dedol-hf/india-case-legal-rag huggingface dataset:
ly  declined  to adopt the uncertain and  shifting  American
doctrine  of due process of law and substituted  the  words'
"except  in  due process of law" that were in  the  original
draft by the more specific expression "except in  accordance
with procedure established by law."  To try to bring in  the
American doctrine, in spite of this fact, will be to stulti-
fy the intention of the Constitution as expressed in
317
article 21. In the third place, in view of the plain meaning
of  the language of that article as construed and  explained
above  it is impossible to let in what have been called  the
principles  of natural justice as adopted in the  procedural
due  process  of law by the American Supreme  Court.  Again,
even  the  all-pervading little word "due" does not  find  a
place  in  article 21 so as to qualify  the  procedure.   It
speaks of procedure and not "due" procedure and,  therefore,
"the  intellectual  yardstick" of the  Court  is  definitely
ruled  out.  Finally, it will be incongruous to  import  the
doctrine  of due process of law without its palliative,  the
doctrine  of  police powers.  It is impossible to  read  the
last mentioned doctrine into article 21.
    It  has  also been suggested as a compromise  that  this
Court  should  adopt a middle course  between  the  flexible
principles  of  natural justice as adopted by  the  American
doctrine of due process of law and the unbending rigidity of
mere  State-made laws.  h is said that we have our  Code  of
Criminal  Procedure  which embodies  within  its  provisions
certain salutary principles of procedure and we must  insist
that  those  underlying  principles should  be  regarded  as
procedure  established or settled by our positive law.   But
who  will say what are those fundamental principles?    What
principles.  do  I reject as inessential and  what  shall  I
adopt as fundamental ?  What is fundamental to me today  may
not  appear  to be so to another Judge a decade  hence,  for
principles  give  way with changing  social  conditions.  In
America  it was suggested that due process of law should  be
taken to  mean the general body of common law as it stood at
the date of the Constitution.  In Bardwell v. Collins (1) it
was negatived in the following words:
    "'Due process of law' does not mean the general body  of
the  law,  common  and statute, as it was at  the  time  the
Constitution  took effect; for that would deny the  legisla-
ture power to change or amend the law in any particular."
The Court, however, brought in principles of
(1) 44 Minn. 97.
318
natural  justice under the due process clause.  To  sanctify
what I may to-day regard as the basic principles  underlying
our Code of Criminal Procedure will be to make them  immuta-
ble  and  to prevent the legislature even  to  improve  upon
them.   This  is nothing but imposing on the  legislature  a
limitation  which the Constitution has not placed on it.   I
do not think it is a permissible adventure for the Court  to
undertake.   It is a dangerous adventure, for it will  bring
about  stagnation which means ruin. We must accept the  Con-
stitution which is the supreme law. The Constitution has  by
article  21 required a procedure and has prescribed  certain
minimum  requirements of procedure in article 22. To add  to
them  is not to interpret the Constitution but to recast  it
according to our intellectual yardstick and our  unconscious
predilections as to what an ideal Constitution should be.
    Article  21, in my judgment, only formulates a  substan-
tive fundamental right to life and personal liberty which in
its content is not an absolute right but is a limited  right
having  its  ambit circumscribed by the risk  of  its  being
taken away by following a procedure established by law  made
by  the appropriate legislative authority and the  proximate
purpose  of  article 21 is not to prescribe  any  particular
procedure.  It is to be kept in mind that at the  date  when
the  Constitution came into effect we had the  Indian  Penal
Code  creating diverse offences and a conviction for any  of
them  would deprive a person of his personal liberty.  Under
article  246 read with Entry 1 of the Concurrent List,  Par-
liament or any State Legislature could add more offences and
create further means for taking away personal liberty.   But
all  this deprivation of personal liberty as a result  of  a
conviction  could  only be done by following  the  procedure
laid down by the Code of Criminal Procedure.  Again, at  the
date  of this Constitution there were  preventive  detention
laws in almost every province and a person could be deprived
of  his  personal  liberty under those  laws.   Those  laws,
however,  provided  a procedure of a sort which  had  to  be
followed.   Therefore,  before the  Constitution  came  into
force, personal liberty could be taken away
319
only  by  following the procedure enacted  by  the  Criminal
Procedure  Code in the case of punitive detention or by  the
procedure enacted by the different Security Acts in case  of
preventive  detention.   Power, however, has been  given  to
Parliament and the State Legislatures under article 246 read
with  Entry 2 of the Concurrent List to make laws  with  re-
spect  to Criminal Procedure.   If  that  article  stood  by
itself the Parliament or the State Legislature could  repeal
the  whole of the Criminal Procedure Code and also  do  away
even  with the skeleton procedure provided in  the  Security
Acts.   If article 246 stood by itself then the  appropriate
legislative   authority could  have taken away the life  and
personal liberty of any person without any procedure at all.
This  absolute supremacy of the legislative  authority  has,
however,  been  cut down by article 21  which  delimits  the
ambit and scope of the substantive right to life and person-
al  liberty  by reference to a procedure and by  article  22
which  prescribes the minimum procedure which must  be  fol-
lowed.  In this situation the only power of the Court is  to
determine whether the impugned law has provided some  proce-
dure  and  observed and obeyed the minimum  requirements  of
article  29. and if it has, then it is not for the Court  to
insist  on more elaborate procedure according to its  notion
or  to question the wisdom of the legislative  authority  in
enacting  the particular law, however  harsh,  unreasonable,
archaic or odious the provisions of that law may be.
    It  is said that if this strictly technical  interpreta-
tion  is put upon article 21 then it will not  constitute  a
fundamental  right at all and need not have been  placed  in
the  chapter on Fundamental Rights, for every person's  life
and personal liberty will be at the mercy of the Legislature
which,  by providing some sort of a procedure and  complying
with  the few requirements of article 22, may, at any  time,
deprive a person of his life and liberty at its pleasure and
whim.   There are several answers to this line of  argument.
Article  21 as construed by me will, if nothing  else,  cer-
tainly  protect  every person against the executive  and  as
such will be as much a fundamental right deserving
411
320
a  place in the Constitution as the famous 39th  Chapter  of
the Magna Charta was and is a bulwark of liberty in  English
law.   It appears to me that article 21 of our  Constitution
read  with  article 32 also gives us  some  protection  even
against the legislative authority in that a person may  only
be  deprived of his life and personal liberty in  accordance
with procedure which, although enacted by it, must at  least
conform to the requirements of article 22.  Subject to  this
limitation our parliament or any State Legislature may enact
any law and provide any procedure it pleases for depriving a
person  of his life and personal liberty under  article  21.
Such  being  the meaning of that article and the  ambit  and
extent of the fundamental right of life and personal liberty
which the people of this country have given unto themselves,
any  law for depriving any person of his life  and  personal
liberty  that  may be made by  the  appropriate  legislative
authority  under  article  246 and in  conformity  with  the
requirements  of  article 22 does not take away  or  abridge
any  right   conferred by article  21,  for the  very  right
conferred by that article is circumscribed  by  this  possi-
bility or risk and, therefore, such law cannot be   regarded
as   violating   the  provisions of article  13  (2).    Our
Constitution is a compromise between Parliamentary supremacy
of  England  and the supremacy of the Supreme Court  of  the
United  States. Subject to the limitations I have  mentioned
which  are certainly justiciable, our Constitution  has  ac-
cepted the supremacy of the legislative authority and,  that
being so, we must be prepared to face occasional vagaries of
that body and to put up with enactments of the nature of the
atrocious  English statute to which learned counsel for  the
petitioner has repeatedly referred, namely, that the  Bishop
of  Rochester's cook be boiled to death.  If Parliament  may
take  away life by providing for hanging by the neck,  logi-
cally there can be no objection if it provides a sentence of
death  by shooting by a firing squad or by guillotine or  in
the  electric chair or even by boiling in oil.  A  procedure
laid down by the legislature may offend against the  Court's
sense of justice and fair play
821
and  a sentence provided by the legislature may outrage  the
Court's notions of penology, but that is a wholly irrelevant
consideration.  The  Court may construe  and  interpret  the
Constitution and ascertain its true meaning but once that is
done  the Court cannot question its wisdom or  policy.   The
Constitution is supreme.  The Court must take the  Constitu-
tion  as  it finds it, even if it does not accord  with  its
preconceived  notions of what an ideal  Constitution  should
be.   Our  protection against legislative tyranny,  if  any,
lies  in ultimate analysis in a free and intelligent  public
opinion which must eventually assert itself.
    The conclusion I have arrived at does not introduce  any
novelty,  for in many other Constitutions the  supremacy  of
the  legislature is recognised in the matter of depriving  a
person  of  his life, liberty and  property.    The  English
Democratic Constitution is one in point.  Take the Constitu-
tion  of the Irish Free State.  Article 40 (4) (i)  provides
that  no citizen shall be deprived of personal liberty  save
in  accordance with law, and article 50 (5) guarantees  that
the dwelling of every citizen is inviolable and shall not be
forcibly entered save in accordance with law.  The words "in
accordance with law" in both the above clauses must mean the
same  thing and I have no doubt in my mind,  reading  clause
(5)that it means in accordance with the State-made law,  for
we have not been referred to any rule prescribed by  natural
justice  regulating  searches of, or  entry  into,  dwelling
houses.  Article 107 (2) of the Czechoslovakian Constitution
uses  the  words "in accordance with law" which,  read  with
clause  (1) of that article, obviously means the law  to  be
made  which  will form part of the  Constitution.  Take  the
Constitution  of the Free City of Danzig. Article74 of  that
Constitution which is in Part II headed "Fundamental  Bights
and Duties" provides as follows:
    "The  liberty  of  the person shall  be  inviolable.  No
limitation or deprivation of personal liberty may be imposed
by public authority, except by virtue of a law."
322
  The word" law" clearly cannot, in the context,mcan princi-
ples of natural justice-  Again, article 75 of that  Consti-
tution protects the freedom of movement within the Free City
and the right to stay and to settle at any place, to acquire
real  property  and  to earn   a living.   It  concludes  by
saying that this right shall not be curtailed without  legal
sanctions.  Legal sanctions, in this context, can only  mean
sanctions  of  the  City laws.  Article 114  of  the  Weimar
Constitution   is on the same lines and expressed in  almost
the same language as article 74 of the Danzig  Constitution.
Take the Japanese Constitution of 1946 from which our  arti-
cle  21 is reputed to have been taken. Article XXXI of  that
Constitution says:
No person shall be deprived of life or liberty nor shall any
other  criminal  penalty  be imposed,  except  according  to
procedure established by law."
Surely the words "except according to procedure  established
by  law" in their application to the imposition of  criminal
penalty  must mean State-made law and the same words in  the
same sentence in the same article cannot, according to ordi-
nary  rules  of construction of statutes, mean  a  different
thing in their application to deprivation of life or  liber-
ty.  I am aware that it is not right to construe one Consti-
tution  in the light of another and that is not  my  purpose
when I refer to the other Constitutions; but I do think that
after reading the relevant provisions of other written  Con-
stitutions one sees quite clearly that there is no  pressing
special reason applicable to or inherent in written  Consti-
tutions which requires the importation of the principles  of
natural  justice or of the American doctrine of due  process
of  law  into our Constitution.  The  several  Constitutions
referred  to above have not adopted that  American  doctrine
but  have been content with leaving the life and liberty  of
their citizens to the care of the laws made by their  legis-
latures.  It is no novelty if our Constitution has done  the
same.  For all these reasons, in spite of the very able  and
attractive  arguments of the learned counsel for  the  peti-
tioner  which I freely acknowledge, I am not convinced  that
there  is any scope for the introduction into article 21  of
our
323
Constitution  of the doctrine of due process of law even  as
regards  procedure.  I may or may not like it, but  that  is
the result of our Constitution as I understand it.
The  learned  Attorney-General has referred  to  certain
debates  in the Constituent Assembly on the original  clause
which has now become article 21, not as evidence to be  used
in interpreting the language of article 21 but as   disclos-
ing the historical background.  His purpose, he says, is  to
show that the framers of our Constitution had the  essential
difference  in  the meaning of the phrases "due  process  of
law" and "according to procedure established by law" clearly
explained  to them, that they knew that the  former  implied
the supremacy of the judiciary and the latter the  supremacy
of the legislature and with all that knowledge they deliber-
ately  agreed to reject the former expression and adopt  the
latter.  As, in my opinion, it is possible to interpret  the
language of article 21 on the ordinary rules of  interpreta-
tion  of    statutes, I do not think it is at all  necessary
to  refer  to the debates. As I do not propose to refer  to,
or  rely   on, the debates for the purposes of this case,  I
express no opinion on the  question of the admissibility  or
otherwise of the debates.
    I now pass on to article 22.  The contention of  learned
counsel  for the petitioner is that article 21 by reason  of
the  last few words, "according to procedure established  by
law"  attracts the four requirements of the American  proce-
dural  due process of law as summarised by Willis  to  which
reference  has  been made earlier, and that  those  require-
ments,  except to the extent they have been expressly  abro-
gated  or modified by article 22, must be strictly  followed
before  a  person may be deprived of his  life  or  personal
liberties.   I  have already stated for  reasons  set  forth
above,  that there is no scope for introducing any  rule  of
natural  justice or the American procedural due  process  of
law  or  any underlying principle of our  Code  of  Criminal
Procedure  into that article.  This being the  conclusion  I
have arrived at, the major premise assumed by learned  coun-
sel for the petitioner is missing and this
324
line of argument does not begin and cannot be accepted.
    The learned Attorney-General, on the other hand. has  at
one stage of his argument, urged that article 21 has nothing
to  do with preventive detention at all and that  preventive
detention  is wholly covered by article 22 (4) to (7)  which
by  themselves constitute a complete code.  I am  unable  to
accede  to this extreme point of view also.  The true  posi-
tion, as I apprehend it, lies between the two extreme views.
Article 21, to my mind, gives protection to life and person-
al  liberty  to the extent therein mentioned.  It  does  not
recognise  the  right  to life and personal  liberty  as  an
absolute right but delimits the ambit and scope of the right
itself   The  absolute right is by the  definition  in  that
article  cut  down by the risk of its being  taken  away  in
accordance  with procedure established by law.  It  is  this
circumscribed  right   which is substantively  protected  by
article   21  as   against  the  executive as  well  as  the
legislature, for the Constitution has conditioned its depri-
vation  by the necessity for a procedure established by  law
made  by itself.  While subclauses (2) to (6) of article  19
have  put  a limit on the fundamental rights of  a  citizen,
articles  21 and 22 have    put a limit on the power of  the
State  given  under article 246 read  with  the  legislative
lists.  Under our Constitution our life and personal liberty
are  balanced by restrictions on the rights of the  citizens
as  laid down in article 19 and by the checks put  upon  the
State by articles 21 and 22.   preventive detention deprives
a  person  of his personal liberty as  effectively  as  does
punitive detention and, therefore, personal liberty, circum-
scribed  as it is by the risk of its being taken  away,  re-
quires  protection  against punitive as well  as  preventive
detention.  The language of article 21 is quite general  and
is  wide enough to give its limited protection  to  personal
liberty  against  all forms of detention.    It  protects  a
person against preventive detention by the executive without
the sanction of a law made by the legislature.   It prevents
the legislature from taking away a person's personal liberty
except  in  accordance with procedure  established  by  law,
although such
325
law  is  to be by itself.  If, as contended by  the  learned
Attorney-General  and held by me, article 19  only  protects
the rights of a free citizen as long as he is free and  does
not deal with total deprivation of personal liberty and  if,
as  contended by the learned Attorney-General,   article  21
does not protect a person against preventive detention  then
where  is  the protection for life and personal  liberty  as
substantive rights which the procedural provisions of  arti-
cle 22 may protect ?  What is the use of procedural  protec-
tion  if  there is no substantive right ?   In  my  judgment
article  21 protects the substantive rights by  requiring  a
procedure  and article 22 gives the minimum procedural  pro-
tection.
Clauses  (1)  and (2) of article 22 lay down  the  procedure
that has to be followed when a man is arrested. They  ensure
four  things: (a) right to be informed regarding grounds  of
arrest, (b) right to consult, and to be defended by, a legal
practitioner of his choice, (c) right to be produced  before
a magistrate within 24 hours and (d) freedom from  detention
beyond  the  said  period  except  by order of  the   magis-
trate.  These  four procedural requirements  are  very  much
similar to the requirements  of  the procedural due  process
of  law  as enumerated by Willis.  Some  of  these  salutary
protections  are  also to be found in our Code  of  Criminal
Procedure.  If the procedure has already been prescribed  by
article  21 incorporating the principles of natural  justice
or the principles underlying our Code of Criminal  Procedure
what was the necessity of repeating them in clauses (1)  and
(2)  of article 22 ? Why this unnecessary overlapping ?  The
truth  is that article 21 does not prescribe any  particular
procedure but in defining the protection to life and person-
al liberty merely envisages or indicates the necessity for a
procedure  and  article 22 lays down the  minimum  rules  of
procedure that even Parliament cannot abrogate or  overlook.
This  is  so far as punitive detention  is  concerned.   But
clause (3) of article 22 expressly provides that none of the
procedure laid down in clauses (1) and (2) shall apply to an
alien enemy or to a person who is arrested or detained under
any  law  providing for preventive detention.   It  is  thus
expressly
326
made  clear  that a detenu need not be produced  before  the
magistrate  and  he  is not to have the  assistance  of  any
lawyer for consultation or for defending him. Such being the
express  provision of our Constitution nobody  can  question
its wisdom.  So I pass on.
Clauses  (4),  (5),  (6)  and (7) of  article  22  in  terms
relate to preventive detention.  Article 246 authorises  the
appropriate legislature to make a law for preventive  deten-
tion  in terms of Entry 9 in List I and/or Entry 3  in  List
III  of the Seventh Schedule. On this legislative power  are
imposed  certain  limitations  by article  22  (4)  to  (7).
According to this the legislature, whether it be  Parliament
or  a State Legislature, is reminded that no law made by  it
for preventive detention shall authorise the detention of  a
person  for a longer period than three months except in  two
cases mentioned in sub-clauses (a) and (b).  The proviso  to
sub-clause  (a) and sub-clause (b) refer to a law made  only
by  Parliament  under clause (7).  Under clause  (7)  it  is
Parliament  alone  and not any State  Legislature  that  may
prescribe what are specified in the three subclauses of that
clause.   Although  a State Legislature may make a  law  for
preventive detention in terms of Entry 3 in List III of  the
Seventh  Schedule  no such law may authorise  detention  for
more than three months unless the provisions of  sub-clauses
(a)and  (b) of clause (4) sanction such detention.   Even  a
law  made by Parliament cannot authorise detention for  more
than  three months unless it is a law made under the  provi-
sions  of  clause (7).  In short, clause (4) of  article  22
provides  a  limitation on the legislative power as  to  the
period  of  preventive  detention.  Apart  from  imposing  a
limitation  on the legislative power, clause (4)  also  pre-
scribes  a procedure of detention for a period  longer  than
three months by providing for an advisory board.  Then comes
clause  (5). It lays down the procedure that has to be  fol-
lowed when a person is detained under any law providing  for
preventive  detention, namely, (a) the grounds of the  order
of  detention must be communicated to the detenu as soon  as
may  be,  and (b) the detenu must be afforded  the  earliest
opportunity of making a representation against
327
the order.  The first requirement takes the place of  notice
and  the second that of a defence or hearing. These are  the
only  compulsory  procedural requirements laid down  by  our
Constitution.   There is nothing to prevent the  Legislature
from providing an elaborate procedure regulating  preventive
detention but it is not obliged to do so.  If some procedure
is  provided as envisaged by article 21 and  the  compulsory
requirements of article 22 are obeyed and carried out nobody
can,  under our Constitution, as I read it, complain of  the
law providing for preventive detention.
    Learned  counsel  for the petitioner concedes  that  the
four  requirements of procedural due process  summarised  by
Willis  will  have to be modified in  their  application  to
preventive  detention.   Thus he does not insist on a  prior
notice before arrest, for he recognises that such a require-
ment  may frustrate the very object of preventive  detention
by  giving  an opportunity to the person in question  to  go
underground.   The  provision in clause  (5)  for  supplying
grounds  is a good substitute for notice.  He also does  not
insist that the Tribunal to judge the reasonableness of  the