Article 21 of the Constitution: The day due process triumphed
In the universe of Constitutional Law, the month of April is widely celebrated. More particularly, the 24th of April, since that was the day, in 1973, when the Supreme Court of India announced its decision in Kesavananda Bharti v. State of Kerala, and cemented the position that Parliament could not use its plenary powers of amendment to disturb the basic structure of the Indian Constitution.
Another momentous day is April 30, 1947, for one of the most important and powerful rights which the Constitution guarantees: the right to life and personal liberty enumerated in Article 21.
Due process ascendant
The Constituent Assembly met for the first time on December 9, 1946, and four days after that, Jawaharlal Nehru the Objectives Resolution to the Assembly. The Resolution laid out a careful plan for the path that India must embark upon in terms of a Constitutional Republic. The Resolution declared in paragraph 5 that the recognition and realisation of rights through a Constitution had to be a priority for the Assembly. When the floor was thrown open for debate, Dr BR Ambedkar took the lead in emphasising that the entire project of implementing fundamental rights would be an exercise in futility if the Constitution did not unequivocally guarantee due process rights. Here is what he in the Assembly on December 17, 1946:
"The Resolution suffers from certain other lacuna. I find that this part of the Resolution, although it enunciates certain rights, does not speak of remedies. All of us are aware of the fact that rights are nothing unless remedies are provided whereby people can seek to obtain redress when rights are invaded. I find a complete absence of remedies. Even the usual formula, that no man’s life, liberty and property shall be taken without the due process of law, finds no place in the Resolution."
Dr Ambedkar’s recommendation of giving pride of place to due process rights did not find its way into the Objectives Resolution which the Assembly ultimately approved, but it seemingly had an impact elsewhere. On January 24, 1947, the Assembly an Advisory Committee, which would come to be chaired by Sardar Vallabhbhai Patel. The Advisory Committee had to make recommendations on the fundamental rights which the Constitution ought to include. The proposals would then be debated and the Assembly would decide which rights were worthy of incorporation.
From amongst its members, the Advisory Committee in turn created a Sub-Committee on Fundamental Rights and by April 16, 1947, the Chairman of the Sub-Committee, JB Kripalani presented the Report of the Sub-Committee on Fundamental Rights. In that, Clause 12 read thus:
"No person shall be deprived of his life, liberty or property without due process of law nor shall any person be denied the equal treatment of the laws within the territories of the Union: Provided that nothing herein contained shall prevent the Union Legislature from legislating in respect of foreigners."
With the proposals of the Sub–Committee in hand, the Advisory Committee had to now decide whether it wished to throw its support behind a due process guarantee. One look at the above proposal made it evident that the Sub-Committee was largely inspired by Section 1 of the 14th Amendment to the US Constitution, which recommended due process guarantee protecting ‘life’, ‘liberty’ and ‘property.’
By the 1940s, the 14th Amendment, and particularly the due process guarantee, had become enormously controversial in the US. It all started with the decision of the US Supreme Court in Lochner v. New York (1905) which wrested from the 14th Amendment, the idea that courts can recognise new rights and confer due process protection on them. The decision in Lochner announced that the 14th Amendment guaranteed a liberty to contract, as a result of which laws which violated this newly recognised right were declared unconstitutional. The juristic thought that Lochner came to embody was that socio-economic laws would be declared unconstitutional on the anvil of the due process guarantee.
In the face of an economic crisis brought on by the Great Depression of 1929, President Franklin D Roosevelt, in February 1937, threatened to pack the court with additional justices; justices who would uphold laws, if the US Supreme Court did not break away from the Lochner line of thinking. His threat is believed to have worked, because one of the justices, Justice Owen Roberts, switched his voting pattern, thus creating a majority on the US Supreme Court which began to uphold socio-economic laws. Justice Roberts’ change of heart to avert Roosevelt’s ‘Court Packing Plan’ is famously called ‘The Switch in Time that Saved Nine.’ The battle appeared to have ended by the 1940s with the decision of the US Supreme Court in West Coast Hotel Co. v. Parrish (1937) and United States v. Darby (1941), which seemingly abandoned Lochner.
This nearly four-decade long controversy over the proper place of due process rights in a Constitution and its relationship with popular government was fresh in the minds of the Advisory Committee and indeed in the minds of many in the Constituent Assembly. They had reason to be tentative of a right which could overturn legislations enacted by a popularly elected government.
When the Advisory Committee met, Patel advised everyone that the due process guarantee must be seen as embodying two sets of rights: one relating to life and individual liberty, and the other relating to property rights. Patel believed it was best if these two components of due process rights were addressed separately. In the Advisory Committee meetings, oratory reached its pinnacle in the speeches of Alladi Krishnaswami Ayyar, KM Munshi, GB Pant and Dr. Ambedkar. The history of the 14th Amendment to the US Constitution was a topic of intense debate, but Ayyar and Munshi were persuasive in convincing the Advisory Committee that the promise of the due process guarantee, in empowering the people to strongly protect their rights, far outweighed many other considerations.
Eventually, the Advisory Committee decided that due process protection must be conferred only on ‘life’ and ‘liberty’ and not on ‘property.’ As the Advisory Committee saw it, land reform in India would be impossible if property rights were granted due process protection. This decision found its way into the Advisory Committee’s Interim Report on Fundamental Rights which Patel presented to Dr Rajendra Prasad, the Chairman of the Constituent Assembly, on April 23, 1947.
Six days later, Patel rose to the Assembly on the salient features of the Interim Report. The next day, on April 30, 1947, the Assembly had to vote. It had to now decide whether it wished for the due process guarantee to be a part of the nation’s future Constitution. The Assembly, overwhelmingly and unequivocally, that it must approve the due process guarantee. On April 30, 1947, the Assembly told itself and indeed the world, that the highest levels of protection had to be conferred on a person’s ‘life’ and ‘liberty.’ No person could be deprived of the same ‘without due process of law.’
The original intent of Article 21 is due process
After April 30, 1947, the fate of the due process guarantee was marked by misfortune. A fortnight after India attained independence, the Constituent Assembly formed a Drafting Committee which had to prepare a Draft Constitution which the Assembly could then deliberate on. One of the conditions imposed on the Drafting Committee was that it must respect the past decisions of the Assembly, and frame articles in the Draft Constitution which are consistent with those past decisions.
However, in the Draft Constitution, which Dr Ambedkar, the Chairman of the Drafting Committee, presented to the Constituent Assembly on November 4, 1948, due process protection for ‘life’ and ‘liberty’ was missing. It was replaced by what we find in Article 21 today.
When the Drafting Committee’s proposals to do away with due process rights the floor of the Assembly on December 6, 1948, members could not believe that a person’s life and liberty could be taken away with the simple action of making a law to that effect. Unlike the due process guarantee, the phrase ‘except according to procedure established by law’ disentitled a person from interrogating State action which affected them in the most deleterious sense. Yet, the criticism proved unfruitful and the Assembly ended up Article 21 (then known as draft Article 15) over the more robust due process guarantee. And that decision made its way into the final version of the Constitution which came to life on January 26, 1950.
The unanimous decision of April 30, 1947, was upturned in the Assembly a little over a year and a half later. Thereafter, the decision of April 30, 1947, lay dormant for nearly three decades until it found a voice in a new form of Constitutional jurisprudence which celebrated due process rights, particularly substantive due process rights, and dismantled the old regime of allowing life and liberty to cede ground to ordinary regulations. Which is why in 2014, a Constitution Bench of the Supreme Court that,
"The wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty."
In our Constitutional history, the enduring lesson and indeed the enduring legacy of April 30, 1947, is that the original intent of the Assembly was always to confer due process protection on a person’s life and personal liberty. The original intent of that decision was to forever ensure that fundamental rights will not be easily surmounted by the ordinary law-making power of the State. The due process guarantee was meant to be permanent. But above all, the due process guarantee, pithily but most emphatically, announced a right which would ensure that the historical injustices of the past would not become a reality in a new and free India.
There is no other way to read Article 21 of the Indian Constitution. It was and is meant to be, a transformative right which possesses the full power of the due process guarantee. That is the enduring legacy of April 30, 1947. And that is a day worth celebrating every year.
Rohan J Alva is a counsel practicing in the Supreme Court of India and the High Court of Delhi. He is the author of Liberty After Freedom: A History of Article 21, Due Process and the Constitution of India (HarperCollins Publishers, 2022). He can be reached at firstname.lastname@example.org