(Gursehaj Singh and Shreejita Ghosh are fourth year students of Jindal Global Law School, Sonipat)
Featured Painting – ‘Prudence and Justice with Six Antique Wisemen’ by Pietro Perugino
INTRODUCTION
To understand the essence of the ‘Rule of Law’, one must study the three principles expressed by A.V. Dicey.[i] First, ‘Supremacy of Law’, which meant that every State action must have legislative sanction (“Rule of law and not men”). Second, ‘Equality before the law’, according to which there must be no separate law for the Executive, and everyone must be subject to the jurisdiction of a common-law court. Third, ‘predominance of legal spirit’, i.e. there must be an enforcement mechanism for rights, and people must be able to approach the Court.
One can say that Dicey’s principles of the rule of law have been embodied under Article 14 of the Indian Constitution. Dicey’s view has often been criticized on the ground that his second principle, i.e. Equality before the law, negates the existence of administrative law. According to Dicey, the Executive must not possess any discretionary power apart from those conferred by law.[ii] However, it must be noted that there exists no inconsistency between the rule of law and administrative law. In modern times, the growth of administrative law has come in the way of rule of law, making a complete absence of discretionary powers impossible. The State, in lieu of its welfare functions, now exercises a higher degree of public control, which ultimately results in greater administrative powers being conferred upon them.[iii]
Today, rule of law not only ensures that adequate safeguards are in place to protect personal freedoms but also ensures that the Executive has acted under the law and not by its whims and fiat. The functions of both administrative law and the rule of law are the same, which is to ensure that there are no arbitrary powers at the hands of the State. This is done through judicial scrutiny. Judicial scrutiny of executive actions maintains and upholds the rule of law. According to the above understanding, in the judicial review of executive action, the Judge must check whether the Executive has acted within the bounds of the law when ones’ Fundamental Rights are violated during an emergency. However, the majority decision in the ADM Jabalpur case is contrary to this understanding.
The ADM Jabalpur case is often considered as one of the darkest chapters in the Indian judicial history. In this article, we argue that the majority opinion in the case had erred in its definition of the rule of law, which was a setback for administrative law in India. It is further argued that Justice Khanna’s dissenting opinion reflects the correct position of law.
ADM Jabalpur v Shivkant Shukla
On 26th June 1975, Prime Minister Indira Gandhi declared a national emergency. The President’s Proclamation under Article 359(1) of the Constitution suspended the enforcement of Articles 14, 19 and 21, and consequently, no person could move to any Court for the implementation of these fundamental rights during the Emergency. The invocation of the Emergency gave way to various preventive detention laws, one of which was the Maintenance of Internal Security Act, 1971 (“MISA”). The MISA was amended through successive ordinances to include provisions such as barring the Courts from applying the principles of natural justice in detention cases, permitting detention without disclosing grounds of detention and prohibiting their communication to courts.
In the ADM Jabalpur case, the issue was whether the High Court could issue a writ of habeas corpus under Article 226 of the Constitution against the illegal detentions under MISA. The Supreme Court, by a 4:1 majority, held that the writ of habeas corpus was suspended during the Emergency and that the presidential proclamation of Emergency was not mala fide. Chief Justice Ray, in his majority opinion, noted that there was no negation of the rule of law, as the emergency provisions were there in the Constitution, which is the supreme law. He noted: “The Constitution is the mandate. The Constitution is the rule of law. No one can rise above the rule of law in the Constitution.” The majority cited the Gopalan case and reiterated that the word ‘law’ under Article 21 must be interpreted to mean statutory law and not natural law. Thus, the majority interpreted the ‘rule of law’ only in its form, and failed to look beyond it.
Another issue in the ADM Jabalpur case was the extent of nature of judicial scrutiny on Executive’s actions. The majority opinion expressly stated that the detention orders under MISA, even if mala fide or illegal, were immune from judicial scrutiny. According to Chief Justice Ray, any relief against such mala fide orders could be granted only after the Emergency gets over and the suspension of Articles 14, 19 and 21 and the immunity from judicial scrutiny were held to be legitimate as they were done under Article 359(1).Thus, according to the majority opinion, there is no recourse for the judiciary, during an emergency, to ensure checks and balances over the Executive’s power. This rhetoric of the majority opinion is argued to be colonial in nature.[iv] The majority cited various cases of the Privy Council and the Federal Court in its opinion. However, in a post-colonial context, with the advent of Separation of Powers, it is crucial to accommodate the supremacy of the judiciary within the definition of the ‘rule of law’.
INFIRMITIES IN THE MAJORITY OPINION
We argue that the majority opinion of the Supreme Court was inconsistent with Dicey’s understanding of the rule of law, as it rejects Dicey’s third principle. The majority opinion took a narrow approach while interpreting the scope of the rule of law. They understood the ‘supremacy of law’ to mean the “supremacy of the law of the land and not the supremacy of the constitutional spirit, which is the rule of law.”
To justify our stance, it is pertinent to refer to the dissenting opinion of Justice Khanna. A significant statement which sums up his entire argument is, “It is not surprising that those who have an abiding faith in the rule of law and sanctity of personal liberty do not easily reconcile with a law under which persons can be detained for long periods without trial.” Justice Khanna further declared, “Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. Sanctity of life and liberty was not something new when the Constitution was drafted, and the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the constitution”. Thus, even in the absence of Article 21 in the Constitution, the State does not derive a power to deprive the life or liberty of a person without the authority of law. According to Justice Khanna, “Rule of law is the antithesis of arbitrariness”, and thus, illegitimate use of executive discretion could not seek protection under the presidential proclamation. Accordingly, the Judges could review the acts of the Executive even though the President’s Proclamation suspended the enforcement of fundamental rights. Justice Khanna’s dissenting opinion flipped the interpretation taken by Chief Justice Ray.
The rule of law has been held to be a part of the Basic Structure of the Indian Constitution, and thus, it cannot be amended through any enactment. It governs the Right to Life and Liberty and to quote Justice Khanna, “Rule of law in a formal sense is merely an illusion.” Here, he distinguishes between the illusion and reality of the rule of law. The detention orders under MISA were held to be immune from judicial scrutiny because it was consistent with Article 359(1). Using this interpretation, even arbitrary and unjust laws could be considered as legitimate. There could be a law, which institutes slavery and still does not violate the rule of law. Similarly, the horrifying laws of Nazi Germany would also then be considered legitimate. According to Justice Khanna, this cannot be taken as the basis of Rule of Law as he believes this as an illusion of the rule of law where the use of administrative arbitrariness and misuse of power is being sanctioned through an enacted law, i.e. Article 359(1). In other words, one cannot equate the rule of law with a mere presence of a statute, if the statute itself does not conform to the standards of the rule of law.[v]
What remains ironic is that India failed to uphold the standard of Rule of Law, which was arrived at 17 years before the ADM Jabalpur case. In January 1959, the International Congress of Jurists (ICJ) met and formulated a report on ‘The Rule of Law in a Free Society’ according to which, “The function of the legislature in a free society under the Rule of Law is to create and maintain the conditions which will uphold the dignity of man as an individual.”The rule of law has come to be regarded as the mark of a free society. Admittedly, its content is not the same in various countries, nor is it to be secured exclusively through the ordinary courts. But everywhere, it is identified with the liberty of an individual. It seeks to maintain a balance between the differing notions of personal liberty and public order.[vi] In every State, the issue of maintaining human rights within the necessities of public interest does arise. Such harmonizing can only be attained by the existence of independent courts, which can hold the balance between a citizen and the State, and compel Governments to conform to the law.[vii] Thus, the ICJ Report adopted a positive and substantive approach towards the rule of law.
Post ADM Jabalpur
In 1978, the 44th Amendment was enacted, which stated that the right to enforce Articles 20 and 21 could not be removed from the ambit of Articles 32 & 226. Therefore, while the ADM Jabalpur case was not technically overturned, much of the harm done by the majority opinion to the defense of fundamental rights was reversed through the Amendment. Later, Justice Bhagwati and Justice Chandrachud regretted their support in the majority opinion of the case and acknowledged Justice Khanna’s dissent as the correct position of law. The verdict in the ADM Jabalpur case was finally overturned in K.S. Puttaswamy v. Union of India. In the Puttaswamy case, the Supreme Court has re-established the importance of the judiciary’s independence and how it is supposed to act as a check on governmental power. Justice D.Y. Chandrachud noted, “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence, they constitute rights under natural law.” After the Puttaswamy judgment, the theoretical formulations of Dicey on the rule of law hold more considerable significance than they did in 1976.
Dicey’s idea, while formalist in conception, was adapted to take a more substantive approach post World War II and to elaborate a more rights-centric approach. While this approach was ignored in the majority judgment of ADM Jabalpur, which did lead to a misconstrued understanding of Rule of Law in the country, the substantive approach was well understood and adopted through the 44th amendment and Puttaswamy case.
[i] A.V. Dicey, The Rule of Law: Its Nature and General Application, THE LAW OF THE CONSTITUTION, 198 (8th Ed.)
[ii] Id.
[iii] M.P. Jain & S.N. Jain, Principles of Administrative Law, LexisNexis, 7th edn: Chapter 1, (2017).
[iv] Kalyani Ramnath, ADM Jabalpur’s Antecedents: Political Emergencies, Civil Liberties, and Arguments from Colonial Continuities in India, 31 Am. U. Int’l L. Rev. 209-251, 224, (2016).
[v] Id.
[vi] E.C.S. Wade & Godfrey Phillips, CONSTITUTIONAL LAW, 77, 8th Revised edn, (1970).
[vii] Id.
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