RULE OF LAW

The constitution of India declares that we are a Democratic. Secular and a Socialist Republic.

The Rule of law governs our country. 'Equality before law' and 'Equal protection of law' are the

most fundamental right conferred on its citizens. We have a lengthy constitution and some other

wonderful laws. Independence of judiciary and highly qualified bureaucrats are the need of the

hour. In the present situation, many just exist on paper.

The question is about our compliance with the ‘Rule of Law’.

Rules of law contain three principles or it has three meanings as stated below:

1. Supremacy of I.aw

2. Equality before Law

3. Predominance of Legal Spirit

The doctrine of Rule of Law has been adopted in Indian Constitution. The ideals of the

Constitution, justice, liberty and equality are enshrined (embodied) in the preamble.

The Constitution of India has been made the supreme law of the country and other laws are

required to be in conformity with the Constitution. Any law which is found in violation of any

provision of the Constitution is declared invalid.

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

Parliament. It is also regarded as a part of natural justice.

In Keshavanda Bharti vs. State of Kerala1, Supreme Court enunciated the rule of law as one of

the most important aspects of the doctrine of basic structure.

In Menaka Gandhi vs. Union of India2, The Supreme Court declared that Article 14 strikes

against arbitrariness.

How many people respect or pay heed to this fundamental principle? In our country, there are

many innocent people who are held guilty only because of the malicious acts of a few hypocrites.

We know of a number of members of legislature and parliament who are facing criminal

prosecution. It is a farce to talk of a nation ruled by highly qualified excellent men. Politics has

become the refuge of scoundrels, black marketers, corrupt and the mean to wield influence and

for personal exaltation. It is really difficult to find good candidates during elections. Our leaders

are law into themselves.

There is neither justice to the victims nor fairness to the accused. Then what kind of ‘Rule of

Law’ are we talking about. The judiciary is not above board, there have been abundant rumors

about the adulterous and extravagant lives led by the judges from the lower to the highest

judicial officers. The police just don’t care about the landmark judgment of D.K. Basu or

Section 160 Criminal Procedure Code or any other judgment. The custodial violence has

gone beyond description. Rape, molestation, murder are all becoming common occurrences in

police custody.

The injuries are not noted down scrupulously and valuable evidence is lost because of the neglect

and lethargy of the medical profession. The most recent case being the Arushi Murder Case in

which the investigation was done by the CBI. The actual vaginal swab was not sent for forensic

1
AIR 1973 SC 1461
2
AIR 1978 SC 597
examination. Is this acceptable negligence or voluntary negligence. We still do not have an

answer.

With the laws in favour of women, Is there a legal authority or sanction to check such a misuse?

I am aware that the judiciary has tried to act in this regard but there is no formal structure to

check such an abuse.

The people including public servants just ignore the rule of law, even if it is for acts or omissions

which are not difficult to follow or that they should be a part of the normal routine. Everyone is

in a rush without any kind of concern for the rest. Everyone wants to be first. Majority have

a psyche to bend the law, cross the barricades, whether it be on the road or in any other walk of

life to carve out short cuts for them to pass through and a psyche to justify their wrongs with a

expectation only for others to follow the law and wait for the day when all other subject

themselves to the rule of law so that they could follow suit. There is no initiative by the

government to check such a breach. It is not the rules which are required for such acts but norms

coupled with awareness will suffice. I am not talking about any kind of formal structure to this

but an informal initiative is the need of the hour because people in India just don’t believe in

formal initiatives. From the ordinary traffic constable to the man driving a bicycle on the road,

the pedestrian to the richest all of us as Indian have one psyche to bend the law, cross the

barricades, whether it be on the road or in any other walk of life to carve out short cuts for them

to pass through and a psyche to justify their wrongs with a expectation only for others to follow

the law and wait for the day when all other subject themselves to the rule of law so that

they could follow suit.

So, we still are not ruled by LAW and it will be a long wait without an initiative.
The doctrine of Rule of Law has been adopted in Indian Constitution. The ideals of the

Constitution, justice, liberty and equality are enshrined (embodied) in the preamble.The

Constitution of India has been made the supreme law of the country and other laws are required

to be in conformity with the Constitution. Any law which is found in violation of any provision

of the Constitution is declared invalid.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 Parliament. It is also regarded as a part of natural

justice.

In Keshavanda Bharti vs. State of Kerala 3, Supreme Court enunciated the rule of law as one of

the most important aspects of the doctrine of basic structure.

In Menaka Gandhi vs. Union of India4, The Supreme Court declared that Article 14 strikes

against arbitrariness.

How many people respect or pay heed to this fundamental principle? In our country, there are

many innocent people who are held guilty only because of the malicious acts of a few hypocrites.

We know of a number of members of legislature and parliament who are facing criminal

prosecution. It is a farce to talk of a nation ruled by highly qualified excellent men. Politics has

become the refuge of scoundrels, black marketers, corrupt and the mean to wield influence and

for personal exaltation. It is really difficult to find good candidates during elections. Our leaders

are law into themselves.

3
AIR 1973 SC 1461
4
AIR 1978 SC 597
There is neither justice to the victims nor fairness to the accused. Then what kind of‘Rule of

Law‘are we talking about.

The judiciary is not above board, there have been abundant rumors about the adulterous and

extravagant lives led by the judges from the lower to the highest judicial officers.

The police just don’t care about the landmark judgment of D.K. Basu or Section 160 Criminal

Procedure Code or any other judgment. The custodial violence has gone beyond description.

Rape, molestation, murder are all becoming common occurrences in police custody.

The injuries are not noted down scrupulously and valuable evidence is lost because of the neglect

and lethargy of the medical profession. The most recent case being the Arushi Murder Case in

which the investigation was done by the CBI. The actual vaginal swab was not sent for forensic

examination. Is this acceptable negligence or voluntary negligence. We still do not have an

answer.

With the laws in favor of women, Is there a legal authority or sanction to check such a misuse? I

am aware that the judiciary has tried to act in this regard but there is no formal structure to check

such an abuse.

The people including public servants just ignore the rule of law, even if it is for acts or omissions

which are not difficult to follow or that they should be a part of the normal routine. Everyone is

in a rush without any kind of concern for the rest. Everyone wants to be first. Majority have a

psyche to bend the law, cross the barricades, whether it be on the road or in any other walk of life

to carve out short cuts for them to pass through and a psyche to justify their wrongs with a

expectation only for others to follow the law and wait for the day when all other subject

themselves to the rule of law so that they could follow suit. There is no initiative by the
government to check such a breach. It is not the rules which are required for such acts but norms

coupled with awareness will suffice. I am not talking about any kind of formal structure to this

but an informal initiative is the need of the hour because people in India just don’t believe in

formal initiatives. From the ordinary traffic constable to the man driving a bicycle on the road,

the pedestrian to the richest all of us as Indian have one psyche to bend the law, cross the

barricades, whether it be on the road or in any other walk of life to carve out short cuts for them

to pass through and a psyche to justify their wrongs with a expectation only for others to follow

the law and wait for the day when all other subject themselves to the rule of law so that they

could follow suit. So, we still are not ruled by LAW and it will be a long wait without an

initiative.

Fundamental rights enshrined in part III of the constitution is a restriction on the law making

power of the Indian Parliament. It includes freedom of speech, expression, association,

movement, residence, property, profession and personal liberty. In its broader sense the

Constitution itself prescribes the basic legal system of the country. To guarantee and promote

fundamental rights and freedoms of the citizens and the respect for the principles of the

democratic State based on rule of law. The popular habeas corpus case, ADM Jabalpur v.

Shivakant Shukla,5 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 Justice H.R. Khanna dissented from the majority opinion and

observed that “Even in absence of Article 21 in the Constitution, the state has got no power to

5
AIR 1976 SC 1207
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…”

Applied to the powers of the government, this requires that every government authority which

does some act which would otherwise be a wrong (such as taking a man’s land), or which

infringes a man’s liberty (as by refusing him planning permission), must be able to justify its

action as authorized by law -and in nearly every case this will mean authorized directly or

indirectly by Act of Parliament.

The secondary meaning of rule of law is that the government should be conducted within a

framework of recognized rules and principles which restrict discretionary powers. The Supreme

Court observed in Som Raj v. State of Haryana6 that the absence of arbitrary power is the

primary postulate of Rule of Law upon which the whole constitutional edifice is dependant.

Discretion being exercised without any rule is a concept which is antithesis of the concept.

The third meaning of 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 India v. Raghubir

Singh7 that it is 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.

Although, complete absence of discretionary powers, or absence of inequality are not possible in

this administrative age, yet the concept of rule of law has been developed and is prevalent in

common law countries such as India. The rule of law has provided a sort of touchstone to judge

and test the administrative law prevailing in the country at a given time. Rule of law,

6
1990 AIR 1176
7
1989 AIR 1933
traditionally denotes the absence of arbitrary powers, and hence one can denounce the increase

of arbitrary or discretionary powers of the administration and advocate controlling it through

procedures and other means. Rule of law for that matter is also associated with supremacy of

courts. Therefore, in the ultimate analysis, courts should have the power to control the

administrative action and any overt diminution of that power is to be criticized. The principle

implicit in the rule of law that the executive must act under the law and not by its own fiat is still

a cardinal principle of the common law system, which is being followed by India . In the

common law system the executive is regarded as not having any inherent powers of its own, but

all its powers flow and emanate from the law. It is one of the vital principles playing an

important role in democratic countries like India. There is a thin line between judicial review and

judicial activism. Rule of law serves as the basis of judicial review of administrative action. The

judiciary sees to it that the executive keeps itself within the limits of law and does not overstep

the same. Thus, judicial activism is kept into check. However there are instances in India where

judiciary has tried to infringe upon the territory of the executive and the legislature. A recent

example of this would be the present reservation scenario for the other backward classes. The

judiciary propagated that the creamy layer should be excluded from the benefits of the

reservation policy, whereas the legislature and the executive were against it.

As mentioned before Dicey’s theory of rule of law has been adopted and incorporated in the

Indian Constitution. The three arms judiciary, legislature and executive work in accordance with

each other. The public can approach the high courts as well as the Supreme Court in case of

violation of their fundamental rights. If the power with the executive or the legislature is abused

in any sorts, its malafide action can be quashed by the ordinary courts of law. This can be said so

since it becomes an opposition to the due process of law. Rule of law also implies a certain
procedure of law to be followed. Anything out of the purview of the relevant law can be termed

as ultra vires.

No person shall be deprived of his life or personal liberties except according to procedure

established by law or of his property save by authority of law. The government officials and the

government itself is not above the law. In India the concept is that of equality before the law and

equal protection of laws. Any legal wrong committed by any person would be punished in a

similar pattern. The law adjudicated in the ordinary courts of law applies to all the people with

equal force and bidingness. In public service also the doctrine of equality is accepted. The suits

for breach of contract etc against the state government officials, public servants can be filed in

the ordinary courts of law by the public.

In Chief settlement Commr; Punjab v. Om Prakash,8 it was observed 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 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

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 ultra vires. In Kesavanda Bharti vs. State of

Kerala,9 the Supreme Court enunciated the rule of law as one of the most important aspects of
8
1990 SCC SUPL 673.

9
AIR 1973.
the doctrine of basic structure. In Menaka Gandhi vs. Union of India,10 the Supreme Court
11
declared that Article 14 strikes against arbitrariness. In Indira Gandhi Nehru vs. Raj Narayan

Article 329-A was inserted in the Constitution under 39th amendment, which provided certain

immunities to the election of office of Prime Minister from judicial review. The Supreme Court

declared Article 329-A as invalid since it abridges the basic structure of the Constitution.

In the case of Binani Zinc Limited vs. Kerala State Electricity Board and Ors. (2009)12 Justice S

B sinha declare 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.” In the case of Gadakh Yashwantrao Kankarrao v. Balasaheb

Vikhe Patil13 the ratio laid down 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 the case of Sukhdev v. Bhagatram14 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 the Constitution" or the

10
AIR 1978 SC 597.
11
AIR 1975.
12
AIR 2009.
13
AIR 1994. 1 SCC. 682.
14
1975 3 SCR, 619.
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

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."

In Secretary, State of Karnataka and Ors. v. Uma Devi, 15 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 Amlan Jyoti Borooah Vs.State of Assam and Ors 16. It was held by S B Sinha that:

“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

15
2006, 4 SCC 1.
16
2009, 3 SC. 303.
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 Punjab,17 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 shoul not be

unfettered, and that there should be an independent judiciary to protect the citizens against the

excesses of executive and legislative power. In addition to this in P. sambamurthy v. state of

Andhra Pradesh18 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 Khan v. Manohar Joshi19 in which the SC laid down the proposition

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 quiet evident that the concept of rule of law is gaining importance and attention and

judicial efforts are made to make it stronger.

CRITIQUES

17
1980 AIR.
18
1987 AIR 663.
19
1999 SCC,(CR) 577.
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 well-

intended 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 India20 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. Union of

India.

The main characteristic of the concept of rule of law is ‘equality’. This itself has been criticized

widely. the government possesses the inherent authority to act purely on its own volition and

without being subject to any checks or limitations. Total equality is possible to prevail in general

conditions, not only in India but in any country for that matter. For e.g.:

• No case can be filed against the Bureaucrats and Diplomats in India

20
1986, 4 SCC, 707.
• No criminal proceedings whatsoever shall be instituted or continued against the President, or

the Governor of a state, in any court during his term of office. No process for the arrest or

imprisonment of the President, or the Governor of a state, shall issue from any court during his

term of office.

• The privileges enjoyed by the members of parliament with respect to legal actions against

them.

• There are separate tribunals for administrative cases.

Thus, on the basis of these points one can say that equality in India is not prevalent in its

concrete sense. The Dicey’s concept of rule of law has also been criticized. Law changes with

time. As the society evolves, even the law of the country should develop. Some view the rule of

law as nothing other than a tool of the powerful to maintain the status quo in the legal system.

The general consensus is that the status quo, far from being neutral, serves to protect the

powerful at the expense of the disempowered. This lack of neutrality in the rule of law runs

contrary to the ideal, traced to Aristotle, that in light of the law every person should be equal;

that it is one's humanity, not one's status in society that requires that laws be justly applied. More

extreme critics claim that "[t]his liberal paradigm has destroyed the rule of law." The rationale

behind this statement is that, considering the real state of the world, many equate the rule of law

with legality. However, this is a flawed equation as "[l] egality simply means that there are laws

and says nothing about the quality of those laws." Hence, there are many lacunas in the concept

of rule of law which servers the reason of non-implementation of the concept properly.

India: Observation, interpretation and the status

 Indian Constitution is regulating the rule of law. And ADM Jabalpur case is a tainted justice.In

case of Indira Nehru Gandhi vs. Raj Narayan21 it was observed:

I find it impossible to subscribe to the view that the Preamble of the Constitution holds the

key to its basic structure or that the preamble is too holy to suffer a human touch.

Constitutions are written, if they are written in the rarefied atmosphere of high ideology,

whatever be the ideology. Preambles of written Constitutions are intended primarily to

reflect the hopes and aspirations of people. They resolute the ideal, which the Nation seeks

to achieve, the target, not the achievement. In parts, therefore, they are metaphysical like

slogans.

As such the rule of law runs through every golden thread of the Constitution and to say that it is

like a slogan, or like a corporate mission statement, appears to be totally “unsound and

motivated”. Rather a tainted judgment. It is expected of the parliamentarians and judiciary to

preserve the rule of law, the dignity of the sacred Constitutional document, and also the precious

fundamentals enshrined therein. The law should have been carved out in such a fashion that the

younger judicial generation may be inspired to follow than to contemptuously condemn. And,

really speaking, no Parliamentarian or any judge has any authority to go beyond the Constitution

and especially, the oath of the office. Going beyond the oath and administering tainted justice is

nothing, but a sheer fraud on judicial power and a robbery of rule of law. Championing

supersession of genius orbit could not have been the consideration and Rule of law could have

been prime consideration. “Political loyalty”, while administrating justice lays dangerous impact

over the Constitutional spinal.

21
AIR 1975.
Rule of law is antithesis of arbitrariness. Plato believed the concept of will, but subsequently

after experience, modified the position and expounded the test of "government under law" and

ultimately expressed the insistence on rule.

H.W.Jones formulated three principles keeping in view the Dicey's formulation, which is

changed to certain extent. According to him the rule of law should cover up the three principles

as followed.

1) In a decent society, it is unthinkable that government or any officer of government possesses

arbitrary power over the person or the interests of the individual.

2) All members of society, private persons and governmental officials alike, must be equally

responsible before the law, and

3) Effective judicial remedies are more important than abstract constitutional declarations in

securing the rights of individual against encroachment by the state.

In every democratic country, the people have expected its government to run its business in a

civilized manner particularly under the set of well-defined rules and lastly certain limited

discretionary powers that may be exercised. The rule of law is accepted, almost in all countries,

to pursue and always practice the dominant object of civilization. Without the rule of law the

government itself would be chaos and absurdity.

In the language of Shri Aurbindo from Human cycle.

The national unit is not formed and does not exist merely for the sake of existing. Its purpose is

to provide a large mound of human aggregation in which the race, and not only classes and

individuals may move towards its full human development. So long as the labour of formation
continues, this larger development may be held back and authority and order be accepted as the

first consideration, but not when the aggregate is sure of its existence and feels the need of inner

expansion. Then the old bonds have to be burst; the means of formation have to be discarded as

obstacles to growth. The Liberty becomes the watchword of the race.

The ecclesiastical order, which suppressed liberty of thought and new ethical and social

development, has to be disposed of it despotic authority, so that man may be mentally and

spiritually free. The monopolies wand privileges of the king and aristocracy have to be

destroyed, so that all may take the share of the national power, prosperity and activity... for

liberty is insufficient, justice also necessary and becomes a pressing demand, the cry for equality

arises. Certainly absolute equality is non-existent in this world, but the world was aimed against

the unjust and unnecessary inequalities of the old social order. Under a just social order, there

must be an equal opportunity, unequal treatment training for all to develop their faculties and to

use them, and so far as may be, unequal share in the advantages of the aggregate life as the right

of all who contribute to the existence, vigour and development of that life by the use of their

capacities. The individual tries to protect the liberty whereas the State tries to impose law and

order a leading command, which should be based on fair procedure only.

Supreme Court observed that the rule of law is a golden thread runs through the every provision

of the Constitution. AN Ray observed that the preamble of the constitution shows the hopes and

aspirations and there is nothing like rule of law in it. Totally unsound statement in the judgment

had to be withdrawn as can be seen in subsequent decided case observing that there cannot be

any rule of law other than the constitutional rule of law. Rule of law is better described by
Justice Khanna in A.D.M. Jabalpur case.22 A minority view of justice Khanna was stamped as

honest view preserving the dignity, ethos and values for the Constitution.

“The Preamble of the Constitution provides that “we the people of India, having solemnly

resolved to constitute India into a sovereign socialist secular democratic republic and to secure

to all its citizens: Justice, social, economic and politic, liberty of thought expression, belief, faith

and worship, Equality of status and opportunity, Fraternity assuring the dignity of the individual

and the unity and integrity of the nation...”

In the constitutional background let us see what is the development of rule of law in the country.

Article 14 of the Constitution guarantees the equality as between the subjects and equal

protection of law and the meaning and philosophy contained in that article must refer to the

preamble of the Constitution which says "equality of status and opportunity". That phrase

everybody is created equal shall derive advantage to all in the matter of status and for developing

the own viability. However, subject to certain limitations, which may be imposed by the enacted

law, the people can enjoy the guarantee.

The courts have accepted the test of reasonable classification based on intelligible differentia,

and therefore, all citizens are not made subject to certain classification. Similarly, the

Honourable the Supreme Court propounded a new principle by interpretative process which

according to Court lay new bare. This principle also must be held good. The fairness is the order

of the day and arbitrary discretion definitely results into negation to justice. Some jurists

belonging to the old school severely criticized the new bear laid, but then the Supreme Court has

reinforced the principle in several subsequent decisions.

22
AIR 1976. 1207..
According to E. P. Royappa:

“The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition

against discrimination. Now what is the content and reach of this great equalizing principle? It is

a founding faith, to use the words of Bose a way of life, and it must not be subjected to a narrow

pedantic or lexicographic approach. We cannot countenance any attempt to truncate it’s all

embracing scope and meaning, for to do would be to violate its activist magnitude. Equality is a

dynamic concept with many aspects and dimension and it cannot be cribbed, cabinet and

confined within traditional and doctrinaire limits. From a positivistic point of view, equality is

antipathetic to arbitrariness. In fact equality and arbitrariness are sworn enemies, one belongs to

the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.

Where an act is arbitrary, it is implicit in that it is unequal both according to political logic and

constitutional law and therefore violative of Article 14, and if it affects any matter relating to

public employment, it is also violate of Article 16. Articles 14 and 16 strike at arbitrariness in

State action and ensure fairness and equality of treatment. they require that State action must be

based on allied relevant principles applicable alike to all similarly situated and it must not be

guided by any extraneous or irrelevant considerations because that would be denial of equality.

Where the operative reason for State action as distinguished from motive inducing from the

antechamber of the mind is not legitimate and relevant but is extraneous and outside the area of

permissible considerations, it would amount to mollified exercise of power and that is hit by

articles 14 and 16. Mollified exercise of power and arbitrariness are different lethal rotations

emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by

Articles 14 and 16.”

The Courts have constantly tried to protect the liberties of the people and assumed powers under

the Constitution for judicial review of administrative 1actions. The discretionary powers have to

be curbed, if they are abused or misused. The socio-politic Institution need not cry, if the courts

do justice and perform its substantial role. That is the essence of justice. The trend is to read the

social justice and to translate it in reality. Welfare State has to discharge its duty fairly without

any arbitrary and discriminatory treatment. Courts laid down the standard of reasonableness in

Governmental action.

Constitutional Perspective
The constitution of India guarantees equality before the law, as an aspect of the rule of law,

under Article-14.

Under Article 32, the Supreme Court has power to issue writes in the nature of Habeas Corpus,

mandamus, prohibition, quo warrantor and certiorari. It is also given power of judicial review to

prevent any ultra vires law,"to preserve 'Rule of Law' Article 15 and 16 of right to equality and

Article 19, 20 and 21 in form of right to life and liberty are provisions of our constitution to this

affect.

In India, no one has very arbitrary power, except the powers given by the law. The constitution is

the Supreme Court law of the land and even the government derives its authority from it. This

effectuates the supremacy of law.

Everyone, in India are subject to same laws, without any discrimination, court takes into account

no rank or condition .However, the president and the governors (under Article 361) are given

special exemptions. Armed forces personnels are treated by armed laws, officials are given same

immunities etc. But these provisions do not negate the effectiveness of the rule of law in India,

because their provisions are also made by laws, under various provisions of the constitution.

From a poor person to the president, be it a police constable or a collector, are treated by

law.Thus, the Indian constitution effectively applies the rule of law. The Supreme Court in the

case of Indira Nehru, Gandhiji vs. Raj Narain - 1975 23 held that the rule of law embodied in

Article 14 is the 'basic structure' of the Indian constitution and hence it cannot be destroyed even

by an amendment of the constitution under Article 368 of the constitution.

23
Air 1975.
Article 14 of the constitution guarantees the right to equality to every citizen of India. It

embodies the general principles of equality before law and prohibits unreasonable discrimination

between persons. Article 14 embodies the idea of equality expressed in preamble.

ARTICLE 14- EQUALITY BEFORE LAW

Article 14 declares that ‘the State shall not deny to any person equality before the law or equal

protection of law within the territory of India.’. Thus article 14 uses the two expressions

“equality before law” and “equal protection of law”. The phrase “equality before law” find a

place in almost in written constitution that guarantees fundamental right both these expression

.both this expression aim at establishing what is called “equality of status” While both the

expression are kind of identical but they don’t give similar meaning.

EQUALITY BEFORE LAW: Its origin is from America. And somehow its negative concept. It

aims at implying the absence of any special privilege by reason of birth, sex, religion etc in favor

of individuals and the equal subject of all the classes to the ordinary law

EQUAL PROTECTION OF LAW: Its origin is from British. And some how it is a positive

concept. it aims at equality of treatment in equal circumstances. It means whether someone is

P.M. or President he should be deal with same law as normal being dealt with.

1. SUPREMACY OF LAW
The First meaning of the Rule of Law is that 'no man is punishable or can lawfully be made to

suffer in body or goods except for a distinct breach of law established in the ordinary legal

manner before the ordinary courts of the land. It implies that a man may be punished for a breach

of law but cannot be punished for anything else. No man can be punished except for a breach of

law. An alleged offence is required to be proved before the ordinary courts in accordance with

the ordinary procedure.

2. EQUALITY BEFORE LAW

The Second meaning of the Rule of Law is that no man is above law. Every man whatever be

his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction

of the ordinary tribunals. Everybody under Article 14 is equal before law and has equal

protection.

3. INDIVIDUAL LIBERTY

lot of individual liberty is mention like fundamental right in Article 21- protection of life and

personal liberty, article 19- Right to freedom etc. and courts are their to protect individual liberty.

The first and second aspect applies to Indian system but the third aspect of the diceys rule of law

does not apply to Indian system as the source of right of individuals is the constitution of india.

The constitution is the supreme law of the land and all laws passed by the legislature must be

consistent with provisions of the constitutionThe rule of law impose a duty upon state to take

special measure to prevent and punish brutality by police methodology. The rule of law

embodied in article 14 is the basic feature of the Indian constitution and hence it can’t be

destroyed even by an amendment of the constitution under article 368 of the constitution.
 EXCEPTION TO RULE OF LAW

The above rule of equality is however not an absolute rule and there is number exception to it…

‘Equality of Law’ does not mean the power of the private citizens is the same as the power of the

public officials. Thus a police officer has the power to arrest you while no other private person

has this power. This is not violation of rule of law. But rule of law does require that these powers

should be clearly defined by law and that abuse of authority by public officers must be punished

by ordinary courts.

The rule of law does not prevent certain class of persons being subject to special rules. Thus

members of armed forces are controlled by military rules. Similarly medical practitioners are

controlled by medical council of India

Certain members of society are governed by special rules in their profession i.e. lawyers,

doctors, nurses, members of armed forces and police. Such classes of people are treated

differently from ordinary citizens.

ARTICLE 14 PERMITS CLASSIFICATION BUT PROHIBITS CLASS LEGISLATION

The equal protection of laws guaranteed by Article 14 does not mean that all laws must be

general in character. It does not mean that the same laws should apply to all persons. It does not

attainment or circumstances in the same position. The varying needs of different classes of

persons often requires separate treatment. From the very nature of society there should be

different laws in different places and the legitimate controls the policy and enacts laws in the best

interest of the safety and security of the state. In fact identical treatment in unequal
circumstances would amount to inequality. So a reasonable classification is only not permitted

but is necessary if society is to progress.

Thus what Article 14 forbids is class-legislation but it does not forbid reasonable classification.

The classification however must not be “arbitrary, artificial or evasive” but must be based on

some real and substantial bearing a just and reasonable relation to the object sought to be

achieved by the legislation. Article 14 applies where equals are treated differently without any

reasonable basis. But where equals and unequals are treated differently, Article 14 does not

apply. Class legislation is that which makes an improper discrimination by conferring particular

privileges upon a class of persons arbitrarily selected from a large number of persons all of

whom stand in the same relation to the privilege granted that between whom and the persons not

so favored no reasonable distinction or substantial difference can be found justifying the

inclusion of one and the exclusion of the other from such privilege.

TEST OF REASONABLE CLASSIFICATION

While Article 14 forbids class legislation it does not forbid reasonable classification of persons,

objects, and transactions by the legislature for the purpose of achieving specific ends. But

classification must not be “arbitrary ,artificial or evasive”. It must always rest upon some real

upon some real and substantial distinction bearing a just and reasonable relation to the object

sought to be achieved by the legislation. Classification to be reasonable must fulfil the following

two conditions

Firstly the classification must be founded on the intelligible differentia which distinguishes

persons or thing that are grouped together from others left out of the group

Secondly the differentia must have a rational relation to the object sought to be achieved by the

act.The differentia which is the basis of the classification and the object of the act are two

distinct things. What is necessary is that there must be nexus between the basis of classification

and the object of the act which makes the classification. It is only when there is no reasonable

basis for a classification that legislation making such classification may be declared

discriminatory. Thus the legislature may fix the age at which persons shall be deemed competent

to contract between themselves but no one will claim that competency. No contract can be made

to depend upon the stature or colour of the hair. Such a classification will be arbitrary.

The true meaning and scope of Article 14 have been explained in a number of cases by the

supreme court. In view of this the propositions laid down in Damia case still hold good

governing a valid classification and are as follows.

1. A law may be constitutional even though it relates to a single individual if on account of some

special circumstances or reasons applicable to him and not applicable to others, that single

individual may be treated as a class by itself

2. There is always presumption in favour of the constitutionality of a statute and the burden is

upon him who attacks it to show that there has been a clear transgression of constitutional

principles.

3. The presumption may be rebutted in certain cases by showing that on the fact of the statue,

there is no classification and no difference peculiar to any individual or class and not applicable

to any other individual or class, and yet the law hits only a particular individual or class

4. It must be assumed that Legislature correctly understand and appreciates the need of its own

people that its law are directed to problem made manifest by experience and that its

discrimination are based on adequate grounds

5. In order to sustain the presumption of constitutionality the court may take into consideration

maters of common knowledge, matters of report, the history of the times and may assume every

state of facts which can be conceived existing at the time of the legislation.

6. Thus the legislation is free to recognize degrees of harm and may confine its restriction to

those cases where the need is deemed to be the clearest.

7. While good faith and knowledge of the existing conditions on the part of a legislature are to be

presumed, if there is nothing on the face of the law or the surrounding circumstances brought to

the notice of the court on which the classification may reasonable be regarded as based, the

presumption of constitutionality cannot be carried to extent always that there must be some

undisclosed and unknown reason for subjecting certain individuals or corporation to be hostile

or discriminating legislation
8. The classification may be made on different bases e.g. geographical or according to object or

occupation or the like.

9. The classification made by the legislature need not be scientifically perfect or logically

complete.Mathematical nicety and perfect equality are not required.

Equality before the law does not require mathematical equality of all persons in all

circumstances. Equal treatment does not mean identical treatment. Similarly not identity of

treatment is enough.

10. There can be discrimination both in the substantive as well as the procedural law. Article 14

applies to both.

If the classification satisfies the test laid down in the above propositions, the law will be declared

constitutional. The question whether a classification is reasonable and proper and not must

however, be judged more on commonsense than on legal subtitles.

OTHER RELEVANT CASES

Ø D.S. Nakara v. Union Of India24

The Government issued an office memorandum announcing a liberalized pension scheme for

retired government servants but made it applicable to those who had retired after 31 March 1979.

The Supreme Court held that the fixing of the cut off date to be discriminatory as violating

Article 14. The devision of pensioners into two classes on the basis of the date of retirement was

not based on any rational principle because a difference of two days in the matter of retiremnt

could hav a traumatic effect on the pensioner. Such a classification held to be arbitrary and

unprincipled as there was no acceptable or persuasive reason in its favour. The said classification

had no rational nexus with the object sought to achieved.

ØMadhu Limaye v. Supdt. Tihar Jail Delhi25

Th1ere were Indian and Europian Prisoners. Both were treated differently. Europian gets better

diet. Court held that difference between Indian and Europian 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 equally.

Ø Sanaboina Satyanarayan v. Govt. of A.P26

24
1983 AIR 130
25
1971 AIR 2486
26
AIR 2003 SC 3074
In Andra Pradesh. They formulate a scheme for prevention of crime against women. In prisons

also prisoners were classify in to two category 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 is deprived. Court held that there is resoanble classification to achieve

some objective.

Ø Tamil Nadu Electricity Board v R. Veeraswamy27

The employee were 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 Rs200 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 cant be

treated alike as they do not belong to one class. Te workmen who had retired and received all the

benefits under the contributory provident fund scheme cease to be employees of the applellant

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 had

retired before the date.

27
AIR 1999 SC 1768
 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 unequals and unequals as equals. Article 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. Its is equally

well settled that in order to meet the test of Article 14

(i) 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 (ii) 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.

*******************************
 CASE LAW

# Chiranjit Lal v. Union Of India AIR 1981 SC 41

# Abdul Rehman v. Pinto AIR 1951

# Jagjit Singh v. State AIR 1954

# R.K. Garg v. Union Of India AIR 1981

# Monoponier Co. v. City Of Los Angles

# K. Thimmappa v. Chairman Central Board Of Director AIR 1958

# Anwar Ali’s case AIR 1952 SC 75

# Ramkrishna Dalmia v Justice Tendolkar AIR 1958

# Kedar Nath v State Of West Bengal AIR 1953

# Kameshwar Singh v. F.N. Balsaro AIR 1954

# State Of Bombay v. F.N. Balsara AIR 1951

# State Of West Bengal v. Anar Ali AIR 1952

# Sagir Ahmed v. State AIR 1954

# AIR 1983 SC 130

# AIR 1975 SC 1505

# (2003) 10 SCC 78

# AIR 1999 SC 1768

Waman Rao And Ors vs Union Of India And Ors

Equivalent citations: (1981) 2 SCC 362, 1981 2 SCR