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The importance of any case law can only be understood by appreciating the facts and the role of the concepts of Rule of Law and Separation of Powers as dealt by Judges of Supreme Court in the case. The case will be dealt: Firstly, Relevant Background; Secondly, Issues raised in the Judgement; Thirdly, Judgment by the Judges; Lastly, Concepts dealt in the case and its explanation.
The case was brought about by Raj Narain who had in the 1971 election stood against the then Prime Minister Indira Gandhi in her constituency of Rae Bareili in the state of U.P. Raj Narain was very confident of victory in the election, he went so far as to take out a victory rally before the results were declared. But he did not win the election, instead he lost with a huge margin. This made him bring out an election petition against Indira Gandhi alleging that she won the election by flouting the election laws. The suit was instituted against her in the Allahabad High Court.
Raj Narain’s primary contention was that Indira Gandhi had infringed the provisions of the Representation of People‟s Act, 1951 during her campaign as she had been assisted by a Gazetted government officer who was on duty, the police, the armed forces, used government vehicles, exceeded the prescribed limit on campaign expenditure and had also distributed liquor and clothing to the voters in the constituency.
ii. Hearing at Allahabad High Court:
Hearing of the case began on 15 July 1971 before Justice B.N. Lokur, who rejected Raj Narain‟s request of the prime minister being called to depose before the court and also for certain government documents be placed before the court so as the court could take cognizance of them. Raj Narain did not admit defeat and moved the Supreme Court where a 3-judge bench heard his request and allowed the appeal. The case proceeded in the Allahabad High court until 1974 when Mrs. Gandhi filed an appeal in the Supreme Court requesting „privilege‟ for not having to produce the „blue book‟ in the court as evidence.
A bench of five Supreme Court judges allowed her appeal setting aside the order of the High Court demanding the production of the Blue Book, and directed the case to the High Court this time to be heard by a single judge, Justice J.L.Sinha.
The case was heard accordingly and the verdict was delivered on the 12th of June 1975 charging the Prime Minister Indira Gandhi to be guilty of corrupt practice for having used the government officers in her campaign and unseating her from the membership of the Lok Sabha. Justice Sinha also granted the respondent’s a stay for 20 days on the verdict.
iii. At Supreme Court:
In the meantime respondents made preparations for an appeal in the Supreme Court. Justice Krishna Iyer presiding over a vacation bench of the Supreme Court heard the petition for an unconditional stay on the judgment of the High Court, it was submitted by Mr. Palkivala that the court should take cognizance of the political repercussions of not granting a stay which would include the possibility of external and internal danger. Opposing counsel demanded that the principles of law, equity and court practice should be applied to all equally and evenly and no weight age should be placed upon the appellant‟s alleged position as Prime Minister.
After hearing both the sides on the matter the verdict was passed on the very next day, i.e. the fateful day of 25th June 1975, the unconditional stay was not granted, instead what the appellants got was that Indira Gandhi can stay as Prime Minister, but cannot participate in the sessions of the House nor shall she have the right to vote with regard to any matter in the house. The next day the emergency was declared on the ground of internal disturbance, Palkhivala opted out of the case as he thought the action of imposing the emergency was unjustified, Solicitor general Fali Nariman also laid down his office for the same reason.
iv. Emergency imposed:
While the election petition was pending in the Supreme Court the centre using the favourable climate of the emergency passed the Election Laws (Amendment) Act, 1975 through which certain amendments were made to the Representation of People Act, 1975. These amendments dealt with (a) definition of a candidate (b) corrupt practices as to the use of and, appeal to, religious and national symbols, and (c) the corrupt practice of assistance by officers in the service of the government for the furtherance of the prospects of a candidate’s election.
v. Amendment in the Constitution:
Furthermore the Parliament in exercise of its constituent power brought about the Constitution (Thirty Ninth Amendment) Act, 1975, which brought changes in Art. 71 of the constitution by substituting a new article which said that parliament shall by law decide the matters relating to the election of the President and the Vice- President, the amendment further inserted Art.324A which made special provisions relating to the election of the Prime Minister and the Speaker. Sub clause (4) of the article stated that no law made by parliament before the commencement of the constitutional Amendment Act, in so far as it relates to election petitions and matters connected therewith can apply or ever have been deemed to apply to or in relation with the election of the Prime Minister, the speaker of either house of the Parliament and such election shall not be deemed to be void under any such law notwithstanding any judgment of any court.
The Constitutional validity of Clause (4) of Article 329-A falls for consideration. Clause (4) of Article 329-A is challenged on two grounds:
(a) First, it destroys or damages the basic features or basic structure of the Constitution. Reliance is placed in support of the contention on the majority view of 7 learned Judges in Kesavananda Bharati Sripadanagalavaru v. State of Kerala . The Constitution Amendment affects the basic structure of institutional pattern adopted by the Constitution. The basic feature of separation of powers with the role of independence of judiciary is changed by denying jurisdiction of this Court to test the validity of the election. judicial review is an essential feature of basic structure because of the doctrine of separation of powers for these reasons : Judicial review is basic structure in the matter of election to ensure free, fair and pure election. If under Clause (4) of the Thirty-ninth Amendment the power of judicial review is taken away it amounts to destruction of basic structure.
(b) The second ground is that the Constitution of the House which passed the Constitution (Thirty-ninth Amendment) Act is illegal. It is said that a number of members of Parliament of the two Houses were detained by executive order after 26 June, 1975. These persons were not supplied any grounds of detention or given any opportunity of making a representation against their detention. Unless the President convenes a session of the full Parliament by giving to all members thereof an opportunity to attend the session and exercise their right of speech and vote, the convening of the session will suffer from illegality and un-constitutionality and cannot be regarded as a session of the two Houses of Parliament. The mere fact that a person may be deprived of his right to move any court to secure his release from such illegal detention by means of a presidential order under Article 359 does not render the detention itself either legal or Constitutional. The important leaders of the House have been prevented from participation. Holding of the session and transacting business are unconstitutional.
The amendment destroyed the election and the law relating to it; it took away a remedy from the defeated party in the election and was as many call it a legislative judgment to the Indira Election case and a direction to the Supreme Court to allow the appeal. Raj Narain filed a cross appeal and challenged both the amendment to Representation of people Act and also the Thirty Ninth Constitutional Amendment Act, 1975. The appeal was argued by both sides on the basis that the case was governed by the majority in Keshavananda case i.e. the amendment power of the government did not extend to the altering the Basic Structure of the constitution. The grounds on which the challenge was based are as follows:
It is well known that Art. 329-A was added to the Constitution by 29th Amendment which made the election of a person holding office of the Prime Minister to the Lok Sabha beyond the authority of a law court including the Supreme Court and thereby aimed at providing. protection to Mrs. Indira Gandhi, the then Prime Minister whose election had been set-aside by Allahabad High Court on a finding of prohibited corrupt practice committed by her.
The amendment was passed when several members of the Parliament were absent due to their arrest under preventive detention. The amendment destroys Judicial Review, and also Separation of Powers both of which form a part of the basic structure of the Constitution. Art.368 does not give the parliament the power to decide a private dispute through an amendment. Clause (4) of Art.324A is said to be in the exclusive domain of the Judiciary and which is not included in the constituent power under Art.368. The amendment destroys the notion of equality; there is no rational differentiation between persons holding high office and persons elected to the Parliament. The ground of the constitution amendment being passed without the presence of a lot of opposition members was not accepted by any of the judges.
The court through a majority i.e. Justice Khanna, Mathew, and Chandrachud held that Art. 324(4) struck the Basic Structure and hence is liable to be struck down; the reasons on which the judges reached this conclusion are varied. The court through majority also held the amendment in election laws to be valid, and allowed the appeal of Mrs. Gandhi. Justice Chandrachud in his judgment emphasised on the theory of Separation of Powers being a part of the Basic Structure of the Constitution, he held that the amending power under Art.368 does not include legislative executive and judicial powers. Justice Mathew held that without a judicial remedy elections would become a mockery. It would be difficult to decide as to who has been legitimately elected and who has usurped power. For the latter could then trample upon the privileges and liberties of people. Justice Khanna held that free and fair elections are an integral part of the Basic Structure of the Constitution and Art.324 (A) goes against the Basic Structure, furthermore as Art. 324(A) is not severable from the main Article the whole article is to be struck down. Justice Beg and Chief Justice Ray did not categorically hold Art. 324(A) to be violative of the basic structure, but they disagreed with the amendment in spirit. They held that free and fair elections did not form a part of the Basic Structure and that constituent power given to the Parliament by Art.368 included legislative, executive and judicial power. The case has the distinction of being the first case which is said to have been decided using the newly propounded doctrine of Basic Structure. The case is also credited to have broken new ground and had its effect on Keshavananda itself.
B. Relevance in Administrative Law:
i. Separation of Powers:
The doctrine of separation of powers is carried into effect in countries like America, Australia. In our Constitution there is separation of powers in a broad sense. But the larger question is whether there is any doctrine of separation of powers when it comes to exercise of constituent power. The doctrine of separation of powers as recognised in America is not applicable to our country. (See In re Delhi Laws Act; Jayantilal Shodhan v. F. N. Rana; Chandra Mohan v. State of U. P.; and Udai Ram Sharma v. Union of India.)
The rigid separation of powers as under the American Constitution or under the Australian Constitution does not apply to our country. Many powers which are strictly judicial have been excluded from the purview of the courts. The whole subject of election has been left to courts traditionally under the Common Law and election disputes and matters are governed by the Legislature. The question of the determination of election disputes has particularly been regarded as a special privilege of Parliament in England. It is political question in the United States. Under our Constitution Parliament has inherited all the privileges, powers and immunities of the British House of Commons. In the case of election disputes Parliament has defined the procedure by law. It can at any time change that procedure and take over itself the whole question. There is, therefore, no question of any separation of powers being involved in matters concerning elections and election petitions.
When the constituent power exercises powers the constituent power comprises legislative, executive and judicial powers. All powers flow from the constituent power through the Constitution to the various departments or heads. In the hands of the constituent authority there is no demarcation of powers. It is only when the constituent authority defines the authorities or demarcates the areas that separation of power is discussed. The constituent power is independent of the doctrine of separation of powers. The constituent power is sovereign. It is the power which creates the organs and distributes the powers.
Whereas in the United States of America and in Australia, the judicial power is vested exclusively in courts, there is no such exclusive resting of judicial power in the Supreme Court of India and the courts subordinate to it. And if the amending body exercised judicial power in adjudging the validity of the election, it cannot be said that by that act, it has damaged a basic structure of the Constitution embodied in the doctrine of separation of powers. Even so, the question will remain whether it could exercise judicial power without passing a law enabling it to do so. As I said, the exercise of judicial power can result only in a judgment or sentence. The constituent power, no doubt, is all-embracing, comprising within its ambit the judicial, executive and legislative powers. But if the constituent power is a power to frame or amend a Constitution, it can be exercised only by making laws of a particular kind.
The possession of power is distinct from its exercise. The possession of legislative power by the amending body would not entitle it to pass an ordinary law, unless the Constitution is first amended by passing a constitutional law authorizing it to do so. In the same way, the possession of judicial power by the amending body would not warrant the exercise of the it to do so. Until that is done, its potential judicial power would not become actual. Nobody can deny that by passing a law within its competence, Parliament can vest judicial power in any authority for deciding a dispute or vest a part of that power in itself for resolving a controversy, as there is no exclusive vesting of judicial power in courts by the Constitution. The doctrine of separation of powers which is directed against the concentration of the whole or substantial part of the judicial power in the Legislature or the Executive would not be a bar to the vesting of such a power in itself. But, until a law is passed enabling it to do so.
ii. Rule of Law:
In the opinion of some of the judges constituting the majority in Bharati’s case MANU/SC/0445/1973 Rule of Law is a basic structure of the Constitution apart from democracy.
The rule of law postulates the pervasiveness of the spirit of law throughout the whole range of Government in the sense of excluding arbitrary official action in any sphere. ‘Rule of law’ is an expression to give reality to something which is not readily expressible. That is why Sir Ivor Jennings said that it is an unruly horse. Rule of law is based upon the liberty of the individual and has as its object, the harmonizing of the opposing notions of individual liberty and public order. The notion of justice maintains the balance between the two; and justice has a variable content. Dicey’s formulation of the rule of law, namely, “the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power, excluding the existence of arbitrariness, of prerogative, even of wide discretionary authority on the part of the Government” has been discarded in the later editions of his book. That is because it was realized that it is not necessary that where law ends, tyranny should begin. As Culp Davis said, where the law ends, discretion begins and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness. There has been no Government or legal system in world history which did not involve both rules and discretion. It is impossible to find a Government of laws alone and not of men in the sense of eliminating all discretionary powers. All Governments are Governments of laws and of men. Jerome Frank has said This much we can surely say : For Aristotle, from whom Harrington derived the notion of a Government of laws and not of men, that notion was not expressive of hostility to what today we call administrative discretion. Nor did it have such a meaning for Harrington.” See “If Men were Angels” (1942), p. 203.
Another definition of rule of law has been given by Friedrich A. Hayek in his books : “Road to Serfdom” and “Constitution of Liberty”. It is much the same as that pro pounded by the Franks Committee in England, Report (1957) p.
6:The rule of law stands for the view that decisions should be made by the application of known principles or laws. In general such decisions will be predictable, and the citizen will know where he is. On the other hand there is what is arbitrary. A decision may be made without principle, without any rules. It is therefore unpredictable, the antithesis of a decision taken in accordance with the rule of law.
In Jaisinghani v. Union of India MANU/SC/0361/1967 that the rule of law from one point of view means that decisions should be made by the application of known principles and rules, and, in general, such decisions should be predictable and the citizen should know where he is.
This exposition of the rule of law is only the aspiration for an ideal and it is not based on any down-to-earth analysis of practical problems with which a modern government is confronted. In the world of action, this ideal cannot be worked out and that is the reason why this exposition has been rejected by all practical men.
If it is contrary to the rule of law that discretionary authority should be given to government departments or public officers, then there is no rule of law in any modern state. A judge who passes a sentence has no other guidance except a statute which says that the person may be sentenced to imprisonment for a term which may extend to, say, a period of ten years. He must exercise considerable discretion. The High Courts and the Supreme Court overrule their precedents. What previously announced rules guide them in laying down the new precedents? A court of law decides a case of first impression; no statute governs, no precedent is applicable. It is precisely because a judge cannot find a previously announced rule that he becomes a legislator to a limited extent All these would show that it is impossible to enunciate the rule of law which has as its basis that no decision can be made unless there is a certain rule to govern the. decision. See “Discretionary Justice” by K.C. Davis.
A. Smt. Indira Nehru Gandhi Vs. Shri Raj Narain and Anr. AND Shri Raj Narain Vs. Smt. Indira Nehru Gandhi: AIR 1975 SC 2299: 1975 (Supp) SCC 1:  2 SCR 347: MANU/SC/0304/1975.
B. Indira Nehru Gandhi Vs Shri Raj Narain and Another and Vice Versa, 1976-(003)-SCC-0321-SC; 1977-AIR-0069-SC.
C. Tirthankar Das & Navajyoti Samanta, “The Supreme Court’s Performance During The Period Of Emergency”, http://works.bepress.com/cgi/viewcontent.cgi?article=1001 &context=tirthankar_das (as accessed on 12/08/09).
D. Justice. Gulab Gupta, Rule of Law- Myth or Reality?, Vol. xvi, Central India Law Journal, 2003, at 137-152.
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