What is the impact of the declaration of the emergency and the suspension of the fundamental rights on the Rule and what. if any, is the limitation of justifiability of arbitrary executive action in the present state of the law? The expression “Rule of Law” is used in contradistinction to the rule of man. In the system in which Rule of Law prevails, it is the law that rules, even though through the instrumentality of man, and not the man independently of or above the law. In such a system all executive action must be based on legal sanction and there is no place for executive action that springs from individual whim, malice or caprice. Rule of Law, Therefore, has a built-in safeguard against arbitrary action.
Arbitrary action is a. complete antithesis of the Rule of Law-1 justifiability of arbitrary executive action is, Therefore, an essential part of the concept of Rule of Law. Rule of law, however, is much wider in its scope and ambit than the fundamental rights. The Constitution empowers, and, Therefore, recognises the declaration of emergency in accordance with these provisions. It also recognises and, Therefore, authorises, within circumscribed limits, the suspension of all or any of the fundamental rights. Any such declaration or suspension, where it is resorted to in accordance with the provisions of the Constitution, is not outside the Constitution. It is part of the constitutional process. Neither the declaration of emergency nor the suspension of the fundamental right can, however, be destructive of the Rule of Law. Any of these provisions, however, may have the effect of limiting, during the operation of the emergency, the scope and operation of the Rule of Law. Neither the declaration of emergency nor the suspension of the fundamental rights, to my mind, has the effect of total abrogation of the Rule of Law in India. While the declaration of emergency, the consequential suspension of the fundamental rights and the recent constitutional changes in their wake have, to an extent, abridged the Rule of Law but all these do not -add up to an, abrogation of it. While I am not concerned in the present proceeding’s with the extent to which the frontiers of the Rule of Law have been redefined and restricted by virtue of the constitutional and statutory provisions promulgated at the time of or after the declaration of the emergency, there is nothing in any of these provisions which completely abrogates the Rule of law or takes away all arbitrary executive action out of the area of judicial review.
Here again, I am not concerned with the exclusion of certain matters, as indeed certain statutes, from the area of judicial review because I am not concerned either with these statutes or with such action. In my view, Therefore, an arbitrary executive action, which does not have the cloak of constitutional or statutory protection, by virtue of the constitutional -and statutory provisions, still remains fully justiciable in spite of the continuance of the emergency and the suspension of the fundamental rights. In the Misa case the Supreme Court was concerned with the justifiability by the Presidential order. There is nothing in the judgment of the Supreme Court in that case which may justify a conclusion to the contrary in the present case and learned counsel for the respondents was unable to point to any.
