dedol-hf/india-case-legal-rag huggingface dataset:
wholly  separate  and  unconnected entity. But,  as  I  have
already indicated, it will be enough for the purpose of this
case  if we forget all about personal liberty  and  remember
only  that detention is, as is self-evident and as has  been
pointed  out by Viscount Maugham and other  eminent  judges,
another  name for depriving a person of all his "liberty  of
movement."
    It was pointed out in the course of the arguments
156
that  preventive detention not only takes away the right  in
article 19 (1) (d) but also takes away all the other  rights
guaranteed  by  article 19 (1), except the  right  to  hold,
acquire  and dispose of property.  Where exactly this  argu-
ment  is intended to lead us to, I cannot fully  understand,
but  it  seems to me that it involves  an  obvious  fallacy,
because  it overlooks the difference in the modes  in  which
preventive  detention operates on the right referred  to  in
sub-clause (d) and other sub-clauses of article 19 (1).  The
difference  is that while preventive detention  operates  on
freedom  of movement directly and inevitably, its  operation
on  the other rights is indirect and consequential  and  is,
often  only notional.  One who is preventively  detained  is
straightaway  deprived of his right of movement as a  direct
result of his detention, but he loses the other rights  only
in  consequence of his losing freedom of movement.   Beside%
while freedom of movement is lost by him in all reality  and
substance, some of the other rights may not be lost until he
wishes to exercise them or is interested in exercising them.
A person who is detained may not be interested in freedom of
association  or may not pursue any  profession,  occupation,
trade  or business.  In such a case, the rights referred  to
are lost only in theory and not as a matter of substance.  I
wish  only  to add that when I said that I was not  able  to
understand the full force of the argument which I have tried
to  deal  with, what I had, in mind was that  if  preventive
detention  sweeps  away  or affects almost  all  the  rights
guaranteed  in  article. 19 (1), the  matter  deserves  very
serious  consideration and we cannot lightly lay  down  that
article 13 (2) does not come into operation.
    Being  fully  alive  to the fact that it  is  a  serious
matter to be asked to declare a law enacted by Parliament to
be unconstitutional, I have again and again asked myself the
question:   What  are we to put in the  scales  against  the
construction  which I am inclined to adopt and in favour  of
the  view that preventive detention does not take  away  the
freedom of movement guaranteed  in article 19 (1) (d)?   The
inevitable  answer has always been that while in one of  the
scales
157
we   have  plain  and  unambiguous  language,  the   opinion
eminent jurists, judicial dicta of high authority, constitu-
tional practice in the sense that no Constitution refers  to
any freedom of movement apart from personal liberty, and the
manner in which preventive detention has been treated in the
very  laws  on which our law on this subject is  based,  all
that  we can put in the opposite scale is a vague  and  ill-
rounded  apprehension that some fearful object such  as  the
revision  of  the Penal .Code is looming  obscurely  in  the
distant  horizon, the peculiar objection that the mere  men-
tion  of  the  scheduled tribes will alter  the  meaning  of
certain  plain words, the highly technical and  unreal  dis-
tinction between restriction and deprivation and the assump-
tion  not warranted by any express provision that  a  person
who  is  preventively  detained cannot claim  the  right  of
freedom of movement because he is not a free man and certain
other  things which, whether taken singly or  ,collectively,
are too unsubstantial to carry any weight. In these  circum-
stances,  I am strongly of the view that article  19  (1)(d)
guarantees  the right of freedom of movement in  its  widest
sense, that freedom of movement being the essence of person-
al liberty, the right guaranteed under the article is really
a right to personal liberty and that preventive detention is
a  deprivation  of that right.  I am also of the  view  that
even  on the interpretation suggested by the learned  Attor-
ney-General, preventive detention cannot but be held to be a
violation of the right conferred by article 19 ,(1) (d).  In
either  view, therefore, the law of preventive detention  is
subject  to  such limited judicial review  as  is  permitted
under article 19 (5).  The scope of the review is simply  to
see  whether  any particular law  imposes  any  unreasonable
restrictions.  Considering that the restrictions are imposed
on a most valuable right, there is nothing revolutionary  in
'the  legislature  trusting  the Supreme  Court  to  examine
whether an Act which infringes upon that right is within the
limits of reason.
    I  will now pass on to the consideration of article  21,
which runs as follows :-
    "No person shall be deprived of his life or personal
158
liberty except according to procedure established by law."
    Here again, our first step must be to arrive at a  clear
meaning  of the provision. The only words which  cause  some
difficulty  in  the proper construction of the  article  are
"procedure established by law."
    The  learned Attorney-General contended before  us  that
the word "law" which is used in article 21 means  State-made
law  or  law enacted by the State. On the other  hand,   the
learned counsel  for the petitioner strongly contended  that
the  expression "procedure established by law" is used in  a
much wider sense and approximates in meaning to the  expres-
sion  "due  process of law" as interpreted  by  the  Supreme
COurt  of America in the earliest times and, if that is  so,
it  means exactly what some of the American writers mean  to
convey by the expression "procedural due process."
    In  the course of the arguments, the  learned  Attorney-
General  referred us to the proceedings in  the  Constituent
Assembly  for  the purpose of showing that  the  article  as
originally drafted contained the words "without due  process
of  law" but these words were subsequently replaced  by  the
words  "except according to procedure established  by  law."
In my opinion, though the proceedings or discussions in  the
Assembly are not relevant for the purpose of construing  the
meaning  of the expressions used in article  21,  especially
when  they are plain and unambiguous,  they are relevant  to
show  that  the Assembly intended to avoid the  use  of  the
expression  "without due process of law."   That  expression
had  its roots in the expression "per legem terrae" (law  of
the  land)  used in Magna Charta in 1215.  In the  reign  of
Edward  III, 'however, the words "due process of  law"  were
used  in a statute guaranteeing that no person will  be  de-
prived  of his property or imprisoned or indicted or put  to
death  without being brought in to answer by due process  of
law  (28, Edward III, Ch. III).  The expression  was  after-
wards  adopted in the American Constitution and also in  the
Constitutions of some of the constituent States, though some
of the States preferred to use the
159
words "in due course of law" or "according to the law of the
land."   [See  Cooley on "Constitutional  Limitations,"  8th
Edn.  Vol.  II, pages 734-51.  In the  earliest  times,  the
American  Supreme  Court construed "due process of  law"  to
cover  matters of procedure only, but gradually the  meaning
of the expression was widened so as to cover substantive law
also, by laying emphasis on the word "due."  The  expression
was  used  in  such a wide sense that the  judges  found  it
difficult  to define it and in one of the cases it  was  ob-
served as follows :--
    "It would be difficult and perhaps impossible to give to
those words a definition, at once accurate, and broad enough
to  cover every case.  This difficulty and perhaps  impossi-
bility was referred to by Mr. Justice Miller in Davidson  v.
New  Orleans,  where the opinion was expressed  that  it  is
wiser  to  ascertain  their intent and  application  by  the
'gradual  process of judicial inclusion and  exclusion,'  as
the  cases  presented for decision shall require,  with  the
reasoning on which such decisions may be rounded:"  Missouri
Pacific Railway Co. v. Humes (1).
    It  seems  plain that the Constituent Assembly  did  not
adopt this expression on account of the very elastic meaning
given  to it, but preferred to use the words  "according  to
procedure  established by law" which occur in  the  Japanese
Constitution framed in 1946.
    It will not be out of place to state here in a few words
how  the  Japanese  Constitution came  into  existence.   It
appears  that  on the 11th October, 1945.  General  McArthur
directed  the Japanese Cabinet to initiate measures for  the
preparation  of  the  Japanese  Constitution,  but,  as   no
progress  was made, it was. decided in February, 1946,  that
the problem of constitutional reform should be taken over by
the Government Section of the Supreme Commander's  Headquar-
ters.  Subsequently the Chief of this Section ,and the staff
drafted the Constitution with the help of American constitu-
tional  lawyers  who were called to  assist  the  Government
Section in the task.  This Constitution, as a learned writer
has remarked, bore
(1)  115 U.S. 512 at page 513.
21
160
on  almost every page evidences of its  essentially  Western
origin,  and this characteristic was especially  evident  in
the  preamble  "particularly  reminiscent  of  the  American
Declaration of Independence, a preamble which,  it has  been
observed,   no  Japanese could possibly  have  conceived  or
written  and which few could even understand" [See  Ogg  and
Zink's "Modern Foreign Governments"].  One of the character-
istics of the  Constitution  which  undoubtedly  bespeaks of
direct American influence is to be found in a lengthy  chap-
ter, consisting of 31  articles, entitled "Rights and Duties
of the People," which provided for the first time an  effec-
tive  "Bill of Rights" for the Japanese people.   The  usual
safeguards  have  been provided there  against  apprehension
without  a warrant and against arrest or  detention  without
being  informed  of the charges or  without  adequate  cause
(articles 33 and 34).
    Now  there are two matters which deserve to  be  noticed
:--(1)   that the  Japanese  Constitution was framed  wholly
under  American influence; and (2) that at the time  it  was
framed  the  trend  of judicial opinion in  America  was  in
favour  of  confining  the meaning of  the  expression  "due
process  of  law" to what is expressed by  certain  American
writers by the somewhat quaint but useful expression "proce-
dural  due  process." That there was such a trend  would  be
clear  from the following passage which  I quote  from  Carl
Brent  Swisher's "The Growth of Constitutional Power in  the
United States" (page 107.):--
    "The  American history of its interpretation falls  into
three  periods.  During the first period,  covering  roughly
the first century of government under the Constitution,  due
process  was interpreted principally as a  restriction  upon
procedure--and largely the judicial procedure--by which  the
government  exercised its powers. During the second  period,
which,  again roughly speaking, extended through  1936,  due
process  was expanded to serve as a restriction  not  merely
upon  procedure but upon the substance of the activities  in
which the government might engage. During the third  period,
extending from 1936 to date, the use of due
161
process  as a substantive restriction has been largely  sus-
pended or abandoned, leaving it principally in its  original
status as a restriction upon procedure."
     In the circumstances mentioned, it seems permissible to
surmise  that the expression "procedure established by  law"
as used in the Japanese Constitution represented the current
trend  of  American  judicial opinion with  regard  to  "due
process of law," and, if that is so, the expression as  used
in our Constitution means all that the American writers have
read into the words "procedural due process."  But I do  not
wish to base any conclusions upon mere surmise and will  try
to examine the whole question on its merits.
     The  word "law" may be used in an abstract or  concrete
sense.   Sometimes it is preceded by an article such as  "a"
or    "the"    or  by   such   words    as    "any,"  "all,"
etc.,  and  sometimes it is used without  any  such  prefix.
But, generally, the word "law" has a wider meaning when used
in the abstract sense without being preceded by an  article.
The  question to be decided is whether the word "law"  means
nothing more than statute law.
     Now whatever may be the meaning of the expression  "due
process of law," the word "law" is common to that expression
as well as "procedure established by law" and though we  are
not  bound  to adopt the construction put on "law"  or  "due
process  of law" in America, yet since a number  of  eminent
American Judges have devoted much thought to the subject,  I
am  not  prepared to hold that we can derive  no  help  from
their opinions and we should completely ignore them.  I will
therefore  in the first instance set out certain  quotations
from  a few of the .decisions of the American Supreme  Court
construing  the  word "law" as used in the  expression  "due
process  of law," in so far as it bears on the  question  of
legal procedure.
     (1)   "Although  the legislature may  at  its  pleasure
provide new remedies or change old ones, the power is never-
theless  subject  to  the condition that  it  cannot  remove
certain ancient land-marks,  or take away certain  fundamen-
tal rights which have been always
162
recognized and observed in judicial procedures:" Bardwell v.
Collins (1).
    (2)'  'By the law of the land is most  clearly  intended
the  general law:  a law which  hears  before  it  condemns,
which  proceeds  upon inquiry and  renders  judgments  only-
after  trial.  The meaning is that every citizen shall  hold
his  life,  liberty and property, and immunities  under  the
protection  of  the  general rules  which  govern  society:"
Dartmouth College Case (2).
    (3) "Can it be doubted that due process of law signifies
a  right to be heard in one's defence ?  If the  legislative
department of the government were to enact a statute confer-
ring the right to condemn the citizen without any opportuni-
ty whatever of being heard, would it be pretended that  such
an  enactment would not be violative of the  Constitution  ?
If  this be true, as it undoubtedly is, how can it  be  said
that  the  judicial department. the source and  fountain  of
justice itself, has yet the authority to render lawful  that
which  if done under express legislative sanction  would  be
viola of the Constitution ? If such power obtains, then  the
judicial department of the government sitting to uphold  and
enforce the Constitution is the only one possessing a  power
to  disregard it.  If such authority exists then  in  conse-
quence  of their establishment, to compel obedience  to  law
and enforce justice, Courts possess the right to inflict the
very  wrongs which they were created to prevent:"  Hovey  v.
Elliott(3).
    (4)  "It is a rule as old as the law, and never more  to
be respected than now, that no one shall be personally bound
until he has had his say in Court, by which is meant,  until
he  has been duly cited to appear, and has been afforded  an
opportunity to be heard.  Judgment without such citation and
opportunity wants all the attributes of a judicial  determi-
nation;  it is judicial usurpation and oppression,  and  can
never  be  upheld  where justice  is  justly  administered:"
Gatpin v. Page(4).
    Thus,  in America, the word "law" does not  mean  merely
State-made  law  or law enacted by the State  and  does  not
exclude certain fundamental principles of
 (1)  44 Minn. 97; 9 L.R.A. 152.       (3)  167 U.S. 409  at
page 417.
 (2) 17 U.S. 4.                        (4) 85 U.S. 18.
163
justice  which inhere in every civilized system of  law  and
which  are  at the root of it.  The result of  the  numerous
decisions in America has been summed up by Professor  Willis
in  his  book on "Constitutional Law" at page  662,  in  the
statement  that the essentials of due process are:  (1)  no-
tice, (2) opportunity to be heard, (3)  an impartial  tribu-
nal, and (4) orderly course of procedure.  It is pointed out
by  the  learned  author that these  essentials  may  assume
different  forms in different circumstances, and so long  as
they are conceded in principle, the requirement of law  will
be  fulfilled.  For  example, a person  cannot  require  any
particular  form or method of hearing, but all that  he  can
require is a reasonable opportunity to be heard.  Similarly,
an  impartial tribunal does not necessarily mean a  judicial
tribunal in every case.  So far as 'orderly course of proce-
dure  is concerned, he explains that it does not  require  a
'Court  to strictly weigh the ,evidence but it does  require
it to examine the entire record to ascertain the issues,  to
discover  whether  there are facts not reported and  to  see
whether or not the law has been correctly applied to  facts.
The view expressed by other writers is practically the  same
as  that expressed by Professor Willis, though some of  them
do not expressly refer to the fourth element, viz.,  orderly
course  of procedure.  The real point however is that  these
four  elements  are  really different aspects  of  the  same
right, viz., the right to be heard before one is condemned.
    So far as this right is concerned, -judicial opinion  in
England  appears to be the same as that in America. In  Eng-
land,  it would shock one to be told that a man can  be  de-
prived  of  his  personal liberty without a  fair  trial  or
hearing.  Such a case can happen if the Parliament expressly
takes  away  the right in question in an  emergency  as  the
British Parliament did during// the last two world wars in a
limited  number of cases. I will refer here to a  few  cases
which  show  that the fundamental principle  that  a  person
whose right is affected must be heard has been observed  not
only  in     cases involving personal liberty but  also  'in
proceedings  affecting  other rights, even though  they  may
have
164
come  before  administrative  or  quasi-judicial  tribunals.
Cooper  v. The Wadsworth Board of Works (1)was a case  under
an Act which empowered the District Board to alter or demol-
ish  a house where the builder had neglected to give  notice
of his intention. seven days before proceeding to lay or dig
the foundation.  Acting upon this power, the Board  directed
the demolition of a building without notice to the  builder,
but  this was held to be illegal.  Byles 5. in dealing  with
the matter observed as follows :--
    "I  conceive they acted judicially, because they had  to
determine the offence, and they had to apportion the punish-
ment as well as the remedy. That being so, a long course  of
decisions,  beginning  with Dr. Bentley's case,  and  ending
with  some very recent cases, establish that although  there
are  no  positive  words in a  statute  requiring  that  the
party-shall be heard, yet the justice of the common law will
supply the omission of the legislature.  The judgment of Mr.
Justice  Fortescue,  in  Dr.  Bentley's  case,  is  somewhat
quaint, but it is very applicable, and has been the law from
that time to the present.  He says, "The. objection for want
of  notice  can never be got over. The laws of God  and  man
both  give the party an opportunity to make his defence,  if
he has any."
In the same case Erie C.J. observed :--
    "It  has been said that the principle that no man  shall
be deprived of his property without an opportunity of  being
heard,  is limited to a judicial proceeding......  I do  not
quite  agree with that;  ......the law, I  think,  has  been
applied  to many exercises of power which in  common  under-
standing would not be at all more a judicial proceeding than
would  be the act of the District Board in ordering a  house
to be pulled down."
The  observations  made  by Erie C.J.  were  quoted  and
applied  by Sir Robert Collier in Smith v. The'  Queen  (2),
and  the  observations  of Lord Campbell in  Regina  v.  The
Archbishop of Canterbury (3) were to the. same effect.
  (1) 14 C.B. (N.S.) 180.         (2) 3 A.C. 614.
                           (3)  1E.& E. 559.
165
   A  similar opinion was expressed by Sir  GeorgeJessel  in
Fisher v. Keane (1), Labouchere v. Earl of Wharncliffe  (2),
and Russell v. Russell (3).  In the last mentioned case,  he
observed as follows :--
    "It  [Wood v. Woad (4)] contains a very valuable  state-
ment  by the Lord Chief Baron as to his view of the mode  of
administering justice by persons other than Judges who  have
judicial functions to perform which I should have been  very
glad  to have had before me on both those club cases that  I
recently heard, namely, the case of Fisher v. Keane and  the
case of Labouchere v. Earl of     Wharncliffe.  The  passage
I mean is this, referring   to a committee: 'They are  bound
in the exercise of  their functions by the rule expressed in
the  maxim  "audi  alteram partem," that no  man  should  be
condemned to consequences without having the opportunity  of
making  his defence.  This rule is not confined to the  con-
duct  of  strictly legal' tribunals, but  is  applicable  to
every tribunal or body of persons invested with authority to
adjudicate  upon  matters involving  civil  consequences  to
individuals '."
    This opinion was quoted with approval by Lord Macnaghten
in  Lapointe v. L'Association etc. de Montreal (5).  In that
case,  on an application for pension by the appellant,   who
had been obliged to resign, the Board of Directors,  without
any  judicial  inquiry into the circumstances,  resolved  to
refuse the claim on the ground that he was obliged to tender
his  resignation.     This procedure was condemned  by  Lord
Macnaghten as being "contrary to rules of society and  above
all  contrary  to  the elementary  principles  of  justice."
These  observations of Lord Macnaghten were referred to  and
relied on in The King v. Tribunal of Appeal under the  Hous-
ing Act, 1919 (6). In that case, a company proposed to build
a  picture house and the local authority  having  prohibited
'the building, the company appealed under the Housing
  (1)  H. Ch. D. 353.                (4) [1874] L.R.  9  Ex.
190.
  (2) 13 Oh. D. 346.               (5) [1906] A.C. 535.
  (3) 14 Ch. D. 471.               (6) [1920] I.B. 334.
166
(Additional Powers) Act,  1919, which contained a  provision
that an appeal could in certain cases be properly determined
without  a hearing and that the appellate Court  could  dis-
pense  with the hearing and determine the appeal  summarily.
It was held that the meaning of rule 7 was that the tribunal
on appeal might dispense with an oral hearing, not that they
might  dispense  with a hearing of any kind, and  that  they
were bound to give the appellants a hearing in the sense  of
an  opportunity to make out a case.  The Earl of Reading  in
delivering the judgment observed:
"The principle of law applicable to such a case is  well
stated by Kelly C.B. in Wood v. Woad in a passage which   is
cited  with  approval by Lord Macnaghten in  Lapointe v.  L'
Association  etc.  de Montreal  ......  "
    In  Local  Government  Board v.  Arlidge(1),  the  Local
Government  dismissed an appeal by a person against  whom  a
closing  order had been made under Housing,  Town  Planning,
&c.  Act, without an oral hearing and without being  allowed
to see the report made by the Board's Inspector upon 'public
local  inquiry.   The House of Lords did not interfere  with
the order on the ground that the appeal had been dealt  with
by  an  administrative authority whose duty was  to  enforce
obligations on the individual in the interests of the commu-
nity  and whose character was that of an  organization  with
executive functions.  The principle however was conceded and
lucidly  set forth that when the duty of deciding an  appeal