Executive Instructions and Fundamental Rights

Executive instructions are administrative directions issued by the executive to guide governmental action. They may operate where legislation is silent, but instructions lacking the force of law cannot by themselves curtail a fundamental right. Any restriction must have valid legal authority and satisfy the constitutional limits applicable to that right.

Constitutional position

Executive power under Articles 73 and 162 extends broadly to matters on which Parliament or the State Legislature may legislate. However, it remains subordinate to the Constitution and valid laws, and cannot be used to bypass safeguards protecting fundamental rights.

• Under Article 13, State action having the force of law is void to the extent that it violates fundamental rights.
• Restrictions under Article 19 must be imposed through law, fall within the specified grounds, and be reasonable.
• A deprivation of life or personal liberty under Article 21 requires a just, fair and reasonable procedure established by law.

Instructions distinguished from law

The executive may issue instructions for internal administration or to supplement an area not occupied by legislation. However, a mere administrative direction does not become law simply because the government issued it.

• Rules, regulations, orders and notifications made under valid statutory delegation may have the force of law, but they remain subject to fundamental rights and the parent statute.
• In Ram Jawaya Kapur v. State of Punjab, 1955, the Supreme Court recognised that executive action need not always await legislation, but it cannot contravene the Constitution or existing law.
• In State of Madhya Pradesh v. Thakur Bharat Singh, 1967, the Court held that executive action unsupported by law could not prejudice constitutionally protected rights.

Remedy and judicial scrutiny

A person affected by such instructions may seek judicial review under Articles 32 or 226. Courts examine whether the measure has legal authority, conforms to the enabling law, and satisfies requirements such as non-arbitrariness, reasonableness and procedural fairness.