Rule of Law and Constitutional Developments 535 ” |. THE RULE OF LAW al concept! meaning f gos rule of ee a legal a “concept” is a tool of thought v yse 0 deal with certain situations, They are man made and serve to aid nicl “ inthe organisation of the infinite particularity of things into classes. oe inherent properties of a concept may be determined by a priori logic ue may be @ pure creation of the mind, or they may be abstracted from « iene a posterior abstractions). For example, the abstract general idea or vet jesignated by the word “red” is that characteristic which is com- on icks, cherries, and blood, and in that sense, the concept is abstracted hing actually existing. But on the other hand, an a priori concept, for rule of law or a contract, are capable of existing in the human mind even if there was no rule of law ora single contract to be seen in the world. The characteristic of a contract or the rule of law is capable of being determined by a priori logic. The development of a legal convept may, however, be guided as much by a desire to do justice in the individual case as by a priori logic, which deals with the inherent properties of the concept.! The development and formulations of concepts and doctrines is the work of judges, not of legislators who frame par- the ri fiom some example, the ticular rules. 2. Concept of rule of law The latin expression for the rule of law is Ja legalite. Rule of law is quite simi- Jar to American expression “due process of Jaw” which connotes government on principles of law and not of men; law must really rule and justice should prevail. It means —conduct of legal proceedings according to the established principles and rules safeguarding individual and group rights. This concept of rule of law which embraces within its fold legislation (enacted law, ie. ex) and principles of natural justice (Le. jus) is SO powerful and all per vading that no democratic country can afford to disregard it. It is therefore the sole basis of administrative law. 3. Origin The is sai st arose in Englat ee ee aro gen Kourad Tl the holy Roman emperor by his denea an 18 May 1027 AD declared that no Jord in his kingdom shall be deprived of hig land, but by the laws of his empire and by the judgment of his peers. In England, King John Lackland in Magna Carta’ of 1225 declared tha “No fire man shall be taken or arrested OF disseized or exiled oF in some w destroyed, or itt we go upon faa nior Will WE seed for hima except under a lavsful judgment nd in 1215 but even before this period its Jurisprudence 3x Edn. ESPS and OUR, 1964) Chap. VILL, 205-206. 3. paton, A Textbook of 2. 1024 to 1039 AD. 3. Magna Carta, Chap. XXXIX,n Legal and Constitutional History Landmarks in India! (ap 536 Jand’” In the reign of Henry TIT this was 54° it was declared that “no man shall be Put out i : disinherited, nor put t or tenement, nor taken, nor imprisoned aoe ee PUL t0 death ‘ out being brought to answer without due proc ear itat ne Concept thys originated in the Middle Ages on the basis 0} Pee ernment “ere certain fundamental laws which could not be altered ee 4 ei wr en is connect this concept with that of natural law. In Eng! an a a inessed a struggle between the king, court and Parliament; al arliameny emerged victorious which gave impetus to this concept, which had its origin in the idea propounded by Sit Edward Coke, that the king cannot be above the law—he i d s subject to the power of law and to god. ; is vn 1885, the idea of rule of law became synonymous with due process of lay in America, as it encompassed within itself the broad principles of law enacted or natural, kind or cruel, just or unjust. The word “due” signifies fair and adequate procedure according to principles of natural justice. This idea has now become so firm, so fundamental and universally accepted that men cannot change it. In the US by the Sth* and the 14th? Amendments to the Constitution, the con- adopted and extended to State actions. It means the same Is and by the law of the refop of his equal , mulated by Coke’ and in 13: cept of rule of law was as the law of the land. 4. Definition The concept, though of utmost importance defies any definition. It is unclear in its connotations. It is so fluid that it is likely that everyone may understand and express it in his own way. 5. Dicey’s concept As expounded by Dicey, in law of the Constitution it means, that all men are equal before the law, whether they be officials or not (except the Queen), so that the acts of officials in carrying out the behests of the executive government are cognizable by the ordinary courts and judged by the ordinary law, as including any special powers, privileges and exemptions attributed to the Crown by the prerogative or statute. , So far as offences are concerned, an offender will not be punished except for @ reach of the ordinary law, and in the ordinary courts. Here. there is an absence “ tl re xercse of arbitrary power. Further, the Fundamental Rights of the citizen, the Tree fom eee freedom of speech and freedom of meeting or asso- 5 rooted in the ordi i ituti a ordinary law, and not upon any special “constitutional Dicey attributed the following three meanings to the doctrine of rule of law: Dt. 28-10-1216 to 16-11-1272. Cote, Henry's Charter, . Reign of Edward III (132 |. 23rd Edn. 111 C-3. Ee . In 1791 In 1867. ). Burke, Sera auvs Osborn's Concise Law Dictionary (6th Edn.. 1976) 907-_ Rule of Law and Constitutio : Nal Developments cy of law, and conse . : eupremacy iw, and consequently, absence of 1 nis Senee of arbitrary power % Jotection of individual liberties by the courts; . > pin Sas they define and enfo implications and impc nee pe concert are ne the ruler must also be subject to | - all authorities, legislative, exec ject to law. I is tion of all aut er a gislative Xeculive, judicial and othe ILis the subordina- tien would generally be accepted as characte er to certain principles oe ae teristic of law, such a the fundamental principles of justice, moral principles re as the ideas of in es respect forthe Supreme value and dignity af the ini a jual.'' sed country on this earth can run its government witl civil xo con of force t0 f hout law. Law rests an subjec I ‘on and “reason is the life of the : a a itself is nothing else but reason”? It thus Sie oT rule and the rule of law is opposed to governmental arbitrariness and tyrann’ rot ower. Finally, it connotes something more fundamental and valuable than mere maintaining and enforcing law and order and it is, that the government itself is subject to Jaw, it cannot disregard it or reformulate it to suit its own purpose. The concept and its enforcement therefore acts as a brake on governmental actions jest they become barbaric and anarchic. Thus, the concept broadly emphasises the absence of any centre of unlimited or arbitrary power in the country, the structur~ isation and control of power, and the absence of arbitrariness in the government. Government intervention in many daily activities of the citizens is on the increase creating a possibility of arbitrariness in state action. The rule of law is useful, therefore, as a counter to this situation.? A democratic legislature, as suggested by Bhagwati J, may “make laws, but its power should not be unfettered, and that there should be an independent judiciary to protect the citizen against the excesses of executive and legislative power™."* 1. Dicey’s concept criticised The concept advocated by Dicey has been criticised from various angles. It is said that according to Dicey’s first meaning, liberty in England was conditioned by the regular rules of law and there should be no interference by the government. Secondly, he stressed on the importance of courts and their unchallenged power to determine disputes since everyone was equal before law. But the first meaning “as much less true in Dicey’s time and the second meaning has become untrue Since Dicey’s time. Passing of the Crown Proceedings Act, 1947 (volishing ony Privileges in litigation), curtailment of liberties, establishment of sribi mals ow eciding issues other than the common law, the rise of trade unionism whic! “red the English Parliament into granting them immunity from the ordinary I. W. alk . 2 atte Ord Companion to Law (1980) 1093. Jain, Inat, Commentary upon Littleton, First Institut Ig. dian Constitutional Law (4th Edn., 1987) 5- “chan Singh v, State of Pied (1980) 1'SCC 684: 1980 SCC (Cri) 580 quoted in Jain. te 8, 97-b.ir r Histor} 538 Landmarks in Indian Legal and Constitution! istory (hap and the increase in lay} tules of law (c.g a ability in tor) i mas (c.g. immunity from liability pport of the above Ss and the decline of trust in the courts are prools 1" “ ties, he believes Besides this, respecting point three: protecting individual liber oA thatthe : ret any code to enforce rule of Ta implied that the court's dd not interpret ay eae fo enor Ce indi, defined and applied existing rights. This idea of Parliament. This was so because in ual rights in England, they merely Was based on the concept of sovereignty England there are no constitutional guara tutions of India and the US. ntces as they exist in the written Const However, Dicey’s emphasis, on the whole, in his enuni ' ion ore of ay 'S on the absence of arbitrary pov equality before law and legal protection to certain basic human rights, and these ideas remain relevant and significant in every democratic country, It is also true that dictated by needs of practical government, a number of exceptions have been grafted on these ideas in modern democratic countries ¢ 8 there is a universal growth of broad discretionary powers of the administration: administrative tribunals have grown; the institution of preventive detention has atic countries. Nevertheless, the basic become the normal feature in many democr ideas are worth preserving and promoting."® 8. Emerging meaning of the concept of rule of law Thakker J gives the following meaning" to rule of law: Powers of executive may be increased only in unavoidable circumstances. Discretionary powers of the executive should be limited. Power handed over to executive is not its inherent power, it is granted to it by law. Administrative decisions should be subject to judicial review. There should be proper publicity in case of delegated legislation and it should be subject to control of Parliament and Judiciary. 6. Principles of natural justice should be observed by administration while decisions are taken. wee we The Supreme Court of India explaining this concept said in Som Raj case.” The absence of arbitrary power is the first postulate of rule of law upon which our constitutional edifice is based. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of rule of law. In Om Prakash case" the Supreme Court observed that in the present context. means the authority of the law courts to test all administrative action by the standard iM legality. The administrative or executive action that does not meet the standard W! be set aside if the aggrieved person brings the appropriate action in the compete court, 15. Indian Constitutional Law (4th Edn., 1987) 5 16. See, Takwani, Administrative Law, Chap. V7. Som Raj v. State of Haryana, (1990) 2 SCC 653, 18. Settlement Commr. v. Om Parkash,wa 2) Rul le ¢ of Law and Constitutional Developments 539 Wont AN p . POSTION PRIOR TO THE CONSTEEUTION 1. Hindu perioa recording (0 Dharmas a xe avira, in Anciel al prc . 7 ‘arma’, The idea ot rune ce neient India what prevailed was the “rule of erst Dy’ the esp dharma is wider in its connotations than what we understa pression rule of law or due proce: E EF aisanilneTo ule of law or duc process of law. Dharma included wil nslood in Y what was just and legal but what was moral and natural ssue ie ere Before the origin of the State (rajya) and creation kingship. there wa Sti \ ofhingsi a IS an ideal Stateless society but on account of influential, pow- A avaricious people, wickedness ine erful and ava people, wickedness increased, Fall in standard of behaviour gave birth toa system of legal proceedings for enforcement of rights and punish- spent of wrongs. And the king who was appointed did this task. From this arose rajvadharma, that is, the law laying down the powers, duties and responsibilities of the king. Side by side, courts with their powers, functions and procedure as part of dharma were established. And this marks the commencement of legal and constitutional history of India."” The word dharma in Ancient India touched wide varieties of topics and its essence has been described in various works.”” The importance of dharma was so much that it sustained the life of an individual, the society and the world. That is why Manu forcefully stressed its scrupulous observance.” As noted by Rama Jois? when the word dharma is used in context of the word rajya it only means law and dharmarajya means tule of law and not religion or a theocratic state. In the context of legal and constitutional history dharma means rajyadharma evolved by society through ages and it is binding both on the king: the ruler, and the people: the ruled. That the king was not the fountain of law and was not above law depicts that law was held in great esteem. Herein lie embedded the germs of administrative law in Ancient India. Rules of natural justice similar to those exist- ing at present were in vogue at that time as expressed by Vasishta. They were:” 1) no decision should be taken singly, 2) the business of deciding disputes should be transacted a) on the dias, 5) in the open, c) without bias, d) by giving reasons for findings, and ¢) after hearing both the parties. 2. Muslim period Like the Hindus, the Muslims never regarded the king as the fountain of law, he Was only the fountain of justice. This was so because the underlying fundamental concept under Muslim Law, like the Hindu Law was that the authority of the king Was subordinate to that of law. As noted’ the Mughal kings also observed the Principles of natural justice, heard the parties in open court (darbar), gave fait 9. M. Rama Jois, Legal je ry of India, Vol. 1, 8-9. 20. See, sal and Constitutional History oftndia. NOL MN. 33, vais Mahabharata, Shanti Parv 60, 7-8; Manusmriti, PT pie Vishnu, 13-17, , : fanusme; cl 7 “ fame desi” VUES: Dharma proteets those who protest — egal + 3. § Vente Constitutional History of India, 8-9. 4. Ramachandry J, Hindu Judicial System (1946) 52 ran, Administrative Law (Edn. 1984) Chap. |——— Constitutional History Ichap, 540 Landmarks in Indian Legal and P enc justice (adal and open hearing and pronounced judgment in open court. The fai ee invaf) of Jehan remembered by people like (he ee aa Chola King MN. Kondacho who allowed @ bell of justice to be ont one who wanted justice. Thus the precedent started in ae aes re gs, was continued by the Mughal e may not put this pra ciding Is. However, W' ini 2 cause the compa disputes on par with that ‘of the administrative tribunal, be parison is out of place British period The British entered India as traders al nd slowly and surreptitiously by their - sness they held sway over this vast country, varia as th Es eee sucked this country of its resources ei dharma withered. While they were in this country health, safety and morals of this country. They f governing the people and collecting reve- nues neglecting their essential duties. However, the British gave to this country a system of administration of justice which deserves our respect. The history of their efforts to evolve a system has been given step by step in previous chapters. From 1600 onwards to 1858 no significant achievements are noticed except prepa- ration of some codes and digests. The struggle for independence in 1857 by the Indians opened the eyes of the British and made them act for good government in India. Law Commissions were appointed and some important Acts were enacted. Between 1834 and 1939 certain measures by enacting Acts and Regulations in the field of public safety’, public health public morality’’, transport’*, labour” and economy” were taken. As a result of these enactments, administrative licences were granted; trade, transport and traffic in explosive were regulated; and this made the executive powerful which did give rise to disputes and injustice for rem- edying which some device was needed which was absent. The period of 1939 to 1947 was a period when World War II started which lasted up to 1945. During this period, the Defence of India Act and the Rules were enacted. These gave vast unguided and absolute powers to the executive which interfered with the life, liberty and property of individuals. Uncontrollable power of the executive without safeguards for the interests of the affected persons marked an acute need for its control. shrewdnes: They treated India a! With their advent, the rule of they never bothered about the discharged only the primary task 0 25. Sarais Act, 1867; Arms Act, 18 i * ais Act, 1867; , 1878; Indian Explosi ie Act, 189% Indian Boilers Act, 1923. natan Bxplosnes Ack 1884; Indian 26. Opiu i Opium Act 878 Epidemic Diseases Act, 1897; Dangerous Drugs Act, 1930; Indtn “ Dramatic Public Per Stage Carriage Act, Railways Acts of 185 dical 2. 3 formances Act, 1876; Cinematograph Act, 1918 ray Bombay Port Trust Act, 1879; Indian Motor Vehicl Indian Trade Digna ne 890; Indian Merchant Shipping Act, 1923. 1936; Factories Act eae 1929; Workmen’s Compensation Act, 1923; Payment of 40, i in Taran 234: Indian Mines Act, 1923, tank of India Act, 193, connie men 19344 Tea Control Act, 1938; Indian Rubber Control Acts Jes act, 9 29. a wages Ae dian Companies Act, 1913; Cotton Transport Acts 1923: serve 1933; qariflid 21] Rule of Law and Constitutional Developments 541 HI. POST-INDEPENDENCE PERIOD, ames Denbendtence on 15 August 1947 and it became a welfare state on 26 January Tosq tts Republic) having a mixed economy. The Indian nation f £4Ve a Constitution to itself, Ilundertook a vast programme Me upliftment and reconstruction. National planning was Justice social, coo Mem oF India, since it was wedded to the objectives of Liberty of thought esprecnt Political, Equality —of status and opportunity, 2 the dignity of the ‘ston, belief, faith and worship and Fraternity —assur- ne ions’ in th individual and the unity of the nation, passed number of leg- islations” 1n this direction. The various Acts depict the social security measures, fixation of minimum rates of wages, regulation of private enterprises so as to avoid disparities of income and wealth, to have planned industrialisation, decen- alisation of economic power and emis a i and curbing of anti-s ities. This progress all towards establishing a rule of lave Social activ progi and econo, resorted to. The Go. wa 1. Affirmation of rule of law by the Constitution The Constitution embodies within itself tl observed from the following provisions, The Preamble declares the ideals of justice, liberty, equality and fraternity. Part III enshrines Fundamental Rights of citizens, Right to equality (Articles 14 to 18), right to seven Sreedoms (i.e. freedom of speech, expression, association, movement, residence, property, profession and personal liberty (Articles 19 to 22), right against exploitation (Articles 23 to 24), right to freedom of religion (Articles 25 to 28), cultural and educational rights (Articles 29 to 30), right to enforce Fundamental Rights (Articles 32 and 226). These Fundamental Rights are a restriction on the law-making power of the Indian Parliament. Of course, reasonable restrictions can be imposed on these rights in times of emergency. Part IV of the Constitution regarding Directive Principles of State Policy, guar- antes protection of the same liberties to an individual considered as a part of the community and the State can pass measures strengthening them. In the words of Ramachandran these are like the antidotes against the fungus that may be created ty too much insistence on Fundamental Rights. Against breach of Fundamental Rights, High Court or Supreme Court under Article 226 or 32 could be moved. Part II of the Constitution indicates the present basis of the rule of law while Fart 1V is the pointer for the future law. ain pi, the Constitution is supreme and the three organs of Bove ent apa executive and judiciary are subordinate to it. Every organ is m oa the en eld and has to act within the framework of the Constitution. Howe * ne of judicial review has been accepted by the Constitution so that mala the concept of rule of law as could be 3 santa Disputes Act, 1947; Minimum Wages Act, 1948; Factories Act, 1948; Employees Insuran 5 ice Act, 1948; Indus velopment & Regulation) Act, 1951; Requisitioning & Act nition of Immovable Peer 1930; Essential Commodities Act, 1955; Companies quis *°tnity Benefit Act, 1961; Payment of Bonus Act, 1965; Banking Companies Land (Cit & Transfer of Undertakings) Act, 1969; Equal Remuneration Act, 1976; Urba 'n8 & Regulation) Act, 1976; Bidi Workers’ Welfare Fund Act, 1976, etc—_— (Chap, 542 Landmarks in Indian Legal and Constitutional History P. fide actions of the executive and ultra vires actions of the cele challenged. This is provided by Articles 32 and 226 icra am ea Wronged can move the High Court or the Supreme Court for ne B bi ee President of the Indian Republic has to take an oath to preserve, lane excent the Constitution. No person is to be deprived of his life and personal peas fad according to procedure established by law (Article 21). No person is ron” hae won not even the government. The maxim that “The King can do ne cae cal been made applicable to India because there is equality before Hid ie mn Protection of laws (Article 14). Doctrine of equality is also maint ane yi ic service (Article 16). The Union and the State governments can be sued in ordinary courts like individuals for breach of contracts and for committing wrongs (torts) against an individual. This, then affirms the rule of law by the Constitution of India. ; Liberty has to be zealously guarded. And it is the experience of India that in spite of so many safeguards and checks and balances, the politicians and the administrative authorities are extending their greedy tentacles into every field and interfere with the actions of the individuals, companies and other corporate and non-corporate bodies®, eroding the rule of law. Though the President and Governor under Articles 53 and 154 are to act in accordance with the Constitution, this alone by itself cannot protect and save the doctrine of rule of law. It is the peo- ple and people alone whose vigilance would save the tule of law. Moreover, since the Fundamental Rights of citizens flow from the Constitution, it is by zealously guarding those rights, by judicial interpretation, that one can aid the firm estab- lishment of the concept in India For the purpose of national planning the executive Possesses wide powers in respect of land ceiling, control of basic industries, taxation and mobilisation of labour, etc. Amidst these circumstances one could be soon disillusioned about the fact that individual liberty can be protected only by traditional doctrines laid down in high sounding words. In Indian history, there have been many instances where, despite these safeguards, some demonic statutes were passed by Parliament. These include the Preventive Detention Act, 1950%; Maintenance of Internal Security Act, 1971 (MISA)*; Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA)*, Preventive detention even during peacetime, and India is one of them. Normally, Preventive detention is resorted to against enemy aliens in emergencies such as war when the evidence in possession of the detaining authority is not sufficient to secure the immediate conviction by the normal legal process, The framers of the Indian Constitution retaine of preventive detention as a means to curb anti-national ly Parliament passed the Preventive Detention Act, 1950. 9 and the “Maintenance of Internal d the provision activity, and accordingl The Act lapsed in 196° 22. See, Ramchandran, Administrative Law 33. Ramaswamy J in (1958-1959) 1 JILL 3 34. The Act ceased to have effect on 31-10-1969, 35. The law was repeated in 1977 following the election of a Janata Party-led g ‘The 42nd Amendment Act, 1978 remo Si uy eee 36. Allowed to lapse in tog Nee MISA From the th Schedule ofthe Constitution (1984) LL, quoting from (1958) 14th Report, 671.eo —__ a Rule of Law and Constitutional Developments. ss security Act”, popularly known as the MIS. a acte 9 ch gi the administration of Prime Minister eae aaa Se agencies indefinite powers to detain individuals, search and seizure of property without warrants and wire-tapping, etc. MISA was repealed when Indira Gandhi jost the general election in 1977. Later, Conservation of Foreign Exchange and prevention of Smuggling Activities Act (COFEPOSA) and the Terrorism and pisruptive Activities (Prevention) Act (TADA) were enacted in 1975 and 1985 respectively. Though MISA and TADA have been repealed COFEPOSA con- tinues to be operative along with other similar laws such as National Security ‘Act, 1980 (NSA), the purpose of which is “to provide for preventive detention in certain cases and for matters connected therewith”. This Act has come under wide criticism and still continues to be in force. If India is to maintain the rule of law, such enactments must not be permitted to come into force. The Indian judiciary as the sentinel on the qui vive has an important role in maintaining the rule of law eis evident from the landmark decisions below (refer page 546). 2, Judicial review and activism” A. What is judicial activism and review? ‘According to the doctrine of separation of powers, there is a specific role defined for each branch of the State, i.e. the legislature, executive and the judiciary, and that no branch must encroach on the sphere of activity of another. While the legis- lature is supposed to interpret laws, the executive is supposed to implement them. The judiciary, here is understood as a referee and is to check the actions of the legislature and the executive when they infringe the Constitution. That the judi- ciary has such a power, .¢. to act as a check on the legislature and the executive, is clear—as Article 32 and 226 of the Constitution specifically confer such power on the judiciary. Further, respecting Fundamental Rights, Article 13 provides, “the State shall not make any law which takes away or abridges the rights con- ferred...and any law made in contravention of this clause shall, to the extent of such contravention, be void”. This power with the judiciary to act as a referee, not including the power to participate in the process of law making and its execution, is known as the power of judicial review. This power has been recognised as one of the basic features of our Constitution.” In India’s legal and constitutional history, judicial review has proved to be a tool of great importance in upholding Constitutional governance. sine while the power of judicial review is unquestionably part or ened any | aay scheme—and in India this aspect of the court's power ei verte ipating ae debate ensues when the judiciary is accused 0 7 is ae = making he law making process and so to say becomes a Pe a Fe oe This move of the judiciary is termed as judicial we ‘ atic Process ee of judicial activism argue that 1) it ne ted ae majority a rule of law, for laws made and policies a¢oP y i ed on wi Dr MalkiatS, Rahi’s article “Judicial Activism and Ju Bom ai v. Union of India, (1994) 3 SCC 1: AIR 1994 dicial Restraint” in 1999 AIRG) 4 SC 1918.544 Landmarks in Indian Legal and Constitutional History (Chap, he people are often overturned by an unelected of the elected representatives of th ); 2) it violates the doctrine of separa- judiciary (the counter-majoritartan difficulty tion of powers as theorised by Montesquiets * 3) it undermines the doctrine of par. #4) it undermines the democratic political process where 5) it inhibits serious consideration of the same prob. s: 6) new interpretations alter the established pretations: and 7) it sometimes inter. liamentary supremac’ judges make policy de lem by other government agencte decisions. doctrines, or constitutional inter : prets the Constitution against the clear intentions of the drafters. . The defenders of judicial activism argue that 1) the instances of judicial actiy- ism are actually instances of judicial review: 2) it is the function of the judici- ary according to the doctrine of checks and balances to counter balance transient majoritarianism, while protecting minority rights; 3) itis the function of the judi- ciary to interpret law:"' 4) the rigid doctrine of separation of powers as propounded by Montesquieu more than 300 years ago is not applicable in India, at least in its original form. We are now governed by our own constitutional scheme, which does not provide for as rigid a separation; 5) our Constitution does not provide for the doctrine of parliamentary supremacy, @ doctrine applicable in England: 6) in actuality, the judiciary, cannot help, but make rules because that is inherent in the very nature of the judicial function.** This is especially the case where there is no clear rule to resolve a given dispute and where there may be conflicting rules applicable to a dispute; and 7) each country has to develop its own systems to address its own problems and, like in India, where the other two wings of gov- ernment have consistently failed, the people, the judiciary is but compelled to act sions: B. Judicial review and activism in Indian history In India, the history of higher judiciary and specially of the Supreme Court of India, during the last 50 years, is the history of shifting judicial pendulum from one extreme of judicial conservatism to the other of judicial activism. In the begin- ning the role of judiciary was so conservative that it interpreted the Fundamental Rights and the Constitution in a static and traditional colonial manner and ignored the Directive Principles. This landed it in controversy. Pandit Jawaharlal Nehru was dismayed by such a conservative role of the Supreme Court. In spite of exhor- tations of Pandit Nehru, the court pursued its own traditional role, which necessi- tated the First Amendment to the Constitution. Up to 1960, this position continued which prompted Nehru to accuse the Supreme Court as being socially insensitive and irresponsible. Nehru, however, did not go further but with Indira Gandhi it was a different story. She had not the patience and culture of Nehru and wanted the judiciary to act as per her wishes. The judiciary refused. She advocated the 39, Somnath Chatterjee, “Empowerment Through Education—Impact_on Strengthening of go, Democracy”, IVth Dr Shyama Prasad Mookeree Speeial Lecture (2007) 41, Ruma Pal J, “Judicial Oversight or Ov f a n , en ° ciary rar a reach: The Role of the Judiciary in Contemporary 42. Ibid. 43. Ibid. 44, Soli J. Sorabjee, “Judicial Activism, Boon or Bane”, (2008) 3 SCC J-24 :Rute o AUS OF Law and Constitutional Dey eoneepe or: opments Sas vor the sup ante, Uhe logical end of this process of thinking was eaient mune Me Court judges, dec laration of Emergency SALLY Te vol, s Certain judgments" of the Supreme Court played a ea erment Wetadia, The judietary like two other org a Se of falling in tine w th Tndira ¢ Ye bur ter 1 Khanna Ps minority judement “es Saved it Phe COMEEPL oF jug and trans eh develo geverame Satie! “oomnitted pudienar V. Shivakans Shy, wns of tndht’s concept of in {DM Jabalpur tind the v Lieial ctv ea POTSSNON OF LER. Khanna t turthee nut tant phase of indicus en " ism. Thus, Pmergeney era is the first impor many landmark Mdements! ‘eteatter, the Supreme Court of India delivered of Article 21 : vonee No doubr the by ian Razal Ali in his min 1970s and e ‘ * Personal liberty, extending the frontiers SSUMINY OF this Kind Bea of judicial review was made by SHoetty judgment in Gopalan case arly L980s that Kris! iC i i in 1950. It was in the last JS. Verma and Kuldip Singh a) ae aa au Chinappa Reddy. D.A. = s Tenathened itand took it turther to great height Court has reattirmed the r 4 and a protector of the rule of law Uxereising judicial Sv tew 1 Das alSo expanded the concept of State under Article 12 of the ponsutution bringing other State sponsored and supported institutions under the purview of judicial review’ The most Important contribution of judicial review has been the emergence of public interest Mitigation which opened the doors of higher judiciary to the poor, society. Today, however, a, nee then, the Supreme guardian of the Constitution review tole of the judiciary as a the court has the neglected and the deprived sections of the Indian the court has been worried about the possible misuse of Pe Cooper v. Union of India, (1970) U SCC 248: ATR 1970 SC S64; Madhav R Rao ScIndiav. Union of India, (W971) SCC 88: Kesavanand. (1973) 4 SCC 225: AIR 1973 SC lol: Indira Nehru Gang 46. (1976) 2 SCC 521. a0 2 Bharati v. State of Kerala, thi ¥. Raj Narain, 1973 Supp SCC 1 They broadly relate to the following matters: 1) Right to equality, 2) Right to life, 3) Other Fundamental Rights, 4) Constitutional mechanics, 5) Women and the law, 6) Judiciary and the law, 7) Election law. 8) Environment and the law, 9) Reservation and the law, 10) Education and the law, 11) Labour kaw, 12) Public interest litigation and the law. 4.K. Gopalan v. State of Madra. L IR 1950 SC 27: 1950 SCR 88. The settled law on Parliament's Power to amend any part of the Constitution [in Sankari Prasad case] was reversed in the I-judge Bench decision in the Golak Nath case (AIR 1967 SC 1643) by a majority of 6 7 establishing that Fundamental Rights eannot be abrogated even by an amendment of the Constitution. This was because amendments were also interpreted as laws within the meaning of and limited by Attice 13(2), whieh provides, “The State shall not make any’ Taw which takes away or abridges the rights conferred by ..Part [IIT] and any’ law made in Ronlenrertion co clause shall...be void.” This view gave a place of permanence to the fondamenta i fate the citizen holding that Fundamental Rights were so sacrosanct and transcendenta e) ree ateaee Seton irons aperoral ‘ance that they could not be restricted even if such a move were to receive unani PP of both houses of Parliament 49. See. Biman Krishna Bose y. United India Insurance Co. Ltd, 2001) 6 SCC vie nate National Union Waterfront Workers, 2001) 7 SCC |; Pradeep Kumar Biswas V. ie 2001) 9 of Chemical Biology, 2002) 5 SCC M1; Ram Gopal Sharma v. Sukhdev Raj Rudra, Ce SCC 201; Bank of India y. O.P. Swarnakar, (2003) 2 SCC 721; Zee Telefilms Lid. . hbhai se Lr Dharamsinh 7 Gajera. 2008) 10 SCC 404; ind, Municipal Corpn, of Greater Mumbai v. K.V. Shramik Sang s (2002) 4 SCC 609; Binny Lid. 1" Saddasinagt (2005) 6 SCC 657; Reliance Eneray id ow Maharashtre nee Road Pevelopment Corpn., 2007) & SCC 1: Epuru Sudhakar V. .= s ©) CASE PILOT CC —— 546 Landmarks in Indian Legal and Constitutional History (Chap. public interest litigation as a tool to address private grievances or further other private interests, The court accordingly held that public interest litigation would not ordinarily be entertained unless the public has an interest in the cause." Further, recognising the need to protect citizens from arbitrary action from ; affirmed the authority of the law courts to test all admin- tive 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 appropriate action in the competent court.! This basic truism has been affirmed by the Supreme Court of India as and when it had the opportunity to do so. In the LR. Coelho case, discussed (on page 570), the court reaffirmed its power of judicial review when it held that, in accordance with the basic structure, laws ‘that Parliament seeks to introduce in the 9th Schedule to the Constitution are not exempt from judicial review.” The concept of judicial activism and judicial review has also been dealt in chapter 19 of this book®. State authorities, it ha: IV. LANDMARK DECISIONS 1. “Kesavananda Bharati” Case In this case, Kesavananda filed a writ on 21 March 1970, under Article 32 to the Supreme Court for enforcement of his Fundamental Rights under Articles 25, 26, 14 and 19(1)(f) and for declaring the Kerala Law Reforms (Amendment) Act, 1969 as ultra vires. The petitioner also wanted to challenge the validity of the Constitutional Amendment Act, 1971, passed after he filed his writ. The 24th Amendment Act was passed with a view to supersede the majority decision of the Supreme Court in Golaknath case®. It was once canvassed in this case that the Fundamental Rights could not be taken away or abridged even by a constitutional amendment. Kesavananda case overruled this decision. The court observed that the objectives specified in the Preamble contain the basic structure of the Constitution and that cannot be amended in exercise of the power under Article 368, [This theory of basic structure was exploded by the (Forty-second Amendment) Act, 1976; but as it stands today, the Supreme Court adheres to the doctrine of basic structure® as ie observed in Minerva Mills Ltd. v. Union of India‘, However, the Fundamental ights may be amended according to the Procedure laid down in Article 368.] 50 ae ae Managing Commitee v. C.K. Rajan, (2003) 7 SCC 546: B. Singh v Inion of India, (2004) 3 SCC 363. See also, Bomb ae aaa : Environmental Action Group, (2006)3 SCC 434,” Pee & Mi Co. Lid. (3) v. Bombay 51. Settlement Commr. v. Om Parkash, AIR. 1969 $C 3 ; 3: $2. But see, Aravali Golf Club v. Chander Hass, (2008) nee) eee 53. Refer page 467, SCC 683, 54. Kesavananda Bharati v. State of Kerala, (1973) 4 sec 55. Golak Nath v. State of Punjab, AIR 1967 Se tots yi AiR 1973 SC 1461 56. Some of the basie structures identified in this cae) 2 SCR 762. Constitution, 2) Federal structure, 3) Der ase (were and) are: Mocratic 5) 1) Supremacy of the personal liberty of individual citizens and di ign system of the government, 4) Equality and Rights, 5) Powers of judicial review and 6) Distribute oul & following from Fundamental lature, executive and judiciary. For discussion see, sup Caen TeiBh Power between the legis- 57. (1980) 3 SCC 625: AIR 1980 SC 1789. * Supra Chap, XVII, Para 4,el — Rule of | “aw and Constitutional Developments It was laid and the Direea Yt that there is no dish a Piteetive prin anet® 1 M0 disharm Constitution so , Bak The court 4 date addresse. he Judicial revie 547 ‘ony between the Fundamental Rights aS to ensure the ; 4 responsibility to Interpret the din Anica iate achievement of the abovesaid goal. The W is the basig i a only to the legislature but to the judiciar by amendment in law, mute of the Const itution and it cannot be taken man- Y too. away 2. “Indira Nehru Gandhi In this case, election of Mts Ina; from Rae Bareilly constitueney a Nehru Gandhi as a Member of Parliament contested the 197] S challenged by Raj Narain. Raj Narain had : ‘T general election to the Lok sei “from the wey Rae Bareilly against Indira a2:1 margin, and ti : ‘abha from the constituency of he Ind; Gandhi, Indi e-elected from Rae Bareilly by a ‘ : n ian National Congress Party won a Sweeping majority in the Indian Parliament, Raj Narain filed a Petition alleging that Indira Gandhi used bribery, government machinery and resources, and government employees as election agents and for organising campaign activities in the constituency. The case came before the Allahabad High Court where Jagmohan Lal Sinha J by his historic and courageous judgment on 12 June 1975 declared her election to be ¥ Raj Narain» ira was r an appeal to the Supreme Supreme Court to the extent that the Allahabad High Ci him. Pending decision on the ap} grant an “absolute stay” lyer J did not grant the si peal, Indira Gandhi moved the Supreme Court to on the order of the High Court. On 25 June 1975, Krishna tay and refused the Prime Minister the right to vote; per- mitting her to only to address both the houses of Parliament and draw pee in her capacity as Prime Minister. Today Krishna Tyer reflects, “1 relehre ae dharma of politics and insisted that equal protection of the law cou — x a difference in favour of the Prime Minister, the great en oe ee ever so high, the law is above you’”’ The very next day after Seen ot sion, in the dead of night, Indira Gandhi imposed a peanaare imprisoned leaders of the Opposition and imposed ee was passed Immediately after this, the 39th Amendment to the ane the clentien of the ‘0 validate the election of Mrs Gandhi. Article 71 cee Under the original President and fore ice Etesicent was ain ndea : pares of a President or a article, the jurisdiction to decide disputes re Amendment took away Vice-President resided in the Supreme Court. we it in a body to be set-up by this jurisdiction from the Supreme Court and vestet endment said that the elec- aw to be made by Parliament. Clause (4) of tc decision of any court to the ton shall Continue to be valid notwithstanding ‘oveme Court, the above clause contrary. Since the appeal was pending in the soy Parliament without following amounted to an ex parte decision in her favour by 35, 1275 Supp SCC 1: AIR 1975 $C-2299, 59. VR KH = », Indian Express, 27 ’s Judicial History”, fae Darkest Hour in India’s Judicial F 'shna lyer, “Emergency. s June 2099, ye ©) CASE PILOT= = ©) CASE PILOT — 548 Landmarks in Indian Legal and Constitutional History [Chap. the judicial procedure. The question of distinguishing legislative function from at importance 10 this case, If such things could be judicial assumed very gt : practised by having a thumping majority in the He ; a Even the whole Constitution could be thrown away and one fine morning, Indians Ives under the iron grip of @ g ceistence is rendered meaningless and the so-called rule of ethaw remains in name only having no value at all, During the emergency therefore this sorry state of affairs continued, but on and after 10 August 1976, the Janata Government headed by Morarji Desai did away with thigunts democvatie step of replacing the highest judicial tribunal by a non-judicial body. By 44th Amendment, the jurisdiction of the Supreme Court was restored, Thue, even a constitutional amendment may be void if it excludes a matter from judicial review. This reiterates the rule of law. suse anything, could be donc would find them a group of autocrats. In that case, the Supreme Court law or due proces 3. The “Habeas Corpus” case The case of ADM, Jabalpur v. Shivakant Shukla®, is known as the Habeas Corpus case. On 25 June 1975, as a result of internal disturbances, Emergency was pro- claimed and citizens’ seven freedoms under Article 19 stood suspended. On that night many leaders and workers were arrested under MISA (Maintenance of Internal Security Act, 1971), without having been informed of the grounds of their arrests. Writs of habeas corpus were filed in several High Courts. On 25 June 1975, the then President (Fakhruddin Ali Ahmed) issued under Article 359, an order, suspending enforcement of the Articles 14, 21 and 22. The question before the court was whether the right to personal liberty could be enforced in a court of law since it was suspended. Could it be ignored, trampled upon and curtailed? And whether there is a rule of law apart from Article 21 for which the court should stand as the guardian of liberty of citizens. An appeal to the Supreme Court was heard by a Bench of five judges: Ray CJ, Khanna, Beg, Chandrachud and Bhagwati JJ. The Supreme Court by a majority of four to one held that the judicial protection against illegal arrest and detention would be zero and petitioners did not have any standing to approach the court. In the words of the court itself, which answered the question, “whether there was any ‘rule of law’ in India apart from Article 21”, in negative.” It was only Khanna J who sounded a very powerful note of di t ent with the majority view. He observed: Even in absence of Article 21 in the Constitution, the aoe a person of his life or liberty without the authorit Ual postulate a ssi f f Postulate and basic assumption of the rule of law and not of men in all civilised nations. Wi cl cr Fife on ithout such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have State has got no power to 'y of law. This is the essen- any meaning... 60, (1976) 2 SCC 521 61. This was the majority decision, 11 as the ma on. The majority consisted of Ray C: Bhagwat.) Fora bitterly severe eiticisn of this ma (saree ‘uture Safeguards and the Habe OT ty View see, HM. § ‘as Corpus case 62. ADM, Jabalpur v. Shivakant Shuklo (1976) 9 8 fe Chandrachud and rergen) ‘521, paras 525-536, 575, 59321) R tule Of Law and Constitutional Develey. nents 549 The observations of Khanna J 4} ing manner. The concept of rune Supreme Court of India in affirm the rule of law and describe it in a strik- of rule of la ft ule of law has been affirmed and reiterated by the Subsequent ca: 4. “Maneka Gandhi v, Union of India A passport was issues a a a samme Was cay oe Petitioner on | June 1966. Under the Passport Act, , the s s 0 be i i 7 aie eneramea ween impounded by the Regional Passport Officer by which asked h i q its receipt. The petitioner i ler to surrender it within seven days from immediately wrote back to furnish her with a co, f - py of the statement of reasons thereof. The reply was that in the interest of the general public, the reasons of the order could not b. . e supplied. The government action was therefore challenged on the ground of illegality, the words “in the interest of the general public” as contained in Sectios fthe ; ; n 10(3)(c) of the Passport Act, being violative of equality clause contained in Article 14, Moreover the petitioner was granted no opportunity of being heard in defence. The court held that the proce- dure prescribed to impound the passport must be reasonable, fair and just and not arbitrary, fanciful or oppressive. It was argued that although there are no posi- tive words in the statute requiring that the party shall be heard, yet the justice of common law will supply the omission of the legislature. Thus, even in an admin- istrative proceeding, involving civil consequences the doctrine of “natural jus- tice” applies. It was held that Section 10(3)(c) of the Passport Act, 1967 was ultra vires. The right to travel was an integral facet of “personal liberty” which can be deprived of by “procedure established by laws”.®° This case is a landmark case which initiated the process of exertion of Article 21 of the Constitution wherein the Supreme Court observed that the attempt of the court should be to expand the reach and ambit of the Fundamental Rights rather than to attenuate their meaning and content by a process judicial construction. The court has thus to strengthen the rule of law. As has been said in Magna Carta," “No free man shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go or send for him, except under a lawful judgement of his peers and by the law of the land.” In Gopalan case," before the first Supreme Court (Kania CJ), Gopalan’s pre- ventive detention was challenged. The court kept a safe distance from the “due process” doctrine and held the detention valid. Fazal Ali J’s dissent in this case blossomed decades later when Maneka Gandhi moved the court against the impoundment of her passport. It is significant to note that where Gopalan lost, Maneka Gandhi won.“ This shows a change of attitude of our Supreme Court. (a new approach) 63. Som Raj V. State of Haryana, (1990) 2 SCC 653. 64, (1978) 1 SCC 248, : 65. See also, A.K. Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88; Kharak Singh v. State of U-P., AIR 1963 SC 1295: (1964) 1 SCR 332; Sanwant Singh v. Passport Officer, AIR 1967 SC 1836. 66. C.K. Thakker J, Administrative Law (1992) 18, 61, A.K. Gopalan V. State of Madras, AR 1950 $C 27: 1950 SCR 88. 68. Lawyers Collective, Vol. No. 8-9: Vol. XV, No. 1,5. A= & CASE PILOT= = © CASE PILOT 2) CASE PILOT = = © CASE PILOT 550 Landmarks in Indian Legal and Constitutional History (Chap, -P. Gupta vy, Union of India™” “the right to know™ has become an far as “right to equality” ° was held to violate this ound was held to be arti- ht of “speech and aid the Supreme In this case, the Supreme Court ruled that t ¥ emocr integral part of the citizen’s right in our democ aan i yimel emp! 'S is concerned, discrimination in payment to emp Rb ation of pensioners on unreasonable cial and arbitrary.” “Right of information 1s @ facet : contained in Article 19(1)(a) of the Constitution subject to a reasona le restriction in the interest of, of the r expression Court, but the same is aly the security of the State.~ 6. “Minerva Mills Ltd. v. Union of India 2 power to amend the Constitution (Thirty- re held that Article 368 does not ena- ork of the Constitution, Here the question was regardin, ninth Amendment) Act. The Supreme Court held ble Parliament to alter the basic structure or framew Clauses (4) and (5) of Article 368 were introduced by the 42nd Amendment Act, giving Parliament a vast and undefined power to amend the Constitution even so as to distort it out of recognition. Parliament's power to amend the Constitution is limited and under the exercise of that limited power it cannot enhance or enlarg that very power into an absolute power. Indeed. a limited amending power is one of the basic features of our Constitution... she donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one. The newly inserted clauses (4) and (5) were therefore held to be unconstitutional. The decision thus fortifies the idea of the rule of law. “Fundamental rights” occupy a unique place in the lives of civili ocieties, and have been variously described in our judgments as “transcendental”, “inal- ienable” and “primordial”. For us they constitute the ark” of the Constitution. The court remarked that the nature and quality of the 42nd Amendment is such that it virtually tears away the heart of basic fundamental freedoms. “Three Articles of our Constitution and only three stand between the heaven of freedom, into which Tagore wanted his country to awake, and the ab’ are Articles 14, 19 and 21.775 ed of unrestrained power. They 7. “Gokaraju Rangaraju y. State of A.P.” (the de facto doctrine) In Gokaraju Rangaraju case,” a question was raised whether the judgments ren dered by the judges whose appointments were quashed by the Supreme Cour! 69. 1981 Supp SCC 87, 70. Frank Anthony Public Si E s' Ass In 86) 4 SC3IL. ‘ony Public School Employees’ Assn. v. Union of India, (1986) 4 SCC 707: AIR 19S 71. DS. Nakare 983) 5: 1983 SCC (L. ‘kara v. Union of India, (1983) 1 SCC 305: 1983 SCC (LSS) 143, People's Union for Civil Libert 73. (1980) 3 SCC 625. ies v. Union of India, (2004) 2 SCC 476: AIR 2004 SC 465 also, Shankari Prasad Sindh Deo v. Union of India, AR 1951 SCS R 89, wherein it wa made subordinate gett S38 held that the amending process of the Constitution could Ht ordinate to and subject to Part II] a . Kesavananda Bhara : 75. (1980) 3 SCC 625, 76. Gol : + Gokaraju Rangarajuy, State of AP, tiv. State of Kerala, (1973) 4 SC 6, (981) 3 SCC 132: AIR 1981 SC 1473a oT Rule of Law and Constitutional Developments 551 were valid. If void they were required to be set aside (see, Articles 233, 233-A and 21 of the Constitution). The court held that they were valid. A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is detective and may later be found to be defective. Whatever the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine borne of necessity and public policy to prevent needless confusion and endless mischief, 8. “All Saints High School” case” (autonomy of minority institution) The court in this case held that Article 30(1) was completely in consonance with the secular nature of democracy and directives in the Constitution. This however, does not give a free licence for maladministration so as to defeat the avowed object of the article. Concept of rule of law must march onwards. 9, “Air India” case” (excessive delegation) In this case, the court ruled that compulsory retirement of an air hostess on her first pregnancy was violative of Article 14. The court held that a discriminatory power may not necessarily be discriminatory power. The provisions of Regulations 46 and 47 of the Air India Employees Service Regulations and Regulation 12 of the Indian Air Lines Service Regulations were struck down as invalid, as they suf- fered from the vice of excessive delegation of powers. 10. “M.C. Mehta v. Union of India (Shriram-Oleum Gas)” (absolute liability of enterprise) In this case important questions of law relating to the interpretation of Articles 21 and 32 arose. In this case there was an escape of oleum gas on 4 December 1985 from one of the units and an application for award of compensation to the victims of oleum gas was filed. Oleum Gas Leak case stands out in contrast to other cases as it rests itself on jurisprudence and innovation. It discarded the principle laid down in Rylands v. Fletcher, as inapplicable to Indian conditions. After the historic case of Rudul Sah v. State of Bihar*, this is another historic case wherein the court awarded Compensation for enforcement of the fundamental right of life under Article 21. 't Was said that the law should keep pace with changing socio-economic norms. os law of the past does not fit in the present context, the court should evolve 71. All Sai , 78. Tae Migh School v. Govt. of A.P., (1980) 2 SCC 478: AIR 1980 SC 1042 79. (1987) 1 gen@rBesh Meerza, (1981) 4 SCC 335: 1981 SCC (L&S) 599. Pia 80. (1868) LR 3, 395: 1987 si L&S) 37. See also, (1986) 2 SCC 176: 1986 SCC (Cri) 124 81. (1983) 4500 4, “1: AIR 1983 SC 1086 affirmed. © CASE PILOT CASE PILOT ©) CASE PILOT© eS CASE PILOT 552 Landmarks in Indian Legal and Constitutional History [Chap an eye on the Bhopal disaster which was iS corded judicial recognition hat—an enterprise which engaged Rumoured to have been decided with to come up for adjudication at any moment, thi to the principle of absolute liability holding [ t hn gaged itself in hazardous or inherently dangerous industry, which posed a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas, owed an absolute and non-delegable duty to the commu- nity. It propounded the principle of “polluter pays” and ruled that the amount of compensation in such cases must be correlated to the magnitude and capacity of the enterprise. The court said that the power of the court was not merely injunc- tive, that is preventing the infringement, but was also remedial in scope, and could provide relief against a breach of a fundamental right already committed, includ- ing the grant of compensation.” The judgment of the case is of locus standi rules. Moreover t ertainly an indicator of the trend of liberalisation he process has set in for making the Fundamental Rights under Article 21 applicable to private sector, with the assistance of public policy doctrine under the law of contracts® and by including the right to live- lihood in the right to life.“ In the opinion of Dr Jain, the Fundamental Rights should be enforced not only against the State but also against a citizen, or a person or a private sector so as to lay a firm foundation of human rights. We cannot permit private corporations and the multitude of citizens and person collectively and individually to flagrantly disregard and violate the spirit of the constitutional provisions and flourish as an imperium in imperio.® 11. “Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly” (service clause held void) In WB. SEB", the Supreme Court struck down a service regulation providing that a permanent employee’s services may be terminated by serving three months’ notice or on payment of a salary for the corresponding period in lieu thereof. The provision was held violative of Article 14 and was held void. It was a naked 82. Lawyers Collective Vol. XV (No. 1, 2000) 15. Some other important decisions of judicial crea- tivity and activism may be pointed out as under: 1. MC. Mehta v. Union of India, (1987) 4 SCC 463: AIR 1988 SC 1037 (Pollution of Ganga Water case). : 2. Banwasi Seva Ashram v. State of U.P., (1986) 4 SCC 753: AIR 1987 SC 374 (Court strik- ing a balance between ecology and development). TN. Godavarman Thirumulkpad v. Union of India, i A 1, (1997) 2 SCC 2 elling of timbe! within the area of the forest, held impermissible.) ees eel ee Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212: AIR 1996 ce 46 (Notification to regulate activities in the coastal area issued but was subse- F guently diluted by government, On challenge the dilatory aspect was struck down). eee : Union of India, (1997) 2 SCC 87 (Environmentally deleterious shrimp . egulation case, propounding the “polluter pays” : 83. Central Inland Water Transport Cory SNGHTGoe TORS cae ‘ansport Corpn. v. Brojo Nath Ganguly, (1986) 3 SCC 156; 1986 SCC 84. Olga Tellis v. Bombay “ . Bombay Municipal Corpn., (1985) 3 SCC 54: 85. Dr DC. Jain, Case Analysis, Article Section, (987) 14 ea ee 7 (1986) 3 SCC 156 1986 SCC (L&S) 429 Tee B. SEB v. Desh Bandhu Ghosh, (1985) 3 SCC 116, FS—_ 21) Rule of Law and Constitutional Developments, 553, ire and fi . , h tule viciously discriminating, The Supreme Court, as it seems, has thought il iC( banish such a rule altogether and very recently in Central Inland Water Pansport Corpn, case, it has held that not only is such a clause violative of Article 14 but also void under Section 23 of the Indian Contract Act. Being wholly against right and reason, it is wholly unconscionable and against public interest and public policy. The rule of law thus marches onward. - 12. “Shah Bano” c The question in this case was whether the respondent was entitled to maintenance. In application for revision filed by the respondent, the High Court enhanced the amount of &25 as maintenance fixed by the Magistrate to 7179.20 per month. In appeal, a two-judge Bench of the Supreme Court referred to the matter to the present Bench. The husband’s appeal was dismissed with costs. The court, referring to several authorities, writers” and the clear cut provisions of the section ruled that Shah Bano was entitled to take recourse to Section 125 of the Code and that the term mahr in its real (Islamic) sense is an amount payable by the husband to the wife on marriage and not on divorce, whatsoever be its variety. Moreover, its payment is not occasioned by the divorce. The court reiterated the promise given in the Constitution as incorporated in Article 44 and said that the State is charged with the duty of securing a uniform civil code for the citizens of the country. That the first wife is entitled to maintenance when a Muslim husband con- tracts a second marriage is now affirmed recently in Begum Subanu v. A.M. Abdul Gafoor® by the Supreme Court. There was a great hue and cry in the country against the Shah Bano decision and to minimise the political pressures the ruling party by a brute majority passed a Bill in 1986, to become an Act immediately, entitled Muslim Women (Protection of Rights on Divorce) Bill. The Act as crit- icised in newspapers by jurists” has a number of flaws. The Act surreptitiously and cunningly takes away the rights of maintenance of a Muslim woman granted under Section 125 CrPC and discriminates against the Muslim woman which is violative of Articles 15 and 14 of the Constitution. The strangeness of the Act is that a husband who divorces his wife goes scot free or unpunished and the parents 88. Mohd, Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC $56: 1985 SCC (Cri) 245. 89. Mulla, Mohammedan Law (18th Edn.) 301; Tyabji, Muslim Law (Edn. 4) 268: 269; Dr Paras Diwan, Muslim Law in Modern India (Edn. 1982) 130; The Koran Interpreted by Arther, 1 Arberry; Mohammed Zafrullah Khan, The Koran, 38; The meaning of the Koran, Vol. 1 (Bd. of Islamic Publications, Delhi); Dr Allamah Khadim Rahmani Nuri, The Running Commentary of the Holy Koran; Marmaduke Pickthall (Translation & explanations), The Meaning of the Glorious Koran (published by Taj Co. Ltd., Karachi). Referred to, Hamira Bibi v. Zubaida Bibi (1915-1916) 43 1A 294; Syed Sabir Hussain v. Farzand Hasan, (1937-1938) 65 1A 119; affirmed, Bai Tahira y. Ali Hussain Fidaalli Chothia, (1979) 2 SCC 316: 1979 SCC (Cri) 473; Fuzlunbi v. K. Khader Vali, (1980) 4 SCC 125: 1980 SCC (Cri) 916. Mahr: meaning of mahr is ae ena in Fuzlunbi case (supra) wherein Mahmood J (in Abdul Kadir v. Salima, (1886) 90. 1987) 2 sce Ne 19a ECan ator are quoted by Krishna lyer J _G. Noorani, *¢ - ' ae '.“Glaring Flaws in New Bill”, Indian Express, 21-3-1986, S) CASE PILOT