Democratic legality stands stultified if the Corpus Juris is not within the actual ken or reasonable reach of the citizen; for it is a travesty of the rule of law if legislation, primary or subordinate, is not available in published form or is beyond the purchase of the average affected Indian.
Access of Justice on access of laws
In Sunil Batra case[1](I), it was told to the court that the Punjab Jail Manual was not made available to the prisoners and, indeed, was priced so high that few could buy the copy of the Manual handed over to the court was seen to be officially published in 1975 and priced at Rs. 260.30, although it contains merely a collection of the bare text of certain statutes, rules and instructions running into 469 printed pages.
Thus, the court said that if what was mentioned at the Bar were true that the Manual as sold before at around Rs. 20/- but as suddenly marked up more than ten times the former price solely to deter people from coming to know the prison laws, then the rule of law was surely scandalized. It was suggested that by this means the indigent prisoner could be priced out of his precious liberties because he could not challenge incarceratory injury without precise awareness of the relevant provisions of law beyond his means.
Access of law is important for vigilant society
Access to law is fundamental to freedom in a government of laws. If the rule of law is basic to our constitutional order, there is a double imperative implied by it on the citizen to know and on the State to make known. Fundamental rights cease to be viable if laws calculated to canalise or constrict their sweep arc withheld from public access; and the freedoms under Article 19(1) cannot be restricted by hidden on ‘low visibility’ rules beyond discovery by fail- search.
The restriction must be reasonable under Article 19(2) to (6) and how can any normative prescription be reasonable if access to it is not available at a fair price or by rational search?
Likewise, under Article 21, procedural fairness is the badge of constitutionality if life and liberty are to be leashed or extinguished; and how can it be fair to bind a man by normative processes collected in books too expensive to buy? The baffling proliferation and frequent modification of subordinate legislation and their intricacies and inaccessibility are too disturbing to participative legality so vital to democracy, to leave in constitutional quiet.
Natural Justice needs awareness of law
One of the paramount requirements of valid law is that it must be within the cognizance of the community if a competent search for it were made. It is worthwhile recalling the observations of Bose J. made in a different context but has a philosophic import:
“Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognizable way so that all men know what it is; The thought that a decision reached in the secret recess of a chamber to which the public have no access and of which they can normally know nothing can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilized men. It shocks conscience.”
Legislative tyranny may be unconstitutional if the State by devious methods like pricing legal publications monopolised by government too high denies the equal protection of the laws and imposes unreasonable restrictions on exercise of fundamental rights. The cult of the occult is not the rule of law even as access to law is integral to our system.
We must have a sense of the prevalence of primitive cruelty haunting our prison cells and what is more alarming, of the increasing versatility of prison torture in countries civilised and other. Our country is no island and courts must be aware and beware.
Reference
Sunil Batra Etc. vs Delhi Administration; 1978 AIR 1675, 1979 SCR (1) 392
[1] Sunil Batra Etc. vs Delhi Administration; 1978 AIR 1675, 1979 SCR (1) 392