Rule of Law in Indian Constitution (Autosaved)

RULE OF LAW IN INDIAN CONSTITUTION Guided By: Dr. Asad Malik

SUBMITTED BY: MD. ABID HUSSAIN ANSARI TH

B.A. LL.B. (HONS.) 6  SEMESTER

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Acknowledgement Firstly, I would like to express my profound sense of gratitude towards the almighty “ALLAH” for providing me with the authentic circumstances which were mandatory for the completion of my project. Secondly, I am highly indebted to Prof. Dr. Asad Malik at Faculty of Law, Jamia Millia Islamia University, New Delhi for providing me with constant encouragement and guidance throughout the preparation of this project. Thirdly, I thank the Law library staff who liaised with us in searching material relating to the  project. My cardinal thanks are also for my parents, friends and all teachers of law department in our college who have always been the source of my inspiration and motivation without which I would have never been able to unabridged my project. My father, a lawyer with large access to books of value has been of great help to me. Without the contribution of the above said people I could have never completed this project.

Mohd. Abid Hussain Ansari th

B.A.LL.B (Hons) 6  Semester rd

3  Year

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Table of Contents 1. Introduction……………………………………………………………………………… Introduction……………………………………………………………………………… 7

2. Rule of Law under the Indian Constitution…………………………………………… Constitution……………………………………………..12 ..12

3. Rule of Law –  Law –  part  part of the Basic Structure…………………………………………… Structure……………………………………………....28 ....28

4. Put Checks on Governmental Powers…………………………………………………..32 Powers…………………………………………………..32

5. Equality Guarantee and the Protection of Hu man Rights………………………………33 Rights………………………………33

6. Judicial Review by an Independent Judiciary………………………………...………...36 Judiciary………………………………...………...36

7. Conclusion………………………………………………………………………………38 Conclusion………………………………………………………………………………38

8. Bibliography…………………………………………………………………………….41 Bibliography…………………………………………………………………………….41

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List of Cases 1. SP Gupta v Union of India 2. Indira Nehru Gandhi v Raj Narain 3. State of M.P. v. Bharat Singh 4. Ram Jawaya Kapur v. State of Punjab 5. Som Raj v. State of Haryana 6. Union of India v. President, Madras Bar Association 7. Mahabir Prasad Santosh Kumar v. State of U.P. 8. Maganlal Chhaganlal‟s case, 9.  Northern  Northern India Caterers‟ case 10. Union of India v. Raghubir Singh 11. Chief settlement Commissioner Punjab v. Om Prakash 12. Binani Zinc Limited v. Kerala State Electricity Board and O rs 13. Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil 14. Sukhdev v. Bhagatram 15. Secretary, State of Karnataka and Ors. v. Umadevi and Ors 16. Amlan Jyoti Borooah v. State of Assam and Ors 17. Bachan Singh v. state of Punjab 18. P. sambamurthy v. state of Andhra Pradesh 19. Yusuf Khan v. Manohar Joshi 20. Frank Anthony Employees‟ Union v. Union o f India 21. Nakara 21. Nakara v. Union of India. 22. Zee Telifilms v. Union of India 23. C. Ravichandran Iyer v. J.A.M. Bhattacharya 24. In re Vinay Chandra Mishra‟s case 25. DTC v. Mazdoor Congress 26. A.K. Kraipak v. Union of India 27. C.B. Muthumma v. Union of India 28. Air India v. Nargesh Meerza 29. Govt. of A.P. v. P.B. Vijayakumar 30. Madhu Kishwar v. State of Bihar 3|Page

31. Vishaka v. State of Rajasthan 32. Gaurav Jain v. Union of India 33. I.R. Coelho v. State of Tamil Nadu 34. Satwant Singh 35. Jaisinghani‟s case 36. Olmstead v. United States: 37. Mohamed v. President of the Republic of South Africa. 38. Glanrock Estate (P) Ltd v. The State Of Tamil Nadu 39. Smt. Shakti Kumari Gupta v. State Of U.P. And Ors. 40. National 40. National Human Rights Commission v. State of Arunachal Pradesh and Anr. 41. Erusian Equipment and Chemicals Ltd. v. State of West Bengal and Anr 42. A.K. Chaudhary And Ors. v. The State Of Gujarat And 2 Ors., Ors., 43. A.P.Abbu Gounder v. D.K.Goel 44. Maninderjit Singh Bitta v. Union of India and o thers 45. Association of Registration of Plates v. Union of India 46. Manohar Lal Sharma v. The Principle Secretary & Others, 47. Madhu Limaye v. Supdt. Tihar Jail Delhi 48. Sanaboina Satyanarayan v. Govt. of A.P 49. Tamil Nadu Electricity Board v. R. Veeraswamy 50. Shankari Prasad v. Union of India 51. Sajjan Singh v. State of Rajasthan 52. Golaknath v. State of Punjab 53. Keshavananda Bharti v. State of Kerala 54. Raman Dayaram Shetty v. International Airport Authority of India 55. In re: Arundhati Roy 56. Sheela Barse v. State of Maharashtra 57. Veena Sethi v. State of Bihar 58. Medical and Educational Charitable Trust v. State of Tamil Nadu 59. Bijoe Emmanuel v. State of Kerala 60. Express Newspapers v. Union of India and in Bennett Coleman v. Union of India India 61. K Kunhikoman v. State of Kerala 4|Page

62. Rajendram v. State of Madras 63. State of West Bengal v. Anwar Ali Sarkar 64. Northern 64. Northern India Caterers Ltd. v. State of Punjab 65. Ameernnisa Begum v. Mehboob Begum 66. Ram Prasad v. State of Bihar 67. E P Royappa v. State of Tamil Nadu 68. Maneka Gandhi v. Union of India 69. Mithu v. State of Punjab 70. Central Inland Water Corporation v. B N Gangul y 71. DTC v. DTC Mazdoor Congress 72. Common Cause v. Union of India 73. Shivsagar Tiwari v. Union of India 74. Francis Coralie v. Union Territory of Delhi 75. Supreme Court Advocates on Record Association v. Union of India 76. In re, Presidential Reference 77. T.N. Godavarman Thirumulpad case 78. ; R D Shetty v. International Airport Authority 79. Ajay Hasia v. Khalid Mujib 80. A L Kalra v. Project &Equipment Corporation Co rporation 81. Sunil Batra v. Delhi Administration 82. Olga Tellis v. Bombay Municipal Corporation 83. Bandhua Mukti Morcha v. Union of India 84. onsumer Education & Research Centre v. Union of India 85. Bodhisattwa Gautam v. Subhra Chakraborty 86. Munn v. Illinois 87. Parmanand Kataria v. Union of India 88. Paschim Banga Khet Mazdoor Samity v. State of West Bengal 89. Unni Krishnan v. State of 90. Indian Council for Enviro Legal Action v. Union of India 91. M C Mehta v. Union of India 92. Vellore Citizens Welfare Forum v. Union of India 5|Page

93. Narmada 93. Narmada Bachao Andolan v. Union of India 94. Gauri Shankar v. Union of India 95. A P Pollution Control Board II v. M V Nayudu 96. Govind v. State of MP 97. R Raj Gopal v. State of Tamil Nadu 98. PUCL v. Union of India 99. „X‟ v. Hospital Z 100.

M H Hoskot v. State of Maharashtra

101.

Hussainara Khatoon v. State of Bihar

102.

Khatri v. State of Bihar

103.

Suk Das v. Union Territory of Arunachal Pradesh

104.

Hussainara Khatoon (I) to (VI) v Home Secretary, Bihar

105.

Kadra Pahadiya v. State of o f Bihar

106.

Common Cause v. Union of India

107.

Rajdeo Sharma v. State of Bihar

108.

Prem Shankar v. Delhi Administration

109.

Munna v. State of UP

110.

Kirloskar Brothers Ltd. v. ESIC

111.

Rudul Sah v. State of Bihar

112.

Bhim Singh v. State of J & K

113.

 Nilabati Behra v. State of Orissa

114.

Mithu v. State Punjab

115.

 Naz Foundation v. Government of Delhi

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Introduction Where the law is subject to some other authority and has none of its own, the collapse of the  state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods  shower on a state”. -

 Plato

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Dicey said :

“ It means, in the first place, the 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 of wide discretionary authority on the part of the government.  Englishmen are ruled by the law, law , and by the law alone; a man may with us u s be punished  for a breach of law, but he can be punished for nothing else. It means, again, equality before the law, or the equal subjection of all classes to the ordinary law courts; the „ rule r ule of law‟   in this sense excludes the idea of any exemption of officials or others from the

duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals; there can be with us nothing really corresponding to the „administrative law‟  (droit administratif) or the „administrative tribunals‟ (tribunaux administratifs) of France. The notion which lies at the bottom of the „administrative law‟

known to foreign countries is, that affairs or disputes in which the Government or its  servants are concerned are beyond the sphere of the civil courts and must be dealt with by special and more or less official bodies. This idea is utterly unknown to the law of  England, and indeed is fundamentally inconsistent with our traditions and customs.” According to Dicey, the Rule of Law, as he formulated it, was a principle of the English Constitution. The preface to the first edition says that the book “deals with only two or three  guiding principles which pervade the modern Constitution of England,” England,” and the book shows that the Rule of Law is one such principle. This is important, for the modern version of that rule does

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 A.V. Dicey, Law of the Constitution (1885)

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not assert that it is a principle of the English Constitution, but that the rule is an ideal by reference to which that Constitution must be judged. Rule of Law  is the basic necessity for maintaining peace in the country. Constitution is supreme

law of the nation and it is all about politics and as we know politics is all about unpredictability. So in this assignment, I am concerned on the problems which cause threat to the Rule of Law in the society. And what can be done to maintain this Rule in the society for proper functioning of the legislature India is the largest democratic country in the world. It attained freedom 67 years ago, has a thriving institutions like Parliament, State Assemblies and Panchayat. Our constitution is written in such a manner that everyone would get equal opportunity. Our nation has three organs, namely, executive, executive,  judiciary   judiciary  and legislative. legislative. All the three are been bestowed with independent and autonomous powers to make and implement the rules depending on the changing society so that the nation can run smoothly. By exercising the power of adult franchise the common people choose their leaders. The leaders have vision, shape our future and implement people‟s programmes. But this is not the truth. the truth. We see stark reality of destitution, malnutrition, illiteracy, joblessness in the independent India. Roughly, 15% of people are well off, economically. They are industrial tycoons, financial conglomerates, politicians, and their touts, media and intelligentsia are in the rich layer and ruthlessly exploiting the rest of us. The majority are living without prop er housing, education and healthcare. Politicians, criminals and police have forged an unholy nexus. As the scams keep multiplying, we, the common people feel shame. The exploitation by leaders who have been mandated to conserve, develop and protect the citizen at large is disgusting. Coffingate   was bribe taken by the  was war  backpay  defence ministry to bury the martyrs of the Kargil war  . Bof ors gun backpay   scandal  scandal was alleged

in premiership of Mr. Rajiv Gandhi. Tehelka    exposed bribes taken by M r. Bangaru l axman, axman, . The involvement of Army in the A darsh H ousing BJ P National Pr esident  ousin g Society Society episode  episode is damage to our most revered institution. Even the air force and navy personals are deeply involved. Another skeleton has popped of the cupboard, in the form of 2G spectru , causing a spectru m  loss of Rs. 1, 80,000 crore to the national exchequer. The undervaluation of Public Sector Unit 8|Page

disinvestment also has been under investigation. A failed public distribution system (PDS) and the Union F ood   got reprimanded by the Honorable  got ood & Agricultur e Min iste isterr M r. Sharad Sharad Paw Pawar  ar  Supreme Court when food grains went rotting instead of reaching the starving millions. The  politicians of Uttar Pradesh were siphoning food grains to offshore countries to mint money for themselves, instead of feeding their countrymen and women. The bribes  – forfor- loan scam has exposed leading Banks and LIC Housing Fund. Economic inequality has to be fought on the political plane. The Bihar Assembly election of 2010 has given a new dimension to the nation. The landslide victory for the agenda of development put forth by Mr. Nitish is phenomenal, and has dealt a big blow the caste ridden, divisive, feudalistic and parochial policies of the other leaders. 2  of l aw  is of old origin and is an ancient ideal. It was discussed by ancient The concept of Rule of

Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote: “Where the law is  subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the  situation is full of promise and men enjoy all the blessings that the gods shower on a state”. state”. Likewise, Aristotle also endorsed the concept of Rule of law by writing that "law should govern and those in powers should be servants of the laws.” The phrase „Rule of Law‟   is derived from the French phrase „la principe de legalite‟  (the  principle of legality) legality) which refers to a government based on principles of law and not of men. Rule of law is one of the basic principles of the English Constitution and the doctrine is accepted in the Constitution of U.S.A and India as well. The entire basis of  Administrative Law  Law  is the doctrine of the rule of law. The Rule of Law, in its most basic form, is the principle that no one is above the law. The rule follows logically from the idea that truth, and therefore law, is based upon fundamental  principles which can be discovered, but which cannot be created through an act of will.

2

 H.M. Seervai, “The Supreme Court of India and the Shadow of Dicey”  in The Position of the Judiciary under the Constitution of India , pp. 83-96 (1970)

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In fact, the Supreme Court has declared the rule of law to be one of the 'basic features'  of   of the 3

Constitution.

, the Chief Justice of King James I‟s reign was the originator of this concept. Sir Edward Coke  He maintained that the King should be under God and the Law and he established the supremacy of the law against the executive and that there is nothing higher than law. 4  5  Later, Al bert bert Venn Venn Di cey  cey   developed the concept in his book „The Law of the Constitution‟  .

His writing on the British Constitution (which is unwritten) included three distinct though kindered ideas on Rule of law: 1. Absence   viz. no man is above law. No  viz. Absence of of discretion ary powers and supr emacy of L aw:  man is punishable except for a distinct breach of law established in an ordinary legal manner before ordinary courts. The government cannot punish any one merely by its own fiat. Persons in authority do not enjoy wide, arbitrary or discretionary powers. Dicey asserted that wherever there is discretion there is room for arbitrariness. 2. Equality before law:   Every man, whatever his rank or condition, is subject to the ordinary law and jurisdiction of the ordinary courts. No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land. 3. Predominance of legal spirit:   The general principles of the British Constitution, especially the liberties and the rights of the people must come from traditions and customs of the people and be recognized by the courts in administration of justice from time to time. The expression „rule of law‟  is  is one which, over the years, has been used to convey a wide variety of ideas and has a number of meanings and corollaries including their criticisms. In common  parlance it is often used simply to describe the state of affairs in a country where, in the main, the law is observed and order is kept  –  i.e.,   i.e., as an expression synonymous with „law and order‟ . To  public lawyers, however, the phrase conveys something a little more precise. For them, the  phrase is inextricably linked with the writings of Dicey. Dicey. 3

 Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2 295; SP Gupta v Union of India, AIR 1982 SC 149  A British jurist and constitutional theorist 5  (1885) 4

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The term „rule of law‟  is  is not used in the Indian Constitution anywhere, but there is no doubt that the rule of law pervades the Constitution as an underlying principle. In fact, the Supreme Court has declared the rule of law to be one of the „basic features‟ of the Constitution, so this principle cannot be taken away even by a constitutional amendment. In this assignment I will try to focus on the Indian conception of the rule of law is both formal and substantive. It is also seen as an integral part of good governance. 6 

The State of of M .P. v. Bh arat Sin Sin gh  also did not raise any question about Dicey‟s Rule of Law, though it did raise a question about the Rule of Law in the strict legal sense. In Bh arat Sin Sin gh case, it was contended that as the executive power of the State was co-extensive with its legislative power, an executive order restricting the movements of a citizen could be passed without the authority of any law, and the Supreme Court‟s decision in Ram Jawaya Jawaya Kapur v. 7 

State State of of Punj ab   was relied upon to support the contention. The Supreme Court could have

 pointed out, but did not, that the principle of Kapur case directly negatived the contention when that case held that though the authority of law was not necessary for Government to carry on trade, such authority was necessary was necessary when it became necessary to encroach upon private rights in order to carry on trade. The Supreme Court distinguished Kapur case on the ground that it involved no action prejudicial to the rights of others. Even so, Bh arat Sin Sin gh case is really disposed of by the court‟s observation that “every act done by the Government or b y its officers must, if it is to operate to the prejudice of any person be supported by some legislative authority,”  authority,”  for that is the strict legal meaning of the Rule of Law. For reasons which I have already given, it was wholly unnecessary to refer to the first meaning which Dicey gave to the Rule of Law, or to Dicey‟s contrast between the English and the Continental systems. The Supreme Court observed in Som Raj v. State of H aryana    that the absence of arbitrary  power is the primary postulate of Rule of Law upon which the whole constitutional edifice is dependent. Discretion being exercised without any rule is a concept which is antithesis of the concept.

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 [AIR 1967 SC 1170]  (1955) 2 SCR 225

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Rule of Law under the Indian Constitution In India, the concept of Rule of law can be traced back to the Upanishads. In modern day as well, the scheme of the Indian Constitution is based upon the concept of rule of law. The framers of the Constitution were well familiar with the postulates of rule of law as propounded by Dicey and as modified in its application to British India. It was therefore, in the fitness of things that the founding fathers of the Constitution gave due recognition to the concept of rule of law. The doctrine of Rule of Law as enunciated by Dicey has been adopted and very succinctly incorporated in the Indian Constitution. The ideals of the Constitution viz; justice, liberty and equality are enshrined in the Preamble itself (which is part of the Constitution). The Constitution of India has been made the supreme law of the country and other laws are required to be in conformity with it. Any law which is found in violation of any provision of the Constitution, particularly, the fundamental rights, is declared void. The Indian Constitution also incorporates the principle of equality before law and equal protection of laws enumerated by Dicey under Article 14. Constitution of India: Article 14 :- “Equality before law  –  The State shall not deny to any

 person equality before law or equal protection of laws within the territory of India.” India.” The very basic human right to life and personal liberty has also been enshrined under Article 21. Article 19(1) (a) of the Indian Constitution guarantees the third principle of the Rule of law ( freedom  freedom of speech and Expression). Expression). No person can be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence is also very well recognized in the Indian Constitution. The principles of double jeopardy and selfincrimination also found its rightful place in the Constitution. Articles 14, 19 and 21 are so basic that they are also called the golden triangle Articles of the Indian Constitution. The Constitution also ensures an independent an impartial Judiciary to settle disputes and grievances for violation of fundamental rights by virtue of Articles 32 and 226. In Uni on of of 8 

India v. President, President, M adras Bar Association  Association , the Supreme Court held that “Rule of Law has

 several facets, one of which is that disputes of citizens will be decided by Judges who are 8

 CIVIL APPEAL NO.3067 OF 2004

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independent and impartial; and that disputes as to legality of acts of the Government will be decided by Judges who are independent of the Executive.” Ju sti ce R.S. R.S. Pathak of the Hon‟ble Supreme Court has observed that “It must be remembered

that our entire constitutional system is founded on the rule of law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.” In M ahabir Pr asad asad Santosh Santosh Ku mar v. State of U.P., the District Magistrate had cancelled the license granted under the U.P. Sugar Dealers Licensing Order, 1962 without giving any reason and the State Government had dismissed the appeal against the said order of the District Magistrate without recording the reasons. This Court has held: “The practice of the executive authority dismissing statutory appeals against orders which prima facie seriously prejudice the rights of the aggrieved party without giving reasons is a negation of the rule of law.” law. ” “Recording of reasons in support of a decision on a disputed claim by a quasi- judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just.” In S.P. Gupta case  , the petitioners had raised the question of alleged misuse of power of appointing and transferring the Judges of the High Court by the Government. In order to make sure that the power of appointment of Judges was not used with political motives thereby undermining the independence of the judiciary, the petitioners sought information as to whether the procedures laid down under Articles 124(2) and 217(1) had been scrupulously followed. Here the right to information was a condition precedent to the rule of law. Most of the issues, which the Mazdoor Kisan Shakti Sangathan of Rajasthan had raised in their mass struggle for the right to information, were mundane matters regarding wages and employment of workers, such information was necessary for ensuring that no discrimination had been made between workers

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and that everything had been done according to law. The right to information is thus embedded in Articles 14, 19(1) (a) and 21 of the Constitution. cas e, a Bench of seven learned Judges of this Court considered, inter In Maganlal Chhaganlal‟s case

alia, the question: whether a judgment of the Supreme Court in Northern India Caterers‟ case was required to be overruled. Khanna, J. observed: “At the same time, it has to be borne in mind that certainty and continuity continuity are essential ingredients of rule of law. Certainty in law would be considerably eroded and suffer a serious setback if the highest court of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which come up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in the earlier case was a better view of the matter would not  justify the overruling of the view. The law laid down do wn by this Court is binding upon all courts in the country under Article 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken  place is held to be not the correct law.” The rule of law highlights the independence of the judiciary and the supremacy of courts. It is rightly reiterated by the Supreme Court in the case Union of  v. Raghubir  that   that it is of I ndia  Raghubir Sin gh  not a matter of doubt that a considerable degree that governs the lives of the people and regulates the State functions flows from the decision of the superior courts. In Chi ef settl ement   , it was observed by the supreme ment Commiss Commission er Punj ab v. Om Prak ash  ash  court that, “In our constitutional system, the central and most characteristic feature is the concept of rule of law which means, in the present context, the authority of law courts to test all administrative action by the standard of legality. The administrative or executive action that does not meet the standard will be set aside if the aggrieved person brings the matter into notice.” In India, the meaning of rule of law has been much expanded. It is regarded as a part of the basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by 14 | P a g e

Parliament. The ideals of constitution; liberty, equality and fraternity have been enshrined in the  preamble. Constitution makes the supreme law of the land and every law enacted should be in conformity to it. Any violation makes the law u ltra vires. 9 

In the case of Bin ani Zinc Li mited mited v. Kerala State El ectri city Board and Ors ., Ju sti ce S B he rule of law inter alia sinha declare that “It is now a well settled principle of law that t he  postulates that all laws would be prospective subject of course to enactment an express provision or intendment to the contrary.” In contrary.” In the case of Gadakh Yas Yashwantr ao Kank arr ao v. Balasaheb   the ratio laid down was “If the rule  the the rule of law has to be preserved as the essence of the Vik he Patil  Patil  democracy of which purity of elections is a necessary concomitant, it is the duty of the courts to appreciate the evidence and construe the law in a manner which would subserve this higher  purpose and not even imperceptibly facilitate acceptance, much less affirmance, of the falling electoral standards. For democracy to survive, rule of law must prevail, and it is necessary that the best available men should be chosen as people's representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values who win the elections on a positive vote obtained on their own merit and not by the negative vote of process of elimination based on comparative demerits of the candidates.” In the case of Sukhdev v. Bh agatram, agatram, Mathew J. declared that “Whatever be the concept of the rule of law, whether it be the meaning given by Dicey in his " The Law of of the Cons Constituti tituti on" or the definition given by H ayek ayek in his " Road Road to Se Serf dom"  dom"   and " Cons Constitution titution of liberty"  liberty"   or the exposition set-forth by H arr y Jones in his " Th e Rul e of L aw and  , there is, and the Welf Welf are State State"  "  as pointed out by M athew,  , in his article on " The Welf athew, J. , Welf are State State,, Rule of of L aw and and Natur al Justice"  in " Democrac Democracy, y, Equality and F reedo reedom, m," "substantial agreement is in juristic thought

that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power, wherever it is found". It is indeed unthinkable that in a democracy  governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it

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makes no difference whether the exercise of the power involves affection of some right or denial of some privilege."  In Secretar Secretar y, State State of Kar natak a and Or s. v. Umadevi and Or s, a Constitution Bench of this Court has laid down the law in the following terms: “Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution.” In the case of Aml an Jyoti  v.  v. State of Assam . It was held by S B Sinh a   that:   that: Jyoti B orooah  orooah  Assam and Or s  “Equity must not be equated with compassion. Equitable principles must emanate from facts which by themselves are unusual and peculiar. A balance has to be struck and the Court must be cautious to ensure that its endeavour to do equity does not amount to judicial benevolence or acquiescence of established violation of fundamental rights and the principles of Rule of law.” Moreover, In the case of Bachan Singh v. state of Pun jab  , Justice Bhagwati  has emphasized that rule of law excludes arbitrariness and unreasonableness. To ensure this, he has suggested that it is necessary to have a democratic legislature to make laws, but its power should not be unfettered, and that there should be an independent judiciary to protect the citizens against the th y v. state of of excesses of executive and legislative power. In addition to this in P. sambamur thy An dhr a Prades Pradesh  , the SC has declared a provision authorizing the executive to interfere with

tribunal justice as unconstitutional characterizing it as “violative of the rule of law which is clearly a basic and essential feature of the constitution” Yet another case is of Yusuf  v.  v. M anohar Joshi   in which the SC laid down the proposition  in Yusuf K han  Joshi  that it is the duty of the state to preserve and protect the law and the constitution and that it cannot permit any violent act which may negate the rule of law. Hence, it is quite evident that the concept of rule of law is gaining importance and attention and  judicial efforts are made to make it stronger.

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The opposite of rule of law is rule of person. The rule of law is necessarily rule by men, for the law is inert. Men are necessary to enforce the law, but all men are prone to interpret the law through their own knowledge, interpretation, and ethical sense. At best a set of laws are a wellintended guidebook for the application of justice by the rule of men. In spite of an apparently enviable position of the subjects in almost all the fields of industry, commerce, education, transport, banking, insurance etc. there is interference by the administrative authorities with the actions of the individuals, companies and other corporate and non-corporate bodies, observes Justice Ramaswamy . There is a large amount of discretion involved in the administrative work.

For e.g.: for the purpose of national planning the executive is armed with vast powers in respect of land ceiling, control of basic industries, taxation, mobilization of labour etc. Even Parliament  passes acts which are opposed to personal liberty such as preventive detention act or maintenance of Internal Security act 1971, national security act 1980. Even the simplest thing like discriminate payment of employees can be termed as inequality, as opposed to rule of law. The case Frank Anthony Employees‟ Union v. Union of I ndia is concerned with discrimination in payment to employees, which was held to violate the person‟s right to equality and unreasonable classification of pensioners was held to be arbitrary in the case Nakara   v.  v. Uni on of of . India  In the present scenario where disinvestment of the public sector is in full swing and the private enterprises are stepping into the zone of public sector, there is a responsibility upon the private enterprise to maintain the rule of law in their conduct. Reference may be made to the dissenting view of S.B.Sinha J. in Zee  v.  v. Union of , where he points that in the new market Zee Telif il ms  of I ndia  economy we need to change the definition of State under article 12 of the Constitution. The  private bodies have assumed quasi-public dimension and the state intervention is decreasing every day. Criminal process and rule of law: it would amoun t to rule of law: When there is certainty of rule of law. “The “The rule of law means that decisions should be made by the application of known principles and rules in general, such decisions should be predictable

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and the citizens should know where he is. A decision without any principle or rule is un 10

 predictable and is the antithesis antithesis of a decision in accordance with the rule of law” 11 

In C. Ravichandr  v.  v . J.A.M . Bh attacharya Ravichandr an I yer  yer  attacharya,,

the court observed that that the rule of law

and judicial review are the basic features of the constitution as its integral constitutional structure. Independence of judiciary is an essential attribute of rule of law. If there is one  principle which runs through the entire fabric of the constitution, it i s the principle of rule of law and under the constitution it is the judiciary which is entrusted with the task of keeping every organ of the state within the limits of law, thereby making rule of law more meaningful and effective. 12  Chandr a Mishra‟s case  stated that “the rule of law is the The Supreme Court, in  In re Vinay Chandra

 foundation of a democratic society. The judiciary is the guardian of rule of law. In a democracy like ours where there is written constitution which is above all individuals and institutions and where the power of judicial review is vested in the superior court, the judiciary has a special and additional duty to perform i.e. to see that all the individual and institutions including the executive and legislative act within the framework of not only law but also the fundamental law of the land.” land.” 13  In D TC v. M azdoor azdoor Congr ess  , the Supreme Court held that uncannalised discretion vested in

the administrative authority is not permissible. 14 

In A.K. Kraipak   v.  v. Union of of I ndia  , the court held that the concept of rule of law would lose its validity if the instrumentalities of the state are not charged with the duty of discharging their functions in a fair and just manner. The court further stated that the aim of natural justice is to secure justice or to put it negatively, prevent miscarriage of justice. They do not supplant the law of the land but supplement it. The horizon of natural justice is constantly expanding ant it covers not only quasi-judicial but also administrative powers.

10

 (AIR 1967 SC 1427)  (1995) 5 SCC 457 12  (1996) 2 SCC 584 13  AIR 1991 SC 101 14  AIR 1970 SC 150 11

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15 

In case of C.B. C.B. M uthumma v. Union of of I ndia  , a writ petition was filed by Ms Muthamma, a senior member of the Indian Foreign Service, complaining that she had been denied promotion to Grade I illegally and unconstitutionally. She pointed out that several rules of the civil service were discriminatory against women. At the very threshold she was advised by the Chairman of the UPSC against joining the Foreign Service. At the time of joining she was required to give an undertaking that if she married she would resign from service. Under Rule 18 of the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961, it was provided that no married woman shall be entitled as of right to be appointed to the service. Under Rule 8(2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961, a woman member of the service was required to obtain permission of the Government in writing before her marriage was solemnised. At any time after the marriage she could be required to resign if the Government was confirmed that her family and domestic commitments were likely to come in the way of the due and efficient discharge of her duties as a member of the service. On numerous occasions the  petitioner had to face the consequences of being a woman and thus suffered discrimination, though the Constitution specifically under Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth and Article 4 provides the principle of equality before law. 16 

In case of Air I ndia   v.  v. N arge ndia  ar ges sh M eer za  , Nargesh Meerza filed a writ petition, In this case, the air-hostesses of the Air-India International Corporation had approached the Supreme Court against, again, discriminatory service conditions in the Regulations' of Air-India. The Regulations provided that an air-hostess could not get married before completing four-years of service. Usually an air-hostess was recruited at the age of 19 years and the four-year bar against marriage meant that an air-hostess could not get married until she reached the age of 23 years. If she married earlier, she had to resign and if after 23 years she got married, she could continue as a married woman but had to resign on becoming pregnant. If an air hostess survived both these filters, she 'continued to serve until she reached the age of 35 years. It was alleged on behalf of the air-hostesses that those provisions were discriminatory on the ground of sex, as similar  provisions did not apply to male employees doing similar work.

15

 (1979) 4 SCC 260)  ((1981) 4 SCC 335)

16

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The Supreme Court upheld the first requirement that an air-hostess should not marry before the completion of four years of service. The court held that: "It was a sound and salutary provision. Apart from improving the health of the employee it helps a great deal in the promotion and boosting up of our family planning programme." However, this argument given by the Court came in for criticism that as the requirements of age and family planning were warranted by the population policy of the State and once the State had fixed the age of marriage, i.e. 18 years, the reasoning advanced for upholding the rule was a camouflage for the real concern. The Supreme Court struck down the Air-India Regulations relating to retirement and the  pregnancy bar on the services of Air-hostesses as unconstitutional on the ground that the conditions laid down therein were entirely unreasonable and arbitrary. The impugned Regulation 46 provided that an air hostess would retire from the service of the corporation upon attaining the age of 35 years or on marriage, if it took place within 4 years of service, or on first pregnancy, whichever occurred earlier. Under Regulation 7, the Managing Director was vested with absolute discretion to extend the age of retirement prescribed at 45 years. Both these regulations were struck down as violative of Article 14, which prohibits unreasonableness and arbitrariness. Reservations of seats for women in local bodies or in educational institutions have been upheld. 17 

The Supreme Court in Govt. Govt. of A.P. v. P.B. Vij ayakumar  ayakumar  , held that reservation to the extent of 30% made in the State Services by the Andhra Pradesh Government for women candidates was valid. The Division Bench of the Supreme Court emphatically declared that the power conferred upon the State by Article 15(3) is wide enough to cover the entire range of State activity including employment under the State. The power conferred by Article 15(3) is not whittled down in any manner by Article 16. 18  In Madhu Kishwar  v. State of B ih ar  , the Supreme Court dealt with the validity of the

Chotanagpur Tenancy Act, 1908 of Bihar which denied the right of succession to Scheduled Tribe women as violative of the right to livelihood. The majority judgment however upheld the validity of legislation on the ground of custom of inheritance/succession of Scheduled Tribes. 17

 (1995 (4) SCC 520)  { (1996) 5 SCC 145}

18

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Dissenting with the majority, Justice K. Ramaswamy   felt that the law made a gender-based discrimination and that it violated Articles 15, 16 and 21 of the Constitution. In his dissenting  judgment he said: "Legislative and executive actions must be conformable to and for effectuation of the  fundamental rights guaranteed in Part III, Directive Principles enshrined in Part IV and the  Preamble of the Constitution which constitute the conscience of the Constitution. Covenants of the United Nations add impetus and urgency to .eliminate gender-based obstacles and discrimination. Legislative action should be devised suitably to constitute economic empowerment of women in socio-economic restructure for establishing eg alitarian social order." 19  Raj asth th an  , the Supreme Court, in the absence of legislation in the field In Vishaka v. State of Rajas

of sexual harassment of working women at their  place  place of work, formulated guidelines for their  protection. The Court said: "Gender equality includes protection from sexual harassment and right to work with dignity which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. In the absence of domestic law occupying the field, to  formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in articles 14, 15, 19(1}(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein and for the formulation of guidelines to achieve this purpose." 20 

In Gaurav Jain   v.  v. Union of of I ndia  , the condition of prostitutes in general and the plight of their children in particular were highlighted. The Court issued directions for a multi-pronged approach and mixing the children of prostitutes with other children instead of making separate provisions for them. The Supreme Court issued directions for the prevention of induction of women in various forms of prostitution. It said that women should be viewed more as victims of adverse socio-economic circumstances than offenders in our society.

19

 (AIR 1997 SC 3011)  (1997 (8) SCC 114)

20

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In a Nine bench decision in January 2007 in the case of I .R. Coelh , Coelh o v. State of T amil Nadu  Rule of Law is regarded as part of the basic structure of the Constitution. Consequently Rule of Law cannot be abolished even by a constitutional amendment. This manifests the high status accorded to the Rule of Law in Indian constitutional jurisprudence. And, mind you, that is not merely in theory. In practice the Indian Supreme S upreme Court has vigorously enforced the Rule of Law. In the case of Satwant Singh   which was argued in 1967 before the Supreme Court and successfully persuaded the Supreme Court to hold that in a matter concerning the fundamental right of a person to travel abroad total absence of any law would result inevitably on arbitrariness and that was itself violative of the Rule of Law. After the judgment the Passport Act 1967 was enacted to regulate grant, refusal, revocation and impounding of the passports. The Indian Supreme Court in its decision in  Jaisinghani‟s case in 1967 ruled that “the  first essential of the rule of law upon which our whole constitutional system is based is that discretion, when conferred upon executive authorities, must be confined within clearly defined limits”. The limits”. The Court reaffirmed this position and held in 1975 that “in a government under law, there can be no such thing as unfettered unreviewable discretion”.  discretion”.  The Court referred to the famous statement of Justice Douglas of the US Supreme Court   that “Law has reached its  finest moments when it has freed man from the unlimited unlimited discretion of some ruler …  Absolute discretion is a ruthless master. Where discretion is absolute, man has always suffered”. it ed States  States  Justice Brandies has rightly said in his judgment in Olmstead v. Un ited : “Crime is

contagious. If the government becomes a law-breaker, it breeds contempt for law; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means –  means –  to  to declare that the government may commit crimes in order to secure the conviction of a private criminal  –  would bring terrible retribution”.  retribution”.  These words had a special resonance in the Constitutional Court of South Africa in the case of  M  M ohamed  ohamed v. President President of the Republi Republi c of South Af ri ca. ca. 21  In Glan rock Estate (P) L td v. Th e State State Of T amil Nadu  , it was held that Right to Equality

 before law, Right to Equality of Opportunity in matters of public employment, Right to Protection of life and personal liberty, Right against Exploitation, Right to Freedom of Religion 21

 On 9 September, 2010; WRIT PETITION (CIVIL) NO. 242 OF 1988

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etc. are all fundamental rights guaranteed under Part III of the Constitution and a common thread running through all the Articles in Part III of the Constitution have a common identity committed to an overarching principle which is the basic structure of the Constitution. Rule of law is often said as closely inter-related principle and when interpreted as a principle of law, it envisages separation of powers, judicial review, restriction on the absolute and arbitrary powers, equality, liberty etc. Separation of powers is integral part of rule of law which guarantee independence of  judiciary which is a fundamental principle viewed as a safeguard against arbitrary exercise of  powers, legislative and constitutional. Doctrine of absolute or unqualified parliamentary sovereignty is antithesis to rule of law. Doctrine of parliamentary sovereignty may, at times, make rule of law and separation of powers subservient to the wish of the majority in parliament. Parliamentary supremacy cannot be held unqualified so as to undo the basic structure. Basic structure doctrine is, in effect, a constitutional limitation against parliamentary autocracy. Let us, however, be clear that the principles of equality inherent in the rule of law does not averse to the imposition of special burdens, grant special benefits and privileges to secure to all citizens  justice, social and economic and for implementing the directive principles of state policy for establishing an egalitarian society. 22

In Smt. Shakti .,  it was held that In the instant case, Shakti Kumar i Gu pta v. State State Of U .P. And Or s  the said hopes have been belied blatantly and without any justified excuse. The police in spite of having full information did not rise to the occasion and sacrificed promptness in favour of laxity,  presumably to leniently deal with the matter and unduly protect the respondent No, 5. Delay in  justice is denial of the same and is a negation of the fundamental rights guaranteed under Article 21 of the Constitution. That, which was supposed to be jealously guarded, was left open for wanton violation and destruction. The constitutional rights of the petitioner under Article 300A have been violated on account of absence of timely intervention by the police. To put it  precisely, the police failed to take action and waited till this Court wielded its authority by issuing orders. The Court has been compelled to issue prerogative Writs on account of a total failure on the part of the authorities particularly the police who failed to restore the rule of law. The failure was both ways, firstly by not taking immediate action against the respondent No. 5  by launching appropriate criminal proceedings and allowing him to forcefully occupy the

22

 on 1 December, 2005: 2006 (2) AWC 1525

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 premises and secondly by not timely setting its own house in order. This sort of a situation destroys the faith of the public in the system which brings the rule of law under threat of extinction. In the decision of Nati onal H uman Right s Commiss Commission v. State of A ru nachal Prades Pradesh and 23 

Anr.  , wherein the Hon'ble Supreme Court has laid down as under:

“We are a country governed by the Rule of Law; our Constitution confers certain rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus, the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise, and it cannot permit anybody or group of persons e.g. the AAPSU to threaten the Chakmas to leave the State failing which they would be forced to do so. No State Government worth the name can tolerate such threats by one group of persons to another group of persons, it is duty bound to protect the threatened group from such assaults and if it fails to do  so, it will fail to perform its constitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law. The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas resid ing ing in the State without being inhibited by local politics.” 24  usian Equi pment pment and Chemicals Chemicals Ltd. v. State of W est B engal and A nr . , the Supreme In Er usian

Court observed that where a Government activity involves public element, the "citizen has a right to claim equal treatment", and when "the State acts to the prejudice of a person, it has to be  supported by legality."  Functioning   Functioning of a "democratic form of Government demands equality and absence of arbitrariness and discrimination. 25 

In A.K. Chaudhary An d Ors. v. Th e State Of Gu jar at An d 2 Ors., Ors.,   the question before the court is Life is dear to everybody and death is painful to one and all. Should sentiments prevail or discipline for the administration of any institution? Can sentiments be allowed to be enforced over rule of law? The Court held that There cannot be a dispute to the proposition that no one is above law, but at the same time if the Court on merits finds that no case is made out for 23

 1996 AIR 1234, 1996 SCC (1) 742  1975 AIR 266, 1975 SCR (2) 674 25  on 9 September, 2005: 2006 CriLJ 726 24

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commission of offence as per law, it would be improper either to decline the relief merely on the ground that any party to the proceeding is holding high position in the organization or to grant relief merely on the ground that either party to the proceeding is lower in rank. In the system of administration of justice as per Constitution of India and law, such aspects have no legs to stand. Suffice it to say that this Court has to uphold the rule of law irrespective of the position of either of the parties to the proceedings before it. Therefore, the said attempt of Mr. Jani cannot be entertained and deserves to be rejected at the outset only. 26 

In A.P.Abbu Goun der   v.  v. D.K.Goel  , This court can take judicial note that in a number of cases; der  the orders passed by this Court are not complied with by the Central and State Governments. It only shows that there is no mechanism available with the Central and State Governments to implement Court orders properly and in time. Even if mechanism is available, it is not effective. Hence this court feels that such practice should be prevented/stopped. Otherwise there cannot be effective functioning of judiciary as it would denote end of rule of law. The Hon'ble Supreme Court as well as this court has declared that disobedience of orders of the courts strikes at the very root of rule of law on which the judicial system rests. The Hon'ble Apex 27 

Court in Maninderjit Singh Bitta  v. Union of India and others  , considered the nonimplementation of orders passed by the Apex Court in Association Association of Registr Registr ation of Pl ates  ates v. 28 

29 

Union of of I ndia   which was reiterated in M aninderj aninderj it Singh v. Union of of I ndia  . The issue in

the above matter was regarding introduction of a scheme regulating issuance and fixation of high security number plats. The Supreme Court fixed time limit for implementation. However, the  judgement of the Hon'ble Supreme Court was not implemented by many of the states. In the contempt petition, the Hon'ble Supreme Court of India in M aninderj aninderj it Singh Singh Bi tta v. Uni on of of 30 

I ndia and another  another   held as follows:

"26. it is also of some relevance to note that disobedience of court orders by positive or active contribution or non-obedience by a passive and dormant conduct leads to the same result. Disobedience of orders of the court strikes at the very root of the rule of law on which the 26

 on 20 February, 2013; Cont.Petn.No.1858 of 2012  reported in 2012 (1) SCC 273 28  reported in 2005 (1) SCC 679 29  reported in 2008 (7) SCC 328 30  reported in (2012) 1 SCC 273, at paragraphs 26,27 and 29 of 2012 (1) SCC 273 27

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 judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the 31

courts have to be respected and protected at all costs.  The proceedings before the highest court of the land in public interest litigation attain even more significance. These are the cases which come up for hearing before the court on a grievance raised by the public at large or publicspirited persons. The State itself places matters before the Court for determination which would fall, statutorily or otherwise, in the domain of the ex ecutive authority. 32 

In M anohar  v.  v. Th e Pri ncipl e Secreta anohar L al Sharma  Sharma  Secretary ry & Others,  writ petitions under Article 32 of the Constitution of India brought in public interest, to begin with, did not appear to have the  potential of escalating to the dimensions they reached or to give rise to several issues of considerable significance to the implementation of rule of law, which they have, during their  progress. 33 

The popular habeas corpus case, ADM Jabalpur  Jabalpur v. Shivakant Shukl a  , is one of the most important cases when it comes to rule of law. In this case, the question before the court was „whether there was any rule of law in India apart from Article 21‟. This was in context of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an emergency. The answer of the majority of the bench was in negative for the question of law. However  dissented from the majority opinion and observed that “Even in absence of  dissented Justice H .R. Khanna   Article 21 in the Constitution, the state has got no power to deprive a person of his life and liberty without the authority of law. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning…” 34

In M adhu  v. Supdt. Ti har Jail Delhi  , There were Indian and European Prisoners. Both adhu L imaye  imaye  were treated differently. European gets better diet. Court held that difference between Indian and European prisoners in the matter of treatment and diet violates right to equality under Article 14 of Indian prisoners. They all are prisoners they must treat eq ually. 31

 (refer T.N. Godavarman Thirumulpad case9, SCC p. 6, para 5)  on 17 December, 2013 WRIT PETITION (CRIMINAL) NO.120 OF 2012 33  AIR 1976 SC 1207 34  1971 AIR 2486 32

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35

In Sanaboin a Satyanar Satyanar ayan v. Govt. of of A.P  , In Andra Pradesh. They formulate a scheme for  prevention of crime against a gainst women. In prisons also prisoners were classify in to two categories first Prisoners guilty of crime against women and second prisoners who are not guilty of crime against women. Prisoners who are guilty of crime against women challenge the court saying that there right to equality are deprived. Court held that there is reasonable classification to achieve some objective. 36

Also in case of Tamil Nadu Electri  v.  v. R. Veer Electri city Board  Veer aswamy  , The employee was governed  by the contributory provident fund scheme. With effect from 1 -7-1986 a scheme was introduced. The question was whether the pension scheme ought to be applied to those who had already retired before the introduction of the pension scheme the Supreme Court rejected the claim. As  per the rules prevalent at the time the retirees had received all their retiral benefits. If the pension scheme was made applicable to all past retirees, the resulting financial burden would be Rs. 200 crore which would be beyond the capacity of employer. The reason given for introducing the scheme was financial constraint- a valid ground. The court held that retired employees and those who were in employment on 1-7-1986 1-7-1986 can‟t be treated alike as they do not belong not  belong to one class. The workmen who had retired and received all the benefits under the contributory provident fund scheme cease to be employees of the appellant board w.e.f. the date of their retirement. They form a separate class. Thus there was no illegality in introducing the pension scheme and not making it applicable retrospectively to those who h ad retired before the date.

35

AIR 2003 SC 3074  AIR 1999 SC 1768

36

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Rule of Law  –  part  part of the Basic Structure The Constitution (First Amendment) Act, 1951, shocked the status of Rule of law in India. The 37 

question which came up for consideration in Shankari Prasad   v.  v. Union of Prasad  of I ndia   was whether the fundamental rights can be amended under Article 368. The Supreme Court held that Parliament has the power to amend Part III of the Constitution under Article 368 as under Article 13 - „law‟   means any legislative action and not a constitutional amendment. Therefore, a constitutional amendment would be valid if abridges a ny of the fundamental rights. 38 

The question again came up for consideration in Sajj Sajj an Sin Sin gh v. State of Rajasthan   in which the Supreme Court approved the majority judgment in Shank ari Pras   and held that Pr asad ad cas case  e  amendment of the Constitution means amendment of all provisions of the Constitution. Hon‟ble   held that if the framers of the constitution intended to exclude Chi ef Ju sti ce Gajendragadkar  fundamental rights from the scope of the amending power they would have made a clear  provision in that behalf. 39  However, both these cases were overruled by the Apex Court in Golaknath   v.  v. State of Pu nj ab 

and it held that Parliament has no power to amend the Part III of the Constitution so as to take away or abridges the fundamental rights and thus, at the end the Rule of law was sub-served by the Judiciary from abridging away. However, the Rule of law was crumpled down with the Constitution (Twenty-Fourth Amendment) Act, 1971. Parliament by the way of this Amendment inserted a new clause (4) in Article 13 which provided that „nothing in this Article shall apply to any amendment of this constitution made under under Art 368‟. It substituted the heading of Article 368 from „Procedure for amendment of Constitution‟  to „Power of Parliament to amend Constitution and Procedure thereof‟. The Amendment not only restored the amending power of

the Parliament but also extended its scope by adding the words “to amend by way of the addition or variation or repeal any provision of this constitution in accordance with the

he he Article”. procedur procedur e lai d down down i n t 

37

 AIR 1951  AIR 1965 39  AIR 1971 38

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40 

This was challenged in the case of Keshavananda Keshavananda Bh arti v. State of of Kerala  . The Supreme Court by majority overruled the decision given in Golaknath‟s case and held that Parliament has wide powers of amending the Constitution and it extends to all the Articles, but the amending  power is not unlimited and a nd does not include the power to destroy or abrogate ab rogate the basic feature or framework of the Constitution. There are implied limitations on the power of amendment under Article 368. Within these limits Parliament can amend every Article of the Constitution. Thus, Rule of law prevailed and Supreme Court stated in the same case that “Our Constitution  postulates Rule of Law in the sense of supremacy of the Constitution and the laws as opposed to arbitrariness.” arbitrariness.” The  The 13 judge Bench also laid down that the Rule of law is an “aspect of the basic  structure of the Constitution, which even the plenary power of Parliament cannot reach to amend.” Since Keshavananda case  , Rule of law has been much expanded and applied differently in 41

different cases. In I ndira Nehru  v.  v. Raj Nehru Gandhi  Gandhi  Raj Narain  , the Supreme Court invalidated Clause (4) of Article 329- A inserted by the Constitution (Thirty-ninth Amendment) Act, 1975 to immunise the election dispute to the office of the Prime Minister from any kind of judicial review. The Court said that this violated the concept of Rule of law which cannot be abrogated or destroyed even by the Parliament. 42 

The H abeas Cor pus case  case   according to many scholars is a black mark on the rule of law. The case entails Dicey‟s third principle of rule of law. The legal question in this case was whether there is any rule of law over and above the Constitutional rule of law and whether there was any rule of law in India apart from Article 21 of the Constitution regarding right to life and personal liberty. A five judge Bench with a majority of 4:1 (going by strict interpretation) held in the negative. The majority judges held that the Constitution is the mandate and the rule of law. They held that there cannot be any rule of law other than the constitutional rule of law. Excluding moral conscience, they held that there cannot be any pre-Constitution or post-Constitution rule of law

40

 AIR 1973  AIR 1975 SC 2299, 1975 Supp SCC 1, 1976 2 SCR 347 42  1976 AIR 1207, 1976 SCR 172 41

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which can run counter to the rule of law embodied in the Constitution, nor there any rule of law to nullify the constitutional provisions during the time of Emergenc y. The majority judges held that “Article 21 is our rule of law regarding life and liberty. No other rule of law can have separate existence as a distinct right. The rule of law is not merely a catchword or incantation. It is not a law of nature consistent and invariable at all times and in all circumstances. There cannot be a brooding and omnipotent rule of law drowning in its effervescence the emergency provisions of the Constitution.” Thus Constitution.” Thus they held that Article 21 is the sole repository of right to life and liberty and during an emergency, the emergency provisions themself constitute the rule of law. Justice H.R. Khann a  In a powerful dissent, Justice   observed that “Rule of law is the antithesis of

arbitrariness...Rule of law is now the accepted form of all civilized societies...Everywhere it is identified with the liberty of the individual. It seeks to maintain a balance between the opposing notions of individual liberty and public order. In every state the problem arises of reconciling human rights with the requirements of public interest. Such harmonizing can only be attained by the existence of independent courts which can hold the balance between citizen and the state and compel governments to conform to the law.” With the Constitution (Forty-Fourth Amendment) Act, 1978 it has been laid down that even during emergency, Articles 20 and 21 will not be suspended. According to me, Ju sti ce Kh anna (with due respect to his high moral conscience) has not given a judgment in consonance with the rule of law. His Lordship has on the other hand tried to place the judiciary over and above the rule of law. During emergency, that was the rule of law that Article 21 is suspended. Creating rule of law above the Constitution will create huge implications. Whatever is the case, the Austinian sense of jurisprudence does apply in the present case and the majority judges have not decided wrongly. Though now it remains only an academic question but if a law does not seem to be morally rich then it is the job of the Legislature to amend it and not the Judiciary to come up with its own new law which is non-existent and against the existing ex isting law. 43  In Raman D ayaram ayaram Shetty v. I nternational nternational Airport Authority of of I ndia  , the Supreme Court

held that the great purpose of rule of law is the protection of individual against arbitrary exercise 43

 1979 AIR 1628, 1979 SCR (3)1014

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44 

of power, wherever it is found. I n re: Arun dhati  observed that for achieving  observed dhati Roy  Roy  , Ju sti ce Se Seth i  the establishment of the rule of law, the Constitution has assigned the special task to the  judiciary. When Article 371-D (5) (Proviso) authorized the A.P Government to nullify any decision of the Administrative Services Tribunal, it was held violative of the rule of law. Holding the provision unconstitutional, the Supreme Court said that it is a basic principle of the rule of law that the exercise of power by the Executive must not only be governed by the Constitution but also is in accordance with law. The Court also held that the power of judicial review should be used to ensure that rule of law is maintained. Over the years, the Courts have used judicial activism to expand the concept of rule of law. For example, in Courts are trying to establish a rule of law society in India by insisting on „fairness‟. 45  Sheel a Bar se v. State of M ahar ashtr ashtr a  , the Supreme Court insisted on fairness to women in In Sheel

 police lock-up and also drafted a code of guidelines for the protection of prisoners in police 46 

custody, especially female prisoners. In Veena Veena Seth Seth i v. State State of B ih ar  , also the Supreme Court extended the reach of rule of law to the poor who constitute the bulk of India by ruling that rule of law does not merely for those who have the means to fight for their rights and expanded the locus standi principle standi principle to help the poor.

44

 Contempt Petition (crl.) 10 of 2001  JT 1988 (3) 46  AIR 1983 SC 339, 1983 CriLJ 675, 1982 (1) SCALE 793 45

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Put Checks on Governmental Powers The Indian Constitution establishes a limited government. Bring a federal country; both the central and state legislatures have the power to make laws, but only subject to express and implicit constitutional limitations. 1. First of all, the constitution specifies and demarcates the matters on which the central legislature and state legislatures could make law.

47

dical and Educational In M edical

48

Charitable Tr ust  ust v. State State of T amil Nadu  , it was held that any law that breaches these

limitations (e.g., a state law made on a matter within the exclusive competence of the central legislature) could be declared unconstitutional by courts. 2. Second, the power of executive to make laws by issuing Ordinances is limited –  limited –  both   both in 49

terms of duration and situations triggering the exercise of such power.  The executive, of course, cannot make a law on a matter on which the corresponding legislature lacks the 50

competence to legislate.

3. Third, although the Indian Constitution  –   having established a parliamentary form of 51

government –  government  –  does   does not follow any strict separation of powers,  a system of checks and  balances has been put in place. For instance, all the Bills passed by the Parliament require 52

the President‟s assent to become law.  The Parliament, on the other hand, has the power 53

to impeach the President for violating the Constitution.

54  Sin gh v. State of U P    and in Bi joe Emmanuel  Emmanuel v. State of of 4. Fourth, in case of Kh arak Sin 55 

Kerala  , the courts have held that any executive action without the support of a valid law

will be void, more so if it violated fundamental rights. Similar to the position in many other jurisdictions, laws cannot generally be retroactive, especially if they seek to impose

47

 Constitution of India, 1950, articles 246, 248-254 read with Schedule IX  (1996) 3 SCC 15 49  Articles 123 and 213 of the Constitution 50  Articles 123(3) provides: ‘If and so far as a n Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.’  51  Article 50 though mandates to separate the judiciary from the executive 52  Article 111 of the Constitution 53  Article 61 of the Constitution 54  AIR 1963 SC 1295 55  AIR 1987 SC 748 48

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56

any penalty or punishment.   The judiciary also does not treat vague laws or administrative guidelines favourably. 5. Fifth, in a multi-party democracy, the presence of a free press and the requirement of  periodic elections can be one of mechanisms against the abuse of governmental power. 57

The Constitution expressly limits the term of legislatures,   and the freedom of speech and expression under Article 19(1) (a) has been interpreted to include the freedom of 58  ess Newspapers Newspapers v. Union of of I ndia    and in Bennett Coleman v.  press in case of E xpr ess 59 

Union of of I ndia  .

In addition to these checks, the fundamental rights provisions and the power judicial review  provide effective means of checking the power of the legislature and executive. These two aspects are discussed below.

Equality Guarantee and the Protection of Human Rights For establishing an egalitarian society was/is one of the main goals of the India Constitution. The fundamental rights and the directive principles of state policy were the primary tools adopted to achieve this goal. Part III of the Constitution entitled „Fundamental Rights‟  comprises   comprises Articles 12 to 35 which lay down various rights, their limitations and remedies for their enforcement. The rights range from the equality before the law to the freedom of speech and expression, the  protection against double jeopardy, the right to life and personal liberty, the freedom of religion,  prohibition of discrimination, and the protection against arrest and unlawful detention. It will be useful analyse to a few rights in some detail in order to appreciate the rule of law in operation. Article 14 prohibits the state from denying „to any person equalit   y before the law or the equal protection of the laws‟.  laws‟.  The guiding principle of equality being that like should be treated alike and that unlike should be treated differently, Article 14 permits reasonable 60  hikoman v. State State of of Kerala  , The court has invalidated several classification. In case of K Kun hikoman 

laws under Article 14 because the classification was without a difference, and in case of P 56

Article 20(1); Mahendra P Singh, Shukla’s Constitution of India, 11th edn., (Lucknow: Eastern Book Co., 2008), 177-81 57  Artilces 83 and 172 58  AIR 1958 SC 58 59  AIR 1973 SC 106 60  AIR 1962 SC 723

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61

 v.  v. State of M adras  , it was decided by the court that the basis of classification had Rajendram  62  no nexus to the object of the law, and in case of State of W est B engal  v.  v. Anwar Al i Sarkar   and 63 

also in North ern I ndia Caterers Caterers L td. v. State of Punjab  , the courts said that the law established special courts for trial of certain cases or types of cases without any reasonable 64  classification or guidelines, and in case of Ameer Ameer nn isa Begum Begum v. M ehboob Begum  Begum   and also in 65 

Ram Pr asad asad v. State of B ih ar  , it was held that the law singled out a person for giving a special

or discriminatory treatment. More importantly, it however, has been the judicial employment of Article 14 to develop a broad 66 

 principle of reasonableness. In E P Royappa v. State of T amil Nadu  , the Court said that „Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness.‟  Later   Later on, the Supreme Court in M aneka  v.  v. aneka Gandhi  67 

a nd ensures Union of of I ndia  observed that „Article 14 strikes at arbitrariness in state action and  fairness and equality of treatment. The principle of reasonableness, which logically as well as  philosophically, is an essential element of equality equa lity or non-arbitrariness, non -arbitrariness, pervades Article 14 like   Therefore, allegation of discrimination vis-a-vis others is no longer a brooding omnipresence.‟  Therefore, 68

69 

sine qua non for attracting Article 14   and in bunch of cases Mithu v. State of Pu nj ab  , 70 

71 

Centr Centr al I nl and Wate Waterr Corporation v. B N Ganguly  , D TC  v. DT C M azdoor azdoor Congr ess  , 72 

73 

Common Cau se v. Union of of I ndia  , Shi vsagar vsagar Tiwar i v. Union of of I ndia  , it was held by the

courts that it would strike down any arbitrary executive or legislative action unconstitutional as ipso facto violating Article 14. Another interesting fundamental right has been Article 21, which lays down that „no person shall be deprived of his life or personal liberty except according to the 61

 AIR 1968 SC 1012  AIR 1952 SC 75 63  AIR 1967 SC 1581 64  AIR 1952 SC 91 65  AIR 1953 SC 215 66  (1974) 4 SCC 3, 38 67  (1978) 1 SCC 248, 284; R D Shetty v. International Airport Authority AIR 1979 SC 1628; Ajay Hasia v. Khalid Mujib AIR 1981 SC 487 68  A L Kalra v. Project &Equipment Corporation (1984) 3 SCC 316, 328 69  AIR 1983 SC 473 70  (1986) 3 SCC 156 71  AIR 1991 SC 101 72  (1996) 6 SCC 530 73  (1996) 6 SCC 558 62

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 procedure established by law.‟  This   This provision has proved to be a residuary repository of many fundamental rights. „Life‟   in this article has been interpreted by the courts to mean more than 74

75 

mere physical existence;   and in F rancis Coralie v. Uni on Terr Terr itory of of Delhi  Delhi  , it „includes right to live with human dignity and all that goes along with it‟ . Ever-widening horizon of 76

Article 21 is illustrated by the fact that the Court has, inter alia, read into it the right to health , 77

78

livelihood,   free and compulsory education up to the age of 14 years,   unpolluted 79

80

81

82

83

84

environment,  shelter,  clean drinking water,  privacy,  legal aid,  speedy trial,  and various 85

rights of under trials, convicts and prisoners.  Another innovative use of this provision has been 86

in reaching violation of right to life and personal liberty by even private persons,  and to grant 87

compensation for violation of fundamental rights.

74

 For the evolution of such an interpretation, Kharak Singh v. State of UP AIR 1963 SC 1295; Sunil Batra v. Delhi Administration (1978) 4 SCC 494; Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180; Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746; Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802; Consumer Education & Research Centre v. Union of India (1995) 3 SCC 42; Bodhisattwa Gautam v. Subhra Chakraborty (1996) 1 SCC 490; Visakha v. State of Rajasthan AIR 1997 SC 3011. In some of these cases the Court has relied upon the observation of Justice Field in Munn v. Illinois 94 US 113 75  AIR 1981 SC 746, 753 (per Justice Bhagwati) 76  Parmanand Kataria v. Union of India AIR 1989 SC 2039; Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996) 4 SCC 37 77  Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180; DTC Corporation v. DTC Mazdoor Congress AIR 1991 SC 101 78  Unni Krishnan v. State of AP (1993) 1 SCC 645 79  Indian Council for Enviro Legal Action v. Union of India (1996) 3 SCC 212; M C Mehta v. U nion of India (1996) 6 SCC 750; Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647; Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 80  Gauri Shankar v. Union of India (1994) 6 SCC 349 81  A P Pollution Control Board II v. M V Nayudu (2001) 2 SCC 62 82  Kharak Singh v. State of UP AIR 1963 SC 1295; Govind v. State of MP AIR 1975 SC 1378; R Raj Gopal v. State of Tamil Nadu (1994) 6 SCC 632; PUCL v. Union of India AIR 1997 SC 568; ‘X’ v. Hospital Z (1998) 8 SCC 296 83  M H Hoskot v. State of Maharashtra AIR 1978 SC 1548; Hussainara Khatoon v. State of Bihar AIR 1979 SC 1369; Khatri v. State of Bihar AIR 1981 SC 92 8; Suk Das v. Union Territory of Arunachal Pradesh AIR 1986 SC 991 84  Hussainara Khatoon (I) to (VI) v Home Secretary, Bihar (1980) 1 SCC 81, 91, 93, 98, 108 and 115; Kadra Pahadiya v. State of Bihar AIR 1982 SC 1167; Common Cause v. Union of India(1996) 4 SCC 33 and (1996) 6 SCC 775; Rajdeo Sharma v. State of Bihar (1998) 7 SCC 507and (1999) 7 SCC 604 85  Sunil Batra v. Delhi Administration AIR 1978 SC 1675; Prem Shankar v. Delhi Administration AIR 1980 SC 1535; Munna v. State of UP AIR 1982 SC 806; Sheela Barse v. Union of India AIR 1986 SC 1773 86  M C Mehta v. Union of India (1987) 1 SCC 395; Consumer Education & Research Centre v. Union of India (1995) 3 SCC 42; Kirloskar Brothers Ltd. v. ESIC (1996) 2 SCC 682; Bodhisattwa Gautam v. Subra Chakraborty AIR 1996 SC 922; Vishaka v. State of Rajasthan AIR 1997 SC 3011; ‘X’ v. Hospital ‘Z’ (1998) 8 SCC 296; M C Mehta v. Kamal Nath AIR 2000 SC 1997 87  Rudul Sah v. State of Bihar (1983) 4 SCC 141; Bhim Singh v. State of J & K (1985) 4 SCC 677; Nilabati Behra v. State of Orissa (1993) 2 SCC 746

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It should also be noted that although the constitution framers had expressly rejected the due  process requirement in Article 21, the Supreme Court introduced this guarantee by judicial 88

interpretation.  Furthermore, by a joint reading of Articles 14 and 21, the courts have basically developed a substantive model of rule of law –  law  –  any   any law or executive action which is not „just, fair and reasonable‟ could could be declared unconstitutional.

89

 The Courts, for example, invalidated a

 penal provision prescribing the mandatory death sentence for murder committed by a life 90

convict.  More recently, the Delhi High Court ruled that Section 377 of the Indian Penal Code „insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 91

and 15 of the Constitution.‟ 

Judicial Review by an Independent Judiciary The power of an independent judiciary to review the decisions of the other two organs of the government is considered an integral aspect of the rule of law and the Indian Constitution does everything possible to put in place this mechanism. Judges of the Supreme Court and the High 92 Courts are appointed by the President in „consultation‟   with relevant judges of these courts.

Subsequent to the decision in Supreme Cour t Advocate t Advocates s on Record Record Associati Associati on v. Uni on of of 93 

India  and also in I n r e, Pr esidential Reference Reference

94 

, judges of the higher judiciary are in essence

95

appointed by the judiciary itself.   Detailed provisions have also been made to provide judges 96

97

security of tenure,  and protect their salaries, allowances and privileges.  Legislative bodies are 98

 barred from debating the conduct of judges unless dealing with impeachment motions.  In fact, on a closer look, it seems that the Indian judiciary has become over-independent in that there are not many checks on its powers and the functioning/conduct of judges. The judiciary, for instance, resists any attempt to introduce accountability measures and impeaching judges so far 88

 Maneka Gandhi v. Union of India, AIR 1978 SC 97 Singh, Shukla’s Constitution of India, above n 11, 201 -04 90  Mithu v. State Punjab, AIR 1983 SC 473 91  Naz Foundation v. Government of Delhi, WP(C) No.7455/2001 (2 July 2009), para 132 92  Articles 124(2) and 217 93  (1993) 4 SCC 441 94 AIR 1999 SC 1 95 Mahendra P Singh & Surya Deva, ‘The Constitution of India: Symbol of Unity in Diversity’ (2005) 53 Jahrbuch des Offentlichen Rechts der Gegenwart 649, 673-74 96  Articles 124 and 218 97  Articles 125 and 221 98  Articles 125 and 221 89

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has proved to be an almost impossible even in suitable cases. Although the power of judicial review does not require an express recognition in a constitutional text, Article 13(2) of the Indian Constitution provides such recognition by laying down that the state „shall not make any law which takes away or abridges‟  the  the fundamental rights. The remedy to approach the Supreme Court for violation of fundamental rights under Article 32 99

is in itself a fundamental right.  The Court has widened the scope of this power over the years  by 1. implying many new rights within the ambit of Article 21; 2. chartering the course of public interest litigation as a tool of deepening justice to the masses; 3. declaring judicial review a „basic feature‟   of the Constitution and thus putting this  beyond the Parliament‟s amendment power; and power; and 4. Conferring on itself the power to review the validity of even constitutional amendments.

99

 A similar power is vested with the High Courts under Article 226

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Conclusion What article 14 forbids is discrimination by law that is treating persons similarly circumstanced differently and treating those not similarly circumstanced in the same way or as has been pithily  put treating equals as unequal‟s and unequal‟s as equals. Ar ticle 14 prohibits hostile classification by law and is directed against discriminatory class legislation. A legislature for the purpose of dealing with the complex problem that arise out of an infinite variety of human relations cannot but proceed on some sort of selection or classification of  persons upon whom the legislation is to operate. It is well settled that Article 14 frobid classification for the purpose of legislation. It is equally well settled that in order to meet the test of Article 14 1. classification must be based on intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of group and 2. The differentia must have a rational nexus to the objects sought to be achieved by the executive or legislative action under challenge. Article 14 contains a guarantee of equality before law to all persons and protection to them against discrimination by law. It forbids class legislation. On a brief overview of the constitutional provisions and judicial decisions, it can be safely concluded that the Indian Constitution enshrines the rule of law as a fundamental governance  principle, though the term is not mentioned men tioned expressly in the text of the Constitution. Having said this, there are several challenges that pose threat to building a society based on robust rule of law framework. Continued socio-economic inequalities (despite affirmative active provisions and  programmes), large population, pervasive corruption (including in judiciary), judicial delays, law and order problems in view of regionalism and Naxalism, and the general apathy of people towards the rule of law are matters of serious con cern. Despite these challenges, there is no doubt about the constitutional mandate or government‟s commitment commitment to establishing a rule of law society. We must straightaway point out that A.K. Kaipak case is a landmark in the development of administrative law and it has contributed in a large measure to the strengthening of the rule of law in this country. We would not like to whittle down in the slightest measure the vital principle laid down in this decision which has nourished the roots of the rule of law and injected justice 38 | P a g e

and fair play into legality. There can be no doubt that if a Selection Committee is constituted for the purpose of selecting candidates on merits and one of the members of the Selection Committee is closely related to a candidate appearing for the selection, it would not be enough for such member merely to withdraw from participation in the interview of the candidate related to him but he must withdraw altogether from the entire selection process and ask the authorities to nominate another person in his place on the Selection Committee, because otherwise all the selections made would be vitiated on account of reasonable likelihood of bias affecting the  process of selection. But the situation here is a little different because the selection of candidates to the Haryana Civil Service (Executive) and Allied Services is being made not by any Selection Committee constituted for that purpose but it is being done by the Haryana Public Service Commission which is a Commission set up under Article 316 of the Constitution. It is a Commission which consists of a Chairman and a specified number of members and is a constitutional authority. We do not think that the principle which requires that a member of a Selection Committee whose close relative is appearing for selection should decline to become a member of the Selection Committee or withdraw from it leaving it to the appointing authority to nominate another person in his place, need be applied in case of a constitutional authority like the Public Service Commission, whether Central or State. If a member of a Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his  place. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected. When two or more members of a Public Service Commission are holding a viva voce examination, they are functioning not as individuals but as the Public Service Commission. Of course, we must make it clear that when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him. Here in the present case it was common ground between the parties that Shri Raghubar Dayal Gaur did not participate at all in interviewing Trilok Nath Sharma and likewise Shri R.C. Marya did not participate at all when Shakuntala Rani and Balbir Singh came to be interviewed and in fact, both of them retired from the room when the interviews of their respective relatives were held. Moreover, neither of them 39 | P a g e

took any part in any discussion in regard to the merits of his relatives nor is there anything to show that the marks or credits obtained by their respective relatives at the interviews were disclosed to them. We are therefore of the view that there was no infirmity attaching to the selections made by the Haryana Public Service Commission on the ground that, though their close relatives were appearing for the interview, Shri Raghubar Dayal Gaur and Shri R.C. Marya did not withdraw completely from the entire selection process. This ground urged on behalf of the petitioners must therefore be rejected.

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Bibliography 1. Upendra Baxi, 'The Rule of Law in India', (2007) 6 Sur - Revista Internacional de Derechos Humanos 7, . 2. Mahendra P Singh & Surya Deva, 'The Constitution of India: Symbol of Unity in Diversity' (2005) 53 Jahrbuch des Offentlichen Rechts der Gegenwart [Yearbook of Public Law, Germany] 649. 3. S K Verma and Kusum (eds.), Fifty Years of the Supreme Court of India - Its Grasp and Reach(New Delhi: Oxford University Press, 2000). 4. Victor V Ramraj & Arun K Thiruvengadam (ed.), Emergency Powers in Asia: Exploring the Limits of Legality *(Cambridge: Cambridge University Press, 2010).* 5. S P Sathe, Judicial Activism in India - Transgressing Borders and Enforcing Limits (New Delhi: Oxford University Press, 2002). 6. http://www.lawyersclubindia.com/articles/Adoption-Of-Rule-Of-Law-In-India-AndSupreme-Court-Judgments-2901.asp 7.

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