Article 21 and Due Process of Law

Introduction

Article 21 is the heart and soul of the constitution of India. It provides for basic human rights. It is linked with the concept of natural law or natural justice. It says,

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

It is couched in negative language but as it says no person that would include all the people not only citizens, to non-citizens, and even those whose citizenship is unknown.[1] That would mean to foreigners as well.[2] It has been adapted from the 5^th and 14^th Amendments of the US Constitution.

Though Article 21 has been taken from US Constitution there is a substantial difference between them. Article 21 has evolved through various judicial interpretations. These interpretations ended up broadening the concept of the Right to Life and Personal Liberty and what is meant by the procedure established by law.

But as Article 21 forms a part of Part III of the constitution and through interpretation of various judgments it has been said that fundamental rights mentioned under Part III of the constitution of India are available only against the state. Therefore Article 21 is available only against the state. So the question here is what remedy can be used against a private individual? A person can go through other remedies but he cannot approach the Supreme Court under Article 32 of the Constitution of India.

Constitutional Assembly debates

Article 21 was Article 15 as per constitutional assembly debates. There was a great deal of debate between Constituent Assembly members regarding the selection of the phrase ‘due process’ or ‘procedure established’. There were opinions from both sides for upholding the principle of federalism. Some felt that the phrase ‘due process of law’ would give wide powers for the judiciary to interpret the laws and some felt ‘procedure establish’ would give the idea of an assumption that the legislature would not make any law that would violate the fundamental rights of the people.

Kazi Syed Karimuddin pointed out that using the words procedure established by law will start a “sad chapter in the history of constitutional law”, he suggested the use of the phrase ‘due process of law’. He thought that “as soon as a procedure according to law is complied with by a court, there will be an end to the duties of the court and if the court is satisfied that the procedure has been complied with, then the judges cannot interfere with any law which might have been capricious, unjust or iniquitous.”

This would mean that if a law is made following procedure established by law then the law would be just even if rights are violated. He wanted to give the individuals ‘inalienable rights’ in a way that Fundamental Rights are not curtailed due to the exercise of power by political parties.

To prove his point he gave an example of the American Constitution by the case of Chambers vs. Florida the law in question was declared unconstitutional on the grounds of being unjust and unfair.

Mahboob Ali Baig Sahib Bahadur: He gave the example of Article 31 of the Japanese Constitution. Article 31 uses the phrase ‘procedure established by law’ but it is supported by other Articles like Article 32, Article 34, and Article 35 to safeguard the interest of liberty of the individual. Article 32 provides that, “No person shall be denied the access to the courts.” He said that “it may be argued that the legislature might pass a law that a person will have no right to go to a court of law to establish his innocence. But according to the Japanese Constitution Article 32 clearly says that “no person shall be denied the right of access to the court”. Is there such a corresponding provision in this Draft Constitution? That is the question. It does not find any place at all.”

He explained this with the other articles as well that these articles specify the personal liberty of a person and they cannot be taken away due to specific rights available and any law passed against the specific law will be declared unconstitutional.

The Honourable Dr. B. R. Ambedkar

The main question deals with the relationship between legislation and the judiciary. In a federal constitution, there is an independent judiciary and the judiciary is allowed to declare any law as intra-virus or ultra-virus. Any law made by either the State or the Centre is under Judicial scrutiny.

The ‘due process’ clause, in my judgment, would give the judiciary the power to question the law made by the legislature on another ground. That ground would be whether that law.

One viewpoint point arises is that the legislation to be trusted to make laws which do not abrogate the fundamental rights. Another view that was taken was that it is not possible to trust the legislature and that it will not be governed by political motives.

“One is to give the judiciary the authority to sit in judgment over the will of the legislature and to question the law made by the legislature on the ground that it is not good law, in consonance with fundamental principles. Is that a desirable principle? The second position is that the legislature ought to be trusted not to make bad laws. It is very difficult to come to any definite conclusion. There are dangers on both sides. For myself, I cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad. It is rather a case where a man has to sail between Charybdis and Scylla and I therefore would not say anything. I would leave it to the House to decide in any way it likes.”

In the end, it was decided by the members to keep the phrase ‘procedure established by law’.

Life

This four-letter word is difficult to define, will it be limited or is so broad that it becomes limitless, can the concept of life or one person be equated to the importance of life or another? Many such questions deal with this word. But to either expand it or to understand it in a limited manner it needs to be defined.

Various treaties like CRC, 1989 (Convention of Rights of the Child,1989) under Article 6 mention the importance of the right to life given to the child and impose an obligation on the state to take action to provide this basic right to the child also to take actions for the child to survive and develop.

The right to life forms a vital part of human rights and the life of a person can not be taken away. Various multilateral treaties even ban death penalties for giving the right to life to a person. Such as the Convention for Protection of Human Rights, 2010 it provides in Article 1 that no person shall be deprived of his right to life and adds a bar on the imposition of death penalties it also says that this bar does not bar the death penalties completely but provides such exceptions in case where a death penalty could be provided.

As per the US Supreme Court’s decision in Munn v. Illinois[3], that no person can be deprived of his right to life and personal liberty except by due process of law in matters of public interest.

Right to life does not mean a mere animal existence[4] or is not just limited to the use of limbs or physical parts of the body. It is more than that it has a broader meaning to include various rights. It includes the idea of growth mentally and intellectually as well.

The Supreme Court of Canada in the case of Dr. Henry Morgentaler, Dr. Leslie Frank Smoling, and Dr. Robert Scott v. Her Majesty The Queen and The Attorney General of Canada Intervener[5] it was said that understanding the meaning of life, liberty and personal security in respect of arbitrary arrest and detention is a narrow interpretation but instead it has a broader interpretation.

In the case of P. Rathinam v. Union of India[6], the court referred to the article of Dr. M. Indira and Dr. Alka Dhal under the caption “Meaning of Life, Suffering and Death” that explained the meaning of life is not limited to living but living healthy with intellectual and spiritual growth.

The Supreme Court of Canada in Lee Carter v. Attorney General of Canada[7] said in its observation that the meaning of life is lost “when life’s positive attributes are so diminished as to render life valueless.”

Personal Liberty

The term personal liberty has a wider understanding than freedom from physical restraint. It would include freedom to move, and freedom of choice not inconsistency with the equal rights of others.[8] As per the US Constitution, the concept of liberty is not restricted to governmental restraint but it means more than that it includes privacy as well, if it is to be a repository of freedom.[9]

In India after AK Gopalan’s[10] case, it said that personal liberty would include the rights attached to the person.

Pre – Maneka Gandhi case or AK Gopalan’s[11] Case

This case acted as a landmark case for many years and said that the meaning of law in terms of Article 21 is confined to state-made law and it cannot include the uncodified principles of natural justice which is nothing but abstract in nature as argued by positive law jurist. It also said that there is a specific reason that the idea of due process of law and procedure established by law was debated upon and there is flexibility attached to the due process clause so the concept of procedure established by law is not synonymous to the due process clause. The word due talks about the just, fair, and reasonable and it is missing in Article 21 under the procedure established by law. There is no connection between Articles 19, 21, and 21 they are mutually exclusive.

This would mean that the law is valid until the procedure established by law is valid also this brings out a narrow understanding of Article 21.

Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India[12],

Fundamental rights are not mutually exclusive and to understand these fundamental rights we need to take the cumulative approach. The court tried to bring forth the relation between Fundamental Rights.

Bennett Coleman & Company Ltd. v. Union of India[13],

If a law is not directly affecting Article 19 but it has an impact on any of the rights affecting Article 19 then such an impact needs to pass the test of reasonableness under Article 19(2).

Maneka Gandi’s[14] Case

Maneka Gandhi’s passport was seized and the Passport Authority refused to return her passport reasoning it was in the interest of the general public. She claimed that it violated her right to personal liberty under Article 21. The court took a liberal interpretation of Article 21. The court said that the word law cannot be interpreted in a restricted manner to include only state-made law but also principles of natural justice. Principles of natural justice cannot be called vague, it is based on establishing the reasonableness of law. Due process means that the law should be reasonable, just, and fair; the same interpretation shall be applied because the parliament cannot make a law that is unreasonable, unjust, or unfair. This would mean that the procedure establish by law under Article 21 should also be just, fair and reasonable. The court rejected the idea of mutual exclusivity between the fundamental rights and there is a connectivity between Articles 14, 19, and 21. Any law passed effecting Article 21 and indirectly affecting Article 19 needs to stand the test of reasonableness under Article 19 and non-arbitration under Article 14. AK Gopalan was not overruled but the bench outstands the decision including the rejection of the ideas under AK Gopalan.

Post – Maneka Gandhi’s Case

Procedure Established by Law and Due Process Clause

The phrase ‘due process’ is traceable from Section 39 of the Magna Carta of 1215, a personal treaty between King John and the enraged upper classes. It says, “No freeman shall be taken and imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers and by the law of the land.”

The American Legal System took it one step forward and it gave statutory recognition to the due process clause.[15]

The phrase ‘procedure established by law’ is also been used in the Japanese constitution. It forms a part of Article 31 of the constitution of Japan. It says, “No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.” The courts in Japan have imposed safeguards while reading Article 31 with Articles 32,33,34,37 and 38 of the Constitution of Japan.[16]

The phrase “procedure established by law” was interpreted in a very narrow sense in AK Gopalan’s case it was said that it just meant that if the process established by law is followed and the law is a validly made law the law would not violate Article 21. As per the US Constitution the phrase “due process of law” has two concepts substantive due process and procedural due process. The constituent Assembly members thought that the US Constitution has a wider meaning so they were a little skeptical about using “due process of law”.

But in Maneka Gandhi’s Case, it was well settled that there is a relation between Articles 14, 19, and 21. It was said that “procedure” should pass the test of Articles 14 and 19. In the case of Sunil Batra v. Delhi Administration[17] the court said that there is a difference between the procedure established by law and the idea set in Maneka Gandhi’s Case Article 21 acts as a counterpart of procedural due process of law.

J. Krishna Iyer said, “What is of considerable interest is the observation on procedural due process which in our country has its counterpart in Article 21, as expounded in Maneka Gandhi.”

These two cases have led to the development of the phrase ‘procedure established by law’ to ‘due process of law’ with mainly two principles. Firstly, the interaction of Articles 14, 19 and 21. Secondly, the connection between Articles 20, 21 and 22

[1] VN shukla, ‘The Constitution of India’, pg. 210.

[2] Hans Muller of Nurenburg v. Superintendent, Presidency Jail, (1955) 1 SCR 1284 : AIR 1955 SC 367 : 1955 Cri LJ 876.

[3] 1876 SCC OnLine US SC 4 : 94 US 113 (1876).

[4] Munn v. Illinois, 1876 SCC OnLine US SC 4 : 94 US 113 (1876); Kharak Singh v. State of U.P., (1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329; Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[5] 1988 SCC OnLine Can SC 4 : [1988] 1 SCR 30.

[6] (1994) 3 SCC 394 : 1994 SCC (Cri) 740.

[7] 2015 SCC OnLine Can SC 1 : [2015] 1 SCR 331 : 2015 SCC 5.

[8] Munn v. Illinois, 1876 SCC OnLine US SC 4 : 94 US 113 (1876).

[9] Public Utilities Commission of District of Columbia v. Pollak Pollak, 1952 SCC OnLine US SC 69 : 343 US 451 (1952) : 72 S.Ct. 813 : 96 L.Ed. 1068.

[10] A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383.

[11] 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383.

[12] (1970) 1 SCC 248.

[13] 1986 SCC OnLine Bom 34 : AIR 1986 Bom 321.

[14] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[15] EVOLUTION OF DUE PROCESS IN INDIA Mr. A.H. Hawaldar, Bharati Law Review, Oct. – Dec., 2014.

[16] Sharma, Panch. (2017). Interpreting ‘Procedure Established by Law’ with ‘Rule of Law’: A Comparitive View of Irish, Japanese and Indian Constitution. Foresic Research & Criminology International Journal. 4. 10.15406/frcij.2017.04.00113.

[17] (1978) 4 SCC 494 : 1979 SCC (Cri) 155.