Described as an “executive’s court” in some quarters in recent times, the Supreme Court has proved its critics wrong yet again. A 41-page judgment of Justice Sandeep Mehta and Justice B R Gavai, authored by the former, has highlighted the importance of due process.
Due process of law is not only an important fundamental right but a time-tested yardstick to judge the maturity of a civilisation. But, is it just a procedural requirement? Or does it offer substantive protection against the state’s arbitrary exercise of power?
Justices Mehta and Gavai delivered their verdict in Newsclick founder-editor Prabir Purkayastha’s case. Purkayastha was not informed of the “grounds of arrest” as required by the Constitution’s Article 22 before his production before the Additional Sessions Judge (ASJ). However, the ASJ mechanically passed the remand order at 6 am on October 4, 2023.
The SC verdict has rightly drawn a fine line between the “reasons of arrest,” which are formal and common to all arrested persons, and the “grounds of arrest,” which have to be peculiar to an individual arrested person. If the “grounds of arrest” are not communicated in writing, the right to life and personal liberty is violated making the arrest and detention illegal, despite repeated remand orders.
Even the first major human rights instrument, the Magna Carta (1215), talked of only procedural rights — of course, only of nobles or barons. Yet, it too was categorical that “no freeman shall be seized or imprisoned or stripped of his rights…except by the lawful judgment of his co-equals or by the law of the land.” The expression “due process” was used for the first time two centuries later in the statute of British King Edward III. But it was the Fifth Amendment to the American Constitution (1791) that introduced the concept of “due process” in a constitution. Subsequently, the Fourteenth Amendment guaranteed, in addition to the right to equality, the right to life and liberty. It prohibited their curtailment without the due process of law.
However, it would be wrong to view due process as just a procedural safeguard. It involves the right to fairness, reasonableness, justness, non-arbitrariness. Several American laws have been struck down on criteria set by the Due Process Doctrine. New rights have also been recognised under this doctrine.
The history of “due process” in India is equally fascinating, but deeply frustrating. In 1918, the Indian National Congress asked the colonial government to revoke all laws that allowed state authorities to arrest or detain people without due process. Balgangadhar Tilak and M K Gandhi invoked due process in their defence against unjust laws. But the framers of the Indian Constitution who had initially shown keen interest in the Due Process Doctrine abandoned it.
Constituent Assembly deliberations show how we went back on due process. On March 17, 1947, the Assembly received a note from K M Munshi, a member of the fundamental rights sub-committee. It included a draft provision: “No person shall be deprived of his life, liberty or property without due process of law”. Ambedkar’s own draft too included the expression, “due process of law”. The Fundamental Rights Sub-Committee approved the due process clause on April 15, 1947.
In subsequent deliberations of the Advisory Committee headed by Sardar Patel, few members such as C Rajagopalachari and Govind Ballabh Pant expressed reservations — they felt the clause could limit the legislative powers of the state. It was however B N Rau, not even a member of the Constituent Assembly but its adviser, who can be blamed for restricting the scope of Article 21. Borrowing from Irish(Article 40(4)) and Japanese(Article 31) constitutions, he proposed the insertion of “personal” before liberty and replaced due process with the narrower expression “procedure established by law”. Surprisingly, this major dilution was approved on January 18, 1948, by the drafting committee headed by Ambedkar, which met without quorum.
Several members were disappointed to see the due process clause being dropped. H V Pataskar talked about the danger of routine detentions for indefinite periods without this guarantee. K C Sharma maintained that due process provided minimum standards of fairness and without it, Article 21 cannot be termed a Fundamental Right. Kazi Karimuddin called it a sad chapter of our constitutional history. On December 7, 1948, Article 21 was adopted as Ambedkar failed to take an unequivocal position in favour of due process. Bakshi Tek Chand termed Ambedkar’s act as “one of great mysteries”. K T Shah feared that people would be detained without trial on false pretences. The last 70 years have proved these Constituent Assembly members right.
Ambedkar tried to salvage the situation in September 1949 when he introduced Article 22 and termed it as a “compensation” for the omission of due process in the right to life and personal liberty. But then Article 22(1) and (2) incorporated the guarantees — right to counsel of choice and production — before the magistrate within 24 hours that were already part of the colonial government’s Code of Criminal Procedure,1898.
After independence, starting from its regressive judgment in A K Gopalan (1950) to ADM Jabalpur (1976), the SC contributed to undermining the due process by overemphasising the literal meaning of procedure established by law. The court did change its stand in the Bank Nationalisation case (1970) and extended the due process to the right to property. Subsequently, Justice Fazal Ali’s dissent in Maneka Gandhi (1978) became a majority opinion and due process was judicially recognised as part of the right to life and personal liberty. Every law must now be reasonable, just, fair and non-arbitrary. Moreover, the 44th Amendment (1978) made the right to life and personal liberty a non-derogable right that can no longer be suspended, even during an emergency.
In Pramod Singla (2023), the SC termed preventive detention laws as a colonial legacy with great potential of abuse. It said that every procedural requirement must be rigidly followed. India, however, continues to have several stringent preventive detention laws, both at the Centre and state levels. As per the National Crime Records Bureau (NCRB) over 12,000 people were in prisons in 2021 under such laws and 76 per cent of prison inmates were under trial in 2022. Unfortunately, the part of the 44th amendment on preventive detention has not been notified even after 46 years.
The writer is Vice Chancellor, Chanakya National University Patna.
Views expressed are personal
