Supreme Court the Final Pedestal of Justice: Its Efficacy vis-a-vis Right to Life and Liberty

A law may be defined as an assemblage of signs, declarative of a volition, conceived or adopted by the sovereign in a stage, concerning the conduct to be observed in a certain case by a certain person or class of persons who in the case in question are or are supposed to be subject to his powers.

Bentham

Law is a command given by a determinate common superior to whom the bulk of a society is in habit of obedience and who is not in the habit of obedience of determinate human superior, enforced by a sanction.

Austin

The first of the above quotes is a definition of law given by a strict positivist who, lived from 1748 to 1832 and who believed that a law is anything and everything which is given to the people by the sovereign. And the second is the definition given also by a positivist who lived from 1790 to 1859 and believed that law is the command of the sovereign and if it is not obeyed then that shall attract punishment to the violator of that law. These two approaches provide us with a very strict approach towards law and shows that the scope of morality, ethics, natural justice and sociological aspects of law need not be taken into consideration by the legislator while enacting a law. Also it provides us with the belief that the Supreme Court can choose to judge the Right in accordance with any of the approach which it pleases to follow.

In the light of this background, this research shall proceed in the way as to how the Supreme Court of India has interpreted a very important provision in the Constitution of India which is Article 21 which provides for Right to Life and Personal Liberty through various case laws (A.K. Gopalan to Maneka Gandhi) and how has there been a shift in Jurisprudence of the Supreme Court. This paper aims to highlight on the change in interpretation and attitude of the apex court over a period of time and shall leave a question to be answered that what remedy does a common man has who intends to enforce his Right to Life and under those circumstances when his Right is violated.

Intention of the Founding Fathers:
The Constituent Assembly while framing the present Article 21 (Article 15 of the Draft Constitution), took into account the fluctuations in the interpretations of liberty and due process of law clause appearing in the Fifth and the Fourteenth Amendments of the Constitutions of the United States. 1t did not want to leave the terms vague, requiring a judicial interpretation as in the United States. No doubt, the Constitution of India in its draft stage followed the American liberty clause but later on the Constituent Assembly inserted the word liberty in order to differentiate between the two types of rights and to ensure that the word liberty was not misconstrued so as to include even those freedoms already dealt with in Article 13 which is present Article 19 of the Constitution. Consequently, the import of the word liberty in Article 21 of our Constitution is narrowed down to the meaning given in the English Law to the expression liberty of the person or personal freedom, i.e. the right not to be subject to imprisonment, arrest or other physical coercion in any manner that does not admit of legal justification.
Article 21 further makes it clear that life or personal liberty can only be deprived according to the procedure established by law. The Assembly believed that this provision taken from Article 31 of the Japanese Constitution was more specific and would help avoid the repetition of the history of the American due process clause. However, in Maneka Gandhis case the Supreme Court expanded the ambit of both personal liberty and the procedure established by law. Interpretation by the Supreme Court: It is the judiciary which defines the scope and limits of the basic rights and liberties, and the other branches of State are constitutionally required not to encroach on the rights that are given Constitutional protection. Judicial consideration has always been there with regard to solving of any dispute. Over the years, a notable achievement of the Supreme Court has been not only to resurrect Article 21 from the oblivion into which it was relegated by the Courts own decision as early as 1950 in A.K.Gopalan .Vs. State of Madras, but to give it such an expansive and liberal interpretation as to raise it to a high pedestal.

A dramatic transformation has occurred in the fortunes since 1978, giving a very good proof of the law creative role played by the Court. Article 21 although is worded in negative terms, it is now well established that it has both negative and as well as an affirmative dimension. The Court took an extremely static, mechanical, literal and positivistic view of Article 21 in Gopalans case, the very first case which arose immediately after the inauguration of the Constitution.

In this case, the Court interpreted Article 21 extremely literally and opined that expression procedure established by law only meant any procedure which was laid down in the statute by the competent legislature to deprive a person of his life or personal liberty, and that it was not permissible to read in the Article any such concept as natural justice, or the due process of law or reasonableness. Also the Court ruled that each fundamental right was independent of each other and that Article 19 did not apply where Article 21 applied. Article 19 applied to a free man and not to a person in preventive detention. Thus the procedure could not be challenged even if it were not reasonable or not consistent with natural justice.

This case was a much criticized case and it held the ground for twenty- five years, during which period the right to life did not have much of a security. Article 21 played a very insignificant role in offering any protection to a person in respect of his life or liberty. The judicial attitude underwent a change after traumatic experiences under the internal emergency imposed in 1975 which was lifted in 1977.

In Maneka Gandhi .Vs. Union of India , the very first case which came before the Supreme Court after the emergency, the court settled some of the prevailing problems about Article 21. By majority, the Court now decided that Articles 21 and 19 were not mutually exclusive, they had to be read together and so the procedure affecting any of the rights had to be reasonable. Also that the procedure established by law in Article 21 in itself meant right and just and fair procedure, and not arbitrary, fanciful, or oppressive and any procedure which was not right, just and fair was no procedure at all, and failed to meet the standard of Article 21 would not be satisfied the Court further held that the concept of reasonableness must be projected in the procedure contemplated by Article 21.

This was because of the link between Articles 21, 19 and 14. Maneka Gandhi case thus completely overturned the judgment given in the Gopalans case and thus ushered in a revolution in judicial thinking about From the above two judgment it is so clearly evident that in the Gopalans case the Court took a very positivist attitude. Now the positivist law as according to Fuller is that the legality of a law is a matter of the way rules operate, of how they are drafted, promulgated, applied, interpreted and enforced. According to Austin the starting point for the science of law must be a clear analytical separation of law and morality. Such a philosophy implies that in no way moral questions were unimportant. Thus according to Austin, any law should have a moral content in it thus making it fair, just and reasonable. Thus the same attitude was taken by the Court in the Maneka Gandhi case. Thus we can see as to how the Supreme Court has over the years changed its approach in interpreting the provision of Right to Life and Liberty as envisaged in Article 21 of the Constitution of India.

Current Scenario:
The judgment of the Supreme Court in the SAIL case and BALCO case it has been held that the Court does not has power to interpret the law passed by the Parliament. It shall abide by whatever law the Parliament has formed. Court has to keep alive the limitations i.e., the Parliament is supreme and it has to adhere to them. Thus in the current scenario we see that the Court has again gone back to the Strict positivist approach taken in Gopalans case.

Interpretation of Supreme Court:
Soon after the Constitution had come into force, the Supreme Court was called upon to define the scope of personal liberty in A.K. Gopalans case . A.K.Gopalan, a communist leader, was detained in the Madras jail. In act, he had been in detention since 1947. He was sentenced to various terms of imprisonment under the ordinary criminal law but every time the sentence was set aside. When he was still under the detention under the orders of the state government, he was served with a fresh order of detention under the Prevention of Detention Act, 1950. Gopalan contended that detention deprived him of his right to personal liberty guaranteed under Article 21; that personal liberty under Article 21 included all the freedoms conferred by Article 19(1) (a) to (g); that it included the right of free movement conferred by Article 19 (1) (d) because freedom of movement was the essence of personal liberty and, therefore, the Prevention of Detention Act of 1950 should also satisfy the requirements of Articles 19(1); and that Article 19(1) dealt with substantive rights and Article 21 with
procedural rights.

In Gopalans case, the court took a highly conservative view of personal liberty. It gave a restricted meaning to the expression personal liberty and viewed it only as an antithesis of physical restraint or coercion. Justice Mukherjea adopted Diceys definition of personal liberty and observed that it was a personal right not to be subjected to imprisonment, arrest or physical coercion in any manner that does not admit of legal justification. It was, in his opinion,
this negative right of not being subjected to any form of physical restraint or coercion without the sanction of law that constituted the essence of personal liberty and not mere freedom to move to any part of the Indian territory.

In a different way, Chief Justice Kania and Justice Das interpreted personal liberty not only as freedom from bodily restraint but also as those rights which are necessary or the growth of the human personality. Some of these rights are separately dealt with in the Constitution. But in the context of the language and scheme of arrangement of fundamental rights in the Constitution, the judges were of the opinion that Article 21 regulated only such attributes and contents of personal liberty as were not protected by Article 19. The majority of judges opined that the right to move freely through out the territory of India referred to in Article 19(1) (d) of the Constitution was entirely different from the right to personal liberty referred to in Article 21 and, therefore, Article 19 should not be read as controlled by the provisions of Article 21. In other words, the Court held that the detenue could not claim procedural fairness as a fundamental right. The court further held that the rights conferred by Article 19(1) were by their very nature rights of a person assumed to be in full possession of his personal liberty. According to Justice Das, Article 19(1) postulated a legal capacity to exercise the rights guaranteed by it and, if the citizen lost the freedom of his person because he was lawfully detained on a conviction for an offence or otherwise, he could not claim the rights under Article 19(1) (a) to (e) and 19(1) (g). For a long time after Gopalans case, the implication of the term personal liberty remained the same. In Kharak Singh .Vs. State of Uttar Pradesh , the Supreme Court

again reviewed the term personal liberty and freed it from the restricted interpretation given to it in Gopalans case. The Court in this case accepted the contention of the petitioner that domiciliary visits violated his personal liberty. It declared Regulation 236(b) of the Uttar Pradesh Police Regulations which authorized domiciliary visits at night, void and held that freedom of living in ones house without disturbance was a part of the concept of personal liberty.
The majority of the judges in the Kharak Singhs Case were of the opinion that the term personal liberty used in Article 21 was a compendious term and should include all those rights which constituted the personal liberties of the individuals but were not mentioned in several clauses of Article 19(1). The majority also observed that the adjective personal was used in Article 21 not to abridge the content of liberty but only to distinguish the scope of Article 21 from that of Article 19. Thus this view of the Supreme Court was contrary to that of the A.K. Gopalans case.

Years later, the question whether or not the provisions of Article 19 could be read into other fundamental rights guaranteed in Part III of the Constitution came up for consideration in the Bank Nationalization case. The right involved was right to property and the Court by a majority of 10:1 went back on its view in Gopalans case and held that a law providing for acquisition of property had to satisfy the requirements not only of Article 31 but also of Article 19. it questioned the premises of the of the judgment in Gopalans case, viz. that certain Articles of the Constitution exclusively dealt with specific matters and excluded the applicability of its other Articles. Thus, the Supreme Court in the Bank Nationalization case clearly spelt out the interaction of the various fundamental rights and held that the infringement of any one of them was determined neither by the object of the legislature nor by the form of action but by its direct impact on individual rights.

This case law also relied on in ADM Jabalpur .Vs. Shivakanta Shukla. However in this case, the correlation of Article 21 to 19 was considered at the time of internal emergency when the right to move the court for the enforcement of fundamental rights conferred by Article 21 was suspended.

The historical judgment of the Supreme Court in Maneka Gandhi .Vs.Union of India case is a culmination of the process of synthesis of Arts. 14, 19 and 21 for impregnating the procedure established by law with the notions of reasonableness and fairness. It became a great trendsetter for further evolution of nicer components of processessual safeguards. In this case, there was involved the constitutionality of an executive order and relevant provisions of the Passport Act impounding the passport of the petitioner without giving any opportunity of hearing. It was argued that, firstly that Act conferred undefined power of impounding, and hence was violative of Art 14; secondly, that since petitioners freedom of speech and occupation was incidentally deprived because of impounding of her passport, such deprival should conform to the requirements of Art 19, and thirdly, that procedure established by law under Art 21 should provide reasonable opportunity of hearing and should not be arbitrary.

In Maneka Gandhis case , the court settled some of the prevailing problems about Article 21. By majority the Court now decided that Articles 21 and 19 were not mutually exclusive, they had to be read together and so the procedure affecting any of the rights had to be reasonable. Also that the procedure established by law in Article 21 in itself meant right and just and fair procedure, and not arbitrary, fanciful, or oppressive and any procedure which was not right, just and fair was no procedure at all, and failed to meet the standard of Article 21 would not be satisfied the Court further held that the concept of reasonableness must be projected in the procedure contemplated by Article 21. This was because of the link between Articles 21, 19 and 14. Maneka Gandhi case thus completely overturned the judgment given in the Gopalans case and thus ushered in a revolution in judicial thinking about Article 21.

Conclusion
We have seen as to how the Supreme Court has given its interpretations differently in 1950 when it gave its decision in A.K. Gopalans case and how it changed through various cases and then getting influenced by the imposition of the emergency and giving the judgment in Maneka Gandhis case. The shift of jurisprudence of the Supreme Court can be traceable through this journey. The controversy between Parliament and Supreme Court has not been that of positivism and natural

law in the real sense but between one natural justice and another. We find a tussle between general welfare and individual interest. Thus, a close analysis of Supreme Court judgment shows that it has been guided by the facts of the various cases and political conditions of the country. Thus, while till 1977 the Supreme Court was hesitant to interfere in legislative and political decisions trusting the representatives of the people, it started asserting when it thought that executive was on path of dictatorship and was ready to violate the principles of rule of law.

Now in the present case scenario the recent judgment of the Supreme Court in the SAIL case and BALCO case it has been held that the Court does not has power to interpret the law passed by the Parliament. It shall abide by whatever law the Parliament has formed. Court has to keep alive the limitations i.e., the Parliament is supreme and it has to adhere to them. Thus in the current scenario we see that the Court has again gone back to the Strict positivist approach taken in Gopalans case.

Now, the question which remains to be answered is that, considering the change in attitude of the apex court, what is the remedy available to a common man? What should he do in order to enforce his Right to Life and Liberty which is one of the most important Fundamental Rights enshrined in the Constitution of the worlds largest democracy? It has been fifty five long years since the Supreme Court had passed the judgment of A.K. Gopalan. Over the years it kept on changing its attitude while interpreting Article 21 of the Constitution of India. Till now, no concrete answer has been given in this regard. How many more interpretations and views shall it take to form a proper opinion thereby removing the dichotomy between the Legislature and the Judiciary is a question, which only the Supreme Court can answer.

Bibliography
Books:
1. Cotterral, Roger, The Politics of Jurisprudence- A critical introduction of legal philosophy, Butterworth, London, 1989.
2. Hansaria. B.L., Right to Life and Liberty under the Indian Constitution, N.M Tripathi Publishers, Bombay, 1993.
3. Verma. S.K., Fifty Years of Supreme Court of India, Oxford University Press, New York, 1999.
4. Gupta Uma., Supreme Court and Civil Liberties, Mittal Publications, New Delhi, 1978.
5. Dias R M W.,Dias on Jurisprudence 5th ed, Aditya Books Pvt Ltd, New Delhi, 1994.
6. D.D Basu, Limited Government and Judicial Review, Tagore Law Lectures (Calcutta: S.C.Sarkar, 1972).
7. Dicey. A.V., Introduction to the study of Law of the Constitution, 9th ed, Macmillan, London 1956.
8. Keith, Ridges of Constitutional Law of England, 7th ed, Stevens and Sons Ltd, 1939.
9. Constituent Assembly Debates, Volume VII, 1948.
Articles:
1. Rai Sheela, The Natural Law and Indian Constitution, IBR, Vol-28 (2&3) 2001.

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