Lecture 2

Basic Constitutional Principles

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 judgment of his peers and by the law ofthe land.
—Magna Carta

Englishmen are ruled by the law, and by the law alone; a man with us
may be punished for a breach of law, but can be punished for noth-
ing else.
—Dicey

The accumulation of all powers, legislative, executive and judicial, in

the same hands, whether of one, a few or many, and whether heredi-
tary, self-appointed or elective, may justly be pronounced the very
definition of tyranny.
— Madison

Synopsis
EE Ee ae a ne rn 20 Rule of law under Indian
5 gen Stee ene aeeiaiere 20 CONSHLULIOM. +s va ass uaa. 28
ae Re Ee er wre vate 20 Habeas Corpus case ....... 30
Supremacy /Ol lAW. oaiea.s cio 20s «[Link] powers, .200e Bite a2
Equality before law........ 21 STOTT7) See an en Same onary 32
Judge-made Constitution ... 21 IMC OTIS ace vate ction’ & cae ete a2
Application of the doctrine ...... 22 Historical background.......... 33
Merits of the doctrine .......... 22 Montesquieu’s doctrine......... 33
ne ne ee 13 BGS [Link] nese-pnrxepriraen Ce a 34
i Be 24 BSc a. ee a 34
Droit administratif . 6... 1. eo oon 24 AWAD OUDAICE, . uénce Pitan tere 36
PERU Fe ee 24 Separation of powers in practice .. 37
ORCS PS 580609 7 25 as St ed 7 ea 37
GConkrete cadet iid ca cjenne.7) 25 Bneetid we.a?-hje as caller), 38
Modern concept of rule of law ... 27 i ee oe a ae 38
20 BASIC CONSTITUTIONAL PRINCIPLES

1 RULE OF LAW

(a) General
One of the basic principles of the English Constitution is the rule of law.
This doctrine is accepted in the US and Indian Constitution. The entire
basis of administrative law is the doctrine of the rule of law. Sir Edward
Coke, Chief Justice in James I’s reign, was the originator of this concept.
In a battle against the King, he maintained successfully that the King
should be under God and the Law, and he established the supremacy of
the law against the executive. Dicey developed this theory of Coke in his
classic work The Law and the Constitution published in the year 1885.
(b) Meaning
According to Dicey, the rule of law is one of the fundamental principles
of the English legal system. In the aforesaid book, he attributed the fol-
lowing three meanings to the said doctrine:
1. Supremacy of law
2. Equality before law
3. Judge-made Constitution
(i) Supremacy of law
Explaining the first principle, Dicey stated that rule of law means the
absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary power or wide discretionary power. It excludes
the existence of arbitrariness, of prerogative or even wide discretionary
power on the part of the government. According to him, the Englishmen
were ruled by the law and law alone. A man may be punished for a
breach of law, but can be punished for nothing else.!
In his words:
Wherever there is discretion, there is room for arbitrariness and that in a
republic no less than under a monarchy discretionary authority on the part
of the government must mean insecurity for legal freedom on the part of
its subjects.”
As Wade? says, “The rule of law requires that the government should be
subject to the law, rather than the law subject to the government.”
According to this doctrine, no man can be arrested, punished or be
lawfully made to suffer in body or goods except by due process of law
and for a breach of law established in the ordinary legal manner before
the ordinary courts of the land. Dicey described this principle as “the
central and most characteristic feature” of common law.
1. The Law of the Constitution (1915) 202.
2. Ibid, 184.
3. Wade & Forsyth, Administrative Law (2009) 17-21, 286-287.
 RULE OF LAW 21

(11) Equality before law

Explaining the second principle of the rule of law, Dicey stated that there
must be equality before the law or the equal subjection of all classes to
the ordinary law of the land administered by the ordinary law courts.
According to him, in England, all persons were subject to one and the
same law, and there were no separate tribunals or special courts for of-
ficers of the government and other authorities. He proclaimed:
With us every official from the Prime Minister down to a constable or a
collector of taxes is under the same responsibility of every act done without
legal justification as any other citizen.
He criticised the French legal system of droit administratif in which there
were distinct administrative tribunals for deciding cases between the of-
ficials of the State and the citizens. According to him, exemption of the
civil servants from the jurisdiction of the ordinary courts of law and
providing them with the special tribunals was the negation of equality.
Of course, Dicey himself saw that administrative authorities were exer-
cising “judicial” functions though they were not “courts”. He, therefore,
asserted, “Such transference of authority saps the foundation of that rule
of law which has been for generations a leading feature of the English
Constitution.”
According to Dicey*, any encroachment on the jurisdiction of the
courts and any restrictions on the subject’s unimpeded access to them
are bound to jeopardise his rights. In the words of Lord Denning>, “Our
English law does not allow a public officer to shelter behind a droit
administratif.”
(111) Judge-made Constitution
Explaining the third principle, Dicey stated that in many countries
rights such as right to personal liberty, freedom from arrest, freedom
to hold public meetings, etc. are guaranteed by a written Constitution;
in England, it is not so. Those rights are the result of judicial decisions
in concrete cases which have actually arisen between the parties. Thus,
Dicey emphasised the role of the courts of law as guarantors of liberty
and suggested that the rights would be secured more adequately if they
were enforceable in the courts of law than by mere declaration of those
rights in a document, as in the latter case they can be ignored, curtailed
or trampled upon. He stated:
[T]he law of the constitution, the rules which in foreign countries natu
rally
form part of a constitutional code, are not the source but the conseque
nces,
of the rights of individuals, as defined and enforced by the courts.
4. V.G. Ramachandran, Administrative Law (1984) 6.
5. Ministry of Housing and Local Govt. vy. Sharp, (1970) 2 QB 223, 226: (1970)
2
WLR 802 (CA).
22 BASIC CONSTITUTIONAL PRINCIPLES

He said:
There is in the English Constitution an absence of those declarations or def-
initions of rights so dear to foreign constitutionalists. ... Our Constitution,
in short, is a judge-made Constitution and it bears on its face all the fea-
tures, good and bad, of a judge-made law. (emphasis supplied)
It is in this sense that “the British Constitution, though largely unwritten,
is firmly based upon the separation of powers”. The separation of judicial
from executive power is implicit in the very structure of a Constitution
on the Westminster Model.
According to him, mere incorporation or inclusion of certain rights
in the written Constitution is of little value in the absence of effective
remedies of protection and enforcement. He propounded:
Habeas Corpus Acts declare no principle and define no rights, but they are
for practical purposes worth a hundred constitutional articles guaranteeing
individual liberty.°

(c) Application of the doctrine

In England, the doctrine of the rule of law was applied in concrete cases.
If a man is wrongfully arrested by the police, he can file a suit for dam-
ages against them as if the police were private individuals. In Wilkes v.
Wood’, it was held that an action for damages for trespass was maintain-
able even if the action complained of was taken in pursuance of the order
of the Minister. In the leading case of Entick v. Carrington®, a publisher’s
house was ransacked by the King’s messengers sent by the Secretary of
State. In an action for trespass, £300 were awarded to the publisher as
damages. In the same manner, if a man’s land is compulsorily acquired
under an illegal order, he can bring an action for trespass against any
person who tries to disturb his possession or attempts to execute the said
order.

(d) Merits of the doctrine

Dicey’s thesis has its own advantages and merits. The doctrine of rule of
law proved to be an effective and powerful weapon in keeping adminis-
trative authorities within their limits. It served as a touchstone to test all
administrative actions. The broad principle of rule of law was accepted
by almost all legal systems as a constitutional safeguard.
The first principle (supremacy of law) recognises a cardinal rule of
democracy that every government must be subject to law and not law
subject to the government. It rightly opposed arbitrary and unfettered

6. The Law of the Constitution (1915) 195.

7. (1763) 19 St Tr 1153: 98 ER 489.
8. (1765) 19 St Tr 1029: (1558-1774) All ER Rep 4r.
 RULE OF LAW 23

discretion to governmental authorities, which has a tendency to interfere

with rights of citizens.
The second principle (equality before law) is equally important in a
system wedded to a democratic polity. It is based on the well-known
maxim, “However high you may be, Law is above you”, and “All are
equal before the law”.
The third principle puts emphasis on the role of judiciary in enforcing
individual rights and personal freedoms irrespective of their inclusion in
a written Constitution. Dicey feared that mere declaration of such rights
in any statute or in Constitution would be futile if they could not be
enforced. He was right when he said that a statute or even Constitution
can be amended and “fundamental rights” can be abrogated. We have
witnessed such a situation during emergency in 1975 and realised that
in absence of strong and powerful judiciary, written Constitution is
meaningless.’

(e) Pitfalls
No doubt, Dicey’s rule of law had its good points and the broad principle
had been accepted in several legal systems as a “necessary constitutional
safeguard”. But it has its own limitations and pitfalls as well. It has been
said that the rules enunciated by Dicey and accepted in English legal
system was the result of “political struggle” and not “logical deductions
from a rule of law”.!°
The first rule was criticised on the ground that Dicey equated suprem-
acy of rule of law with absence of not only arbitrary powers but even of
discretionary powers. According to him, “wherever there is discretion,
there is room for arbitrariness”. He thus failed to distinguish arbitrary
power from discretionary power. Though arbitrary power is inconsistent
with the concept of rule of law, discretionary power is not, if it is exer-
cised properly. No modern welfare State can work effectively without
exercising discretionary powers.!!
Again, it cannot be said that once law ends, necessarily tyranny be-
gins. As Davis said, “where the law ends, discretion begins”. Exercise
of discretion may mean either beneficence or tyranny, either justice or
injustice, either reasonableness or arbitrariness. 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 of Laws and of Men."

9. See, for detailed discussion Habeas Corpus case, 30, Godavari S. Parulekar v.
State of Maharashtra, AIR 1966 SC 1404: (1966) 3 SCR 314.
10. Paton, Textbook ofJurisprudence (4th Edn.) 346.
11. Wade & Forsyth, Administrative Law (2009) 24-25; K.C. Davis, Administrative
Law (1984) 18-19; Wade & Phillips, Constitutional Law (1960) 64-65; Indira Nehru
Gandhi v. Raj Narain, 1975 Supp SCC 1, para. 340: AIR 1975 SC 2299.
12, K.C, Davis, Administrative Law (1984) 19.
24 BASIC CONSTITUTIONAL PRINCIPLES

The second principle propounded by Dicey was equally fallacious.

Dicey misunderstood the real nature of droit administratif. He carried
an impression that administrative courts of France, including Conseil
d’Etat conferred on government officials special rights, privileges and
prerogatives as against private citizens. But it was not so. The French
system in many respects proved to be more effective in controlling abuse
of administrative powers than the common-law system. Conseil d’Etat
technically speaking was a part of administration, but in substance and
in reality, it was very much a court. The actions of administration were
not immune from the judicial scrutiny of the Conseil, which consisted of
“real Judges”.
Moreover, even during Dicey’s time, several administrative tribunals
had come into existence which adjudicated upon the rights of subjects
not according to common law and procedure of Crown’s Courts but ac-
cording to special laws applied to specified groups. The Crown enjoyed
immunity under the well-known maxim “The King can do no wrong”. It
was, therefore, not correct to say that there was “equality before law” in
stricto sensu even in England."

(f) Importance
One thing must be noted. In modern times, Dicey’s rule of law has
come to be identified with the concept of rights of citizens. As Wade
and Phillips’’ rightly state, it is accepted in almost all the countries out-
side the communist world with some variations. It is invoked in mod-
ern democratic countries to keep control over the oppressive, capricious
and arbitrary exercise of powers by the administrative authorities. The
International Commission of Jurists in their “Delhi Declaration” made
in the year 1959 accepted the idea of the rule of law as a modern form of
law of nature.

(g) Droit administratif

(1) Meaning
Under the French legal system, known as droit administratif, there are
two types of laws and two sets of courts independent of each other.
Whereas ordinary courts administer ordinary civil law between subjects
and subjects, administrative courts administer the law between the sub-
ject and the State. An administrative authority or official is not subject
13. Wade & Forsyth, Administrative Law (2009) 24-25; K.C. Davis, Administrative
Law (1984) 18-19; Wade & Phillips, Constitutional Law (1960); see, for detailed discus-
sion, “Droit administratif”, 24.
14. Ibid. See also, John Dickinson, Administrative Justice and Supremacy of Law
(1927) 36-37.
15. Constitutional Law (1960) 70-73.
 RULE OF LAW 25

to the jurisdiction of ordinary civil courts exercising powers under the

civil law in disputes between private individuals. All claims and disputes
in which these authorities or officials are parties fall outside the scope of
the jurisdiction of ordinary courts and they are dealt with and decided by
special tribunals. Though the system of droit administratif is very old, it
was regularly put into practice by Napoleon in the 18th century.

(11) Comments
If the French system did not adequately protect individuals against the
State, it would be a serious matter but it was not so. The fact is that this
system was able to provide expeditious and inexpensive relief and better
protection to citizens against administrative acts or omissions than the
common-law system. Once rid of the illusion that administrative courts
must inevitably be biased, you can see that they hold the keys to some
problems which are insoluble under English law.
Dicey unfortunately misunderstood the French system and formed an
opinion that administrative courts in France extended government of-
ficials special rights, privileges and prerogatives against private citizens
and it had resulted in miscarriage of justice. The real position, however,
was totally different. In France, administration was under the control
of “real Judges”, who were impartial and objective in true sense. Actual
study of droit administratif has proved that no single institution has done
so much for the protection of private citizens against the excesses of ad-
ministration as has been done by Conseil d’Etat which was considered to
be a model for other countries.'¢

(111) Concrete cases

Let us examine a few concrete cases to illustrate this proposition:
1. Ifan employee in a government factory is injured by an explosion,
according to the administrative courts in France, the risk should
fall on the State, but the English courts will not hold the State li-
able unless the injured proves negligence of some servant of the
Crown. Thus, English courts still apply the conservative and tra-
ditional approach that there should be no liability without fault;
French administrative courts adopt the pragmatic approach that
“Justice requires that the State should be responsible to the work-
man for the risk which he runs by reason of his part in the public
service”.
2. When a passer-by chased a thief and was stabbed, the Conseil
d’Etat held that he was entitled to recover damages from the State
16. Wade & Forsyth, Administrative Law (2009) 20-21; Brown & Bell, French
Administrative Law (1967) 133; Yardley, Principles of Administrative Law (1981) 44-45;
Jain & Jain, Principles of Administrative Law (2007) 38-40.
26 BASIC CONSTITUTIONAL PRINCIPLES

which would not have been done under English law. Similarly, as
the French administrative courts are recognised as guardians of
public servants, the latter also get better protection from their em-
ployers. Thus, where a Rector of Strasbourg Academy was asked
to take up some other duties and relieved from his post without
in fact new duties being assigned to him, the administrative court
held that he was removed from service and gave him redress.
According to Lord Denning", in England, ordinary courts of law
could not have protected him because as a rule, public servants
can be dismissed by the Crown at pleasure.
3. Under the Act of 1872, the French Government had a right to
have a monopoly of manufacturing matches and for that purpose
it could acquire the factories run by private persons. A provision
to pay compensation for compulsory acquisition was also made
in the Act. However, if a factory was ordered to be closed on the
ground of improvement of health, no compensation was required
to be paid. In one case, an order to close the factory was passed by
a Minister on the ground of improvement of health, but in reality,
the motive was to avoid payment of compensation to the owner of
the factory. An ordinary court could not have given any redress
to the owner in such case, but Conseil d’Etat held that the power
was abused by the Minister and awarded £20,000 to the factory
owner.
4. A,a private gas company entered into an agreement with the Town
Planning Council to supply gas at a particular rate for a period of
30 years. The agreement was made on the basis of the rates of coal
in the year 1904. But after the First World War, the rates shot up.
An application was filed by the gas company before Conseil d’Etat
for revision of rates. A common law court would have reiected
this application and would not have granted the relief prayed for,
but the Conseil accepted it and revised the rates. According to
the Conseil, it was in the interest of the public at large that the
company should continue to work rather than be wound up and
insistence on providing gas at the fixed rates would compel the
company to go into liquidation.
5. Barel case: The Minister in charge did not permit certain candi-
dates to appear at the civil service examination. It was reported
in the newspaper that the government had refused permission to
candidates who were Communists. The Minister, however, denied
it. The candidates approached Conseil d’Etat, which quashed the
order, since no reasons were recorded by the Minister for refusing
such permission. The Conseil presumed that there were no reasons

17. Cases and Materials on Administrative Law in India, Vol. I (ILI, 1966) 56.
 RULE OF LAW 27

which would justify such a refusal. Thus, the Conseil d’Etat took
the view in 1954 which was taken by English courts in 1968."
6. Fortune case: A wanted to appear at a competitive examination.
He was not permitted to appear on the ground that his confi-
dential file contained certain adverse remarks. In an action by
A, Conseil d’Etat went through the records and called upon the
Secretary to justify the order. The Secretary pleaded that it was
an Act de Government (Act of State) and that the court had no
jurisdiction to deal with the matter. He did not produce any docu-
ment. The court passed an order to produce the entire file relating
to the matter, went through it and quashed the order. In England,
governed by the rule of law one cannot conceive of such a situa-
tion, for the ordinary courts of law have no right to interfere with
any Act of State, or with ministerial discretion nor can they have
access to secret documents.
7. When the decision of Liversidge v. Anderson’? (Liversidge), was
brought to the notice of the French administrative courts in which
the principle of subjective satisfaction was upheld by an ordinary
court of law even in the case of detention of a person, the Conseil
d’Etat was unable to agree with it. According to French officials,
the decision in Liversidge*® cannot be accepted in any civilised
country and more particularly in a country which had evolved the
concept of rule of law.
8. Conseil d’Etat also applied the doctrine of legitimate expectation
(protectio de la confiance legitime) recognised by European Court
of Justice (ECJ). It held that administration must be careful not to
create a situation adversely affecting innocent persons by unex-
pected change in the rules applied, or in its behaviour, unless such
sudden change is necessitated by public interest. Administration is
entitled to change its decisions, but it must take appropriate steps
to ensure that those likely to be affected are informed beforehand.

(h) Modern concept of rule of law

As stated above, Dicey’s concept of the rule of law was not accepted
fully in England even in 1885 when he formulated it, as in that period,
administrative law and administrative authorities were very much there.
Today, Dicey’s theory of rule of law cannot be accepted in its totality.
Davis’! gives seven principal meanings of the term “rule of law”: 1) law
and order, 2) fixed rules, 3) elimination of discretion, 4) due process of
18. Padfield v. Minister of Agriculture Fisheries and Food, 1968 AC 997: (1968) 2
WLR 924 (HL).
19. 1942 AC 206: (1941) 3 All ER 338.
20. Ibid.
21. Administrative Law (1959) 24-27.
28 BASIC CONSTITUTIONAL PRINCIPLES

law or fairness, 5) natural law or observance of the principles of natural

justice, 6) preference for judges and ordinary courts of law to executive
authorities and administrative tribunals, and 7) judicial review of admin-
istrative actions.

(t) Rule of law under Indian Constitution

Dicey’s rule of law has been adopted and incorporated in the Indian
Constitution. The Preamble itself enunciates the ideals of justice, liberty
and equality. In Part III of the Constitution these concepts are enshrined
as fundamental rights and are made enforceable. The Constitution is
supreme and all the three organs of the government, viz. legislature,
executive and judiciary are subordinate to and have to act in consonance
with the Constitution. The doctrine of judicial review is embodied in
the Constitution and the subjects can approach High Courts and the
Supreme Court for the enforcement of fundamental rights guaranteed
under the Constitution. If the executive or the government abuses the
power vested in it or if the action is mala fide, the same can be quashed
by the ordinary courts of law.
Allrules, regulations, ordinances, bye-laws, notifications, customs and
usages are “laws” within the meaning of Article 13 of the Constitution
and if they are inconsistent with or contrary to any of the provisions
thereof, they can be declared ultra vires by the Supreme Court and by
High Courts. The President is required to take an oath to preserve, pro-
tect and defend the Constitution. No person shall be deprived of his life
or personal liberty except according to procedure established by law?
or of his property save by authority of law*3, Executive and legislative
powers of States and the Union have to be exercised in accordance with
the provisions of the Constitution. Government and public officials are
not above law. The maxim “The King can do no wrong” does not <pply
in India. There is equality before the law and equal protection of laws.*4
Government and public authorities are also subject to the jurisdiction of
ordinary courts of law and for similar wrongs are to be tried and pun-
ished similarly. They are not immune from ordinary legal process nor is
any provision made regarding separate administrative courts and tribu-
nals.*° In public service also the doctrine of equality is accepted.?® Suits
for breach of contracts and torts committed by public authorities can be
22. Art. 21, Constitution of India.
23. Art. 300-A, Constitution of India.
24. Art. 14, Constitution of India.
25. It may, however, be noted here that by the Constitution (42nd Amendment) Act,
1976, Parliament is empowered under Chap. XIV-A (Arts. 323-A and 323-B) to set up
various administrative tribunals for dealing with subjects ranging from disputes of gov-
ernment servants to foreign exchange and production and distribution of foodstuffs and
other essential commodities.
26. Art. 16, Constitution of India.
 RULE OF LAW 29

filed in ordinary law courts and damages can be recovered from State
Government or Union Government for the acts of their employees.?’
Thus, it appears that the doctrine of rule of law is embodied in the Indian
Constitution, and is treated as the basic structure of the Constitution.”°
In spite of such apparently enviable position of subjects, in almost
all the fields of industry, commerce, education, transport, banking, in-
surance, etc., there is interference by administrative authorities with ac-
tions of individuals, companies and other corporate and non-corporate
bodies, observes Ramaswamy J*?. From the constitutional point of view
there is large scale delegation of legislative and judicial powers to these
administrative authorities. These authorities have been extending their
tentacles into social, economic and political domains. Wide discretion-
ary powers are conferred on these administrative authorities. For the
purpose of national planning, the executive is armed with vast powers
in respect of land ceiling, control of basic industries, taxation, mobili-
sation of labour, etc. Further, it is also erroneous to believe that indi-
vidual liberty can be protected only by the traditional doctrine of rule of
law. Experience shows that not only the executive but even Parliament
elected by the people may pass some demonic statutes like the Preventive
Detention Act, or Maintenance of Internal Security Act, 1971 (MISA),
National Security Act, 1980 (NSA) and encroach upon the liberty of
subjects. Ultimately, as Prof. Harold Laski says, “Eternal vigilance is the
price of liberty” and not a particular principle or doctrine of law.
At this juncture, we may consider the position prevailing in India
vis-a-vis the third principle of Dicey’s doctrine of rule of law, viz. judi-
cial independence, judge-made Constitution or predominance of legal
spirit. Until recently this principle was being studied and examined in
the context of interpreting the provisions of the Constitution. In Chief
Settlement Commr. v. Om Parkash*, the Supreme Court observed:
In our constitutional system, the central and most characteristic feature
is the concept of the rule of law which means, in the present context, the
authority of the law courts to test all administrative action by the standard
of legality. The administrative or executive action that does not meet the
standard will be set aside if the aggrieved person brings the appropriate
action in the competent court. The rule of law rejects the conception of the
Dual State in which governmental action is placed in a privileged position
of immunity from control by law. Such a notionis foreign to our basic con-
stitutional concept.” (emphasis supplied)
27. See, Lecture ro.
28. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: AIR 1975 SC 2299;
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461; ADM,
Jabalpur vy. Shivakant Shukla, (1976) 2 SCC 521: AIR 1976 SC 1207; G.C. Kanungo v.
State of Orissa, (1995) 5 SCC 96: AIR 1995 SC 1655.
29. (1958-1959) x JILI 31-32.
30. AIR 1969 SC 33: (1968) 3 SCR 655.
31. Ibid, AIR 36 (per Ramaswami J).
30 BASIC CONSTITUTIONAL PRINCIPLES

(ti) Habeas Corpus case*

The position has, however, radically changed with the leading pro-
nouncement of the Supreme Court in A.D.M., Jabalpur v. Shivakant
Shukla®, popularly known as the Habeas Corpus case. In that case, the
Supreme Court was confronted with the question whether the third limb
of Dicey’s doctrine was an integral part of the Indian concept of rule
of law.
On 25 June 1975, Emergency was proclaimed by Mrs Indira Gandhi’s
Government on account of “internal disturbances”. By virtue of
Article 358 of the Constitution, the citizens’ seven classic freedoms un-
der Article 19 stood automatically suspended. On 27 June, the President
of India issued an order under Article 359 suspending the enforcement
of Articles 14, 21 and 22 also. On the night of 25 June and thereafter
a large number of persons (mainly political leaders of opposite parties)
were detained under MISA. Many of them were not even informed of the
grounds for their detention. Some of them filed writ petitions in different
High Courts challenging the detention orders as illegal and unconstitu-
tional and praying for the issue of a writ of habeas corpus. When those
petitions came up for hearing, the government raised a preliminary ob-
jection as to maintainability of the petitions on the ground that in asking
for release by writ of habeas corpus, the petitioners (detenus) were in
substance claiming that they had been deprived of their personal liberty
in violation of the procedure established by law; but that was a plea
available to them only under Article 21 of the Constitution and since
enforcement of Article 21 was suspended by the Presidential Order of
27 June 1975, the petitions were liable to be dismissed at the threshold.
The preliminary objection was overruled for one reason or the other
by various High Courts.*4 The governments of the States concerned (e.g.
the Madhya Pradesh Government through the Addl. District Magistrate,
Jabalpur) and the Indian Government filed appeals in the Supreme Court
against the decisions of those High Courts. The case was heard by a
five-judge Constitutional Bench consisting of Ray CJ and Khanna, Beg,
Chandrachud and Bhagwati JJ.
To simplify the point, it may be stated that the narrow issue befor- .ne
Supreme Court was whether there was any “rule of law” in India apart
from and irrespective of Article 21 of the Constitution.
The majority of the Bench (Ray CJ, Beg, Chandrachud and Bhagwati JJ)
answered the issue in the negative and observed:

32. (1976) 2 SCC 521: AIR 1976 SC 1207.

a4 Tota.
34. Allahabad, Andhra Pradesh, Bombay, Delhi, Karnataka, Madhya Pradesh,
Madras, Punjab and Rajasthan.
 RULE OF LAW 31

The Constitution is the mandate. The Constitution is the rule of law. There
cannot be any rule of law other than the constitutional rule of law. There
cannot be any pre-Constitution or post-Constitution rule of law which can
run counter to the rule of law embodied in the Constitution, nor can there
be any invocation to any rule of law to nullify the constitutional provisions
during the time of Emergency. Article 21 is our rule of law regarding life
and liberty. No other rule of law can have separate existence as a distinct
right. The rule of law is not merely a catchword or incantation. It 1s not a
law of nature consistent and invariable at all times and in all circumstances.
There cannot be a brooding and omnipotent rule of law drowning 1n tts
effervescence the emergency provisions of the Constitution.»
(emphasis supplied)
Khanna J, however, did not agree with the majority view. In a powerful
dissent, His Lordship observed:
Rule of law is the antithesis of arbitrariness. [It is accepted] in all civilised
societies. [It] has come to be regarded as the mark of a free society. It seeks
to maintain a balance between the opposite notions of individual liberty
and public order. The principle that no one shall be deprived of his life and
liberty without the authority of law was not the gift of the Constitution.
It was a necessary corollary of the concept relating to the sanctity of life
and liberty, it existed and was in force before the coming into force of the
Constitution. Even in the absence of Article 21 in the Constitution, the
State has got no power to deprive a person ofhis life or liberty without the
authority of law. This is the essential postulate and basic assumption of the
rule of law and not of men in all civilised nations. Without such sanctity of
life and liberty, the distinction between a lawless society and one governed
by laws would cease to have any meaning. Article 21 incorporates an es-
sential aspect of that principle and makes it part of the Fundamental Rights
guaranteed in Part III of the Constitution. It does not, however, follow from
the above that if Article 21 had not been drafted and inserted in Part III, in
that event, it would have been permissible for the State to deprive a person
of this life or liberty without the authority of law.** | (emphasis supplied)
Referring to Friedmann’s Law in a Changing Society, His Lordship
rightly stated that in a purely formal sense, any system of norm based on
a hierarchy of orders, even the organised mass murders of Nazi regime
qualify as law. This argument, cannot, however, disguise reality of the
matter that hundreds of innocent lives have been taken because of the
absence of rule of law. A state of negation of rule of law would not cease
to be such a state because of the fact that such a state of negation of rule

35. See, for detailed discussion, SCC paras. (per Ray CJ, 41-52, 103, 136-139;
Beg J, 165, 176-193, 242-244, 278-280; Chandrachud J, 330, 347-350, 369-375, 4193
Bhagwati J, 435-439, 458-466, 472, 485-487. See, for scathing criticism of the majority
view, H.M. Seervai, Habeas Corpus case: Emergency and Future Safeguards (1977);
V.G. Ramachandran, Law of Writs, Part 111 (2006) Chap. 1.
36. ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521, paras. 525-536, 575,
593: AIR 1976 SC 1207.
32 BASIC CONSTITUTIONAL PRINCIPLES

of law has been brought about by statute. Absence of rule of law would
nevertheless be absence of rule of law even though it is brought about by
a law to repeal all laws.3” (emphasis supplied)
Referring to English law, His Lordship remarked that if the air of
England is too pure for a slave to breathe, we can also say the same
thing with justifiable pride that this sacred land shall not suffer eclipse
of the rule of law and that of the Constitution and the laws of India will
not permit life and liberty to be at the mercy of absolute power of the
executive.
It is respectfully submitted that the minority view of Khanna J is
correct, sound and in consonance with law. It is further submitted that
the majority judgment in the Habeas Corpus case is clearly erroneous,
unjust and contrary to the doctrine of rule of law. In the opinion of
the authors, the majority failed to consider in its proper perspective the
most important fact that Article 21 (i.e. the written Constitution) did
not confer a right to life or personal liberty. The said right inheres in
the body of every living person and Article 21 or for that purpose any
written Constitution is not the sole repository of the right to life and
personal liberty and as such, that right can never be taken away by the
Executive.*® (It may, however, be stated that after 44th Amendment of
the Constitution, right to life and liberty cannot be taken away by the
Executive even during emergency).

2 SEPARATION OF POWERS

(a) General
According to Jain and Jain’’, “If the ‘rule of law’ as enunciated by Dicey
affected the growth of Administrative Law in Britain, the doctrine of
‘separation of powers’ had an intimate impact on the development of
administrative law in the United States”. Davis*® also stated, “Probably,
the principal doctrinal barrier to the development of the administrative
process has been the theory of separation of powers”.

(b) Meaning
It is generally accepted that there are three main categories of govern-
mental functions: 1) the legislative, 2) the executive, and 3) the judicial.
a7. Ibid, SCC $44,
38. See, for detailed discussion of the Habeas Corpus case, Authors’ Administrative
Law (2012) Chaps. 2-11; V.G. Ramachandran, Law of Writs, Part 111 (2006) Chap. 1.
[It may be stated here that the only surviving member of the Bench (BhagwatiJ as he then
was) recently conceded that the majority judgment was wrong and he should not have
agreed with the majority. It was an act of weakness on his part and he pleaded guilty for
such act.]
39. Principles of Administrative Law, Vol. 1 (2007) 31.
40. Administrative Law Treatise, Vol. I (1958) 68.
 SEPARATION OF POWERS 33

Likewise, there are three main organs of the government in a State: 1) the
legislature, 2) the executive, and 3) the judiciary. According to the theory
of separation of powers, these three powers and functions of the govern-
ment must, in a free democracy, always be kept separate and be exercised
by three separate organs of the government. Thus, the legislature cannot
exercise executive or judicial power; the executive cannot exercise legis-
lative or judicial power and the judiciary cannot exercise legislative or
executive power of the government.

(c) Historical background

The doctrine of separation of powers has emerged in several forms at
different periods. Its origin is traceable to Plato and Aristotle. In the 16th
and 17th centuries, French philosopher John Bodin and British politician
Locke expressed their views about the theory of separation of powers.
But it was Montesquieu who for the first time formulated this doctrine
systematically, scientifically and clearly in his book Esprit des Lois (The
Spirit of the Laws), published in the year 1748. |

(d) Montesquieu’s doctrine

Writing in 1748, Montesquieu"! said:
When the legislative and executive powers are united in the same person, or
in the same body of magistrates, there can be no liberty, because apprehen-
sions may arise, lest the same monarch or senate should enact tyrannical
laws, to execute them in a tyrannical manner. Again, there is no liberty if
the judicial power be not separated from the legislative and the executive
powers. Were it joined with the legislative, the life and liberty of the subject
would be exposed to arbitrary control, for the judge would then be the
legislator. Were it joined with the executive power, the judge might behave
with violence and oppression.
Miserable indeed would be the case, were the same man or the same
body, whether of the nobles or of the people, to exercise those three powers,
that of enacting laws, that of executing the public resolutions and that of
judging the crimes or differences of individuals.
In the 18th century, there was complete and full-fledged monarchy in
France. Louis XIV was well-known for his absolute and autocratic pow-
ers. The King and his administrators were acting arbitrarily. The subjects
had no right or liberty at all. On the other hand, Montesquieu was very
much impressed by the liberal thoughts of Locke and he also based his
doctrine on analysis of the British Constitution during the first part of
the 18th century, as he understood it. According to him, the secret of an
Englishman’s liberty was the separation and functional independence of
the three departments of the government from one another.

41. The Spirit of the Laws (trans. Nugent) 151-152.

34 BASIC CONSTITUTIONAL PRINCIPLES

According to Wade and Phillips**, separation of powers may mean

three different things:
1. that the same persons should not form part of more than one of
the three organs of Government, e.g. the Ministers should not sit
in Parliament;
2. that one organ of the Government should not control or inter-
fere with the exercise of its function by another organ, e.g. the
judiciary should be independent of the executive or that Ministers
should not be responsible to Parliament; and
3. that one organ of the Government should not exercise the func-
tions of another, e.g. the Ministers should not have legislative
powers.

(e) Effect
The doctrine of separation of powers as propounded by Montesquieu
had tremendous impact on the development of administrative law and
functioning of governments. It was appreciated by English and American
jurists and accepted by politicians. In his book Commentaries on the
Laws of England, published in 1765, Blackstone observed that if legisla-
tive, executive and judicial functions were given to one man, there was
an end of personal liberty.
Madison also proclaimed:
The accumulation of all powers, legislative, executive and judicial, in the
same hands, whether of one, a few or many and whether hereditary, self-ap-
pointed or elective may justly be pronounced the very definition of tyranny.
The Constituent Assembly of France declared in 1789 that there would
be nothing like a Constitution in the country where the doctrine of sepa-
ration of powers was not accepted.

(f) Defects
Though, theoretically, the doctrine of separation of powers was very
sound, many defects surfaced when it was sought to be applied in real
life situations. Mainly, the following defects were found in this doctrine:
1. Historically speaking, the theory was incorrect. There was no
separation of powers under the British Constitution. At no point
of time, this doctrine was adopted in England.
As Prof. Ullman says, “England was not the classic home of sepa-
ration of powers.” Donoughmore Committee also observed, “In
the British Constitution there is no such thing as the absolute sepa-
ration of the legislative, executive and judicial powers.” It is said,

42. Constitutional Law (1960) 22-34.

 SEPARATION OF POWERS 35

Montesquieu looked across foggy England from his sunny vine-

yard in Paris and completely misconstrued what he saw.
(emphasis supplied)
2. This doctrine is based on the assumption that the three functions
of the Government, viz. legislative, executive and judicial are in-
dependent of and distinguishable from one another. But in fact,
it is not so. There are no watertight compartments. It is not easy
to draw a demarcating line between one power and another with
mathematical precision.
As Paton* stated, “it is extraordinarily difficult to define pre-
cisely each particular power.” President Woodrow Wilson rightly
said:
The trouble with the theory is that government is not a machine, but
a living thing....No living thing can have its organs offset against
each other as checks, and live. On the contrary, its life is dependent
upon their quick cooperation, their ready response to the commands
of instinct or intelligence, their amicable community of purpose. Their
cooperation is indispensable, their warfare fatal.
(emphasis supplied).**
According to Friedmann and Benjafield:
the truth is that each of the three functions of the government contains
elements of the other two and that any rigid attempt to define and
separate those functions must either fail or cause serious inefficiency
in government.
3. It is impossible to take certain actions if this doctrine is accepted
in its entirety. Thus, if the legislature can only legislate, then it
cannot punish anyone, committing a breach of its privilege; nor
can it delegate any legislative function even though it does not
know the details of the subject-matter of the legislation and the
executive authority has expertise over it; nor could the courts
frame rules of procedure to be adopted by them for the disposal
of cases. Separation of powers, thus, can only be relative and not
absolute.
4. The modern State is a welfare State and it has to solve complex
socio-economic problems and in this state of affairs also, it is not
possible to stick to this doctrine. Frankfurter Jsaid, “Enforcement
of a rigid conception of separation of powers would make modern
government impossible.” Strict separation of powers is a theoreti-
cal absurdity and practical impossibility.*
5. The modern interpretation of the doctrine of separation of pow-
ers means that discretion must be drawn between “essential”
43. Textbook ofJurisprudence (4th Edn.) 330.
44. Friedmann, Law in a Changing Society (1996) 382.
45. Ibid, 382-383.
36 BASIC CONSTITUTIONAL PRINCIPLES

and “incidental” powers and one organ of the government can-

not usurp or encroach upon the essential functions belonging
to another organ, but may exercise some incidental functions
thereof.*¢
6. Fundamental object behind Montesquieu’s doctrine was liberty
and freedom of an individual; but that cannot be achieved by me-
chanical division of functions and powers. In England, theory of
separation of powers is not accepted and yet it is known for the
protection of individual liberty. For freedom and liberty, it is nec-
essary that there should be rule of law and impartial and inde-
pendent judiciary and eternal vigilance on the part of the subjects.

(g) Importance
On the whole, the doctrine of separation of powers in the strict sense is
undesirable and impracticable and, therefore, it is not fully accepted in
any country. Nevertheless, its value lies in the emphasis on those checks
and balances which are necessary to prevent an abuse of enormous pow-
ers of the executive. The object of the doctrine is to have “a government
of law rather than of official will or whim”. Montesquieu’s great point
was that if the total power of government is divided among autonomous
organs, one will act as a check upon the other and in the check liberty
can survive.*” Again, almost all the jurists accept one feature of this doc-
trine that the judiciary must be independent of and separate from the
remaining two organs of the government, viz. legislature and executive.
The most important aspect of the doctrine of separation of powers
is judicial independence from administrative discretion. “There is no
liberty, if the judicial power be not separated from the legislative and
executive.”*® The judiciary is beyond comparison the weakest of the
three departments of power. It has no influence over either the sword or
the purse; no direction either of the strength or of the wealth of society
and can take no active resolution whatever. It may truly be said to have
neither force nor will, but merely judgment. Therefore, there is no lib-
erty, if the judicial power be not separated from the legislative and the
executive. (emphasis supplied)*?

46. Basu, Administrative Law (1996) 26. Duguit regards the conception of a single
sovereign with three powers as a metaphysical conception analogous to the theological
doctrine of the Trinity, Paton, Textbook of Jurisprudence (4th Edn.) 331.
47. Jaffe & Nathanson, Administrative Law (1961) 34.
48. Friedmann, Law in a Changing Society (1996) 383.
49. Per MathewJ, Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, para. 320:
AIR 1975 SC 2299; see also, the following observations of K. Ramaswamy J.
It is the basic postulate under the Indian Constitution that the legal sovereign
power has been distributed between the legislatures to make the law, the execu-
tive to implement the law and the judiciary to interpret the law within the limits
 SEPARATION OF POWERS 37

Placing emphasis on independent judiciary, International Congress of

Jurists held in New Delhi in 1959, had resolved:
An independent Judiciary is an indispensable requisite of a free society un-
der the rule of law. Such independence implies freedom from interference
by the Executive or the Legislature with the exercise of judicial function.*”

(h) Separation of powers in practice

(1) US
The doctrine of separation of powers has been accepted and strictly
adopted by the Founding Fathers of the US Constitution and is consid-
ered to be the heart of the Constitution.*! There the legislative powers
are vested in the Congress (Art. I), the executive powers in the President
(Art. II), and the judicial powers in the Supreme Court (Art. II) and
the courts subordinate thereto. In the American Constitution, there is a
system of “checks and balances” and the powers vested in one organ of
the government cannot be exercised by any other organ. In theory, no
one organ of the government can encroach upon the power of the other.
Jaffe and Nathanson stated, “The division of our government into three
great establishments is an indisputable fact—writ large and clear in the
basic documents.”*?
Jefferson said:
The concentration of legislative, executive and judicial powers in the same
hands is precisely the definition of despotic Government. It would be no al-
leviation that these powers will be exercised by a plurality of hands and not
by a single person. One hundred and seventy-three despots would surely be
as oppressive as one.*? (emphasis supplied)
In 1787, when the American Constitution was drafted, the doctrine of
separation of powers was adopted. But with the growth of administra-
tive process, the rigours of the doctrine have been relaxed. The President
now performs legislative functions by sending messages to the Congress
set down by the Constitution. The courts are intermediary between the people
and the other organs of the State in order to keep the latter within the parameters
delineated by the Constitution. There can be no liberty if the power of judging
be not separated from the legislative and executive powers. Article 50 of the
Constitution, therefore, enjoins the State and in fact separated the judiciary from
the executive in the public services of the State. It is the constitutional duty of the
judiciary to adjudicate the disputes between the citizen and the citizen; citizen
and the State; the States inter se and the States and Centre in accordance with
the Constitution and the law, Kartar Singh v. State of Punjab, (1994) 3 SCC 569,
736: AIR 1995 SC 1726.
50. Report of International Congress ofJurists, Vol. 1V (1960) Cl. x.
51. Buckley v. R. Valeos, 46 L Ed 2d 659: 424 US 1 (1976).
52. Administrative Law (1961) 33.
53. Works: 3, 223, cited in Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1,
para. 319: AIR 1975 SC 2299.
38 BASIC CONSTITUTIONAL PRINCIPLES

and by exercise of the right of veto. The Congress has judicial power
of impeachment and the Senate exercises executive powers in consid-
ering treaties and in making certain appointments. The Congress has
delegated legislative powers to various administrative authorities and
regulatory agencies and these bodies exercise various functions. Thus,
a single agency acts “successively as legislator, investigator, prosecutor,
jury, judge and appellate tribunal” and the Supreme Court has never held
that the combination of all the powers in one agency is unconstitutional.

(ii) England
Although Montesquieu based his doctrine of separation of powers tak-
ing into account the British Constitution, as a matter of fact at no point
of time was this doctrine accepted in its strict sense in England. On the
contrary, in reality, the theory of integration of powers has been adopted
in England. Though the three powers are vested in three organs and each
has its own peculiar features, it cannot be said that there is no “sharing
out” of the powers of the government. Thus, the Lord Chancellor is the
head of the judiciary, Chairman of the House of Lords (Legislature)*4, a
member of the executive and often a member of the Cabinet. The judges
exercise executive functions under the Trust Act and in supervision of
wards of court and also legislative functions in making rules of courts
regulating their own procedure. Members of the Cabinet are also mem-
bers of the Legislature and are responsible to it and they play a very
important role in legislative activities. Powers are conferred on them to
make subordinate legislations. They also exercise judicial powers in dif-
ferent forms of administrative tribunals. The House of Commons is not
exclusively concerned with legislative activities, as it exercises judicial
powers also in cases of breach of its own privileges.

(tii) India
On a casual glance at the provisions of the Indian Constitution, one
may be inclined to say that the doctrine of separation of powers is ac-
cepted in India. Under the Indian Constitution, executive powers are
with the President,® legislative powers with Parliament,®* and judicial
powers with judiciary*’ (Supreme Court, High Courts and subordinate
courts). The President holds his office for a fixed period. His functions
and powers are enumerated in the Constitution itself. Parliament is com-
petent to make any law subject to the provisions of the Constitution and

54. Now, there is Supreme Court even in England.

55. Art. 53(1), Constitution of India.
56. Delhi Laws Act, 1912, re, AIR 1951 SC 332, 346-347: 1951 SCR 747.
57. Ibid, AIR 386, see also, Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1:
AIR 1975 SC 2299, 2435.
 SEPARATION OF POWERS 39

there is no other limitation on its legislative power. It can amend the law
prospectively or even retrospectively but it cannot declare a judgment
delivered by a competent court void or of no effect. Parliament has also
inherited all the powers, privileges and immunities of the British House
of Commons. Similarly, the judiciary is independent in its field and there
can be no interference with its judicial functions either by the executive
or by the legislature. The Supreme Court and High Courts are given
the power of judicial review and they can declare any law passed by
Parliament or Legislature ultra vires or unconstitutional.
Taking into account these factors, some jurists are of the opinion that
the doctrine of separation of powers has been accepted in the Indian
Constitution and is a part of the basic structure of the Constitution.”
Separation of functions is not confined to the doctrine of separation of
powers. It is a part of essential structure of any developed legal system.
In every democratic society, the process of administration, legislation
and adjudication are more clearly distinct than in a totalitarian society.°”
In Golak Nath v. State of Punjab®, Subba Rao CJ observed:
The Constitution brings into existence different constitutional entities,
namely, the Union, the States, and the Union Territories. It creates three
major instruments of power, namely, the Legislature, the Executive and
the Judiciary. It demarcates their jurisdiction minutely and expects them
to exercise their respective powers without overstepping their limits. They
should function within the spheres allotted to them.®!
(emphasis supplied)
But if we study the constitutional provisions carefully, we would see that
the doctrine of separation of powers has not been accepted in India in its
strict sense (stricto sensu). There is no provision in the Constitution itself
regarding the division of functions of the government and the exercise
thereof. Though, under Articles 53(1) and 154(1), the executive power of
the Union and of the States is vested in the President and the Governors
respectively, there is no corresponding provision vesting legislative and
judicial power in any particular organ. The President has wide legisla-
tive powers.™ He can issue Ordinances, make laws for a State after the
State legislature is dissolved, adopt laws or make necessary modifications
and the exercise of his legislative power is immune from judicial review.
He performs judicial functions also. He decides disputes regarding the
58. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: AIR 1975 SC 2299.
59. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461;
ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521: AIR 1976 SC 1207; Supreme
Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441: AIR 1994 SC
268; ECIL v. B. Karunakar, (1993) 4 SCC 727, 778: 1993 SCC (L&S) 1184; Union of
India v. Madras Bar Assn., (2010) 11 SCC 1.
60. AIR 1967 SC 1643: (1967) 2 SCR 762.
61. Ibid, AIR 1655.
62. Arts. 123 and 356, Constitution of India; see also, Art. 213, Constitution of India,
40 BASIC CONSTITUTIONAL PRINCIPLES

age of a judge of a High Court or the Supreme Court for the purpose of
retiring him® and cases of disqualification of members of any House of
Parliament.®
Likewise, Parliament exercises legislative functions and is competent
to make any law not inconsistent with the provisions of the Constitution,
but many legislative functions are delegated to the executive. In certain
matters, Parliament exercises judicial functions also. Thus, it can decide
the question of breach of its privilege and, if proved, can punish the
person concerned.® In case of impeachment of the President, one House
acts as a prosecutor and the other House investigates the charges and
decides whether they were proved or not. The latter is a purely judicial
function.®®
On the other hand, many powers which are strictly judicial have been
excluded from the purview of courts. Though judiciary exercises all ju-
dicial powers, at the same time, it exercises certain executive or admin-
istrative functions also. The High Court has supervisory powers over all
subordinate courts and tribunals®’ and also the power to transfer cases.
High Courts and the Supreme Court have legislative powers as well and
they frame rules regulating their own procedure for the conduct and
disposal of cases.*
Thus, the doctrine of separation of powers is not accepted fully in
the Indian Constitution, and one may agree with the observations of
MukherjeaJ in Ram Jawaya Kapur v. State of Punjab®:
The Indian Constitution has not indeed recognised the doctrine of separa-
tion of powers in its absolute rigidity but the functions of the different parts
or branches of the Government have been sufficiently differentiated and
consequently it can very well be said that our Constitution does not con-
template assumption, by one organ or part of the State, of functions that
essentially belong to another.”

63. Arts. 124(2-A), 217(3), Constitution of India; see also, Union of India v. Jyoti
Prakash Mitter, (1971) 1 SCC 396: AIR 1971 SC 1093.
64. Art. 103, Constitution of India. See also, Art. 192, Constitution of India.
65. Art. 105, Constitution of India.
66. Art. 61, Constitution of India.
67. Art. 227, Constitution of India; see, Lecture ro.
68. Arts. 145, 225, Constitution of India.
69. AIR 1955 SC 549: (1955) 2 SCR 225.
70. Ibid, AIR 556; see also, Jayantilal Amritlal Shodhan v. F.N. Rana, AIR 1964 SC
648, 655-656: (1964) 5 SCR 294; Chandra Mohan v. State of U.P., AIR 1966 SC 1987,
1992-1993: (1967) 1 SCR 77; Mallikarjuna Rao v. State of A.P., (1990) 2 SCC 707, 714:
AIR 1990 SC 1251; Kartar Singh v. State of Punjab, (1994) 3 SCC 569, 736: AIR 1995
SG 2726.