Life and Personal Liberty

In one line

Article 21 forbids the deprivation of life or personal liberty except by procedure established by law, and since 1978 that procedure must itself be fair, just and reasonable, which is the source of nearly every modern right of an accused person.

The provision

Article 21. No person shall be deprived of his life or personal liberty except according to procedure established by law.

Two features of the text matter.

It protects every person, not only citizens, and not only persons who have been charged with anything.

It speaks of procedure, not of substance. On its face it says nothing about whether a law is a good law; it requires only that the deprivation follow a procedure that law has established. What the courts have done with the article turns entirely on what "procedure established by law" was held to mean.

The turning point

Maneka Gandhi v. Union of India, AIR 1978 SC 597, decided by seven Judges, is the case. The petitioner's passport was impounded in public interest under the Passports Act 1967, and when she asked for the statement of reasons the Act allowed her to demand, the Government replied that it had decided in the interest of the general public not to furnish it.

The Court held that the mere prescription of some kind of procedure cannot meet the mandate of article 21: the procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. Articles 14, 19 and 21 are not to be read in watertight compartments. Equality and arbitrariness are sworn enemies, one belonging to the rule of law in a republic and the other to the whim and caprice of an absolute monarch; article 14 strikes at arbitrariness in State action, and the principle of reasonableness pervades article 14 like a brooding omnipresence, so that the procedure contemplated by article 21 must answer the test of reasonableness in order to conform to article 14: it must be right and just and fair and not arbitrary, fanciful or oppressive. The Court added that natural justice may be implied even where a statute is silent, natural justice being a great humanising principle intended to invest law with fairness.

That single holding is the engine of this whole topic. Before it, a procedure prescribed by a valid statute satisfied article 21 whatever it contained. After it, the content of the procedure is justiciable.

What was built on it

Speedy trial. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360, a habeas corpus petition disclosing that men, women and children were in Bihar's jails for years awaiting trial on charges that would not have carried a few months. The Court held that a procedure which keeps large numbers of people behind bars without trial for long cannot possibly be regarded as reasonable, just or fair, that it is not enough that some semblance of a procedure should be prescribed by law, and that no procedure can be reasonable, fair or just unless it ensures a speedy trial. It ordered the undertrials released on personal bonds.