Ex-post-facto law
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This article is written by Arya Mittal from Hidayatullah National Law University. The article analyses the theory of rule of law prevalent in the Indian legal system long before it was propounded by A.V. Dicey.

Introduction

We all know that rule of law is the basis for a democracy such as India. The Constitution of India is the supreme law and all laws derive authority from the Constitution. The theory of rule of law was propounded by A.V. Dicey but one might be astonished to know that the theory found its way in Indian society long before any other civilised society. But what was it known as? How did it find its way into the Indian legal system? How has it evolved through all these years and reached its present form? All these questions have been answered in the further sections of the article.

Origin of rule of law

The origin of rule of law owes to Lord Edward Coke. he coined the term that was derived from the French phrase ‘la principe de legalite’ meaning principle of legality. He stated that kings should be under God and thus, he held supremacy of law. According to him, rule of law meant the absence of arbitrariness or arbitrary power by the Government. Later, A.V. Dicey propounded the theory of rule of law, a universally accepted definition of law. His theory says that “No man is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary court”. His theory is based on three pillars:

  1. Supremacy of law or absence of arbitrary power.
  2. Equality before the law.
  3. Constitution is the result of the law of the land.

Rule of law in traditional India

Dharma

The rule of law in India originated in dharma. Dharma meant law, duty, and righteousness. It was a guiding element of every Indian’s life. Dharma was considered to have a divine origin. It was considered to be imposed by God for the proper functioning of society. Just like any law, dharma created a sanction. It was believed that those who did not walk on the path of dharma will be punished by God. It was the basis and supreme law of the nation. Nevertheless, it is important to remember that dharma was not just limited to law but also included ethics and moral beliefs. In Indian society, no one was considered to be above dharma. Even a king was bound by Raj dharma (law of ruler) and Kshatriya dharma (law of warriors). 

Shruti

The four Vedas i.e. the Rigveda, the Yajurveda, the Samaveda, and the Atharvaveda are shrutis. Shrutis mean something that is heard. All these four Vedas are divided into four sections namely, the Samhitas, the Upanishads, the Brahmanas, and the Aranyakas. Upanishads are important in the context of the current study. Upanishads state that nothing is higher than dharma and dharma is the law of righteousness and is the universal principle of law. It is based on the principles of order and harmony.

Dharmasutras

Rules of behavior were compiled in a body of literature that came to be known as the dharmasutra. This literature did not have a divine origin but a human origin. Dharmasutras mainly dealt with customary law. They divided the duties and castes of people into four stages i.e. dharma, moksha, artha, and kama meaning religion, salvation, economics, and sexuality respectively. Other parts of sutra contained civil matters such as inheritance, taxes, etc. it also had some criminal matters such as adultery, theft, assault, etc. 

Smriti

Smritis are what are remembered. These were texts based on the remembrance of sages who were considered the “repositories of the sacred revelation”. Smritis were also called dharmashastras. The most famous Smritis are the Ramayana and the Mahabharata. Other smritis include Manusmriti, Yajnavalkaya smriti, Brihsapati smriti, and Narada smriti.

Manusmriti

Manusmriti is the most important and the oldest of all smritis. It is believed that it was based on manava dharmasutra though it cannot be ascertained. It deals with the duties of people from all walks of life and in each stage of life. It includes everyone ranging from the common to royal people. Even Manusmriti has stated that dharma is the supreme law. The members of the royal family, including were also subjected to dharma. The king was only considered as an instrument to realize dharma and so there was no one who can be above dharma. Therefore, rule of law can be traced in the Indian society not in a person or state, but in dharma. 

Manusmriti states that there are four sources of law namely, Shruti, Smriti, customs, and good conscience. Of these four, Shruti has a divine origin and it is considered to be the most authentic and powerful. In case of conflict between any of the sources, it is the Shruti that prevails.

Rule of law in modern India

The Constitution of India

Article 13

Article 13 of the Indian Constitution deals with laws that are in derogation with fundamental rights. Article 13(1) deals with pre-constitutional laws and Article 13(2) deals with post-constitutional laws. The former states that any such law existing at that time of enforcement of the constitution shall be void to the extent to which it contravenes the fundamental rights. The latter states that the State should not make any law which is in contravention of Part III i.e. fundamental rights, otherwise it be void to the extent of contravention. Though the Constitution does not explicitly state anything related to rule of law, it can be observed that it is well-embedded in Article 13 of the Indian Constitution.

Article 14

Article 14 deals with the right to equality. It states that everyone is equal before the law and there is equal protection of laws for everyone. We have earlier seen that equality before the law is one of the pillars of rule of law in the words of A.V. Dicey. Thus, even Article 14 enforces rule of law in India. It is undisputed that the right to equality is a fundamental right and in case of any contravention, any person can approach the Supreme Court and High Courts under Article 32 and Article 226 respectively. Further, through different judicial precedents, it has been held that there is no place for arbitrariness in law which would be violative of Article 14 of the Indian Constitution. Thus, once again, it can be ascertained that rule of law is very much present in the Indian legal system.

Article 19

Article 19 of the Indian Constitution provides six freedoms to the citizens. Since it is a part of fundamental rights, any contravention can be challenged in courts. Article 19(2) provides reasonable restrictions from exercising these freedoms. Apart from these reasonable restrictions, no person can be restricted from exercising these freedoms otherwise its contravention can be dealt with by the courts since it is a right provided by the Constitution itself, which is the supreme law of the country.

Article 21

Article 21 deals with the right to life and liberty. It states that no person can be deprived of life or personal liberty except by a procedure of law. Therefore, in normal circumstances, a person always has the right to life and liberty. A basic understanding of Article 21 makes it evident that the executive cannot exercise its power arbitrarily to hamper anyone’s life or liberty. Through the landmark judgment of Maneka Gandhi v. Union of India (1978), the Supreme Court has broadened the scope of the right to life. It has explained how the right to life includes the right to live with dignity. It is settled by different judgments that the right to life is very vast in its scope and includes the right to a dignified life, the right to live in a pollution-free environment, the right to legal aid, and a lot more. Thus, Article 21 also emphasizes that the rule of law is prevalent in the Indian legal system.

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Judicial Precedents

A.K. Kraipak and Ors. Vs. Union of India, AIR 1970 SC 150

In this case, Justice Hegde, speaking on behalf of the five-judge Constitutional bench, stated that all the organs of the State under our Constitution have to be regulated and controlled by rule of law, i.e. the Constitution is the supreme law which everyone has to follow. Moreover, if the instrumentalities of the State do not discharge their duties in a just, fair, and equitable manner, then the rule of law that resides in our Constitution would lose its spirit.

Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

The famous judgment of Kesavananda Bharati, which propounded the basic structure doctrine, has also discussed the significance of rule of law in India. It held that rule of law is a part of the basic structure of the Indian Constitution. Therefore, no one including the Parliament has the right to abrogate or destroy rule of law. Thus, it signified how the law is greater than any of the wings of Indian democracy.

Smt. Indira Nehru Gandhi v. Shri Raj Narain, AIR 1975 SC 2299

In this case, the Supreme Court of India once again held the existence of rule of law in the Indian Constitution. It held that rule of law is prevalent in Article 14 of the Indian Constitution which is part of the basic structure. Hence, it cannot be modified even by an amendment under Article 368 of the Constitution of India. It held rule of law to a basis for democracy.

ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1283

Though the case has now been overruled, it has a significant role in the context of rule of law in Indian legal history. In this case, the Supreme Court had held that a writ cannot be filed if enforcement of Article 21 is suspended during an emergency. Justice H.R. Khanna dissented the majority’s ruling that the right to enforce Article 21 cannot be curtailed even during an emergency. He held that such a proposition would be against the rule of law. He opined that without life and liberty, there would be no difference between a lawless society and one governed by laws and that rule of law is an accepted norm of all civilized societies.

Secretary, State of Karnataka and Ors. v. Umadevi, AIR 2006 SC 1806

In this case, the Supreme Court held, “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.”

K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161

In K.S. Puttaswamy, the Supreme Court overruled the ADM Jabalpur case holding that Article 21 cannot be restricted from enforcement even during an emergency. The nine-judge Constitutional bench, supporting the dissenting opinion of Justice H.R. Khanna, held that such remedy cannot be curtailed. It is an essential and undeniable feature of rule of law. Further, the Court held that a constitutional democracy can survive only when its citizens trust that the rule of law will protect their life and liberty and will provide them with a remedy to approach the court.

Analysis

The rule of law has been a part of the Indian legal system for a long time. Even before the word was coined by Lord Edward Coke and defined by A.V. Dicey, the rule of law existed in Indian society. The rule of law was prevalent through dharma. Nothing was above dharma and it was a symbol of truth and righteousness which meant that it was free from arbitrariness. It had a legal spirit. In the current Indian legal system, the Constitution is the grundnorm and all the laws obtain their validity from the Indian Constitution. Similarly, in ancient India, dharma was the grundnorm and all the legal texts and general rules in society derived authority from dharma. Any act contrary to dharma was condemned. Likewise, Shruti was considered to be supreme among all the texts and even enjoyed the status of supremacy. It can be inferred how rule of law had been prevalent in the Indian society long before the term acquainted with the whole world.

Conclusion

To conclude, the Indian legal system has led a long way from dharma to the current Constitution of India. But, throughout its evolution, the rule of law was present, though in different forms and by different names. Earlier, the rule of law was enforced by dharma and as the society developed and we approached the modern era, the rule of law molded its form and now is alive through the Constitution of India. 

References

  • Legal History: Evolution of Indian Legal System by Nilakshi Jatar and Laxmi Paranjape, 1st ed. (2012)
  • V.D. Kulshreshtha’s Landmarks in Indian Legal and Constitutional History by Sumeet Malik, 12th ed. (2019)

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