Article 21 of the Constitution of India After Maneka Gandhi's Case
INTRODUCTION
To a great extent, the Supreme Court of India finds its strength in Article 21 of the Constitution, for the reason that much of its judicial activism has been based on interpreting the scope of this Article. Majority of the PIL cases have been filed under this Article only. The Supreme Court is now known as an activist court. There has been no change in the words used in Article 21, but there has been a change in the way it has been interpreted. The scope of the Article has expanded considerably post the Maneka Gandhi decision. This will be critically analysed in the following few pages.
ARTICLE 21
The Article reads- “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Constituent Assembly Debate Over Article 21
India 's constitutional system was rooted in the traditions of British parliamentary sovereignty and legal positivism. Thus, the emergence of a strong Supreme Court challenging parliamentary legislation via substantive due process was unlikely given this traditional historical context. But aside from the historical legacy of British rule and legal positivism, two specific historical factors directly influenced the Constituent Assembly to explicitly omit a due process clause in the section on Fundamental Rights. The first was the influence of United States Supreme Court Justice Felix Frankfurter on Constitutional Adviser B.N. Rau, who traveled to Britain, Ireland, the United States and Canada in 1947 to meet with jurists regarding the drafting and framing of the Indian Constitution. The second factor was the tumultuous and chaotic period of communal violence that gripped Northern India as a result of the partition of Muslim Pakistan from Hindu India, which led the framers of the Indian Constitution to remove the due process clause from their draft constitution for the protection of individual liberty.1
The Constituent Assembly of India originally included a due process clause in
To a great extent, the Supreme Court of India finds its strength in Article 21 of the Constitution, for the reason that much of its judicial activism has been based on interpreting the scope of this Article. Majority of the PIL cases have been filed under this Article only. The Supreme Court is now known as an activist court. There has been no change in the words used in Article 21, but there has been a change in the way it has been interpreted. The scope of the Article has expanded considerably post the Maneka Gandhi decision. This will be critically analysed in the following few pages.
ARTICLE 21
The Article reads- “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Constituent Assembly Debate Over Article 21
India 's constitutional system was rooted in the traditions of British parliamentary sovereignty and legal positivism. Thus, the emergence of a strong Supreme Court challenging parliamentary legislation via substantive due process was unlikely given this traditional historical context. But aside from the historical legacy of British rule and legal positivism, two specific historical factors directly influenced the Constituent Assembly to explicitly omit a due process clause in the section on Fundamental Rights. The first was the influence of United States Supreme Court Justice Felix Frankfurter on Constitutional Adviser B.N. Rau, who traveled to Britain, Ireland, the United States and Canada in 1947 to meet with jurists regarding the drafting and framing of the Indian Constitution. The second factor was the tumultuous and chaotic period of communal violence that gripped Northern India as a result of the partition of Muslim Pakistan from Hindu India, which led the framers of the Indian Constitution to remove the due process clause from their draft constitution for the protection of individual liberty.1
The Constituent Assembly of India originally included a due process clause in
References: 1. Indian Constitutional Law, M.P. Jain, Sixth Edition (2013). 2. Constitutional Law of India, J.N. Pandey, Forty Third Edition (2006).