'Made In Japan' : Japanese Connection Of Article 21 Of The Constitution Of India

Shridhar Yeshwant Chitale

12 March 2019 10:35 AM GMT

  • Made In Japan : Japanese Connection Of Article 21 Of The Constitution Of India

    When most of us think of India's connection with Japan, what comes to our minds is the metro project , the proposed shinkansen and the massive grant in aid funding extended by the Japanese. What many of us are not aware of (and I suspect that also includes some members of the legal fraternity) is that our connection with Japan is not only restricted to technology, Sushi and Sake' but to...

    When most of us think of India's connection with Japan, what comes to our minds is the metro project , the proposed shinkansen and the massive grant in aid funding extended by the Japanese. What many of us are not aware of (and I suspect that also includes some members of the legal fraternity) is that our connection with Japan is not only restricted to technology, Sushi and Sake' but to the framing of a very significant part of a provision in the Constitution of India.

    Article 21 forms a vital provision in our Constitution. It guarantees the protection of life and personal liberty to every person in India. The exception to this protection is contained in four very significant words appearing at the end, namely "procedure established by law". These four words have been borrowed by the framers of our Constitution from the Japanese Constitution which was promulgated on November, 3rd, 1946 after World War II and came into effect on May, 3rd, 1947. Interestingly, these words got preference over the phrase "due process of law" which was incorporated in the United States Constitution through the Fifth and Fourteenth Amendments.
    Significantly, the original draft of the Japanese Constitution, popularly known as the McArthur draft was written under the supervision of Douglas McArthur, an American and the Supreme Commander of the Allied forces, after the Japanese surrender pursuant to the 1945 Postdam Declaration. His manuscript was largely based on the American Constitution model and was in contrast with the recommendations of the Matsumoto Commission which preferred to follow the conservative Meiji model. Later on, the Japanese Government tweaked the McArthur draft to include, inter alia, civil guarantees including Article 31 in its Constitution, which is in pari materia with Article 21 of the Constitution of India.
    Article 31 of the Constitution of Japan states that " No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law." Article 21 of the Indian Constitution states that "No person shall be deprived of his life or personal liberty except according to procedure established by law."
    The Constituent Assembly of India was set up on 1-7-1946 and its first session was held on 9th December 1946. A Drafting Committee was appointed on 29th August, 1947 by the Constituent Assembly under the Chairmanship of Dr. B.R. Ambedkar and its task was to prepare a Constitution for free India, based upon the reports from the various Committees set up for that purpose. When the draft Constitution was ready, Dr. Ambedkar, in his opening speech on 4th November, 1948 remarked "The Draft Constitution as it has emerged from the Drafting Committee is a formidable document. It contains 315 Articles and 8 Schedules. It must be admitted that the Constitution of no country could be found to be so bulky as the Draft Constitution. It would be difficult for those who have not been through it to realize its salient and special features."
    The original draft of Article 21 contained the phrase "due process of law". At the time of framing of the Indian Constitution, the inclusion of the phrase "procedure established by law" had been the subject matter of extensive debate and discussion in the Constituent Assembly. The members of the Constituent Assembly, in their debates, deliberated upon the pros and cons in the use of this phrase . It was on Monday, the 6th of December, 1948 at 10 am, that a motion was moved in the Constituent Assembly to make Article 15(now Article 21) a part of the Constitution of India. There was some serious opposition from certain quarters to the inclusion of the words "except according to procedure prescribed by law" and some members were strongly in favour of an amendment to the words "without due process of law" as appearing in the American Constitution. At the forefront seeking the amendment was Shri. Kazi Syed Karimuddin (C.P. & Berar) who moved amendment no.523 on the Article and he pointed out that the Advisory Committee had originally suggested these words but were later changed by the Drafting Committee on Fundamental Rights to what it stands today. He argued that it would be a sad chapter in the history of Constitutional law and great injustice would be caused to the law courts in the country if the Japanese model were to be adopted. The thrust of his argument was that if a procedure prescribed by law was to be complied with, the duty of the Court would end and it would have no further power to interfere , irrespective of the procedure being capricious, iniquitous or unjust.
    Another member, Shri. Mahboob Ali Baig Sahib Bahadur(Madras: General) argued in favour of substitution of the "due process of law" words on the ground that even though the Japanese Constitution contained the words "procedure prescribed by law", there were safeguards to Article 31 in the form of Articles 32, 34 & 35 in that Constitution , which safeguards were non-existent in the Indian Constitution. While his plea was supported by five other members, namely, Shri. Chimanlal Chakturbhai Shah, Shri. Ksrishna Chandra Sharma, Shri. H. V. Pataskar, Shri. K.M. Munshi and Shri. Z.H. Lari On the other hand, the renowned lawyer Shri. Alladi Krishnaswami Ayyar spoke strongly on the cautious measures that the House must take into account including the various aspects of the substitution, the future progress of India, the well-being and the security of the States and the need for coordinating social control and personal liberty.
    Interestingly, after the initial debate was over on the subject on 6th December, 1948, on the next day, in the morning itself Dr. B. R. Ambedkar, who was called upon to give his reply, made a request that the debate on the Article be stood over for a while, which was accepted by the members of the Constituent Assembly. It was later revealed that the reason for his request for the adjournment was to enable the members to make efforts to reach a common ground on the amendments sought by some and opposed by the others. The Constituent Assembly finally resumed its debate on the subject on 13th December,1948 and Dr. Ambedkar spoke at length on how the words "due process of law" and "procedure established by law" had clearly two view points . In his well-articulated speech, he succinctly outlined the pros and cons in adopting either of the two expressions; the first expression which gave the power to the Judiciary to "sit in judgment over the will of the legislature" and the second would mean that the "legislature ought to be trusted not to make bad laws". In his concluding remarks he pointed out , and I quote," For myself I cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad. It is rather a case where a man has to sail between Charybdis and Scylla and I therefore would not say anything. I would leave it to the House to decide in any way it likes."
    After Ambedkar had concluded his reply, the acting Vice President of the Constituent Assembly, namely Dr. H.C. Mukherjee put each amendment to vote and resultantly, the five amendments seeking substitution of the words "due process of law" in place of "procedure established by law" were negatived by the House. Accordingly, Article 21 became part of our Constitution on 13th December, 1948.
    Barely two years later, on 19th May, 1950, a six Judge Bench(a rare occurrence) of the Supreme Court of India had the opportunity to examine and interpret the meaning of the expression "procedure established by law " in the landmark judgment of A.K. Gopalan Vs. State of Madras, where the Constitution Bench, in a Habeas Corpus Writ Petition under Article 32(1) filed by Gopalan challenging his detention Order dated 1st March,1950 passed under Section 3(1) of the Preventive Detention Act 4 of 1950, took note of the debates in the Constituent Assembly and the inclusion of the phrase "procedure established by law" from the Japanese Constitution. Six separate Opinions were given by the Bench. The then Chief Justice, Harilal Kania, in his Judgment opined that "this is the first case in which the different articles of the Constitution of India contained in the Chapter on Fundamental Rights has come for discussion before us." While interpreting the provisions of the Constitution threadbare, the Bench made several references to the fact that the phrase "procedure established by law' seemed to have be borrowed from Article 31 of the Japanese Constitution and made vivid comparisons with the American Constitution and found that the Constituent Assembly had ultimately adopted the Japanese model in respect of Article 21. Interestingly, Justice Fazl Ali took the view that the phrase "procedure established by law" as taken from the Japanese Constitution in fact represented the American "due process" doctrine. The Court ultimately by a majority Judgment upheld the validity of the impugned preventive detention law barring certain sections.
    In the twenty eight years following the Gopalan case, the Supreme Court of India has, through its judgments widened the scope and ambit of the expression "procedure prescribed by law" to somewhat read-in Justice Fazl Ali's "due process" concept. In the 1978 landmark judgment of Maneka Gandhi vs. Union of India (in which the Petitioner, inter alia, challenged the Government's action in impounding her passport without assigning any reasons) the Supreme Court held that the term "procedure" appearing in Article 21 cannot be unreasonable, arbitrary and unfair. Justice V.R. Krishna Iyer in his separate opinion concurred with Justice Fazl Ali's minority view in the Gopalan case and held that procedural safeguards are the indispensable essence of liberty and must not merely be formal but must also be fair.
    From its inception till today, there has been no amendment to Article 21 and it forms an important part of the basic structure of the Indian Constitution.

     Shridhar Yeshwant Chitale is an Advocate at Supreme Court of India. He may be reached at  shridhar@chitale.org

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