Dispatch #58: Article 21- Ark of the Covenant
In this dispatch we will look at the history and the evolution of Article 21 and due process guarantee
In November 2020, the Allahabad High Court came down very heavily on the UP government’s ordinance to stop inter-religious marriages in the state. The High Court struck down its own September 2020 judgment that stated that ‘religious conversion just for the purpose of marriage is unacceptable.’ Article 21 of the Indian Constitution became the fulcrum of this historic judgment. The article is about the protection of life and liberty. In one of the judgments, in 2017, the Supreme Court hailed the article as the ‘Ark of the Covenant’ with respect to the Fundamental Rights chapter in the Constitution.
Invoking Article 21 of the Indian Constitution, the court observed:
The Courts and the Constitutional Courts, in particular, are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. Right to live with a person of his/her choice irrespective of religion professed by them is intrinsic to the right to life and personal liberty. Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals. We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even State can have objection to relationship of two major individuals who out of their own free will are living together. Decision of an individual who is of the age of majority, to live with an individual of his/her choice is strictly a right of an individual and when this right is infringed it would constitute breach of his/her fundamental right to life and personal liberty as it includes right to freedom of choice, to choose a partner and right to live with dignity as enshrined in Article 21 of the Constitution of India.
-Allahabad High Court, 2020
On 24th August 2017, sitting under the central dome of the Supreme Court, in Court number 1, a 9 judge bench delivered a unanimous judgment in K.S. Puttaswamy vs Union of India, recognizing the right to privacy as a fundamental right.
The Supreme Court said:
The first and natural home for a right to privacy is in Article 21 at the very heart of “personal liberty” and life itself. Liberty and privacy are integrally connected in a way that privacy is often the basic condition necessary for exercise of the right of personal liberty. There are innumerable activities that are virtually incapable of being performed at all and in many cases with dignity unless an individual is left alone or is otherwise empowered to ensure his or her privacy. Birth and death are events when privacy is required for ensuring dignity amongst all civilized people. Privacy is thus one of those rights “instrumentally required if one is to enjoy.
- Puttaswamy judgment
In both these landmark judgments, the Courts invoked the 18 worded Article 21 that forms the base of the due process in fundamental rights.
Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.
Over the past several decades, the Indian judiciary has widened the scope of the article by combining dignity with it. In the landmark case of Navtej Singh Johar vs Union of India, which decriminalized same-sex relations and struck down section 377 of the Indian Penal Code, the court asserted that the section violated not only equality, liberty, privacy but also the dignity of two consenting adults of the same sex.
The court said:
The petitioners face a violation of their fundamental rights to an extent which is manifestly clear and it is a violation which strikes at the very root or substratum of their existence. The discrimination suffered at the hands of the majority, the onslaught to their dignity and invasion on the right to privacy is demonstrably visible and permeates every nook and corner of the society.
-Johar judgment
It is interesting to note how Article 21 has been interpreted by the courts very differently from what it was intended to do. Hence in this post, we will look at the history and evolution of this article. We will also see how this article has evolved from 1946 to 1950 and then later how the judiciary interpreted it, especially in the 1980s. And more importantly, we will also look at the contribution of the Constituent Assembly members and the Drafting Committee who debated on several aspects of this article. These individuals were committed to individual freedom and liberty but because of their difference of opinions, battle lines were being drawn between them. This post is based on Rohan J Alva’s latest book, ‘Liberty after freedom: A history of Article 21, due process and the Constitution of India.’
Let’s now take a look at the genesis of Article 21 and the due process that it provides.
When the Constituent Assembly started its deliberations in 1946, the big task at hand was to enumerate the fundamental rights that would later become Part III of the Constitution. Article 21, the shortest article, providing protection of life and liberty and due process would make its way to Part III. Rohan argues that the shortness of this article ‘has more than made up for it in terms of constitutional impact.’
The members of the Fundamental Rights sub-committee and Constituent Assembly believed that the Constitution must provide a guarantee of due process. Due process essentially means that an individual is entitled to a set of rights and these rights cannot be invaded by any law. This would not make the fundamental rights subservient to the legislature and can act as a deterrent to its over-reach.
Rohan adds:
Many viewed the due process guarantee as representing a new age of judicial review in which state action and particularly the law-making power of the state would not go unquestioned, and that in free India, through the medium of the due process guarantee, any person can interrogate the correctness of state action. To hold the government accountable was a major reason which animated the demand for a due process guarantee in the Indian Constitution.
-Rohan Alva
The Indian Constitution had the due process clause. Only, not to have one.
Rohan’s book is all about the twists and turns of the due process guarantee and the debates around it.
The phrase ‘except according to procedure established by law’, which was introduced by the Drafting Committee in the Draft Constitution submitted in 1948 implied that an individual’s fundamental right can be invaded by the state by passing a law. This was completely different from the phrase ‘due process’ which the Constituent Assembly members voted for in 1947. The ‘due process’ would make a neutral institution like the judiciary decide whether invading the fundamental rights of an individual by the state is just, fair and constitutional.
Some of the major debates, on Article 21, in the Constituent Assembly were around the following themes:
1. ‘Due process’ versus ‘According to procedure established by law’ debate: While the Draft Article 15 in the Draft Constitution, which later became Article 21 in the final version of the Constitution had the phrase ‘according to procedure established by law’, the earlier version of this article had ‘due process’ phrase. The due process was agreed upon and voted by the Constituent Assembly members in 1947. The ‘due process’ phrase is more tilted towards the judiciary that can strike down a law, passed by the legislature if it’s not just and constitutional. It also acts as a deterrent for the legislature in case a law is passed that can take away life and liberty.
When the assembly was discussing the due process clause, Constitutional Adviser B.N. Rau visited the US to seek feedback from the Supreme Court judges on the Indian Constitution. One of the Chief Justices of the US Supreme Court, Felix Frankfurter suggested to Rau that he should remove the due process clause from the article. He reasoned that like the 14th US Constitution amendment, which provided due process guarantees, the number of litigations in the Indian courts would increase dramatically and several welfare policies like land redistribution by the legislature can be struck down by the courts. However, Rau was still of the opinion that due process should be retained in the constitution. Other members of the Drafting Committee like KM Munshi and Alladi Krishnaswami Iyer also firmly believed in the due process clause so that fundamental rights do not become subservient to the legislature.
However, around 1948, Iyer changed his mind and argued that the due process clause should not be there in Draft Article 15 as it will give a disproportionate amount of power to unelected judges to strike down a law even if that is for the public welfare.
2. Atonement and Article 22: In 1948 when the Drafting Committee submitted the Draft Constitution, the Assembly erupted since there was no due clause in Draft Article 15 but has the phrase ‘ according to procedure established by law’. This, according to the members, defects the purpose of having the protection of life and liberty at the mercy of the legislature. They were upset with the Drafting Committee members since the Assembly voted for the due process but it came as a shock for them not to see it one year later in the Draft Constitution.
The Drafting Committee later realized their mistake and in 1949, as an act of atonement, they introduced Article 22 which provided a due process for any individual who is arrested or detained. However, this was not sufficient since now they have a due process when an individual comes in contact with the criminal justice system, but there is no due process in universal terms. The assembly also questioned the purpose of introducing due process in 1949 when it was removed from the in 1948. When the Constitution was adopted and became effective in 1950, there was no due process clause.
The problem began when the judiciary started to interpret Article 21. In the famous case of AK Gopalan versus the State of Madras, the Constitution bench of the Supreme Court, barring one judge, was of the opinion that due process cannot be ascribed to Article 21 since the Drafting Committee did not deem fit to have due process in the article. Essentially the Supreme Court placed more importance on what the Drafting Committee submitted in 1948 rather than on the debates that occurred in the Constituent Assemble between 1946 to 1949. The only dissenting opinion was that of Justice Fazl Ali who argued that even though Article 21 does not have due process into it but that does not mean that there should not be any procedural safeguards when it comes to detention or arrest.
Rohan writes:
Unlike the other justices who held that Article 21 did not provide any sort of safeguards when it came to a fair hearing, Justice Fazl Ali observed that despite the phrase ‘procedure established by law’ being used in Article 21, any person who was proceeded against under a law was entitled to a notice being issued, to a hearing, to be judged by persons who were neutral and to otherwise be proceeded against in accordance with the procedure contained in the law. Justice Fazl Ali’s dissent is widely regarded as one of the greatest dissenting judgments in the history of India.
-Rohan Alva
After Gopalan, up until the late 1970s, the Supreme Court continued to not associate the due process guarantee with Article 21. But from the 1980s, especially after the Emergency, the judiciary started treating Article 21 as an ‘open-textured’ one. This essentially means that some of the words and phrases used in the article will have several meanings and interpretations.
Rohan, in the book, writes:
Despite its plain language, some of the phrases and words in Article 21 such as’ personal liberty’, ‘procedure’ and ‘law’ are open-textured and could have different meanings and conceptions, and in fact could be interpreted to incorporate due process rights. Indeed, Article 21 must be treated as an open-textured fundamental right, whos meaning cannot be circumscribed by how the Drafting Committee treated the fundamental right to life and personal liberty.
-Rohan Alva
Due to this flexibility, the Supreme Court from the late 1970s started to widen the scope of Article 21 and recognize the due process guarantee. In Maneka Gandhi versus Union of India, in 1978, the Supreme Court treated Article 21 as open-textured and thus having due process guarantee within it. The court interpreted the phrase ‘procedure established by law’ as a ‘law which was not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirements of Article 21 would not be satisfied’.
Ever since then when it comes to the protection of life and personal liberty, from decriminalizing section 377 of the IPC to privacy as a fundamental right, the judiciary has interpreted Article 21 quite widely as an open-textured article.
Rohan concludes his book with this observation:
Armed with Article 21 encompassing due process, the Supreme Court has used the fundamental right to life and personal liberty to incorporate into it an exceptionally large number of rights which apply to all aspects of human life such as civil rights, socio-economic rights, environmental rights, education rights, health rights and housing and shelter rights.
-Rohan Alva
By doing this the Supreme Court has helped further the social welfare goals. In fact, in the past few decades, the Supreme Court has brought some of the Directive Principles, that are not enforceable, to come under the ambit of Article 21, thus helping the advance social welfare policies.