Indian Legal System

(A) Introduction
Indian Legal System has been compared with 'Triveni1 meaning confluence of 3 rivers .Thus,
there are 3 streams which make the Indian Legal System. The first one is that of Common
Law, the
second one is that of Civil Law and the third one consists of the Personal and Customary
Laws. Let
us examine each one of them in some detail.

Hybrid legal system or Mixed legal System & Indian Legal System
The legal framework in India has evolved from religious prescription to the
current constitutional and legal system we have today, traversing through secular legal
systems and the common law. India has a recorded legal history starting from the Vedic
ages and some sort of civil law system may have been in place during the Bronze Age and
the Indus Valley civilization. Law as a matter of religious prescriptions and philosophical
discourse has an illustrious history in India. Emanating from the Vedas, the Upanishads and
other religious texts, it was a fertile field enriched by practitioners from different Hindu
philosophical schools and later by Jains and Buddhists.
Secular law in India varied widely from region to region and from ruler to ruler. Court
systems for civil and criminal matters were essential features of many ruling dynasties of
ancient India. Excellent secular court systems existed under the Mauryas (321-185 BCE) and
the Mughals (16th – 19th centuries) with the latter giving way to the current common law
system.

Law in British-ruled India

The common law system – a system of law based on recorded judicial precedents- came to
India with the British East India Company. The company was granted charter by King George
I in 1726 to establish “Mayor’s Courts” in Madras, Bombay and Calcutta (now Chennai,
Mumbai and Kolkata respectively). Judicial functions of the company expanded substantially
after its victory in Battle of Plassey and by 1772 company’s courts expanded out from the
three major cities. In the process, the company slowly replaced the existing Mughal legal
system in those parts.
Following the First War of Independence in 1857, the control of company territories in India
passed to the British Crown. Being part of the empire saw the next big shift in the Indian
legal system. Supreme courts were established replacing the existing mayoral courts. These
courts were converted to the first High Courts through letters of patents authorized by the
Indian High Courts Act passed by the British parliament in 1862. Superintendence of lower
courts and enrolment of law practitioners were deputed to the respective high courts.
During the Raj, the Privy Council acted as the highest court of appeal. Cases before the
council were adjudicated by the law lords of the House of Lords. The state sued and was
sued in the name of the British sovereign in her capacity as Empress of India.
During the shift from Mughal legal system, the advocates under that regimen, “vakils”, too
followed suit, though they mostly continued their earlier role as client representatives. The
doors of the newly created Supreme Courts were barred to Indian practitioners as right of
audience was limited to members of English, Irish and Scottish professional bodies.
Subsequent rules and statutes culminating in the Legal Practitioners Act of 1846 which
opened up the profession regardless of nationality or religion.
Coding of law also began in earnest with the forming of the first Law Commission. Under the
stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was
drafted, enacted and brought into force by 1862. The Code of Criminal Procedure was also
drafted by the same commission. Host of other statutes and codes like Evidence Act (1872)
and Contracts Act (1872).

Law after Independence

At the dawn of independence, the parliament of independent India was the forge where a
document that will guide the young nation was being crafted. It will fall on the keen legal
mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The
Indian Bar had a role in the Independence movement that can hardly be overstated – that
the tallest leaders of the movement across the political spectrum were lawyers is ample
proof. The new nation saw the consequent understanding of law and its relation to society
that prompted the founding fathers to devote the energy required to form a Constitution of
unprecedented magnitude in both scope and length.
The Constitution of India is the guiding light in all matters executive, legislative and judicial
in the country. It is extensive and aims to be sensitive. The Constitution turned the direction
of system originally introduced for perpetuation of colonial and imperial interests in India,
firmly in the direction of social welfare. The Constitution explicitly and through judicial
interpretation seeks to empower the weakest members of the society.
India has an organic law as consequence of common law system. Through judicial
pronouncements and legislative action, this has been fine-tuned for Indian conditions. The
Indian legal system’s move towards a social justice paradigm, though undertook
independently, can be seen to mirror the changes in other territories with common law
system.
From an artifice of the colonial masters, the Indian legal system has evolved as an essential
ingredient of the world’s largest democracy and a crucial front in the battle to secure
constitutional rights for every citizen.

 The Constitution of India of 1950 is a written document which currently comprises over 450
Articles and 12 Schedules. It is unsurprisingly the longest written constitution of any
sovereign country in the world. The Constitution of India was drafted and adopted by a
constituent assembly of elected representatives of the people and came into effect on 26
January 1950. The Constitution of India is not the creation of parliament but of the people of
India and is therefore supreme. India's constitutional supremacy is evidenced in the opening
sentence of the Preamble to the Constitution of India: "We, The People of India, having
solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic
Republic". The Constitution of India is sometimes referred to as a cosmopolitan document
because it derives several of its features from foreign sources, most notably: 

• Parliamentary government, rule of law and bicameralism from the UK.

• Directive Principles of State Policy from Ireland. 
• Fundamental rights, judicial independence and functions of the president from the US. 
• Union list and state list from Canada. 
• Concurrent list and freedom of trade from Australia. 
• Fundamental duties from the former USSR. 

Having features of both federal and unitary constitutions, the Constitution of India is neither
purely federal nor purely unitary, and is widely considered as quasi-federal in nature.  
System: India is a union of 29 states and seven union territories. India has a parliamentary
system, with legislatures at both union and state levels. Head of state  

Preamble: WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this 26th day of November, 1949, do HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Common Law
It is generally assumed that India is a Common Law Country. In many countries of the world
where
colonisation by England took place; common law is found to be dominant even after
decolonisation. English people took with them to their colonies the legal system which has
come
to be known as Common Law system. Common Law simply speaking is Judge made Law or
Case
law. Setalvad defines common law as: "those unwritten legal doctrines embodying custom
and
tradition which have been developed over the centuries by the courts".

Whenever the disputes between different citizens reach a stage at which one of the parties
seek
redressal of the grievance in the court of law, the decisions by the courts are responsible for
the
development of Common law. In deciding the disputes between the people, the Judges
interpret
and apply Black letter Law or Civil Law if it is available and they decide the cases on the basis
of the principle of Stare Decisis. It is a doctrine that when court has once laid down a
principle of law as applicable to a certain state of fact it will adhere to that principle, and
apply it
to all future cases where facts are substantially the same, regardless of whether the parties
and
property are the same. Under the doctrine, deliberate or solemn decision of court made
after
argument; a question of Law fairly arisen in the case, and necessary to its determination, is
an
authority, or binding precedent in the same court, or any other courts of equal or lower rank
in
subsequent cases where the very point is again in controversy. Thus, on the basis of the
principle
of Stare Decisis, the Judges develop a set of law which is termed as Common law. If there
are no
precedents or codified law in respect of a particular fact situation the Judges apply some
very
fundamental principles to the dispute and decide the same. They are the principles of
justice, equity
and good conscience. In this process Judges, not only apply the law but in even make the
law.

In India, 'the English courts started the development of common law. After independence,
the same
was continued under our Constitution by virtue of Art.372. Moreover, Articles 32, 226 and
227 of
our constitution give a power of judicial review i.e. our judiciary is empowered to strike
down any
legislation if it is found to be violative of the fundamental rights of citizens. Thus the courts
are given
wide powers to do justice. We in India have a unitary and not dual judicial system in the
sense that
the questions of Central Law and State law are not decided by different courts . Sofelso,
there is
fusion both of common law and equity jurisdictions in the same courts in India. The Indian
Courts
have over a period of time even departed from the English common law whenever Indian
circumstances and society demanded such a departure. Common law is based as Holmes
would say
"the life of law has not been logic, it has been experience. Even ' if there are Codes and
Black
Better Laws, legislature has its limitations to foresee and take into consideration all the
possible
contingencies. Many a times the legislations are vague or open textured. Thus, it is only the
Common law which helps the redressal of disputes by filling in the gaps in the legislation.

For a long time, the Judges 'brought up in the Common Law tradition denied that they were
law
makers. The myth was that they either found the law or interpreted it. Today, it is. not
disputed
that Judges make the law even in India. There are many occasions where the statutes do not
give
direct answers to the issues beforie, the judge and so they have to on the basis of their
sense, of
justice in fact carve out new principles of law. Moreover the common law attitude of
'treating
judicial decisions as binding on future courts no longer holds good. Today's judges '‘believe
in
overruling the past decisions if found necessary to do so due to changes in time and
circumstances. Today's judges not only find and make law but also state what the law ought
to be.
This trend has been notable in India since the decision of Golaknath. Thus, today the
innovative and
creative elements are part of the judicial function. Because of this, today Judges are more
accountable to the people considering their lawmaking function.

Civil Law
Law needs to be certain, precise and predictable. Civil Law or Codified Law or Black Letter
Law is
looked at to fulfil this requirement of certainty.* The idea of Civil codes is derived from the
Codes of
continental Europe, where the Judges decide each case on its merits by applying the law as
enacted
into the Codes and not in confirmity with the system of stares decisis. Some of the common
law in
India is codified. Codification of Indian Laws started ' during British regime. For this
purpose, Law
Commissions were appointed by the British Government. The Second Law Commission gave
final
shape to Macaulay's Penal Code. It also prepared drafts of the Code of Civil Procedure and
the Code
of Criminal procedure, incorporating into them materials left by the first law commission.
Later on
these Codes were enacted by the legislative councils as Laws of India and again due to
Article 372 of
the Constitution of India, they have remained binding Laws till today. The second Law
commission
however emphasised that such a body of law ought to be prepared with a constant regard
to the
conditions and institutions of India and the character, religions and usages of the
population. The
Indian Penal Code, the Code of Criminal Procedure, Indian Evidence Act, the Civil Procedure
Code,
the Transfer of Properties Act.the Indian Contract Act are some of the classic pieces of
codified
Law in India. It should however be borne in mind that much is added to all these pieces of
legislation by the courts in as-much-as due to the disputes between the parties, the courts
have to
interpret the various provisions of these codified laws and in the process as we have seen
above,
the courts have developed their own set of law the Common law. The Constitution of India
in
Articles 245 to 255 distributes the legislating powers of the Central Government and the
State
Governments. Accordingly, in the Vllth Schedule to the Constitution, list I is the Union list,
List-II is
the State List and list-III is the Concurrent list. In respect of the items in list-I, it is the Central
Government which has powers to make Laws, in respect of item II it is the State
Government
which has powers to make Law and in respect of List-Ill Central Government as well as State
Government can make Laws. In case of any conflict between the Union and State laws, the
Union
laws prevail. This is in contrast with the American Constitution where residuary powers vest
with
the States and people Accordingly, at number of laws have been passed by the Central as
well as
State Governments in India. Today, there is another sub-branch of this type of law which is
fast
developing due to increasing state intervention and regulation of the complex modern
world. It is
Administrative" law essentially comprising of the rule's made by those branches of the
government which are responsible for execution of laws for their working. Administrative
Law
determines the organisation, powers and duties of administrative authorities. In India too
there
has been enormous ; growth of Administrative Law. In civil law systems of the world, system
of
precedent is not given the same I scope and status as it enjoys in common law systems.
1. Social Justice- Suk Das v. Union Territory of Arunachal Pradesh AIR 1986 SC 991
(handwritten)
2. Economic Justice- Air India Statutory Corporation vs. United Labour Union, AIR 1997
SC 645 (Ridhima pictures)
3.  Political Justice- People’s Union for Civil Liberties v Union of India & Anr 2013 (2)
SCR 1136 (handwritten)
4. Liberty of speech and expression- Romesh Thappar v. State of Madras 1950 AIR (SC)
1 (handwritten)
5. Liberty of faith and worship- Bijoe Immanuel v State of Kerala 1986 SCC (3) 615
1. Liberty of faith and worship- Bijoe Immanuel v State of Kerala
1986 SCC (3) 615
In the Supreme Court of India
Case No.
1987 AIR 748
Petitioner
Bijoe Emmanuel & Ors
Respondent
State of Kerala & Ors
Date of Judgment
Decided on 11 Aug 1986
Bench
Justice Reddy O. Chinnappa
Background:-
Three children namely Bijoe, Binu and Bindu , studying in a school in Ettumanoor near
Kottayam,
were expelled from school after they refused to sing the national anthem of India. Their
father had
asked them not to salute the flag or sing the anthem because it was against their religious
faith in
Jehovah’s Witnesses. Through their representative, they filed a writ petition in the High
Court of
Kerala State, seeking to restrain authorities from preventing their school attendance. They
alleged
that their expulsion amounted to an infringement of their fundamental rights to freedom
expression
under Article 19 and freedom of religion under Article 25 of the Constitution of India.
The High
Court dismissed the petition on the ground that no word or thought in the national anthem
could
offend any religious beliefs.
Subsequently, they appealed the decision to the Supreme Court of India. The Court found
their
expulsion in violation both Articles 19 and 25 of the Constitution, holding that a
reasonable
limitation on the right to freedom of expression must be based on a “‘a law’ having
statutory force
and not a mere executive or departmental instruction.” It found no provisions of law in
the country
expressly obligates individuals to sing the national anthem and that the applicable
regulatory
measures by the State of Kerala’s Department of Education lacked statutory force and
that were
“mere departmental instructions.
Facts:-
1. The appellants-three children belong to a sect called Jehovah’s Witnesses who worship
only
Jehovah-the Creator and none other.
2. They refused to sing the National Anthem: ‘ Jana Gana Mana ‘ because, according to
them, it is
against the tenets of their religious faith-not the words or the thoughts of the National
Anthem-but
the singing of it. They desisted from actual singing only because of their aforesaid honest
belief and
conviction but they used to stand up in respectful silence daily, during the morning
assembly
when the National Anthem was sung.
3. A Commission was appointed to enquire and report, and it reported that the children
were “law
abiding” and that they showed no disrespect to the National Anthem. However, under the
instructions of Deputy Inspector of Schools, the Head Mistress expelled the appellants
from school
from July 26, 1985.
4. A representation by the father of the children to the Education Authorities requesting
that the
children may be permitted to attend the school pending orders from the Government
having failed,
the appellants filed a Writ Petition in the High Court seeking an order restraining the
authorities
from preventing them from attending the school. A single Judge and then a Division
Bench
rejected the prayer of the appellants.5. Pursuant Article 136 of the Constitution, the father
later filed a
special leave petition in the Supreme Court of India.
6. On August 11, 1986, the Supreme Court overruled the High Court of Kerala in the case
of Bijoe
Emmanuel v. State of Kerala . The Court held that expelling the children based on their
“conscientiously held religious faith” violated the Constitution of India. Justice O.
Chinnappa Reddy
stated: “No provision of law …obliges anyone to sing.” The Court noted that the right of
free speech
and expression also includes the right to remain silent and that standing for the national
anthem
showed proper respect. The Court ordered the school authorities to readmit the children.
Issues Raised:-
The main issue before the Court was whether the expulsion of three children from school
for their
refusal to sing the national anthem of India was consistent with the constitutional rights to
freedom of
expression and freedom of religion.
Arguments Advanced:-
The petitioners argued that they do not sing the Anthem though they stand up on such
occasions to
show their respect to theNational Anthem. They desisted from actual singing only
because of their
honest belief and conviction that their religion did not permit them to join any rituals
except it be in
their prayers to Jehovah their God. They further submitted that they truly and
conscientiously
believe what they said was not in doubt. They did not hold their beliefs idly and their
conduct was
not the outcome of any perversity. They emphasized that singing the anthem was idolatry
and an act
of unfaithfulness to their God.
While the Respondents justified their actions according to the Kerala Education Act and
Rules.
Judgement:-
Bijoe Emmanuel v. State of Kerala is profoundly significant because it affirms that no
one can be
legally compelled to violate his conscientiously held religious beliefs. While recognizing
that
fundamental rights are not absolute and are subject to public order, morality, and health,
the Court
limited the State’s ability to impose on its citizens arbitrary and disproportionate
restrictions. The
decision stated: “To compel each and every pupil to join in the singing of the National
Anthem
despite his genuine, conscientious religious objection. . . would clearly contravene the
rights
guaranteed by Art. 19(1)(a) and Art. 25(1) [of the Constitution of India].”
The ruling also safeguards constitutional freedoms for minority groups. The Court further
stated:
“The real test of a true democracy is the ability of even an insignificant minority to find
its identity
under the country’s Constitution.” Justice Reddy added: “Our personal views and
reactions are
irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of
Art. 25 [of
the Constitution].”
Even today, Bijoe Emmanuel v. State of Kerala stands as one of the pillars of free speech
in India.
Jehovah’s Witnesses are happy to have had a part in contributing to the constitutional
freedoms of all
citizens in India.
6. Due process and personal liberty- Maneka Gandhi v. Union of India, (1978) 1 SCC
248
Maneka Gandhi vs Union Of India
Equivalent Citation - 1978 AIR 597, 1978 SCR (2) 621
Petitioner:
Maneka Gandhi
Respondent:
Union of India
Date of Judgment: 25/01/1978
BENCH:
Hameedullah Beg (CJI), Y.V.Chandrachud, P.N Bhagwati, V.R. Krishna Iyer,
N.L.Untwalia,
S.M. Fazal Ali& P.S.Kailasam
Background
The Supreme Court in Satwant Singh [1] held that right to travel abroad is well
within the ambit
of Article 21. Therefore, to combat the above laid down law the Parliament enacted
Passports
Act 1967. Passport Act, 1967 empowers the authorities to impound the passport of
certain
individual if such action is necessary in the interest of sovereignty and integrity of
India, the
security of India, friendly relations of India with any foreign country, or general
public. [2] The
reasons of such impoundment are also to be communicated the affected party
however in the
interests of the general public these reasons can be withheld. [3] In the immediate
case the
authorities on July 4th 1977 issued a notice of impoundment of the passport of
Petitioner who
was a known journalist citing reasons as in the interest of general public. As soon as
the
petitioner got the notice of such impound she reverted back to the authorities asking
for specific
detailed reasons as to why her passport shall be impounded. The authorities
however, answered
that the reasons are not to be specified in the interest of the general public.
Therefore, the
petitioner approached Supreme Court u/a 32 for the enforcement of Fundamental
Right
mentioned u/a 14 against the arbitrary action of the authorities. The petition was
further amended
and enforcement of Article 21 i.e. Protection of Life & Personal Liberty, Article 19(1)
(a) i.e.
Right to freedom of speech & Article 19(1)(g) i.e. Right to freedom of
Movement.Among the
major reasons contended for the filing of such petition, the petitioner contended
that the
impugned order is void as it took away the petitioner’s right to be given a fair
hearing to present
her defense.
This case directly brought into question the legality and validity of A.K. Gopalan v.
State of
Madras [4] . In that case it was argued by the petitioner that whether the validity of
any law shall
be decided by the fact that it is a procedure established by law or the law along with
being
established by law shall also conform to principles of natural justice. The main
debate was
around the scope of the word “procedure established by law” on the point that can
such
procedure be arbitrary or unreasonable or should it always be just, reasonable and
fair. The
majority bench however rejecting all the arguments of the petitioner held that the
word law u/a 21
doesn’t necessarily be in conformity with the principles of natural justice. But it was
Justice
Fazal Ali’s opinion in the case that paved the way for a liberal approach of the
interpretation of
Art. 21. Justice Fazal Ali dissented with the majority by holding that the right to life
u/a 21 does
constitute Principles of Natural Justice and the courts should check that any
procedure
established by law do not suffer with the problem of unreasonableness &
arbitrariness. The spirit
of Justice Fazal Ali’s argument was that the procedure should be just, fair and
reasonable.
The court in Maneka Gandhi adopted the dissenting view of Justice Fazal Ali in A.K.
Gopalan v.
State of Madras. Therefore, the court held that the while the procedure established
by law should
be reasonable, just and fair it shall be free from any unreasonableness and
arbitrariness.
Issue
1. Is there any nexus between the provisions mentioned under Articles 14, 19 &21.
2. Scope of the word “Procedure Established by Law.”
3. Whether right to travel abroad resides in Article 21.
4. Whether a legislative law that takes away Right to life is reasonable.
Petitioner’s Arguments
1. By the administrative order of impoundment of the passport on 4th July, 1977 the
respondent has infringed Petitioner’s Fundamental Right to Freedom of Speech &
Expression, Right to travel abroad, Right to life and personal liberty & Right to
freedom of movement.
2. The provisions of Article 14, 19 & 21 are to be read in synchronization and they
are
not mutually exclusive. These provisions in itself though not explicitly constitutes in
itself principles of natural justice. A combined reading of the three provisions will
give effect to the spirit of the constitution and constitution makers.
3. Even though India has not adopted American “ due process of law ” in its
constitution,
the procedure established by law must be reasonable, fair & just free from any sort
of
arbitrariness.
4. Section 10(3)(c) is violative of Article 21 of the constitution in the sense that it
violates the right to life and personal liberty guaranteed under the said constitutional
provision. By the virtue of this provision the petitioner was restrained from travelling
abroad. This restrain on the petitioner was unconstitutional since it was generally
accepted that right to travel abroad was within the right to life & personal liberty u/a
21.
5. Audi Altrem Partem e. opportunity to be heard is universally recognized as an
essential ingredient of principles of natural justice. These principles of natural justice
find no explicit place in any constitutional provisions. However, the spirit of
Fundamental Rights constitutes in itself the essence of these principles. Further,
Article 32 provides an opportunity to the affected parties to directly approach Apex
Court in case there is any violation of Part III provisions. This provision of Article 32
was coined as Heart & Soul of the Constitution is equivalent to Audi Altrem Partem.
Therefore, it cannot be said that Principle of Natural Justice are separate and
exclusive
to the Constitution.
Respondent’s Arguments
1. The respondent contended before the court that the passport was impounded
because
the petitioner was required to appear before some committee’s for enquiry. The
Attorney General further promised the court to do away with all the appearances in
the said committee’s as soon as possible.
2. The respondent reiterating the principle laid down in Gopalan contended that the
word law u/a 21 cannot be comprehended in the light fundamental rules of natural
justice.
3. The respondent further contended that the principles of natural justice are vague
and
full of ambiguities. Therefore, the constitution should not read such vague and
ambiguous provisions as a part of it.
4. The ambit of Article 21 is very wide and it generally contains the provisions of
Articles 14 & 19. However, any law can only be termed unconstitutional to Article 21
when it directly infringes Article 14 & 19.
5. Article 21 in its language contains “ procedure established by law ” & such
procedure
need not pass the test of reasonability. Further the said provision need not
necessarily
be in conformity with the Articles 14 & 19.
6. The constitution makers while drafting this constitution had debated at length on
American “due process of law” & British “procedure established by law”. The
conspicuous absence of due process of law from the Constitutional provisions
reflects
the mind of framers of this constitution. The mind and spirit of the framers must be
protected and respected.
Judgment
This landmark judgment came on 25th January 1978 and changed the landscape of
the
Constitution of India. This judgment expanded the scope of Article 21 exponentially
and this
judgment truly & really made India a welfare state as promised in the Preamble. The
seven judge
bench gave a unanimous decision except some judges concurring on some points.
There were seven separate opinions in which the majority opinion was written by
Justice
Bhagwati for himself, Untwalia& Fazal Ali jj. while Chandrachud, Iyer& Beg (CJ) wrote
separate but concurring opinions.
The major findings of the court were as follows:
1. The court while delivering this landmark judgment changed the landscape of the
Constitution by holding that though the phrase used in Article 21 is “ procedure
established by law ” instead of “ due process of law ” however, the procedure must
be
free from arbitrariness and irrationality.
2. Even though the Constitution makers must be respected, but they never intended
to
plant such a self – destructive bomb in the heart if the Constitution. They were never
of the mind that the procedure need not necessarily be reasonable, just and fair.
They
drafted this Constitution for the protection of the “ people of India ” and such
interpretation of Article 21 will be counter-productive to the protection offered by
the
Constitution.
3. The court overruled Gopalan by stating that there is a unique relationship
between the
provisions of Article 14, 19 & 21 and every law must pass the tests of the said
provisions. Earlier in Gopalan the majority held that these provisions in itself are
mutually exclusive. Therefore, to correct its earlier mistake the court held that these
provisions are not mutually exclusive and dependent on each other.
4. The court held that the scope of “ personal liberty ” is not be construed in narrow
and
stricter sense. The court said that personal liberty has to be understood in the
broader
and liberal sense. Therefore, Article 21 was given an expansive interpretation. The
court obligated the future courts to expand the horizons of Article 21 to cover all the
Fundamental Rights and avoid construing it in narrower sense.
5. The right to travel abroad as held in Satwant Singh is within the scope of
guarantees
mentioned under Article 21.
6. Section 10(3)(c) of Passport Act 1967 is not violative of neither Article 21 nor
Article
19(1)(a) or 19 (1)(g). The court further held that the said 1967 provision also not in
contradiction of Article 14. Since the said provision provides for an opportunity to be
heard. The court rejected the contention of petitioner that the phrase “ in the
interests
of the general public ” is not vague.
7. The court held that Section 10(3)(c) & 10(5) is an administrative order therefore,
open
to challenge on the grounds of mala fide, unreasonable, denial of natural justice and
ultra vires.
8. The court also suggested government to ordinarily provide reasons in every case
and
should rarely use the prerogative of Section 10(5) of the 1967 act.
9. The rights discussed under 19(1)(a) & 19(1)(g) are not confined to the territorial
limits
of India.
Critical Analysis
The court in commendable way overruled the regressive decision of Gopalan. The
court by
delivering this judgment has served the common people. The court unanimously
came harshly
upon the contention of the respondent when it contended that the procedure
established by law
need not necessarily be just, fair and reasonable. The respondent’s argument that
the law is valid
as long as it is not repealed by the legislature. The court rightly rejected this faulty
argument of
the respondent and gave the Right to Life and Personal Liberty a new expansive and
liberal
interpretation.
The court held that though the phrase used in Article 21 is “ procedure established
by law ”
instead of “ due process of law ” however, the procedure must be free from
arbitrariness and
irrationality. The court also managed to respect and protect the sanctity of the
Constitution
makers by this black stain that the legislature was trying to portray. The procedure
established by
law must satisfy certain requisites in the sense of being reasonable and just and it
cannot be
arbitrary depriving the citizens the Fundamental rights.
The court also for once and for all rested the debate by holding that each
Fundamental Rights are
not distinct from each other whereas they are mutually dependent on each other. In
this regard
Justice Iyer has very well opined that no Article in the Constitution is an island in
itself.
Bhagwati j. held that the procedural law has to meet the requirements of Articles 14
& 19 to be a
valid law under Article 21.
Justice Iyer in the context of travelling abroad held that “Travel makes liberty
worthwhile”
therefore no person can be deprived of his right to travel abroad.
The importance of Maneka Gandhi is limitless and the way the apex court grabbed
the
opportunity to expand the horizons of Article 21 is commendable. The benefits that
accrued to
Indian citizens can be very well understood by the aftermath of Maneka Gandhi
when courts
begin to insert every possible socio-economic and cultural right in the scope of
Article 21. The
court in a catena of cases applying the ratio of this judgment have held Right to
clean Air [5] ,
Right to Clean Water [6] , Right to freedom from Noise Pollution [7] , Speedy Trial [8]
, Legal
Aid [9] , Right to Livelihood [10] , Right to Food [11] , Right to Medical Care [12] ,
Right to Clean
Environment [13] etc., as a part of Right to Life & Personal liberty mentioned u/a 21.
In all these above cases it is this judgment which has paved the way for the courts to
interpret
Article 21 in a manner which is beneficial for the common people. The judiciary has
through this
judgment installed a new weapon of fulfilling the objective set out in the Preamble in
its arsenal.
Conclusion
The Maneka Gandhi judgment was a balanced judgment and is one of the best
judgments that
Indian Supreme Court has ever given. The judgment’s greatest feature was the
interlinking it
established between the provisions of Article 14, 19 & 21. By the virtue of this link
the court
made these provisions inseparable and a single entity. Now any procedure to be
valid has to meet
all the requirements mentioned under Article 14, 19 & 21. Therefore, it expanded
the scope of
personal liberty exponentially and protected the constitutional and fundamental
right to life to a
great extent.
The judgment while saved the citizens from unquestionable actions of Executive also
saved the
sanctity of Parliamentary law when it did not strike down Section 10(3)(c) & 10(5) of
1967 Act.
The court also reminded the authorities to only rarely use the prerogative of section
10(5) so as
to satisfy that their actions were rational and well thought. The court held that
Section 10(3)(c) &
10(5) is an administrative order therefore, open to challenge on the grounds of mala
fide,
 unreasonable, denial of natural justice and ultra vires.
The judgment’s importance can be seen today also because the way in which the
bench
construed Article 21 and expanded its horizons has given way for the resolving of
problems left
unsolved by the Parliament. It’s quite evident that this judgment has played an
imperative role in
construing Right to clean Air, Right to Clean Water, Right to freedom from Noise
Pollution,
Speedy Trial, Standard Education, Fair Trial, Legal Aid, Right to Livelihood, Right to
Food,
Right to Medical Care, Right to Clean Environment etc., as a part of Right to Life &
Personal
liberty mentioned u/a 21.

RULE OF LAW UNDER THE INDIAN CONSTITUTION

3.1 Introduction
The state is submitted to the law which implies that all actions of the state or its
authority to obey the law which implies that all actions of the state or its
authorities and officials must be carried out subject to the constitution and
within
the limit set by the law, i.e., constitutionalism. In other words, the state is to
obey
the law269.
The more the administrative law action in our welfare state expands
widely touching the individuals, the more is the scope of judicial review of
administrative action is, therefore, an essential part of the Rule of Law. The
judicial control on administrative action, thus, affords the courts to determine
not
only the constitutionality of the law but also the procedural part of
administrative
action as a part of judicial review. The constitution has devised permanent
bureaucracy as part of the political execution270.
Although, complete absence of Discretionary Powers, or absence of
inequality are not possible in this administrative age, yet the concept of Rule of
Law has been developed and is prevalent in common law countries such as
India.
The Rule of Law has provided a sort of touchstone to Judge and test the
Administrative Law prevailing in the country at a given time271.
Rule of Law, traditionally denotes the absence of arbitrary powers, and
hence one can denounce the increase of arbitrary or discretionary powers of the
administration and advocate controlling it through procedures and other means.
269 State of Bihar v. Subhash singh, (1997) 4 SCC 431.
270 Ibid.
271G.Aravinthan,
―Adoption of rule of law in India & Supreme Court Judgments‖, available at,
www.lawyersclubindia.com, accessed on 11 December 2014.
68
Rule of law for that matter is also associated with Supremacy of Courts.
Therefore, in the ultimate analysis, courts should have the power to control the
Administrative Arbitrary action and any overt diminution of that power is to be
criticized. The principle implicit in the Rule of Law that the executive must act
under the law and not by its own fiat is still a cardinal principle of the common
law system, which is being followed by India. In the common law system the
executive is regarded as not having any inherent powers of its own, but all its
powers flow and emanate from the law. It is one of the vital principles playing
an
important role in Democratic countries like India. There is a thin line between
judicial review and judicial activism272.
In the English version the paragraph reads, based on Article 6(1)273:
[T]he Union is founded on the principles of liberty, democracy, respect
for human rights and fundamental freedoms, and the rule of law,
principles which are common to the Member States274.
In the UK, the principle of rule of law has never been linked to the idea of state,
but rather has been seen as one of the three overarching principles of British
constitutionalism, apart from the doctrines of separation of powers and
legislative
supremacy, the third meaning, in Dicey‘s words, was that Parliament has ―the
right to make or unmake any law whatsoever‖. Under the second meaning, the
three types (legislative, executive and judicial) of political power should be
separated from each other so that no one person or institution should exercise
more than one type of power. Rule of law is the most difficult to define: in
simple
terms the doctrine requires that the subject is entitled to be ruled according to
law,
and that the law should be predictable275.
272 Walter van Gerven, ―Political Accountability and the Rule of Law‖, CTR on era forum (2011) 12:
255-265, at
259, http://www.cpl.law.cam.ac.uk , accessed on 24 Feb. 2015.
273 Ibid.
274 Ibid.
275 Ibid.
69
The rule was first propounded in 1885 by Dicey and as noted by Lord Bingham
in
his aforementioned lecture, had attracted considerable controversy over the
years
which had elapsed since then276. Nevertheless, reference was made to the
doctrine
in Section 1 of the Constitutional Reform Act 2005 which provides that this Act
does not adversely affect the existing constitutional principle of law.277
Whence Lord Bingham‘s tentative in his lecture to define the concept and break
it
down in eight sub-rules. He defined rule of law as:
[T]he core of the existing principle is that all persons and authorities
within the state, whether public or private, should be bound by and
entitled to the benefit of laws publicly and prospectively promulgated
and publicly administered in the courts.278
As Dicey‘s theory of rule of law has been adopted and incorporated in the
Indian
Constitution, the three arms judiciary, legislature and executive work in
accordance with each other. The public can approach the high courts as well as
the Supreme Court in case of violation of their fundamental rights. If the power
with the executive or the legislature is abused in any sorts, its mala-fide action
can
be quashed by the ordinary courts of law. This can be said so since it becomes
an
opposition to the due process of law279.
Rule of law also implies a certain procedure of law to be followed. Anything
out
of the purview of the relevant law can be termed as ultra vires280.
No person shall be deprived of his life or personal liberties except according to
procedure established by law or of his property save by authority of law. The
government officials and the government itself is not above the law. In India the
concept is that of equality before the law and equal protection of laws. Any
legal
wrong committed by any person would be punished in a similar pattern. The
law
adjudicated in the ordinary courts of law applies to all the people with equal
force
276 Ibid.
277 Supra note 272.
278 Ibid.
279 Supra note 271.
280 Ibid.
70
and binding ness. In public service also the doctrine of equality is accepted. The
suits for breach of contract etc. against the state government officials, public
servants can be filed in the ordinary courts of law by the public281.
3.1.1 Rule of Law, Basic Meaning
In the most basic sense, the rule of law means that all power in a community
should be
subject to general rule and both government and governed should keep to these
rules. The
rule of law has been widely proclaimed as a pillar of constitutional thought282.
The rule of law means the rule of ‗good‘ or ‗fair‘ or ‗democratic‘ laws , the
concept seems
to have little meaning for example, the rule of law is asserted without definition
in section
1 of the constitution reforms Act , 2005283
―Rule of Law‖, said Dicey in 1885, means:
[T]he absolute supremacy or predominance of regular law as opposed to
the influence of arbitrary power and excludes the existence of
arbitrariness of prerogative, or even wide discretionary authority on the
part of the government.284
Idea denoted by the term ―rule, supremacy, or predominance of Law,‖ there
must
first determine precisely what here mean by such expression when these terms
apply to the British constitution. The supremacy or rule of law is a characteristic
of the English constitution, generally it include under one expression at least
three
distinct though kindred conceptions285.
There it is widespread disagreement as to what the rule of law means and its
value. Underlying this is a polarized search for absolute answer rather than an
acceptance that the rule of law contains valuable ideas provided they are not to
extreme. At one extreme, it has been claimed that the rule of law is a universal
human good irrespective of the content of any particular law since it favours,
281 Ibid.
282 John Alder, Constitutional and Administrative Law, 149 (2008).
283 Ibid.
284 M P Jain & S N Jain, Principles of Administrative law, 13(2009).
285 A.V Dicey, Introduction to the Study of the Law of the Constitution, 110 (1915)
71
reason, Certainty and equality, acts as a restrain on a despot and prevents
officials
from picking on individual286. At the other extreme, the rule of law could be
regarded as mechanical and divisive, separating the rulers from the people and
ignoring sentiments such as compassion and common sense in favour of
ruthless
logic or misleading rhetoric287 .
In the middle are grandiose claims associating the rule of law with liberal
beliefs such as individualism, freedom and democracy, for example in relation
to
the European convention on human rights in the proposed European Union
constitution, which extols ‗democracy, equality, freedom and the Rule of
law‘.288
Thus behind the bare idea of the rule of law are implicit assumptions about
what is good law and that laws should be made in an acceptable way by the
right
kind of people. The rule of law is closely connected with the ‗equality‘ in its
formal sense (formal meaning shape or appearance). Thus every one falls within
a
given rule is treated the same under it. However, this is procedural and has
nothing to do with the substantive equality of law. As J.S. Mill remarked289:
The justice of giving equal publication to the rights of all is maintained
by those who support the most outrageous inequality in the rights
themselves.
One of the basic features of the English constitutional system, according to
Dicey,
is rule of law and one of the ingredient of this rule of law is 290 –
Absence of arbitrary power on the part of the Government, which means that
the
Administration possesses no are of Law according arbitrary powers apart from
those conferred by law. According to Dicey From this follows the corollary that
no man is punishable or can be made to suffer in body or goods, except for a
286 Supra note 282.
287 Ibid.
288 Ibid.
289 Id., at 150.
290 D.D Basu, Administrative Law, 7 (2010).
72
distinct breach of law established in the ordinary legal manner before the
ordinary
courts of the land291.
The rule of law is claimed to be a necessary foundation of democracy. For
example, by ensuring that officials keep within the powers given to them by the
people, the rule of law is both the servant and policeman of democracy. It can
also
protect values on which democracy depends such as freedom of speech.
However,
this can equally be said of any form of and historically the idea of the rule of
law
long predated democracy. In other sense the rule of law seems to be at odds
with
democracy in that it usually depends on decision being made by elite of
unelected
judges292.
The main versions of the Rule of law in the context of the UK are now
given. A broad distinction can be made between the rule of Law as government
by Law and the rule of Law as government under Law293:
The core rule of law (often called the ‗thin‘ rule of law): This has been
outlined above. It means government by law in the form of general rules as
opposed to the discretion of the ruler. It also implies ‗equality‘ in the sense that
everyone who falls within a given rule must be treated the same in accordance
with it. Unlike the other version of the rule of law, the core rule of law is
absolute
and should not be compromised on the other hand all it requires is that there be
rules294.
The amplified rule of law (‗thick‘ rule of law): this claims that certain
ideas relating to fairness and justice are inherent in the notion of law as guiding
conduct and that these at least moderate bad laws. It is not claimed that these are
absolute values which cannot be overridden by other factors. It is primarily
procedural295.
291 Id., at 8
292 Supra note 282 at 151.
293 Id., at 152.
294 Ibid.
295 Ibid.
73
The ‗extended‘ rule of law: this is the most ambitious version and introduces
substantive values. It claims that law encapsulates the overarching values of the
community – in our case assumed to be liberal values – in the care of impartial
judges (see Allan, 2001). It claims also to link with republican ideas of equal
citizenship. In as much as this version of the rule of law relies upon vague and
contestable concepts, it conflicts with the core rule of law296.

SEPARATION OF POWERS‟ AND THE INDIAN CONSTITUTION

4.1 BACKGROUND
Today all the Constitutional systems in the world might not be opting for the strict
separation of powers because that is undesirable and impracticable but implications of this
concept can be seen in almost all the countries in its diluted form. It is widely accepted that
for a political system to be stable, the holders of power need to be balanced off against each
other. The principle of separation of powers deals with the mutual relations among the
three organs of the government, namely legislature, executive and judiciary. This doctrine
tries to bring exclusiveness in the functioning of the three organs and hence a strict
demarcation of power is the aim sought to be achieved by this principle. This doctrine
signifies the fact that one person or body of persons should not exercise all the three
powers of the government. Montesquieu, a French scholar, found that concentration of
power in one person or a group of persons results in tyranny. And therefore for
decentralization of power to check arbitrariness, he felt the need for vesting the
governmental power in three different organs, the legislature, the executives, and the
judiciary. The principle implies that each organ should be independent of the other and that
no organ should perform functions that belong to the other.
The legitimacy of an ‗active judiciary‘ is closely connected with the constitutional limits
enshrined in the constitution which are based on a broad division of powers among the
three organs of the state. In this set up, each organ is earmarked with certain specific
functions any usurpation of such earmarked functions by other organs raises certain serious
questions relating to the harmonious working of the Constitution. For these reasons, the
primary objection that outs the concept of ‗Judicial Activism‘ is the doctrine of ‗Separation
of Powers‘.
Since early times, it has been a prime concern of most of the political thinkers to devise
methods that can best stand as a bulwark against the arbitrary exercise of governmental
powers. To this effect, it has often been many a time suggested that there should be no
concentration of power in a single man or a body of men and the [111]
government should be that of a government of law and not of men. The frank
acknowledgement of the role of government in a society linked with a determination to
bring it under control by placing limits on its power has influenced the minds of myriad
political thinkers as well as the advocates of constitutionalism who from time to time have
come up with distinct theories to grapple with the burgeoning problem.
As a solution to this dilemma, the doctrine of separation of powers has always stood
alongside other theories, as a fundamental political maxim, surmounted with the
intellectual propositions of many philosophers who in some way or the other, developed
and perceived it as per their own apprehensions and understandings. A close analysis of the
literature available on the doctrine goes on to suggest that even for people most closely
associated with the doctrine, only concerned themselves himself with the demonstration of
its adoption and its application in the constitution of United States. 262 Further, the
unanimous disagreement amongst the authorities on Montesqueu‘s attempt of defining the
doctrine also illustrates the point.263
262 See G.B.Gwyn, The meaning of Separation of Powers 3 (1963). 263 Ibid. 264 See M.J.C
Vile, Constitutionalism and Separation of Powers 2 (1967). 265 Ibid .
By no stretch of imagination is the doctrine a simple and an immediately recognizable,
unambiguous set of concept. It rather represents an area of political thought where there
has been an extraordinary confusion in defining and the use of its attributes. Interestingly,
standing alone as a theory of government, the doctrine has uniformly failed to provide an
adequate basis for an effective and a stable political system.264 Nevertheless, having made
all the necessary qualifications, the essential and vital ideas behind the doctrine still remain
of utmost importance in various political systems in the world over today. An examination of
the history of the past centuries reveals that despite all inadequacies, there has always been
a stubborn quality about the doctrine that it persistently has re-appeared in different forms
often in the very work of those who saw themselves as its most bitter critics.265 This per se
is recognition of the fact that the very idea of division of power and separation of functions,
has always prevailed persistently in the past so as to give effect to a just system of
governance and avoid any concentration of power in a single body of men. [112]
4.2 MEANING OF SEPERATION OF POWERS Understanding that a government's role is to
protect individual rights, but acknowledging that governments have historically been the
major violators of these rights, a number of measures have been devised to reduce this
likelihood. The concept of Separation of Powers is one such measure. The premise behind
the Separation of Powers is that when a single person or group has a large amount of
power, they can become dangerous to citizens. The Separation of Power is a method of
removing the amount of power in any group's hands, making it more difficult to abuse.
It is generally accepted that there are three main categories of governmental functions – (i)
the legislative, (ii) the Executive, and (iii) the Judicial. At the same time, there are three main
organs of the Government in State i.e. legislature, executive and judiciary. According to the
theory of separation of powers, these three powers and functions of the Government must,
in a free democracy, always be kept separate and exercised by separate organs of the
Government. Thus, the legislature cannot exercise executive or judicial power; the executive
cannot exercise legislative or judicial power of the Government.266
266 C.K.Takwani, Lectures on Administrative Law (2008) p.31. 267 Constitutional Law (1960)
pp. 22-34.
As the concept of ‗Separation of Powers‘ explained by Wade and Philips,267 it means three
different things:-
i. That the same persons should not form part of more than one of the three organs of
Government, e.g. the Ministers should not sit in Parliament;
ii. That one organ of the Government should not control or interfere with the exercise of its
function by another organ, e.g. the Judiciary should be independent of the Executive or that
Ministers should not be responsible to Parliament; and
iii. That one organ of the Government should not exercise the functions of another, e.g. the
Ministers should not have legislative powers.
[113]
4.3 IMPORTANCE OF THE DOCTRINE
The doctrine of separation of power in its true sense is very rigid and this is one of the
reasons of why it is not strictly accepted by a large number of countries in the world. The
main object, as per Montesquieu - Doctrine of separation of power is that there should be
government of law rather than having willed and whims of the official. Also another most
important feature of this doctrine is that there should be independence of judiciary i.e. it
should be free from the other organs of the state and if it is so then justice would be
delivered properly. The judiciary is the scale through which one can measure the actual
development of the state if the judiciary is not independent then it is the first step towards
a tyrannical form of government i.e. power is concentrated in a single hand and if it is so
then there is a cent percent chance of misuse of power. Hence the Doctrine of separation of
power do plays a vital role in the creation of a fair government and also fair and proper
justice is dispensed by the judiciary as there is independence of judiciary. Also the
importance of the above said doctrine can be traced back to as early as 1789 where the
constituent Assembly of France in 1789 was of the view that ―there would be nothing like a
Constitution in the country where the doctrine of separation of power is not accepted‖. 4.4
ORIGIN OF „SEPARATION OF POWERS‟
The concept of separation of powers grew out of centuries of political and philosophical
development. Its origins can be traced to 4th century B.C., when Aristotle, in his treatise
entitled Politics, described the three agencies of the government viz. the General Assembly,
the Public Officials, and the Judiciary.268In republican Rome, there was a somewhat similar
system consisting of public assemblies, the senate and the public officials, all operating on
the principle of checks and balances.269Following the fall of the Roman Empire, Europe
became fragmented into nation states, and from the end of the middle ages until the 18th
century, the dominant governmental structure consisted of a concentrated power residing
in the
268 Aristotle also described three elements in every constitution as the deliberative
element, the element of magistracies, and the judicial element. See generally Robinson,
―The Division of Governmental Power in Ancient Greece‖ 18 Pol.Sci.Q.614 (1903).
269 J.Bryce, Modern Democracies 391 (1921) cited in Sam.J.Ervin, Seperation of Powers:
Judicial Independence‖ from the website: http://www.jstor.org/stable/1191032 (last
accessed on 16-12-2010). [114]
hereditary ruler, the sole exception being the development of English Parliament in the 17th
century.270
270 Fairlee, The Seperation of Powers 21 Mich.L.Rev 393 (1922) 271 See G.B.Gwyn, The
Meaning of Separation of Powers 3 (1963). 272 Ibid. 273 Supra note. 269 at 396. 274
Fortesquieu wrote that ―while the judiciary were appointed by the king on the advice of his
council, the judge shall swear among other things that he will do justice without favour, to
all men pleading before him, friends and foe alike, that he will not delay to so even though
the king should command him by his letters or by words of mouth to the contrary.‖ See
Supra note. 270 at 6. 275 Ibid.
With the birth of the Parliament, the theory of the three branches of government
reappeared, this time in John Locke‘s Two Treatise of Government (1689), where these
powers were defined as ‗legislative‘, ‗executive‘, and ‗federative‘.271 Locke, however did
not consider the three branches to be co-equal, and nor considered them as designed to
operate independently. 272 He considered the legislative branch to be supreme, while the
executive and federative functions as internal and external affairs respectively, which were
left within the control of the monarch, a scheme which obviously corresponded with the
dual form of government prevailing in England at that time, that is, The Parliament and The
King.273
During those times, in England the term ‗executive‘ had a much broader connotation in
contrast to how it is understood today. What we now call executive and judicial functions
were then simply known as ‗Executive Power‘. The King was considered as the repository of
all executive and judicial powers and was believed to be the sole protector of the laws of
nature. However, the need for the independence of the judiciary from the hands of the king
and his other servants was a long felt demand since early times which was further
influenced by the writings of Fortescue, a political thinker of that time.274 On similar lines,
Chief Justice Coke in 1607 went a step further and said that judicial matters were ―not to
be decided by natural reason but by the artificial reason and judgment of law, which law is
an act which requires long study and experience before that a man can attain cognizance of
it.‖275 Nonetheless, it was much clear in the minds of people that the only part that the
king played in administration of justice was that of the appointment of judges.
Having felt that judiciary should be separate and independent from the clutches of the King,
another theory that aimed at the separation of legislative and executive [115]
(including judicial) functions grew autonomously by the influence of the writings of several
other political writers of that time. Throughout the 17th and 18th centuries, English writers
endeavoured to expound one theory of separation in the absence of the other. It was not
until Baron-de-Montesquieu that a really influential synthesis of the duo appeared.

ADM JABALPUR v. SHIVKANT SHUKLA

Introduction-
The said case pertains to the time of Proclamation of Emergency by the then ruling
government
of Indira Gandhi and Presidential order of the same was issued when election of Indira
Gandhi
were termed to be illegal. The case arose out of a contention that whether the right of a
person
to approach respective High Court gets quashed when his fundamental rights are not given
or
suppressed, especially Article 14, and 21 during the emergency and enforcement of such
rights
remain suspended for the period of Proclamation of Emergency in force. The judgment was
delivered on April 28th, 1976 by the Constitutional bench of five judges including the then
Chief
Justice A.N. Ray, out of which four were in favour of suspension of such right and liberty and
one dissenting rejected such contention. As far as majority of the judgment goes, it was
established that a person’s right to approach High Court under Article 226 of the Indian
Constitution for Habeas Corpus or any other writ challenging the legality of an order of
detention
at the time of Proclamation of Emergency remains suspended and that person cannot
approach
any High Court for the remedy or get his right. This case was infamously called as Habeas
Corpus case. Till date, the decision taken by the Court holds badly on the ground of equity,
justice and good conscious. The Latin term Habeas Corpus means “you may have the body”
and writ of securing a person’s liberty is called Habeas Corpus.
Historical Background and Facts-
In State of Uttar Pradesh v. Raj Narain[1], the election of Indira Gandhi from Lok Sabha was
challenged by petitioner on the grounds of corruption from her constituency, Rae Barelli. On
June 12, 1975, Justice Sinha held Indira Gandhi guilty and declared her election invalid. After
this judgment, Indira Gandhi moved to Supreme Court and asked for conditional stay on the
decision of High Court. This made her handicapped on the floor of Parliament and she was
losing her political footprint. The opposition on the other hand became powerful which
made
Indira Gandhi to declare Emergency under Clause (1) of Article 352 of the Constitution
through
the then President Fakhruddin Ali Ahmed and the Emergency was termed as serious due to
“internal disturbance”. During that period, India suffered a war with Pakistan and faced
drought
which turned economy bad in shape. After the proclamation of Emergency, the fundamental
rights under Article 14, and 21 remained suspended and proceedings pending in Court
concerned with enforcement of these Articles remain suspended for the period of
Emergency.
Any person who was considered to be a political threat or anyone who could voice his
opinion
politically was detained without trial under Preventive Detention Laws. This situation led to
arrest of several opposition leaders such as Atal Bihari Vajpayee, Jay Prakash Narain, Morarji
Desai and L.K. Advani under MISA (Maintenance of Internal Security Act) because they were
proving to be a political threat to Indira Gandhi. These leaders then filed petitions in several
High Courts challenging the arrest. Many High Courts ruled in favour of these petitions
which
made Indira Gandhi government to approach the Supreme Court on this issue which
infamously
became Additional District Magistrate Jabalpur v. Shivkant Shukla. It is also called as Habeas
Corpus because usually this is the writ filed in Court when a person is arrested. At the time
of
Proclamation of Emergency, this writ was not entertained as Rights under Article 21
remained
suspended.
Issues-
The issues in the said case were-
Whether, under Proclamation of Emergency after President’s order, can the writ of Habeas
Corpus be maintained in High Court by a person challenging his unlawful detention?
Was suspension of Article 21 fit under rule of law?
Does detenue hold locus standi in Court during the period of Emergency?
Rules-
Upon the issues, it was discussed by the State that the only purpose of Emergency in the
Constitution is to guarantee special power to the Executive machinery which can hold
discretion
over the implementation of law and whatever State considers, it shall be held valid. Filing
writ
petition in High Courts under Article 226 are suspended and petitioners had no right to
approach
the Court for the implementation of the same and this would have logically dismissed such
petitions. The fact that Emergency provisions in Part XVIII of the Indian Constitution
including
Article 358, Article 359(1) and Article 359(1A) are necessities in regard to economy and
military
security of the State. The validity of the law under Presidential Order cannot be challenged
on
the ground of violating fundamental rights which were suspended by such order. This
answers
all the issues like “Whether, under Proclamation of Emergency after President’s order, can
the
writ of Habeas Corpus be maintained in High Court by a person challenging his unlawful
detention” for which the answer is No, one cannot approach the High Court for restoration
of his
fundamental right under any Article of the Indian Constitution. Upon the issue of locus
standi,
the petitioner holds no ground for any relief.
Judgment-
In view of the Presidential order dated 27 June 1975 no person has any locus standi to move
any writ petition under Article 226 before a High Court for habeas corpus or any other writ
or
order or direction to challenge the legality of an, order of detention on the ground that the
order
is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or
legal
or is based on extraneous consideration.
Section 16A (9) of the Maintenance of Internal Security Act is constitutionally valid;
The appeals are accepted. The judgments are set aside;
The petitions before the High Courts are now to be disposed of in accordance with the law
laid
down in these appeals.
The above said judgement was given by four out of five judges. They were the then Chief
Justice A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. The
dissenting Judgment was given by Justice Khanna who ended his judgment by saying “As
observed by Chief Justice Huges, Judges are not there simply to decide cases, but to decide
them as they think they should be decided, and while it may be regrettable that they cannot
always agree, it is better that their independence should be maintained and recognized than
that unanimity should be secured through its sacrifice. A dissent in a Court of last resort, to
use
his words, is an appeal to the brooding spirit of the law, to the intelligence of a future day,
when
a later decision may possible correct the error into which the dissenting Judge believes the
court
to have been betrayed.” He paid the price of his opinion when his junior M.H. Beg was
appointed as Chief Justice bypassing him in seniority. In M.M. Damnoo v. State of J&K[2] the
Court required the State Government to produce the file confining the grounds of detention
so
that the Court could satisfy itself That “the grounds on which the detenu has been detained
have
relevance to the security of the State”. It would, therefore, be seen that if there is a
legislative
provision which prohibits disclosure of the grounds, information and materials on which the
order of detention is based and prevents the Court from calling for the production of such
grounds, information and materials, it would obstruct and retard the exercise of the
constitutional power of the High Court under Article 226 and would be void as offending
that
Article.
Analysis-
Upon the analysis of the judgment, there are multiple observations on the given case. The
Supreme Court in this case observed that Article 21 covers right to life and personal liberty
against its illegal deprivation by the State and in case of suspension of Article 21 by
Emergency
under Article 359, the Court cannot question the authority or legality of such State’s
decision.
Article 358 is much wider than the Article 359 as fundamental rights are suspended as
whole
whereas Article 359 does not suspend any rights. Even being Emergency provisions under
Article 359 (1) grants special power and status to the Executive, it does not undermine the
essential components of sovereignty of separation of powers, leading to a system of check
and
balance and limited power of the Executive. The nexus between State and Executive is
erroneous and the effect of suspension of such rights will only result in extra power to
legislature
which might create laws against fundamental rights. This act should not be considered as a
“power” of the Executive or right of it. There is a legal extent till which a State can act in or
against the citizens and in this case, it was high misuse of power of personal political gain of
a
single person. During Emergency, it is nowhere mentioned that the power of State
“increases”
from its original power under Article 162. Also, State only holds the right of arrest if the
alleged
act falls under Section 3 of MISA and its every condition is fulfilled. If any condition is
unfulfilled
then detention is beyond the power of State. The decision by the Supreme Court is said to
be
the biggest erroneous judgment till date. The dissenting opinion of Justice Khanna still holds
more value than the majority judgment including the then Chief Justice. The wrong intent of
Indira Gandhi’s government was seen when Justice Khanna was to ask the first
uncomfortable
question. “Life is also mentioned in Article 21 and would Government argument extend to it
also?” There was no escape. Without batting an eyelid Niren De answered, ‘Even if life was
taken away illegally, courts are helpless’. Before Proclamation of Emergency there was
strong
political instability in the Country after the Lok Sabha election of Indira Gandhi was termed
as
illegal. This whole exercise was to put opposition under pressure and during the process,
even
Supreme Court made major errors in the judgement and it can be said to be purely
unconstitutional. Only the courage of single judge is said to be worth reading and it was in
favour of humanity and liberty. Justice Bhagwati was quoted as “I have always leaned in
favour
of upholding personal liberty, for, I believe, it is one of the most cherished values of
mankind,
without it life would not be worth living. It is one of the pillars of free democratic society.
Men
have readily laid down their lives at its altar, in order to secure it, protect it and preserve it.
But I
do not think it would be right for me to allow my love of personal liberty to cloud my vision
or to
persuade me to place on the relevant provision of the Constitution a construction which its
language cannot reasonably bear.” The day when this judgment was pronounced, it was
termed
as “darkest day of the democracy” and it was matched with the regime and rise of Hitler. On
top
of all, this judgment did not favour rule of law. As a judge, the focus is on public benefit or
on
something which is good for population but this judgment seemed to favour only one
person.
The judgment in this case can be compared to the judgment of Raj Narain’s case where
Indira
Gandhi was given a clean chit by the Supreme Court after being held guilty by Allahabad
High
Court. One can say that common man’s trust on judiciary has been shaken by these two
judgments which happened almost simultaneously. Justice Khanna solely relied on the
judgment of Makkhan Singh v. State of Punjab[3] in which he noted: “If in challenging the
validity of his detention order, the detenu is pleading any right outside the rights specified in
the
order, his right to move any court in that behalf is not suspended, because it is outside
Article
359(1) and consequently outside the Presidential order itself. Let us take a case where a
detenu
has been detained in violation of the mandatory provisions of the Act. In such a case, it may
be
open to the detenu to contend that his detention is illegal for the reason that the
mandatory
provisions of the Act have been contravened. Such a plea is outside Article 359(1) and tile
right
of the detenu to move for his release on such a ground cannot be affected by the
Presidential
order”. Suspension of Article 21 would simply mean deprivation of right of life and liberty
and
this is against the basic right along with the Articles of Universal Declaration of Human
Rights of
which India is a part. This single case became example of how four able judges of the apex
court of the country made a blunder under the wrong influence of the wrong person. The
Supreme Court violated all fundamental rights with that decision. It was the darkest hour of
Indian judiciary which struck at the very heart of fundamental rights. All four judges with the
exception of Justice Khanna went on to become Chief Justices of India. In 2011, Justice
Bhagwati expressed regret by saying: “I was wrong. The majority judgment was not the
correct
judgment. If it was open to me to come to a fresh decision in that case, I would agree with
what
Justice Khanna did. I am sorry. I don’t know why I yielded to my colleagues. Initially, I was
not in
favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with
them. I was a novice at that time, a young judge…I was handling this type of litigation for the
first time. But it was an act of weakness on my part.” Such acceptance from the judge mean
how grave the situation was that time and what impact it left on India. The apex court
recalled
the comment of former Chief Justice M N Venkatachalliah in the Khanna Memorial Lecture
on
February 25, 2009 that the majority decision in the Emergency case be “confined to the
dustbin
of history”[4].
Aftermath of the judgment-
Soon after the Emergency and all which was done for it were rejected by the majority of
population in 1977, the Supreme Court in Maneka Gandhi v. Union of India[5] changed the
position and gave fundamental character to the right in Article 21 by establishing a link
between
Articles 14, 19 and 21 which was denied in A.K. Gopalan v. State of Madras[6] particularly in
respect of Articles 19 and 21. Both these Articles cannot be separated and not exclusive of
each
other. It was further contended that the object of Presidential order under Article 359 was
to
remove legal problems and it was easier to make laws against fundamental rights. The
obligation of the government to act according to the law and suspension of Article 21 did
not
automatically entail the suspension of rule of law. Following Shivkant Shukla Case, the
Supreme Court in Union of India v. Bhanudas Krishna Gawde[7] went one step further and
held
that Presidential order issued under Article 359 were not circumscribed by any limitation
and
their applicability was not dependent on fulfilment of any condition laid before. These order
impose a blanket ban on any and every judicial enquiry into validity of an order depriving
someone of his liberty, no matter how it originated whether from an order directing the
detention
or from an order laying down the condition of his detention. The majority view in the
Shivkant
Shukla case has been completely negatived by 44th Amendment of the Constitution as well
as
judicial interpretation and therefore, it is no more longer a law. Now the enforcement of
Article
20 and 21 cannot be suspended in any situation and the Court observed that Article 21
binds
not only the executive but also the legislature and thereby correcting Justice Khanna’s
stance
that suspension of Article 21 relieves the legislature of its constraints but not the executive
which can never deprive a person of his life and liberty without the authority of law and
such
detention can be challenged on grounds indicated in Makhan Singh Case. Articles 352 and
359
have not been invoked since revocation of Proclamation of Emergency in 1971 and 1975 in
early 1977. Also, 44th Amendment changed “internal disturbance” into “armed rebellion”
and
internal disturbance not amounting to armed rebellion would not be a ground to the issue
of
Proclamation of emergency. Many such provisions in 44th Amendment for proclamation of
Emergency were made so that no government in future can misuse this provision of
Constitution
which was interpreted unconstitutionally by the Supreme Court.
Conclusion-
The Proclamation and arbitrary use of power by the State machinery and taking away the
personal liberty of a number of people along with judicial stamp can be considered one of
the
most erroneous judgment till date. Supreme Court went on to elaborate the interpretation
of
Article 21 and introduced Public Interest Litigation to gain public legitimacy after it faced
criticism
over the judgment and damage it had done. The wrong interpretation led to infringement of
fundamental rights on whims and fancy of a political figure that had her agenda to fulfil.
While
the judgment is said to be a mistake on many occasions by jurists and apex court, the ruling
has
not been overruled formally even after admitting the error. This was noted by the bench of
Justice Ashok Ganguly and Justice Aftab Alam. In today’s context, Dicey’s Rule of Law which
was explained by Justice Khanna holds much greater force than what it was in 1976. There
has
to be a clear overruling of this judgment so that theoretical nature of Rule of Law can be
made
clear along with its applicability to our justice system. Also, further provisions shall be made
to
ensure that no political agenda should overshadow justice and equity of citizens.
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