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“ Bring Home the Constitution ” – Constitutional Law Lecture Series,
May-June, 2020
Organised by Centre for Law, Policy and Human Rights Studies
Email: koodam.centre@gmail.com; www.koodam.org;
Extract from the Constituent Assembly Debates on
Art. 21, Right to Life in the Indian Constitution
Note :
- What we have as Art. 21 in the Indian Constitution was originally presented as Art. 15 of the Draft Constitution.
- This was debated on 6th^ and 13th^ December, 1948 and the final version put to vote and votes on 13th^ December, 1948. 3. There was a major debate over the clause “ … except according to procedure established by law” with a number of leaders pushing to accept “without due process of law”.
- The following extracts are the discussions of different members by name. Apart from the discussions, there are separate Constituent Assembly documents, which should also be referred to.
- Pl see the response to the discussion on 13 th^ December, 1948 by Dr. Ambedkar, where he compares the dilemma between the view shown by both constructions as so difficult to reconcile that it was like the proverbial difficulty of choosing between ‚ Charybdis and Scylla”. This was a reference to Greek mythology referring to sailors who in trying to reach the shores risked being caught in the whirlpool or dashing against the rocks. Dr. Ambedkar chose not to take any side saying both arguments were compelling. He left it to the decision of the house. (See pg. 26-27 in red font).
- The debate and decision on the form used in Art. 21 is important in view of its impact on the course of our political and constitutional history. Art. 21 came to be tested in amongst the first cases which arose from Madras with the arrest of noted leader AK Gopalan under preventive detention law. The matter reached the Supreme Court (1950) where the court refused to look into the validity of the detention order on the ground that the court can only look into the issue of whether the prescribed procedure was followed and not examine other issues as to whether the procedure prescribed was fair or reasonable or not. The SC upheld the detention of AK Gopalan. It took over 2 decades for the SC to change this view in Maneka Gandhi’s case (1978) where the SC held that procedure depriving personal liberty of a person should be fair and reasonable.
Art. 21: No person shall be deprived of his life or personal liberty except
according to procedure established by law.
From The Constituent Assembly Debates: Debate Extracts^1
Article 15, Draft Constitution of India, 1948 No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India Draft Article 15 was debated in the Constituent Assembly on the 6th and 13th of December 1948. Most members who took part in the debate proposed amendments that wanted to replace ‘according to procedure established by law’ with ‘without due process of law’. Members argued that this term was insufficient as the legislature of the day could pass laws establishing procedures that can place civil liberties in danger; the judiciary could only check if the established procedures were followed could not review the law itself for adherence to fundamental rights. The inclusion of the ‘due process’ term into the provision, therefore, would allow the judiciary to investigate if the law itself is consistent with provisions of fundamental rights and would be in a position to protect civil liberties. Other members that pointed out the dangers of ‘due process’ term argued that allowing for judges, who are not immune to prejudices and biases, to sit in judgment of laws passed by the legislature would be undermining the authority of the legislature and hence, un-democratic. At voting, the Assembly passed the Draft article with the term ‘according to procedure established by law’ intact.
The Debate of Art. 21 (as we know it now) took place on 6th^ and 13th^ December, 1948.
Quotable Statements
Pandi Das Bhargava, during the discussion on Art. 15 (presently Art. 21) on 6th
December, 1948: 7.67.
‚In a democracy, the courts are the ultimate refuge of the citizens for the vindication
of their rights and liberties. I want the judiciary to be exalted to its right position of
palladium of justice and the people to be secure in their rights and liberties under its
protecting wings‛.
(^1) https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2021 @ 17May
Das Bhargava
According to the present section procedure is held sacrosanct whereas the word 'law'
really connotes both procedural law as well as substantive law. I have used the word
'law' in the general sense. Though these words "without due process of law" which
are sought to be substituted for the words in the section have not been defined
anywhere, their meanings and implications should be understood fully. By using
these words "without due process of law" we want that the courts may be authorised
to go into the question of the substantive law as well as procedural law. When an
enactment is enacted, according to the amendment now proposed to be passed by
this House, the courts will have the right to go into the question whether a particular
law enacted by parliament is just or not, whether it is good or not, whether as a
matter of fact it protects the liberties of the people or not. If the Supreme Court
comes to the conclusion that it is unconstitutional, that the law is unreasonable or
unjust, then in that case the courts will hold the law to be such and that law will not
have any further effect. 7.67. Das Bhargava
As regards procedure also, if any legislature takes it into its head to divest itself of
the ordinary rights of having a good procedural law in this country, to that extent
the court will be entitled to say whether the procedure is just or not. This is within
the meaning of the word `law as it is used in this amendment and as it is generally
used. The word `law' has also not been defined in this Constitution. For the purpose
of article 8 the word `law' has been defined. Otherwise it has not been defined. I
would therefore submit that if the words as used in the section remained, namely
`procedure established by law', we will have to find out what is the meaning of the
word `law'. These words would remain vague and it will result in misconceptions
and misconstructions. Therefore, unless and until we understand the meaning of
"due process of law" we will not be doing justice to the amendment proposed. I
therefore want to suggest that the words "due process of law" without being defined
convey to us a sense as used in the American law as opposed to other laws. What
will be the effect of this change? To illustrate this I would refer the House to Act XIV
of 1908 called the Black Law under which thousands, if not hundreds of thousands
of Congressmen were sent to jail. According to Act XIV of 1908 the Government took
to themselves the powers of declaring any organisation illegal by the mere fact that
they passed a notification to that effect. This Act, when passed, was condemned by
the whole of India. But the Government of the day enacted it in the teeth of full
opposition. When the non-co-operation movement began it was civil disobedience of
this law with which the Congress fought its battle. The Courts could not hold that
the notification of the Government was wrong. The courts were not competent to
hold that any organisation or association of persons was legal though its objects
were legal. The objects of the Congress were peaceful. They wanted to attain self-
government but by peaceful and legitimate means. All the same, since the
Government had notified, the courts were helpless. This legislation demonstrates the
need of the powers of "due process." 7.67. Das Bhargava
Similarly I will give another illustration, and that is Section 26 of the Defence of India
Act. We know that the Federal Court held this Section to be illegal and a new
Ordinance had to be issued. Unless and until therefore you invest the court with
such power and make this Section 15 really justifiable there is no guarantee that we
will enjoy the freedoms that the Constitution wants to confer upon us. 7.67. Das Bhargava
The House has already accepted the word "reasonable" in article 13. At least 70 per
cent of the Acts which can evolve personal liberty have now come under the
jurisdiction of the courts, and the courts are competent to pronounce an opinion on
such laws, whether they are reasonable or not. The House is now stopped from
adopting another principle. In regard to personal property and life the question is
much more important. So far as the question of life and personal liberty are
concerned they must be also under the category of subjects which are within the
jurisdiction of the courts.
Das Bhargava
I do not want to curtail the time of the others. 7.67. Vice-President
Then you may have two minutes more. 7.67. Das Bhargava
Thank you, Sir. 7.67. Upendra Nath Barman
May I say a few words at this stage, Sir? 7.67. Vice-President
I am sorry I cannot oblige the honourable Member. 7.67. Das Bhargava
As I was saying, Sir, many other words used in this Constitution have an uncertain
meaning. The words 'decency' and `morality' have not got a definite meaning. 7.67. Das Bhargava
Then, Sir, it is said this will tend to weaken the administration by the uncertainties
which will be imported if this amendment is carried. But, Sir, our liberties will be
certain through the particular law which may be reviewed by the court may become
uncertain. The administration will not be weakened thereby. I grant that it may
probably be that the administration will not have its way. But we want to have a
Government which will respect the liberties of the citizens of India. As a matter of
fact, if this amendment is carried, it will constitute the bed-rock of our liberties. This
will be a Magna Carta along with article 13 with the word `reasonable' in it. This is
only victory for the judiciary over the autocracy of the legislature. In fact we want
two bulwarks for our liberties. One is the Legislature and the other is the judiciary.
But even if the legislature is carried away by party spirit and is sometimes panicky
the judiciary will save us from the tyranny of the legislature and the executive.
Das Bhargava
In a democracy, the courts are the ultimate refuge of the citizens for the vindication
of their rights and liberties. I want the judiciary to be exalted to its right position of
palladium of justice and the people to be secure in their rights and liberties under its
protecting wings. 7.67. Das Bhargava
I commend my amendment and beg the House to pass it. 7.67. Chimanlal Chakkubhai Shah
Mr. Vice-President, Sir, the right conferred by article 15 is the most fundamental of
the Fundamental Rights in this Chapter, because it is the right which relates to life
and personal liberty without which all other rights will be meaningless. Therefore, it
is necessary that in defining this right, we must make it clear and explicit as to what
it is that we want to confer and not put in restrictions upon the exercise of that right
which make it useless or nugatory. I therefore support the amendment which says
that the words `without due process of law' should be substituted for the words
`except in accordance with the procedure established by law.' Sir, the words 'without
due process of law' have been taken from the American Constitution and they have
come to acquire a particular connotation. That connotation is that in reviewing
legislation, the court will have the power to see not only that the procedure is
followed, namely, that the warrant is in accordance with law or that the signature
and the seal are there, but it has also the power to see that the substantive provisions
of law are fair and just and not unreasonable or oppressive or capricious or arbitrary.
That means that the judiciary is given power to review legislation. In America that
kind of power which has been given to the judiciary undoubtedly led to an amount
of conservative outlook on the part of the judiciary and to uncertainly in legislation.
But our article is in two respects entirely different from the article in the American
Constitution. In the American Constitution, the words are used in connection with
life, liberty and property. In this article we have omitted the word 'property',
because on account of the use of this word in the American Constitution, there has
Chimanlal Chakkubhai Shah
It may be said that the judiciary may, in times of crisis, not be able to appreciate fully
the necessities which have required such kind of legislation. But I have no such
apprehension. I have no doubt that the judiciary will take into account fully the
necessities of a situation which have required the legislature to pass such a law. But
it has happened at times that the law is so comprehensive that the individual is
deprived of life and liberty without any opportunity of defence. What is the worst
that can happen in an article like this if we put in the words `without due process of
law'? Some man may escape death or jail if the judiciary takes the view that the law
is oppressive. Sir, is it not better that nine guilty men may escape than one innocent
man suffers? That is the worst that can happen even if the judiciary takes a wrong
view. 7.67. Chimanlal Chakkubhai Shah
But, in these days, the executive is naturally anxious to have more and more powers
and it gets them. And we have developed a kind of legislation which is called
delegated legislation in which the powers are given to subordinate officers to issue
warrants and the like. For example, under the Public Safety Measures Acts, if a
Commissioner of Police is satisfied that a particular man is acting against the
interests of the State or is dangerous to public security, he could detain the man
without trial. 7.67. Chimanlal Chakkubhai Shah
We know it to our cost that even the Commissioner of Police does not look into these
matters personally as he is expected to do and signs or issues warrants on the reports
of subordinate officials. It is better under such circumstances that there is some
checkup on the exercise of such powers if they are arbitrarily used. I therefore fully
support the amendment which seeks to substitute the words "without due process of
law" in place of the words which have been used in the Article. As Mr. Mahboob Ali
Baig has rightly pointed out, these words are taken from the Japanese Constitution
but the Drafting Committee has omitted the other provisions which give meaning to
these words. Mr. Baig's amendment which seeks to substitute the words "save in
accordance with law", I am afraid, will not serve his own purpose. If he has in mind
that the full import of all the provisions of the Japanese Constitution read along with
the one which the Drafting Committee has put in, should be brought out here, it is
better that he accepts the words, "without due process of law", rather than the words
"save in accordance with law" which are taken from the Irish Constitution and which
probably have the same meaning as the words put in by the Drafting Committee. I
therefore fully support amendment No.528. 7.67. Chimanlal Chakkubhai Shah
Mr. Vice-President, Sir, my amendment No. 523 sought the substitution of the words
"without due process of law" for the words "except according to procedure
established by law". This article guarantees the personal liberty and life of the
citizen. In democratic life, liberty is guaranteed through law. Democracy means
nothing except that instead of the rule by an individual, whether a king or a despot,
or a multitude, we will have the rule of the law. Sir, the term "without due process of
law" has a necessary limitation on the powers of the State, both executive and
legislative. The doctrine implied by "without due process of law" has a long history
in Anglo-American law. It does not lay down a specific rule of but it implies a
fundamental principle of justice. These words have nowhere been defined either in
the English Constitution or in the American Constitution but we can find their
meaning through reading the various antecedents of this expression. As a matter of
fact, it can be traced back to the days of King John when the barons wrung their
charter from him, i.e., the Magna Carta. The expression "Per Legum Terrea" in the
Magna Carta have come to mean "without due process of law". Chapter 39 of the
Charter says:-
"No free man shall be taken, or imprisoned, diseased, or outlawed, exiled, or in
any way destroyed; nor shall we go upon him, nor send upon him, but by the lawful
judgment of his peers or by the law of the land."
Chimanlal Chakkubhai Shah
"Thus, for example, in 1875, in Loan Association vs. Topeka the Court said:
"It must be conceded that there are such rights in every free government beyond
the control of the state, a government which recognised no such rights, which held
the lives, the liberty and the property of its citizens subject at all times to the
absolute disposition and unlimited control of even the most democratic depository
of power is, after all, a despotism.......The theory of our governments, state or
municipal, is opposed to the deposit of unlimited power anywhere. The executive,
the legislative and the judicial branches of these governments are all of limited and
defined powers. There are limitations on such power which grow out of the essential
nature of all free governments-implied reservations of individual rights, without
which the social compact could not exist, and which are respected by all
governments entitled to the name. No court, for instance, would hesitate to declare
void a statute which enacted that A and B who were husband and wife to each other
should be so no longer, but that A should thereafter be the husband of C, and B the
wife of D, or which should enact that the homestead now owned by A should
henceforth be the property of B." 7.67. Chimanlal Chakkubhai Shah
Sir, with these words I support the amendment. 7.67. H. V. Pataskar
Mr. Vice-President, I have come forward only to take a few minutes of the House for
supporting the amendment No. 528 which wants to substitute "except according to
procedure established by law" by the words "without due process of law". Already
the legal aspect of this matter has been discussed at length in this House, but I want
to place it before the House from another point of view. We are, Sir, at the present
moment in a state which is going to be a democracy. Now, democracy implies party
Government and party Government, in our country, is rather new and we have
instances which lead us to think that the party machine at work is likely to prescribe
procedures which are going to lead to the nullification of the provisions which we
have made in the Fundamental Rights, which are being given to the people. We
know from experience that in certain provinces there are already legislations which
have been enacted and which prescribe certain procedures for detention, which have
come in for criticism by the public in a very vehement manner. I therefore, submit,
Sir, that it is very essential from the point of view of the right of personal liberty, that
the words "due process of law" should be particularly there. With these words, Sir, I
support the amendment and would not like to repeat what has been said in favour
of this amendment already. 7.67. K.M. Munshi
Mr. Vice-President, Sir, I want to support amendment No. 528 which seeks to
incorporate the words "without due process of law" in substitution of the words
"except according to procedure established by law". In my humble opinion, if the
clause stood as it is, it would have no meaning at all, because if the procedure
prescribed by law were not followed by the courts, there would be the appeal court
in every case, to set things right. This clause would only have meaning if the courts
could examine not merely that the conviction has been according to law or according
to proper procedure, but that the procedure as well as the substantive part of the law
are such as would be proper and justified by the circumstances of the case. We want
to set up a democracy; the House has said it over and over again; and the essence of
democracy is that a balance must be struck between individual liberty on the one
hand and social control on the other. We must not forget that the majority in a
legislature is more anxious to establish social control than to serve individual liberty.
Some scheme therefore must be devised to adjust the needs of individual liberty and
the demands of social control. Eminent American constitutional lawyers are agreed
on the point that no better scheme could have been evolved to strike a balance
between the two. Of course, as the House knows, lawyers delight to disagree and
there is a certain volume of opinion against it in America, but as pointed out by my
honourable Friend, Mr. C. C. Shah, we have made drastic changes in the American
clause. The American clause says that no person shall be deprived of his life, liberty
or property without due process of law. That clause created great difficulties with
great respect I have not been able to agree with this view Interruption. Take even our
Public Safety Acts in the provinces. In view of the condition in the country they
would certainly be upheld by the court of law and even if one out of several acts is
not upheld, even then, I am sure, nothing is going to happen. Human ingenuity
supported by the legislature and assisted by the able lawyers of each province will
be sufficient to legislate in such a manner that law and order could be maintained. 7.67. K.M. Munshi
Therefore, my submission is that this clause is necessary for this purpose and is not
likely to be abused. We have, unfortunately, in this country legislatures with large
majorities, facing very severe problems, and naturally, there is a tendency to pass
legislation in a hurry which give sweeping powers to the executive and the police.
Now, there will be no deterrent if these legislations are not examined by a court of
law. For instance, I read the other day that there is going to be a legislation, or there
is already a legislation, in one province in India which denies to the accused the
assistance of lawyer. How is that going to be checked? In another province, I read
that the certificate or report of an executive authority--mind you it is not a Secretary
of a Government, but a subordinate executive--is conclusive evidence of a fact. This
creates tremendous difficulties for the accused and I think, as I have submitted, there
must be some agency in a democracy which strikes a balance between individual
liberty and social control. 7.67. K.M. Munshi
Our emergency at the moment has perhaps led us to forget that if we do not give
that scope to individual liberty, and give it the protection of the courts, we will
create a tradition which will ultimately destroy even whatever little of personal
liberty which exists in this country. I therefore submit, Sir, that this amendment
should be accepted. 7.67. Alladi Krishnaswami Ayyar
Mr. Vice-President, Sir, the debate on this article reveals that there seems to be a
leaning on the part of a good number of members in this House in favour of the
expression `due process' being retained and not for substituting the expression
`procedure established by law', which is the expression suggested by the Drafting
Committee in its last stage. I am using the words `in its last stage' because my
honourable Friend Mr. Munshi has taken the opposite view. 7.67. Alladi Krishnaswami Ayyar
Sir, at least in justification of the change suggested by the Drafting Committee, I owe
it to myself, to my colleagues and the respected Chairman of the Drafting
Committee, to say a few words, because, up to the last moment, presumably, the
House is open to conviction. 7.67. Alladi Krishnaswami Ayyar
The expression `due process' itself as interpreted by the English Judges connoted
merely the due course of legal proceedings according to the rules and forms
established for the protection of rights, and a fair trial in a court of justice according
to the modes of proceeding applicable to the case. Possibly, if the expression has
been understood according to its original content and according to the interpretation
of English Judges, there might be no difficulty at all. The expression, however, as
developed in the United States Supreme Court, has acquired a different meaning
and import in a long course of American judicial decisions. Today, according to
Professor Willis, the expression means, what the Supreme Court says what it means
in any particular case. It is just possible, some ardent democrats may have a greater
faith in the judiciary than in the conscious will expressed through the enactment of a
popular legislature. Three gentlemen or five gentlemen, sitting as a court of law, and
stating what exactly is due process according to them in any particular case, after
listening to long discourses and arguments of briefed counsel on either side, may
appeal to certain democrats more than the expressed wishes of the legislature or the
action of an executive responsible to the legislature. In the development of the
doctrine of `due process', the United States Supreme Court has not adopted a
consistent view at all and the decisions are conflicting. One decision very often
reversed another decision. I would challenge any member of the Bar with a deep
knowledge of the cases in the United States Supreme Court to say that there is
people who believe in the lawyer. In the earlier stages of American history, lawyers
ranged themselves on the side of great Trusts and Combines and in favour of
Corporations who were in a position to fee them very well, sometimes in the name
of personal liberty, sometimes in the name of protection of property. After all the
word `personal liberty' has not the same content and meaning as is imported into it
by some of our friends who naturally feel very sensitive about people being detained
without a proper trial. I equally feel it but that is not the meaning of personal liberty
attributed by the American Courts in the context of `due process'. I trust that the
House will take into account the various aspects of this question, the future progress
of India, the well-being and the security of the States, the necessity of maintaining a
minimum of liberty, the need for co-ordinating social control and personal liberty,
before coming to a decision. One thing also will have to be taken into account, viz.,
that the security of the State is far from being so secure as we are imagining at
present. Take for example the normal detention cases. I may tell you as a lawyer, I
am against the man being detained without his being given an opportunity; but an
opportunity is not necessarily given in a court of law, as a result of argument, as a
result of evidence, as a result of examination or cross-examination. Today I know in
Madras a Special Committee has been appointed consisting of a Judge of the High
Court, the Advocate-General of Madras and another person to go into the cases of
detention and to find out whether there are proper materials or not. Now all these
cases might have to go to Courts of law and possibly it is a good thing for lawyers.
Though I am getting old I do not despair of taking part in those contests even in the
future. 7.67. Alladi Krishnaswami Ayyar
The support which the amendment has received reveals the great faith which the
Legislature and Constitution makers have in the Judiciary of the land. The Drafting
Committee in suggesting "procedure" for "due process of law" was possibly guilty of
being apprehensive of judicial vagaries in the moulding of law. The Drafting
Committee has made the suggestion and it is ultimately for the House to come to the
conclusion whether that is correct, taking into consideration the security of the State,
the need for the liberty of the individual and the harmony between the two. I am still
open to conviction and if other arguments are forthcoming I might be influenced to
come to a different conclusion. 7.67. Z. H. Lari
Mr. Vice-President, the last speaker who has spoken on this article has drawn the
attention of the House to dangers to the State which are likely to arise if the article as
it stands is amended by the amendment No.528 or 530. I have not got that experience
which the learned speaker has but with the little knowledge of the working of the
Legislatures during the last ten years, I can say that it is necessary not only in the
interest of individual liberty but in the interest of proper working of legislatures that
such a clause as due process of law clause should find a place in the Constitution. It
is open to that speaker at the fag end of his life as a lawyer to have a fling at the
profession of law but I can say that assistance of lawyers is absolutely essential to
secure justice. 7.67. Alladi Krishnaswami Ayyar
On a point of order. I had no fling at the profession of law. 7.67. Z. H. Lari
I stand corrected. 7.67. Z. H. Lari
I feel that two things are necessary. We all know that the State, these days, is all-
powerful. Its coercive processes extend to the utmost limits but still there is a phase
of life which must be above the processes of Executive Government, and that is
individual liberty. In America no such word as `personal' existed. There the word
liberty alone existed and possibly in that state of things, it was possible to interpret it
in such a way as to extend the scope of due process of law to other spheres of life but
when the word `personal liberty' has been definitely inserted in the clause, I doubt
whether any Court which is conscious of the requirements of a State as well as
conscious of the necessities of individual liberty, will be so uncharitable to the
interest of the State as to interpret it in a way to thwart the proper working of the
