Introduction
The interpretation of article 21[1] of the Constitution of India has given birth to one of the most contentious jurisprudence in the history of the Supreme Court of India. The article’s direct and most prominent impact is felt in the evolution of ‘due process’ jurisprudence in the country. The phrase was replaced by ‘procedure established by law’ in article 21 after heated debates in the Constituent Assembly. BN Rau, a prominent member responsible for providing the framework and basic body of the constitution, was advised by Justice Felix Frankfurter to remove the term ‘due process’ to protect social welfare legislation and avoid the dreaded Lochner[2] era. Rau proposed two amendments in the Constituent Assembly: i) to replace ‘liberty’ by ‘personal liberty’, ii) to remove the phrase ‘due process’. These amendments were to limit the extent of the right and to provide the legislature, elected through adult suffrage, power over the judiciary and to limit judicial review.
The ‘due process’ jurisprudence became crucial in cases of property and ‘life and personal liberty’ (especially in preventive detention cases) in the legal history of India. But in property matters, ‘due process’ was short lived as right to property ceased to be a fundamental right after the 44th Amendment Act in 1978. The role of ‘due process’ in ‘life and personal liberty’ has evolved over the decades and started with a preventive detention case in 1950. The kind of due process used in Gopalan[3] can be classified as the ‘pure form’ and since then two more kinds have emerged ‘procedural due process’ and ‘substantive due process’.[4]
AK Gopalan is a seminal judgement by a six-judge bench that decided the course of ‘due process’ cases until the Maneka Gandhi[5] case (eleven- judge bench) which was decided in 1978. The applicant filed a petition under article 32(1)[6] for a writ of habeas corpus. The petitioner had been under detention since December 1947 and was served another order by the Madras State on 1st March 1950 under section 3(1) of the Preventive Detention Act, IV of 1950. So, the petitioner challenged the constitutionality of the act arguing that it contravenes article 13[7], 19[8] and 21.
This essay discusses Kania J’s judgement in Gopalan focusing on his judicial reasoning in terms of the constitutionality of the Preventive Detention Act and his reading of article 21 along with article 19 and the extent of these rights.
Reading Article 19 and 21
The constitution of the United States read ‘due process’ to mean that judiciary was capable of striking down laws enacted by the legislature on both procedural and substantive level. The framers of the Indian constitution keeping this in mind replaced the phrase by ‘procedure established by law’ giving legislature more power over the judiciary. In Gopalan, Kania J is of the same reasoning, as the focus of judicial reasoning prior to the Emergency was based on finding the ‘true meaning’ of the constitution and the intentions of the framers.[9]
The argument on the grounds of article 13 is rejected by Kania as the issue is about determining the extent of the rights in this chapter before the consistency or inconsistency of the act can be determined. He writes:
In order to determine whether a right is abridged or infringed it is first necessary to determine the extent of the right given by the articles and the limitations prescribed in the articles themselves permitting its curtailment…The existence of article 13(1) and (2) in the Constitution therefore is not material for the decision of the question…[10]
Then moving on to article 19, Kania J seems to be rejecting the rights within this article also in cases of preventive detention. He has two arguments for this, firstly, he seems to suggest that detention by its very nature, be it preventive or punitive, is not within the scope of article 19 because there are laws to support infringement of rights in cases of detention. This comparison between punitive and preventive detention sits awkwardly in a judgement that has used logic and deduction as its dominant approach, as he seems to be forgetting that preventive detention is different from punitive detention as the accused has not committed a crime yet and is incarcerated in advance for a suspicion. Many might agree that this intelligible differentia should reduce the state’s power to abridge such a person’s fundamental rights.
Secondly, the rejection of article 19 is based on indirect claim. Kania argues that “the legislation is not directly in respect of any of these subjects, but as a result of the operation of the other legislation, for instance, for punitive or preventive detention, his right under any of these sub-clauses is abridged, the question of the application of article 19 does not arise.”[11] He articulates that the “true approach” is to consider direct legislation, and under this he examines article 19(1)(d)[12] and article 19(5)[13] as it is directly related to a legislation of detention because it restricts movement. The freedom of movement is read along with article 14 and its restrictions are also analysed to determine the intent along with highlighting that accepting the petitioner’s argument would lead to reviewing several provisions of the IPC. Within this the argument that is formulated is in relation to the ‘reasonable restriction’ that is imposed on the right through article 19(5). Kania seems to suggest that a test of reasonableness by the Court would be permitted when the issue “interests the general public, e.g., in case of an epidemic, riot, etc. or for the protection of the interests of any Scheduled Tribe.”[14]
The judicial reasoning propounded by Gopalan was that of mutual exclusivity between article 19 and 21. This theory of mutual exclusivity is rejected in Maneka Gandhi, the case that established scope for ‘substantive due process’. Kania in his judgement rejects the idea that article 19 gave substantive rights and article 21 gave safeguards against deprivation of life and personal liberty. Article 19 is to be read by itself to “appreciate its true scope”, the reason being that all the enumerated rights under article 19 have reasonable restrictions prescribed in the same article from clause (2) to (6), and, similarly, “no extrinsic aid is needed” to read article 21.[15]
While reading article 21, delves into the question of whether ‘due process’ as applicable in the US can be read in article 21 of the Indian Constitution. To restrict the meaning of ‘due process’ he first establishes it as a phrase whose meaning is variable and other factors pitch in to determine its scope. If a certain reading of ‘due process’ empowered the US to interpret it to give the judiciary the power to strike down laws, then now reading the phrase within the doctrine of police powers should be acceptable.
Kania rejects the reading of “law” to mean natural justice or any other expandable interpretation, and insists that the word “law” in “procedure established by law” is the law established by the state. Dissecting the phrase, he comments that the usage of the word “established” in itself suggests an agency and therefore we cannot read “law” as “jus”[16] in article 21. And the deliberate omission of the word “due” is also important because “due” seems to give the Court the power to adjudicate and pronounce what is “due” rather than what is established by the “law”. Clearly, Gopalan deals with ‘due process’ in its pure form and rejects any kind of intervention of judiciary in legislative matters within this article.
Constitutionality of Preventive Detention Act, IV of 1950
The subject of preventive detention, according to the judgement, falls under article 22[17] which is a complete code of guidelines for preventive detention laws. Reading that the procedure for preventive detention is laid down in article 22, failing which article 21 will apply. The question again becomes of the extent and scope of preventive detention procedures laid down in this article, to determine the constitutionality of the impugned act. Preventive detention is also recognized as legal in Entry 9 of List I and Entry 3 of List III. The petitioner challenged the constitutionality of the Preventive Detention Act, IV of 1950 under article 22(4) and (7).
The section of the judgement dealing with article 22 and the constitutionality of the impugned act again delves into a close textual analysis of the article to determine the scope and extent of preventive detention procedures. The clauses (4) and (7) of the article are scrutinized to interpret the “true meaning”.
Clause (4) authorizes a person to be detained for more than three months if an advisory board is set up for council and the maximum period they determine is based on a parliamentary legislation or the person is detained in accordance with a parliamentary law. Clause (7) states that a parliament may prescribe any of the following: (a) the details of how a person should be detained for more than three months by a parliamentary legislation without an advisory board, (b) the maximum period of detention, and (c) the procedure the advisory board, if set-up, needs to follow. Reading these two articles together Kania concludes that non-establishment of an advisory board is permitted in parliamentary legislation even for more than three months. And, finally, reading article 22 with article 246[18] and Schedule VII, List I, Entry 9 and List III, Entry 3 it is made clear that the Parliament is empowered to make laws on preventive detention for certain specified reasons without it being considered an infringement of the individual’s fundamental rights.
The section 3[19], 7[20], 10[21], 11[22], 12[23], 13(2)[24] of the act are declared constitutional, unlike section 14[25] which is ultra vires the Constitution of India because the provisions of section 14 abridge the rights conferred under article 22(5)[26].
Conclusion
In terms of the legal principles laid down by the judgement, it endorses a ‘pure form’ of ‘due process’ jurisprudence which leaves little scope with the Court to provide protection to the individual even in arbitrary preventive detention laws. It explicates the theory of mutual exclusivity between article 19 and 21, saving preventive detention laws from the test of reasonableness under article 19. This approach compromises on the liberty of the individual to empower the state with the necessary tools to infringe fundamental rights with or without an emergency.
In the entire judgement the undertone is a constant move away from a liberal perspective. Moving away from the liberal, Kania’s inclinations are not wholly ‘public order’ oriented, although it does play a role. But his true allegiance lies with the text of the Constitution of India and by extension the intentions of the framers of this text. The problem with Kania’s judgement from the very beginning seem to be a rigid focus on the text of the Constitution and its technicalities, but putting it in a historical perspective can, if not justify, explain the approach. The history of arbitrary power through monarchs and British Raj could be fought by the power of the written text, predictable and fixed. It is almost ironical that to fight one historical arbitrary wrong the Court empowers the present modern state with more arbitrary power to infringe upon citizens personal liberty and fundamental rights.
Endnotes
[1] ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’
[2] In this era in American legal history (1837 to 1937), the judiciary struck down laws on economic regulation and social welfare on the basis of ‘due process’. The era derives its name from Lochner vs. New York 198 US 45 (1905).
[3] AK Gopalan vs. The State of Madras AIR 1950 SC 27
[4] Abhinav Chandrachud in his essay Due Process categorizes the different interpretation and scope of article 21 and ‘due process’ in three stages: ‘pure form’ (1950-78), ‘procedural due process’ (1978-80), ‘substantive due process’ (1980s).
[5] Maneka Gandhi vs. Union of India 1978 AIR 597
[6] ‘The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.’
[7] Laws inconsistent with or in derogation of the fundamental rights.
[8] Protection of certain enumerated rights.
[9] Judicial activism had become an important part of the judiciary after the Habeas Corpus case and the Emergency 1975-77. Khanna J’s dissent in the case is also credited with this recognition of judicial activism and going beyond the intention of the framers.
[10] AK Gopalan (1950).
[11] AK Gopalan (1950).
[12] Right to: ‘(d) to move freely throughout the territory of India;’
[13] ‘(5) Nothing in 1 [sub-clauses (d) and (e)] of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.’
[14] AK Gopalan (1950).
[15] AK Gopalan (1950).
[16] Jus means justice and is usually used for justice in the natural law school of thought.
[17]‘Protection against arrest and detention in certain cases.’
[18] ‘Subject-matter of laws made by Parliament and by the Legislatures of States.’
[19] ‘Power to make orders detaining certain persons.’
[20] ‘Grounds of order of detention to be disclosed to persons affected by the order.’
[21] ‘Procedure of Advisory Board’.
[22] ‘Action upon the report of Advisory Board’.
[23] ‘Validity of duration of detention in certain cases’.
[24] ‘The revocation of expiry of a detention order shall not bar the making of a fresh detention order under Sec. 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be, is satisfied that such an order should be made.’
[25] ‘Temporary release of persons detained’.
[26] ‘When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.’
Bibliography
1) AK Gopalan vs. The State of Madras AIR 1950 SC 27
2) Andhyarujina, T. R. “The Evolution of Due Process of Law by the Supreme Court in.” Supreme but not Infallible: Essays in Honour of the Supreme Court of India (2000), p. 193-213
3) Abhinav Chandrachud, “Due Process,” in Choudhry, Sujit, Madhav Khosla, and Pratap Bhanu Mehta, eds. The Oxford handbook of the Indian constitution. Oxford University Press, 2016, pp. 777-793
4) Anup Surendranath, “Life and Personal Liberty,” in Choudhry, Sujit, Madhav Khosla, and Pratap Bhanu Mehta, eds. The Oxford handbook of the Indian constitution. Oxford University Press, 2016, pp. 756-776
5) Aparna Chandra and Mrinal Satish, “Criminal Law and the Constitution,” in Choudhry, Sujit, Madhav Khosla, and Pratap Bhanu Mehta, eds. The Oxford handbook of the Indian constitution. Oxford University Press, 2016, pp. 794-813
