AILMOHALI FULL PAPER

Please download to get full document.

View again

All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
 4
 
 

Slides

  1. Access to Justice in India: Rule of law and Indian Judiciary -Shashank Shekhar Pandey, Parag Agrawal “Wherever Law ends, Tyranny begins.” ---John Locke…
Related documents
Share
Transcript
  • 1. Access to Justice in India: Rule of law and Indian Judiciary -Shashank Shekhar Pandey, Parag Agrawal “Wherever Law ends, Tyranny begins.” ---John Locke Introduction: The rule of law is the legal principle that law ought to govern a country, instead of being administered by subjective choices of individual government officials. It basically alludes to the impact and power of law inside of society, especially as a limitation upon conduct, including conduct of government officials. The expression can be followed back to sixteenth century Britain, and in the next century the Scottish scholar Samuel Rutherford utilized the expression as a part of his contention against the divine right of rulers1. British legal philosopher A. V. Dicey further advanced the phrase “rule of law” in the nineteenth century. The idea, if not the expression was recognizable to antiquated thinkers as well, for example, Aristotle, who wrote, "Law must govern". Though there has been a conflict amongst different schools of law because of the way of interpreting the concept differed from one to another but for our purposes we will be considering the Dicey’s version of rule of law. Dicey in his book has written “ The rule of law comprised three principles. These require (I) that a citizen’s legal duties and his liability to punishment should be determined by the ‘regular law’, and not by the arbitrary fiat of officials or the exercise or wide discretionary powers; (2) that disputes between a private citizen and an official should be subject to the jurisdiction of the ordinary courts; and (3) that the fundamental rights of the citizen should not rest on a special, constitutional, guarantees but should arise from the ordinary law.” 2 Contemporary adaptations of the rule of law pushes the significance of two principles: 1) That the activity of discretionary forces of standard making and settling ought to be controlled by fair- minded tribunals in the light of expressed general principles intended to secure that the force ought to be practiced decently and inside of the cutoff points endorsed by law; and 2) That as huge a zone of the law as could be allowed and of the criminal law specifically ought to give clear guidance to citizens as to their rights and obligations, and that they ought to be at risk to breach the law just on the off chance that they had the limit and a reasonable chance to adjust their behavior to it and in that case they sould be given a fair and equal opportutnity to be tried. 3 1Rutherford, Samuel Lex, rex: the law and the prince, a dispute for the just prerogative of king and people, containing the reasons and causes of the defensive wars of the kingdom of Scotland, and of their expedition for the ayd and help of their brethren of England, p. 237 (1644): "The prince remaineth, even being a prince, a social creature, a man, as well as a king; one who must buy, sell, promise, contract, dispose:ergo, he is not regula regulans, but underrule of law....” 2 A.V.Dicey , Introduction to the Study of Law and Constitution, 1885 3 A.V. Dicey, supra note 2 .
  • 2. As mentioned above the definition can be sub divided into three parts : 1. It implies in the first position, that the total matchless quality or prevalence of consistent law instead of the impact of subjective power, and barring the presence of mediation, of right, or even a wide discretionary power with respect to the government. .And a man can be rebuffed for a break of law, yet he can be rebuffed only for that . Thus it is clearly visible that in the first part is all about the absence of arbitrary power and such power can’t be traced back to any origin, legal in nature . At the end Dicey intends to mention that “No person can be punished otherwise except for a breach of law”. Now this brings into the light the preventive detention measures which have been enshrined in the constitution and are being used by the government time and again to which even judiciary hasn’t answered yet clearly except time or two in A.K.Gopalan 4 ,in Kharak Singh5 and in A.K.Roy’s6 Case . 2. The second part of the definition being equality before the law, or the equal subjection of all classes to the standard law of the area managed by the common courts .Nobody is exempted from the rules that everyone else follows, authorities and citizens have to comply with the same law .He critisizes that authorities enjoy the benefits and immunities bestowed to them by very constitution itself . Which at times we have seen being misused grossly by the parliamentarians. 3. Thirdly 'The Constitution' isn’t the source but rather consequence of the rights’ of people, as characterized and implemented by the courts, in this way the constitution is the customary consequence as any other law of the land ; not the higher level of law . With contrast to the above mentioned principle the Constitution in Indian context has been observed as some sort of higher level of law which acording to the Dicey’s principle is yet another law which as per our observation it can’t be true because a constitution is an instrument which acts as a authority for the legislation while drafting and if we treat the constitution as we treat other laws then the arbitraryness on the part of the policymakers will increase subjecting the citizens’ rights and freedoms . Which in fact will negate the meaning of the first part of the principle propounded by the Dicey himself about arbitraryness and the policymakers. This early definition has been scrutinized, as Dicey's definition failed to specify the constitutional safeguards necessary for the rule of law. As an example, while both state officials and private citizens may be bound by the same law authorized through the same courts, the law itself may epitomize privileges for officials: this is especially possible where, as in Britain, the sovereign in Parliament is the boundless lawmaker. As one author, Geoffrey Marshall, remarked, 'procedural regularity and a common set of courts is compatible with legal tyranny'. A more secure establishment of the rule of law is achieved by means to ensure the freedom of the judiciary (that is, all judges and their courts) and by the composed meaning of constitutional rights. These rights 4 A.K.Gopalan v. State of Madras, 1950 AIR 27 (India). 5 Kharak Singh v. State of U.P. and Ors. , 1963 AIR 1295 (India). 6 A.K.Roy & etc. v. Union of India , 1982 AIR 710 (India).
  • 3. should incorporate, for example, insurance for freedom of expression and movement and procedural guarantees for due process of law, for fair trials and for precisely drafted laws, for no retrospective laws and for no barbarous or unusual punishments. Rule of Law in India & Indian Constitution: Indians adopted the common law system which has a British origin ; which is the base of the principle i.e. Rule of law propounded by Dicey . Though there exist many differences between the two legal systems viz. British and Indian but as talking about similarity both nations strive for the fair and just regime and try to maintain equity amongst their citizens. Dicey used to state that Englishmen don’t need codified laws to be governed as per him only laws of nature and rule of law is enough to be governed. India also follows the Principles of Natural Law to a big extent . But to ensure that there exist no arbitrary action on part of the policymakers the constitution provides the provisions of checks and to further ensure that the laws have been codified to a large extent . The fathers of the nation while drafting the largest ever written constitution kept the very same thing in mind . They wanted the nation to be governed by law . So , to give it effect the constitution itself imbibes the principle with the concordance to the same . The precept of Rule of Law has been received in Indian Constitution through Articles 14 and 21 enshrined in the Constitution as we have seen the difference in case of A.K.Gopalan7 where he did contested Article 21 but he did not took the recourse of the Article 14 in that ways he had to contend on the principles of natural justice and later on he failed miserably while contending with contrast to the Maneka Gandhi’s8 case where court read together articles 14 and 21 on the very similar grounds as of the Gopalans and was clearly stated in E.P.Royappa’s9 Case while court discussed about principles of natural justice. Also , The standards of the Constitution, justice. liberty and equality are cherished (exemplified) in the preamble. The Constitution of India has been made the preeminent law of the nation and different laws are required to be in congruity with the Constitution. Any law, which is found infringing upon any procurement of the Constitution is, announced invalid. Part III of the Constitution of India ensures the Fundamental Rights. Article 13(l) of the Constitution makes it clear that all laws in power in the region of India promptly before the beginning of the Constitution, in so far as they are conflicting with the procurement of Part III managing the Fundamental Rights, might, to the degree of such irregularity, be void.10 Article 13(2) gives that the State ought not make any law which takes away or condenses the key rights and any law made in repudiation of this provision might, to the degree of the negation, be void. The Constitution ensures equality in the witness of law and equivalent security of laws. Article 21 ensures right to life and individual liberty. It gives that no individual should be denied of his life or individual 7 A.K.Gopalan , Supra Note 4 . 8 Menaka Gandhi v. Union of India , 1978 AIR 597 (India). 9 E. P. Royappa vs State Of Tamil Nadu & Anr ,1974 AIR 555 (India). 10 His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. , (1973) 4 SCC 225 (India).
  • 4. liberty with the exception of as indicated by the strategy built up by law. Article 19 (1) (an) ensures the third guideline of rule of law (the right to speech and expression). Article 19 ensures six Fundamental Freedoms to the natives of India - the right to speak freely and expression, flexibility of assembly, opportunity to shape associations or unions, flexibility to live in any part of the domain of India and opportunity of profession, occupation, exchange or business. The privilege to these freedoms is not outright, but rather subject to the reasonable restrictions which may be forced by the State. Article 20(1) gives that no individual should be convicted of any offense with the exception of infringement of a law in power at the season of the commission of the demonstration charged as an offense not be liable to a punishment more prominent than that which may have been prescribed by the law at the time of the commission of the offense. As indicated by Article 20(2), no individual should be arraigned and rebuffed for the same offense more than once. Article 20(3) makes it clear that no individual blamed for the offense might be constrained to be witness against himself. In India, Constitution is incomparable and the three organs of the Government viz. Legislature, Executive and judiciary are subordinate to it. The Constitution given to infringement of one organ (E.g.: Judiciary) upon another (E.g.: Legislature) if its activity is mala fide, as the subject (individual) can challenge under Article 32 of the Constitution. In India, the which means of rule of law has been highly expanded. It is viewed as a part of the basic structure of the Constitution and, hence, it can't be revoked or wrecked even by Parliament. It is likewise viewed as a part of natural justice . “But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.” -Montesquieu Rule of Law & Indian Judiciary Fundamental rights enshrined in part III of the constitution act as a limitation on the law making force of the Indian Parliament. It incorporates the right to speak freely, expression, association, movement, residence, profession and individual liberty. In its more extensive sense the Constitution itself endorses the basic legal system of the nation. To ensure and advance crucial rights and freedoms of the subjects and the appreciation for the standards of the law based State in light of rule of law. The prevalent habeas corpus case, ADM Jabalpur v. Shivakant Shukla11 is a standout amongst the most imperative situations with regards to rule of law. For this situation, the inquiry under the watchful eye of the court was 'whether there was any rule of law in India apart from Article 21'. This was in setting of suspension of authorization of Articles 14, 21 and 22 amid the decree of a crisis. The answer of most of the seat was in negative for the topic of law. However Justice H.R. Khanna dissented from the larger part conclusion and watched that 11 A.D.M. Jabalpur v. Shivakant Shukla , 1976 AIR 1207 (India).
  • 5. "Even without Article 21 in the Constitution, the state must energy to deny a man of his life and liberty without the power of law. Without such holiness of life and liberty, the refinement between a lawless society and one administered by laws would stop to have any which means… " Connected to the powers of the administration, this requires that each administration power which does some act which would somehow or another , be a wrong, (for example, taking a man's land), or which encroaches a man's liberty (as by declining him arranging consent), must have the capacity to legitimize its activity as approved by law - and in almost every case this will mean approved straightforwardly or by implication by Act of Parliament. Another meaning of rule of law is that the administration ought to be directed inside of a structure of perceived rules and standards which confine optional forces. The Supreme Court saw in Som Raj v. State of Haryana12 that the nonappearance of arbitrary power is the primary motif of Rule of Law whereupon the entire constitutional structure is dependant. Carefulness being practiced with no rule is an idea which is direct opposite of the idea. Going by the third meaning ; which describes that rule of law highlights the autonomy of the judiciary and the matchless quality of courts. It is rightly repeated by the Supreme Court for the situation Union of India v. Raghubir Singh13 that it is not a matter of uncertainty that a significant degree that administers the lives of the general population and controls the State capacities streams from the choice of the prevalent court In Chief settlement Commissioner Punjab v. Om Prakash14 , it was seen by the supreme 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 which means of rule of law has been abundantly expanded. It is viewed as a part of the basic structure of the Constitution and, in this way, it can't be revoked or demolished even by Parliament. The beliefs of constitution; liberty, equality and brotherhood have been revered in the preamble. Constitution makes the supreme law of the land and each law established ought to be in adjustment to it. Any infringement makes the law ultra vires. In Kesavanda Bharti versus State of Kerala 15 - The Supreme Court articulated the rule of law as a standout amongst the most imperative parts of the tenet of basic structure. In Menaka Gandhi versus Union of India16 - The Supreme Court announced that Article 14 strikes against discretion. In Indira Nehru Gandhi versus Raj Narain17 - Article 329-A was embedded in the Constitution under 39th amendment, which gave certain immunities to the race of office of Prime Minister from legal audit. The Supreme Court pronounced 12 Som Raj v. State of Haryana, 1990 AIR 1176 (India). 13 Union of India v. Raghubir Singh, AIR 1989 SC 1933 (India). 14 Chief Settlement Commissioner Punjab v. Om Prakash, 1969 AIR 33 1968 (India). 15 Keshavananda Bharti , supra note 10. 16 Menaka Gandhi v. Union of India , 1978 AIR 597 (India). 17 Indira Nehru Gandhi v. Raj Narain , 1975 AIR 1590 (India).
  • 6. Article 329-An as invalid since it shortens the basic structure of the Constitution. Furthermore , On account of Binani Zinc Limited Vs. Kerala State Electricity Board and Ors.18 Justice S B sinha announced that : " It is now a well settled principle of law that the rule of law inter alia postulates that all laws would be prospective subject of course to enactment an express provision or intendment to the contrary.” And For the situation of Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil19 the ratio set down by the honorable court was : "If the rule of law has to be preserved as the essence of the 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 famous case of Sukhdev v. Bhagatram20 Mathew J. proclaimed that " Whatever be the concept of the rule of law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the definition given by Hayek in his "Road to Serfdom" and "Constitution of liberty" or the exposition set-forth by Harry Jones in his "The Rule of Law and the Welfare State"…..” there is, as further pointed out by Mathew, J., in his article on "The Welfare State, Rule of Law and Natural Justice" in "Democracy, Equality and Freedom," "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 makes not difference whether the exercise of the power involves affection of some right or denial of some privilege." 18 Binani Zinc Ltd. v. Kerala State Electricity Board , 2009 Indlaw SC 2022 (India). 19 Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil , 1994 AIR 678 (India). 20 Sukhdev v. Bhagatram, AIR 1975 SC 1331 (India).
  • 7. In addition to them in Secretary, State of Karnataka and Ors. v. Umadevi and Ors21 a Constitution Bench of Honourable Court has set out the law in the accompanying 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
  • Related Search
    We Need Your Support
    Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

    Thanks to everyone for your continued support.

    No, Thanks