State of M.P. v Thakur Bharat Singh (1967)

It is the case in which the Supreme Court stated the strict legal meaning of the rule of law in a form a court can apply: no executive act that operates to a person's prejudice is lawful unless some legislative authority supports it. Seervai treats it as the surviving core of Dicey. It is also the case that fixes the limit of Ram Jawaya Kapur: the executive may act without a statute, but not against a citizen's rights.

On 24 April 1963 the State of Madhya Pradesh made an order under section 3 of the Act directing the respondent (i) that he shall not be in any place in the Raipur district; (ii) that he shall reside within the municipal limits of Jhabua town and proceed there immediately on receipt of the order; and (iii) that he shall notify his movements and report himself personally every day at 8 a.m. and 8 p.m. to the Police Station Officer, Jhabua.

He moved the High Court under Articles 226 and 227, contending that sections 3 and 6 and other provisions infringed Articles 19(1)(d) and (e) and that the order was "discriminatory, illegal and violated principles of natural justice." Shivdayal J. upheld clause (i) and struck down clauses (ii) and (iii). On Letters Patent appeal a Division Bench held clauses (a) and (c) of section 3(1) valid but clause (b) invalid, and confirmed the result because clause (iii) of the order was "inextricably woven" with clause (ii). The State appealed.

1. Was section 3(1)(b), which permits an order requiring a person to reside or remain in a specified place, an unreasonable restriction?
2. Did the Proclamation of Emergency of 20 October 1962 and Article 358 protect the order from challenge?

The State's appeal failed. Section 3(1)(b) was void, and Article 358 gave the executive no authority it did not otherwise have.

Why clause (b) is unreasonable. The Act "does not give any opportunity to the person concerned of being heard before the place where he is to reside or remain in is selected." The place selected may be one in which he has "no residential accommodation, and. no means of subsistence"; the clause does not indicate the extent of the place or area, its distance from his residence, or whether it is habitated, and nowhere provides that he "shall be provided with residence, maintenance or means of livelihood in the place selected." Counsel for the State did not challenge the view that requiring a person "to leave his hearth, home and place of business and live and remain in another place wholly unfamiliar to him may operate seriously to his prejudice". Because the clause also permits an order to remain where he already lives, but is not severable, "it must be struck down in its entirety as unreasonable." Supervision could still be achieved under clauses (c) and (d).

Timing defeats the emergency argument. The Act was brought into force before the Proclamation. If section 3(1)(b) imposed unreasonable restrictions it was void under Article 13(2) when enacted, and "was not revived when the proclamation of emergency was made by the President." Article 358 "is in terms prospective" and "does not operate to validate a legislative provision which was invalid because of the constitutional inhibition before the proclamation of emergency."

The rule of law holding. The State then argued that Article 358 protects executive action taken after the Proclamation. The Court answered: "this argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it and the terms of Art. 358 do not detract from that rule." Article 358 "does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others"; it only allows laws and executive action "in pursuance of lawful authority" which Article 19 would otherwise have invalidated.

The three fundamental principles on which the Court says our federal structure is founded: the sovereignty of the people with limited Government authority, the official agencies of the executive possessing "only such powers as have been conferred upon them by the people"; the distribution of powers between the three organs, "each organ having some check direct or indirect on the other"; and "the rule of law which includes judicial review of arbitrary executive actions."

Dicey, quoted and then departed from. The Court sets out Dicey's first limb — the rule of law "means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government" — and his observation that "wherever there is discretion there is room for arbitrariness". Then the choice: "We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails."

The sentence to memorise. "Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority."

How Ram Jawaya Kapur was distinguished. The State relied on Article 162 and on Kapur. The Court held that Articles 162 and 73 "are concerned primarily with the distribution of executive power between the Union on the one hand and the States on the other and not with the validity of its exercise", and that Mukherjea CJ's observations "must be read in the light of the facts of the case": the executive action upheld there "was, it is true, not supported by legislation, but it did not operate to the prejudice of any citizen."

Executive action prejudicial to any person requires legislative authority. Article 358 suspends Article 19 prospectively; it neither revives a law void when enacted nor confers arbitrary executive power.

• On the rule of law: this is the Indian authority for Lord Atkin's proposition. Quote the one sentence and stop.
• On separation of powers: the three fundamental principles paragraph is the Court's own statement of the doctrine, and pairs with Ram Jawaya Kapur and Asif Hameed.
• Seervai's criticism, worth a line: the Court could have said that Kapur itself negatived the State's contention, since Kapur held that authority of law is needed the moment private rights are encroached upon; instead it distinguished Kapur as involving no action prejudicial to others.