India being one of the most powerful democratic nation in the world, guided by the Constitution, which declares it to be Secular, Socialist, Republic and at the same time we are governed by Rule of Law. Law is the supreme authority which confers rights to its citizens and under which most important is the “Equality before the law” and “Equal protection of Law”.
The constitution of India has been made the supreme law of the country and other laws are required to be in conformity with it. Any law which is found in violation of any provision of the constitution, particularly, the fundamental rights, is declared void.
The Indian constitution also incorporate the first principle of Dicey i.e. equality before law and equal protection of laws. The Rule of Law embodied in Article 14 is the “basic feature” of the Indian Constitution and hence it cannot be destroyed even by an amendment of the Constitution under Article 368 of the Constitution. In India, the meaning of Rule of Law has been applied differently in different cases by the judiciary. Before moving further, dimensions of Article 14 of the Constitution of India is very vital to discuss.
Both positive as well as negative discrimination of this Article came and Supreme Court and various High Courts from time to time have summarized their decisions in different cases. Dicey’s rule of law has been adopted and incorporated in the Indian Constitution. The Preamble itself enunciates the ideals of justice, liberty and equality. In chapter III of the Constitution, these concepts are enshrined as fundamental rights and are thus made enforceable.
The Constitution is supreme and all the three organs of the government, viz. legislature, executive and judiciary are subordinate to and have to act in accordance with it. The principle of judicial review is embodied in the Constitution and subjects can approach the High Courts and Supreme Court for the enforcement of fundamental rights guaranteed under Indian Constitution. No person shall be deprived of his life or personal liberty except according to the procedure established by law or of his property save by the authority of law.
The government and the public officals are also not above the law. They are also subject to the jurisdiction of ordinary courts of law and for similar wrongs are to be tried and punished similarly. They are not immune from the ordinary legal process nor is any provision made regarding separate administration courts and tribunals. In public services too, the doctrine of equality is accepted. Thus, it appears that the doctrine of rule of law is embodied in the Indian Constitution, and is treated as the basic structure of the Constitution.
The guarantee of equality before the law is an aspect of what Dicey calls the rule of law in England. Rule of Law has many different facets and because of its indiscriminate promiscuous use, has meant different things to different people at different times. In simpler terms, this means that no man is above law and that every person, whatever be his rank or condition, is subject to the jurisdiction of ordinary courts.
Also, it requires that no person shall be subjected to harsh, uncivilized or discriminatory treatment even when the object is the securing of the paramount exigencies of law and order. It is the basic rule of governance for any enlightened civilized society’s effort as it is not merely a legalistic slogan. It is a kind of commitment to certain traditional principles and values. Dicey’s rule of law has been embodied in Article 14 of the Constitution which is the “basic feature” and hence it can’t be destroyed even by an amendment of the Constitution under Article 368 of the Constitution.
RULE OF LAW: MEANING Dicey has included three distinct though kindered ideas in Rule of Law.
1.Supremacy of law
Explaining the first principle, Dicey states that rule of law means that the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power.
Acc. To him, the Englishmen were ruled by the law and by the law alone; a man with us may be punished for a breach of law, but can be punished for nothing else. Simply it means the absolute supremacy of law as opposed to the arbitrary power of the Government. If there is cogent evidence of commission of a grave crime for which an ordinary citizen would be arrested, the law cannot be differently applied depending on the status of the person. However high you may be, law is above you.
2.Equality before law-
It means that subjection of all classes to the ordinary law of the land administered by ordinary law courts. This means that no one is above law with the sole exception of the monarch who can do no wrong. Dicey, explained this principle of the rule of law as there must be equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts.
Acc. To him, in England, all persons were subject to one and the same law, and there were no extraordinary tribunals or special courts for officers of the government and the other authorities. Though he criticized the French legal system of droit administratif in which there were separate Administrative Tribunals for deciding cases between the officials of the State and the Citizens. Acc. To him, exemption of the civil servants from the jurisdiction of the ordinary courts of law and providing them with special tribunals was the negation of equality.
The Constution has further taken care to provide us with bulwark that guards the freedom of an average citizen, it is the law court. Courts of justice are more important than even the military to guard the freedom of the country and of the individual by enforcing adherence to the rule of law. In the case of, State of West Bengal v. Anwar Ali Sarkar , it was clearly held that “ all persons shall be treated alike both in the privileges conferred and liabilities imposed by the laws. Equal laws should be applied to all in the same situations, and there should be no discrimination between one person and another.”
Thus, the simple rule is that the like should be treated alike and not that unlike should be treated alike. Also, the Supreme Court in Basheshar Nath’s case in 1959 observed that the principle of the Rule of Law was an essential element of the guarantee of equality.
3.Judge made Constitution-
We may consider the position prevailing in India vis-à-vis the third principle i.e., the doctrine of Judge made Constitution or predomination of legal spirit. Until recently, this principle was being studied and examined in context of interpreting the provisions of the Constitution and in Chief Settlement Commr. v Om Prakash , the Supreme Court observed:
“In our constitutional system, the central and most characteristic feature is the concept of of rule of law, which means, in the present context, the authority of the law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved party or person brings the appropriate action in the competent court.
The Rule of Law rejects the conception of the dual state in which the governmental action is placed in a privileged position of immunity from contrl by law. Such a notion is foreign to our basic constitutional concept.” (emphasis supplied)
The First and the second aspects apply to Indian system but the third aspect of Dicey’s rule of law does not apply to Indian system as the source of rights of Individuals is the Constitution of India. The Constitution is the supreme Law of the land and all laws passed by the legislature must be consistent with the provisions of the Constitution. Equal protection of the laws:
The guarantee of equal protection of laws is similar to one embodied in the 14th Amendment to the American Constitution. This has been interpreted to mean subjection to equal law, applying to all in the same circumstances.
In Raghubir Singh v. State of Haryana the court held that, “ The rule of law imposes a duty upon the State to take special measures to prevent and punish brutality by police methodology. Exceptions to the Rule of Law:
This rule of equality is, however not an absolute rule and there are number of exceptions to it. (i)“equality before the law” does not mean the ‘powers of the private citizens are the same as the powers of the public officials’. Thus, a police officer has the power to arrest while no other private person has this power. Rule of Law explicitly doesn’t require that these powers should be clearly defined by the law and that abuse of authority by public officers must be punished by ordinary courts in the same manner as illegal acts committed by any private person.
(ii)The rule of law doesn’t prevent certain classes of persons being subject to special courts. Thus, the members of armed forces are controlled by military laws. Also under Article 361 of the Indian Constitution, during the term of his/her office, the Governor of a state or the President shall not be answerable to any criminal offences.
(iii)Today ministers and other executive bodies are given very wide discretionary powers by a statute. And as a result of which such power is been abused. Today, a large no. of legislations in the form of delegated legislation i.e., rules, orders are been made by the ministers and it is not directly under the Parliament’s power.
(iv)Certain members of the society are governed by special rules in their professions, i.e., lawyers, doctors, members of armed forces and police. Such clauses are treated differently from ordinary citizens.
The Constitution itself contains provisions which, under certain circumstances, limit the effectiveness of Art. 14. (i)The scope of right to equality U/A 14 has been considerably restricted by the 42nd Amendment Act, 1976. The new Article 31-C added by the amendment act provides that the laws made by the State for implementing the Directive Principles contained in clause (b) or clause (c) of Article 39 can’t be challenged on the ground that they are violative of Article 14. In Sanjeev Coke manufacturing co. v. Bharat cooking Coal Ltd.
The Supreme Court has held that “where Art. 31-C comes in, Article 14 goes out. (ii)Article 359(1) provides that 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 rights conferred by Part III( except Arts. 20 and 21) shall remain suspended. Thus, if the President of India issues an order, where a Proclamation of Emergency is in operation, enforcement of Article 12 may be suspended for the period during which the proclamation is in force.
(iii)Article 361 lays down that the President and the Governors are exempted from any criminal proceeding during the tenure of their office.
(iv)Under International Law, foreign sovereign and ambassadors enjoy full immunity from any judicial process. This is also available to enemy aliens for acts of war. Article 14 permits classification but prohibits class legislation.- The equal protection of laws guaranteed by Article 14 does not mean that all laws must be general in character. It does not mean that the same laws should apply to all persons. It does not mean that every law must have universal application for, all persons are not, by nature, Attainment or circumstances in the same position.
The varying needs of different classes of persons often require separate treatment. From the very nature of the society there should be different laws in different places and the Legislature controls the policy and enacts laws in the best interest of safety and security of the State.
In fact, identical treatment in unequal circumstances would amount to inequality. So, a reasonable classification is only not permitted but is necessary if society is to progress. Thus, what Article 14 forbids is class-legislation but it does not forbid reasonable classification.
The classification, however, must not be “arbitrary, artificial or evasive” but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation. Article 14 applies where equals are treated differently without any reasonable basis. But where equals and unequals are treated differently, Article 14 does not apply.
Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privilege granted that between whom and the persons not so favoured no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privileges. Test of Reasonable Classification-
Article 14 forbids class legislation, but it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. Classifications to be reasonable must fulfill two conditions:- (c)The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and
(d)The differentia must have a rational relation to the object sought to be achieved by the Act. The important thing is that there must be a nexus between the basis of classification and the object of the Act which makes the classification. K.K. Mathew, J. highlighted the negative concept of the doctrine of "equality before the law", as traditionally understood and posed the question whether the command of Article 14 is merely to ban creation of equality or to eliminate inequalities ? According to him "Formal equality before the law has been found to be a shame in many areas".
The true meaning and scope of Article 14 have been explained in a number of cases by supreme Court. In re-Special Court Bill case, Chandrachud, J., (as he then was) reformulated new propositions to be followed regarding the applicability of Article 14. But this has been rightly criticized by Mr. Seervai as making the well-settled principles unsettled and creating confusion and uncertainity and encouraging litigation.
The principles laid down by Das, J., in Ramkrishna Dalmia v. Justice Tendolkar has not been disputed by Chandrachud, J., and therefore there was no need to reformulate the same unless it was necessary to add something to the existing principles. In Sagir Ahmad v. State it has been clearly held that. “The question whether a classification is reasonable, and proper or not, must, however be judged more on commonsense than on legal subtleties.” New concept of Equality: Protection against Arbitrariness-
“In E.P. Royappa v. State of Tamil Nadu, the Supreme Court has challenged the traditional concept of equality which was based on the reasonable classification and has laid down a new concept of equality. Chandrachud and Krishna Iyer, JJ. Propunded the new concept of equality in the following words-
“Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinal limits. From a positivistic point of view, equality is antithesis to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belong to the Rule of Law in a republic while the other, to the whim and caprice of an absolute monarch. Where an Act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.”
In Maneka Gandhi v. Union of India, Bhagwati, J., again quoted with approval the new concept of equality propounded by him in the E.P. Royappa case. He said :-
“….Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinal limits. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence.” The basic postulate of the Rule of Law is that “justice should not only be done but it must also be seen to be done.”
The society is composed of unequals and a welfare State has to strive by both executive and legislative action to help the less fortunate and to improve their condition so that social and economic unequality in the society may be bridged. This would require a law to be made applicable to that group in order to ameliorate their lot. Desai, J., said that the doctrine of classification was evolved to sustain a legislation of State action in order to help the weaker sections of the society or some such segments of the society in need of succor.
In ADM Jabalpur v. Shivakant Shukla, it is one of the most important cases when it comes to rule of law. In this case, the question before the court was ‘whether there was any rule of law in India apart from Article 21’. This was in context of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an emergency. The answer of the majority of the bench was in negative for the question of law.
However Justice H.R. Khanna dissented from the majority opinion and observed that “Even in absence of Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. In India, there are a few instances where Judiciary has infringed upon the areas of Executive and Legislature and this can be said from the example of the present Reservation system. Judiciary was against the fact of giving reservations to the creamy layer but the Executive and Legislature was not in favor of this.
“Though many of them had critiqued about Rule of Law in Indian Constitution. Acc. To them, Law changes with time. As time evolves, Law has to change in that way.
They see Rule of Law simply as a tool for guiding and maintaining the status quo of the society. For them maintain status quo is far from being neutral, serves to protect the powerful at the cost of others. More extreme critics claim that "[t]he liberal paradigm has destroyed the rule of law." The rationale behind this statement is that, considering the real state of the world, many equate the rule of law with legality. However, this is a flawed equation as "[l]egality simply means that there are laws and says nothing about the quality of those laws." Hence, there are many lacunas in the concept of rule of law which servers the reason of non-implementation of the concept properly.”