Interpreting Article 21 in terms of Due Process of Law

Vipul Gaur

Vipul Gaur

Vipul is a resident of Gurgaon and a LLM graduate from NLSIU, Bangalore. He has a passion for teaching and has authored articles on various topics.
Vipul Gaur

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“The care of human life and happiness, and not their destruction, is the first and only object of good government.”

-Thomas Jefferson

Article 21 (No person shall be deprived of his life and personal liberty except according to procedure established by law) though provided in negative terms, gives the most important fundamental human right, the right to life. Interpreting Article 21 Supreme Court held in State of Maharashtra v. Chandrabhan, AIR 1983 SC803, Right to life enshrined in the Article 21 means something more than survival or animal existence.

At the time of drafting of the Constitution of India, the word ‘due process of law’ was proposed to be used, which was based on the concept as used in the American Constitution, but this was not accepted to half of the members of the drafting committee, assuming that it would give  wide powers to the judiciary. Also, it was recommended by Justice Frankfurt to Dr. B.N. Rao not to include ‘due process of law’ else it would increase the number of litigation cases in the country, and hence the word ‘procedure established by law’ was used instead.

Although the Indian Constitution uses ‘procedure established by law,’ owing to the role of the judiciary in working towards the protection of life and liberty of an individual, the words are more or less interpreted as the ‘due process of law’. This thought is also evident from former Chief Justice Mr. A.M. Ahmadi’s speech, wherein he stated, the judiciary through the process of interpretation introduced the due process clause and it is fairly clear now that the due process clause has virtually found its place in article 21 through the interpretative process adopted by the Supreme Court and other courts of the country.”

The concept of ‘procedure established by law’ under Article 21 of the Indian Constitution is taken from the Constitution of Japan. The expression ‘procedure established by law’ means a procedure which has been laid down by a statute or which has been provided by law of the State or State machinery. This concept means that a law, which has been enacted by the legislature or the competent body, is deemed to be valid if it is followed by a correct procedure.

The theory of ‘due process of law’ had its birth in the English Common Law Courts. The rule provided that the individuals shall not be deprived of life and liberty, or property without a notice and an opportunity of being heard, it was widely accepted in England. Due process is a principle according to which the Government is bound to respect all the legal rights that are conferred on a person, the law of the land is supreme and the Government is bound by it.

The due process clause gives the judiciary power to question the law made by the legislature which is related to an individual. The judiciary gets the power to check the validity of the law and also whether the law is good or bad.

ARTICLE 21 AND THE DUE PROCESS OF LAW

The newly constituted Supreme Court of India was assigned a challenging task of interpreting Article 21 in the case of A.K. Gopalan v. State of Madras, AIR 1950 SC 27. The Apex Court was asked whether the detention of the Communist leaders was valid, does it satisfy the provisions of Article 21 of the Constitution, i.e. ‘procedure established by law’ or that it should be the principle of natural justice which would be the governing criteria? The Court giving a narrow interpretation to the Article was of the view that the ‘procedure established by law’ simply means the procedure which has been enacted by the law of the legislature. The court rejected the argument that law under Article 21, is on the principle of ‘jus and lex’ and it is akin to the principle of natural justice.

The Supreme Court though gave a strict interpretation to this Article in the above mentioned case, but the same has not remained constant.  Instead the Court has in subsequent cases focused more towards interpreting the Article in terms of ‘due process of law’.

Taking for instance the case of Kharak Singh v. State of Uttar Pradesh, 1964 SCR (1) 332 wherein the constitutional validity of Chapter 20 of the Uttar Pradesh Police Regulations and power, which was conferred by this chapter on the police personnel, was challenged on the grounds that they violate Articles 19(1)(d) and 21. The Supreme Court held by majority that, ‘personal liberty’ is confined not only to the freedom from actual physical restraint or freedom from the boundaries of the jail but it is a wide term including within its scope all the rights which together make up the liberty of a person, other than those as provided under Article 19(1) of the Constitution. It was also held that unauthorized intrusions into a person’s house is a violation of personal liberty as provided under Article 21 and therefore the regulation was invalid insofar as it authorizes domiciliary visits.

Again in the case of Maneka Gandhi v. Union of India, AIR 1978, SC 597, Article 21 of the Constitution came up for interpretation. The passport of the petitioner was impounded by the Central Government under the Passport’s Act, 1967 [Section 10(3)(c)]. The Act gave the Central Government power to impound the passport ‘in the interest of the general public’. The petitioner’s passport was impounded on the said above ground and no sufficient reason was accorded to her. The petitioner then sought to challenge the validity is Section 10 (3)(c) on the grounds of violation of Article 14 as it conferred arbitrary power on the Central Government to impound the passport without giving any valid reasons and without the rights of natural justice, an opportunity of being heard. The Supreme Court in this case gave a landmark judgment which changed the dimensions of Article 21. The Court broadened the scope of personal liberty and also adopted the concept of due process of law in the procedure established by law. “Article 21 and Article 19 are not water tight compartments. The expression ‘personal liberty’ under article 21 is of the widest amplitude, covering a variety of rights of which some have been included under Article 19 and given additional protection. Hence, there may be some overlapping between the two Articles 19 and 21.” 

The Supreme Court similarly in the case of Sunil Batra v. Delhi Administration(1978) 4 SCC 494: 1979 SCC (cri ) 155, where the question was regarding the solitary confinement of a prisoner u/s 30(2) of the Prisons Act, 1894 (who has been awarded death penalty for murder) held, that the said provisions are violation of Articles 14, 19, 20(2) and 21 and a convict also has the fundamental right to liberty, though his liberty is not to move out of the walls of the prison. A conviction does not convert a human to non-human.

In Mithu v. State of Punjab(1983) 2SCC 277 AIR 1983 SC 473, a constitutional bench went on ahead to unanimously strike down a provision in a substantive law, Section 303 of the Indian Penal Code, 1860 was declared unconstitutional.

In a recent judgment of Selvi v. State of KarnatakaAIR 2010 SC 1974, the validity of certain tests, using scientific techniques namely ‘Narcoanalysis, Polygraphy and Brain Finger Printing (BEAP)’ conducted on the accused, criminals, witness related to a criminal investigation without their consent were in question. The tests were challenged under Articles 21 and 20 of the Constitution of India. It was held by the Supreme Court, before undergoing these tests, the accused might have been subjected to abuse or cruelty, also these tests are in violation of Article 20(3) and do not fall under the ambit of “such other test” as provided in Section 20 of the Code of Criminal Procedure, 1973. 

CONCLUSION

Article 21 is considered to be one of the most important Articles in the Constitution of India. It is a Constitution in itself. This article provides the most significant right – the right to life. A person can exercise all other rights only if he has a right to life.

Both the due process and the procedure established by law have a separate standing, the latter gives the legislature power to make laws according to its own understanding and logic, on a faith that the legislature would not make a bad law, which takes away the life and personal liberty of a person in an unjust, unreasonable and arbitrary manner. Speaking about the former, the ‘due process of law’, gives more power to the judiciary to have a check on the law making powers of the Parliament. It is the work of the judiciary to check the law whether it is the just, reasonable and non-arbitrary. It is also considerable that it may give the judiciary an undisputed power to strike down any law made by the Parliament.

The Supreme Court of India in earlier cases including that of A.K. Gopalan, gave a narrow interpretation to the Article, and considered law, as the law made by the state rejecting the arguments of the observance of the principle of natural justice. There was a change in the interpretation of this Article like in Maneka Gandhi’s case, the court by majority held that the procedure prescribed by the Parliament should be just, fair and reasonable. The Apex Court in Mithu v. State of Punjab, even went on ahead to strike down a statutory provision (Section 303 of the Indian Penal Code, 1860) procedure provided by it was unreasonable and unjust.

From the cases and decisions of the Supreme Court (some of which are mentioned above), it is quite evident that though the term used under the Article is ‘procedure established by law’, but the Courts have time and again interpreted it as ‘due process of law’ to safeguard the life and personal liberty of a person.

REFERENCES

  1. Durga Das Basu, Introduction to the Constitution of India, 22nd Edition, 2015
  2. Relevant All India Reporters and Supreme Court Cases
  3. Website: http://www.lifenews.com/2013/09/03/15-of-the-greatest-pro-life-quotes-of-all-time/
  4. Website: http://www.salamevatan.org/2011/06/judicially-derived-rights-as.html (last accessed 01/09/2016 2:15)

About Vipul Gaur

Vipul is a resident of Gurgaon and a LLM graduate from NLSIU, Bangalore. He has a passion for teaching and has authored articles on various topics.

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