The Ark of the Covenant
By Kishore Kulkarni
The Supreme Court has been jurisprudentially shaping the scope of Article 21 from merely existence to the right to live with dignity prompting the focus that the method prescribed by law must meet the standard of reasonableness established under Article 14. The work of great minds, such as B.N. Rau (a proponent of justiciability and substantive due process), and Dr. B.R. Ambedkar, who chaired the Drafting Committee. The final report of Article 21 has been dubbed the "Ark of the Covenant" of the Fundamental Rights section, protecting the right to life and the right to personal liberties in the Indian Constitution.
The
parliamentary memoir of Article 21 is that initially, Constituent Assembly had
passed it as Article 15 which provided that "No person shall be
deprived of his life or liberty without the due process of law." After
that, the Drafting Committee recommended two improvements to Article 15. First,
the inclusion of the word "personal" before the word
"liberty." Second, replacement of the expression "without due
process of law" with "except according to the procedure established by
law." It is true that originally
when this Article was cleared by the Constituent Assembly for its inclusion in
the Constitution the founding fathers emphasized the term ‘life’ or the term
‘personal liberty’ with special reference to incarceration as per the established
procedure under any legal and valid law. But the term ‘deprivation of life’ as
employed by Article 21 in its present form cannot necessarily mean total
extinction of only physical existence. As
laid down by Bhagwati, J. in the case of Maneka Gandhi v. Union of India
& Anr. the law envisaged by Article 21 must stand the test of Article 14 and procedure
laid down by Article 21 must answer the test of reasonableness in order to be
in conformity with Article 14.[4] The Supreme Court in the
case of Nikesh Tarachand Shah v. Union of India (2018) 11 SCC 1,
while deciding the matter pertaining to pre-bail conditions under Prevention of
Money laundering Act termed Article 21 as the ‘Ark of the Covenant so far
as the Fundamental Rights chapter of the constitution is concerned’ .
Under the English law, the idea of Due Process, which was supposed to be the in
the place of Procedure established by law, really meant that action could not
be taken against a person without the backing of the law. The Draft Articles prepared
by K.M. Munshi enumerated in great detail in fact the Due Process Clause was
also mentioned in Article V (4) and read as No person shall be deprived of
his life, liberty or property without due process of law’ .
Yet another intellectual who expounded the due process was B.N. Rau which not only covered procedural due process but also substantive due process. There are no answers from constituent assembly for not adopting the due process and replacing it with words procedure established by law. However, one important reason to avoid American Constitution model of Due Process was due to variations in the way in which the US Supreme Court applied which reduced the predictability and certainty in decision making process. In 1947, Rau was tasked to draft the draft constitution. The task was to properly reconcile due process rights which were justiciable and which granted courts adequate powers to check the violation of fundamental rights. Rau had analyzed the Irish Constitution and was convinced that if the fundamental rights to personal liberty was subservient to legislative will, the constitution would have enacted nothing more than moral code. The cornerstone for preserving and protecting life and personal liberty, was justiciability, which would be the most appropriate means of ensuring that state could always be kept in check.
On 21st February 1948, Dr B.R. Ambedkar as chairman of Drafting Committee submitted the Draft Constitutions to the President. Part III Contained the fundamental rights which were from Draft Articles 7-27. The Draft article 15, the word ‘without Due Process’ was replaced by the phrase ‘except according to procedure established by law’ borrowed from Article 31 of Constitution of Japan. The model constitution went through several revisions and was formally promulgated on 3rd November 1946. Dr B.R. Ambedkar presented a detailed outline of the Draft Constitution in which he described the structure of government, the federal division of power and even presented the nature of fundamental rights. The draft constitution under Article 15 (Art 21), the drafting committee had achieved the unthinkable. It had not only deleted the due process clause, It also retained the liberty right in the form of ‘personal liberty’
A.K. Gopalan v. State of Madras [AIR 1950 SC 27] The Supreme Court opined that Article 19
has no application to laws depriving a person of his life and personal liberty enacted under
Article 21 of the Constitution, they deal with different subjects. Article 19 deals only with
certain important individual rights of personal liberty and its restriction while Article 21 enables
the state to deprive individual of his life and personal liberty in accordance with procedure
established by law. Procedure established by law does not mean ‘due process of law’ rather it
means procedure prescribed by the law of the state. In Maneka Gandhi v. Union of India [AIR
1978 SC 597] Court overruled the decision given in Gopalan’s case and held that Article 21 is
controlled by Article 19 and if there is any law prescribing a procedure for depriving a person
of his personal liberty without infringing Article 21 of the constitution but infringes Article 19
then it is not valid. A law depriving a person of his personal liberty has not only to stand the
test of Art 21 but it must also pass the test laid down in Article 14 and Article 19. The movement towards the recognition of right to privacy in India started with Kharak Singh
v. State of Uttar Pradesh [A.I.R. (1963) S.C. 1295] and Others wherein the apex court
observed that it is true that our constitution does not expressly declare a right to privacy as
fundamental right, but the said right is an essential ingredient of personal liberty. case of
Gobind v. State of M.P [(1975) SCC (Cri) 468], where the Court reaffirmed that there did exist
a right to privacy under the Indian phrase “procedure established by law” as mentioned under
Article 21. Justice K.S. Puttaswamy (Retd.) v. Union of India [(2017) 10 SCC 1] where a
retired Karnataka High Court Justice brought a case before a nine-judge Constitutional bench,
The bench held that Right to Privacy was a part of one's Right to Life conferred by Article 21
and covered the Right to keep private information secret.
Endnotes
[1] Gandhi,
N. (2021). EXPANDING AND EVOLVING THE AMBIT OF ARTICLE 21 OF THE CONSTITUTION
OF INDIA WITH THE DEVELOPING SCENARIO. Indian Journal of Integrated Research
in Law, II(IV), 1–4.
https://ijirl.com/wp-content/uploads/2022/07/EXPANDING-AND-EVOLVING-THE-AMBIT-OF-ARTICLE-21-OF-THE-CONSTITUTION-OF-INDIA-WITH-THE-DEVELOPING-SCENARIO.pdf
[2] Jani,
N. (2013). ARTICLE 21 OF CONSTITUTION OF INDIA AND RIGHT TO LIVELIHOOD. In Sir
L.A. Shah Law College & I. M. Nanavati Law College, Voice of Research:
Vol. Vol. 2 (Issue Issue 2).
https://www.olisindia.in/files/cases/constitition%20article_new.pdf
[3] AIR
1978 SC 597
[4]
Supra
[5] Alva,
R. J. (2022). Liberty After Freedom: A History of Article 21, Due Process
and the Constitution of India.
[6] Khosla,
M. (2020). India’s Founding Moment : The Constitution of a Most Surprising
Democracy. https://hup.degruyter.com/view/title/576268
[7] Alva, R. J. (2022). Liberty After Freedom: A History of Article 21, Due Process and the Constitution of India.
[8] ibid
[9] Kalra, K. (2020). RIGHT TO PRIVACY UNDER INDIAN CONSTITUTION. In GIBS Law Journal (Vol. 38).
[10] Gandhi, N. (2021). EXPANDING AND
EVOLVING THE AMBIT OF ARTICLE 21 OF THE CONSTITUTION OF INDIA WITH THE
DEVELOPING SCENARIO. Indian Journal of Integrated Research in Law, II(IV),
1–4. https://ijirl.com/wp-content/uploads/2022/07/EXPANDING-AND-EVOLVING-THE-AMBIT-OF-ARTICLE-21-OF-THE-CONSTITUTION-OF-INDIA-WITH-THE-DEVELOPING-SCENARIO.pdf
[11] Singh, U. (2023). GOLDEN TRIANGLE
OF THE INDIAN CONSTITUTION: INTERDEPENDENCE OF FUNDAMENTAL RIGHTS. In ILE
WEEKLY REVIEW (Journal-Article APIS – 3920 – 0037; Vol. 1, Issue 3, pp.
33–37). https://wr.iledu.in/wp-content/uploads/2023/08/V1I34.pdf
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