Article 21

Article 21 reads as follows:

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

Relation to Magna Carta 1215

This Article has its origin in nothing less than the Magna Carta, (the 39th Article) of 1215 vintage which King John of England was forced to sign by his Barons. It is a little known fact that this original charter of liberty was faulted at the very start and did not get off the ground because of a Papal Bull issued by Pope Innocent the third declaring this charter to be void.

Strangely, like Magna Carta, Art. 21 did not get off the ground for 28 years after which, unshackled, it has become the single most important fundamental right under the Constitution of India, being described as one of a holy trinity consisting of a ‘golden triangle’ (see Minerva Mills v. Union of India 1981 (1) SCR 206 at 263), and being one of two articles which cannot be eclipsed during an emergency (Article 359 as amended by the Constitution 44th Amendment).

Article 21 in Original Draft

It is to be noted that Article 21 as it originally stood in the Draft Constitution was as follows (Cl.15):—

“No person shall be deprived of his life or liberty without due process of law.”

The Drafting Committee introduced two changes in the Clause –

(i) They qualified the word ‘liberty’ by the word ‘personal’ in order to preclude a wide interpretation of the word so as not to include the freedoms which had already been dealt with in Art.13 (corresponding to Art. 19 of the Constitution).

(ii) They also substituted the words “due process of law” by the words “procedure established by law”, following the Japanese Constitution (Art. XXXI), because they were more ‘specific’.

Over the question whether the expression ‘due process of law’ should be restored in place of the words ‘procedure established by law’, there was a sharp difference of opinion in the Constituent Assembly, even amongst the members of the Drafting Committee. On the one side, was the view of Sri Munshi, in favour of ‘due process’.

On the other side, was Sri Alladi Krishnaswami Iyer, who favoured the taking of life and liberty by legislation. Dr. Ambedkar merely summed up the two views and left it to the House “to decide in any way it likes”.

The House adopted the Clause as drafted by the Drafting Committee, rejecting “due process”. The result, as stated by Dr. Ambedkar, at a subsequent stage, was that Art.21 gave “a carte blanche to make and provide for the arrest of any person under any circumstances as Parliament may think fit.

A.K. Gopalan v. The State of Madras, 1950

As was stated by the Supreme Court in A.K. Gopalan v. The State of Madras, 1950 SCR 88, Article 21 seems to have been borrowed from Article 31 of the then recently enacted Japanese Constitution. This was in keeping with B.N. Rau’s view who, in his initial draft of the Fundamental Rights Chapter, followed the advice of U.S. Supreme Court Justice Frankfurter not to incorporate “due process” from the 5th amendment to the U.S. Constitution. The result was that so far as property was concerned, a full blown ‘due process’ was introduced in Articles 19(1)(f) and 31 of the Constitution.

The 5th amendment of the U.S. Constitution was thus bifurcated – a full blown substantive due process qua property, and procedure established by law qua life and personal liberty. It took 28 years for India to remedy this situation. By the Constitution 44th amendment Act, even the truncated right to property was completely deleted, and in the same year in Maneka Gandhi v. Union of India, (1978) 2 SCR 621, the Supreme Court held that the procedure established by law cannot be arbitrary but should be just, fair and reasonable.

A six Judge Bench of the Supreme Court in A.K. Gopalan’s case construed Art.21 linguistically and textually. Kania, J. held:

“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 USA’s Constitution the word “liberty” is used simpliciter while in India it is restricted to personal liberty.

(2) in USA’s 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.” (at page 109)

In the picturesque language of Das, J. it was stated:

“It is said that if this strictly technical interpretation is put upon Article 21 then it will not constitute a fundamental right at all and need not have been placed in the chapter on Fundamental Rights, for every person’s life and personal liberty will be at the mercy of the Legislature which, by providing some sort of a procedure and complying with the few requirements of Article 22, may, at any time, deprive a person of his life and liberty at its pleasure and whim.

… Subject to the limitations, I have mentioned which are certainly justiciable, our Constitution has accepted the supremacy of the legislative authority and, that being so, we must be prepared to face occasional vagaries of that body and to put up with enactments of the nature of the atrocious English statute to which learned counsel for the petitioner has repeatedly referred, namely, that the Bishop of Rochester’s cook be boiled to death.

If Parliament may take away life by providing for hanging by the neck, logically there can be no objection if it provides a sentence of death by shooting by a firing squad or by guillotine or in the electric chair or even by boiling in oil. A procedure laid down by the legislature may offend against the Court’s sense of justice and fair play and a sentence provided by the legislature may outrage the Court’s notions of penology, but that is a wholly irrelevant consideration.

The Court may construe and interpret the Constitution and ascertain its true meaning but once that is done the Court cannot question its wisdom or policy. The Constitution is supreme. The Court must take the Constitution as it finds it, even if it does not accord with its preconceived notions of what an ideal Constitution should be. Our protection against legislative tyranny, if any, lies in the ultimate analysis in a free and intelligent public opinion which must eventually assert itself.” (at page 319-321)

Kharak Singh v. State of U.P., (1964)

In Kharak Singh v. State of U.P., (1964) 1 SCR 332, Gopalan’s reading of fundamental rights in watertight compartments was reiterated by the majority. However, they went one step further to say that “personal liberty” in Art.21 takes in and comprises the residue after all the rights granted by Art.19. Justices Subba Rao and Shah disagreed. They held:

“The fundamental right of life and personal liberty have many attributes and some of them are found in Art. 19. If a person’s fundamental right under Art. 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 Art. 19(2) so far as the attributes covered by Art. 19(1) are concerned.

In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Art. 19(2) of the Constitution. But in this case no such defence is available, as admittedly there is no such law. So the petitioner can legitimately plead that his fundamental rights both under Art. 19(1)(d) and Art. 21 are infringed by the State.” (at page 356-357)

The minority judgment of Subba Rao and Shah, JJ. eventually became law in R.C. Cooper (Bank Nationalisation) vs. Union of India, (1970) 1 SCC 248, where the 11-Judge Bench finally discarded Gopalan’s view and held that various fundamental rights contained in different articles are not mutually exclusive:

“We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non- compliance with Article 31(2). Article 31(2) requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal compliance with the conditions under Article 31(2) is not sufficient to negative the protection of the guarantee of the right to property.

Acquisition must be under the authority of a law and the expression “law” means a law which is within the competence of the Legislature, and does not impair the guarantee of the rights in Part III. We are unable, therefore, to agree that Articles 19(1)(f) and 31(2) are mutually exclusive.” (para 53)

Maneka Gandhi Case

The stage was now set for the judgment in Maneka Gandhi. Several judgments were delivered, and the upshot of all of them was that Article 21 was to be read along with other fundamental rights, and so read not only has the procedure established by law to be just, fair and reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into Article 21. [See: at page 646-648 per Beg, CJ., at page 669, 671-674, 687 per Bhagwati, J. and at page 720-723 per Krishna Iyer, J.]. Krishna Iyer, J. set out the new doctrine with remarkable clarity thus:

“To sum up, ‘procedure’ in Article 21 means fair, not formal procedure. ‘Law’ is reasonable law, not any enacted piece. As Article 22 specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Article 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Article 21 are available.

Otherwise, as the procedural safeguards contained in Article 22 will be available only in cases of preventive and punitive detention, the right to life, more fundamental than any other forming part of personal liberty and paramount to the happiness, dignity and worth of the individual, will not be entitled to any procedural safeguard save such as a legislature’s mood chooses.” (at page 723)

Mithu vs. State of Punjab, (1983)

Close on the heels of Maneka Gandhi’s case came Mithu vs. State of Punjab, (1983) 2 SCC 277, in which case the Court noted as follows:

“In Sunil Batra vs. Delhi Administration, (1978) 4 SCC 494 while dealing with the question as to whether a person awaiting death sentence can be kept in solitary confinement, Krishna Iyer J. said that though our Constitution did not have a “due process” clause as in the American Constitution; the same consequence ensued after the decisions in the Bank Nationalisation’s case (1970) 1 SCC 248 and Maneka Gandhi’s case (1978) 1 SCC 248. …

In Bachan Singh which upheld the constitutional validity of the death penalty, Sarkaria J., speaking for the majority, said that if Article 21 is understood in accordance with the interpretation put upon it in Maneka Gandhi, it will read to say that: No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.” (at para 6)

The wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty.

Reference

Justice Rohinton Fli Nariman in Mohd Arif @ Ashfaq v. The reg. Supreme Court of India (2014)