dedol-hf/india-case-legal-rag huggingface dataset:
nation of the scheme and language of the catena of  articles
which deal with the rights to freedom would be sufficient to
show that what clause (1) (d) of article 19 contemplates  is
not  freedom from detention, either punitive or  preventive;
it  relates to and speaks of a different aspect or phase  of
civil liberty.
(1) [1936] A.C. 578 at p. 613.
253
    Article  19, which is the first of this series of  arti-
cles, enumerates seven varieties or forms of freedom  begin-
ning with liberty of speech and expression and ending'  with
free  right to practise any trade, profession  or  business.
The  rights declared it articles 19 to 22 do  not  certainly
exhaust  the  whole list of liberties which  people  possess
under  law.  The object of the framers of  the  Constitution
obviously  is  to  enumerate and guarantee  those  forms  of
liberty which come under well-known categories recognised by
constitutional writers and are considered to be  fundamental
and of vital importance to the community.
    There  cannot  be any such thing as absolute  or  uncon-
trolled liberty wholly freed from restraint, for that  would
lead to anarchy and disorder.  The possession and  enjoyment
of  all  rights,  as was observed by the  Supreme  Court  of
America  in  Jacobson v. Massachusetts (1), are  subject  to
such reasonable conditions as may be deemed by the governing
authority  of the country essential to the  safety,  health,
peace,  general  order  and morals of  the  community.   The
question,  therefore  arises in each case of  adjusting  the
conflicting interests of the individual and of the  society.
In  some  cases, restrictions have to be  placed  upon  free
exercise of individual rights to safeguard the interests  of
the society; on the other hand, social control which  exists
for public good has got to be restrained, lest it should  be
misused to the detriment of individual rights and liberties.
Ordinarily,  every man has the liberty to order his life  as
he  pleases,  to say what he will, to go where he  will,  to
follow any trade, occupation or calling at his pleasure  and
to  do any other thing which he can lawfully do without  let
or hindrance by any other person.  On the other hand for the
very  protection  of these liberties the  society  must  arm
itself with certain powers.  No man's liberty would be worth
its  name if it can be violated with impunity by any  wrong-
doer and if his property or possessions could be preyed upon
by a thief or a marauder. The society, therefore, has got to
exercise  certain powers for the protection of these  liber-
ties and to arrest, search, imprison and
(1) 197 U.S. 11.
254
punish those who break the law.  If these powers are'  prop-
erly exercised, they themselves are the safeguards of  free-
dom,  but  they  can certainly be abused.   The  police  may
arrest  any man and throw him into prison without  assigning
any reasons; they may search his belongings on the slightest
pretext;  he may be subjected to a sham trial and even  pun-
ished  for  crimes unknown to law.  What  the  Constitution,
therefore,  attempts  to do in declaring the rights  of  the
people is to strike a balance between individual liberty and
social control.
To me it seems that article 19 of the Constitution gives
a list of individual liberties and prescribes in the various
clauses the restraints that may be placed upon them by  law,
so that they may not conflict with public welfare or general
morality.  On  the  other hand articles 20, 21  and  22  are
primarily  concerned  with penal enactments  or  other  laws
under  which personal safety or liberty of persons could  be
taken away in the interests of the society and they set down
the  limits within which the State control should  be  exer-
cised.  Article 19 uses the expression ' 'freedom" and  men-
tions the several forms and aspects of it which are  secured
to individuals, together with the limitations that could  be
placed  upon them in the  general interests of the  society.
Articles 20, 21 and 22 on the other hand do not make use  of
the expression "freedom" and they lay down the  restrictions
that  are to be placed on State control where an  individual
is  sought to be deprived of his life or  personal  liberty.
The  right  to  the safety of one's life and  limbs  and  to
enjoyment of personal liberty, in the sense of freedom  from
physical restraint and coercion of any sort, are the  inher-
ent  birthrights  of  a man.  The essence  of  these  rights
consists  in restraining others from interfering  with  them
and hence they cannot be described in terms of  "freedom" to
do particular things. There is also no question of  imposing
limits on the activities of individuals so far as the  exer-
cise  of  these rights is concerned.  For these  reasons,  I
think, these rights have not been mentioned in article 19 of
the Constitution.  An individual can be deprived of his life
or personal liberty only by action
255
of  the  State,  either under the provisions  of  any  penal
enactment  or in the exercise of any other coercive  process
vested  in it under law.  What the Constitution does  there-
fore  is to put restrictions upon the powers of  the  State,
for  protecting  the  rights of the  individuals.   The  re-
straints  on State authority operate as guarantees of  indi-
vidual  freedom  and secure to the people the  enjoyment  of
life  and  personal liberty which are thus  declared  to  be
inviolable except in the manner indicated in these articles.
In  my  opinion, the group of articles 20 to 22  embody  the
entire protection guaranteed by the Constitution in relation
to deprivation of life and personal liberty both with regard
to  substantive  as  well as to procedural law.  It  is  not
correct  to  say, as I shah show more fully later  on,  that
article  21 is confined to matters of procedure only.  There
must  be a substantive law, under which the State is  empow-
ered  to deprive a man of his life and personal liberty  and
such law must be a valid law which the legislature is compe-
tent to enact within the limits of the powers assigned to it
and which does not transgress any of the fundamental  rights
that  the Constitution lays down.  Thus a person  cannot  be
convicted  or punished under an ex post facto law, or a  law
which compels the accused to incriminate himself in a crimi-
nal  trial  or punishes him for the same offence  more  than
once.  These are the protections provided for by article 20.
Again a law providing for arrest and detention must  conform
to  the  limitations prescribed by clauses (1)  and  (2)  of
article  22.  These provisions  indeed have  been  withdrawn
expressly in case of preventive detention and protections of
much more feeble and attenuated character have been  substi-
tuted  in their place;but this is a question of  the  policy
adopted  by  the Constitution which does not concern  us  at
all.   The position, therefore, is that with regard to  life
and personal liberty, the Constitution guarantees protection
to this extent that no man could be deprived of these rights
except  under a valid law passed by a competent  legislature
within the limits mentioned above and in accordance with the
procedure  which  such law lays down.  Article  19,  on  the
other hand,
256
enunciates  certain particular forms of civil liberty  quite
independently  of  the rights dealt with under  article  21.
Most of them may be connected with or dependent upon person-
al liberty but are not identical with it; and the purpose of
article 19 is to indicate the limits within which the  State
could,  by legislation, impose restrictions on the  exercise
of  these rights by the individuals.  The reasonableness  or
otherwise  of such legislation can indeed be  determined  by
the Court to the extent laid down in the several clauses  of
article 19, though no such review is permissible with regard
to laws relating to deprivation of life and personal  liber-
ty.   This  may be due to the fact that  life  and  personal
freedom constitute the most vital and essential rights which
people  enjoy under any State and in such  matters the  pre-
cise  and  definite  expression of  the  intention  of   the
legislature  has  been preferred by the Constitution to  the
variable  standards  which the  judiciary might   lay  down.
We find the rights relating  to personal liberty  being  de-
clared  almost in the  same  terms  in    the  Irish Consti-
tution  article 40 (1) (4) (1) of which lays down  that  "no
citizen  shall be deprived  of his personal liberty save  in
accordance  with law." In the Constitution of the Free  City
of  Danzig, "the liberty of the person has been declared  to
be  inviolable and no limitation or deprivation of  personal
liberty may be imposed by public authority except by  virtue
of  a  law" (vide article 74).  Article 31 of  the  Japanese
Constitution  is the closest parallel to article 21  of  the
Indian  Constitution and the language is  almost  identical.
This  is the scheme adopted by the Constitution  in  dealing
with  the  rights  to freedom described in  the  chapter  on
fundamental rights and in my opinion, therefore, the  proper
test  for  determining the validity of  an  enactment  under
which  a  person is sought to be deprived of  his  life  and
personal  liberty has to be found not in article 19, but  in
the  three following articles of the Constitution.   Article
20  of course has no application so far as the law  relating
to preventive detention is concerned.
Mr. Nambiar's endeavour throughout has been to
257
establish  that article 19 (1) (d) of the Constitution  read
with article 19 (5) enunciates the fundamental rights of the
citizens regarding the substantive law of personal  liberty,
while  article 21 embodies the protection as regards  proce-
dural  law. This, in my opinion, would be looking  at  these
provisions from a wrong angle altogether.  Article 19 cannot
be said to deal with substantive law merely, nor article  21
with mere matters of procedure.  It cannot also be said that
the  provisions of article 19 (1) (d) read with  clause  (5)
and  article 21 are complementary to each other.   The  con-
tents  and  subject  matter of the two  provisions  are  not
identical  and they proceed  on totally  different   princi-
ples. There is no mention of any "right to life" in  article
19,  although  that is the primary and  the  most  important
thing  for  which provision is made in article 21.   If  the
contention of the learned counsel is correct, we would  have
to hold that no protection is guaranteed by the Constitution
as  regards  right to life so far substantive  law  is  con-
cerned. In the second place, even if freedom of movement may
be regarded as one of the ingredients of  personal  liberty,
surely there are other elements included in the concept  and
admittedly no provision for other forms of personal  liberty
are  to  be  found in article 19 (5)  of  the  Constitution.
Furthermore  article  19  is applicable  to  citizens  only,
while  the rights guaranteed by article 21 are for all  per-
sons.  citizens as well as aliens.  The only proper  way  of
avoiding these anomalies is to interpret the two  provisions
as  applying  to different subjects and this  would  be  the
right conclusion if we have in mind the scheme which  under-
lies this group of articles.
    I  will now turn to the language of article 19  (1)  (d)
and see whether preventive detention really comes within its
purview. Article 19 (1) (d) provides that all citizens shall
have  the right to move freely throughout the  territory  of
India.   The  two sub-clauses which come  immediately  after
sub-clause (d) and are intimately connected with it, are  in
these terms:
"(e)  To reside and settle in any part of the  territory
of India;
258
     (f)  to acquire, hold and dispose of property."  Clause
(5)relates to all these three sub-clauses and lays down that
nothing  in them shall affect the operation of any  existing
law  in  so  far as it imposes, or prevent  the  State  from
making  any  law imposing, reasonable  restrictions  on  the
exercise  of  any of the rights conferred by the  said  sub-
clause either in the interests of the general public or  for
the protection of the interests of any scheduled tribe.
    I  agree with the learned Attorney-General that in  con-
struing  article  19 (1) (d) stress is to be laid  upon  the
expression "throughout the territory of India," and it is  a
particular  and  special kind of right, viz., that  of  free
movement  throughout the Indian territory, that is  the  aim
and object of the Constitution to secure.  In the next  sub-
clause,  right  tO  reside and settle "in any  part  of  the
territory  of  India" is given and here again  the  material
thing  is not the right of residence or settlement  but  the
right to reside or settle in any part of the Indian territo-
ry.  For an analogous provision, we may refer to article 301
which  says  that subject to the other  provisions  of  this
Part,  commerce and intercourse throughout the territory  of
India shall be free. The meaning of sub-clause (d) of  arti-
cle  19  (1)  will be clear if we take it  along  with  sub-
clauses (e) and (f), all of which have been lumped  together
in  clause  (5) and to all of which  the  same  restrictions
including those relating to protecion of the interest of any
scheduled  tribe  have  been made applicable.   It  will  be
remembered that these rights are available only to citizens.
To  an alien or foreigner, no guarantee of such  rights  has
been given.  Normally all citizens would have the free right
to  move from one part of the Indian territory  to  another.
They  can shift their residence from one place to any  other
place  of  their choice and settle anywhere they  like.  The
right of free trade,  commerce and  intercourse   throughout
the territory of India is also secured.  What the  Constitu-
tion  emphasises upon by guaranteeing these rights  is  that
the whole of Indian Unian in spite of its being divided into
a number of States is really one unit as far as the citizens
of the Union are concerned. All the
259
citizens  would  have the same privileges  and  the  same
facilities  for  moving into any part of the  territory  and
they can reside or carry on business anywhere they like; and
no  restrictions  either inter-State or otherwise  would  be
allowed  to  set up in these respects between  one  part  of
India and another.
So  far  as free movement throughout  the  territory  is
concerned,  the right is subject to the provision of  clause
(5),  under which reasonable limitation may be imposed  upon
these  liberties in the interests of the general  public  or
protection  of  any scheduled tribe. The  interests  of  the
public  which necessitates such restrictions may be of  var-
ious  kinds.   They may be connected with the  avoidance  of
pestilence  or  spreading of  contagious  diseases;  certain
places  'again may be kept closed for military purposes  and
there  may  be  prohibition of entry into  areas  which  are
actual or potential war zones or where disturbances of  some
kind or other prevail.  Whatever the reasons might be, it is
necessary  that these restrictions must be reasonable,  that
is to say, commensurate with the purpose for which they  are
laid  down.  In addition to general interest, the  Constitu-
tion  has specified the protection of the interests  of  the
scheduled  tribes as one of the factors which has got to  be
taken  into consideration in the framing of  these  restric-
tions.  The scheduled tribes, as is well known, are a  back-
ward  and unsophisticated class of people who are liable  to
be  imposed  upon by shrewd and  designing  persons.   Hence
there are various provisions disabling them from  alienating
even  their own properties except under special  conditions.
In  their interest and for their benefit, laws may  be  made
restricting  the ordinary right of citizens to go or  settle
in particular areas or acquire property in them. The  refer-
ence  to  the  interest of scheduled tribe  makes  it  quite
clear-that the free movement spoken of in the clause relates
not  to general rights of locomotion but to  the  particular
right  of  shifting or moving from one part  of  the  Indian
territory  to  another, without any sort  of  discriminatory
barriers.
This  view  will receive further support if we  look  to
some analogous provisions ,in the Constitution of
260
other  countries.  It will be seen that sub-clauses (d)  (e)
and  (f)of article 19 (1) are embodied in  almost  identical
language  in  one single article, viz., article  75  of  the
Constitution  of the Free City of Danzig.  The article  runs
as follows:
    "All  nationals shall enjoy freedom of  movement  within
the free city and shall have the right to stay and to settle
at  any place they may choose, to acquire real property  and
to  earn  their living in any way. This right shall  not  be
curtailed without legal sanctions."
    The several rights are thus mentioned together as  being
included in the same category, while they are differentiated
from  the "liberty of the person" which is "described to  be
inviolable  except by virtue of a law" in article  74  which
appears just previous to this article.  An analogous  provi-
sion  in slightly altered language occurs in article 111  of
the Constitution of the German Reich which is worded in  the
following manner:
    All    Germans  enjoy the right of  change  of  domicile
within the whole Reich.  Every one has the right to stay  in
any  part  of the Realm that he chooses,  t6  settle  there,
acquire landed property and pursue any means of livelihood."
Here again the right to personal liberty has been dealt with
separately in article 114.  A suggestion was made in  course
of  our  discussions  that the  expression  "throughout  the
territory  of India" occurring in article 19 (1)  (d)  might
have been used with  a view to save Passport Regulations  or
to emphasise  that no rights of free emigration are  guaran-
teed by the  Constitution.  The suggestion does not seem  to
me  to  be proper.  No State can guarantee to  its  citizens
the.    free   right  to  do  anything   outside   its   own
territory.This  is true of all the fundamental  rights  men-
tioned   in article 19 and not merely of the right  of  free
movement. Further it seems to me that the words  "throughout
the  territory of India" have nothing to do with  rights  of
emigration.   We find that both in the  Danzig as well as in
the German Constitution, where  similar words have been used
with  regard to the excercise of the right of free  movement
throughout the.
261
territory, there are specific provisions which guarantee  to
all  nationals the free right of emigration to  other  coun-
tries (vide article 76 of the Danzig Constitution and  arti-
cle  112  of the Constitution of the German Reich).   In  my
opinion,  therefore,  preventive  detention  does  not  come
either within the express language or  within the spirit and
intendment of clause (1) (d) of article 19 of the  Constitu-
tion which deals with a totally different aspect or form  of
civil liberty.
   It is true that by reason of preventive detention, a  man
may be prevented from exercising the right of free  movement
within the territory of India as contemplated by article  19
(1)  (d) of the Constitution, but that is merely  incidental
to or consequential upon loss of liberty resulting from  the
order  of detention.  Not merely the right under clause  (1)
(d), but many of the other rights which are enumerated under
the  other-sub-clauses  of  article 19 (1) may  be  lost  or
suspended so long as preventive detention continues.  Thus a
detenu  so long as he is under detention may not be able  to
practise  any profession, or carry on any trade or  business
which  he might like to do; but this would not make the  law
providing for preventive detention a legislation taking away
or  abridging  the rights under article 19 (1)  (g)  of  the
Constitution and it would be absurd to suggest that in  such
cases  the validity of the legislation should be  tested  in
accordance  with  the requirement of clause (6)  of  article
19'and that the only restrictions that could be placed  upon
the person's free exercise of trade and profession are those
specified in that clause. Mr. Nambiar concedes that in  such
cases we must look to the substance of the particular legis-
lation  and  the mere fact that  it   incidentally  trenches
upon  some other right to which it does not directly  relate
is  not material.  He argues, however, that the  essence  or
substance  of  a legislation which provides  for  preventive
detention is to take away or curtail the right of free move-
ments  and  in fact, "personal liberty"  according  to  him,
connotes nothing else but unrestricted right of  locomotion.
The  learned  counsel refers in this connection  to  certain
passages  in Blackstone's Commentaries on the Laws  of  Eng-
land, where
262
the author discusses what he calls the three  absoluterights
inherent  in  every Englishman, namely, rights  of  personal
security,   personal   liberty   and   property.   "Personal
security",  according to Blackstone, consists in a  person's
legal and uninterrupted enjoyment of his life, his limb, his
body,  his  health  and his  reputation;  whereas  "personal
liberty" consists in the power of locomotion, of changing of
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 (1).  It will  be  seen  that
Blackstone  uses  the  expression "personal  liberty"  in  a
somewhat  narrow  and restricted sense.  A  much  wider  and
larger  connotation is given to it by later writers on  con-
stitutional documents, particularly in America. In  ordinary
language  "personal  liberty" means liberty relating  to  or
concerning  the person or body of the individual; and  "per-
sonal  liberty" in this sense is the antithesis of  physical
restraint  or  coercion.   According to  Dicey,  who  is  an
acknowledged  authority  on the subject  "personal  liberty"
means a personal right not to be subjected to  imprisonment,
arrest  or other physical coercion in any manner  that  does
not admit of legal  justification(2). It is, in my  opinion,
this  negative right of not being subjected to any  form  of
physical restraint or coercion that constitutes the  essence
of personal liberty and not mere freedom to move to any part
of the Indian territory.
    In  this connection, it may not be irrelevant to.  point
out  that  it was in accordance with the  recommendation  of
the'Drafting Committee that the word "personal" was inserted
before "liberty" in article 15 of the Constitution which now
stands as article 21. In the report of the Drafting  Commit-
tee   it is stated that the word "liberty" should be  quali-
fied  by  the insertion of the word "personal"   before  it;
otherwise,  it might be construed very widely so as  to  in-
clude  even the freedoms already dealt with in  article  13.
Article. 13, it should be noted, is the present article  19.
If  the  views of the Drafting Committee  were  accepted  by
the
(1)  Vide Chase's Blackstone, 4th Edn, pp. 68, 73.
(2)  Vide Dicey on Constitutional Law, 9th Edn, pp. 207-208.
263
Constituent Assembly, the intention obviously was to exclude
the  contents of article 19. from the concept  of  "personal
liberty" as used in article 21.  To -what extent the meaning
of  words used in the Constitution could be discovered  from
reports of Drafting Committee or debates on the floor of the
House  is a matter not quite free from doubt and I may  have
to take up this matter later on when discussing the  meaning
of  the material clause in article 21  of the  Constitution.
It is enough to say at this stage that if the report of  the
Drafting Committee is an appropriate material upon which the
interpretation  of  the words of the Constitution  could  be
based,  it  certainly  goes against the  contention  of  the
applicant and it shows that the words used in article 19 (1)
(d)  of the Constitution do not mean the same thing  as  the