orders And Its Impact On Individual Liberties
Authors: TEJASVA GULATI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/17
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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