1. The term Law :
Includes – an Ordinance, Order, Bye law,
Regulation, Notification, custom or usage
having force of law
Wider than ordinary connotation of law
Includes even administrative order issued
by an executive officer
But not administrative directions or
instructions issued by Government for the
guidance of its officers
2. Departmental instructions are neither law
within the meaning of Art. 13 (3)(a)
Nor are ‘procedure established by law’
Within the meaning of Art. 21
And ‘Laws in force’ : means custom,
usage, etc. having the force of law,
Personal laws of Hindu, Muslims and
Christians are excluded from the definition
of law for the purpose of this Article
3. Laws in force denote
all prior and existing laws
passed by the Legislature or other
competent authority;
not repealed
The term having the force of law means
rule of conduct should be called a law it
must be established that it has a force of
law
4. Constitutional Amendment –
In the case of Shankari Prasad v. Union of
India AIR 1951 SC 458
Question was whether amendment is law ?
The Court held that the word Law in Art.
13(2) did not include law made by
Parliament under Art. 368
But if such amendment abridges the
Fundamental rights; it would be declared
void
5. In the Case of Keshavanand Bharti;
SC held that
Constitutional amendments under Art. 368
shall not be considered for challenging for
the infringement of Part III;
And upheld the validity of the Amendment
Acts
Parliament has power u/Art. 368 to amend
the constitutional provisions,
which are valid
6. Right to Equality
Articles 14 to 18 guarantee the right to
equality to every citizen of India
Art. 14 – equality before law and
equal protection of law
Art. 15 – prohibition of discrimination
on grounds of religion, race,
caste, sex or place of birth
Art. 16 - equality of opportunity in
matters of public employment
Art. 17 - abolishes untouchability
Art. 18 - abolishes titles
7. Article 14 - Equality before Law :
State shall not deny To any person
Equality before the law or
equal protection of the laws
within the territory of India
UNDHR Art. 7
Two expressions : meaning; equality of
status
absence of any privilege in favour of
individuals
And the equal subject of all classes to the
ordinary law
8. Equal protection of law
positive concept implying equality of
treatment in equal circumstances
involving idea of equal justice
Equality before Law :
- no absolute equality among human
being possible as they are physically
not equal
- the concept is more obligatory on the
State i.e.
no special privilege by reason of birth,
creed or the like in favour of any
individual
9. Rule of Law :
Dicey : the guarantee of equality before law
No man is above the law
Everyone is subject to the jurisdiction of
ordinary court
No one shall be subjected to harsh,
uncivilised or discriminatory treatment
Object of Law : to secure the law and order
to establish the rule of law
to exercise the social control
to administer the justice
10. Prof. Dicey : three meaning of Rule of Law
1. Absence of Arbitrary Power or
Supremacy of the Law
Governments are restricted from
exercising the arbitrary powers
he says : a man may be punished for a
breach of law, but he can be punished
for nothing else
2. Equality before the Law– means
subjection of all classes to the ordinary
law of the land administered by the
ordinary court
11. : no one is above the law
Every is bound to obey the same law
no privileged position is supposed for
the administration of justice
Public officials or private persons will
be governed by the uniform system of law
3. The Constitution is the result of ordinary
law of the land
source of the rights of the people is
rules defined and enforced by the
courts
12. Indian perspective :
Dicey’s Rules are not applied blindly in
Indian perspective;
First and second rule i.e. absence of
arbitrary power, India has the supremacy of
Law i.e. Constitution
Equality before law- incorporated in
Constitutional provisions in Part III
Third rule : the Constitution of India
derives its source from the will of the
people
13. Indian Perspective :
The Constitution is the Supreme law of the
Land
All laws passed by the legislature must be
consistent with the provisions of the
Constitution
The laws Pre- Constitutional or Post
Constitutional shall be verified at the
Constitutional validity in light of
provisions whether they are consistent with
Constitution
14. Indian Perspective :
Equal Protection of Laws : the concept is
similar to one embodied in 14th
Amendment to the American Constitution
- Subjection to equal laws
- applying it to all in the same
circumstances
- similar to be treated at equal footing
- equality in the sense of privileged
conferred and liabilities imposed
15. No discrimination between one person and
another
As regards the subject matter of the
legislation their position is the same
Case of :
State of West Bengal v. Anwar Ali Sarkar
AIR 1952 SC 75
In this case the issue was :
Whether certain classes of offences
Be tried under special provisions other than
prescribed in ordinary procedural code ?
16. Under Article 246 (2) Parliament by law is
empowered to set up Special Courts
and to provide special procedure for the
trial of
certain “offences” or “classes of offences”
Such law will not be violative of Art. 14;
If it lays down proper guidelines for
classifying “offences” or “classes of
offences”
Or classes of cases to be tried by Special
Courts
17. The special procedure prescribed by such a
law
should not be substantially different from
the procedure prescribed under an ordinary
law
In this case; Anwar Ali and 49 others were
trialed by the Special Courts established
under S.5(1) of the West Bengal Special
Courts Act 1950
Whether the said provision is
constitutionally valid was challenged by the
respondents
18. The Act was passed
To provide for the speedier trial of certain
offences
as stated in Preamble (of the said Act)
It prescribed a special procedure which
Courts had to follow in the trial of the
cases referred to it
SC held that S.5 (1) of the Act contravened
Article 14
And was void since it conferred arbitrary
power on the Governments to classify
offences or cases at its pleasure
19. also the Act did not lay down any policy or
guidelines
for the exercise of discretion
To classify cases or offences
The majority held that
The procedure laid down by the Act for the
trial by the Special Courts
Varied substantially from the procedure
laid down for
the trial of offences generally by the
Cr.P.C.
20. The Object stated in the Preamble of the Act
“speedier Trial of certain Offences” was a
very vague and uncertain principle to
constitute a reasonable basis for the rational
classification
Further Art. 14 itself the rule of substantive
law
Hence it was necessary that all litigants who
were similarly situated were entitled to same
procedural rights with equal protection of law
The Rule is that
the like should be treated alike
and not that unlike should be treated alike
