Liberty in subservience

“No person… shall be deprived of life, liberty or property without due process of law”

“No person shall be deprived of his life or personal liberty except according to procedure established by law”

The second phrase above is the wording of Article 21 of the Constitution of India.  The first phrase is from the fifth and 14th amendments to US constitution. 

Although a layperson could be forgiven for thinking that the two phrases mean the same thing, the difference between the two has been a vexed question in India from the time before independence. 

This debut book by Rohan J Alva traces the history of the present Article 21 of the Constitution of India, and the spirited debates that went around it.  The dramatis personae involved in these debates were stalwarts of the Constituent Assembly of India comprising some of the finest legal minds of the era.  While the original formulation for the Constitution of India had the words “due process” in it, eventually those words came to be deleted.

At the most basic level, the “due process” gives the court powers to examine whether a law itself is just and non-arbitrary, even though it may have been validly passed by a legislature.  On the other hand, “procedure established by law” restricts the power of a court to examine the unjustness and arbitrariness of a law, as long as it has been passed by a legislature in the manner prescribed for passing such a law. 

The eventual adoption of Article 21 without the “due process” guarantee was a moment of personal grief for some members of the Constituent Assembly.  Shibban Lal Saksena, who had been incarcerated by the British Raj for decades, felt that “liberty had been a casualty in our Constitution”.  But the majority view was probably reflected by the sanguine hope expressed by Ram Chandra Gupta, who felt, according to the author, “it was highly unlikely that laws would be passed or implemented in a wanton or irresponsible manner.”

Frank Anthony, in almost prophetic words, said “I am afraid, that in this form Article 21, if the Executive and the Government of date choose to, can be abused and made a handle for totalitarian oppression.” 

The feeling of dissonance amongst the members of the Constituent Assembly that one gets from reading the book is disturbing.  A monumental task had been achieved and, yet, there were voices of disagreement. 

It would be understandable if such dissonance concerned issues where the rights of one group of people had been affected.  But the right to life and of personal liberty is surely something that affected every citizen.  If some Constituent Assembly members were unhappy with the final outcome, and felt that not enough was done to protect the issue of life and personal liberty and ensure a constitutional protection for these rights, then something was indeed wrong.  Coming out of the clutches of a repressive colonial government, why would the constitution makers not have ensured that liberty was protected to the utmost possible level, or agreed on wording that was unanimous?

The answer can be found in this book.  Mr Alva has collated diverse materials, in what must have been an arduous task, and presented the views of both sides.  He expresses personal views in various places, but does not let them hinder presenting the points of view of both sides.  The only thing missing from the book is perhaps a greater description of the dramatis personae,  which may have helped understand the backgrounds, compulsions and thought processes of those people. 

As the author says, while interpreting a constitution, the words and phrases used in the founding document are assumed to be the result of careful choices and deliberations. Given the fraught history of Article 21, however, and the twists and turns that the due process guarantee underwent from December 1946 to January 1950, it is not possible to ascribe to Article 21 any particular original intention or original meaning.  

And it is precisely this diversity in opinion of men learned in the law that continues to vex the Supreme Court 72 years after the Constitution was adopted and Article 21 came into existence.  Just as the members of the Constituent Assembly took different positions, the Supreme Court has also taken different views on the issue, starting from the view in A K Gopalan’s case that there is no scope for examining Article 21 with the lens of “due process”, to the present day where the concept of “substantive” due process has been gingerly adopted. 

The Supreme Court has said that Article 21 is the “ark of the covenant” of fundamental rights. The philosopher George Santayana said “Those who cannot remember the past are condemned to repeat it”.  Mr Alva’s well put together book gives us the genesis of Article 21, which needs to be known by judge, lawyer, law-maker and layperson alike in order to appreciate not only the past, but the present as well.

The reviewer is a lawyer practising in Delhi