Tennyson wrote –“A land of settled government,A land of just & old renownWhere freedom slowly broadens downFrom precedent to precedent”
Tennyson wrote –
“A land of settled government,
A land of just & old renown
Where freedom slowly broadens down
From precedent to precedent”
Article 21 of the Constitution states – No person shall be deprived of his life or personal liberty except according to “procedure established by law”. The most vocal debates during Constituent Assembly sessions on its predecessor draft Article 15 surrounded use of an alternate expression - ‘due process’. Constitutional advisor Benegal Narsing Rau went to US to meet Justice Felix Frankfurter to discuss whether due process clause should be continued in draft article 15. Aware of the issues created by the 5th and 14th amendments in US Constitution and the then recently ended ‘Lochner era’, Frankfurter opined strongly against using due process. The Lochner era which marked use of the due process clause as a judicial tool against legislative actions began in 1905 with Lochner v New York and continued till West Coast Hotel v Parrish (1937) when it was expressly cornered. Interestingly, both Frankfurter & Rau were aficionados of a great constitutional lawyer James Bradlley Thayer who like Tennyson also feared that too great a reliance on due process as a protection against legislative oversight might weaken the democratic process. B.N.Rau also met Justice Douglas who opined in favour of incorporating due process clause. Nevertheless, after his return extensive debates took place and finally the expression ‘procedure established by law’ was borrowed from the Japanese Constitution.
In early decades post independence, the judiciary interpreted Article 21 as per the true intentions of the framers. It was in mid 1970s when it started using the American jurisprudence of substantive due process and procedural due process in view of judicial activism. In simple words, while ‘procedure established by law’ merely requires a validly enacted law, procedural due process commands that the procedural law must be fair, just and reasonable. Substantive due process goes one more step further to question not only procedural laws but also substantive value choices of the legislature/executive as well. This activist approach made Article 21 a dustbin of rights and in garb of personal liberties such as right to speedy trial, it has been stretched to right to sleep as well!
In Shaikh Zahid Mukhtar v State of Maharastra, the Bombay High Court in a landmark decision earlier this month declared Sections 5D & 9B of the Maharastra Animal Preservation Act, 1976 (as amended in 1995 with presidential assent on March 4, 2015) unconstitutional. While Justice Oka dealt with Section 5D among others, Justice S.C.Gupte dealt exclusively with Section 9B. Section 5D crafted a crime to have in one’s possession in Maharastra flesh of cow, bull or bullock slaughtered outside its territory. Justice Oka held that the impugned section is ultra vires the Constitution as it violates right to privacy under Article 21. Interestingly while it is debatable that Article 21 includes right to privacy, in Paras 176 and 193, Justice Oka has crafted a new constitutional right ; a right to eat. Para 176 holds that state cannot control what a citizen does in his house which is his own castle except if contrary to law and that it cannot be prevented to consume and possess a particular type of food. In Para 193 Justice Oka has penned that Article 21 includes right to lead a meaningful life. For a meaningful life a citizen will have to eat food of his choice of which he has a right except if the food is injurious to health. The paragraph ends with holding that even if it was assumed that there was no right to privacy, interference with right to food violates personal liberty guaranteed by the Constitution. Section 9B shifted the onus to prove innocence (reverse burden) on the accused of slaughter, transport, export, sale, purchase and possession of bovine flesh. In Para 203, Justice Gupte expressly compared procedure established by law to due process and adopted procedural and substantive due process to quash the impugned section.
The Supreme Court in Subramanian Swamy v Union of India, in a challenge to Sections 499 and 500 of the Indian Penal Code (IPC) recently held that reputation of an individual is a basic element of Article 21 and criminal defamation does not have a chilling effect of freedom of speech and expression while upholding their constitutional validity (Para 145). Section 499 criminalises defamation and Section 500 lays down the punishment. The judgment authored by Justice Dipak Misra deals with the concept of reputation in Para 23-32 and Indian jurisprudence on it from Para 45. After quoting precedents where right to reputation has been acknowledged and restrictive scope of freedom of speech and expression, in Para 139 the bench comprising of Justice P.C.Pant as well solidified that right to reputation is a constituent of Article 21. In a classic case of head on collision between two fundamental rights, it was deemed fit by the bench to supplant another right i.e. right to reputation as a fundamental right to resolve the issue by applying the doctrine of balancing of fundamental rights using Article 21 both as a shield and a sword. By carving it out, the apex court approved procedural due process (in this case, Sec 199 CrPC) and substantive due process (Sec 499, 500 IPC) to be part and parcel of Article 21.
Unlike other fundamental rights, the text of Article 21 has never been touched by the Parliament except adding Article 21A as right to free education. On the contrary judiciary has time and again supplanted various rights to it. In fact, it has whimsically dealt various legislative and executive actions with permissible limits of due process (substantive or procedural or both) to define and redefine rights under Article 21. It will be interesting to see that whether in coming years rights such as ‘right not to eat’ and ‘right against criminal defamation’ will be supplanted to the rights jurisprudence. The High Court of Rajasthan in August 2015 had ruled in Nikhil Soni v State of Rajasthan that the jain practice of Santhara i.e fast until death or denying food till death was unconstitutional which was immediately stayed by the Supreme Court within a month. If the apex court rules against the High Court, it will be interesting to see whether it will allow a constitutional right not to eat food in garb of it being an essential religious practice of the religion. Supreme Court is currently engaged with final hearing of the Sabarimala temple entry dispute which also involves a complicated question law of conflict between two fundamental rights including Article 21. The verdict in it will have far reaching consequences too. Interestingly, Justice Dipak Misra led bench is hearing Sabarimala as well. Big constitutional challenges lie ahead. Hoping for the best, fingers crossed!
Namit Saxena is a lawyer and can be reached at [email protected]
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