Article 21: From Gopalan to Maneka

Three things in that sentence do the work, and each was fought over.

1. "life or personal liberty". How much do those words cover? Only the body, or the things that make bodily existence worth having?
2. "procedure established by law". Does "law" mean any enactment, or an enactment that is fair?
3. "except according to". Is article 21 the only article a depriving law must satisfy, or must it satisfy the others too?

Gopalan answered all three narrowly. Maneka answered all three broadly.

The first answer

Facts. A.K. Gopalan v. State of Madras, 1950 AIR 27, 1950 SCR 88, decided 19 May 1950 by a Bench of six. Gopalan, a Communist leader, was detained under the Preventive Detention Act 1950 and petitioned the Supreme Court under article 32 for habeas corpus, saying the Act contravened articles 13, 19, 21 and 22 and that his detention was therefore illegal.

Held. The Act, with the exception of section 14, did not contravene any article of the Constitution, and Gopalan's detention was lawful. Section 14, which forbade a detenu to disclose to the court the grounds of his detention or his representation against it, was ultra vires and void, but it was severable and its invalidity did not affect the rest of the Act. Three further holdings matter more than the outcome:

• Article 19 has no application to a law relating directly to preventive detention. The right "to move freely throughout the territory of India" in article 19(1)(d) is, the majority said, "entirely different from the concept of the right to personal liberty referred to in article 21", so article 19 is not to be read as controlled by article 21, and the validity of a detention law cannot be judged by the reasonableness test in article 19(5).
• Article 22 is not a complete code, but it prevails so far as it goes. Kania C.J., Patanjali Sastri and Das JJ. held that on points of procedure which article 22 does not deal with, article 21 applies; Mahajan J. thought article 22 self-contained. Either way, what article 22 permitted could not be attacked through article 21.
• "Law" means State-made law. Per Kania C.J., Mukherjea and Das JJ., the word "law" in article 21 is used "in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice", and it is "not proper to construe this expression in the light of the meaning given to the expression 'due process of law' in the American Constitution".

Why it matters. This is the watertight-compartments reading, and it is the position the rest of this module exists to explain the departure from. Its practical effect was that a detention statute had only to clear article 22. Fazl Ali J., dissenting, said preventive detention directly infringes article 19(1)(d) and that a detention law is therefore open to review under article 19(5); Patanjali Sastri J. read "procedure established by law" as meaning not any procedure a legislature chooses but "the ordinary well-established criminal procedure". Both minority positions became the law in 1978.

The second answer

Facts. Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621, decided 25 January 1978 by a Bench of seven. The petitioner was issued a passport in June 1976. On 4 July 1977 she received a letter telling her the Government had decided to impound it under section 10(3)(c) of the Passports Act 1967 "in public interest", and requiring her to surrender it within seven days. She asked for the statement of reasons which section 10(5) provides for; the Government replied that it had decided "in the interest of the general public" not to furnish them. She petitioned under article 32.

Held. The right to travel abroad is part of the personal liberty article 21 protects. Then, on the three questions above:

• The watertight-compartments view is gone. "The law must therefore be now taken to be well-settled that article 21 does not exclude article 19", and a law prescribing a procedure for depriving a person of personal liberty must, so far as it abridges any right under article 19, meet the challenge of that article as well.
• And article 14 too. Such a law "would be liable to be tested with reference to article 14 and the procedure prescribed by it would have to answer the requirement of that article." Article 14 "strikes at arbitrariness in State action"; the principle of reasonableness "pervades article 14 like a brooding omni-presence", and the procedure contemplated by article 21 "must answer the test of reasonableness in order to be in conformity with article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive."
• So procedure is no longer merely procedure. "The mere prescription of some kind of procedure cannot even meet the mandate of article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary."

Why it matters. Two things, and students routinely give only the first. The famous one is the fair-just-and-reasonable standard, which imported the substance of due process without the words. The structural one is the overlap: after Maneka a law that deprives a person of liberty must survive article 21, article 19 and article 14 together. That is the golden triangle, and it is the engine of everything in the rest of this module, because it is what lets a court ask whether a law is arbitrary rather than only whether it exists.

Note what Maneka did not do. It did not strike down section 10(3)(c), and it did not restore Maneka Gandhi's passport by order. The Attorney-General gave undertakings, and the Court proceeded on them. A case that changed the constitutional law of the country disposed of the petitioner's own grievance almost incidentally.

Reading the two together

What it does NOT mean

It does not mean Gopalan was overruled in terms. Maneka did not use the word. It disapproved the reasoning and adopted the dissents, and later Benches have treated the Gopalan approach as gone. A precise answer says the majority view in Gopalan no longer represents the law, rather than that Gopalan was overruled.

It does not mean the Constitution now contains "due process". The words are still absent, and the Court has never claimed to have inserted them. What it has done is require that the procedure be fair, just and reasonable, which reaches much the same place through article 14. The distinction matters when a question asks what the Constituent Assembly did.

It does not mean article 21 was dormant between 1950 and 1978. Satwant Singh Sawhney, relied on in Maneka, had already held in 1967 that personal liberty includes the right to travel abroad, and Kharak Singh had begun the expansion in 1964. The turn was prepared, not sudden.

It does not mean a fair procedure must always be a full hearing. Maneka is explicit: reasonableness is judged "not in the abstract or on hypothetical considerations like the provision for a full-dressed hearing as in a court room trial", but in the context of the purpose the Act pursues and the urgency of the situations it must deal with.

The low point in between

Facts. Additional District Magistrate, Jabalpur v. S.S. Shukla, 1976 AIR 1207, 1976 SCR 172, decided 28 April 1976, arose during the Emergency, when the President's order under article 359 suspended the right to move any court for the enforcement of article 21.

Held. By a majority of four to one, that during the suspension no person had any locus standi to move a writ petition for habeas corpus to challenge the legality of a detention order.

Why it matters. It is the strongest evidence for why Maneka mattered. If article 21 is the sole repository of the right to life and liberty, and access to it can be suspended, then nothing is left. Khanna J.'s dissent, that even without article 21 the State has no power to deprive a person of life or liberty without authority of law, cost him the Chief Justiceship and is now treated as the correct view; the Forty-fourth Amendment made article 21 non-suspendable during an Emergency. Maneka came less than two years after this judgment, and the Court that decided it had just watched what the narrow reading permitted.

A worked example

A State enacts a law empowering a District Magistrate to order any person "whose presence is prejudicial to public tranquillity" to leave the district for six months. The order may be made without notice and there is no appeal. Ravi is served with such an order and challenges it.

Step one, is article 21 engaged? Yes. Externment restrains personal liberty, and "personal liberty" after Maneka is read widely.

Step two, is there a law? Yes, a State enactment. On Gopalan that would very nearly end the enquiry.

Step three, does the procedure satisfy article 21 as it is now read? This is the real question. No notice, no hearing, no reasons and no appeal is not procedure that is "fair, just and reasonable". The State must show why urgency justifies the absence of a pre-decisional hearing, and if it can, why there is no post-decisional one either.

Step four, article 19. Externment restricts the article 19(1)(d) right to move freely and the 19(1)(e) right to reside. So the law must be a reasonable restriction under article 19(5). After Maneka the State cannot answer, as it could in 1950, that article 19 is simply inapplicable.

Step five, article 14. "Whose presence is prejudicial to public tranquillity" confers a wide discretion with no stated principle to guide it. On the reasoning of [Reasonable Classification], an unguided power to select who will be treated differently is the vice; on Maneka, arbitrariness in the procedure independently offends article 14.

Step six, the answer. The law is vulnerable on all three articles, and the case is put on all three. A student who argues only article 21 has answered the question as it stood before 1978.

Quick revision

• Article 21: no person shall be deprived of life or personal liberty except according to procedure established by law. Eighteen words; three contested phrases.
• The Constituent Assembly rejected "due process of law" and chose "procedure established by law" deliberately.
• Gopalan (1950): articles 19, 21 and 22 are watertight compartments; "law" means State-made law; not to be read as due process. Detention law answers to article 22.
• Fazl Ali J. and Patanjali Sastri J. dissented on those points, and their view is now the law.
• ADM Jabalpur (1976): article 21 suspended means no habeas corpus at all. Khanna J. dissenting. The Forty-fourth Amendment reversed it.
• Maneka Gandhi (1978), seven judges: article 21 does not exclude article 19; article 14 applies too; procedure must be fair, just and reasonable, not fanciful, oppressive or arbitrary.
• The golden triangle is articles 14, 19 and 21 read together. Every later expansion of article 21 runs through it.
• Maneka did not strike down section 10(3)(c) and did not use the words "due process".

Test yourself

1. State the three holdings in Gopalan and say which judge dissented on each.

2. What exactly does "the golden triangle" mean, and what practical difference does it make to a challenge?

3. Why is it more accurate to say the majority view in Gopalan no longer represents the law than to say Gopalan was overruled?

4. The Constitution still does not contain the words "due process of law". How then can a court strike down a law as arbitrary under article 21?

5. What did ADM Jabalpur decide, and how does it explain the timing of Maneka?

6. A statute permits detention on the satisfaction of an officer, with no reasons recorded and no representation allowed. Set out the three articles you would argue and what each requires.