dedol-hf/india-case-legal-rag huggingface dataset:
these provisions the high purpose and spirit of the Preamble
as well as the constitutional significance of a  Declaration
of Fundamental Rights should be borne in mind.  This, howev-
er, is not to say that the language of the provisions should
be  stretched  to square with this  or  that  constitutional
theory  in disregard of the cardinal rule of  interpretation
of any enactment, constitutional or other, that its  spirit,
no  less than its intendment should be  collected  primarily
from the natural meaning of the words used.
    Giving  full effect to these principles, however,  I  am
unable to agree that the term "law" in article 21 means  the
immutable  and  universal  principles  of  natural  justice.
"Procedure  established by law" must be taken to refer to  a
procedure which has a statutory origin, for no procedure  is
known or can be said to have been established by such  vague
and  uncertain  concepts  as "the  immutable  and  universal
principles  of  natural justice."  In my opinion,  "law"  in
article 21 means "positive or State-made law."
    No  doubt,  the American Judges have adopted  the  other
connotation  in  their  interpretation of  the  due  process
clause in the Fifth and Fourteenth Amendments of the  Ameri-
can  Constitution  (" Nor shall any person  be  deprived  of
life,  liberty  or property without due process of  law  ").
But that clause has an evolutionary history behind it.   The
phrase  has been traced back to 28 Edw. III Ch. 3, and  Coke
in  his Institutes identified the term with  the  expression
"the law of the land" in the Great Charter of John.  Even in
England where the  legislative omnipotence of Parliament  is
now  firmly  established,  Coke understood  these  terms  as
implying an inherent limitation on all legislation,and ruled
in  Dr. Bonham's Case (1) that "the common law will  control
Acts of Parliament and sometimes adjudge them to be  utterly
void when they are against common right and reason."  Though
this  doctrine  was later discarded in England as  being  "a
warning
(1) 8 Rep. 118 (a).
26
200
rather  than an authority to be followed" [per Willes J.  in
Lee  v.  Dude  and Torrington Ry. (1)] it  gained  ground  m
America,  at first as a weapon in the hands of  the  Revolu-
tionists  with which to resist the laws of  Parliament,  and
later as an instrument in the hands of the Judges for estab-
lishing  the supremacy of the judiciary [see Calder v.  Bull
("')].   In the latter half of the 19th century,  this  doc-
trine of a transcendental common law or natural justice  was
absorbed  in the connotation of the phrase "due  process  of
law"  occurring in the Fifth and Fourteenth Amendments.   By
laying emphasis on the word" due," interpreting "law" as the
fundamental  principles  of natural justice and  giving  the
words  "liberty"  and "property" their widest  meaning,  the
Judges  have  made  the due process clause  into  a  general
restriction  on all legislative power. And when  that  power
was  threatened  with  prostration by the  excesses  of  due
process, the equally vague and expansive doctrine of "police
power,"  i.e., the power of Government to  regulate  private
rights  in public interest, was evolved to  counteract  such
excesses.  All this has been criticised as introducing great
uncertainty in the state of the law in that country, for  no
one  could  be sure how due process of law  would  affect  a
particular  enactment.  A century after the phrase had  been
the  subject  of judicial interpretation one  learned  Judge
observed in 1877 that it was incapable of precise definition
and  that  its intent and application could only  be  ascer-
tained  by "the gradual process of inclusion and  exclusion"
[Davidson  v.  New  Orleans (3)]and, as  recently  as  1948,
another  Judge referred to the difficulty of  "giving  defi-
niteness  to  the  vague contours of due  process"  and  "of
spinning  judgment  upon State action out of  that  gossamer
concept:" Haley v. State of Ohio (4).
     It  is not a matter for surprise, therefore,  that  the
Drafting Committee appointed by the Constituent Assembly  of
India recommended the substitution of the expression "except
according to procedure
(1)  (1871) L.R. 6 C.P. 576, 582.            (3) 96  U.S.
97.
   (1798) 3 Dallas 386.                        (4) 332  U.S.
596.
201
established  by law" taken from the  Japanese  Constitution,
1946,  for  the  words "without due process  of  law"  which
occurred  in  the  original draft, "as the  former  is  more
specific."   In their Report the Committee added  that  they
have  "attempted to make these rights  (fundamental  rights)
and   the.  limitations to which they  must  necessarily  be
subject  as definite as possible, since the Courts may  have
to pronounce upon them" (para. 5).  In the face of all these
considerations,  it  is difficult to accept  the  suggestion
that "law" in. article 21 stands for the jus naturale of the
civil  law,  and  that the phrase  "according  to  procedure
established  by law" is equivalent to due process of law  in
its  procedural  aspect, for that would have the  effect  of
introducing into our Constitution those "subtle and  elusive
criteria" implied in that phrase which it was the deliberate
purpose of the framers of our Constitution to avoid.
    On  the other hand, the interpretation suggested by  the
Attorney-General  on behalf of the intervener that  the  ex-
pression means nothing more than procedure prescribed by any
law  made by a competent legislature is hardly more  accept-
able.  "Established" according to him, means prescribed, and
if Parliament or the Legislature of a State enacted a proce-
dure,  however novel and ineffective for affording  the  ac-
cused  person  a fair opportunity of defending  himself,  it
would  be sufficient for depriving a person of his  life  or
personal liberty.  He submitted that the Constituent  Assem-
bly  definitely rejected the doctrine of judicial  supremacy
When  it rejected the phrase "due process of law"  and  made
the  legislative will unchallengeable, provided  only  "some
procedure"  was laid down.  The Indian Constitution   having
thus   preferred   the  English  doctrine  of  Parliamentary
supremacy, the phrase "procedure established by law" must be
construed in accordance with the English view of due process
of  law, that is to say, any procedure which Parliament  may
choose  to  prescribe.   Learned counsel  drew attention  to
the speeches made by several members of the Assembly on  the
floor  of the House for explaining, as he put it, the  "his-
torical background."  A speech
202
made in the course of the debate on a bill could at best  be
indicative  of the subjective intent of the speaker, but  it
could  not reflect the inarticulate mental  processes  lying
behind the majority vote which carried the bill.  Nor is  it
reasonable to assume that the minds of all those legislators
were in accord.  The Court could only search for the  objec-
tive  intent of the legislature primarily in the words  used
in  the  enactment,  aided by such  historical  material  as
reports of statutory committees, preambles etc.  I attach no
importance,  therefore, to the speeches made by some of  the
members  of  the Constituent Assembly in the course  of  the
debate on article 15 (now article 21).
    The main difficulty I feel in accepting the construction
suggested  by  the Attorney-General is  that  it  completely
stultifies  article 13 (2) and, indeed, the very  conception
of  a fundamental right.  It is of the essence of that  con-
ception  that it is protected by the fundamental law of  the
Constitution  against infringement by ordinary  legislation.
It  is not correct to say that the Constitution has  adopted
the  doctrine  of Parliamentary supremacy.  So far,  at  any
rate, as Part III is concerned, the Constitution, as I  have
already  observed, has accepted the American view of  funda-
mental  rights.  The provisions of articles 13 and  32  make
this  reasonably clear.  Could it then have been the  inten-
tion of the framers of the Constitution that the most impor-
tant fundamental rights to life and personal liberty  should
be  at  the mercy of legislative majorities as,  in  effect,
they  would  be if "established" were to mean  merely  "pre-
scribed  ?"  In other words, as an American Judge said in  a
similar  context,  does the  constitutional  prohibition  in
article  13 (2) amount to no more than "You shall  not  take
away  life or personal freedom unless you choose to take  it
away," which is mere verbiage.  It is no sound answer to say
that, if article 21 conferred no right immune from  legisla-
tive  invasion, there would be no question  of  contravening
article 13 (2).  The argument seems, to my mind, to beg  the
question,  for it assumes that the article affords  no  such
immunity.  It is said that article 21 affords no  protection
against competent legislative action in
203
the  field  of  substantive criminal law, for  there  is  no
provision for judicial review, on the ground of  reasonable-
ness  or  otherwise,  of such laws, as in the  case  of  the
rights enumerated in article 19.  Even assuming it to be  so
the construction of the learned Attorney. General would have
the  effect  of rendering wholly  ineffective  and  illusory
even  the  procedural protection which the article  was  un-
doubtedly  designed to afford. It was argued that  "law"  in
article  31 which provides that no person shall be  deprived
of his property "save by authority of law" must mean enacted
law  and that if a person's property could be taken away  by
legislative  action, his right to life and personal  liberty
need  not enjoy any greater immunity.  The analogy  is  mis-
leading.   Clause (2) of article 31 provides for payment  of
compensation and that right is justiciable except in the two
cases mentioned in clauses (4) and (6) which are of a  tran-
sitory character.  The constitutional safeguard of the right
to property in the said article is, therefore, not so  illu-
sory  or ineffective as clause (1) by itself might  make  it
appear, even assuming that" law" there means ordinary legis-
lation.
    Much  reliance was placed on the Irish case The King  v.
The Military Governor of Hare Park Camp (1) where the  Court
held that the term "law" in article 6 of the Irish Constitu-
tion of 1922 which provides that "the liberty of the  person
is inviolable and no person shall be deprived of his liberty
except  in accordance with law" meant a law enacted  by  the
Parliament, and that therefore the Public Safety Act of 1924
did not contravene the Constitution.  The Court followed The
King  v. Halliday(2) where the House of Lords by a  majority
held  that  the Defence of the  Realm  (Consolidation)  Act,
1914, and the Regulations framed thereunder did not infringe
upon  the  Habeas Corpus Acts and the Magna Carta  "for  the
simple reason that the Act and the Orders become part of the
law of the land."  But that was  because,  as  Lord  Dunedin
pointed  out "the British Constitution has entrusted to  the
two Houses of parliament subject to the assent
(1)  [19241  2 I.R. 104.                   (2)  [1917]  A.C.
260.
204
of  the King, an absolute power untrammelled by any  written
instrument  obedience  to  which may be  compelled  by  some
judicial  body," whereas the Irish  Constitution  restricted
the  legislative powers of the Irish Parliament by a  formal
declaration  of funda mental rights and by providing  for  a
judicial  review  of  legislation in  contravention  of  the
Constitution  (article  65).  This radical  distinction  was
overlooked.
    The Attorney-General further submitted that, even on his
interpretation,  article  21 would be a  protection  against
violation of the rights by the executive and by individuals,
an d that would be sufficient justification for the  article
ranking as a fundamental safeguard. There is no substance in
the  suggestion.  As pointed out in Eshugbayi Eleko v.  Gov-
ernment  of Nigeria (Officer Administering) (1), the  execu-
tive could only act in pursuance of the powers given by  law
and  no  constitutional protection against  such  action  is
really  needed.  Even in monarchical  Britain  the  struggle
between  prerogative and law has long since ended in  favour
of  the latter. "In accordance with  British  jurisprudence"
said  Lord Atkin in the case cited above, "no member of  the
executive  can interfere with the liberty or property  of  a
British subject except on the condition that he can  support
the  legality of his action before a Court of justice."   As
for protection against individuals, it is a misconception to
think  that constitutional safeguards are  directed  against
individuals.  They are as a rule directed against the  State
and  its organs. Protection against violation of the  rights
by  individuals must be sought in the ordinary law.   It  is
therefore difficult to accept the suggestion that article 21
was designed to afford protection only against infringements
by  the  executive or individuals.  On  the  other  hand,the
insertion  of  a declaration of Fundamental  Rights  in  the
forefront  of  the  Constitution, coupled  with  an  express
prohibition  against  legislative  interference  with  these
rights  (article 13) and the provision of  a  constitutional
sanction for the enforcement of such prohibition by means of
a judicial review (article 32) is, in my
(1) [1931] A.C. 662.
205
opinion,  a clear and emphatic indication that these  rights
are to be paramount to ordinary State-made laws.
   After  giving  the  matter my most  careful  and  anxious
consideration, I have come to the conclusion that there  are
only  two possible solutions of the problem.  In  the  first
place,  a  satisfactory via media between  the  two  extreme
positions  contended  for  on either side may  be  found  by
stressing the word "established"  which implies some  degree
of  firmness,  permanence and general acceptance,  while  it
does  not exclude origination by statute. "Procedure  estab-
lished  by  law" may well be taken to mean  what  the  Privy
Council  referred to in King Emperor v. Benoari  Lal  Sharma
(1)  as "the ordinary  and well-established criminal  proce-
dure," that is to say, those settled usages and normal modes
of  proceeding  sanctioned by the  Criminal  Procedure  Code
which is the general law of criminal procedure in the  coun-
try.   Their  Lordships were referring  to  the  distinction
between trial by special Courts provided by an Ordinance  of
the Governor-General and trial by ordinary Courts under  the
Criminal  Procedure  Code.  It can be no objection  to  this
view  that the Code prescribes no single and uniform  proce-
dure for all types of cases but provides varying  procedures
for  different  classes of cases. Certain  basic  principles
emerge  as the constant factors common to all  those  proce-
dures,  and they form the core of the procedure  established
by  law.  I  realise that even on this view,  the  life  and
liberty  of the individual will not be immune from  legisla-
tive  interference, for a competent legislature  may  change
the  procedure  so as to whittle down the protection  if  so
minded.  But, in the view I have indicated, it must not be a
change  ad  hoc for any special purpose or occasion,  but  a
change in the general law of procedure embodied in the Code.
So  long  as such a change is not effected,  the  protection
under article 21 would be available.  The different measures
of constitutional protection which the fundamental right  to
life  and  personal liberty will enjoy under article  21  as
interpreted in the three ways
(1) [1945] F.C.R. 161,175.
206
referred  to  above will perhaps be best  illustrated  by  a
concrete example.  Suppose that article 22 (1) was not there
and Parliament passed an Act, as a temporary measure, taking
away  in certain cases the right of an accused person to  be
defended by a legal practitioner. According to the petition-
er's learned counsel the Act would be void as being contrary
to  the immutable principles of natural justice embodied  in
article 21, whereas on the construction contended for by the
Attorney-General,  the Act would be perfectly valid,  while,
on  the view I have indicated above, the Act would  be  bad,
but if the denial of such right of defence is made a  normal
feature  of the ordinary law of criminal procedure by  abro-
gating  section  340  (1)of the Code, article  21  would  be
powerless  to  protect against  such   legislative   action.
But   in a free democratic republic such  a drastic   change
in the normal law of procedure, though theoretically  possi-
ble,  would be difficult to bring about, and that  practical
difficulty  will be the measure of the  protection  afforded
by article 21.
    It was said that the safeguards provided in clauses  (1)
and  (2)  of  article 22 are more or less  covered  by   the
provisions   of the  Criminal   Procedure' Code,  and   this
overlapping  would  have  been avoided if article  21   were
intended to bear the construction as indicated above.    The
argument  overlooks that, while the provisions of  the  Code
would  be  liable  to alteration  by  competent  legislative
action, the safeguards in clauses (1)and (2) of article  22,
being constitutional, could not be similarly dealt with: and
this sufficiently explains why those safeguards find a place
in the Constitution.
     The  only alternative to the construction I have  indi-
cated  above,  if a constitutional transgression  is  to  be
avoided,  would  be to interpret the reference to  "law"  as
implying  a  constitutional amendment pro tanto, for  it  is
only a law enacted by the procedure provided for such amend-
ment (article 368) that could modify or override a fundamen-
tal right without contravening article 13 (2).
207
    The  question next arises as to how far  the  protection
under article 21, such as it has been found to be, is avail-
able  to  persons under preventive  detention.  The  learned
Attorney-General contended that article 21 did not apply  to
preventive  detention at all, as article 22 clauses  (4)  to
(7)  formed a complete code of constitutional safeguards  in
respect  of  preventive detention,and, provided  only  these
provisions are conformed to, the validity of any law  relat-
ing  to preventive detention could not be challenged.  I  am
unable  to agree with this view. The language of article  21
is  perfectly  general and covers  deprivation  of  personal
liberty  or incarceration, both for punitive and  preventive
reasons.  If it was really the intention of the  framers  of
the Constitution to exclude the application of article 21 to
cases  of  preventive  detention, nothing  would  have  been
easier  than to add a reference to article 21 in clause  (3)
of article 22 which provides that clauses (1) and (2) of the
latter  shall  not apply to any person who  is  arrested  or
detained  under any law providing for  preventive  detention
Nor is there anything in the language of clauses (4) to  (7)
of  article  22 leading necessarily to  the  inference  that
article  21  is inapplicable to preventive detention.  These
clauses deal only with certain aspects of preventive  deten-
tion  such as the duration of such detention, the  constitu-
tion of an advisory board for reviewing the order of  deten-
tion  in certain cases, the communication of the grounds  of
detention  to  the person detained and the provision  of  an
opportunity  to him of making a representation  against  the
order.  It  cannot  be said that these  provisions  form  an
exhaustive code dealing with all matters relating to preven-
tive detention and cover the entire area of protection which
article 21, interpretedin the sense I have indicated  above,
would  afford to the person detained.  I am,  therefore,  of
opinion  that article 21 is applicable to preventive  deten-
tion as well.
I will  now proceed to examine whether the impugned  Act
or any of its provisions under which the petitioner has been
ordered  to be detained, takes away any of the  rights  con-
ferred  by  articles 21 and 22 or infringes  the  protection
afforded thereby.   The
208
outstanding  fact to be borne in mind in this connection  is
that  preventive detention has been given  a  constitutional
status.   This sinister-looking feature, so strangely out of
place  in a democratic constitution which  invests  personal
liberty with the sacrosanctity of a fundamental right and so
incompatible with the promises of its preamble is  doubtless
designed  to prevent an abuse of freedom by anti-sOcial  and
subversive elements which might imperil the national welfare
of  the infant Republic.  It is in this spirit that  clauses
(3)  to  (7) of article 22 should,  in my opinion,  be  con-
strued and harmonised as far as possible with article 21  so
as  not to diminish unnecessarily the  protection   afforded
for  the  legitimate exercise of personal liberty.   In  the
first  place,  as already stated, clause (3) of  article  22
excludes  a,  person detained under any  law  providing  for
preventive  detention  from the benefit  of  the  safeguards
provided  in clauses (1) and (2)  No doubt clause   (5)   of
the same article makes  some amends for the  deprivation  of
these  safeguards in that it provides for the  communication
to  the person detained the grounds on which the  order  has
been  made and for an opportunity being afforded to  him  of
making a representation against the order, but the important
right to consult and to be defended by a legal  practitioner
of  his choice is gone. Similarly, the  prohibition  against
detention in custody beyond a period of 24 hours without the
authority  of  a magistrate has also been taken away m cases
of  preventive detention.  It was not disputed that, to  the
extent to which the express provisions of clauses (4) to (7)
authorised  the abrogation or abridgement of the  safeguards
provided  under  other articles or  substitution  of   other
safeguards in a modified form, those express provisions must
rule.   Of the four essentials of the due process  on  which
Mr. Nambiar insisted,  (which also form part of the ordinary
and established procedure under the Criminal Procedure Code,
though  I cannot agree that they are immutable  and   beyond
legislative  change)     the requirements of notice  and  an
opportunity         to   establish  his innocence  must,  as
already stated,  be taken to have
209
been  provided  for by clause (5)of article 22.  As  for  an
ascertainable standard of conduct to which it is possible to
conform, article 22 makes no  specific provision in cases of
preventive detention, and if such a safeguard can be said to
be    implicit  in the procedure established by law  in  the
sense    explained above in preventive detention  cases,  it
could  no doubt be invoked.  This point will  be  considered
presently  in dealing with provisions of the  impugned  Act.
The only   other  essential requirement, and the most essen-
tial  of all, is an impartial tribunal capable of giving  an
unbiassed   verdict.  This, Mr. Nambiar submitted, was  left
unprovided for by article 22, the advisory board referred to
in clause (4)  (a) being, according to him, intended to deal
solely with the question of duration of the detention,  that
is  to  say, whether or not there was sufficient  cause  for
detaining  the person concerned for more than three  months,
and  not  with  judging whether   the  person  detained  was
innocent.  A tribunal which  could give  an unbiassed  judg-
ment  on that issue was an essential part of the  protection
afforded by article21 in whichever way it may be  interpret-
ed, and reference was made in this connection to the preven-
tive  provisions of the Criminal Procedure Code (Ch.  VIII).
The  impugned Act, not having provided for such  a  tribunal
contravened  article 21 and was therefore void.  It will  be
seen  that the whole of this argument is based on the  major
premise that the advisory board mentioned in clause (4)  (a)