Maenka Gandhi v.

Union of India, A milestone in Indian fundamental

rights jurisprudence

Project fulfilment for the partial fulfilment of the degree of BBA LLB
course

Submitted to-

Submitted by-

Dr. Sharafat Ali

Shivangi Bhardwaj
BBA LLB, 5th semester

Subject: Constitution

Siddhartha Law College, Dehradun

(Affiliated to Uttrakhand technical university, Dehradun)
1

ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher of Constitutional Law,
Dr. Sharafat Ali, who gave me the golden opportunity to do this wonderful project on the
topic Maenka Gandhi v. Union of India a Milestone in Indian fundamental rights
jurisprudence, which also helped me in doing a lot of research and I come to know about so
many things.
I am making this project not only for marks but to also increase my knowledge.
Thank you.
Shivangi Bhardwaj
BBA LLB (5th SEM)

Index
Contents
Introduction..........................................................................................................................4
Historical background.........................................................................................................5
Scheme of fundamental rights, Article 21 and the due process clause.............................5-6
Pre- Maenka Gandhi era...................................................................................................7-8
Post- Maenka Gandhi- new dimension..............................................................................8-9
Breathing life into Article 21............................................................................................9-10
Small case, large judgement............................................................................................10-11
The due process clause gets its visa to India...................................................................11-12
An altered Constitutional climate....................................................................................12-13
The lasting impact of Maneka Gandhi.............................................................................13
Conclusion.........................................................................................................................13

Introduction
According to Dicey,
The right to personal liberty as understood in England means in substance a persons right
not to be subjected to imprisonment, arrest, or other physical coercion in any manner that
does not admit of legal justification.
The decision of the supreme court of India in Maneka Gandhi v. Union of India 1 (Maneka
Gandhi) was an inflexion point2 in the courts movement towards a broader interpretation of
the fundamental rights guaranteed by the constitution.
The circumstances that set the stage for the Maneka Gandhi judgement in 1978 are important.
The national emergency, which was declared by President Fakhurddin Ali Ahmed in 1975
and was characterized by strict censorship and detention of political prisoners, had recently
ended.3 In 1976, in the case of ADM Jabalpur v. Shivkant Shukla 4 (ADM Jabalpur), the
supreme Court had unhappily held that a detune could not file a habeas corpus petition
challenging the legality of his detention during an emergency. A large segment of citizens had
lost faith in the judiciary. Indias democratic structure had faced an onslaught, as the Indira
Gandhi- led Congress government (ousted in 1977) had passed a deluge of revolutionary
constitutional amendments which severely impinged on a persons fundamental rights. There
was an air of disillusionment among the people, who felt betrayed by their elected
representatives and abandoned by the highest court of the land.
With its decision in Maneka Gandhi, the Supreme Court attempted to restore the citizens
faith in the judiciary. It went beyond its immediate mandate to make some striking assertions,
which went on to become the bedrock of the protection of human rights of the aam aadmi in
the year that followed. The case marked the beginning of a golden era of human rights
1 AIR 1978 SC 597.

2 Adam M. Smith, Making itself at home understanding foreign law in Domestic Jurisprudence.

3 The Emergency lasted twenty-one months- from 25 june 1975 to 21 march 1977.

4 AIR 1976 SC 1207.

jurisprudence in India- a period in which the Supreme Court transformed itself into an
institutional ombudsman of human rights.

Historical Background
The Maneka Gandhi case arose in the period immediately following the end of the national
Emergency in India, with the Janata Party government assuming power in 1977. Maneka
Gandhi, daughter- in law of former Prime Minister Indira Gandhi and founder editor of a
political magazine Surya, was issued a passport in 1976 under the Passports Act. Soon after
the congress party was ousted by the janata party, she began using Surya as a political
platform to restore the new government. (The most notable instance of this was when Surya
carried photographs showing the son of then defence minister Jagjivan Ram engaging in
sexual intercourse with a student of Delhi University.) In 1977, around the time she wished to
leave India to fulfil a speaking engagement,5 Maneka Gandhi received a letter stating a letter
stating that the Government of India had decided to impound her passport in public interest
under Section 10 (3) (c) of the Passports Act. The government turned down her request
seeking the reasons why the order had been passed, stating that it was not in the interest of
the general public. In reaction, she filed a writ petition in the Supreme Court challenging the
passports impounding order of the government of India and its subsequent refusal to provide
reason for the same.

Scheme of fundamental rights, Article 21 and the due process clause

The impact of Maneka Gandhi case can be seen in the backdrop of constitutional provisions,
which the Supreme Court was called upon to interpret on several occasions until its decision
in Maneka Gandhi in 1978. Part 3 of the Constitution of India, dealing with fundamental
rights, is arguably its most significant component, for two reasons: (1) Any law that abridges

5 Anthony Lester QC, The Overseas trade in the American bill of rights.

or takes away the rights conferred under part 3 is void, 6 and (2) Every person is entitled to
approach the Supreme Court directly to enforce his/her fundamental rights under part 3.7
Amongst the fundamental rights- composing the golden triangle8- have been invoked most
often to declare legislation or arbitrary state action invalid.
Article 14 categorically sets out that the state cannot deny to any person equality before the
law or the equal protection of laws in India.
Article 19 grants the following six freedoms9 to all citizens of India (subject to certain
restrictions): (1) The freedom of speech and expression, (2) The freedom to assemble
peaceably and without arms, (3) The freedom to form associations or unions, (4) The freedom
to move freely throughout the territory of India, (5) The freedom to reside and settle in any
part of the territory of India, and (6) The freedom to practise any profession, or to carry on
any occupation, trade or business.
The right to life and personal liberty under Article 21 reads: No person shall be deprived of
his life and personal liberty except according to procedure established by law. The phrase
procedure established by law was the subject profound debate in the constituent assembly at
the time of the formulation of the Indian Constitution- would the deprivation of a citizens
life or personal liberty be undertaken under procedure established by law or under due
process of law?10
6 Article 13 of the Constitution.

7 Article 32 of the Constitution.

8 I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861); Minerva Mills Ltd. V. Union of India (AIR 1980 SC
1789).

9 Article 19 of the constitution originally contained seven freedoms. However, the freedom to acquire, hold
and dispose of property under Article 19(1) (f) was deleted by the Constitution (forty-fourth Amendment) Act,
1978.

10 Some scholars believed that the American due process of law ought to have replaced the phrase procedure
established by law

Eventually, the Constituent Assembly retained the expression procedure established by law
as a part of Article 21. Our founding fathers intended for courts to examine only the
procedural adequacy of laws under Article 21. In other words, courts were not allowed to
question any law no matter how arbitrary or oppressive- as violating the right to life and
personal liberty if the law had been suitably passed and enacted. Indeed, most members of the
Constituent Assembly believed that only the electorate should wield the power of substantive
appraisal of legislation.

The Pre- Maenka Gandhi era

A positivist Supreme Court: Gopalan and Satwant Singh
The concept of personal liberty first came up for consideration of the Supreme Court in
A.K. Gopalans case.11 In this case, the Petitioner had been detained under Preventive
Detention Act, 1950. The petitioner challenged the validity of his detention on the ground that
it was violative of his Right to freedom of movement under Art. 19(1) (d), which is the very
essence of personal liberty guaranteed by Art. 21 of the Constitution. He argued that the
words personal liberty includes the freedom of movement also and therefore the Preventive
Detention Act, 1950 must also satisfy the requirements of Art. 19 (5). It was further argued
that Art. 21 and Art. 19 should be read together as Art. 19 laid out the substantive rights while
Art. 21 provided procedural rights. It was also argued that the words procedure established
by law actually meant due process of law from the American Constitution which includes
principles of natural justice and the impugned law does not satisfy that requirement.
Rejecting both the contentions, Supreme Court, by the majority, using the meaning given to
the phrase personal liberty by Dicey, held that the phrase personal liberty in Art. 21 meant
nothing more than the liberty of the physical body, that is, freedom from arrest and detention
without the authority of law. According to majority, the term liberty was wider in meaning
and scope than personal liberty. Hence, while liberty could be said to include Art. 19
within its ambit, personal liberty had the same meaning as given to the expression liberty
of the person under English law. Hence, the majority took the view that Art. 19 and Art. 21 12
11 AIR 1950 SC 27.

12 See, for example, the decision of the Delhi High Court in Rabindernath Malik v. The regional passport
officer, new Delhi (AIR 1967 Del 1) which held that personal liberty did not include the liberty to travel

deal with different aspects of liberty. The Court further interpreted the term law as State
made law and rejected the plea that the term law in Art. 21 meant jus naturale or principles
of natural justice.
It is pertinent to mention here that in A.K. Gopalans case, the attention of the Supreme Court
was drawn to the legislative history of Art. 21 which showed why the expression due
process of law was replaced by procedure established by law. However, it is unfortunate
that the legislative history of Art. 22, and particularly of clauses (1) and (2), whereby the
substance of due process was reintroduced, was not brought to the attention of the Supreme
Court.
But this restrictive interpretation of the expression personal liberty has not been followed
by the Supreme Court in its later decisions. Like for example, in Khadak Singhs case, it was
held that personal liberty was not only limited to bodily restraint but was used as
compendious term including within itself all the varieties of rights which go to make up the
personal liberty of man other than those dealt with in Art. 19(1).
In Satwant Singh,13 the petitioner was a manufacturer, importer and exporter of automobile
parts and engineering goods. His business involved regular overseas travel. The external
affairs ministry asked him to surrender his passports on the ground that that he was likely to
leave India to avoid a trial he was expected to face, for offences under laws governing
imports and exports. He moved the Supreme Court, contending that the states actions
violated his fundamental rights under Articles 14 and 21.
The supreme court concluded that the expression liberty under Article 21 had a wide import
the bench followed the decision in Gopalan by treating the fundamental rights under Articles
14, 19 and 21 as distinct from one another. The court recognized that the right to life and
personal liberty could be taken away by a procedure established by law. However, it
cancelled governments order to the petitioner to surrender his passports. Its judgement was
founded on the limited ground of the failure to provide for any procedure regulating the
denial/surrender of passports under the Indian Passport Act, 1920 (the law governing
passports at the time). The courts objection was based on the absence of a procedure rather
outside India; and the Mysore High Courts judgement in Dr. S.S. Sadashiva Rao v. Union of India (1965) 2
Mys. LJ 605 (Karnataka High Court), which asserted that Article 21 of the Constitution encompassed the right
to travel abroad and return to India.

13 AIR 1967 SC 1836.

than the merits of an existing system.14 Soon after the Satwant Singh judgement, the
parliament enacted the passports act, 1967 (the passports act) to regulate how passports
would be issued, refused, impounded and/or revoked- matters on which comprehensive
legislation did not exist earlier.

Post-Maneka Gandhi: New Dimension

In Maneka Gandhis case, the meaning and content of the words personal liberty again
came up for the consideration of the Supreme Court. In this case, the petitioners passport had
been impounded by the Central Government u/s 10(3)(c) of the Passport Act, 1967. Here, the
Supreme Court not only overruled A.K. Gopalans case but also widened the scope of words
personal liberty considerably. Bhagwati, J. observed:
The expression personal liberty in Article 21 is of widest amplitude and it covers a variety
of rights which go to constitute the personal liberty of man and some of them have raised to
the status of distinct fundamental rights and given additional protection under Article 19.
With respect to the relationship between Art. 19 and Art. 21, the Court held that Art. 21 are
controlled by Art. 19, i.e., it must satisfy the requirement of Art. 19. The Court observed:
The law must therefore now be settled that Article 21 does not exclude Article 19 and that
even if there is a law prescribing a procedure for depriving a person of personal liberty, and
there is consequently no infringement of the fundamental right conferred by Article 21 such a
law in so far as it abridges or takes away any fundamental right under Article 19 would have
to meet the challenges of that Article.
Thus a law depriving a person of personal liberty has not only to stand the test of Article
21 but it must stand the test of Art. 19 and Art. 14 of the Constitution.

Breathing Life into Article 21

Before discussing the Supreme Courts decision in Maneka Gandhi, it is important to note
that the rigid approach adopted by the Supreme Court in Gopalan- holding that: (1) Each
fundamental right in distinct and must be read in isolation, and (2) The expression personal
liberty under Article 21 excludes those freedoms that are categorically provided for in Article

14 S.P. Sathe, judicial Activism: The Indian Experience, Washington University Journal of Law and Policy,
vol. 6 (2001): p.29.

19- had been significantly diluted in two cases 15 decide by the Supreme Court in the preEmergency era. These cases were extensively cited in the judgement of the Supreme Court in
Maneka Gandhi.
In Maneka Gandhi, the Supreme Court departed from the straitjacketed interpretation of
fundamental rights in Gopalan and held that the fundamental rights form an integrated
scheme under the constitution. The court stated:
Articles dealing with different fundamental rights contained in part 3 of the Constitution do
not represent entirely separate streams of rights which do not represent entirely separate
streams of rights which do not mingle at many points. They are all parts of an integrated
scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded
and impartial justice... Isolation of various aspects of human freedom, for purposes of their
protection, is neither realistic nor beneficial.16
Emphasizing the need to read part 3 of the Constitution in a holistic manner, the Supreme
Court said that the mere fact that a law satisfied the requirements of one fundamental right
did not exempt it from the operation of other fundamental rights. What this means is that
even if a law were ostensibly associated with a particular fundamental rights.
The majority on the seven-judge bench stated that any procedure established by law under
Article 21 would have to be fair, just and reasonable and could not be fanciful, oppressive
or arbitrary.17 If this standard were applied, the governments impounding order-passed
without providing a hearing not furnishing any reasons to Maneka Gandhi- failed to satisfy
the mandate of Article 21. The court affirmed the decision in Satwant Singh and held that the
right to personal liberty under Article 21. The court also found that the Government order was
arbitrary and violated the right to equality under Article 14.
In spite of its emphatic observations, the court did not pass any formal order in the case and
accepted the governments assurance that Maneka Gandhi would get an adequate opportunity
15 Kharak Singh v. State of U.P. (AIR 1963 SC 1295); R.C. Cooper v. Union of India (AIR 1970 SC 1318).

16 Maneka Gandhi at para. 3.

17 Ibid. para. 40.

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to be heard.18 The majority upheld the impounding of Maneka Gandhis passport and held
that her passport should remain in the courts custody in the meantime. Justice Beg, who was
otherwise part of the majority, did opine that the government order was neither fair nor
procedurally and deserved to be quashed by the court.19

Small case, large judgement?

The Supreme Courts judgement in Maneka Gandhi has been widely critiqued as one that
went out of bounds with reference to the facts before the court. The matter concerned. On the
face of it, the impounding of an individuals passport. The Attorney-general had undertaken
that Maneka Gandhi would be provided a post-decisional hearing. Moreover, even if the
government decided to stand by its impounding order after hearing Maneka Gandhi, it had
conceded that the period of impounding would not exceed six months from the date of its
fresh order. Instead of deciding the case on this finite ground, the court chose to consider
several peripheral issues- yes, these were pivotal to Indias governance, but peripheral to the
case- in judgements that together added up to over 70,000 words. In his candid style,
constitutional scholar Arvind Datar said: here was really no need to write pages after pages
on Articles 14, 19, 21 and so on.20
Indeed, why did Supreme Court say more than what needed to be said? The immediate cause
of the courts expansive, rights-based approach in Maneka Gandhi was the criticism it faced
for its decision during the Emergency in ADM Jabalpur. In fact, Maneka Gandhi was
followed by a series of actions undertaken by the court and its judges to distance themselves
from ADM Jabalpur-this was akin to an acknowledgement that it had violated the
fundamental rights of a large number of people21 thirty-four years after the case was decided.
18 Seervais criticism of the final order in Maneka Gandhi as being self-contradictory makes for an interesting
read. See H.M. Seervai, Constitutional Law of India, 3rd ed. (Bombay: N.M. Tripathi, 1984), p. 2094.

19 Maneka Gandhi at para 38.

20 Arvind Datar, Commentary on the Constitution of India (New Delhi: Lexis Nexis Butterworths Wadhwa
Nagpur, 2007), p. 64.

21 Remdeo Chauhan v. Bani Kant Das (AIR 2011 SC 615).

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And, yet, though the Supreme Court embarked on an inquiry not necessitated by the facts
before it in Maneka Gandhi, when we look at it from a result-oriented approach, the courts
interpretation of Articles 14, 19 and 21 played a hugely beneficial role in shaping Indias
constitutional policy.

The due process clause gets its visa to India

Does a law that satisfies all procedural requirements in its enactment, however arbitrary or
unreasonable, meet the test of Article 21? This is the question to answer in Maneka Gandhi.
By vesting in itself the power of substantive review under Article 21, the court transformed
itself from being merely a supervisor, to being a watchdog of the Constitution. This is the
seminal importance of the Maneka Gandhi decision.
The key difference between Satwant Singh and Maneka Gandhi was that, in the former, the
court objected to the restraint on travelling abroad because of the absence of a law, but it did
so in the latter despite the existence of a law. The courts judgement in Maneka Gandhi is
based on the simple premise that an arbitrary law is no law.
Although the makers of the Constitution rejected the American due process clause, the
Supreme Courts judgement in Maneka Gandhi effectively meant that procedure established
by law under Article 21 would have the same effect as the expression due process of law.
In a subsequent decision,22 the Supreme Court that Article 21, interpreted according to
Maneka Gandhi, would read as: No person shall be deprived of his life or personal liberty
except according to fair, just and reasonable procedure established by valid law.
Maneka Gandhi is a reflection of dynamic constitutional interpretation. It signifies the courts
changing approach towards the constitution. In the decades that followed, it was treated it
was treated as an organic document whose interpretation must evolve with the times.
Substantive due process and, more broadly stated the courts power to review the content of
legislation to ascertain if the mandate of Article 21 had been met, eventually found its way to
India more than twenty-eight years after the founding fathers of our Constitution abandoned
it.

An altered Constitutional climate

22 Bachan Singh v. State of Punjab (AIR 1980 SC 898).

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Some would wonder why there was so much excitement over a verdict that essentially
recognized the right of a member of Indias most influential political family to go abroad. It is
the constitutional developments after Maneka Gandhi that highlight how it was one of the
cases that truly changed India. For most jurists, it was a turning point in the Supreme Courts
interpretation of Article 21. The court moved from a pedantic to a purposive approach in
construing the sweep of the right to life under the Constitution. The judgement became
springboard for the evolution of the law relating to judicial preservation of human rights.23
The most striking aspect of the Supreme Courts introduction of substantive due process was
that it empowered courts to expand the limited phraseology of the right to life under the
Constitution, to include a wide range of un-enumerated rights. 24 Derived from Article 21,
these rights cover areas such as the rights of prisoners, protection of women and children.
And environmental rights. Since Maneka Gandhi, courts have included the following rights
25

within the embrace of the right to life and personal liberty under Article 21:
1. Rights of prisoners including protection from handcuffing without adequate
reasons,26 access to a transcript of the judgement and facilities to exercise his right to
appeal against his conviction, the right to treatment with dignity and humanity, the
right of an under trial to be released from custody if the police fail to file a
chargesheet within the period prescribed by law,27 protection from custodial violence
28

and protection against public hanging.29

23 Nariman, The Doctrine versus Majoritarianism, p. 94.

24 Vikram Rghavan, Navigating the Noteworthy and Nebulous in Naz Foundation, National University of
juridical Sciences Law Review, vol. 2 (2009): p. 397.

25 The enumerated rights are for illustration and are by no means exhaustive.

26 Prem Shankar Shukla v. Delhi Administration (AIR 1980 SC 1535).

27 Hussainara Khatoon v. State of Bihar (AIR 1979 SC 1360).

28 Sheela Barse v. State of Maharashtra (AIR 1983 SC 378).
29 Attorney general of India v. Lachma Devi (AIR 1986 SC 378).

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2. Environmental Rights including the right to a humane and humane and healthy
environment,30 the right to sustainable development,31 protection from pollution
hazards due to use of pesticides, and the right to live without undue affection of air,
water and the environment.
3. Other Rights including the right to live with human dignity, including access to
nutrition, clothing, and shelter,32 the right to free education of children up to the age of
fourteen years, the right to livelihood, protection of ones reputation, access to just
and humane conditions of work, protection of the health and strength of workers and
maternity relief.

The lasting impact of Maneka Gandhi

Although the Maneka Gandhi judgement permanently clipped the wings of the legislature, it
faced little or no hostility from any of the branches of the government, 33 unlike other
judgements in the same period. In over three decades since the judgement, the right to life
and personal liberty under Article 21 has gradually become a repository of human rights and
fundamental freedoms in India.

Conclusion
Hence to conclude, it may be said that Maneka Gandhis case, gave the term personal
liberty widest possible interpretation and gave effect to the intention of the drafters of the
Constitution. This case, while adding a whole new dimension to the concept of personal
liberty, extended the protection of Art.14 to the personal liberty of every person and
additional protection of Art.19 to the personal liberty of every citizen.

References
30 Godavarnam Thirumalpad v. Union of India (AIR 2003 SC 724).
31 N.D. Jayal v. Union of India (AIR 2004 SC 867).
32 Francis Coralie Mullin v. Union Territory of Delhi (AIR 1981 SC 746).
33 Khosla, Addressing Judicial Activism in the Indian Supreme Court, p. 55.

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Cases referred:
1

A.K. Gopalan v. The State, (1950) S.C.R. 88, (50) A.S.C. 27

Kharak Singh v. State of U.P., (1964) 1 S.C.R. 332, (63) A.S.C. 1295

Maneka Gandhi v. Union of India, (1978) 2 S.C.R. 621, (78) A.S.C. 597

Books referred:

Jain, M.P., Indian Constitutional Law

Mahajan, V.D., Constitutional Law of India

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