Substantive Due Process of Law in India

Comparison of Substantive Due Process
with Doctrine of Basic Structure of Constitution

‘Due process of law’ is a term used in USA Constitution and it enables court to strike down laws on somewhat more wide grounds that the doctrine of ultra vires used by English Courts. In India similar result is obtained by the  of violation  ‘Doctrine of Basic Structure of Constitution.’

Following observations of Allahabad High Court make an interesting point in this regard:

“27. Thus we see that the ‘due process’ clause was specifically and deliberately excluded from the Constitution by the Constitution makers, and this fact was noted in A. K. Gopalan’s case (AIR 1950 SC 27) (supra). However, in Sunil Batra v. Delhi Admn., (1978) 4 SCS 494 : (AIR 1978 SC 1675), Krishna Iyer, J. held that after the decisions in R. C. Cooper’s case (AIR 1970 SC 564) and Maneka Gandhi’s case (AIR 1978 SC 597) (supra) the due process clause must be deemed to be ingrained in Article 21. No doubt in Air India v. Nergesh Meerza, AIR 1981 SC 1829 (paras 84 and 85) there are some observations to the contrary (in a 3 Judge bench decision) but these have been made without noticing the series of decisions on Article 21 (mentioned above), beginning from Maneka Gandhi’s case (which is a 7 Judge Constitution Bench Decision), and hence these observations have to be either treated as per incuriam or restricted to mean that the ‘due process’ clause cannot be utilized in our country to invalidate laws infringing freedom of contract. (It is well known that the U. S. Supreme Court had at one time struck down several laws infringing freedom of contract, particularly some of the Neal Deal Legislation of President Roosevelt, on the ground that they violated the ‘due process’ clauses in the Fifth and Fourteenth Amendments).

28. It may be mentioned that ‘due process’ is of two kinds procedural due process, and substantive due process. Procedural due process means that no one can be deprived of his life, liberty or property except in accordance with the procedure laid down in the statutory law. Substantive due process means that this procedure (for depriving a person of his life, liberty or property) must be fair, just and reasonable. Thus, while on a literal interpretation Article 21 only embodies procedural due process, by judicial interpretation it has been held to include substantive due process also. Thus, in Bachan Singh v. State of Punjab, AIR 1982 SC 1325, the Supreme Court held that ‘the concept of reasonableness runs through the entire fabric of the Constitution’ (vide para 16), and also “every facet of the law which deprives a person of life or personal liberty would therefore, have to stand the test of reasonableness, fairness and justice in order to be outside the inhibition of Article 21” (vide para 16).

29. In Maneka Gandhi’s case (AIR 1978 SC 597) (supra) the Supreme Court observed (vide para 56): “The principle of reasonableness which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer to the test of reasonableness in order to be in conformity with Article 14.”

30. I may clarify that I am not resting my decision on the “due process” clause. Even independently of the ‘due process’ clause the same conclusion-can be reached on the basis of the decision in Maneka Gandhi’s case and other decisions of the Supreme Court on Articles 14 and 21. I have referred to the due process’ clause only to point out that substantive due process means (so far as life and liberty is concerned) almost the same thing which has been said in Maneka Gandhi’s case, namely, that the procedure depriving one of his life or liberty must be fair, just and reasonable.”

Source: Ganesh Chandra Bhatt v. Distict Magistrate

This judgement produces an interesting debate about the subject.

Basic structure of Constitution of India

Basic Structure of Constitution of India

Constituent power of the Legislature:

Does Sovereign authority of Parliament includes power to pass Judicial verdict?

Can Parliament in its legislative powers pass a law deciding the pending or judicially decided election dispute?

Would such exercise of Legislative power violate Basic Structure of Constitution of India?

Relevant Provisions of Constitution of India:
Clause (4) of Article 329A had been added by the Constitution (Thirty-ninth Amendment) Act, 1975, which consisted of four parts:
(i) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975 in so far as it relates to the election petitions and matters connected therewith shall apply or shall be deemed even to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament;
(ii) and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has before such commencement been declared to be void under any such law;
(iii) and notwithstanding any order made by any court before such commencement declaring such election to be void, such election shall continue to be valid in all respects;
(iv) and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.

Conclusions of Supreme court of India on Basic Structure of Constitution of India:

Per Ray, A.N. J.:
The principle of free and fair elections is an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution. An amendment of Constitution which (1) abolishes the forum without providing for another forum for going into the dispute relating to the validity of the election of the appellant and further prescribes that the said dispute shall not be governed by any election law and that the validity of the said election shall be absolute and not consequently be liable to be assailed, and (2) extinguishes both the right and the remedy to challenge the validity of the aforesaid election; is therefore not permissible.

Per Khanna H.R. J.,:
…..The effect of impugned Clause (4) is to take away both the right and the remedy to challenge the election of the appellant. Such extinguishment of the right and remedy to challenge the validity of the election, in my opinion, is incompatible with the process of free and fair elections. Free and fair elections necessarily postulate that if the success of a candidate is secured in elections by means which violate the principle of free and fair elections, the election should on that account be liable to be set aside and be declared to be void. To extinguish the right and the remedy to challenge the validity of an election would necessarily be tantamount to laying down that even) if the election of a candidate is vidated by the fact that it was secured by flagrant violation of the principles of free and fair election, the same would still enjoy immunity from challenge and would be nonetheless valid. Clause (4) of Article 329A can, therefore, be held to strike at the basis of free and fair ‘elections,
207. I agree that it is not necessary in a democratic set up that disputes relating to the validity of the elections must be settled by courts of law, There are many countries like France, Japan, and the United States of America where consistently with the democratic set up the determination of such controversies is by legislatures or by authorities other than the courts. The question with which we are concerned, however, is whether it is permissible in a democratic set up that a dispute with regard to the validity of a particular election shall not be raised before any forum and shall not be governed by law and whether such an election can be declared, despite the existence of a dispute relating to its validity, to be valid by making the existing law relating to election disputes not applicable to it and also by not applying .any other election law to such a dispute. The answer to such a question, for the reasons given earlier by me, should be in the negative.

Per Mathews J.:
281. I fully appreciate that ‘sovereign’, if conceived of as an omnipotent being, has no existence in the real world. Several thoughtful writers have deprecated the use of the expression in legal discussion as it has theological and religious overtones. Neverthelss, as the practice has become inveterate it will only create confusion if any departure is made in this case from the practice. If it is made clear that sovereign is not a ‘mortal God’ and can express himself or itself only in the manner and form prescribed by law and can be sovereign only when he or it acts in a certain way also prescribed by law, then perhaps the use of the expression will have no harmful consequence.
299. For the purpose of this case I accept as correct the statement of Blackstone already quoted and approved by the Privy Council in Liyanage v. The Queen (1967) 1 AC 259. I cannot regard the resolution of an election dispute by the amending body as law : It is either a judicial sentence or a legislative judgment like a Bill of Attainder.
300. It is no doubt true that the House of Commons in England used to pass bills of attainder. But the practice has fallen into desuetude, since the year 1696. A bill of attainder is a special act of the legislature, as inflicts capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. The legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.
304. , At the time when the Amendment was passed, the appeal filed by the appellant and the cross appeal of the respondent were pending before the Supreme Court. Clause (4) was legislation ad hominem directed against the course of the hearing of the appeals on merits as the appeal and the cross appeal were to be disposed of in accordance with that clause and not by applying the law to the facts as ascertained by the Court. This was a direct interference with the decision of these appeals by the Supreme Court on their merits by a legislative judgment.
305. If the amending body really exercised judicial power, that power was exercised in violation of the principles of natural justice of audi alteram partem. Even if a power is given to a body without specifying that the rules of natural justice should be observed in exercising it, the nature of the power would call for its observance.
307. It is difficult to understand, when the amending body expressly excluded the operation of all laws relating to election petition and matters connected therewith by the first part of Clause (4), what ideal norms of free and fair election it had in view in adjudging the validity of the election of the appellant. I cannot conceive of any pre-existing ideal norms of election apart from the law enacted by the appropriate legislatures. If the amending body evolved new norms for adjudging the validity of the particular election, it was the exercise of a despotic power and that would damage the democratic structure of the Constitution.
320. The major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence; and, the difficulty has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever-shifting tangle of human affairs. A large part of the effort of man over centuries has been expended in seeking a solution of this great problem. A reign of law, in contrast to the tyranny of power, can be achieved only through separating appropriately the several powers of Government. If the lawmakers should also be the constant administrators and dispensers of law and justice, then, the people would be left without a remedy in case of injustice since no appeal can lie under the fiat against such a supremacy. And, in this age-old search of political philosophers for the secret of sound Government, combined with individual liberty, it was Montesquieu who first saw the light. He was the first among the political philosophers who saw the necessity of separating judicial power from the executive and legislative branches of Government. Montesquieu was the first to conceive of the three functions of Government as exercised by three organs, each juxtaposed against others. He realised that the efficient operation of Government involved a certain degree of overlapping and that the theory of checks and balances required each organ to impede too great an aggrandizement of authority by the other two powers. As Holdsworth says, Montesquieu convinced the world that he had discovered a new Constitutional principle which was universally valid. The doctrine of separation of Governmental powers is not a mere theoretical, philosophical concept. It is a practical, work-a-day principle. The division of Government into three branches does not imply, as its critics would have us think, three water-tight compartments. Thus, legislative impeachment of executive officers of judges, executive veto over legislation, judicial review of administrative or legislative actions are treated as partial exceptions which need explanation.
327. A sovereign in any system of civilized jurisprudence is not like an oriental despot who can do anything he likes, in any manner he likes and at any time he likes. That the Nizam of Hyderabad had legislative, judicial and executive powers and could exercise any one of them by a firman has no relevance when we are considering how a pro-sovereign-the holder of the amending power-in a country governed by a Constitution should function. Such a sovereign can express ‘himself only by passing a particular kind of law; and not through sporadic acts. ‘He’ cannot pick and choose cases according to his whim and dispose them of by administering ‘cadijustice’ : nor can the amending body, as already noticed, pass an ordinary law, as Article 368 speaks of the constituent power of amending by way of addition, variation or repeal, any provision of the Constitution in accordance with the procedure laid down in that Article. An ordinary law can be passed by it only after amending the provisions of the Constitution authorizing it to do so.
343. Leaving aside these extravagant versions of rule of law there is a genuine concept of rule of law and that concept implies equality before the law or equal subjection of all classes to the ordinary law. But, if rule of law is to be a basic structure of the Constitution, one must find specific provisions in the Constitution embodying the constituent elements of the concept. I cannot conceive of rule of law as a twinkling star up above the Constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four corners of the Constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law. Even if I assume that rule of law is a basic structure, it seems to me that the meaning and the constituent elements of the concept must be gathered from the enacting provisions of the Constitution. The equality aspect of the rule of law and of democratic republicanism is provided in Article 14. May be, the other articles referred to do the same duty.

Per Beg, M.H. J.,:
….It is when the country is faced with issues of this nature that the Constitutionally vital role of the judicature, as a co-ordinate and independent organ of a democratic system of Government, comes into prominence and has to be performed without fear or favour, affection or ill will as the custodian of constitutionality.
524. If “constituent power”, by it itself, is so transcendental and exceptional as to be above the provisions of the Constitution itself it should not. logically speaking, be bound even by the procedure of amendment prescribed by Article 368(2). I have not found any opinion expressed so far by any learned Judge of this Court to show that the constituent power is not bound by the need to follow the procedure laid down in Article 368(2) of the Constitution. Indeed, rather inconsistently with the theory of an absolute and unquestionable power In some undifferentiated or raw and unfettered form, operating from above and outside the Constitution, learned Counsel, sup porting the impugned 4th Clause in the 39th Amendment, concede that the constituent power is bound by the appropriate procedure laid down In Article 368 for the amendment of the Constitution. What they urge is that, subject to this procedure, which has been followed here, the constituent power cannot be questioned because it is a “sovereign power”. The logical consequence of such an argument also is that the majority view In Kesavananda Bharti’s case was erroneous. It also overlooks that judicial review of laws made by Parliament is always a review of an exercise of “sovereign power”. It may be that the object of the learned Counsel In advancing this extraordinary theory was to induce us to refer this case to a much larger bench so that the majority view in Kesavananda Bharti’s case (supra) may. If necessary, be overruled. I, however, doubt whether putting forward such extreme and untenable propositions is the best method of securing such a result.
525. I think that the possibly theoretical question indicated above, whatever may be the object of raising it, does deserve to be seriously considered and answered by us because it discloses a basic misconception. Therefore. I propose to consider it at a length which seems to me to be justified by our need to clarify our thinking on a basic or “key” concept without a final commitment to a particular view on it. Clearer thinking, by examining a basic theoretical question from every conceivable angle, leads, I believe, to that openmindedness which is needed by lawyers no less than by any other class today so that we may, contrary to our reputation, be responsive to the Inevitable challenges of change. Justice Holmes once said : “Theory is the most important part of the dogma of law, as the architect is the most important man who takes part in the building of a house “.(Holmes, Collected Papers (1921) 200).
543. Judges must, no doubt, be impartial and independent. They cannot, in a period of intensified socio-economic conflicts, either become tools of any vested interests, or function, from the bench, as zealous reformers propagating particular course. Nevertheless, they cannot be expected to have no notions whatsoever of their own, or to have completely blank minds on important questions indicated above which, though related to law, really fall outside the realm of law. They cannot dwell in ivory towers or confine their processes of thinking in some hermetically sealed chambers of purely legal logic artificially out off from the needs of life around to which law must respond. Their differing individual philosophies, outlooks, and attitudes on vital questions, resulting from differences in temperament, education, tradition, training, interests and experiences in life, will often determine their honest choices between two or more reasonably possible interpretations of such words as “amendment” or “constituent power” in the Constitution. But, on certain clear matters of principle, underlying the Constitution, no reasonable person could entertain two views as to what was or could be really intended by the Constitution makers. One of these matters, clear beyond the region of all doubt, seems to me to be that the judicial and law making functions, however broadly conceived, could not possibly have been meant to be interchangeable. They are not incapable of distinction and differentiation, in any Constitutionally prescribed sphere of operation of power including that of “constituent power”. Each has its own advantages and disadvantages and its own natural modus operandi.
559. Of course, inasmuch as the power of altering every feature of the Constitution remains elsewhere politically, the Constitution is neither the ultimate “political” sovereign nor a legally unalterable and absolute sovereign. All Constitutional and “legal” sovereigns are necessarily restrained and limited sovereigns. I thought and still think that such a working theory should be acceptable to lawyers, particularly as the dignitaries of State, including Judges of superior Courts, and all the legislators, who have to take oaths prescribed by the Third Schedule of our Constitution, swear “allegiance” to the Constitution as though the documents itself is a personal Ruler. This accords with our own ancient notions of the law as “The King of Kings” and the majesty of all that it stands for : The Rightfulness of the Ends as well as of the Means.
572. The principle of the supremacy of the Constitution was then declared by the majority of the learned Judges of this Court in Kesvananda’s case to be a part of the basic structure of the Constitution. The minority opinion, while not specifically dissenting from this view, was that even what was considered by the majority to be a part of “basic structure” was alterable under Article 368. But, no Judge of this Court has so far held that, without even attempting to change what may be the basic structure of Constitution itself, by appropriate amendments, judicial power could be exercised by Parliament under Article 368 on the assumption that it was already there.
577. The “constituent power” is still bound by the exclusively prescribed procedure to “amend by way of addition, variation, or repeal” any provision of the Constitution. It is entirely a law making procedure elaborately set out in Clause (2). In fact, Article 368 contains so much of the fundamental law making or legislative procedure that five judges of this Court, led by Subba Rao, C.J. opined in Golaknath’s case , that it was confined to procedure and did not contain at all the substantive power to amend. Clause (1) of Article 368, introduced by the 24th amendment, was, apparently, meant to remove this objection and to do no more. It could not be intended to pour some new amalgam of executive and judicial or quasi-judicial substantive powers into it also by some implication so its to do away with the very need for such an elaborate and carefully drawn up Constitution such as ours. The absence of any quasi-judicial procedure, from the comprehensively framed procedural provisions of Article 368, seems extremely significant. It indicates that it was the clear intention of Constitution-makers that no judicial or quasi-judicial function could be performed by Parliament whilst operating in the special Constituent field of law making. An omission to provide any quasi-judicial procedure in Article 368, which, apparently, furnishes a self-contained code, means that no such power was meant to be included here at all. Proper exercise of judicial power is inseparable from appropriate procedure.
584. It is true that, in the exercise of the law making constituent power, brought in by Section 8 of the Indian Independence Act, the legislatures could be armed with judicial powers as well if appropriate laws were made to that effect. But, as no law, either Constitutional or ordinary was passed, preceding 39th amendment, to repeal the Act of 1951 and then to vest a judicial power in Parliament, so as to enable it to take over and decide election disputes itself directly, I do not see how Clause (4) of Article 329A, if it contained certain provisions on the assumption that such a judicial power was already there in Parliament, could be valid as a piece of mere law making. However, counsel supporting the 39th Amendment had submitted that Article 329A(4) evidenced and constituted an exercise of some “unbroken” or a combined legislative and judicial power-proposition for which no precedent of any such consolidated action of a constituent body was cited from any part of the world. The Firmans of former Indian ruling princes were hardly suitable or applicable precedents.
595. Whatever view one may take of any other powers of Parliament, by reason of Article 105(3) of the Constitution, I am unable to see how exercise of the jurisdiction to determine an election dispute, which was in accordance with Article 329(b), already vested in the High Court by the Act of 1951 for all elections to House of the People, could not only be taken away by a Constitutional amendment, purporting to repeal retrospectively the provisions of the Act of 1951, a piece of ordinary legislation, in their application to particular class of cases, but at the same time, making a declaration of the rights of the parties to a judgment, without first performing a judicial function also which was not included in the “constituent” or any other law making power.
622. If the constituent bodies, taken separately or together, could be legally sovereign, in the same way as the British Parliament is, the Constitutional validity of no amendment could be called in question before us. But, as it is well established that it is the Constitution and not the constituent power which is supreme here, in the sense that the Constitutionality of the Constitution cannot be called in question before us, but the exercise of the constituent power can be we have to judge the validity of exercise of constituent power by testing it on the anvil of Constitutional provisions. According to the majority view in Kesavananda’s case (supra), we can find the test primarily in the Preamble to our Constitution.

Per Chandrachud Y.V. J,:
679. Article 329-A(4) makes the existing election laws retrospectively inapplicable, in a very substantial measure, to the Parliamentary elections of the Prime Minister and the Speaker. The inapplicability of such laws creates a legal vacuum because the repeal, so to say. of existing laws is only a step-in-aid to free the election from the restraints and obligations of all election laws, indeed of all laws. The plain intendment and meaning of Clause (4) is that the election of the : two personages will be beyond the reach of any law, past or present. What follows is a neat logical corollary. The election of the Prime Minister could not be declared void as there was no law to apply to that election; the judgment of the Allahabad High Court declaring the election void is itself void; and, the election continues to be valid as it was before the High Court pronounced its judgment.
680. These provisions are an out-right negation of the right of equality conferred by Article 14. a right which more than any other is a basic postulate of our Constitution. It is true that the right, though expressed in an absolute form is hedged in by a judge-made restriction that it is open to the Legislature to make a reasonable classification so that the same law will not apply to all persons alike or different laws may govern the rights and obligations of different persons falling within distinct classes. The boast of Law that it is no respecter of persons is the despair of drawers of waters and hewers of wood who clamour for a differential treatment. The judge takes that boast to mean that in an egalitarian society no person can be above the law and that justice must be administer ed with an even hand to those who are situated equally. In other words, all who are equal are equal in the eye of Law and it will not accord a favoured treat ment to persons within the same class. Laws, as Plato said, would operate “like an obstinate and ignorant tyrant if they imposed inflexible rules without allowing for changed circumstances or exceptional cases.” See “The Sense of Injustice” by Edmond Cahn (1964). p. 461 in which the reference is made to Plato’s ‘Politicus’. p. 294.
681. This Court, at least since the days of Anwar Ali Sarkar’s case , has consistently taken the view that the classification must be founded on an intelligible differentia which distinguishes those who are grouped together from those who are left out and that the differentia must have a rational relation to the object sought to be achieved by the particular law. The first test may be assumed to be satisfied since there is no gainsaying that in our system of Government, the Prime Minister occupies a unique position. But what is the nexus of that uniqueness with the law which provides that the election of the Prime Minister and the Speaker to the Parliament will be above all laws, that the election will be governed by no norms or standards applicable to all others who contest that election and that a election declared to be void by a High Court judgment shall be deemed to be valid, the judgment and its findings being themselves required to be deemed to be void ? Such is not the doctrine of classification and no facet of that doctrine can support the favoured treatment accorded by the 39th Amendment to two high personages. It is the common man’s sense of justice which sustains democracies and there is a fear that the 39th Amendment, by its impugned part, may outrage that sense of justice. Different rules may apply to different conditions and classes of men and even a single individual may, by his uniqueness, form a class by himself. But in the absence of a differentia reasonably related to the object of the law, justice must be administered with an even hand to all.
691. I find it contrary to the basic tenets of our Constitution to hold that the Amending Body is an amalgam of all powers-legislative, executive and judicial. “Whatever pleases the emperor has the force of law” is not an article of democratic faith. The basis of our Constitution is a well-planned legal order, the presuppositions of which are accepted by the people as determining the methods by which the functions of the government will be discharged and the power of the State shall be used.
697. In the result. I hold that Clauses (4) and (5) of Article 329-A are unconstitutional and therefore void.

[Source: Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, 1975 Supp SCC 1, 1976 2 SCR 347.]

Suspension of Habeas Corpus in India.

None shall be condemned without Due Process of Law.

(ADM Jabalpur v. S.S. Shukla’s case: Analysis and Review)

Due process is the right to be treated fairly by law:

Right of Personal Liberty to a common man who is neither Nobel, Aristocrat, Royal or Rich was conferred very late in the west. Following is the earliest known concept to England:

“That no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law. ( See: Liberty of Subject (1354) CHAPTER 3 28 Edw 3. The STATUTE of The Twenty-eighth Year of King Edward III.)

Original text of 28 Edw. 3; borrowed from:

Bill of Rights:

On December 16, 1689, after death of King James-II, the Parliament of England passed a law called ‘Bill of Rights’ which not only dealt with civil liberties of people but also proclaimed supremacy of Parliament in various matters. These matters are:

1. That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal. 2. That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal. 3. That the commission for erecting the late court of commissioners for ecclesiastical causes, and all other commissions and courts of like nature are illegal and pernicious. 4. That levying money for or to the use of the crown, by pretence of prerogative, without grant of parliament, for longer time, or in other manner than the same is or shall be granted, is illegal. 5. That it is the right of the subjects to petition the King, and all commitments and prosecutions for such petitioning are illegal. 6. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. 7. That the subjects which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law. 8. That election of members of parliament ought to be free. 9. That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament. 10. That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted. 11. That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders. 12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void. 13. And that for redress of all grievances, and for the amending, strengthening, and preserving of the laws, parliaments ought to be held frequently.

Evolution of Habeas Corpus clause:

Please take note of clause 5 which covers Habeas Corpus. In 1772 an Englishman Mr. Stewart bought a black slave in Jamaica and brought him to England. The name of slave was James Somerset. Once in England, the James refused to go back with Stewart. The slave was taken by force to the ship lying in river Thames and was placed in iron chains. The slave then applied for a writ of habeas corpus complaining illegal restraint on personal liberty. (See 20 State Trials 1-82 & Somerset v. Stewart (1772) Lofft 1-19 and wiki link here) Chief Justice of King’s Bench, Lord Mansfield who heard the writ observed that in the absence of any positive law (by Parliament), slavery can not be recognised in England. He ordered the slave to be free with following observation:

“Every man who comes into England is entitled to the protection of English Law, whatever oppression he may heretofore have suffered and whatever may be the colour of his skin. The air of England is too pure for any slave to breathe. Let the black go free.”

Habeas Corpus in Constitution of United State:

The aforesaid principle was incorporated in following words in the Constitution of United States in 1791 as Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Supreme Court of United States has held that Fifth Amendment not only protects the procedural due process but also Substantial due process(SDP) which means that a duly enacted law can be struck down if it violates certain Constitutionally recognised principles. (Which is euphemism for stating that law which curtailed the liberties too far beyond the limits found reasonable by Supreme Court) On 12th June 2008 the Supreme Court of United States, speaking about the right of aliens to invoke Habeas Corpus held:

Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. There-fore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.

However 4 years after the above judgement, Supreme Court has refused to hear appeals from seven of the 169 men being held in the military prison at a U.S. naval base in Cuba. The District Court quashed their detention holding that government’s intelligence report was unreliable. But Court of Appeal set aside this decision relying upon the secret intelligence report holding that there was presumption about its authenticity as it was an official act which is presumed to be regularly performed. The Supreme Court of USA has refused to intervene in the matter without assigning any reason. It appears that Supreme Court of USA is passing through its darkest hour which perhaps started with Bush v. Gore, 531 U.S. 98 (2000) wherein the court first stopped the recount of ballots and then ruled in favour of Bush on the ground of insufficient time to complete the counting of ballot. The relevant question in respect of persons incarcerated is: How long these people termed as alien combatants would remain in custody? Forever? Do they get opportunity of producing the witness to disprove the secret intelligence reports? Even though the law does not and can not insist on negative proof.

Right to life, Habeas Corpus and Due Process Clause in India:

In India relevant provision is article 21 of Constitution which is as under:

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

It was way back, in 1955 the Supreme Court of India held that even an alien/foreigner is also entitled to protection of above provision (see Hans Muller of Nurenburg v. Superintendent, Presidency Jain, Calcutta (AIR 1955 SC 367):

Article 21 guarantees the protection of personal liberty to citizen and foreigner alike. No person can be deprived of his personal liberty except according to procedure established by law”, and article 22 prescribes the minimum that the procedure established by law must provide. There can be no arrest or detention without the person being produced before the nearest magistrate within twenty four hours, excluding the time necessary for the journey, etc., nor can he be detained beyond that period without the authority of a magistrate. The only exceptions are (1) enemy aliens and (2) “any person who is arrested or detained under any law providing for preventive detention”.

Emergency and suspension of habeas corpus in India:

In 1975 the Government of the day, under the leadership of Mrs. Indira Gandhi had already declared State of Emergency and suspended fundamental rights. The Supreme Court of India in its ignoble judgement titled ADM Jabalpur v.S.S. Shukla, interpreted that not only the fundamental rights were suspended, by implication right of High Courts under article 226 to issue prerogative writs also stood suspended:

Liberty is confined and controlled by law, whether common law or statute. It is in the words of Burke a regulated freedom. It is not an abstract or absolute freedom. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary, and are limited to the period of the emergency.

And mocked at the prospect of possible abuse of powers by torture in custody:

There is no record of any life of an individual being taken away either in our country during emergency or in England or America during emergency in their countries. It can never be reasonably assumed that such a think will happen. Some instances from different countries were referred to by some counsel for the respondents as to what happened there when people were murdered in gas chambers or the people were otherwise murdered. Such instances are intend to produce a kind of terror and horror and are exhortative in character. People who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country. Quite often arguments are heard that extreme examples the given to test the power. If there is power, extreme examples will neither add to the power nor rob the same. Extreme examples tend only to obfuscate reason and reality.

They could may also have relied upon the Peso’s Justice and ordered execution of the detainee to make the point but they were compassionate. Instead it was observed:

Article 21 is not a common law right. There was no pre-existing common Law remedy to habeas corpus. Further, no common law right which corresponds to a fundamental right can exist as a distinct right. apart from the fundamental right. (at p. 234)

Erroneous interpretation by Supreme Court of India:

The above para is factually incorrect. The constitution had saved all preexisting laws in force at the time of commencement of Constitution. And as a British dominion the laws of India were same as any British Colony. Due process which was the law enacted in 1354 and writ of Habeas Corpus was in force prior to Constitution, under Bill of Right, was saved by Letter Patent of each High Court. and in fact Habeas Corpus was a statutory remedy in Criminal Procedure Code of 1898 (replaced with Cr.P.C. of 1973 without this provision) which could be exercised by District Court. Further how misunderstood the subject was or how intellectually incapable the judges were, is visible from following passage which ignores even the Fifth Amendment to American Constitution, extracted here in above:

In America he right to the writ of Habeas Corpus is not expressly declared in the Constitution, but it is recognised in the provision Article 1 in section 9 clause (2) that the privilege of writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. In America the power in suspend the privilege is a legislative power and the President cannot exercise it except as authorised by law. The suspension does not legalise what is doing while it continues. It merely suspends or the time this particular remedy. All other remedies for illegal arrests remain, and may be pursued against the parties making or continuing them.

It appears these judges had never heard the maxim let justice be done though the heavens fall (Fiat justitia ruat caelum). This judgement also held that an order of detention without trial under the Act could not be subjected to Judicial Review like any other order to test its validity, with following twisted reasoning:

An individual officer acting within the scope of his official duty would not cease to be so if he makes an order which is challenged to be not in compliance with the statute under which he is authorised to make the order. Any challenge to the order of detention would come within the fold of breach of fundamental right under Article 21, namely, deprivation of personal liberty. The obligation of the Executive to act in accordance with the Act is ail obligation as laid down in Article 21. If such an obligation is not performed, the violation is of Article 21. It will mean that the right of the person affected will be a violation of fundamental right. The expression “for any other purpose” in Article 226 means for any purpose other than the enforcement of fundamental rights. A petition for habeas corpus by any person under Article 226 necessarily involves a question whether the detention is legal or illegal. An Executive action if challenged to be ultra vires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action.

Thus an order of incarceration without trial could not be challenged like an ordinary executive order on the grounds of Wednesbury unreasonableness. Which means that even if order of arrest is for John but the Patrick has been arrested, he has no judicial remedy. They may as well have ordered that all court rooms in the country be locked up, till further orders, to save unnecessary expenses. Justice Khanna delivered dissenting judgement (and subsequently resigned from the Supreme Court) with following eloquence:

Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life. It is therefore not surprising that those who have an abiding faith ill the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for long periods without trial. The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime, according to them, is the court of law where the correctness of the allegations can be gone into in the light of the evidence adduced at the trial. The vesting of power of detention without trial in the executive, the assert, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness.

ADM Jabalpur case, no longer good law?

It is unfortunate that majority decision in ADM Jabalpur case has not been expressly overruled. But recent sheepish comments from the Supreme Court by way of obiter dicta indicate that they are ready to treat this shameful judgment ‘no longer good law’. See following two excerpts:

“In fact the dissent of Justice Khanna became the law of the land when, by virtue of the Forty Fourth Constitutional Amendment, Articles 20 and 21 were excluded from the purview of suspension during emergency. (Ramdeo Chauhan vs Bani Kant Das) The Constitution (44th Amendment) Act also amended Article 359 of the Constitution to provide that even though other fundamental rights could be suspended during the emergency, rights conferred by Articles 20 and 21 could not be suspended. During emergency, the fundamental rights were read even more restrictively as interpreted by majority in Additional District Magistrate, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521]. The decision in Additional District Magistrate, Jabalpur about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions. (I.R.Coelho vs State Of Tamil Nadu)”

We are not aware what those subsequent decisions were which overruled the ADM Jabalpur case; as believed to be existing, in above Coelho decision rendered by a Nine Judge Bench. But the ld. Chief Justice who delivered that above Coelho order himself had passed one such order not about the life or liberty but sealing of property of people, which smacked of arbitrariness if not martial law. But that is another matter. Several later judgements relied on above ADM Jabalpur case. (See K. Anandan Nambiar v. Chief Secretary, Govt. of Madras) Another constitution bench expressly left it’s validity open.( See Attorney General For India vs Amratlal Prajivandas)

Ignorance is such a bliss. Humanity is on the threshold to evolve right principles to restore human liberties and to ensure that it is not trampled upon only on suspicion, secret reports, nationality or religion or attire alone. Those who are its custodians should not shriek their responsibility on petty short term goals. This article has been compiled for the benefit of students of law in India especially those who find this subject of Habeas Corpus and due process, confusing. Further more events taking place all over globe makes it to be right subject to remind us of; for we may not trample upon the liberties which are not ours. For more history on civil (properties and assets) liberties read Magna Carta.