dedol-hf/india-case-legal-rag huggingface dataset:
result  of  a conviction for an offence or as  a  result  of
preventive  detention loses his capacity to  exercise  those
rights  and,  therefore, has none of the rights  which  sub-
clauses (a) to (e) and (g) may protect.
306
In my judgment article 19 has no bearing on the question  of
the validity or otherwise of preventive detention and,  that
being so, clause (5) which prescribes a test of  reasonable-
ness to be defined and applied by the Court has no  applica-
tion at all.
Article 19 being thus out of the way, I come to  article
20 which is concerned with providing protection against what
are  well known as ex post facto laws, double  jeopardy  and
self-incrimination.  This article constitutes  a  limitation
on the absolute legislative power which would, but for  this
article, be exercisable by Parliament or the State  Legisla-
tures under article 246 read with the legislative lists.  If
the Legislature disobeys  this limitation  the  Court   will
certainly prevent it.  Article 20 has no bearing on  preven-
tive detention laws and I pass on.
Article 21 runs thus:
    "21.  No person shall be deprived of his life or person-
al  liberty   except according to procedure  established  by
law."
    The contention of learned counsel for the petitioner  is
that  by this article the Constitution offers to every  per-
son,  citizen or non-citizen, only a procedural  protection.
According to the argument, this article does not purport  to
give  any protection to life or personal liberty as  a  sub-
stantive right but only prescribes a procedure that must  be
followed  before  a person may be deprived of  his  life  or
personal  liberty.  I am unable to accept  this  contention.
Article 21, as the marginal note states, guarantees to every
person "protection of life and personal liberty."  As I read
it,  it defines the substantive fundamental right  to  which
protection  is given and does not purport to  prescribe  any
particular  procedure  at all.  That a person shall  not  be
deprived of his life or personal liberty except according to
procedure established by law is the substantive  fundamental
right to which protection is given by the Constitution.  The
avowed  object  of  the article, as I apprehend  it,  is  to
define  the ambit of the right to life and personal  liberty
which is to be protected as a fundamental right.  The  right
to life and
307
personal liberty protected by article 21 is not an  absolute
right   but is a  qualified right--a right circumscribed  by
the possibility or risk of being lost according to procedure
established  by law.  Liability to deprivation according  to
procedure  established by law is in the nature of  words  of
limitation. The article delimits the right by a reference to
its  liability to deprivation according to procedure  estab-
lished  by law and by this very definition throws  a  corre-
sponding  obligation  on  the State to  follow  a  procedure
before  depriving  a man of his life and  personal  liberty.
What  that procedure is to be is not within the  purpose  or
purview of this article to prescribe or indicate.
     The claim of learned counsel for the petitioner is that
article 21 prescribes a procedure.  This procedure,  accord-
ing  to learned counsel, means those  fundamental  immutable
rules of procedure which are sanctioned or well  established
by principles of natural justice accepted in all climes  and
countries and at all times.  Apart from the question whether
any  rule of natural procedure exists which conforms to  the
notions  of  justice  and fair play of all  mankind  at  all
times,  it  has to be ascertained whether  the  language  of
article  21 will permit its introduction into our  Constitu-
tion. The question then arises as to what is the meaning  of
the  expression  "procedure established by law."   The  word
"procedure" in article 21 must be taken to signify some step
or method or manner of proceeding leading up to the depriva-
tion of life or personal liberty.  According to the language
used  in the article, this procedure has to be  "established
by  law."   The  word "establish" according  to  the  Oxford
English  Dictionary, Vol. III, p. 297, means, amongst  other
things, "to render stable or firm ; to strengthen by materi-
al support; to fix, settle, institute or ordain  permanently
by  enactment or agreement."  According to  Dr.  Annandale's
edition of the New Gresham Dictionary the word  "establish,"
means,  amongst  other  things, "to  found  permanently;  to
institute; to enact or decree; to ordain; to ratify; to make
firm."  It follows that the word "established" in its  ordi-
nary natural sense means, amongst other things,   "enacted."
"Established  by  law"  will,
308
therefore, mean "enacted by law."  If this sense of the word
"established"  is  accepted, then the word "law"  must  mean
State-made  law and cannot possibly mean. the principles  of
natural  justice, for no procedure can be said to have  ever
been  "enacted" by those principles. When section  124-A  of
the  Indian Penal Code speaks of "Government established  by
law," surely it does not mean "Government set up by  natural
justice."  Therefore,  procedure established by law must,  I
apprehend,  be procedure enacted by the State which, by  its
definition in article  12, includes parliament. There is  no
escape from this position if the cardinal rule of  construc-
tion,  namely,  to give the words used in  a  statute  their
ordinary natural meaning, is applied. And this  construction
introduces no novelty or innovation, for at the date of  the
Constitution  the  law of procedure in  this  country.  both
civil  and criminal, was mainly if not wholly, the  creature
of  statute.  The Hindu or Muhammadan  laws   of   procedure
were  abrogated and replaced by the Code of Civil  Procedure
or  the  Code of Criminal Procedure.   Therefore,  procedure
established by law is quite compatible with procedure enact-
ed  by law. If, however, the word "established" is taken  to
mean  "sanctioned"  or  "settled" or "made  firm"  then  the
question  will arise as to the meaning of the word "law"  in
that context.  Reference is made to Salmond's Jurisprudence,
10th Edition, p. 37, showing that the term "law" is used  in
two  senses and it is suggested that the word "law"  in  the
expression  "established by law "means law in  its  abstract
sense of the principles of natural justice. It is "jus"  and
not  "lex," says learned counsel for the petitioner.  It  is
pointed out that both the English and the Indian law in many
cases, some of which have been cited before us, have  recog-
nised and applied the principles of natural justice and that
this Court should do the same in interpreting tim provisions
of  our Constitution. I find it difficult to let in  princi-
ples  of natural justice as being within the meaning of  the
word  "law,"  having regard to the obvious meaning  of  that
word in the other articles.  Article 14 certainly embodies a
principle of natural justice which ensures to.
309
  every  person equality before the law.  When natural  jus-
tice  speaks of and enjoins equality- before the  law,  that
law  must  refer to something outside natural  justice,  and
must  mean the State-made laws.  It is only when  the  State
law gives equality to every person that that law is said  to
be  in  accordance with natural justice.  There  can  be  no
doubt that the words "in accordance with law" in article  17
have  reference to State law.  Likewise, the word  "law"  in
article  20 (1) can mean nothing but law made by the  State.
The  same  remark applies to the words "in  accordance  with
law"  in articles 23, 31 and 32.  Natural justice  does  not
impose  any tax and, therefore, the word "law"  in  articles
265 and 286 must mean State-made law. If this be the correct
meaning of the word "law" then there is no scope for  intro-
ducing  the principles of natural justice in article 21  and
"procedure  established by law" must mcan  procedure  estab-
lished by law made by the State which, as defined,  includes
Parliament and the Legislatures of the States.
    We  have  been referred to a number of  text  books  and
decisions  showing the development of the American  doctrine
of  "due  process of law" and we have been  urged  to  adopt
those  principles in our Constitution. The matter has to  be
considered  against its historical background.  The  English
settlers in different parts of America had carried with them
the English common law as a sort of personal law  regulating
their rights and liberties inter se as well as between  them
and the State.  After the War of Independence the  Constitu-
tions  of  the United States were drawn up in  writing.  The
majority  of those who framed the Constitution were  lawyers
and  had closely studied the Commentaries of the great  Eng-
lish  jurist Blackstone, who in his famous commentaries  had
advocated  the separation of the three limbs of  the  State,
namely,  the executive, the legislature and  the  judiciary.
Montesquit's  Spirit  of  Laws had  already  been  published
wherein  he gave a broader and more emphatic  expression  to
the  Aristotelian  doctrine of separation  of  powers.   The
experience  of  the repressive laws of  Parliament  had  im-
pressed upon the framers of the American Constitution the
310
belief  that it was the habit of all legislative  bodies  to
grasp  and exercise powers that did not belong to them.  The
interference of the colonial governors with legislation  and
the  judiciary was also real.  This sad  experience  coupled
with the political philosophy of the time induced the  fram-
ers  of the American Constitutions to adopt  safeguards  not
only against the executive but also against the legislature.
(See  Munro  on  the Government of the  United  States,  5th
Edition,  Chapter IV, p. 53 et seq.).  Says Judge Cooley  in
his Constitutional Limitations, 6th Edition, Vol. II,  Chap-
ter XI, p. 755:
    "The  people of the American States, holding the  sover-
eignty  in  their own hands, have no occasion to  exact  any
pledges from any one for a due observation    of  individual
rights;  but the aggressive tendency of power is  such  that
they have deemed it of no small importance, that, in framing
the  instruments  under which their governments  are  to  be
administered  by  their agents, they should repeat  and  re-
enact this guarantee, and thereby adopt it as a principle of
constitutional protection."
    There can be little doubt that the people of the differ-
ent  States in America intended not to take any risk  as  to
their  life, liberty or property even from the  legislature.
As Munro puts it at pp. 58-61 :--
    "The  framers of the Constitution set boundaries to  the
powers  of the Congress, and it was their intent that  these
limitations should be observed.  But how was such observance
to be enforced by the Courts ? The statesmen of 1767 did not
categorically answer that question."
    The  Constitution  was silent and there was  no  express
provision  as  to  who was to serve as umpire  in  case  the
Congress  overstepped the limits of its legislative  powers.
By  the 5th Amendment what is now known as the "due  process
clause"  was introduced in the Federal Constitution  and  by
the 14th Amendment a similar clause was adopted in the State
Constitutions.  Some  of the State  Constitutions  used  the
words "due course of law," some repeated the words of  Magna
Charta, namely, "the law of the land" but most of
311
them  used  the expression "due process of  law."   All  the
expressions  meant  the same thing, namely, that  no  person
should  be deprived of his life, liberty or property  except
in due process of law. The Constitution by this clause  gave
the  Supreme  Court an opportunity to take upon  itself  the
function  of declaring the national  laws  unconstitutional.
And the Supreme Court, under the leadership of Chief Justice
John Marshall, seized this opportunity and assumed the right
to say the last word on questions of constitutionality,  and
possesses that right to-day:  (Munro, p. 62).
The expression "due process of law" has been interpreted
by  the   American Courts  in  different ways  at  different
times.   Carl  Brent Swisher in  his book on the  Growth  of
Constitutional  Power in the United States at p.  107  says,
with  reference  to the development of the doctrine  of  due
procedure:
    "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  activi-
ties in which the Government might engage.  During the third
period extending from 1936 to date, the use of "due process"
as  a substantive restriction has been largely suspended  or
abandoned, leaving it principally in its original status  as
a restriction upon procedure."
    In  the guise of interpreting "due process of  law"  the
American  Courts went much further than even Lord Coke  ever
thought of doing. The American Courts gradually arrogated to
themselves  the  power to revise all  legislations.  In  the
beginning  they  confined themselves to insisting on  a  due
procedure to be followed before a person was deprived of his
life,  liberty or property. In course of time, "due  process
of  law" came to be applied to personal liberty,  to  social
control, to procedure
40
312
to  jurisdiction and to substantive law:  (Willis, p.  642).
In the words of Munro "due process of law" became a sort  of
palladium  covering all manner of individual  rights.   A_II
the  while the Supreme Court refused to define  the  phrase,
but used it to enable it to declare unconstitutional any Act
of  legislation which it thought unreasonable:  (Willis,  p.
657). In Holden v. Hardy (1) we find the following  observa-
tions:
    "This Court has never attempted to define with precision
the words' due process of law ................  It is suffi-
cient to say that there are certain immutable principles  of
justice  which  inhere in the very idea of  free  government
which  no  member of the Union may disregard."In  Taylor  v.
Peter (2) Bronson J. observed:
    "The  words  'by  the law of the land' as  used  in  the
Constitution,  do not mean a statute passed for the  purpose
of  working the wrong.  That construction would  render  the
restriction  absolutely nugatory, and turn this part of  the
Constitution into mere nonsense. The people would be made to
say to the two Houses: ' You shall be vested with the legis-
lative  power of the. State, but no one shall be  disenfran-
chised  or deprived of any of the rights or privileges of  a
citizen,  unless  you pass a statute for that  purpose.   In
other words you shall not do the wrong unless you choose  to
do it.'"
    It was thus that the Supreme Court of the United  States
firmly  established  its own supremacy over  the  other  two
limbs of the State, namely, the executive and the  Congress.
In  the  words of John Dickinson quoted in Munro at  p.  61,
"The Judges of Aragon began by setting aside laws and  ended
by  making them."  And all this sweeping  development  could
only be possible because of the presence of one little  word
"due"  which,  in  its content, knows no bound  and  is  not
subject to any fixed definition. Whenever a substantive  law
or  some procedure laid down in any law did not find  favour
with the majority of the learned Judges of the Supreme Court
it was not reasonableand, therefore, it was not "due."
(1)  169  U.S. 366 at p. 389.              (2) 4  Hill  140,
145.
313
The  very  large and nebulous import of the word  "due"  was
bound to result in anomalies, for what was not "due" on  one
day  according to the Judges then constituting  the  Supreme
Court  became "due" say 20 years later according to the  new
Judges who then came to occupy the Bench, for the Court  had
to adapt the Constitution to the needs of the society  which
were  continually changing and growing.  The larger  content
of  due process of law, which included both  procedural  and
substantive  due  process  of law, had of  necessity  to  be
narrowed  down, for social interest in personal liberty  had
to  give way to social interest in other matters which  came
to be considered to be of more vital interest to the  commu-
nity.  This was achieved by the Supreme Court of the  United
States evolving the new doctrine of police powers--a  pecul-
iarly  American  doctrine.  The police  powers  are  nowhere
exhaustively  defined.  In Chicago B. & Q. Ry.  v.  Drainage
Commissioner  (1) ,, police power" has been stated  to  "em-
brace regulations designed to promote the public convenience
or  the general prosperity, as well as regulations  designed
to  promote  the  public health, the public  morals  or  the
public safety." Reference in this connection may be made  to
Cooley's  Constitutional Limitations, 8th Edition, Vol.  II,
p. 1223 and to Chapter XXVI of Willis at p. 727.
    The nett result is that the all-inclusive and  indefina-
ble  doctrine of due process of law has in America now  been
brought  back  to its original status of  a  procedural  due
process of law by the enunciation and application of the new
doctrine of police power as an antidote or palliative to the
former.  Who knows when the pendulum will swing again.
    Turning  now to what has been called the procedural  due
process  of  law it will be found that the matter  has  been
described  in  different languages in different  cases.   In
Westervelt v. Gregg (2) Edwards J. defined it thus:
    "Due process of law undoubtedly means, in the due course
of legal proceedings, according to those rules
204 u.s. 561,592.                  (2) 12 N.Y. 202.
314
and forms which have been established for the protection  of
private rights."
    A more specific definition of the expression "the law of
the  land" meaning procedural due process was given by  Web-
ster appearing as counsel for the plaintiff in error in  the
Trustees of Dartmouth College v. Woodward (1):
    "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 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.   Everything  which
may pass under the form of an enactment is not therefore  to
be considered the law of the land."
Willis in Ch. XXIII, p. 661, says:
    "The  guarantee  of due process of law as  a  matter  of
procedure means that no part of a person's personal liberty,
including ownership, shall be taken away from him except  by
the  observance of certain formalities. Hence its object  is
the protection of the social interest in personal liberty."
    At  p.  662 Willis enumerates the  requirements  of  the
procedural  due  process of law as follows:(1)  notice.  (2)
opportunity to be heard, (3) an impartial tribunal, and  (4)
an  orderly course of procedure.  In short,  the  procedural
due process requires that a person who is to be deprived  of
his  life,  liberty or property shall have had "his  day  in
Court." This according to Willough by p. 736, means:
    "(1)  that  he shall have had due notice, which  may  be
actual  or constructive, of the institution of the  proceed-
ings by which his legal rights may be affected; (2) that  he
shall be given a reasonable opportunity to appear and defend
his  rights,  including  the right himself  to  testify,  to
produce  witnesses, and to introduce relevant documents  and
other evidence, (3) that the tribunal in or before which his
rights are adjudicated is so constituted as to give reasona-
ble assurance of its.
(1)  4 Wheaton 518 at p. 579; 4 L. Edn. 629 at p. 645.
315
honesty  and  impartiality; and (4) that it is  a  Court  of
competent jurisdiction."
    It will be noticed that the fourth item of Willoughby is
different  from the fourth item of Willis. Such,  in  short,
are  the history of the development of the doctrine  of  the
process of law in the United States and the requirements  of
the  procedural  due process as insisted on by  the  Supreme
Court of that country.
    Learned  counsel for the petitioner before us  does  not
contend that we should import this American doctrine of  due
process  of law in its full glory but that we  should  adopt
the procedural part of it and insist that no person shall be
deprived  of  his  life or personal liberty  except  by  the
observance  of the formalities which justice and  fair  play
require  to be observed.  The arguments of  learned  counsel
for  the  petitioner are attractive and in the  first  blush
certainly appeal to our sentiment but on serious  reflection
I find several insuperable objections to the introduction of
the American doctrine of procedural due process of law  into
our  Constitution.  That doctrine can only thrive  and  work
where the legislature is subordinate to the judiciary in the
sense  that the latter can sit in judgment over  and  review
all  acts of the legislature.  Such a doctrine can  have  no
application  to  a field where the legislature  is  supreme.
That  is why the doctrine of "due process of law"  is  quite
different  in  England  where Parliament  is  supreme.  This
difference  is pointedly described by Mathews J.  in  Joseph
Hurtado v. People of California (1) at p. 531:
    "The  concessions  of Magna Charta were wrung  from  the
King as guarantees against oppression and usurpation of  his
prerogatives.  It did not enter into the minds of the barons
to  provide security against their own body or in favour  of
the  commons  by limiting the power of Parliament,  so  that
bills  of  attainder,  ex post facto  laws,  laws  declaring
forfeitures of estates and other arbitrary Acts of  legisla-
tion  which  occur so frequently in  English  history,  were
never  regarded  as inconsistent with the law of  the  land,
for,  notwithstanding what was attributed to Lord  Coke  in.
Bonham's
(1) (1883) 110 U.S. 516.
316
case,  [8 Coke 115, 118 (a),] the omnipotence of  Parliament
over the Common Law was absolute, even against common  right
and  reason.  The actual and practical security for  English
liberty against legislative tyranny was the power of a  free
public opinion represented by the Commons.
    In this country written Constitutions were deemed essen-
tial  to  protect  the rights and liberties  of  the  people
against  the encroachments of power delegated to their  gov-
ernments and the provisions of Magna Charta were incorporat-
ed  in the bills of rights.  They were limitations upon  all
the  powers of government, legislative as well as  executive
and judicial."
    This  basic distinction between the two  systems  should
never  be  lost sight of, if confusion of thought is  to  be
avoided. Although our Constitution has imposed some  limita-
tions  on  the legislative authorities, yet subject  to  and
outside  such  limitations  our Constitution  has  left  our
Parliament  and  the  State Legislatures  supreme  in  their
respective legislative fields.  In the main, subject to  the
limitations I have mentioned, our Constitution has preferred
the  supremacy of the Legislature to that of the  Judiciary.
The  English principle of due process of law is,  therefore,
more  in  accord  with our Constitution  than  the  American
doctrine which has been evolved for serving quite a  differ-
ent  system. The picturesque language of Bronson  J.  quoted
above,  while  that  is quite appropriate  to  the  American
Constitution  which does not recognise the  supremacy     of
the Congress, is wholly out of place in, and has no applica-
tion to, a Constitution such as ours, which, subject only to
certain restrictions, recognises the supremacy of the Legis-
latures  in their respective fields.  In the next place,  it
is common knowledge that our Constitution-makers deliberate-