dedol-hf/india-case-legal-rag huggingface dataset:
expression  "personal  liberty" in article 21 does.   It  is
well  known that the word "'liberty" standing by itself  has
been  given a very wide meaning by the Supreme Court of  the
United  States  of America.  It includes not  only  personal
freedom  from physical restraint but the right to  the  free
use of one's own property and to enter into free contractual
relations,   In the Indian Constitution, on the other  hand,
the expression "personal liberty" has been deliberately used
to restrict it to freedom from physical restraint of  person
by incarceration or otherwise. Apart from the report of  the
Drafting Committee, that is the plain grammatical meaning of
the expression as I have already explained.
    It may not, I think, be quite accurate to state that the
operation  of article 19 of the Constitution is  limited  to
free  citizens only and that the rights have been  described
in that article on the presupposition that the citizens  are
at liberty.  The deprivation of personal liberty may  entail
as  a  consequence the loss or abridgement of  many  of  the
rights  described  in article 19, but that  is  because  the
nature of these rights is such that free exercise of them is
not  possible  in the absence of personal liberty.   On  the
other hand, the right to hold and dispose of property  which
is  in  subclause  (f) of article 19 (1) and  which  is  not
dependent  on  full possession of personal  liberty  by  the
owner may
264
not  be  affected if the owner is  imprisoned  or  detained.
Anyway, the point is not of much importance for purposes  of
the present discussion.  The result is that, in my  opinion,
the  first contention raised by Mr. Nambiar  cannot  succeed
and  it must be held that we are not   entitled  to  examine
the reasonableness or otherwise of the Preventive  Detention
Act  and  see whether it is within  the  permissible  bounds
specified in clause (5) of article 19.
I  now  come to the second point raised by  Mr.  Nambiar  in
support  of  the  application; and upon this  point  we  had
arguments of a most elaborate nature addressed to us by  the
learned  counsel on both sides,  displaying  a  considerable
amount  of learning and research.  The point, however, is  a
short  one and turns upon the interpretation to be put  upon
article  21  of the Constitution, which lays down  that  "no
person shall be deprived of his  ........  personal liberty,
except  according  to procedure established by law."   On  a
plain  reading of the article the meaning seems to  be  that
you cannot deprive a man of his personal liberty, unless you
follow  and  act  according to the law  which  provides  for
deprivation  of  such liberty.  The  expression  "procedure"
means  the  manner  and form of enforcing the  law.   In  my
opinion, it cannot be disputed that in order that there  may
be a legally established procedure, the law which establish-
es  it must be a valid and lawful law which the  legislature
is competent to enact in accordance with article 245 of  the
Constitution  and  the particular items in  the  legislative
lists  which  it relates to.  It is also not  disputed  that
such  law  must not offend against  the  fundamental  rights
which  are  declared in Part III of  the  Constitution.  The
position taken up by the learned Attorney-General is that as
in  the present case there is no doubt about the  competency
of  that Parliament to enact the law relating to  preventive
detention  which is fully covered by Item 9 of List  I,  and
Item  3  of List III, and as no question of  the  law  being
reasonable  or otherwise arises for consideration by  reason
of the fact that article 19 (1) (d) is not attracted to this
case,  the law must be held to be a valid piece of  legisla-
tion and if the procedure
265
laid  down  by it has been adhered to, the validity  of  the
detention cannot possibly be  challenged.  His further argu-
ment is that article 22 specifically provides for preventive
detention  and  lays down fully what the requirements  of  a
legislation  on the subject should be.  As the impugned  Act
conforms to the requirements of article 22, no further ques-
tion of its validity under article 21 of the Constitution at
all arises. The latter aspect of his arguments, I will  deal
with   later   on.   So  far  as  the  main    argument   is
concerned,the  position  taken  up by Mr.  Nambiar  is  that
article 21 refers to 'procedure  only  and  not to  substan-
tive  law  the  procedure, however, must  be  one  which  is
established   by   law.   The  expression   "law"   in  this
context does not mean or signify,  according to the  learned
counsel, any particular   law  enacted by  the   legislature
in  conformity  with  the  requirements  of   the  Constitu-
tion     or  otherwise possessing a binding  authority.   It
refers to law in the abstract or general sense--in the sense
of jus and not lex--and meaning thereby the legal principles
or fundamental rules that lie at the root of every system of
positive  law including our own, and the authority of  which
is acknowledged in the jurisprudence of all civilised  coun-
tries.  It is argued that if the word    "law" is interpret-
ed in the sense of any State-made law, article 21 could  not
rank  as a fundamental right imposing a check or  limitation
on the legislative authority of the Government.  It will  be
always  competent  to the legislature to pass a  law  laying
down a thoroughly arbitrary and irrational procedure opposed
to all elementary principles of justice and fairness and the
people  would have no protection whatsoever,  provided  such
procedure  was scrupulously adhered to.  In support of  this
argument the learned counsel has relied upon a large  number
of  American cases, where the Supreme Court of  America  ap-
plied the doctrine of "due process of law" as it appears  in
the  American Constitution for the purpose  of  invalidating
various legislative enactments which appeared to that  Court
to be capricious and arbitrary and opposed to the  fundamen-
tal principles of law.
266
It  may be noted here that in the original draft of  the
Indian Constitution the words used in article 15 (which  now
stands  as article 21) were "in accordance with due  process
of  law."  The Drafting Committee recommended that in  place
of  the "due process" clause, the expression  "according  to
procedure  established by law" should be  substituted.   The
present article 21 seems to have been modeled on article  31
of the Japanese Constitution, where the language employed is
"no  person shall be deprived of'life or liberty, nor  shall
any  other criminal penalty be imposed, except according  to
procedure  established by law."  Mr. Nambiar   argues   that
the expression  "procedure established by law" in article 21
of  the  Constitution  bears the same meaning  as  the  "due
process"  clause  does in America, restricted only  to  this
extent, viz., that it is limited to matters of procedure and
does not extend to questions of substantive law.  To  appre-
ciate the arguments that have been advanced for and  against
this view and to fix the precise meaning that is to be given
to  this  clause  in article 21, it would  be  necessary  to
discuss  briefly  the  conception of the  doctrine  of  "due
process  of law" as it appears in the American  Constitution
and  the way in which it has been developed and  applied  by
the Supreme Court of America.
    In  the history of  Anglo-American law,  the concept  of
"due process of law" or what is considered to be its equiva-
lent "law of the land" traces its lineage far back into  the
beginning  of the 13th century A.D. The famous 39th  chapter
of  the  Magna Charta provides that "no free  man  shall  be
taken  or imprisoned or disseized, or outlawed or exiled  or
in any way destroyed; nor shall we go upon him nor send upon
him  but by the lawful judgment of his peers and by the  law
of  the land." Magna Charta as a charter of English  liberty
was  confirmed by successive English monarchs and it  is  in
one  of these confirmations (28 Ed. III, Chap. 3)  known  as
"Statute  of Westminster of the liberties of  London",  that
the  expression  "due  process of law" for  the  first  time
appears.  Neither of these phrases was explained or  defined
in any  of  the
267
-documents,  but on the authority of Sir Edward Coke it  may
be said that both the expressions have the same meaning.  In
substance,  they  guaranteed that persons  should  not    be
imprisoned without proper indictment and trial by peers, and
that  property  should not be seized except  in  proceedings
conducted  in due form in which the owner or the  person  in
possession  should  have an opportunity to  show  cause  why
seizure  should not be made (1).  These concepts  came  into
America  as part of the rights of Englishmen claimed by  the
colonists.  The expression in one form or other appeared  in
some  of  the  earlier  State Constitutions  and  the  exact
phrase "due process of law" came to be a part of the Federal
Constitution  by  the Fifth Amendment which was  adopted  in
1791 and which provided that "no person shall... be deprived
of life, liberty or property without due process of law." It
was imposed upon the State Constitution in almost  identical
language by the Fourteenth Amendment in the year 1868.
What "due process of law" exactly means is difficult  to
define even at the present day, The Constitution contains no
description  of  what is "due process of law"  nor  does  it
declare  the principles by application of which it could  be
ascertained.   In  Twining v. New Jersey (2) the  Court  ob-
served:
    "Few  phrases in the law are so elusive of exact  appre-
hension  as this.  This COurt has always declined to give  a
comprehensive  definition of it and has preferred  that  its
full meaning should be gradually ascertained by the  process
of inclusion and exclusion in the course of the decisions of
cases as they arise."
    It  is  clear,  however, that the  requirement  of  "due
process of law" in the United States Constitution imposes  a
limitation upon all the powers of Government, legislative as
well  as executive and judicial. Applied in England only  as
protection  against executive usurpation and royal  tyranny,
in America it became a bulwark against arbitrary legislation
(3).
(1)  Vide  Willoughby  on the  Constitution  of  the  United
States, Vol. III, p. 1087.
(2) 211 U.S. 79.
(3)  Vide Hurtando v. People of California, 110 U.S. 516  at
p. 532.
268
As  it  is a restraint upon the legislative power  and  the-
object  is to protect citizens against arbitrary and  capri-
cious  legislation, it is not within the competence  of  the
Congress  to make any process a "due process of law" by  its
mere will; for that would make the limitation quite  nugato-
ry.   As laid down in the case cited above, "it is  not  any
act legislative in form that   is law; law is something more
than  mere will exerted as an act of power."  It  means  and
signifies the general law of the land, the settled and abid-
ing  principles  which inhere in the  Constitution  and  lie
at the root of the entire legal system.  To quote the  words
of  Daniel Webster in a famous argument  before.the  Supreme
Court (1):
   "By  the  law of the land is most  clearly  intended  the
general  law--a  law which hears before it  condemns,  which
proceeds upon enquiry and renders judgment only after trial.
The  meaning  is  that every citizen shall  hold  his  life,
liberty, property and immunities under the protection of the
general rules which govern society."
   What these principles of general law are nobody has  ever
attempted  to  enumerate.  To a large extent  they  are  the
principles of English common law and modes of judicial  pro-
ceedings obtaining in England, the traditions of which  came
along  with  the settlers in America.  Some Judges  seem  to
have  alluded  to the principles of natural justice  in  ex-
plaining what is meant by general law or "law of the  land,"
though the doctrine of a law of nature did not obtain a firm
footing at any time.  In Wynehamer v. New York (2),  Justice
Hubbard declared himself opposed to the judiciary attempting
to  set bounds to the legislative authority or  declaring  a
statute  invalid upon any fanciful theory of'higher  law  or
first  principles of natural right outside of the  Constitu-
tion.   Coke's  dictum of a supreme  fundamental  law  which
obviously referred to principles of English common law  cer-
tainly did exercise considerable influence upon the minds of
the  American Judges (3) and there are observations in  some
cases
 (1)  Darmouth College case, 4 Wheaton p. 518.       (2)  13
N.Y. 379.
              (3) Willis on Constitutional Law, p. 647.
269
which  go to suggest that the principles of natural  justice
were regarded as identical with those of common law,  except
where  the rules of common law were not considered to be  of
fundamental  character or were not acted upon as  being  un-
suited to the progress of time or conditions of the American
Society (1).  In the case of Loan Association v. Topeka (2),
it  was observed that there are limitations upon  powers  of
Government  which grow out of the essential nature  of  free
Governments--implied   reservations  of  individual   rights
without  which the social compact could not exist and  which
are respected by all Governments entitled to the name.  What
is  hinted at, is undoubtedly the old idea of a social  com-
pact  under  which political institutions were  supposed  to
come into being; and the suggestion is that  when the Ameri-
cans  formed themselves into a State by surrendering a  por-
tion  of their rights which they possessed at that time  and
which   presumably   they  inherited  from   their   English
ancestors,  there  were  certain  rights  of  a  fundamental
character  still  reserved  by them  which  no  State  could
possibly take away.
    As has been said already, "due process of law" has never
been  defined  by  Judges or Jurists in  America.  The  best
description of the expression would be to say that it  means
in  each particular case such an exercise of the  powers  of
Government as the settled maxims of law permit and sanction,
and  under such safeguards for the protection of  individual
rights  as those maxims prescribe for the class of cases  to
which the one in question belongs (3).
    In the actual application of the clause relating to "due
process  of  law" to particular cases the decisions  of  the
Supreme Court of America present certain peculiar and unusu-
al  features  and  there is total lack   of  uniformity  and
consistency  in  them.   Ever since the  appearance  of  the
clause in the Fifth Amendment and down to the middle of  the
19th century, it was interpreted as a restriction on  proce-
dure, and particularly the judicial procedure, by which  the
Government
(1) Cooley's Constitutional Limitations, Vol. II, p. 73940.
(2) 20 Wall, p. 655.    (3) Cooley's Constitutional  Limita-
tions, Vol. II, p. 741.
270
exercises its powers.  Principally it related to the  proce-
dure  by which persons were tried for crimes and  guaranteed
to accused persons the right to have a fair trial in compli-
ance with well established criminal proceedings.   The  same
principle  applied to the machinery or proceeding  by  which
property rights were adjudicated and by which the powers  of
eminent  domain  and taxation were exercised.   During  this
period it was not considered to have any bearing on substan-
tial law at all.
    Change,  however, came in and the period  that  followed
witnessed  a growing  recognition of the doctrine that  sub-
stantive rights of life, liberty and property are  protected
by the requirement of due process of law against any  depri-
vation attempted at by legislative authority; and the polit-
ical  and economic conditions of the country accounted to  a
great extent for this change in judicial outlook.  The close
of  the  civil  war brought in a new  period  of  industrial
development leading to accumulation of large capital in  the
hands  of  industrialists and the emergence  of  a  definite
labouring  class.   New and important problems  arose  which
the States attempted to deal with by various laws and  regu-
lations.   Some  of them seem to have been  ill-advised  and
arbitrary  and  there  was  a  clamour  amongst  businessmen
against  what  they described as  legislative  encroachments
upon  their  vested private rights.  The Supreme  Court  now
began  to  use the rule of due process of law  as  a  direct
restraint  upon substantial legislation and any  statute  or
administrative  act, which imposed a limitation upon  rights
of  private property or free contractual  relations  between
the employers and employed, was invalidated as not being  in
accordance with due process of law (1).  What constituted  a
legitimate exercise of the powers of legislation now came to
be  a judicial question and no statute was valid  unless  it
was.  reasonable in the opinion of the Court.  The  question
of reasonableness obviously depends largely upon the.  ideas
of  particular  individuals  and the Courts  or  rather  the
majority of Judges thus marshalled their own
(1)  Vide Encyclopaedia of the Social Sciences, Vol. V,  pp.
265-67.
271
views of social and economic policy in deciding the reasona-
bleness or otherwise of the statutes.  In the language of  a
well-known  writer,  the Courts became a  kind  of  negative
third  chamber both to the State Legislatures and  the  Con-
gress(1).   To what extent the Courts laid stress  upon  the
doctrine  of freedom of contract is illustrated in the  case
of Lochner v. New York(2).  In that case the question  arose
as to the validity of a labour legislation which  prohibited
the employment of persons in certain fields of activity  for
more than 60 hours a week.  Lochner was indicted for violat-
ing  this  law by employing a man in his  Biscuit  and  Cake
Factory  who was to work more than 60 hours in a week.   The
Court by a majority of 5 to 4 held the statute to be invalid
on the ground that the "right to purchase or sell labour  is
part of the liberty protected by the Amendment unless  there
are circumstances which excluded the right."  That  decision
has been criticized not merely on the ground that it  rested
upon  an  economic  theory which to quote  the  language  of
Holmes  J., who was one of the dissentient Judges  "was  not
entertained by a large part of the country;" but it  ignored
that such regulation was necessary for protecting the health
of  the  employees, that is to say, it was in  substance  an
exercise  of  police powers with a view to  accomplish  some
object of public interest(s).
    It  may  be mentioned here that while  the  due  process
doctrine was being extended by  judicial pronouncements, the
doctrine of police power which operates to some extent as  a
check  upon  the  "due process"  clause  was  simultaneously
gaining  importance.  Roughly speaking, police power may  be
defined as "a right of a Government to regulate the  conduct
of  its  people in the interests of public  safety,  health,
morals and convenience.  Under this authority, a  Government
may make regulations concerning the safety of building,  the
regulation of traffic, the reporting of incurable  diseases,
the inspection of markets, the sanitation of factories,  the
hours of work for women
(1) Vide Kelley and Harbinson on the American  Constitution,
p. 539.
198 u.s. 45.
Vide  Willoughby on the Constitution of the U.S., Vol.  III,
p. 271.
272
and children, the sale of intoxicants and such other matters
,,(1).  Here again, the extent to which the Court can inter-
fere  with  exercise of police powers by the State  has  not
been  clearly defined by judicial pronouncements.  The  doc-
trine  generally accepted is that although any enactment  by
legislature  under  the guise of exercise of  police  powers
would not necessarily be constitutional, yet if the  regula-
tion  has a direct relation to its proposed object which  is
the  accomplishment of some legitimate public  purpose,  the
wisdom  or policy of the legislation should not be  examined
by  the Courts.  The rule is not without its exceptions  but
it  is not necessary to elaborate them for our present  pur-
pose(2).   The  later decisions, though not  quite  uniform,
reveal  the growing influence of the police power  doctrine.
It  may  be said that since 1936 there has been  a  definite
swing  of the judicial pendulum in the other direction.   In
the  case  of West Coast Hotel Company v.  Parrish(3)  which
related  to  the legality of a Statute  for  regulating  the
minimum wages of women, Chief Justice Hughes, who  delivered
the opinion of the Court, observed as follows:
   "In each case the violation alleged     by those  attack-
ing minimum wage regulation for      women is deprivation of
freedom of contract.  What  is the freedom? The Constitution
does  not  speak  of freedom of contract.    It   speaks  of
liberty  and  prohibits the deprivation of  liberty  without
due  process  of law.  In prohibiting that  deprivation  the
Constitution does not recognise an  absolute  and uncontrol-
lable  liberty. Liberty in each of its phases has its histo-
ry and connotation.  But the liberty safeguarded is  liberty
in  a social organisation which requires the  protection  of
law.  against  the evils which menace  the  health,  safety,
morals and welfare of the people."
    In  the succeeding years the indications  certainly  are
that the requirement of due process of law as a  substantial
restriction on Government control is becoming a thing of the
past and the rule is being restricted more
(1) Vide Munroe--The Government of the U.S., p. 522.
(2)  Vide  Willoughby on the Constitution of the  U.S.  Vol.
III, pp. 1709-70.
(3) 300 U.S. 379.
273
and  more  to its original procedural  meaning.   What  will
happen  in  future  cannot certainly be  predicted  at  this
stage(1).
     Thus it will be seen that the "due process" clause   in
the  American Constitution came to be used as a  potent  in-
strument  in the hands of the judiciary for exercising  con-
trol  over social legislation. The  judicial  pronouncements
are  not guided by  any uniform principle, and the  economic
and social ideas of the Judges, who form the majority in the
Supreme Court for the time being, constitute, so to say, the
yard-stick for measuring the reasonableness or otherwise  of
any  enactment  passed  during that period.   No  writer  of
American  Constitutional  Law  has been able  uptil  now  to
evolve anything like a definite and consistent set of  prin-
ciples out of the large mass of cases, where the doctrine of
"due process of law" has been invoked or applied.
     It is against this background that we must consider how
the  constitution-makers in India dealt with and gave  final
shape  to  the provisions, on an analogous  subject  in  the
Indian Constitution.  In the Draft Constitution, article  15
(which  now stands as article 21) was apparently  framed  on
the  basis of the 5th and 14th Amendments in   the  American
Constitution.   The article was worded as follows:
"No  person shall be deprived of his life  or  liberty
without due process of law."
     The  Drafting Committee in their report  recommended  a
change  in the language of this article.  The first  sugges-
tion  was that the word "personal" shall be inserted  before
the  word "liberty" and the second was that  the  expression
"in  accordance with procedure established by law" shall  be
substituted for "due process of law," the reason given being
that the former expression was more specific.
      The learned Attorney-General has placed before us  the
debates  in  the Constituent Assembly  centering  round  the
adoption  of this recommendation of the  Drafting  Committee
and he has referred us to the
  (1)  Swisher--The  Growth of Constitutional Power  in  the
United States, pp. 123-25.
274
speeches   of   several   members  of   the   Assembly   who