By Arpan Acharya, 360info

India's new code throws into doubt whether its citizens are truly protected from the arbitrary exercise of power by public officials.

Imagine a knock on the door at midnight, not because you are charged with sedition or tax evasion but because you are in a live-in relationship and haven't registered it. This could happen to you in the Indian state of Uttarakhand. Under Section 378 of the Uttarakhand Uniform Civil Code, those who are in live-in relationships are required to register it with the authorities.

The Code has received the president’s assent and the state government says it will implement it as soon as possible.

Two questions arise: one about the content of the law and one about how it will be enforced.

One of the substantive law questions is that of privacy and the requirement to register live-in relationships. This is especially relevant after the Puttaswamy opinion of the Supreme Court of India, which held privacy was a constituent of the fundamental right to life and liberty.

Even if it is held that the state has the right to demand this information from citizens, the Code falters when it comes to basic procedural requirements.

The Code seems to ignore a foundational precept of administrative law — the rule of law. Rule of law is the opposite of the rule of the prince, meaning citizens should be governed by properly formulated laws rather than the whims of officials.

In its most basic form, it stipulates that a person can only be held liable for actions which are a distinct breach of law and that public officials will always be guided by powers granted to them by law.

It is the foundation of the idea that citizens in modern democracies must be protected from the arbitrary exercise of power by public officials. In his celebrated dissent in the Habeas Corpus case, Justice Khanna warns that a citizen’s liberty cannot be the handmaiden of the administrator’s benevolence.

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