Constitutionally Limited Positive Law and its Operation in Indian Polity

By : D.P. Lalwani

Page No: 289-317

Abstract
The Constitution of India, framed by the Constituent Assembly of India, was brought into force on January 26, 1950. In this Constitution the rule of law, as ideally understood, is not incorporated. What is incorporated is constitutionally limited positive law. The Supreme Court has held that rule of law is a basic feature of the Constitution. It is the constitutionally limited positive law that is the basic feature of the Constitution. There are hurdles in operation of this rule of law. The process of constituting Parliament by elections and its composition are not conducive to the performance of job by the persons endowed with the institutional powers. Even the process of election of the President and of formation of the President and the Council of Ministers is not suitable to enable them to perform their duties. Due to moral deficiency the performance of rulers and ruled also is gloomy. The judiciary has tried to seek compliance with the constitutionally limited positive law and to improve it but it has limitations. Therefore, the constitutionally limited positive law is not serving its purpose. Efforts are to be made to make the constitutionally limited positive law to answer the ideal concept of rule of law.

Author :
D.P. Lalwani: Advocate, 227, Jaripatka, Nagpur.