‘Liberty After Freedom’ dissects the history of Article 21

Satya Prakash

CONSTITUTION making is always a complex exercise, for it’s not just about drafting various provisions but also involves a very intricate balancing of conflicting interests of different political, social, regional, ethnic, linguistic and religious groups in an attempt to bind them together with the help of the guiding document sought to be created.

But writing the history of such an exercise, and that too focussing on Article 21, can be even more complex as it requires extensive research, greater understanding of constitutional principles and, above all, a wonderful insight into the task undertaken by the founding fathers at a very challenging time.

In that sense, Rohan J Alva’s debut work ‘Liberty After Freedom — A History of Article 21, Due Process and the Constitution of India’ is a fairly good and critical account of what transpired in the Constituent Assembly on arguably the most important provision of the Constitution.

Often described as the heart and soul of the Indian Constitution, Article 21 reads, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Article 21 has attracted law scholars and judges alike. Given his exposure to both history (Loyala College, University of Madras) and Law (Campus Law Centre, University of Delhi and Harvard Law School), it’s not surprising that the author chose a topic at the intersection of the two subjects.

It has often bothered students of law as to why the Constitution makers preferred ‘procedure established by law’ over the expression ‘due process’ while finalising Article 21. The issue has been dealt with in great detail, along with the flip-flops, by the author.

The book offers insights into the dilemmas and dissensions faced by the Constituent Assembly and the efforts of stalwarts like KM Munshi and BN Rau to get “due process” incorporated in Article 21. The book is full of such details from the Constituent Assembly debates.

However, the author appears to be harsh on the Constitution makers when he writes: “Indeed, at the time at which the Constitution was founded, Article 21 was widely considered even unworthy of being labelled a fundamental right.”

No doubt, ‘due process’ was a better option as it offered a greater scope for judicial review of Executive actions and a better protection of the most precious fundamental right. What’s important is that those in the Constituent Assembly were fairly conscious of the due process clauses of the US Constitution under the Fifth and 14th Amendments. However, they chose to go for ‘procedure established by law’, for India needed a strong Executive to survive as a nascent democracy. Instead of being swayed by their knowledge of Constitutional Law, the Constitution makers preferred to be guided by their collective wisdom borne out of their experience of freedom struggle and understanding of India as a civilisational entity and a newly-born political nation state.

Even the SC took several decades to make ‘due process’ a constitutional requirement. It was only on the eve of the Republic Day in 1978 that a Constitution Bench in Maneka Gandhi vs Union of India reversed. The author has rightly put it that “the note of caution which (BN) Rau had sounded in 1946, came to be heeded by the Supreme Court in 1978”.