BOOK REVIEW: Rohan Alva's: "Liberty after Freedom: A History of Article 21, Due Process and the Constitution of India"

Rohan Alva seems to be the best sort of dangerous man. The astrophysicist Neil deGrasse Tyson, arguably the world's most popular scientist living today, writes in a letter to a well-wisher: "My aim is simply to empower people to think for themselves, rather than have others do the thinking for them. Therein blooms the "soul" of skepticism and the "spirit" of free inquiry."[i] Alva is that sort of dangerous man: he thinks for himself, and we are the richer for it. Why do I say this? Alva's book, "Liberty after Freedom: A History of Article 21, Due Process and the Constitution of India"[ii] concerns itself with one fundamental question: "[H]ow exactly did the Constituent Assembly come to disavow making any reference to 'due process' in the Constitution?" In a footnote nestled in the third chapter of his book,[iii] Alva references a set of heavyweights (including, B Shiva Rao, HM Seervai, Upendra Baxi and T. Andhyarujina) who have considered this question and concluded that the phrase "due process of law" was dropped from the constitutional text at the urging of the Constitutional Adviser, Sir Benegal Narsing Rau (who Alva discloses to be his ancestor on the maternal side), pursuant to his interactions with Justice Felix Frankfurter of the Supreme Court of the United States of America. For most, that is authority enough. Alva, though, does an insurrection. He goes back to the primary sources and finds things out for himself. He comes to a radically different conclusion, on good evidence, that BN Rau likely did nothing of the sort. Alva argues, convincingly, that Rau was clearly in favour of retaining the phrase "due process of law" in the constitutional text, although he was certainly concerned with limiting the scope of judicial review on this ground. He tells us:[iv] "In the original version of the Draft Constitution, Rau had intended on retaining due process protection, including substantive due process, against all measures which did not partake of the character of economic and public welfare laws. Rau was not opposed to due process in its entirety, and this meant that substantive due process could be pressed into service in all of those situations in which state action was for a purpose other than public welfare." In Alva's analysis, it is ultimately the Drafting Committee in general, and specifically Alladi Krishnaswami Ayyar, who must bear responsibility for the disappointing final form that Article 21 took in our Constitution. He argues a convincing case, which I attempt to summarize here very briefly. Alva shows us that the Sub-Committee on Fundamental Rights (the "Sub-Committee") debated the issue of "due process" in detail, and that though AK Ayyar, KM Munshi, KT Shah and Dr. B.R. Ambedkar "each had their own vision of how the Constitution must deal with fundamental rights… …they all converged on the idea that the inclusion of a due process guarantee as a fundamental right in the Constitution was paramount."[v] On 16 April 1947, the Chairman of the Sub Committee submitted its report to the Chairman of the Advisory Committee, suggesting a clause that stated: "No person shall be deprived of his life, liberty, or property without due process of law…" [vi] Alva informs us that the Advisory Committee to the Constituent Assembly voted on 21 April 1947 to accept a text which explicitly incorporated a strong version of the due process guarantee, although the protection for property rights in the clause was dropped for fear that this may impede land reform legislation.[vii] Significantly, during the debates in the Advisory Committee, AK Ayyar is shown to be at pains to highlight how the Sub-Committee had methodically approached the issue of due process and had decided to recommend it only after carefully surveying the entire body of American constitutional law on the point. Ayyar, Alva notes, had staunchly defended the inclusion of the due process guarantee in no uncertain terms at this stage.[viii] The Advisory Committee's 'Interim Report on the Subject of Fundamental Rights' of 23 April 1947 was then placed before the Constituent Assembly. On 30 April 1947, the Assembly approved, in principle, wording that expressly conferred the due process guarantee for protecting life and liberty.[ix] Shortly after independence, the Drafting Committee of the Constituent Assembly was constituted comprising seven members, including AK Ayyar.[x] Speaking when the motion to set up the Committee was being debated, AK Ayyar made it explicitly clear that the Drafting Committee was to have a limited role and could not make any recommendations contrary to what the Assembly had already decided.[xi] The first task was assigned to BN Rau, as the Adviser, to prepare a draft constitution reflecting the Constituent Assembly's prior decisions and deliberations. He submitted this draft constitution to the Drafting Committee in October 1947. [xii] ...

BOOK REVIEW: Rohan Alva's: "Liberty after Freedom: A History of Article 21, Due Process and the Constitution of India"

Goutham Shivshankar

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