Article 21
Article 21
Article 21
The Constitution of Japan, (came into effect on May 3, 1947). Article 31. No
person shall be deprived of life or liberty, nor shall any other criminal penalty be
imposed, except according to procedure established by law.
Constitution of India: Article 21. No person shall be deprived of his life or personal
liberty except according to procedure established by law.
A K Gopalan v. State of Madras, AIR 1950 SC 27
Decided: 5:1 (Saiyid Fazl Ali, J. dissenting)
Facts:
110. This is an application under Article 32 of the Constitution of India for releasing the
petitioner from detention in jail without trial under directions purporting to be issued
by the Government of Madras under the Preventive Detention Act, 1950, and it has the
distinction of being the first application invoking the guaranteed protection of this Court
as the guardian of fundamental rights against alleged infringement of the petitioner's
right to freedom of movement. As the case involved issues of great public importance
and breaking of new ground it was argued with thoroughness and ability on both sides,
reference being made to more or less analogous provisions of the Constitutions of other
countries and in particular the Constitution of the United States of America.
111. The petitioner had been under detention previously under orders passed by the said
Government under the Madras Maintenance of Public Order Act, 1947, but as the
validity of that Act and all other similar local public safety enactments had been
questioned in some of the High Courts in India after the new Constitution came into
force, Parliament enacted a comprehensive measure called the Preventive Detention
Act, 1950, (hereinafter referred to as “the impugned Act”) extending to the whole of
India with a certain exception not material here.
112. The Act came into force on 25th February, 1950, and, on 27th February, the
Government of Madras, in purported exercise of the powers conferred by the impugned
Act and in supersession of earlier orders, directed the detention of the petitioner, and
the order was served on him on 1st March. The petitioner contends that the impugned
Act and in particular Sections 3, 7, 10, 11, 12, 13 and 14 thereof take away or abridge the
fundamental right to freedom of movement in contravention of Article 13(2) of the
Constitution and is, therefore, void as declared therein.
Arguments:
178. The contentions that have been put forward by Mr Nambiar who appeared in
support of the petition, may be classified under four heads. His first contention is that
as preventive detention is, in substance, a restriction on the free movements of a person
throughout the Indian territory, it comes within the purview of Article 19(1)(d) of Part
III of the Constitution which lays down the fundamental rights. Under clause (5) of the
article, any restriction imposed upon this right of free movement must be reasonable
and should be prescribed in the interests of the general public. The question as to
whether it is reasonable or not is a justiciable matter which is to be determined by the
Court. This being the legal position, the learned counsel invites us to hold that the main
provisions of the impugned Act, particularly those which are contained in Sections 3, 7,
10, 11, 12, 13 and 14 are wholly unreasonable and should be invalidated on that ground.
179. The second contention advanced by the learned counsel is that the impugned
legislation is in conflict with the provision of Article 21 of the Constitution inasmuch as
it provides for deprivation of the personal liberty of a man not in accordance with a
procedure established by law. It is argued that the word “law” here does not mean or
refer to any particular legislative enactment but it means the general law of the land,
embodying those principles of natural justice with regard to procedure which are
regarded as fundamental, in all systems of civilised jurisprudence.
180. It is conceded by the learned counsel that the procedure, if any, with regard to
preventive detention as has been prescribed by Article 22 of the Constitution which
itself finds a place in the chapter on fundamental rights must override those general
rules of procedure which are contemplated by Article 21 but with regard to matters for
which no provision is made in Article 22, the general provision made in Article 21 must
apply. He has indicated in course of his arguments what the essentials of such procedure
are and the other point specifically raised in this connection is that the provision of
Section 12 of the Preventive Detention Act is in conflict with Article 22(7) of the
Constitution.
181. The last argument in support of this application is that the provisions of Sections 3
and 14 of the Preventive Detention Act are invalid as they take away and render
completely nugatory the fundamental right to constitutional remedies as is provided for
in Article 32 of the Constitution.
Court’s opinion:
A) On the first contention that preventive detention is violative of the right
under Article 19(1)(d):
116. Accordingly, the first question for consideration is whether Article 19(1)(d) and (5)
is applicable to the present case. “Liberty”, says John Stuart Mill, “consists in doing
what one desires. But the liberty of the individual must be thus far limited — he must
not make himself a nuisance to others”. Man, as a rational being, desires to do many
things, but in a civil society his desires have to be controlled, regulated and reconciled
with the exercise of similar desires by other individuals. Liberty has, therefore, to be
limited in order to be effectively possessed. Accordingly, Article 19, while guaranteeing
some of the most valued phases or elements of liberty to every citizen as civil rights,
provides for their regulation for the common good by the State imposing certain
“restrictions” on their exercise.
The power of locomotion is no doubt an essential element of personal liberty which
means freedom from bodily restraint, and detention in jail is a drastic invasion of that
liberty. But the question is: Does Article 19, in its setting in Part III of the Constitution,
deal with the deprivation of personal liberty in the sense of incarceration? Sub-clause
(d) of clause (1) does not refer to freedom of movement simpliciter but guarantees the
right to move freely “throughout the territory of India”. Sub-clause (e) similarly
guarantees the right to reside and settle in any part of the territory of India. And clause
(5) authorises the imposition of “reasonable restrictions” on these rights in the interests
of the general public or for the protection of the interests of any Scheduled Tribe.
Reading these provisions together, it is reasonably clear that they were designed
primarily to emphasise the factual unity of the territory of India and to
secure the right of a free citizen to move from one place in India to another
and to reside and settle in any part of India unhampered by any barriers
which narrow-minded provincialism may seek to interpose. The use of the
word “restrictions” in the various sub-clauses seems to imply, in the context, that the
rights guaranteed by the article are still capable of being exercised, and to exclude the
idea of incarceration though the words “restriction” and “deprivation” are sometimes
used as interchangeable terms, as restriction may reach a point where it may well
amount to deprivation. Read as a whole and viewed in its setting among the group of
provisions (Articles 19-22) relating to “Right to Freedom”, Article 19 seems to my
mind to pre-suppose that the citizen to whom the possession of these
fundamental rights is secured retains the substratum of personal freedom
on which alone the enjoyment of these rights necessarily rests. It was said
that sub-clause (f) would militate against this view, as the enjoyment of the right “to
acquire, hold and dispose of property” does not depend upon the owner retaining his
personal freedom. This assumption is obviously wrong as regards movable properties,
and even as regards immovables he could not acquire or dispose of them from behind
the prison bars; nor could he “hold” them in the sense of exercising rights of possession
and control over them which is what the word seems to mean in the context. But
where, as a penalty for committing a crime or otherwise, the citizen is
lawfully deprived of his freedom, there could no longer be any question of
his exercising or enforcing the rights referred to in clause (1).
Deprivation of personal liberty in such a situation is not, in my opinion,
within the purview of Article 19 at all but is dealt with by the succeeding
Articles 20 and 21. In other words, Article 19 guarantees to the citizens the
enjoyment of certain civil liberties while they are free, while Articles 20-22
secure to all persons — citizens and non-citizens — certain constitutional
guarantees in regard to punishment and prevention of crime. Different
criteria are provided by which to measure legislative judgments in the two fields, and a
construction which would bring within Article 19 imprisonment in
punishment of a crime committed or in prevention of a crime threatened
would, as it seems to me, make a reductio ad absurdum of that provision.
If imprisonment were to be regarded as a “restriction” of the right mentioned in Article
19(1)(d), it would equally be a restriction on the rights mentioned by the other
sub-clauses of clause (1), with the result that all penal laws providing for imprisonment
as a mode of punishment would have to run the gauntlet of clauses (2) to (6) before their
validity could be accepted. For instance, the law which imprisons for theft would, on
that view, fall to be justified under clause (2) as a law sanctioning restriction of freedom
of speech and expression. Indeed, a Division Bench of the Allahabad High Court, in a
recent unreported decision brought to our notice, applied the test of undermining the
security of the State or tending to overthrow it in determining the validity or otherwise
of the impugned Act. The learned Judges construed Article 19 as covering cases of
deprivation of personal liberty and held, logically enough, that inasmuch as the
impugned Act, by authorising preventive detention, infringed the right to freedom of
speech and expression, its validity should be judged by the reservations in clause (2),
and, as it failed to stand that test, it was unconstitutional and void.
118...Article 19, as I have already indicated, guarantees protection for the more
important civil liberties of citizens who are in the enjoyment of their freedom, while at
the same time laying down the restrictions which the legislature may properly impose
on the exercise of such rights, and it has nothing to do with deprivation of personal
liberty or imprisonment which is dealt with by the succeeding three articles.
11. It was argued that Article 19 and Article 21 should be read together as implementing
each other. Article 19 gave substantive rights to citizens while Article 21 prescribed that
no person can be deprived of his life and personal liberty except by procedure
established by law. Even so, on a true construction of Article 19, it seems to me that both
preventive and punitive detention are outside the scope of Article 19.
12. In order to appreciate the true scope of Article 19 it is useful to read it by itself and
then to consider how far the other articles in Part III affect or control its meaning. It is
the first article under the caption “Right to Freedom”. It gives the rights mentioned in
19(1)(a) to (g) to all citizens of India. These rights read by themselves and apart from the
controls found in clauses (2) to (6) of the same article, specify the different general
rights which a free citizen in a democratic country ordinarily has. Having specified those
rights, each of them is considered separately from the point of view of a similar right in
the other citizens, and also after taking into consideration the principle that individual
liberty must give way, to the extent it is necessary, when the good or safety of the people
generally is concerned. Thus the right to freedom of speech and expression is given by
19(1)(a). But clause (2) provides that such right shall not prevent the operation of a law
which relates to libel, slander, defamation, contempt of court or any matter which
offends against decency or morality or which undermines the security of, or tends to
overthrow, the State. Clause (2) thus only emphasizes that while the individual citizen
has a free right of speech or expression, he cannot be permitted to use the same to the
detriment of a similar right in another citizen or to the detriment of the State. Thus, all
laws of libel, slander, contempt of court or laws in respect of matters which offend
against decency or morality are reaffirmed to be operative in spite of this individual
right of the citizen to freedom of speech and expression. Similarly, that right is also
subject to laws which prevent undermining the security of the State or against activities
which tend to overthrow the State. A similar analysis of clauses (3) and (4) shows
similar restrictions imposed on similar grounds. In the same way clause (5) also permits
reasonable restrictions in the exercise of the right to freedom of movement throughout
the territory of India, the right to reside and settle in any part of the territory of India or
the right to acquire, hold and dispose of property, being imposed by law provided such
reasonable restrictions on the exercise of such right are in the interest of the general
public. The Constitution further provides by the same clause that similar reasonable
restrictions could be put on the exercise of those rights for the protection of the interest
of a Scheduled Tribe. This is obviously to prevent an argument being advanced that
while such restriction could be put in the interest of general public, the Constitution did
not provide for the imposition of such restriction to protect the interests of a smaller
group of people only. Reading Article 19 in that way as a whole the only
concept appears to be that the specified rights of a free citizen are thus
controlled by what the framers of the Constitution thought were necessary
restrictions in the interest of the rest of the citizens.
13. Reading Article 19 in that way it appears to me that the concept of the right to
move freely throughout the territory of India is an entirely different
concept from the right to “personal liberty” contemplated by Article 21.
“Personal liberty” covers many more rights in one sense and has a
restricted meaning in another sense. For instance, while the right to move or
reside may be covered by the expression, “personal liberty” the right to freedom of
speech (mentioned in Article 19(1)(a)) or the right to acquire, hold or dispose of
property (mentioned in 19(1)(f)) cannot be considered a part of the personal liberty of a
citizen. They form part of the liberty of a citizen but the limitation imposed by the word
“personal” leads me to believe that those rights are not covered by the expression
personal liberty. So read there is no conflict between Articles 19 and 21. The contents
and subject-matters of Articles 19 and 21 are thus not the same and they
proceed to deal with the rights covered by their respective words from
totally different angles. As already mentioned in respect of each of the rights
specified in sub-clauses of Article 19(1) specific limitations in respect of each is
provided, while the expression “personal liberty” in Article 21 is generally controlled by
the general expression “procedure established by law”. The Constitution, in Article
19, and also in other articles in Part III, thus attempts to strike a balance
between individual liberty and the general interest of the society. The
restraints provided by the Constitution on the legislative powers or the executive
authority of the State thus operate as guarantees of life and personal liberty of the
individuals.
14. Deprivation (total loss) of personal liberty, which inter alia includes
the right to eat or sleep when one likes or to work or not to work as and
when one pleases and several such rights sought to be protected by the
expression “personal liberty” in Article 21, is quite different from
restriction (which is only a partial control) of the right to move freely
(which is relatively a minor right of a citizen) as safeguarded by Article
19(1)(d). Deprivation of personal liberty has not the same meaning as
restriction of free movement in the territory of India. This is made clear when
the provisions of the Criminal Procedure Code in Chapter VIII relating to security of
peace or maintenance of public order are read. Therefore Article 19(5) cannot apply to a
substantive law depriving a citizen of personal liberty. I am unable to accept the
contention that the word “deprivation” includes within its scope “restriction” when
interpreting Article 21. Article 22 envisages the law of preventive detention. So does
Article 246 read with Schedule Seven, List I, Entry 9, and List III, Entry 3. Therefore,
when the subject of preventive detention is specifically dealt with in the Chapter on
Fundamental Rights I do not think it is proper to consider a legislation permitting
preventive detention as in conflict with the rights mentioned in Article 19(1). Article
19(1) does not purport to cover all aspects of liberty or of personal liberty. In that article
only certain phases of liberty are dealt with. “Personal liberty” would primarily mean
liberty of the physical body. The rights given under Article 19(1) do not directly come
under that description. They are rights which accompany the freedom or liberty of the
person. By their very nature they are freedoms of a person assumed to be in full
possession of his personal liberty. If Article 19 is considered to be the only article
safeguarding personal liberty several well-recognised rights, as for instance, the right to
eat or drink, the right to work, play, swim and numerous other rights and activities and
even the right to life will not be deemed protected under the Constitution. I do not think
that is the intention. It seems to me improper to read Article 19 as dealing with the same
subject as Article 21. Article 19 gives the rights specified therein only to the citizens of
India while Article 21 is applicable to all persons. The word citizen is expressly defined
in the Constitution to indicate only a certain section of the inhabitants of India.
Moreover, the protection given by Article 21 is very general. It is of “law” — whatever
that expression is interpreted to mean. The legislative restrictions on the law-making
powers of the legislature are not here prescribed in detail as in the case of the rights
specified in Article 19. In my opinion therefore article should be read as a
separate complete article.
119. There is also another consideration which points to the same conclusion. The
Drafting Committee of the Constituent Assembly, to whose Report reference was freely
made by both sides during the argument, recommended “that the word liberty should be
qualified by the insertion of the word ‘personal’ before it, for otherwise it might be
construed very widely so as to include even the freedoms already dealt with in Article
13” (now Article 19). The acceptance of this suggestion shows that whatever may be the
generally accepted connotation of the expression “personal liberty”, it was used in
Article 21 in a sense which excludes the freedoms dealt with in Article 19, that is to say,
personal liberty in the context of Part III of the Constitution is something
distinct from the freedom to move freely throughout the territory of India.
120. It was further submitted that Article 19 declared the substantive rights of personal
liberty while Article 21 provided the procedural safeguard against their deprivation. This
view of the correlation between the two articles has found favour with some of the
Judges in the High Courts which have had occasion to consider the constitutional
validity of the impugned Act. It is, however, to be observed that Article 19
confers the rights therein specified only on the citizens of India, while
Article 21 extends the protection of life and personal liberty to all persons
— citizens and non-citizens alike. Thus, the two articles do not operate in a
conterminous field, and this is one reason for rejecting the correlation
suggested. Again, if Article 21 is to be understood as providing only procedural
safeguards, where is the substantive right to personal liberty of non-citizens to be found
in the Constitution? Are they denied such right altogether? If they are to have no right of
personal liberty, why is the procedural safeguard in Article 21 extended to them? And
where is that most fundamental right of all, the right to life, provided for in the
Constitution? The truth is that Article 21, like its American prototype in the Fifth and
Fourteenth Amendments of the Constitution of the United States, presents an example
of the fusion of procedural and substantive rights in the same provision. The right to
live, though the most fundamental of all, is also one of the most difficult to define and its
protection generally takes the form of a declaration that no person shall be deprived of it
save by due process of law or by authority of law. “Process” or “procedure” in this
context connotes both the act and the manner of proceeding to take away a man's life or
personal liberty. And the first and essential step in a procedure established by law for
such deprivation must be a law made by a competent legislature authorising such
deprivation.
C) On the contention that the word ‘law’ in Article 21 means ‘jus’ and not
‘lex’:
16. (The argument in detail) This article (Article 21) has been strongly relied upon by the
petitioner in support of his contention that the impugned Act is ultra vires Parliament as
it abridges the right given by this article to every person. It was argued that under the
Constitution of the United States of America the corresponding provision is found in the
5th and 14th Amendments where the provision, inter alia, is “that no person shall be
deprived of his life or liberty or property except by due process of law”. It was
contended for the petitioner that the Indian Constitution gives the same
protection to every person in India, except that in the United States “due
process of law” has been construed by its Supreme Court to cover both
substantive and procedural law, while in India only the protection of
procedural law is guaranteed. It was contended that the omission of the
word “due” made no difference to the interpretation of the words in Article
21. The word “established” was not equivalent to “prescribed”. It had a wider meaning.
The word “law” did not mean enacted law because that will be no
legislative protection at all. If so construed, any Act passed by Parliament
or the State Legislature, which was otherwise within its legislative power,
can destroy or abridge this right. On the same line of reasoning, it was argued
that if that was the intention there was no necessity to put this as a
fundamental right in Part III at all. As to the meaning of the word “law” it
was argued that it meant principles of natural justice. It meant “jus” i.e.
law in the abstract sense of the principles of natural justice, as mentioned
in standard works of jurisprudence, and not “lex” i.e. enacted law. Against
the contention that such construction will leave the meaning vague, it was argued that
four principles of natural justice recognised in all civilized countries were
covered, in any event, by the word “law”. They are: (1) An objective test i.e.
a certain, definite and ascertainable rule of human conduct for the
violation of which one can be detained; (2) Notice of the grounds of such
detention; (3) An impartial tribunal, administrative, judicial or advisory,
to decide whether the detention is justified; and (4) Orderly course of
procedure, including an opportunity to be heard orally (not merely by
making a written representation) with a right to lead evidence and call
witnesses.
18. Four marked points of distinction between the clause in the American Constitution
and Article 21 of the Constitution of India may be noticed at this stage. The first is that
in U.S.A. Constitution the word “liberty” is used simpliciter while in India it is restricted
to personal liberty. (2) In U.S.A. Constitution the same protection is given to property,
while in India the fundamental right in respect of property is contained in Article 31. (3)
The word “due” is omitted altogether and the expression “due process of law” is not used
deliberately. (4) The word “established” is used and is limited to “procedure” in our
Article 21.
19. The whole argument of the petitioner is rounded on the meaning of the word “law”
given to it by the Supreme Court of America. It seems unnecessary to embark on a
discussion of the powers and jurisdiction of the Supreme Court of the U.S.A. and how
they came to enlarge or abridge the meaning of law in the expression “due process of
law”. Without going into details, I think there is no justification to adopt the
meaning of the word “law” as interpreted by the Supreme Court of U.S.A.
in the expression “due process of law” merely because the word “law” is
used in Article 21. The discussion of the meaning of “due process of law” found in
Willis on Constitutional Law and in Cooley's Constitutional Limitations shows the
diverse meanings given to that expression at different times and under different
circumstances by the Supreme Court of U.S.A., so much so that the conclusion reached
by these authors is that the expression means reasonable law according to the view of
the majority of the Judges of the Supreme Court at a particular time holding office. It
also shows how the meaning of the expression was widened or abridged in certain
decades. Moreover, to control the meaning so given to that expression from time to time
the doctrine of police powers was brought into play. That doctrine, shortly put, is that
legislation meant for the good of the people generally, and in which the individual has to
surrender his freedom to a certain extent because it is for the benefit of the people at
large, has not to be tested by the touchstone of the “due process of law” formula.
20. Our attention was drawn to the debates and report of the drafting committee of the
Constituent Assembly in respect of the wording of this clause. The report may be read
not to control the meaning of the article, but may be seen in case of ambiguity. In
Municipal Council of Sydney v. The Commonwealth [(1904) 1 Bom LR 208] it was
thought that individual opinion of members of the Convention expressed in the debate
cannot be referred to for the purpose of construing the Constitution. The same opinion
was expressed in United States v. Wong Kim Ark [(169) US 649 at 699] . The result
appears to be that while it is not proper to take into consideration the individual
opinions of Members of Parliament or Convention to construe the meaning of the
particular clause, when a question is raised whether a certain phrase or expression was
up for consideration at all or not, a reference to the debates may be permitted. In the
present case the debates were referred to show that the expression “due process of law”
was known to exist in the American Constitution and after a discussion was not adopted
by the Constituent Assembly in our Constitution. In Administrator General of Bengal v.
Premlal Mullick [(1895) LR 22 IA 107] a reference to the proceedings of the legislature
which resulted in the passing of the Act was not considered legitimate aid in the
construction of a particular section. The same reasons were held as cogent for excluding
a reference to such debates in construing an Indian statute. Resort may be had to these
sources with great caution and only when latent ambiguities are to be resolved. See
Craies' Statute Law (4th Edn.) p. 122, Maxwell on Interpretation of Statutes (9th Edn.)
pp. 28-29 and Crawford on Statutory Construction (1940 Edn.) p. 379, Article 214. A
perusal of the report of the drafting committee to which our attention was drawn shows
clearly that the Constituent Assembly had before it the American article and the
expression “due process of law” but they deliberately dropped the use of that expression
from our Constitution.
21. No extrinsic aid is needed to interpret the words of Article 21, which in my opinion,
are not ambiguous. Normally read, and without thinking of other Constitutions, the
expression “procedure established by law” must mean procedure prescribed by the law
of the State. If the Indian Constitution wanted to preserve to every person the protection
given by the due process clause of the American Constitution there was nothing to
prevent the Assembly from adopting the phrase, or if they wanted to limit the same to
procedure only, to adopt that expression with only the word “procedural” prefixed to
“law”. However, the correct question is what is the right given by Article 21? The only
right is that no person shall be deprived of his life or liberty except according to
procedure established by law. One may like that right to cover a larger area, but to give
such a right is not the function of the Court; it is the function of the Constitution. To
read the word “law” as meaning rules of natural justice will land one in
difficulties because the rules of natural justice, as regards procedure, are
nowhere defined and in my opinion the Constitution cannot be read as
laying down a vague standard. This is particularly so when in omitting to adopt
“due process of law” it was considered that the expression “procedure established by
law” made the standard specific. It can not be specific except by reading the expression
as meaning procedure prescribed by the legislature. The word “law” as used in this Part
has different shades of meaning but in no other article it appears to bear the indefinite
meaning of natural justice. If so, there appears no reason why in this article it should
receive this peculiar meaning. Article 31 which is also in Part III and relates to the
fundamental rights in respect of property runs as follows:
22. It is obvious that in that clause “law” must mean enacted law. The object
of dealing with property under a different article appears more to provide the exceptions
found in Article 31(2) to (6), rather than to give the word “law” a different meaning than
the one given in Article 21. The world “established” according to the Oxford Dictionary
means “to fix, settle, institute or ordain by enactment or agreement”. The word
“established” itself suggests an agency which fixes the limits. According to the dictionary
this agency can be either the legislature or an agreement between the parties. There is
therefore no justification to give the meaning of “jus” to “law” in Article
21.
23. The phrase “procedure established by law” seems to be borrowed from Article 31 of
the Japanese Constitution. But other articles of that Constitution which expressly
preserve other personal liberties in different clauses have to be read together to
determine the meaning of “law” in the expression “procedure established by law”. These
articles of the Japanese Constitution have not been incorporated in the Constitution of
India in the same language. It is not shown that the word “law” means “jus” in the
Japanese Constitution. In the Japanese Constitution these rights claimed under the
rules of natural justice are not given by the interpretation of the words “procedure
established by law” in their Article 31. The word “due” in the expression “due process of
law” in the American Constitution is interpreted to mean “just”, according to the
opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to
pronounce what is “due” from otherwise, according to law. The deliberate omission of
the word “due” from Article 21 lends strength to the contention that the justiciable
aspect of “law” i.e. to consider whether it is reasonable or not by the Court, does not
form part of the Indian Constitution. The omission of the word “due”, the
limitation imposed by the word “procedure” and the insertion of the word
“established” thus brings out more clearly the idea of legislative
prescription in the expression used in Article 21. By adopting the phrase
“procedure established by law” the Constitution gave the legislature the
final word to determine the law.
127. The main difficulty I feel in accepting the construction suggested by the
Attorney-General is that it completely stultifies Article 13(2) and, indeed, the very
conception of a fundamental right. It is of the essence of that conception that it is
protected by the fundamental law of the Constitution against infringement by ordinary
legislation. It is not correct to say that the Constitution has adopted the doctrine of
parliamentary supremacy. So far, at any rate, as Part III is concerned, the Constitution,
as I have already observed, has accepted the American view of fundamental rights. The
provisions of Articles 13 and 32 make this reasonably clear. Could it then have been the
intention of the framers of the Constitution that the most important fundamental rights
to life and personal liberty should be at the mercy of legislative majorities as, in effect,
they would be if “established” were to mean merely “prescribed?” In other words, as an
American Judge said in a similar context, does the constitutional prohibition in Article
13(2) amount to no more than “You shall not take away life or personal freedom unless
you choose to take it away”, which is mere verbiage. It is no sound answer to say that, if
Article 21 conferred no right immune from legislative invasion, there would be no
question of contravening Article 13(2). The argument seems, to my mind, to beg the
question, for it assumes that the article affords no such immunity. It is said that Article
21 affords no protection against competent legislative action in the field of substantive
criminal law, for there is no provision for judicial review, on the ground of
reasonableness or otherwise, of such laws, as in the case of the rights enumerated in
Article 19. Even assuming it to be so the construction of the learned Attorney-General
would have the effect of rendering wholly ineffective and illusory even the procedural
protection which the article was undoubtedly designed to afford. It was argued that
“law” in Article 31 which provides that no person shall be deprived of his property “save
by authority of law” must mean enacted law and that if a person's property could be
taken away by legislative action, his right to life and personal liberty need not enjoy any
greater immunity. The analogy is misleading. Clause (2) of Article 31 provides for
payment of compensation and that right is justiciable except in the two cases mentioned
in clauses (4) and (6) which are of a transitory character. The constitutional safeguard of
the right to property in the said article is, therefore, not so illusory or ineffective as
clause (1) by itself might make it appear, even assuming that “law” there means ordinary
legislation.
128. Much reliance was placed on the Irish case King v. Military Governor of Hare Park
Camp [(1924) 2 IR 104] where the Court held that the term “law” in Article 6 of the Irish
Constitution of 1922 which provides that “the liberty of the person is inviolable and no
person shall be deprived of his liberty except in accordance with law” meant a law
enacted by Parliament, and that therefore the Public Safety Act of 1924 did not
contravene the Constitution. The Court followed King v. Halliday [(1917) AC 260] where
the House of Lords by a majority held that the Defence of the Realm (Consolidation)
Act, 1914, and the regulations framed thereunder did not infringe upon the habeas
corpus Acts and the Magna Carta “for the simple reason that the Act and the orders
become part of the law of the land”. But that was because, as Lord Dunedin pointed out
“the British Constitution has entrusted to the two Houses of Parliament subject to the
assent of the King, an absolute power untrammelled by any written instrument
obedience to which may be compelled by some judicial body”, whereas the Irish
Constitution restricted the legislative powers of the Irish Parliament by a formal
declaration of fundamental rights and by providing for a judicial review of legislation in
contravention of the Constitution (Article 65). This radical distinction was overlooked.
129. The Attorney-General further submitted that, even on his interpretation, Article 21
would be a protection against violation of the rights by the executive and by individuals,
and that would be sufficient justification for the article ranking as a fundamental
safeguard. There is no substance in the suggestion. As pointed out in Eshugbayi Eleko v.
Government of Nigeria (Officer Administering) [(1931) AC 662] the executive could only
act in pursuance of the powers given by law and no constitutional protection against
such action is really needed. Even in monarchical Britain the struggle between
prerogative and law has long since ended in favour of the latter. “In accordance with
British jurisprudence” said Lord Atkin in the case cited above, “no member of the
executive can interfere with the liberty or property of a British subject except on the
condition that he can support the legality of his action before a court of justice”. As for
protection against individuals, it is a misconception to think that constitutional
safeguards are directed against individuals. They are as a rule directed against the State
and its organs. Protection against violation of the rights by individuals must be sought in
the ordinary law. It is therefore difficult to accept the suggestion that Article 21 was
designed to afford protection only against infringements by the executive or individuals.
On the other hand, the insertion of a declaration of fundamental rights in the forefront
of the Constitution, coupled with an express prohibition against legislative interference
with these rights (Article 13) and the provision of a constitutional sanction for the
enforcement of such prohibition by means of a judicial review (Article 32) is, in my
opinion, a clear and emphatic indication that these rights are to be paramount to
ordinary State-made laws.
130. After giving the matter my most careful and anxious consideration, I have come to
the conclusion that there are only two possible solutions of the problem. In the first
place, a satisfactory via media between the two extreme positions contended for on
either side may be found by stressing the word “established” which implies some degree
of firmness, permanence and general acceptance, while it does not exclude origination
by statute. “Procedure established by law” may well be taken to mean what the Privy
Council referred to in King Emperor v. Benoari Lal Sharma [(1945) FCR 161, 175] as “the
ordinary and well-established criminal procedure”, that is to say, those settled usages
and normal modes of proceeding sanctioned by the Criminal Procedure Code which is
the general law of criminal procedure in the country. Their Lordships were referring to
the distinction between trial by Special Courts provided by an Ordinance of the
Governor-General and trial by ordinary courts under the Criminal Procedure Code. It
can be no objection to this view that the Code prescribes no single and uniform
procedure for all types of cases but provides varying procedures for different classes of
cases. Certain basic principles emerge as the constant factors common to all those
procedures, and they form the core of the procedure established by law. I realise that
even on this view, the life and liberty of the individual will not be immune from
legislative interference, for a competent legislature may change the procedure so as to
whittle down the protection if so minded. But, in the view I have indicated, it must not
be a change ad hoc for any special purpose or occasion, but a change in the general law
of procedure embodied in the Code. So long as such a change is not effected, the
protection under Article 21 would be available. The different measures of constitutional
protection which the fundamental right to life and personal liberty will enjoy under
Article 21 as interpreted in the three ways referred to above will perhaps be best
illustrated by a concrete example. Suppose that Article 22(1) was not there and
Parliament passed an Act, as a temporary measure, taking away in certain cases the
right of an accused person to be defended by a legal practitioner. According to the
petitioner's learned counsel the Act would be void as being contrary to the immutable
principles of natural justice embodied in Article 21, whereas on the construction
contended for by the Attorney-General, the Act would be perfectly valid, while, on the
view I have indicated above, the Act would be bad, but if the denial of such right of
defence is made a normal feature of the ordinary law of criminal procedure by
abrogating Section 340(1) of the Code, Article 21 would be powerless to protect against
such legislative action. But in a free democratic republic such a drastic change in the
normal law of procedure, though theoretically possible, would be difficult to bring
about, and that practical difficulty will be the measure of the protection afforded by
Article 21.
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
7 Judges
Background:
a) A K Gopalan judgment
b) Satwant Singh v. Assistant Passport Officer, Government of India,
AIR 1967 SC 1836: The Supreme Court cancelled the order issued by the
government to the petitioner to surrender his passport on the ground that the law
dealing with passports at that time (Indian Passports Act, 1920) provided no
procedure to regulate the surrender of passports. As we have already seen, A K
Gopalan required that the deprivation of life or personal liberty may be through
some procedure and the procedure shall be established by an enacted legislation.
The Supreme Court, by a majority, held that the expression “personal liberty” in
Art 21 takes in the right of locomotion and travel abroad and under Art 21 no
person can be deprived of his right to go abroad except according to the
procedure established by law. Here, the enacted legislation had given no
procedure for surrender of passports. Therefore, the government order was held
to be bad in law. (decided on April 10, 1967)
c) In view of the above judgment, the Parliament of India enacted the Passports Act,
1967 on June 24, 1967.
d) Emergency was imposed in 1975.
e) Post-emergency: Maneka Gandhi used her magazine ‘Surya’ to restore the public
perception of the Congress party.
Facts:
1. The petitioner is the holder of the passport issued to her on June 1, 1976 under the
Passports Act, 1967. On July 4, 1977 the petitioner received a letter dated July 2, 1977
from the Regional Passport Officer, Delhi intimating to her that it has been decided by
the Government of India to impound her passport under Section 10(3)(c) of the Act in
public interest and requiring her to surrender the passport within seven days from the
date of receipt of the letter. The petitioner immediately addressed a letter to the
Regional Passport Officer requesting him to furnish a copy of the statement of reasons
for making the order as provided in Section 10(5) to which a reply was sent by the
Government of India, Ministry of External Affairs on July 6, 1977 stating inter alia that
the Government has decided “in the interest of the general public” not to furnish her a
copy of the statement of reasons for the making of the order. The petitioner thereupon
filed the present petition challenging the action of the Government in impounding her
passport and declining to give reasons for doing so.
2. The hearing of the petition was fixed on August 30, 1977, but before that, the
petitioner filed an application for urging additional grounds and by this application, two
further grounds were sought to be urged by her.
Under Art 21: One ground was that Section 10(3)(c) is ultra vires Article 21 since it
provides for impounding of passport without any procedure as required by that article,
or, in any event, even if it could be said that there is some procedure prescribed under
the Passports Act, 1967, it is wholly arbitrary and unreasonable and, therefore, not in
compliance with the requirement of that article.
Under Article 19: The other ground urged on behalf of the petitioner was that Section
10(3)(c) is violative of Articles 19(1)(a) and 19(1)(g) inasmuch as it authorises imposition
of restrictions on freedom of speech and expression guaranteed under Article 19(1)(a)
and freedom to practise any profession or to carry on any occupation, or business
guaranteed under Article 19(1)(g) and these restrictions are impermissible under Article
19(2) and Article 19(6) respectively. The application for urging these two additional
grounds was granted by this Court and ultimately at the hearing of the petition these
were the two principal grounds which were pressed on behalf of the petitioner.
5. It is obvious that Article 21, though couched in negative language, confers the
fundamental right to life and personal liberty...It was in Kharak Singh v. State of U.P.
[AIR 1963 SC 1295 : (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] that the question as to the
proper scope and meaning of the expression “personal liberty” came up pointedly for
consideration for the first time before this Court. The majority of the Judges took the
view “that “personal liberty” is used in the article as a compendious term to
include within itself all the varieties of rights which go to make up the
“personal liberties” of man other than those dealt with in the several
clauses of Article 19(1). In other words, while Article 19(1) deals with
particular species or attributes of that freedom, ‘personal liberty’ in
Article 21 takes in and comprises the residue. The minority Judges, however,
disagreed with this view taken by the majority and explained their position in the
following words: “No doubt the expression ‘personal liberty’ is a comprehensive one and
the right to move freely is an attribute of personal liberty. It is said that the freedom to
move freely is carved out of personal liberty and, therefore, the expression ‘personal
liberty’ in Article 21 excludes that attribute. In our view, this is not a correct approach.
Both are independent fundamental rights, though there is overlapping. There is no
question of one being carved out of another. The fundamental right of life and personal
liberty has many attributes and some of them are found in Article 19. If a person's
fundamental right under Article 21 is infringed, the State can rely upon a law to sustain
the action, but that cannot be a complete answer unless the said law satisfies the test
laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned.”
There can be no doubt that in view of the decision of this Court in R.C. Cooper v. Union
of India [(1970) 2 SCC 298 : (1971) 1 SCR 512] the minority view must be regarded as
correct and the majority view must be held to have been overruled. We shall have
occasion to analyse and discuss the decision in R.C. Cooper case [(1970) 2 SCC 298 :
(1971) 1 SCR 512] a little later when we deal with the arguments based on infraction of
Articles 19(1)(a) and 19(1)(g), but it is sufficient to state for the present that according
to this decision, which was a decision given by the Full Court, the fundamental
rights conferred by Part III are not distinct and mutually exclusive rights.
Each freedom has different dimensions and merely because the limits of
interference with one freedom are satisfied, the law is not freed from the
necessity to meet the challenge of another guaranteed freedom. The decision
in A.K. Gopalan case [AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] gave rise to the
theory that the freedoms under Articles 19, 21, 22 and 31 are exclusive — each article
enacting a code relating to the protection of distinct rights, but this theory was
overturned in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] where Shah, J.,
speaking on behalf of the majority pointed out that “Part III of the
Constitution weaves a pattern of guarantees on the texture of basic human
rights. The guarantees delimit the protection of those rights in their
allotted fields they do not attempt to enunciate distinct rights.” The
conclusion was summarised in these terms : “In our judgment, the assumption in
A.K. Gopalan case [AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] that
certain articles in the Constitution exclusively deal with specific matters —
cannot be accepted as correct”.
15. But the question then immediately arises whether the Central Government has
complied with this procedure in impounding the passport of the petitioner. Now, it is
obvious and indeed this could not be controverted, that the Central Government not
only did not give an opportunity of hearing to the petitioner after making the impugned
order impounding her passport but even declined to furnish to the petitioner the
reasons for impounding her passport despite request made by her. We have already
pointed out that the Central Government was wholly unjustified in withholding the
reasons for impounding the passport from the petitioner and this was not only in breach
of the statutory provision, but it also amounted to denial of opportunity of hearing to the
petitioner. The order impounding the passport of the petitioner was, therefore, clearly in
violation of the rule of natural justice embodied in the maxim audi alteram partem and
it was not in conformity with the procedure prescribed by the Passports Act, 1967.
Realising that this was a fatal defect which would void the order impounding the
passport, the learned Attorney-General made a statement on behalf of the
Government of India to the following effect:
This statement removes the vice from the order impounding the passport
and it can no longer be assailed on the ground that it does not comply with
the audi alteram partem rule or is not in accord with the procedure prescribed by
the Passports Act, 1967.