dedol-hf/india-case-legal-rag huggingface dataset:
public or for the protection of the interests of any  Sched-
uled  Tribe,  under article 19 (5).  The Court is  thus  en-
joined  to  inquire whether the  restrictions   imposed   on
the  detained person are reasonable in the interests of  the
general  public.  Article 14 of the Constitution  gives  the
right to equality in these terms:
    "The State shall not deny to any person equality  before
the  law  or  the equal protection of the  laws  within  the
territory of India."
102
It  was argued that the words "within the  territory  of
India"  are unnecessary in that article because the  Parlia-
ment  is  supreme  to make laws operative  only  within  the
territory  of India.  Without those words also  the  article
will bear the same meaning. Similarly, it was urged that the
words  "territory  of India" in article 19 (1)  (d)  may  be
treated as superfluous, and preventive detention would  thus
be an abridgement of the right to move freely.  In my  opin-
ion,  this rule of construction itself is  faulty.   Because
certain  words may be considered superfluous (assuming  them
to  be. so in article 14 for the present discussion)  it  is
quite improper to assume that they are superfluous  wherever
found  in the rest of the Constitution. On the contrary,  in
my  opinion,  reading sub-clause (d) as  a whole  the  words
"territory of  India" are  very important. What is sought to
be protected by that sub-clause is the right to freedom   of
movement,  i.e., without restriction, throughout the  terri-
tory of India.  Read with their natural grammatical..  mean-
ing  the  sub-clause only means that  if   restrictions  are
sought  to be put upon movement of a citizen from  State  to
State or even within a State  such restrictions will have to
be tested  by the permissive limits prescribed in clause (5)
of  that  Article.  Sub-clause (d) has nothing  to  do  with
detention,  preventive or punitive. The   Constitution  men-
tions a right to freedom of movement throughout the territo-
ry  of  India, Every word of that clause must be  given  its
true  and  legitimate meaning and in the construction  of  a
Statute,  particularly  a Constitution, it is  improper.  to
omit  any  word which  has a reasonable and proper place  in
it or to  refrain from giving effect to its meaning.    This
position  is made quite clear when clause (5) is read  along
with this sub-clause. It permits the imposition of  reasona-
ble.  restrictions on the exercise of such right  either  in
the  interest of general public or the  protection   of  the
interest of any Scheduled Tribe. It is difficult to conceive
of  a  reasonable restriction necessary in the interests  of
the  general public for confining a person in a  cell.  Such
restriction  may  be appropriate to prevent  a  person  from
going from one Province to another or
103
one  area  to  another, having regard  to  local  conditions
prevailing  in particular areas.  The point however is  made
abundantly  clear by the alternative, viz., for the  protec-
tion  of the interests of any Scheduled Tribe. What  protec-
tion  of  the interests of a Scheduled  Tribe  requires  the
confinement  of a man in a cell ?  On the other  hand,  pre-
venting the movement of a person from one part of the terri-
tory  of  India to another and the  question  of  reasonable
restriction imposed to protect the interests of a  Scheduled
Tribe  is  clearly  intelligible and often  noticed  in  the
course  of  the administration of  the  country.   Scheduled
Tribes  have certain rights, privileges and  also  disabili-
ties.  They have their own civilization, customs and mode of
life and prevention of contact with persons or groups with a
particular Scheduled Tribe  may be   considered  undesirable
during a certain time or in certain conditions.  The  legis-
lative  history  of India shows that Scheduled  Tribes  have
been  given  a  separate place on  these  grounds.   Reading
article   19 as a whole, therefore, it seems to me  that  it
has no application to a legislation dealing with  preventive
or punitive detention as its direct object.  I may point out
that  the  acceptance of the petitioner's  argument  on  the
interpretation of this clause will result in the Court being
called  upon  to decide upon the reasonableness  of  several
provisions of the Indian Penal Code and several other  penal
legislations  as  abridging this right.  Even  under  clause
(5), the Court is permitted to apply the test of reasonable-
ness  of the restrictions or limits not generally, but  only
to the extent they are either in the interests of the gener-
al public, e.g., in case of an epidemic, riot, etc., or  for
the protection of the interests of any  Scheduled Tribe.  In
my  opinion, this is not the intention of the  Constitution.
Therefore  the  contention urged in respect  of  article  19
fails.
    It  was argued that article 19 and article 21 should  be
read  together as implementing each other. Article  19  gave
substantive  rights to citizens while article 21  prescribed
that  no  person can be deprived of his  life  and  personal
liberty except by procedure
104
established  by  law.  Even so, on a  true  construction  of
article 19, it seems to me that both preventive and punitive
detention are outside the scope of article 19.
    In  order to appreciate the true scope of article 19  it
is useful to read it by itself and then to  consider how far
the other articles in Part HI affect or control its meaning.
It  is  the  first  article  under  the  caption  "Right  to
Freedom  ."  It gives the rights mentioned in 19 (1) (a)  to
(g)  to all citizens of India.  These rights read  by  them-
selves  and apart from the controls found in clauses (2)  to
(6)  of  the  same article, specify  the  different  general
rights  which a free citizen  in a democratic country  ordi-
narily has.  Having specified those rights, each of them  is
considered  separately from the point of view of  a  similar
right  in  the  other citizens, and also after  taking  into
consideration  the  principle that individual  liberty  must
give  way, to the extent it is necessary, when the  good  or
safety   of   the people generally is  concerned.  Thus  the
right  to  freedom of speech and expression is given by   19
(1) (a). But clause (2)  provides that such right shall  not
prevent  the  operation  of a law which  relates  to  libel,
slander,  defamation, contempt of Court or any matter  which
offends against decency or morality or which undermines  the
security  of, or tends to overthrow, the State.  Clause  (2)
thus  only emphasizes that while the individual citizen  has
a free  right of  speech or expression, he cannot be permit-
ted  to use the same to the detriment of a similar right  in
another citizen or to the detriment of the State.  Thus, all
laws of libel, slander, contempt of Court or laws in respect
of  matters  which offend against decency  or  morality  are
reaffirmed to be operative in spite of this individual right
of  the citizen to freedom of speech and expression.   Simi-
larly;  that  right is also subject to  laws  which  prevent
undermining the security of the State or against  activities
which  tend  to overthrow the State. A similar  analysis  of
clauses  f3) and (4) shows similar restrictions  imposed  on
similar  grounds.  In the same way clause (5)  also  permits
reasonable  restrictions  in the exercise of  the  right  to
freedom  of movement throughout the territory of India,  the
right to reside and settle in any part of the
105
territory of India or the right to acquire, hold and dispose
of  property, being imposed by law provided such  reasonable
restrictions on the exercise of such right are in the inter-
est  of the general' public.  The Constitution further  pro-
vides  by the same clause that similar  reasonable  restric-
tions  could be put on the exercise of those rights for  the
protection  of the interest of a Scheduled Tribe.   This  is
obviously  to prevent an argument being advanced that  while
such  restriction  could be put in the interest  of  general
public, the  Constitution  did not provide  for the  imposi-
tion  of  such  restriction to protect the  interests  of  a
smaller group of people only. Reading article 19 in that way
as a whole the only concept appears to be that the specified
rights  of  a free citizen arc thus controlled by  what  the
framers of the Constitution thought were necessary  restric-
tions in the interest of the rest of the citizens.
Reading article 19 in that way it appears to me that the
concept of the right to move freely throughout  the territo-
ry of India is an entirely  different concept from the right
to "personal liberty" contemplated by  article 21.  "Person-
al  liberty"  covers many more rights in one sense and has a
restricted  meaning in another sense.  For  instance,  while
the right to move or reside may be covered by the expression
,'personal  liberty"  the right to freedom of  speech  (men-
tioned in article 19 (1) (a)) or the right to acquire,  hold
or  dispose of property (mentioned in 19 (1) (f)) cannot  be
considered  a  part of the personal liberty  of  a  citizen.
They  form part of the liberty of a citizen but the  limita-
tion imposed by the word "personal"leads me to believe  that
those  rights  are not covered by  the  expression  personal
liberty.   So read there is no conflict between articles  19
and 21. The contents and subject matters of articles  19 and
21  are thus not the same and they proceed to deal with  the
rights  covered  by  their respective  words  from   totally
different  angles.  As already mentioned in respect of  each
of  the  rights specified in sub-clauses of article  19  (1)
specific  limitations in respect of each is provided,  while
the expression "personal
106
liberty" in article 21 is generally controlled by the gener-
al expression "procedure established by law." The  Constitu-
tion,   in   article  19,  and  also  in other  articles  in
Part III, thus attempts to strike a balance between individ-
ual  liberty  and the general interest of the  society.  The
restraints  provided by the Constitution on the  legislative
powers or the executive authority of the State thus  operate
as guarantees of life and personal liberty of the  individu-
als.
    Deprivation  (total  loss) of  personal  liberty,  which
inter alia includes the right to eat or sleep when one likes
or to work or not to work as and when one pleases and sever-
al  such  rights sought to be protected  by  the  expression
"personal  liberty" in article 21, is quite  different  from
restriction  (which is only a partial control) of the  right
to  move  freely  (which is relatively a minor  right  of  a
citizen) as safeguarded by article 19 (1) (d).   Deprivation
of personal liberty has not the same meaning as  restriction
of free  movement in the territory of  India.   This is made
clear when the provisions of the Criminal Procedure Code  in
Chapter VIII relating to security of peace or maintenance of
public  order  are read.  Therefore article  19  (5)  cannot
apply to a  substantive law  depriving a citizen of personal
liberty.  I am unable to accept the contention that the word
"deprivation"  includes within its scope "restriction"  when
interpreting  article 21.  Article 22 envisages the  law  of
preventive   detention.   So  does article  9.46  read  with
Schedule  Seven,  List I, Entry 9, and List  III,  Entry  3.
Therefore,  when  the subject of preventive   detention   is
specifically   dealt   with in the  Chapter  on  Fundamental
Rights I do not think it is proper  to  consider  a legisla-
tion ' permitting preventive detention as in conflict   with
the   rights  mentioned in article 19 (1).  Article  19  (1)
does  not  purport  to cover all aspects of  liberty  or  of
personal  liberty.  In that article only certain  phases  of
liberty are dealt with.  "Personal  liberty" would primarily
mean  liberty of the physical body.  The rights given  under
article 19 (1) do not directly come under that  description.
They are rights which accompany the freedom  or  liberty  of
the person.   By their very
107
nature  they are freedoms of a person assumed to be in  full
possession  of  his  personal  liberty.  If article  19   is
considered   to    be    the    only  article   safeguarding
personal   liberty   several well-recognised rights, as  for
instance,  the  right to eat or drink, the  right  to  work,
play, swim and numerous other rights and activities and even
the  right to life will not be deemed  protected  under  the
Constitution.  I  do not think that is  the  intention.   It
seems to me improper to read article 19 as dealing with  the
same  subject  as article 21.  Article 19 gives  the  rights
specified therein only to the citizens of India while  arti-
cle  21 is applicable to all persons.  The word  citizen  is
expressly  defined  in the Constitution to indicate  only  a
certain section of the inhabitants of India.  Moreover,  the
protection  given by article  21 is very general.  It is  of
"law"--whatever that expression is interpreted to mean.  The
legislative  restrictions  on the law-making powers  of  the
legislature are not here prescribed in detail as in the case
of the rights specified in article 19. In my opinion  there-
fore article should be read as a separate complete article.
    Article  21 which is also in Part III under the  caption
"Right to Freedom" runs as follows :-
    "No  person  shall be deprived of his life  or  personal
liberty  except   according  to   procedure  established  by
law."
    This article has been strongly relied upon by the  peti-
tioner in support of his contention that the impugned Act is
ultra vires the Parliament as it abridges the right given by
this   article  to every person.  It was argued  that  under
the Constitution of the United States of America the  corre-
sponding  provision is found in the 5th and 14th  Amendments
where the provision,  inter alia,  is "that no person  shall
be deprived of his life or liberty or property except by due
process  of law."  It was contended for the petitioner  that
the  Indian Constitution gives the same protection to  every
person  in  India, except that in the  'United  States  "due
process  of law" has been .construed by its  Supreme   Court
to  cover both
108
substantive  and  procedural law, while in  India  only  the
protection of procedural law is guaranteed.  It was contend-
ed that the omission of the word "due" made no difference to
the  interpretation  of the words in article  21.  The  word
"established"' was not equivalent to "prescribed".  It had a
wider  meaning.   The word "law" did not  mean  enacted  law
because that will be no 'legislative protection at all.   If
so construed, any Act passed by the Parliament or the  State
Legislature,  which  was otherwise  within  its  legislative
power,   can  destroy or abridge this right.   On  the  same
line of reasoning, it was argued that if that was the inten-
tion  there was no necessity to put this as   a  fundamental
right  in  Part III at all. As to the meaning  of  the  word
"law" it was  argued  that  it  meant principles of  natural
justice.    It  meant  "jus",  i.e.,   law in  the  abstract
sense of the principles of natural justice, as mentioned  in
standard works of Jurisprudence, and not "lex", i.e., enact-
ed law.   Against the contention that such construction will
leave the meaning vague, it was argued that four  principles
of  natural  justice recognised in all  civilized  countries
were  covered,  in any event, by the word "law".  They  are:
(1) An objective test, i.e., a certain, definite and  ascer-
tainable  rule of human conduct for the violation  of  which
one  can  be detained;  (2)  Notice of the grounds  of  such
detention; (3) An impartial tribunal, administrative,  judi-
cial or advisory, to decide whether the detention is  justi-
fied;  and  (4) Orderly course of  procedure,  including  an
opportunity  to  be  heard orally (not merely  by  making  a
written  representation) with a right to lead  evidence  and
call witnesses.
    In  my opinion, this line of approach is not proper  and
indeed is misleading.  As regards the American  Constitution
its  general  structure is noticed in these  words  in  "The
Government  of the United States" by Munro (5th Edition)  at
page  53:  "The architects of 1787 built only the  basement.
Their descendants have kept adding walls and windows,  wings
and gables, pillars and porches to make a rambling structure
which is not yet finished.   Or, to change the metaphor,  it
has a fabric which, to use the words of
109
James  Russell Lowell, is still being 'woven on the  roaring
loom  of  time'.  That is what the framers of  the  original
Constitution intended it to be.  Never was it in their  mind
to work out a final scheme for the government of the country
and  stereotype it for all time. They sought merely to  pro-
vide  a starting point."  The same aspect is  emphasized  in
Professor  Willis's book on Constitutional Law and  Cooley's
Constitutional Limitations.    In contrast  to  the American
Constitution,  the  Indian Constitution is a  very  detailed
one.  The Constitution itself provides in minute details the
legislative powers of the Parliament and the State  Legisla-
tures.    The same feature is noticeable in the case of  the
judiciary,  finance,  trade, commerce and services.   It  is
thus quite detailed and the whole of it has to be read  with
the  same sanctity, without giving undue weight to Part  III
or article 246, except to the extent one is legitimately and
clearly limited by the other.
   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
U.S A. Constitution  the word "liberty"  is used simpliciter
while in India it is restricted to personal liberty.  (2) In
U.S.A. Constitution the same protection is given to  proper-
ty,  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.
   The  whole argument of the petitioner is rounded  on  the
meaning  of the word "law" given to it by the Supreme  Court
of America.  It seems unnecessary to embark on a  discussion
of  the powers and jurisdiction of the Supreme Court of  the
'U.S.A. and how they came to enlarge or abridge the  meaning
of  law  in the expression "due process  of  law".   Without
going  into  details, I think there is no  justification  to
adopt  the meaning of the word "law" as interpreted  by  the
Supreme Court of U.S.A. in the expression "due
110
process  of  law" merely because the word "law" is  used  in
article  21.  The discussion of the meaning of "due  process
of  law" found in Willis on Constitutional Law and  in  Coo-
ley's Constitutional Limitations shows the diverse  meanings
given  to that expression at different times and under  dif-
ferent   circumstances  by the Supreme Court of  U.S.A.,  so
much so that the conclusion reached by these authors is that
the  expression. means reasonable law according to the  view
of  the  majority of the judges of the Supreme  Court  at  a
particular  time  holding office.   It also  shows  how  the
meaning of the expression was widened or abridged in certain
decades.  Moreover, to control the meaning so given to  that
expression  from time to time the doctrine of police  powers
was brought into  play. That doctrine, shortly put, is  that
legislation meant for the good of the people generally,  and
in  which the individual has to surrender his freedom  to  a
certain  extent because it is for the benefit of the  people
at large, has not to be tested by the touchstone of the "due
process of law" formula.
    Our  attention was drawn to the  debates and  report  of
the  drafting  committee of the    Constituent  Assembly  in
respect  of  the wording of this clause. The report  may  be
read not to control the  meaning of the article, but may  be
seen  in case of    ambiguity. In The Municipal  Council  of
Sydney v. The Commonwealth(1), it was thought that individu-
al  opinion  of members of the Convention expressed  in  the
debate  cannot be referred to for the purpose of  construing
the Constitution.  The same opinion was expressed in  United
States  v.  Wong Kim Ark(2). The result appears to  be  that
while it is not proper to take into consideration the  indi-
vidual  opinions of Members of  Parliament or Convention  to
construe the meaning of the particular clause, when a  ques-
tion is raised whether a certain phrase or expression was up
for consideration at all or not, a reference to the  debates
may  be' permitted.  In the present case  the  debates  were
referred to to show that the expression "due process of law"
was known to exist in the American Constitution
(1)  (1904) 1 Com. L.R. 208.              (2) (169) U.S  649
at 699.
111
and  after a discussion was not adopted by  the  Constituent
Assembly  in our Constitution. In Administrator  General  of
Bengal v. Premlal Mullick(1), a reference to the proceedings
of the Legislature which resulted in the passing of the  Act
was  not considered legitimate aid in the construction of  a
particular  section.  The same reasons were held  as  cogent
for  excluding a reference to such debates in construing  an
Indian  Statute.  Resort may be had to these sources   with-
great  caution  and only when latent ambiguities are  to  be
resolved.   See Craies' Statute Law (4th Edition) page  122,
Maxwell on  Interpretation of Statutes (9th Edition)pp.  28-
29 and Crawford on Statutory Construction  (1940 Edition) p.
379,  article  214. A perusal of the report of the  drafting
committee  to  which our attention was drawn  shows  clearly
that  the Constituent  Assembly  had before it the  American
article  and  the expression "due process of law"  but  they
deliberately dropped the use of that    expression from  our
Constitution.
     No  extrinsic aid is needed to interpret   the words  of
article 21, which in my opinion, are not  ambiguous.Normally
read,   and without  thinking of  other Constitutions,   the
expression    "procedure   established  by  law"  must  mean
procedure  prescribed  by the law of the  State.    If   the
Indian  Constitution  wanted  to  preserve to  every  person
the protection given by the due process clause of the Ameri-
can  Constitution there was nothing to prevent the  Assembly
from  adopting  the phrase, or if they wanted to  limit  the
same  to procedure only, to adopt that expression with  only
the  word  "procedural"  prefixed to  "law."   However,  the
correct question is what is the right given by article 21  ?
The  only right is that no person shall be deprived  of  his
life or liberty except according to procedure established by
law. One may like that right to cover a larger area, but  to
give  such a right is not the function of the Court;  it  is
the function of the Constitution. To read the word "law"  as
meaning rules of natural justice will land one in
  (1) (1895)L.R. 221. A. 107. 15
         15
112
difficulties  because the rules of natural justice,  as  re-
gards  procedure, are nowhere defined and in my opinion  the
Constitution cannot be read as laying down a vague standard.
This  is  particularly  so when in omitting  to  adopt  "due
process  of  law"  it was  considered  that  the  expression
"procedure  established by law" made the standard  specific.
It  can not be specific except by reading the expression  as
meaning  procedure prescribed by the legislature.  The  word
"law"  as used in this Part has different shades of  meaning
but  in no other article it appears to bear  the  indefinite
meaning of natural justice.  If so, there appears no  reason