dedol-hf/india-case-legal-rag huggingface dataset:
disease or may lose the use of his legs by paralysis or as a
result  of  amputation.  Further, what has been  called  the
procedural  protection  of  article 21 would be  an  act  of
supererogation, for when God takes away one's life, whatever
opportunity  He  may have had given to Adam to  explain  his
conduct  before sending him down, He is not likely in  these
degenerate-days  to  observe the requirements of  notice  or
fair trial before any human tribunal said to be required  by
article 21. The fifth Amendment and the Fourteenth Amendment
    of the American Constitution give specific protection to
life  as  a substantive right.  So does article  31  of  the
Japanese  Constitution of 1946.  There is no reason why  our
Constitution  should  not do the same.  The  truth  is  that
article  21 has given that protection to life as a  substan-
tive right and that, as will be seen hereafter, that article
properly  understood does not purport to prescribe any  par-
ticular procedure at all. The
38
296
further astounding result of the argument of counsel for the
petitioner will be that the citizen of India will have  only
the rights enumerated in article 19, clause (1) and no other
right  attached  to his person. As I  have  already  stated,
besides  the  several rights mentioned in the  several  sub-
clauses  of article 19 (1) there  are many  other   personal
liberties   which  a  free man, i.e., a  man  who  has   the
freedom  of his person, may exercise.  Some of  those  other
rights have been referred to by Harries C.J. of Calcutta  in
his  unreported  judgment in Miscellaneous Case No.  166  of
1950  (K.shitindra  v. The Chief Secretary of  West  Bengal)
while  referring the case to a Full Bench in  the  following
words :--
    "It must be remembered that a free man has far more  and
wider  rights  than those stated in article 19  (1)  of  the
Constitution.  For example, a free man can eat what he likes
subject to rationing laws, work as much as he likes or  idle
as much as he likes.  He can drink anything he likes subject
to  the  licensing laws and smoke and do a hundred  and  one
things which are not included in article 19.  If freedom  of
person  was the result of article 19, then a free man  would
only  have the seven rights mentioned in that article.   But
obviously the free man in India has far greater rights."
I  find  myself in complete agreement with  the  learned
Chief  Justice  on this point.  If it  were  otherwise,  the
citizen's  right to eat what he likes will be liable  to  be
taken away by the executive fiat of the Civil Supply Depart-
ment  without  the  necessity of any  rationing  laws.   The
Government  may enforce prohibition without any  prohibition
laws  or licensing laws and so on. I cannot accept that  our
Constitution intended to give no protection to the bundle of
rights  which,  together with the rights mentioned  in  sub-
clauses  (a) to (e) and (g) make up personal  liberty.   In-
deed,  I  regard it as a merit of our Constitution  that  it
does not attempt to enumerate exhaustively all the  personal
rights but uses the compendious expression "personal  liber-
ty" in' article 21, and protects all of them.
    It  is pointed out that in the original draft  the  word
"liberty" only was used as in the American
297
Constitution  but  the  Drafting Committee  added  the  word
"personal" to make it clear that what was being protected by
what  is now article 21 was not what had already  been  pro-
tected by what is now article 19.  If it were permissible to
refer to the Drafting Committee's report, it would be anoth-
er  answer  to the contentions of learned  counsel  for  the
petitioner that personal liberty as a substantive right  was
protected by article 19.  I do not, however,  desire to base
my judgment on the Drafting Committee's report and I express
no opinion as to its admissibility.  Whatever the intentions
of the Drafting Committee might have been, the  Constitution
as finally passed has in article 21 used the words "personal
liberty" which have a definite connotation in law as I  have
explained.  It does not mean only liberty of the person  but
it  means liberty or the rights attached to the person  (jus
personarum).  The expressions "freedom of life" or "personal
liberty" are not to be found in article 19 and it is strain-
ing the language of article 19 to squeeze in personal liber-
ty into that article.  In any case the right to life  cannot
be read into article 19.
    Article 19 being confined, in its operation, to citizens
only, a non-citizen will have no protection for his life and
personal liberty except what has been called the  procedural
protection of article 21.  If there be no substantive  right
what will the procedure protect ? I recognise that it is not
imperative that a foreigner should have the same  privileges
as are given to a citizen, but if article 21 is construed in
the  way I have suggested even a foreigner will  have  equal
protection for his life and personal liberty before the laws
of our country under our Constitution.  I am unable,  there-
fore, for all the reasons given above, to agree that person-
al  liberties  are  the result of article 19  or  that  that
article purports to protect all of them.
    It is next urged that the expression "personal  liberty"
is synonymous with the right to move freely and,  therefore,
comes  directly under article 19 (1) (d). Reference is  made
to the unreported dissenting judgment of Sen J. of  Calcutta
in  Miscellaneous Case No. 166 of 1950 while referring  that
case to a Full Bench.
298
In  his  judgment Sen J. quoted the following  passage  from
Blackstone's Commentaries :--
     "Next to personal security the law of :England regards,
asserts and preserves, the personal liberty of  individuals.
This personal liberty consists  in the power of  locomotion,
of changing situation, or moving one's person to  whatsoever
place one's own inclination may direct, without imprisonment
or  restraint,  unless by due course of law."  (Page  73  of
George Chase's Edition (4th Edition) of Blackstone, Book  I,
Chapter I.
    On the authority of the above passage the learned  Judge
concluded  that  personal  liberty came  within  article  19
(1)(d).  I am unable to agree with the learned Judge's  con-
clusion.   On  a perusal of Chapter I of Book  I  of  Black-
stone's Commentaries it will appear that the]earned  commen-
tator divided the rights attached to the person (jus person-
arum)  into  two classes, namely,  "personal  security"  and
"personal  liberty."   Under the  head  "personal  security"
Blackstone  included several rights, namely, the rights  to'
life, limb, body, health and reputation, and under the  head
"personal  liberty" he placed only the right of  free  move-
ment.  He first dealt with the several rights classified  by
him under the head "personal security" and then proceeded to
say  that next to those rights came personal  liberty  which
according to his classification consisted only in the  right
of  free locomotion. There is no reason to suppose  that  in
article  21  of our Constitution  the  expression  "personal
liberty"  has  been used in the restricted  sense  in  which
Blackstone used it in his Commentaries. If "personal  liber-
ty"  in  article 21 were synonymous with the right  to  move
freely  which is mentioned in article 19 (1) (d),  then  the
astounding result will be that only the last mentioned right
has what has been called the procedural protection of  arti-
cle 21 but none of the other rights in the other sub-clauses
of  article  19 (1) has any procedural  protection  at  all.
According  to learned counsel for the petitioner the  proce-
dure  required by article 21 consists of notice and a  right
of hearing before an impartial tribunal.  Therefore, accord-
ing  to him, a man's right of movement cannot be taken  away
without giving him notice and a fair trial
299
before  an impartial tribunal but he may be deprived of  his
freedom of speech or his property or any of his other rights
without the formality of any procedure at all. The  proposi-
tion  has only to be stated to be rejected. In my  judgment,
article  '19  protects some of the important  attributes  of
personal  liberty as independent rights and  the  expression
"personal liberty" has been 'used in article 21 as a compen-
dious term including within its meaning all the varieties of
rights which go to make up the personal liberties of men.
    Learned  counsel for the petitioner next  contends  that
personal  liberty undoubtedly means or includes the  freedom
of  the person and the pith and substance of the freedom  of
the person is right to move about freely and consequently  a
preventive  detention  law which destroys  or  suspends  the
freedom of the person must inevitably destroy or suspend the
right  of free movement and must necessarily offend  against
the  protection  given to the citizen by article  19  (1)(d)
unless it satisfies the test of reasonableness laid down  in
clause (5).  The argument is attractive and requires serious
consideration  as  to the exact purpose and  scope  of  sub-
clause (d) of article 19 (1).
    There are indications in the very language of article 19
(1) (d) itself that its purpose is to protect not the gener-
al right of free movement which emanates from the freedom of
the  person but only a specific and 'limited aspect  of  it,
namely, the special right of a free citizen of India to move
freely throughout the Indian territory, i.e., from one State
to another within the Union.  In other words, it guarantees,
for example, that a free Indian citizen ordinarily  residing
in  the State of West Bengal will be free to move from  West
Bengal  to  Bihar or to reside and settle in Madras  or  the
Punjab  without any let or hindrance other than as  provided
in clause (5).  It is this special right of movement of  the
Indian citizen in this specific sense and for this  particu-
lar purpose which is protected by article 19 (1) (d).  It is
argued on the authority of a decision of a Special Bench  of
the  Calcutta  High Court presided over by Sen J.  in  Sunil
Kumar v. The Chief
300
Secretary  of West Bengal (1) that the words "through-.  out
the  territory of India" occurring in that  sub-clause  only
indicate  that  our Constitution does not guarantee  to  its
citizens  the  right  of free movement in  or  into  foreign
territory  and  that  those words have been  added  to  save
passport restrictions.  I am unable to accept this interpre-
tation.  Our Constitution cannot possibly give to any of its
citizens any right of free movement in a foreign country and
it  was wholly superfluous to specifically indicate this  in
the  Constitution, for that would have gone without  saying.
The  words "throughout the territory of India" are not  used
in  connection with most of the other sub-clauses of  clause
(1)  of  article 19.  Does such omission indicate  that  our
Constitution  guarantees to its citizens freedom  of  speech
and expression, say, in Pakistan ? Does it guarantee to. its
citizens  a  right to assemble or to  form  associations  or
unions  in a foreign territory ? Clearly not. Therefore,  it
was  not necessary to use those words in sub-clause  (d)  to
indicate  that  free movement in foreign countries  was  not
being  guaranteed.    It is said that by the  use  of  those
words the Constitution makes it clear that no1 guarantee was
being  given to any citizen with regard to  emigration  from
India  without a passport and that the freedom  of  movement
was  restricted  within the territory of  India.   Does  the
omission  of  those words from article 19 (1)  (a)  indicate
that  the citizen of India has been guaranteed such  freedom
of  speech  and expression as will enable him to  set  up  a
broadcasting station and broadcast his views and expressions
to foreign lands without a licences ? Clearly not.  Dropping
this  line  of argument and adopting a totally new  line  of
argument it is said that by the use of the words "throughout
the territory of India" the Constitution indicates that  the
widest right of free movement that it could possibly give to
its  citizens  has been given. Does. then, the  omission  of
those  words  from the other subclauses  indicate  that  the
Constitution  has kept back some parts of those rights  even
beyond  the limits of the qualifying clauses  that follow  ?
Do  not  those other rights prevail  throughout  the  Indian
territory ?
(1) 54 C.W.N. 394.
301
Clearly they do, even without those words.  Therefore, those
words must have been used in sub-clause (d) for -some  other
purpose.  That other purpose, as far as I can apprehend  it,
is to indicate that free movement from one State to  another
within the Union is protected so that Parliament may not  by
a  law made under Entry 81 in List I curtail it  beyond  the
limits prescribed by clause (5) of article 19.  Its purpose,
as  I read it, is not to provide protection for the  general
right of free movement but to secure a specific and  special
right  of the Indian citizen to move freely  throughout  the
territories  of India regarded as an independent  additional
right  apart from the general right of locomotion  emanating
from  the freedom of the person.  It is a guarantee  against
unfair discrimination in the matter of free movement of  the
Indian citizen throughout the Indian Union.  In short, it is
a  protection against provincialism.  It has nothing  to  do
with the freedom of the person as such.   That is guaranteed
to every person, citizen or otherwise, in the manner and  to
the extent formulated by article 21.
    Clause  (5)  of article 19 qualifies sub-clause  (d)  of
clause (1) which should, therefore, be read in the light  of
clause  (5). The last mentioned clause permits the State  to
impose reasonable restrictions on the exercise of the  right
of  free movement throughout the territory of India  as  ex-
plained above. Imposition of reasonable restrictions clearly
implies  that  the right of free movement  is  not  entirely
destroyed but that parts of the right remain. This  reasona-
ble restriction can be imposed either in the interest of the
general public or for the protection of the interests of any
Scheduled Tribe. The Scheduled Tribes usually reside in what
are called the Scheduled Areas.  The provision for  imposing
restriction  on the citizens' right of free movement in  the
interests of the Scheduled Tribes clearly indicates that the
restriction is really on his right of free movement into  or
within  the  Scheduled Areas. It means that if it  be  found
necessary  for  the protection of the Scheduled  Tribes  the
citizens  may  be restrained from entering  into  or  moving
about  in the Scheduled Areas, although they are left  quite
free to move about elsewhere.  This restraint may well be
302
necessary  for the protection of the members of the,  Sched-
uled  Tribes who are generally impecunious and constitute  a
backward  class.   They may need protection  against  money-
lenders or others who may be out to exploit them.   They may
have  to be protected against their own  impecunious  habits
which  may  result  in their  selling  or  mortgaging  their
hearths  and homes. Likewise, the free movement of  citizens
may  have  to be restricted in the interest of  the  general
public.   A person suffering from an infectious disease  may
be prevent from moving about and spreading the disease.  and
regulations for his segregation in the nature of  quarantine
may have to be introduced.  Likewise, healthy people may  be
prevented,  in  the interests of the  general  public,  from
entering  a  plague-infected area.  There may  be  protected
places, e.g., forts or other strategic places, access where-
to may have to be regulated or even prohibited in the inter-
ests of the general public.  The point to be noted, however,
is  that when free movement is thus restricted,  whether  in
the interest of the general public or for the protection  of
the Scheduled Tribes, such restriction has reference  gener-
ally  to a certain local area which becomes  the  prohibited
area  but the right of free movement in all other  areas  in
the Union is left unimpaired.  The circumstance that  clause
(5)  contemplates only the taking away of a  specified  area
and  thereby  restricting the field of the exercise  of  the
right conferred by subclause (d) of clause (1) indicates  to
my mind that subclause (d)is concerned, not with the freedom
of the person or the general right of free movement but with
a  specific  aspect of it regarded as an  independent  right
apart  from  the freedom of the person. In  other  words  in
sub-clause (d)the real emphasis is on the words  "throughout
the territory of India."  The purpose of article 19 (1)  (d)
is  to  guarantee that there shall be no State  barrier.  It
gives protection against provincialism. It has nothing to do
with the freedom of the person as such.
    Finally, the ambit and scope of the rights protected  by
article  19 (1) have to be considered.  Does it protect  the
right of free movement  and the other
303
personal  rights  therein  mentioned  in  all  circumstances
irrespective  of  any  other consideration ?   Does  it  not
postulate  a  capacity to exercise the rights  ?   Does  its
protection  continue even though the citizen lawfully  loses
his  capacity  for  exercising those rights ?  How  can  the
continuance of those personal rights be compatible with  the
lawful detention of the person ?  These personal rights  and
lawful  detention  cannot go together. Take the  case  of  a
person who has been properly convicted of an offence punish-
able  under  a section of the Indian Penal Code  as  to  the
reasonableness  of which there is no dispute.  His right  to
freedom  of speech is certainly impaired. Under  clause  (2)
the State may make a law relating to libel, slander, defama-
tion, contempt of Court or any matter which offends  against
decency or morality or which undermines the security of,  or
tends  to  overthrow, the State.  Any law on  any  of  these
matters contemplated by this clause certainly must have some
direct  reference to speech and expression.  It  means  that
the  law may directly curtail the freedom of speech so  that
the  citizen may not talk libel or speak  contemptuously  of
the  Court  or  express indecent or  immoral  sentiments  by
speech  or  other  forms of expression  or  utter  seditious
words.   To say that every crime undermines the security  of
the State and, therefore, every section of the Indian  Penal
Code, irrespective of whether it has any reference to speech
or expression, is a law within the meaning of this clause is
wholly  unconvincing  and betrays only a  vain  and  forlorn
attempt to find an explanation for meeting the argument that
any  conviction by a Court of law must necessarily  infringe
article  19 (1) (a). -There can be no getting away from  the
fact  that a detention as a result of a  conviction  impairs
the  freedom of speech far beyond what is permissible  under
clause  (2) of article 19.   Likewise a detention on  lawful
conviction  impairs each of the other personal  rights  men-
tioned  in  sub-clauses (b) to (e) and (g)  far  beyond  the
limits  of  clauses  (8) to (6).  The  argument  that  every
section of the Indian Penal Code irrespective of whether  it
has any reference to any of the rights referred  to in  sub-
clauses (b) to (e) and (g) is a law imposing
304
reasonable  restriction   on  those several rights  has  not
even the merit of plausibility.   There can be no doubt that
a detention as a result of lawful conviction must necessari-
ly  impair  the fundamental personal  rights  guaranteed  by
article  19  (1)   far  beyond  what  is  permissible  under
clauses (2) to (6) of that article and yet nobody can  think
of  questioning  the  validity of the detention  or  of  the
section  of the Indian Penal  Code under which the  sentence
was  passed. Why ? Because the freedom of his person  having
been lawfully taken away, the convict ceases to be  entitled
to  exercise the freedom of speech and expression or any  of
the other personal rights protected by clause (1) of article
19. On a parity of reasoning he cannot, while the  detention
lasts,  exercise any other personal right, e.g.,  he  cannot
eat  what he likes or when he likes but has to eat what  the
Jail  Code  provides for him and at the time when he  is  by
Jail regulations required to eat.  Therefore, the conclusion
is irresistible that the rights protected by article 19 (1),
in  so far as they relate to rights attached to the  person,
i.e.,  the rights referred to in sub-clauses (a) to (e)  and
(g),  are  rights  which only a free citizen,  who  has  the
freedom  of  his  person unimpaired, can  exercise.   It  is
pointed  out,  as a counter to the  above  reasonings,  that
detention  as  a  result  of a lawful  conviction  does  not
deprive a person of his right to acquire or hold or  dispose
of  his property mentioned in sub-clause (f). The answer  is
simple,  namely, that that right is not a right attached  to
the person (jus personrum) and its existence is not  depend-
ent  on the freedom of the person.  Loss of freedom  of  the
person,  therefore, does not suspend the right to  property.
But  suppose  a person loses his property by reason  of  its
having been compulsorily acquired under article 31 he  loses
his right to hold that property and cannot complain that his
fundamental  right  under sub-clause (f) of  clause  (1)  of
article  19 has been infringed.  It follows that the  rights
enumerated  in article 19 (1) subsist while the citizen  has
the  legal  capacity to exercise them. If  his  capacity  to
exercise them is gone, by reason of a lawful conviction with
respect to the rights
305
in sub-clauses (a) to (e) and (g), or by reason of a  lawful
compulsory  acquisition  with respect to the right  in  sub-
clause  (f), he ceases to have those rights while his  inca-
pacity lasts.  It further follows that if a citizen's  free-
dom of the person is lawfully taken away otherwise than as a
result of a lawful conviction for an offence, that  citizen,
for  precisely the same reason, cannot exercise any  of  the
rights attached to his person including those enumerated  in
sub-clauses  (a)  to (e) and (g) of article 19 (1).   In  my
judgment a lawful detention, whether punitive or preventive,
does not offend against the protection conferred by  article
19 (1) (a) to (e) and (g), for those rights must necessarily
cease when the freedom of the person is lawfully taken away.
In  short, those rights end where the lawful  detention  be-
gins.  So construed, article 19 and article 21  may,  there-
fore,  easily go together and there is, in reality, no  con-
flict between them.  It follows, therefore, that the validi-
ty or otherwise of preventive detention does not depend  on,
and is not dealt with by, article 19.
To summarise, the freedom of the person is not the result of
article 19.  Article 19 only   deals with' certain  particu-
lar  rights  which, in their    origin  and  inception,  are
attributes of the freedom of  the person but being of  great
importance are regarded as specific and independent  rights.
It  does  not deal with the freedom of the person  as  such.
Article  19 (1) (d) protects a specific aspect of the  right
of  free  locomotion,  namely,  the  right  to  move  freely
throughout  the  territory of India which is regarded  as  a
special  privilege  or  right of an Indian  citizen  and  is
protected as such. The protection of article 19 is co-termi-
nous  with the legal capacity of a citizen to  exercise  the
rights protected thereby, for sub-clauses (a) to (e) and (g)
of article 19 (1) postulate the freedom of the person  which
alone  can ensure the capacity to exercise the  rights  pro-
tected by those sub-clauses.  A citizen who loses the  free-
dom  of his person by being lawfully detained, whether as  a