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Introduction of law is a basic incident of a democracy. The conception of democracy is a sentiment which desires the well being of all men. Laws were made so that the stronger might not have their way at their choices, but according to law.

But first let us see what the law, and its attributes are. Section 3(29) of General Clauses Act, 1897 defines the law as any Act, ordinance, regulation, rule, order, bye-law or other instrument which has the force of law. The first incidence of Law is Rule of law. The expression “Rule of law” often springs out, whilst cultivating the crops of judgments of Apex Court and High Courts.

The expression “Rule of Law” may have varied dimensions, and the most apt explanation to this expression appears to be, that, “People have an absolute / unqualified right to be Ruled / governed/ regulated by Laws in force, and not by individual whims and fancies of the ruler. This is also in fact and precisely one of the mandate of Article 14 of our Constitution, which among other things, guarantees equal protection of laws to all persons.

The attributes of law:

1. A law or rule is a common sense which is binding on you to obey. A law is a social necessity prevailing over your own interest.

2. Every law, as far as possible, must have a certain degree to its application, and must provoke intelligent proposition in the minds of the reader.

3. A law is something which must have a moral basis, so that there is a inner compelling force for every citizen to obey.

4. The law is reason, free from passion.

The law is to play its allotted role of serving the needs of the Society. It must reflect ideas and ideologies of that society. It must keep pace with the heartbeats of the society, and the needs and aspirations of the people. Laws are to be enforced simply because they are made; and unnecessary laws are traps for extorting money. And, the present write up sought to deal with such laws enacted out of passion and out of naive benevolence or objectives, wanting in reasons. The “reasons” is the litmus test of the validity of any law.

Our Constitutional Courts, High Courts and Supreme Court, undertake inquiries into the substantive fairness of the laws, at the prism of three Articles, 14, 19 and 21.

Article 14 of the Constitution enjoins upon the State not to deny to any person 'Equality before law' or 'the equal protection of laws' within the territory of India. Under Article 14 analysis, Courts would often measure whether laws are arbitrary, as if the laws are discriminatory in their application, or have carried out unreasonable or irrational classification; or if the laws have conferred unguided powers upon Govts. or administrative authorities. The “Reasonableness” of the law in its application, is the foremost requirement of any law, if it is to be declared as valid law. The laws enacted touching upon personal liberty rights of people or Article 19 rights, may be declared as invalid laws, if they were found wanting in “reasonableness” quality. The word “Reasonable” appeared in Article 19, but had been held to be implicit in Article 14 as well. P N Koushal Case – AIR 1978 SC 1484. In the landmark Maneka Gandhi case, the Apex Court frowned upon the law as being excessive and unreasonable, and said – the “Procedure established by law” for the deprivation of life and personal liberty, enshrined under Article 21, should be fair, just and reasonable, and not fanciful, oppressive and arbitrary. Under Article 14 analysis, the validity of a law may also becomes suspect if the impugned law lay down a “unreasonable” procedure which has the vulnerability and propensity of depriving a person of his property, movable (includes money) or immovable. At the same time there are no defined standards of “reasonableness of law”, and sure test could be whether the law is obnoxious / needlessly irritating, to the minds of persons of common prudence and intelligence.

Under Article 19 analysis, which deals fundamental rights of the people in respect of (a) Right to freedom of speech and expression; (b) Right to assemble peaceably and without arms; (c) Right to move freely throughout India; (d) Right to form association; (e) Right to reside and settle in any part of India; (f) Right to practice any profession or to carry on any trade, occupation and business; and whereas the law can be made to put “reasonable restrictions” in the due exercise of those aforesaid fundamental rights, the Courts tests the “reasonableness” of these legislations, and this reasonableness is measured vis a vis “the conditions” which persuaded the Legislature to enact the impugned law.

Under Article 21 analysis, which deals with the most cherished right, that is personal liberty of people, the challenge to the law could be both substantive and procedural, that is to say, it could be contended that (a) Where the impugned law (substantive law) is vague and uncertain, and the people thus would have no notice of the “requirements of law”, and people would therefore be exposed to rigours of the impugned law, and hence the impugned law would have the tendency to frustrate the personal liberty of the people; and the vagueness of the impugned law invariably also brings in the element of whimsical / biased application of law; and (b) the procedure prescribed for the deprivation of personal liberty is, (i) harsh, burdensome and needless, or is (ii) rather irrational, or (iii) unfair, or (iv) there is excessive delegation of powers / there is no legislative guidance for the due exercise of powers, to those who may exercise their such powers, which may result in the deprivation of the personal liberty, resulting in definite unpredictability and resultant bias in the said exercise of powers; and therefore the impugned law, prescribing the procedure to deprive a person of his treasured personal liberty, is excessive, unfair and unreasonable, and the impugned law has the tendency to frustrate the personal liberty of the people cheaply and casually.

Now let us look at case specifics.

Sr. No.

Nature of illegality in the impugned Law

Link

1

Where the Rule / Circular / Notification / Resolution of any Govt. / Authority, is inconsistent with / or in breach of, or if it frustrate the express mandate of the main provisions of the Statute / Act;

http://thepracticeoflawjalan.blogspot.in/2013/04/due-process-of-law-doctrine-when.html

2

Where the Law makers or the Executive govts, or the administrative authorities, in the exercise of their discretion and powers, makes any law or policy or takes any decision, by which, benefits or privileges are conferred upon a certain class of persons only, to the exclusion of masses, or, where obligations are imposed upon a certain class of persons only, and not upon the masses; and the said discrimination which is being practiced has no rational or appreciable logic; or where the procedure prescribed for enacting the law / policy is not duly followed. For example, the arbitrary allotment of lands to certain persons; grant of licenses without any defined guidelines or parameters, etc.

http://thepracticeoflawjalan.blogspot.in/2013/04/due-process-of-law-doctrine-when_335.html

3

Laws which deals with the most cherished right, that is personal liberty of people, the challenge to the law could be both substantive and procedural, that is to say, it could be contended that (a) Where the impugned law (substantive law) is vague and uncertain, and the people thus would have no notice of the “requirements of law”, and people would therefore be exposed to rigours of the impugned law, and hence the impugned law would have the tendency to frustrate the personal liberty of the people; and the vagueness of the impugned law invariably also brings in the element of whimsical / biased application of law; and (b) the procedure prescribed for the deprivation of personal liberty is, (i) harsh, burdensome and needless, or is (ii) rather irrational, or (iii) unfair, or (iv) there is excessive delegation of powers / there is no legislative guidance for the due exercise of powers, to those who may exercise their such powers, which may result in the deprivation of the personal liberty, resulting in definite unpredictability and resultant bias in the said exercise of powers; and therefore the impugned law, prescribing the procedure to deprive a person of his treasured personal liberty, is excessive, unfair and unreasonable, and the impugned law has the tendency to frustrate the personal liberty of the people cheaply and casually.

http://thepracticeoflawjalan.blogspot.in/2013/04/due-process-of-law-doctrine-when_9092.html

4

Where the law imposes unreasonable restrictions in the exercise of invaluable rights by the citizens of India, more particularly conferred under Article 19 of the Constitution, i.e. to say, (a) Right to freedom of speech and expression; (b) Right to assemble peaceably and without arms; (c) Right to move freely throughout India; (d) Right to form association; (e) Right to reside and settle in any part of India; (f) Right to practice any profession or to carry on any trade, occupation and business –

http://thepracticeoflawjalan.blogspot.in/2013/04/due-process-of-law-doctrine-when_396.html

5

Where the law, so as to give effect to the objectives set out in the Act, or to carry out the mandate of provisions of the Act, confers unfettered and unguided discretionary powers upon the Govts. / Administrative authorities or even upon judicial authorities, thereby permits these Govts / Authorities to pick and choose, in the application of law to different individuals, these are regarded as abdication of essential legislative function, or are regarded as excessive delegation of powers upon Govts. / Administrative or statutory bodies / judicial authorities, as the case may be.

http://thepracticeoflawjalan.blogspot.in/2013/04/due-process-of-law-doctrine-when_861.html

6

Where the law is manifestly vague / ambiguous in its free operation, and thereby gives unfettered and unguided discretion to the authority concerned, to pick and choose, in the application of law to different individuals;

http://thepracticeoflawjalan.blogspot.in/2013/04/due-process-of-law-doctrine-when_7772.html

7

Where the law, more particularly the procedural laws imposes extremely onerous conditions, sometimes as a condition precedent to invoke jurisdiction of the Court; or where the concerned tribunal is distantly located; or where the Judges, during the course of proceeding, invents and imposes onerous conditions upon any of the litigant, which are beyond the contemplation of procedural laws; and which has the effect of (a) potentially depriving a person to have access to courts, to seek enforcement of his rights / seek justice; or (b) causes serious prejudice to one of the parties to the case.

http://thepracticeoflawjalan.blogspot.in/2013/04/due-process-of-law-doctrine-when_5601.html

8

Where the law is enacted to overcome / overrule the judgment of the HC/SC, and without curing the unconstitutionality / reasoning / defects based on which the judgment was made;

http://thepracticeoflawjalan.blogspot.in/2013/04/due-process-of-law-doctrine-when_605.html

9

Incompetency of the Legislature to enact the impugned Law;

http://thepracticeoflawjalan.blogspot.in/2013/04/due-process-of-law-doctrine-when_6.html

10

Where the jurisdiction of the traditional Courts are transferred to Statutory Tribunals, wherein the independent functioning of the Judicial Members of the Tribunals are compromised, by providing arbitrary rules of their appointment, conditions of their service, transfers etc., and thereby the independent functioning of the Tribunal is imminently jeopardized, and which may serious frustrate the valuable rights of the parties therein; or where the legislative provision takes away the core judicial function or judicial discretion, by way of legislative pronouncement.

http://thepracticeoflawjalan.blogspot.in/2013/04/due-process-of-law-doctrine-when_6244.html

11

Where the law is manifestly (a) oppressive, (b) unwarranted, (c) irrational, (d) needlessly invades the privacy of persons (d) disproportionately beneficial to a class of persons, at the cost of the other persons; (e)  where the punishment / penalty prescribed is disproportionate to the act which is forbidden; and in all these cases the law may not be discriminatory, per se. yet may be declared invalid on the grounds of irrationality, and wanting in “reasonableness”, frustrating the mandate of Article 14.

http://thepracticeoflawjalan.blogspot.in/2013/04/due-process-of-law-doctrine-when_791.html

The first factors which would weigh the minds of the Constitutional Courts whilst deciding the Constitutional validity of any law or whilst judging the validity of any Policy –

1. Prima facie, there will always be presumption in favour of the constitutionality of the Statute / Policy of the State;

2.The Court would not start with an assumption that the law will be misused, and the mere possibility of the misuse of the law would not render the impugned law liable for invalidation;

3. No one may speak for the Parliament and Parliament is never before the Court. After Parliament has said what it intends to say, only the Court may say what the Parliament meant to say. None else. Once a statute leaves Parliament House, the Court's is the only authentic voice which may echo (interpret) the Parliament. This the Court will do with reference to the language of the statute and other permissible aids. The executive Government may place before the Court their understanding of what Parliament has said or intended to say or what they think was Parliament's object and all the facts and circumstances which in their view led to the legislation. Validity of Legislation is not to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the court may ultimately find and more especially by what may be gathered from what the legislature has itself said. [AIR 1992 SC 999] [(1983) 1 SCR 1000]

4. Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.

5. In determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined, not by the object of the Legislature, nor by the form of the action, but by its direct operation upon the individual's rights, that is to say, it is not the object of the authority, making the law, nor the form of action, it is the effect of the law and of the action upon the right which attracts the jurisdiction of the Court to grant relief.

The above principles may be considered by the Hon’ble Court whilst they adjudicate the constitutionality of impugned law attacked as discriminatory and violative of the equal protection of the laws.

Concluding remarks

1. The law of the Constitution is not only for those who govern, and, for the theorist, but also for the bulk of the people, for the common man, for whose benefit & pride, and, safeguard, the Constitution has also been written.

2. The mere solemn object of the legislation is no justification for its enactment; and the law enacted has to pass the test of Constitutional norms and standards.

3. Notwithstanding, the enacted law may have been emanated from the “Body of wisdom”, the wisdom of the Constitution should prevail.

4.  In a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizens.


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