Justice K. S. Puttaswamy (Retd.) vs.

Union of India, 2017

Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1

The essence of rule of law is to preclude arbitrary action. Dicey, who propounded the rule of
law, gave distinct meaning to this concept and explained that it was based on three kindered
features, which are as follows:
(i) absence of arbitrary powers on the part of authorities;

(ii) equality before law; and

(iii) the Constitution is part of the ordinary law of the land.

There are three aspects of the rule of law, which are as follows:
(a) A formal aspect which means making the law rule

(b) A jurisprudential or doctrinal aspect which is concerned with the minimal condition for
the existence of law in society.

(c) A substantive aspect as per which the rule of law is concerned with properly balancing
between the individual and society.

When we talk of jurisprudential rule of law, it includes certain minimum requirements

without which a legal system cannot exist and which distinguished a legal system from an
automatic system where the leader imposes his will on everyone else. Professor Lon Fuller
has described these requirements collectively as the 'inner morality of law'. In addition to
jurisprudential concept, which is important and an essential condition for the rule of law, the
substantive concept of the rule of law is equally important and inseparable norm of the rule of
law in real sense. It encompasses the 'right conception' of the rule of law propounded by
Dworkin. It means guaranteeing fundamental values of morality, justice, and human rights,
with a proper balance between these and the other needs of the society.

533. In ADM, Jabalpur v. Shivakant Shukla, a Constitution Bench of this Court arrived at the
conclusion (by majority) that Article 21 is the sole repository of all rights to life and personal
liberty, and, when suspended, takes away those rights altogether. A remarkable dissent was
that of Khanna, J. [ Khanna, J. was in line to be Chief Justice of India but was superseded
because of this dissenting judgment. Nani Palkhivala in an article written on this great Judge's
supersession ended with a poignant sentence, “To the stature of such a man, the Chief
Justiceship of India can add nothing.” Seervai, in his monumental treatise Constitutional Law
of India had this to say:“53. If in this Appendix the dissenting judgment of Khanna, J. has not
been considered in detail, it is not for lack of admiration for the judgment, or the courage
which he showed in delivering it regardless of the cost and consequences to himself. It cost
him the Chief Justiceship of India, but it gained for him universal esteem not only for his
courage but also for his inflexible judicial independence. If his judgment is not considered in
detail it is because under the theory of precedents which we have adopted, a dissenting
judgment, however valuable, does not lay down the law and the object of a critical
examination of the majority judgments in this Appendix was to show that those judgments
are untenable in law, productive of grave public mischief and ought to be overruled at the
earliest opportunity. The conclusion which Justice Khanna has reached on the effect of the
suspension of Article 21 is correct. His reminder that the rule of law did not merely mean
giving effect to an enacted law was timely, and was reinforced by his reference to the mass
murders of millions of Jews in Nazi concentration camps under an enacted law. However, the
legal analysis in this Chapter confirms his conclusion though on different grounds from those
which he has given.” (at Appendix p. 2229).] The learned Judge held: (SCC pp. 747 & 751,
paras 525 & 531) “525. The effect of the suspension of the right to move any court for the
enforcement of the right conferred by Article 21, in my opinion, is that when a petition is
filed in a court, the court would have to proceed upon the basis that no reliance can be placed
upon that article for obtaining relief from the court during the period of emergency. Question
then arises as to whether the rule that no one shall be deprived of his life or personal liberty
without the authority of law still survives during the period of emergency despite the
Presidential Order suspending the right to move any court for the enforcement of the right
contained in Article 21. The answer to this question is linked with the answer to the question
as to whether Article 21 is the sole repository of the right to life and personal liberty. After
giving the matter my earnest consideration, I am of the opinion that Article 21 cannot be
considered to be the sole repository of the right to life and personal liberty. The right to life
and personal liberty is the most precious right of human beings in civilised societies governed
by the rule of law. Many modern Constitutions incorporate certain fundamental rights,
including the one relating to personal freedom. According to Blackstone, the absolute rights
of Englishmen were the rights of personal security, personal liberty and private property. The
American Declaration of Independence (1776) states that all men are created equal, and
among their inalienable rights are life, liberty, and the pursuit of happiness. The Second
Amendment to the US Constitution refers inter alia to security of person, while the Fifth
Amendment prohibits inter alia deprivation of life and liberty without due process, of law.
The different Declarations of Human Rights and fundamental freedoms have all laid stress
upon the sanctity of life and liberty. They have also given expression in varying words to the
principle that no one shall be derived of his life or liberty without the authority of law. The
International Commission of Jurists, which is affiliated to UNESCO, has been attempting
with, considerable success to give material content to “the rule of law”, an expression used in
the Universal Declaration of Human Rights. One of its most notable achievements was the
Declaration of Delhi, 1959. This resulted from a Congress held in New Delhi attended by
jurists from more than 50 countries, and was based on a questionnaire circulated to 75,000
lawyers. “Respect for the supreme value of human personality” was stated to be the basis of
all law (see p. 21 of the Constitutional and Administrative Law by O. Hood Phillips, 3rd
Edn.).
xx xx xx
531. I am unable to subscribe to the view that when right to enforce the right under Article
21 is suspended, the result would be that there would be no remedy against deprivation of a
person's life or liberty by the State even though such deprivation is without the authority of
law or even in flagrant violation of the provisions of law. The right not to be deprived of
one's life or liberty without the authority of law was not the creation of the Constitution. Such
right existed before the Constitution came into force. The fact that the Framers of the
Constitution made an aspect of such right a part of the fundamental rights did not have the
effect of exterminating the independent identity of such right and of making Article 21 to be
the sole repository of that right. Its real effect was to ensure that a law under which a person
can be deprived of his life or personal liberty should prescribe a procedure for such
deprivation or, according to the dictum laid down by Mukherjea, J. in Gopalan case [A.K.
Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR 88] , such law should be a valid
law not violative of fundamental rights guaranteed by Part III of the Constitution.
Recognition as fundamental right of one aspect of the pre- constitutional right cannot have
the effect of making things less favourable so far as the sanctity of life and personal liberty is
concerned compared to the position if an aspect of such right had not been recognised as
fundamental right because of the vulnerability of fundamental rights accruing from Article
359. I am also unable to agree that in view of the Presidential Order in the matter of sanctity
of life and liberty, things would be worse off compared to the state of law as it existed before
the coming into force of the Constitution.” (emphasis in original) S.K. Kaul, J.: