What are some of the significant elements of the Rule of Law? Where would one find them in the Constitution of India? (Part 2)

• Separation of powers between the legislature, executive and judiciary. Making, interpreting and day-to-day administration of laws should be done by three independent arms of the State - Legislature, Executive and Judiciary. The Legislature should legislate, the Executive should execute, and the Judiciary should adjudicate. Executive cannot make “regulations” to exercise administrative functions. The Parliament should refrain from legislating to nullify judicial decisions or usurp powers of the Judiciary. An ‘activist’ Judiciary must avoid overstepping into the policy-making and administrative powers of the Executive and the lawmaking powers of the Parliament by creating court-mandated laws.

Several Articles in our Constitution establish these checks and balances by demarcating the respective functions of the three arms of the State. Part V (Articles 52 to 151) has provisions for the functioning of the Union government, establishes a parliamentary system of government at the Union level, an independent judiciary, and effective separation of powers. Part VI (Articles 152 to 237) lays down the governance structure of the States. Article 50 requires States to separate the Judiciary from the Executive in the provision of public services. Articles 121 and 211 prevent the Legislatures from discussing the conduct of any judge of the Supreme Court and High Courts relating to the discharge of their duties. Articles 122 and 212 restrict courts from inquiring into the validity of proceedings in Parliament/State Legislatures.

• Independence of judiciary. Impartial courts should enforce and interpret laws and include the power of judicial review. The highest court of the land is the ultimate authority to interpret the Constitution and conclude appeals. Its judgements form Precedents - a body of decisions considered manifestations of the law itself. It brings certainty into the interpretation of a law. All other courts and governments must follow these Precedents to bring consistency to government decision-making.

Article 13 of the Constitution enshrines the principle of judicial review. The Supreme Court and the High Courts have the power to review any constitutional amendments or law and strike it down as unconstitutional if it violates Fundamental Rights or the Basic Structure Doctrine. An independent judicial system with powers of judicial review can also be found in Articles 32, 136, 2and 26 - Constitutional Remedies available to all persons through the Writ Jurisdiction and Appeals. Article 50 mandates the State to separate the Judiciary from the Executive. Articles 124 to 147 lay down appointments, security of tenure and jurisdiction of the Supreme Court and Articles 214 to 231 for the High Courts.

• Writ Jurisdiction. Writ jurisdiction has its origins in the English common law. This is an enforcement mechanism that empowers superior courts to protect individuals from infringements of fundamental rights by the State. There are five Prerogative Writs:

i) Habeas Corpus (To have the body). This writ protects personal liberty. The court may order that any person unlawfully detained be brought before the court.
ii) Mandamus (We command). Courts have the power to order public officials to perform a function they are legally required to perform.
iii) Certiorari (To be certified). If a lower court passes an order which was not within its powers or has committed an error in law, the superior court can review or quash the order or transfer the case to itself.
iv) Prohibition (To forbid). This writ forbids lower courts, including tribunals and other quasi-judicial authorities, from acting beyond their authority, or violating the rules of natural justice or fundamental rights of a party to a case.
v) Quo Warranto (By what authority). This writ challenges a public official’s right to hold the public office to which they have been appointed. If found ineligible, the court can prohibit him/her from holding that office.

Writ Jurisdiction is a Fundamental Right under Article 32 and enforced by the Supreme Court. These Writs can be exercised by the High Courts also under Article 226.