"
Liberty is itself the gift of the law and may by the law forfeited or
abridged."[1]
Personal liberty consists in the power of locomotion or movement of one's person
to whatsoever place inclination may direct, without restraint, unless by 'due
course of law'. AS per Common Law, every invasion of private property is
considered a trespass. No man can enter another's ground unless licensed to do
so. Liberty, however, cannot exist in the absolute sense because it would
signify a state of society in which everyone would be free to do whatever they
intend.
Therefore, the subject-matter of all laws in the world is the limitation
of the scope of liberty. Without any classifications, liberty would yield
anarchy and restlessness, it would be harder to govern a populace without first
setting some boundaries.[2] The need to restrict personal liberty by law arose
as a measure to ensure the State's control over lawlessness and anarchical
behavior. In this context, two legal principles came to light, 'procedure
established by law' and 'due process of law'.
Out of the various schools of
jurisprudence, the tenets of 'procedure established by law' are in consonance
with the positivist school that is known for its disregard of morality. And the
doctrine of 'due process of law' can be said to concur with the Natural or
Philosophical school.
The concepts of "procedure established by law" and "due process of law" are two
crucial legal principles that play a significant role in ensuring justice and
fairness in any legal system. While both of these concepts may seem similar,
they have distinct differences that can have a significant impact on how legal
proceedings are conducted and how justice is served.
Between 1937 and 1939, the provincial Congress regimes had abolished several
statutes allowing preventive detention. If the phrase 'absolute power corrupts
absolutely' was to have some physical manifestation it would be the fact that
provincial Congress regimes enacted 'Public Order' and 'Public safety' laws in
dozens of provinces between 1947 and 1951. These gave them the power to regulate
a person's action/movement to prevent any act in contravention to public safety
or public order. These included the right to extern or force the individual to
reside in an area or report his movements to authorities.
The government had
broad powers to regulate the conduct in any manner otherwise than is covered by
the above specific provision.[3] To keep the pre-existing laws in effect, the
President Rajendra Prasad issued an ordinance, however, the high courts across
the country kept striking down these laws. The Presidential order under Article
371 was overturned on various occasions, like the Bihar High Court overturned it
in Brameswar Prasad V The State of Bihar[4] and the Calcutta High Court in Sunil
Kumar Bose V State of West Bengal[5]. The Home ministry under Sardar Patel was
always inclined towards the provision for a harsh preventive detention law, the
Constituent Assembly kowtowed.[6]
The reasoning given by Patel is relevant to
understand why the newborn legislature wanted to curtail personal liberty in the
first place. He believed that where the very basis of law was undermined when a
state of affairs was created where men ceased to be men and law ceased to be
law. He claimed that the Preventive Detention Act, 1950 was not against an
ideology or party but for those who make the functioning of a normal government
impossible. He wanted the members in the Parliament to think of the 'liberties
of the millions' that could be threatened by the actions of the 'individuals
whose liberties were curtailed'.
He ensured that he intended to protect civil
liberties, but he hated criminal liberties.
The bill was criticised by many and
H.V Kamath predicted that section 14 of the bill maybe declared void by the
Court as it limits the power of judicial review in vague terms. It must be noted
that this Preventive Detention Act, 1950 came up for questions in the much
celebrated AK Gopalan case from where I seek to begin this discussion.
Article 21 |
Fifth Amendment |
No person shall be deprived of his life or
personal liberty except according to procedure established by law |
No person shall be deprived of Life, Liberty and
property, without due process of law. |
Procedure Established by Law:
The promise of Article 21 is that No person shall be deprived of his or her life
and personal liberty except according to the 'procedure established by law'.
This is interesting as this phrase only limits the executive and not the
legislative wing of the state. If the words 'procedure established by law' ought
to be construed literally, it means that a person can be deprived of his life
and personal liberty if such deprivation conforms to a validly enacted law.
Justice Felix Frankfurter is reported to have suggested BN Rau to drop the term
'due process of the law' from the draft constitution and replace it with
'Procedure Established by law'. Frankfurter's suggestion was a product of the
experience of the American justice system with the term 'due process of law'
which was used by US Courts to quash social welfare laws. The framers were
constantly weary about the use of 'due process', they made many changes before
ultimately replacing the term. Changes like the omission of the property clause,
the limiting of liberty to mean only 'personal liberty' are some examples.
BN
Rau was suspicious that it would confer vast power on to the courts to dictate
against the representatives of the people. The Lochner case[7] where the Court
quashed a law which disallowed bakers from making employees work beyond sixty
hours a week or beyond ten hours a day, reasoning that it interfered with
personal liberty of contract. So in the backdrop of all these contemporary
facts, the Indian legislature adopted the principle of procedure established by
law.
The AK Gopalan Case[8]
The young Supreme Court of India was faced with the task of interpreting Article
21 in the early years of the republic. The case challenged the legality of the
Preventive Detention Act of 1950 upon the detention of AK Gopalan, a communist
leader. HV Kamath was right, the court struck down section 14 of the act but it
held the rest to be constitutional. The bench held that the words 'personal
liberty' are not confined to mean only the liberty of a person. Instead, the
court reasoned that the words include the liberty or right attached to the
person (or jus personem).
Thus, in the court's opinion, the words were capable
of including the rights enshrined in Art. 19. But the court declared that
because the constitution treats these rights as distinct Art. 19 does not apply
to laws that are used to deprive someone of personal liberty under Article 21.
The majority held that 19 and 21 occupy distinct domains within the constitution
and do not overlap.
There are differences, like Article 19 is available to all
citizens and Article 21 ensures protection to all persons. In the court's
opinion, this included more restrictions on the State under Article 19. A
conjoint reading of Articles 19 and 21, in the court's opinion, would have
resulted in the alleged deprivation of liberty being evaluated against the
provisions of Article 19.
The court expressed its view that the term 'law' refers specifically to law
created by the State and not to the broader concept of law as an embodiment of
the principles of natural justice. Additionally, the phrase "procedure
established by law" is to be interpreted as referring exclusively to procedures
established by law created by the State, i.e. the Union Parliament or the
Legislatures of the States. It is not appropriate to interpret this phrase based
on the definition of "due process of law" as defined by the Supreme Court of
America in the American Constitution. Fazal Ali dissented and presented the view
that the principles of natural justice must be ensured just so no one is
condemned unheard in a democracy.
In Gopalan, the court relied on
Munn v. Illinois to support its interpretation
that "procedure established by law" means only that a law must exist that
authorizes the deprivation of life or personal liberty, and does not require
that the law be fair or just. The court held that as long as there is a law that
authorizes the deprivation of life or personal liberty, it cannot be challenged
on the ground of being unfair, unjust or unreasonable.
RC Cooper V Union of India[9]
In the case of RC Cooper, the Supreme Court made a significant contribution by
overturning the majority position in Gopalan that had held that Articles 19 and
21 dealt with separate and exclusive areas. In the context of the right to
property under Articles 19(1)(f) and 31, the Court held that the freedoms and
rights enshrined in Part III of the Constitution could be addressed by more than
one provision. This decision helped to clarify the relationship between
different provisions of the Constitution and ensured that the fundamental rights
of citizens were adequately protected.
ADM Jabalpur V Shiv Kant Shukla[10]
Fast forward 20 years, the Supreme Court was once again at crossroads with the
task of preserving life and personal liberty, this time in the context of a
National Emergency. The Court surprisingly held Article 21 to be the sole
repository of 'life and personal liberty', claim beyond which cannot be
sustained. It was in this judgement that Justice HR Khanna gave his masterly
dissent where he held that right to life and personal liberty was an inherent
right.
Khanna argued that if a law allows for the capricious and malicious
taking of lives without legal authority, it could be argued that such actions
are being carried out in accordance with that law. He contended that even the
organized mass murders perpetrated by the Nazi regime could be seen as a form of
law if the system or norm is based on a hierarchy of orders. This argument
suggests that any system or norm that is based on hierarchy and authority can be
used to justify horrific acts of violence, even if they violate basic principles
of justice and humanity.
Satwant Singh's case: Maneka Gandhi minus Due Process[11]
In Satwant Singh, a manufacturer, importer, and exporter of automobile parts and
engineering goods challenged the external affairs ministry's request to
surrender his passports on the ground of avoiding a trial for offences under
laws governing imports and exports. He claimed his fundamental rights under
Articles 14 and 21 were violated. Although the Supreme Court treated fundamental
rights under Articles 14, 19, and 21 as distinct, it recognized that 'liberty'
under Article 21 excluded only what was otherwise expressly protected under
Article 19.
While the court concluded that the right to life and personal
liberty could be taken away by a 'procedure established by law,' it canceled the
government's order based on the absence of a procedure regulating passport
denial/surrender under the Indian Passport Act, 1920. Parliament enacted the
Passports Act, 1967, to regulate passport-related matters soon after the Satwant
Singh judgment.
The rationale was that there was no
Procedure Established by law for the taking
away of the passport.[12]
To prevent further the sacrifice of the right to life and personal liberty at
the altar of state's legislature, under the guise of a 'procedure established by
law', the Supreme Court devised a remedy in 1978.
Due process of law
Types |
Meaning vis-à-vis Article 21 |
Pure Form Due Process |
This is plainly to explore the motive of the framers of the constitution.
Deprivation under a validly enacted law is constitutional. |
Procedural Due Process |
The Procedure that ought to be followed for depriving someone of her/his life
and personal liberty must be just, fair and reasonable. |
Substantive Due Process |
Herein, the courts can examine the validity of substantive laws and check if
they themselves are just, fair and reasonable. |
The exclusion of the phrase "due process of law" caused a commotion in the
Constituent Assembly, leading members to propose several amendments to restore
it. Alladi Krishnaswami Ayyar was the only member who strongly supported its
removal. Ayyar argued that including the phrase "due process of law" would
create significant obstacles for social legislation and give excessive
discretion to the courts, leading to unpredictable judicial decisions.
Although Ambedkar had mixed feelings about the deletion, those in favor of
reintroducing "due process of law" claimed that the phrase "procedure
established by law" would only enable courts to engage in a form of due process
in a purely procedural sense, rather than in the substantive sense. Kazi Syed
Karimuddin, for example, argued that the current clause did not permit the
courts to examine "the injustice of a law or into a capricious provision in a
law." On December 13, 1948, all proposed amendments to the clause were rejected,
resulting in the permanent removal of the phrase "due process of law" from the
text of India's Constitution.[13]
The Maneka Gandhi Case[14]
The Supreme Court refused to club two fundamental rights in AK Gopalan, and that
personal liberty does not extend to the rights exclusively provided in Article
19.
Maneka Gandhi, the daughter-in-law of former Prime Minister Indira Gandhi and
founder-editor of Surya, was granted a passport in 1976. After the Janata Party
ousted the Congress Party, she began using Surya as a platform to resuscitate
the reputation of the Congress Party and discredit the new government's leaders.
However, in 1977, when she intended to travel abroad for a speaking engagement,
the Government of India decided to impound her passport under Section 10(3)(c)
of the Passports Act in what it described as, public interest. Her request to
provide the reasons for the order were declined stating that it would be against
"interest of the general public." Gandhi filed a writ petition in the Supreme
Court challenging the passport impounding order and the government's subsequent
refusal to provide reasons for it.
The Court's judgement:
It was decided that the Fundamental Rights in part III of the Indian
Constitution are an integrated structure. That the violation of one right can be
reasonably seen linked to the violation of another.
The Supreme Court departed from the rigid interpretation of fundamental rights
in the Gopalan case and ruled that the fundamental rights are interconnected and
form an integrated scheme under the Constitution. The court emphasized that the
different articles dealing with fundamental rights in Part III of the
Constitution should not be viewed as entirely separate streams of rights that do
not intersect. The court stated that the different aspects of human freedom
should be read together for the protection of impartial justice.
Thus, compliance with one fundamental right requirement would not exempt the law
from the operation of other fundamental rights. The Supreme Court held that any
procedure established by law under Article 21 must be "fair, just, and
reasonable" and cannot be "fanciful, oppressive, or arbitrary." The government's
impounding order, which was issued without providing a hearing or furnishing any
reasons to Maneka Gandhi, failed to satisfy the mandate of Article 21.
The court affirmed that the right to travel abroad fell within the scope of the
right to personal liberty under Article 21. It also found that the government's
order was arbitrary and violated the right to equality under Article 14.
Although the court made strong observations, it did not pass any formal order in
the case and accepted the government's assurance that Maneka Gandhi would have
an adequate opportunity to be heard.
The majority upheld the impounding of Maneka Gandhi's passport and held that her
passport should remain in the court's custody in the meantime. Justice Beg, who
was part of the majority, opined that the government's order was neither fair
nor procedurally proper and deserved to be quashed by the court.
How the court enabled due process in India?
The Supreme Court had the task to determine whether any arbitrary and
unreasonable law is enough to satisfy the requirements of Article 21. Here, the
court assumed the role of a watchdog, a protector instead of a mere supervisor
of the Constitution.[15] The judgment of Maneka Gandhi is based on the
proposition that an unjust law is no law and no excuse to deprive someone of
her/his life and personal liberty.
In summary, while the Gopalan Court previously concluded that Article 21 did not
encompass procedural due process, the Maneka Gandhi case later established that
it did. Consequently, any legislation that denies an individual's right to life
or personal liberty must adhere to the principles of natural justice, which
includes the fundamental right to a fair hearing.
This brought a radical change, the violation of life and personal liberty was no
longer restricted to the confinement or arrest of a person. Instead, it opened
new doors of litigation, one through which the Supreme Court derived
unenumerated rights.
In the case of
Olga Tellis v Bombay Municipal Corporation[16], The
petitioners argued that the forced eviction of pavement and slum dwellers,
without providing them with alternative accommodation, violated their right to
life as it deprived them of their livelihood. This case was not a traditional
Article 21 right-to-life case as eviction did not amount to arrest or detention.
However, the Court ruled that the right to livelihood was an integral part of
the right to life under Article 21. Therefore, the government's action was
subject to the requirements set under Article 21, and section 314 of the statute
was held accountable.
In the case of Sunil Batra v Delhi Administration[17], the constitutionality of
section 30(2) of the Prisons Act 1894 was challenged. The provision mandated
that a prisoner 'under sentence of death' must be kept in a cell apart from all
other prisoners. The question was whether this provision allowed jail
authorities to keep death row prisoners in solitary confinement. This case is
significant because it highlights the difference between the concepts of
procedural and substantive due process in criminal law.
Substantive laws are those that define offenses and prescribe punishments, while
procedural laws regulate how a person sentenced to death is to be treated. As
section 30(2) of the Prisons Act was a procedural law and did not prescribe a
punishment, it was not subject to the same constitutional scrutiny as
substantive laws.
The Court clarified that sections 73 and 74 of the Indian Penal Code contained
the substantive punishment of solitary confinement, which was not under
examination in the
Sunil Batra case. The convict on death row challenged
section 30(2) of the Prisons Act using Article 21 of the Constitution, and the
Court 'read down' the provision to ensure that it was not interpreted to permit
solitary confinement.
Hence, unlike Frankfurter's belief, the Indian courts did not use substantive
due process to quash reform regimes or dictate to the democratically elected
representative. Instead, it used it to preserve natural justice for the
populace.
Conclusion
The memories of emergency were fresh and the court wanted to wash its hands
clean off the verdict in ADM Jabalpur. 3 judges who wrote the famous Habeas
Corpus Case were also on the bench in the the Maneka Gandhi case. Justice Beg
made repeated references to his holdings in ADM Jabalpur, therefore, one can
notice that a certain guilt had engulfed the Supreme Court.
The masterly dissent of Justice Khanna in ADM Jabalpur was an eye-opener that
made judicial activism possible. It made the judiciary, which is considered the
backbone of a democracy, question the presence of its own spine. It also removed
the taboo surrounding non-concurrence to the intent of the framers of the
constitution and treating their intention as sacrosanct.
Thus, the
Maneka Gandhi case came as an opportunity of redemption against
a judgement which was ultimately overturned 34 years later. Reminiscent of the
biblical dictum, the sins of the father did come to haunt the son, the son,
however, repented in the Puttaswamy case.[18]
End-Notes:
- Queen V Halliday Ex Parte Zadiq [1917] AC 210
- Blackstone W, Vol. 1 (Oxford: Clarendon Press, 1765), I Commentaries on the Laws of England (Oxford Clarendon Press, Baskerville, 1st edn., 1765)
- Granville Austin, Working of a Democratic Constitution 40 (Oxford University Press, Baskerville, 1st edn., 1999)
- AIR 1950 Patna 265
- AIR 1950 Calcutta 274
- Ibid 55
- Lochner v New York 198 US 45 (1905)
- AIR 1950 SC 27
- AIR 1970 SC 564
- ADM Jabalpur V Shiv Kant Shukla (1976 AIR 1207)
- Satwant Singh v. Assistant Passport Officer, New Delhi, (1967) 3 SCR 525.
- Zia Mody, 10 Judgements That Changed India. (Penguin Random House, 2013)
- Mehta, P. B. ed., The Oxford Handbook of the Indian Constitution (Oxford University Press, 2016).
- Maneka Gandhi V UOI AIR 1978 SC 597
- Supra 12 at 30
- (1985) 3 SCC 545
- (1978) 4 SCC 494
- Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India (UOI) and Ors., (2017) 10 SCC 1
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