Edited Excerpt from the judgment (Headings have been added)
It is a mark of interpretative respect for the higher norms our founding fathers held dear in affecting the dearest rights of life and liberty so to read Art. 21 as to result in a human order lined with human justice. And running right through Arts. 19 and 14 is present this principle of reasonable procedure in different shades. A certain normative harmony among the articles is thus attained and hold Art. 21 bears in its bosom the construction of fair procedure legislatively sanctioned.
Unilateral arbitrariness, police dossiers, faceless affiants, behind-the-back materials, oblique motives and the inscrutable face of an official sphinx do not fill the ‘fairness’ bill-subject, of course, to just exceptions and critical contexts. This minimum once abandoned, the Police State slowly builds up which shapes the finer substance of our constitutional jurisprudence. Not party but principle and policy are the key-stone of our Republic.
Let us not forget that Art. 21 clubs life with liberty and when we interpret the colour and content of ‘procedure established by law’ we must be alive to the deadly peril of life being deprived without minimal processual justice, legislative callousness despising ‘hearing’ and fair opportunities of defence. And this realization once sanctioned, its exercise will swell till the basic freedom is flooded out.
Hark back to Art. 10 of the Universal Declaration to realize that human rights have but a verbal hollow if the protective armour of audi alteram partem is deleted. When such pleas are urged in the familiar name of pragmatism public interest or national security, courts are on trial and must prove that civil liberties are not mere rhetorical material for lips service but the, obligatory essence of our bard won freedom. A Republic-if you Can Keep It-is the caveat for counsel and court.
And Tom Paine, in his Dissertation on First Principles of Government, sounded the tossin:
“He that would make, his own liberty secure most guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”
“The reasonable man”, says G. B. Shaw; ” adapts himself to the word; the unreasonable one persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man.” (George Bernard Shaw in ‘Maxims for Revolutionists’).
A government which reveals in secrecy in the field of people’s liberty not only acts against democratic decency but busies itself with its own burial. That is the writing on the wall if history were teacher, memory our mentor and decline of liberty not our unwitting endeavour. Public power must rarely hide its heart in an open society and system.
Art.14 has a Pervasive processual potency and versatile quality, egalitarian in its soul and allergic to discriminatory diktats. Equality is the, antithesis of arbitrariness and excathedra ipse dixit is the ally of demagogic authoritarianism. Only knight-errant of ‘executive excesses’-if we may use a current cliché–can fall in love with the Dame, of despotism, legislative or administrative. If this Court gives in here it gives up the ghost.
And so it that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law; Be you, ever so high, the law is above you.’
No article in Part III is an island but part of a continent, and the conspectus of the whole part gives the directions and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis. The proposition is indubitable, that art. 21 does not, in a given situation, exclude Art. 19 if both rights are breached.
It is a salutary thought that the summit court should not interpret constitutional rights enshrined in Part III to choke its life-breath or chill its elan vital by processes of legalism, overruling the enduring values burning in the bosoms of those who won our Independence and drew up our founding document. We must also remember that when this Court lays down the law, not ad hoc tunes but essential notes, not temporary tumult but transcendental truth, must guide the judicial process in translating into authoritative notation the mood music of the Constitution.
High constitutional policy has harmonised individual freedoms with holistic community good by inscribing exception’s to Art. 19(1) in Art. 19(2) to (6). Even so, what is fundamental is the freedom, not the exception. More importantly, restraints are permissible only to the extent they have nexus with the approved object.
The point is that liberty can be curtailed only if the grounds listed in the saving sub- articles are directly, specifically, substantially and imminently attracted so that the basic right may not be stultified.
‘The law of fear’ cannot reign where the proportionate danger is containable. It is a balancing process, not over-weighted one way or the other. Even so, the perspective is firm and fair. Courts must not interfere where the order is not perverse, unreasonable, mala fide or supported by no material. Under our system, court writs cannot run government, for, then, judicial review may tend to be a judicial coup. But ‘lawless’ law and executive excess must be halted by judge-power best the Constitution be subverted by branches deriving credentials from the Constitution.
Reference
Maneka Gandhi v. Union of India (1978)