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ARTICLE 21: PERSONAL LIBERTY AND NATURAL JUSTICE

Author: Deepti choudhary ,II year of B.A L.L.B (Hons.) from Prestige Department of Law, Indore



Abstract

In the Indian constitution nowhere the word natural justice is used however, the essence of it is passed through the body of the Indian constitution. The preamble of the constitution also works on this thereby ensuring an individual's liberty against arbitrary action which is based on the principle of Natural justice. Apart from the preamble fundamental rights also enshrine the same. The principles of natural justice are neither coded nor being prescribed in any form but it forms the founding principle of the Constitution which no court can deny. In this article, we look into the term natural justice, its meaning, origin and principles all under the frame of Article 21.


Article 21 in the light of natural justice

Article 21 of the constitution provides that:

“No person shall be deprived of his life or personal liberty except according to the procedure established by law”.

Before the landmark case of Maneka Gandhi’s decision Article 21 guaranteed citizen’s rights only against Arbitrary action of the executive but they are not protected from legislative action. If the state could support its action by valid law it could interfere with citizen’s liberty. But after Maneka Gandhi’s decision Article 21 now protects the right to life and personal liberty of citizens not only from the executive action but from legislative action also. So to deprive personal liberty of a person firstly there must be a law and second thing is that procedure prescribing that law must be there but that procedure should be just, fair and reasonable.[i]


The Vth Amendment of the American Constitution also provided that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’.The fourteen Amendment imposes a similar limitation on the State authority.


Maxims of Principles of Natural Justice

The principles of natural justice originated from England which is drawn from the Latin term ‘Jus Natural'. They are -

  1. Nemo judex in causa sua (rule against prejudice)

  2. Audi alteram partem (rule of fair hearing)

Nemo judex in causa suaThe first principle says no man should be the judge in his case or the authority deciding the case must be neutral and impartial.

Audi alteram partem - It means to hear the other side or let the other side heard as well. This is the second most fundamental rule of natural justice that says no one should be condemned unheard. ie. fairness should be there on part of deciding authority.


Personal liberty: Meaning and scope

The meaning of the word “personal liberty” came up for considering the supreme court for the first time in A.K. Gopalan v Union of India [ii]

A communist leader A. K. Gopalanwas detained under the preventive detention Act, 1950. The petitioner challenged the validity of the act, that it was violative of Article 19 (1)(d) freedom of movement which forms the essence of personal liberty guaranteed under Art. 21 of the constitution


The supreme court by the majority held that personal Liberty in Article 21 means nothing more than The Liberty of the physical body, that is, freedom from arrest and detention without the authority of law.


But this Restrictive interpretation of the expression ‘personal liberty' In Gopalan's Case has not been followed by the supreme court in its later decisions.

In Kharak Singh v. State of U.P [iii], the Supreme Court held – The ‘personal liberty' Is not only limited to bodily restraint or confinement to prisons only but is used as a compendious term including within itself all the rights that form the personal Liberty of a man other than those dealt with in Article 19(1). In other words, while Article 19(1) deals with particular attributes or species of freedom and personal liberty and Article 21 takes in & comprises the residue.


Maneka Gandhi’s case – A Dynamic Approach

In Maneka Gandhi v Union of India[iv], The Supreme Court said that the government was not justified in withholding the reasons for impounding the passport from the petitioner. Delivering the majority judgement Justice P.N. Bhagwati asked – Is any sort of procedure enough or must the procedure comply with any particular requirement? He then held that “the procedure contemplated in Article 21 could not be unfair or unreasonable and this principle of Reasonableness which was in an essential element of “equality or non-arbitrariness, Pervaded Article 14 like a brooding omnipresence and the procedure contemplated in Article 21 must answer the test of reasonableness to be conformity with article 14. “


Order withholding reason for impounding the passport was therefore not only in breach of statutory provisions (Passport Act) But also in violation of the rule of the natural justice embodied in the Maxim audialterampartem’.


Rules of natural justice would therefore be applicable in the exercise of this power. It was held by the Majority of the Supreme Court that the order was passed by the passport authority by the procedure established by law thereby removing the defect of the Act. Hence the passport act was therefore not violated of article 14, 19(1) (a) or (g) or Article 21.


Natural justice comprehensive outlook

In Gopalan's Case the majority held that the expression ' procedure established by law’ must mean procedure prescribed by the law of the state. The stress which is given to America’s due process is marked by utmost vagueness and that it reflects only what 5 judges of the court say. If the constitution framers wanted to preserve in India the same protection as it was given in America then nothing could have been prevented from adopting the same.


But in Maneka Gandhi’s case, the supreme court has overruled A.K. Gopalan's Case and has held that following any sort of procedure is not enough to conform with Article 21. The procedure prescribed by law has to be just and fair and reasonable and not arbitrary otherwise it won’t be a procedure and will not be valid or satisfy Article 21. A procedure to be fair or just must resemble the principles of natural justice. The court said; “Law should be reasonable law, and not just enacted piece of law”.


By accepting the concept of natural justice as one of the major elements of law America’s “Due Process' clause is being imported into the Indian constitution. The rules of natural justice ought to be applied in the context of the situation in which it is to be applied. The court itself quoted the observations of Margarry J. who described natural justice “as a distillate of due process of law”.

In Sunil Batra v. Delhi Administration[v] Justice Krishna Iyer observed that it is true that our constitution has no due process clause compared to the VIII Amendment of America’s Constitution but after Cooper and Maneka Gandhi’s case the consequences are the same.


The interrelation of Arti. 14, 19 and 21

Old view- In Gopalan’s case the majority held that so long as a law of preventive Detention satisfies the requirements of Article 22, it would not be required to meet the challenges of Article 19.


Present view- In Maneka Gandhi’s case supreme court overruledGopalan’s case and held that Article 21 is controlled by article 19, that it must satisfy the requirements of Article 19 also. Thus a law depriving a person of ‘personal liberty' has not only to pass the test of Art. 21 but must pass the test of Art. 19 and Art.14 of the constitution.


Conclusion

In Gopalan's Case court held that the ‘law in article 21 must mean a law enacted by the legislature and not the law in the abstract or general sense embodying the principle of natural justice as elucidated by the U.S. Supreme Court.


In Maneka Gandhi’s case, The Supreme Court has held that the word ‘law’ in Article 21 does not mean merely an inactive piece of law but must be just, fair and reasonable law i.e which Embodies the principle of natural justice.


Article 21 is indeed phrased in negative terms but it is now well settled that article 21 has both negative and affirmative dimensions. Positive rights are rightly conferred under article 21 of the constitution.

Thus by adopting the concept of substantive and procedural due process in Article 21, the principle of natural justice is being reflected in Article 21.


[i]Maneka Gandhi v. Union of India, AIR 1978 SC 597

[ii] AIR 1950 SC 27.

[iii]AIR 1963 SC 1295

[iv] AIR 1978 SC 597.

[v] AIR 1978 SC 1675