(Tanvi Bhargava and Rebecca Cardoso are third year students at Jindal Global Law School)
Featured Artwork: ‘March Storm, Georgian Bay’ by A.Y. Jackson
INTRODUCTION
Article 21 of the Constitution of India provides that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” It is one of the fundamental rights guaranteed to people in Part III of the Constitution and through the phrasing of this article we gather that the provision in question essentially offers protection to every person against the state and not against any particular individual. The basic object of this fundamental right is to act as a shield to prevent encroachment on a person’s liberty or dignity. As established in the case The Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors, this remedy is available to every “person” whether or not they are citizens of India. It is one of the most pivotal fundamental rights, around which many other subsidiary rights spring out. It is not static but a rather evolving piece of legislation. It is imperative to look beyond the literal interpretation of this article in order to fit the scenario today. Additionally, in light of judicial activism, we need to interrelate this provision with other provisions in order to understand it with a more dynamic and progressive outlook which is inclusive of modern society. This paper focuses on critically examining some of the shortcomings that arise from Article 21 and it brings out the progressive potential of the law in question.
EVOLUTION AND THE CURRENT LEGAL POSITION
Mutual Exclusivity and Spectrum of Rights
Firstly, in order to analyze the current legal position of Article 21, it is essential to note the principles that arose from the landmark case, AK Gopalan v State of Madras, how they developed and were eventually corrected by the ruling in Maneka Gandhi v Union of India. In Gopalan, the Supreme Court deliberated upon whether the particular freedom constrained by the Preventive Detection Act, 1950 was constitutionally valid and whether this freedom could fall under both Article 19 and 21. The majority view answered the question in the negative, deeming that each article was mutually exclusive, hence particular freedom was needed to be identified as either belonging to Article 19 or 21. RC Cooper v Union of India reversed the majority opinion in Gopalan, and the principle was substantiated in the Maneka Gandhi case which explicitly mentioned that some freedoms can fall both under Article 19 and 21 and 14, implying that overlap in provisions is permissible.
Gopalan was one of the first cases to expose a conceptual argument that has been left ambiguous till date i.e. under the umbrella term of the fundamental right to freedom, whether different provisions for freedom should be treated differently. The take on Gopalan was mixed; on one hand, Article 21 was seen to be limited merely to bodily and coerced restraint whereas another opinion sought for a broader interpretation which would include rights to work, health, shelter and so on. While Maneka remedies one flaw in Gopalan i.e. correcting the doctrine of mutual exclusivity, it fails to clarify the Court’s position on whether the entire spectrum of rights under Article 21 should be given the same treatment. Thus it “ends up homogenizing the level of protection for all freedoms.”[1] Hence, the current position is that no framework within Article 21 exists for one to differentiate the level of treatment for different rights.
The Dichotomy Between The Doctrines of “Due Process” And “Procedure Established By Law”
The judiciary’s viewpoint on the ‘due process’ and ‘procedure established by law’ models should be addressed to gauge the current interpretation of Article 21. The US constitution embodied the term ‘due process of law’ however, during the 1930s, American courts started employing the term to quash social welfare legislation. Based on the recommendations made by Justice Frankfurter and the fear that it had given the US judiciary far too much discretion and was undemocratic, BN Rau replaced the term with ‘procedure established by law’, taken from the Article 31 of the Japanese Constitution. The change was controversial amongst the Constituent Assembly and the matter was vigorously debated on. For instance, while some were in favor as they believed ‘due process’ would “serve as a great handicap for all social legislation” and give judges too much power, others criticized this change on the basis that it “did not permit courts to look into the injustice or capricious provision in a law” and so on. Ultimately, these concerns were rejected with the phrase ‘due process’ being deleted from the Indian Constitution on 13th December 1948.
Yet, over the years, the scope of this term has been expanded and principles from the US due process model have gradually been read into Indian constitutional law. However, since the doctrine’s precise boundaries and definition have not been explicitly laid down, the judiciary’s construction is still confusing to date. Currently, three interpretations of due process have been recognized to exist in the legal system. The first, considered to embody the original intention of the Indian Constitution, is ‘pure form’ due process i.e. a person’s right to life or personal liberty can be deprived as long as it is from a validly enacted law. The major flaw is that the only consideration is whether the legislature followed the correct procedure to establish the said law, whereas it does not consider if the law is fair, just, or arbitrary. This traditional and narrow approach was seen in AK Gopalan where the court ruled that “as long as the preventive detention statutes had been duly enacted in accordance with the procedures of article 22, the requirements of due process were satisfied.”
This gives rise to the second interpretation; ‘procedural due process’ which was noted in Maneka Gandhi. The leap in judicial intervention on the surface was commendable for “ushering a new era of expansion of the horizons of right to life and personal liberty.” The Supreme Court allowed for a wider interpretation and held that a person’s life and personal liberty can be deprived so long as the procedure by which the deprivation takes place is “fair, just and reasonable” and any such law has to comply with “natural justice”. Nevertheless, there are still shortcomings in this approach as a third form; ‘substantial due process,’ needs more recognition and development. “Substantive due process is the notion that due process not only protects certain legal procedures but also protects certain rights unrelated to procedure.” In Maneka, the requisite is only for the procedural part of the law that impedes Article 21, not the substantive part of the law, which needs to fulfil the condition of being ‘fair, just and reasonable’. In Naz Foundation, it was ruled that the “requirement of substantive due process” had been “read into the Indian Constitution through a combined reading of Articles 14, 21 and 19 and further, substantive due process was a constitutional law test under which a law has to be just, fair and reasonable.”
In the landmark judgment Justice KS Puttaswamy v Union of India, the 9-judge bench went into great lengths to determine whether privacy was a fundamental right under Article 21. The Court faced a stumbling block as in order to engage with the question, it meant clarifying whether substantive due process could be read into the Article. Instead of using this opportunity to denote a stance, the Court embarked on a rambling account of the meaning of “procedure established by law”. Firstly, by affirming that the expression does no longer connote merely to the formalistic requirements of the procedural aspects of the law, it was held that the requirements of Article 21 should also cover its content. This implies that the requirement of the law being fair, just, and reasonable applies to substantive as well as procedural qualities of the provision. Nevertheless, instead of confirming that this would mean interpreting Article 21 using substantive due process, the Court backpedaled by insisting that the American due process doctrine is different and is not to be adopted into the Indian Constitution. Thus, this unravels an extremely puzzling interpretation as the current legal stance seems to be the judiciary leaning towards the implications arising from the due process model even though ‘procedure established by law’ is what is ultimately stipulated for in the Article. This has led to an irreconcilable dichotomy between the two terms therefore clarity needs to be given on this subject to clear up the ambiguity.
Auxiliary Rights
The liberal interpretation of Article 21 now includes a wider ambit of rights and the law keeps evolving to accommodate for the current socio-economic context. This does not only require constitutional recognition of auxiliary rights but also levies positive obligations on the State. For instance, the court recognized the importance of right to education and inserted a clause under Article 21 as Article 21 (A). While this is commendable, one facet is that it stipulates the right to education for children only till the age of fourteen years, a ruling from the Unni Krishnan case. In this light, it can be noted how this principle dilutes the intentions of a previous case Mohini Jain, which had originally stipulated for education for all levels, without providing any justification.
Similarly, right to health has been recognized under Article 21 however, the contours of this right remain quite vague. For instance, the case Parmanand Katara led the court to impose obligations on hospitals to provide health care in emergencies, however it fails to stipulate the extent to which such services should be provided. In Paschim Banga, the court clarified that financial constraints cannot be excused for providing medical facilities. While such holdings have been made to ensure the provision of facilities to the poor and increase accountability of health centers, the courts have merely touched upon these issues and have not dealt with implementing a constitutional, workable framework, whilst keeping in mind financial, infrastructural and feasibility constraints. Furthermore, other auxiliary rights such as right to food, shelter, et cetera have not been developed as extensively.
Sexual Minorities
Article 21 also comes into question when dealing with sexual minorities. In Naz Foundation, the court argued that the very core of dignity lay in the autonomy and private will of the individual, freedom of choice and expression of sexual identity, thus section 377 of the Indian Penal Code took away that fundamental aspect by criminalizing sodomy. However, in Suresh Kumar Koushal, the court reversed its judgement and did not provide for any constitutional reasoning with respect to Article 21. Interestingly, in National Legal Services Authority of India which filed for legal recognition of the transgender community, the court recognized the protection of autonomy, privacy and dignity. This highlights the confusion and inconsistency regarding the difference in approach in the two judgements as “all that was denied to homosexuals by one bench of the Supreme Court for, amongst other reasons, being a minuscule minority, was allowed for transgenders by another bench of the Court.” In 2018, the case Navtej Singh Johar v Union of India finally held that Section 377 of the IPC infringed upon the right to privacy and the right to sexual orientation, hence consensual sex amongst adults was decriminalized. Thus it can be observed that although laws have evolved with time and the judiciary has taken a progressive turn in some cases, there still needs to be consistent judicial interpretation regarding constitutional reasoning to ensure complete protection for all sexual minorities. Further, Article 21 should not be subjected to changing and fickle interpretations that are loosely based on moral values.
CONCLUDING REMARKS AND RECOMMENDATIONS
We therefore suggest that the article should be amended to:
“No person shall be deprived of his right to a dignified life or liberty without due process of law”
Change Procedure Established by Law to Due Process
The importance of recognizing the concept of substantive due process has been highlighted above as it becomes a critical and complete mode of tackling whether an arbitrary law truly invalidates the values enshrined within Article 21 or not. However, as mentioned, it has not been clearly defined and consequently remains unclear. Furthermore, the concept of substantive due process is also risky as it provides a medium for excessive judicial activism and is undemocratic. Thus there “appear to be no judicially stipulated limits as to what substantive values a court will apply in an exercise of substantive due process. Hence it is a dangerous doctrine because it involves a court imposing its values on other branches of the government.”[2] Nevertheless, taking into account all these considerations it is recommended to change the term ‘procedure established by law’ to ‘due process’.
The implication would be that this would include both substantive, as well as procedural due process. As elaborated before, the doctrine of substantive due process enables the court to question not merely procedural laws, but the substantive value choices of the legislature as well. Even though after Maneka Gandhi, the courts have a clear standpoint regarding procedural law, the substantive law aspect, however, is still not protected. This is noted in the recent case Rajbala v State of Haryana where the doctrine of substantive due process was blatantly rejected on the grounds that “courts in India have no authority to declare a statute invalid on the ground that it violates the due process of law.” Hence one can see how the court still restricts the scope of the doctrine despite there being a recognition of its application in previous Supreme Court cases such as Ramlila Maidan Incident and Selvi v. State of Karnataka.
Instead of being subject to various interpretations and producing contradictory verdicts, clear contours of the doctrine should be deliberated upon and implemented. This would also lessen the need of the judiciary to interpret morality and social values in their own way, which is counter-majoritarian and whimsical, further it will induce fairness and uniformity in proceedings and avoid uncertainty. Furthermore, the rule of due process also makes the state subservient to rule of law. Therefore, it restricts the government from abusing its power as the judiciary, although not a democratic body, can act as an additional check to ensure the state respects the rights of people by ensuring that laws are not unreasonable and arbitrary. In fact, allowing a phrase to exist merely in theory and adopting a completely different procedure in practice is what causes more risk of judicial activism. This is because determining the content of law is left to the discretion of the judge, leading to confusing precedents which create hurdles in social progression. As long as ‘procedure established by law’ continues to be employed, it empowers judges to invalidate the previous assessment and progress regarding its widened interpretation. Therefore, the original phrase should be replaced by the term ‘due process of law’.
Addressing “Personal Liberty” and “Dignity”
Another part of the Article that needs to be examined is the word ‘personal’ before the word liberty. BN Rau had deliberately added the word in order to constrain the definition of the provision, so as to prevent the judiciary from interpreting the term too broadly. However, this intention has been disregarded ever since the Supreme Court started to expand the meaning of the term. Thus, it suggested that the word ‘personal’ should be removed from the Article. With the widening of its meaning through judicial activism and the subsequent inclusion of unremunerated rights, the word “personal” serves no purpose. Hence, it is now redundant. Thus, instead of being an illusory constraint, it should be deleted in order to sincerely acknowledge the vast and expanding meaning of the right to life and liberty.
The scope for expansion of ‘personal liberty’ was seen notably in Kharak Singh which questioned surveillance methods and constant domiciliary visits by the police. Here, the emphasis was placed on the concept of ‘dignity’ which was read into the significance of Article 21 so as to imply that it protected rights beyond arrest and detention. This hence characterized Article 21 as “the residuary of all personal liberties not covered by Article 19(1).”Furthermore, Justice Ayyangar referred to the US case, Munn v Illinois to infer that a wider reading of ‘personal liberty’ could be akin to “being something more than mere animal existence”. However, the court has not gone further into stipulating what exactly the term means. In Francis Coralie Mullin, the court uses the ‘dignity’ approach from Munn to fortify the holding: “right to live with human dignity”. Even though the Court strung out a list which should encompass the worth of dignity; “adequate nutrition; clothing, shelter and facilities; expressing oneself; etc”, no normative framework or principles for when to apply the discourse on human dignity to the Article was devised and so this inference remains rather vague.
Hence it is suggested that the word ‘dignity’ be added to Article 21 as there seems to be a lacking coherence in understanding the term. This has led to its selective application notably in the discourse of socio-economic rights, sexual minorities and anti-terror cases.[3]The erratic approach to the application of the concept of dignity leads to no meaningful realization of rights and hence renders inadequate protection. “Dignity offers a universally agreeable principle to recognize the worth of all persons and is seen as a ‘place holder’ for furthering human rights.” Furthermore, Justice A.K. Sikri deemed that “human dignity has come to be recognized as a constitutional value and as a constitutional right.”Thus its addition to the provision will prevent the judiciary from omitting its recognition in adjudicating cases and will provide a more thorough normative foundation for Article 21.
Recognition of a Hierarchy of Rights
Many auxiliary rights have been recognized to fall under the ambit of Article 21, such as an array of socio-economic rights, right to privacy, civil and political rights et cetera. This essay touched upon the right to health, education and Article 21’s link to protection of sexual minorities. However, no precise discourse on the nature and content of these rights and their scope for protection has been generated. Thus, it is recommended that a normative framework be developed to enumerate upon these rights. In doing so, detailed, and defined provisions can be implemented in Part III of the Constitution under Article 21, as subsidiary rights. This will solve the problem arising from Maneka Gandhi, by ensuring the judiciary has guidelines to follow and carry out its positive obligations. Furthermore, it will greatly eliminate the unpredictability for the realization of these rights which till now depend more on a case-to-case basis and the judiciary’s discretion of which rights can be protected under the provision.
A recommendation is to adopt Justice Das’s suggestion in the Gopalan case which conceptualizes a “hierarchy of rights”.This places a higher level of protection to the primary, fundamental rights i.e. rights attached to the literal freedom of the person. Then what follows are the other auxiliary rights which are subsidiary attributes relating to the freedom of the person. In essence, this places rights on a hierarchical scale depending on whether they are considered more fundamental than others. This puts into perspective the burden on the State regarding the protection of a wide array of rights as it gives the State a framework to determine the extent to which certain rights should be protected and enforced.
Additionally, it is advised to refer to the South African Constitution, Chapter II which encapsulates a human rights charter containing detailed provisions protecting civil, political, and socio-economic rights. For instance, when devising a workable framework and stipulating provisions, for say right to education, it can be based on Article 29 of the South Africa Constitution and similarly the right to health can be moulded on Article 27.[4]In this way, proper recognition of socio-economic rights can be given and protection of such auxiliary rights will be ensured. Just as Article 16 (4B) of the Indian Constitution was inserted as an extremely specific provision to dispense a detailed approach on how reservations should be protected and guaranteed for a certain backward social group, similarly it is possible and necessary to elaborate on auxiliary rights in this manner to ensure that these rights are not left ambiguous and subject to interpretations of the court which change from time to time.
[1]Sujit Choudhryet al.,eds, The Oxford Handbook of the Indian Constitution, Oxford University Press (2016).
[2]Sujit Choudhryet al.,eds, The Oxford Handbook of the Indian Constitution, Oxford University Press (2016).
[3]Sujit Choudhryet al.,eds, The Oxford Handbook of the Indian Constitution, Oxford University Press (2016).
[4]Refer to Article 27 and 29 which enumerate such kinds of subsidiary rights and go into detail and provide clarity on their exact content: Constitution of the Republic of South Africa, 1996, Art.27, 29.
Leave a Reply