Article
21 of the Constitution of India commands that “No person shall be deprived of
his life and liberty” except according to the procedure established by law.
Although, the framers of our Constitution have expressly
not used the expression “due process of law”, nevertheless, post judgment of
Maneka Gandhi in the Passport case, and thereafter numerous rulings of the Apex
Court, the doctrine of “due process of law” has firmly been established and is readily
invoked, to test the Constitutionality of the Statute, at the touchstone of
golden triangle of Article 21, 14 and 19.
Due process of law has two dimensions – substantive and
procedural. Substantive due process envisages that substantive provision of a
law should be reasonable and not arbitrary & fanciful. Procedural due
process envisages a reasonable procedure, i.e. a person affected should have
fair right of hearing which includes four elements – (i) Notice (ii)
Opportunity to be heard (iii) an impartial tribunal (iv) an orderly procedure.
The
legitimacy of void for vagueness doctrine stems from two arguments – (a) A non
vague law constitutes notice, resembling natural justice; and (b) A non vague
law would ensure that the law will not be applied in an arbitrary or in
discriminatory manner.
The
court in these kinds of cases was concerned with what appeared to be
uncertainty of the statute’s applicability and the consequent arbitrariness of
its application. The statutes which conferred unguided discretionary powers on
the government were challenged on the ground that they could be arbitrarily
abused.
State of MP versus Baldeo Prasad – AIR
1961 SC 293
In
this case, the SC considered the constitutionality of Central Provinces and
Berar Goondas Act, 1946, which permitted the externment of “goondas” if a
person’s activities were suspected of being prejudicial to the interests of the
general public.
The
court held that the restriction imposed by the law is unreasonable, on the
premise that –
(i)
The definition of the word “goonda” afforded to assistance to the Magistrate in
determining who would fall within its meaning, i.e., that it was vague;
(ii)
No opportunity is intended to be given to the person to show that he is not an
“goonda” as alleged;
(iii)
No investigated is contemplated into the question that whether a person is
goonda or not.
The court invalidated the law on the
ground that the law is vague and did not adequately define its applicability.
Kartar Singh – State of Punjab – (1994)
3 SCC 569
In
this case, the SC held that a vague law could be declared unconstitutional.
However, in this case, instead of invalidating the law, the court undid the
vagueness of the law.
Ebrahim Vazir Mavat Case – AIR 1954 SC
229
In
this case, the SC considered the constitutionality of Section 7 of the Pakistan
(Control) Act, 1949, which authorized the Central Govt to order the removal of
a person from India either upon conviction for having violated the rules of
entry; or upon a “reasonable suspicion”.
The court deprecated the absence of
criteria which could define or predict the application of the law. This was
also perhaps one of the earliest cases where natural justice rights, i.e.,
notice and hearing were emphasized.
The
court said –
Para
6: The question whether an offence has been committed is left entirely to the
subjective determination of the Government. The inference of a reasonable
suspicion rests upon the arbitrary and unrestrained discretion of the
Government, and before a citizen is condemned, all that the Government has to
do is to issue an order that a reasonable suspicion exists in their mind that
an offence u/s. 5 has been committed. The section does not provide for the
issue of a notice to the person concerned to show cause against the order nor
is be afforded any opportunity to clear his conduct of the suspicion
entertained against him. This is nothing short of a travesty of the right of
citizenship.
K T Moopil Nair Case – AIR 1961 SC 552
In
this case, the SC was asked to consider the constitutionality of the
Travancore-Cochin Land Tax Act, 1955.
The court struck down the law as
arbitrary, on the grounds that the uncertainty in the manner in which the law
would be applied.
The
court said –
Para
8: The Act does not lay down any provision calling for a return from the
assessee, for any enquiry or investigation of facts before the provisional
assessment is made or for any right to appeal to any higher authority from the
order of provisional assessment; in fact, there is no provision for hearing the
assessee at any stage. The Act is of an arbitrary character and is thus wholly
repugnant to the guaranteed rights of the petitioners. Sec. 7 quoted above
gives uncanalised, unlimited and arbitrary power to the Government to pick and
choose in the matter of grant of total or partial exemption from the provisions
of the Act. It also suffers from the vice of discrimination.
Kathi Raning Rawat Case – AIR 1952 SC
123
In
this case, the SC upheld a speedy trial statute. The court rested satisfaction
in the backdrop of affidavit filed by the State which cited facts and figures
supported the justification for differential treatment. The court observed that
the clear recital of a definite objective afforded a tangible and rational
basis for classification.
The
court also observed that a statute could be found arbitrary and
unconstitutional not only on the premise that it discriminates, but also if it
vested authority in certain officers or administrative bodies, giving ample
scope for the said officer / authority to act arbitrary; and further observed
that a clear and definite legislative policy would provide guiding principles
for the application of the law; and if the said officer / administrative body arbitrarily
applied the law, such actions could be invalidated, instead of invalidation of
the law itself.
The court was mainly concerned about the
predictability of a statute’s application, in the guidance that, the statute
would offer, for the manner in which and consequently the class to which, the
law would apply, is the foremost requirement of equality before the law.
Kharak Singh Case – AIR 1963 SC 1295
In
this case the SC dealt with Regulation 236 of the U.P. Police Regulations,
which permitted surveillance by any of the following measures –
(a)
Secret picketing of the house or approaches to the houses of suspects;
(b)
domiciliary visits at night;
(c)
through periodical inquiries by officers not below the rank of sub-inspector
into repute, habits, associations, income, expenses and occupation;
(d)
the reporting by constables and chaukidars of movements and absences from home;
(e)
the verification of movements and absences by means of inquiry slips;
(f)
the collection and record on a history-sheet of all information bearing on
conduct."
Regulation
237 provides that all "history-sheet men" of class A (under which the
petitioner falls) "starred", and "unstarred" would be
subject to all these measures of surveillance.
Kharak
Singh, the Petitioner, had been accused of the offence of dacoity but was
acquitted for lack of evidence. Yet he was included in the list of history
sheeters.
The
issue before the Court was whether the Powers conferred upon police officials
under Regulation is violating of right guaranteed to citizens by Art. 19(1)(a)
and 21 of Constitution;
The SC held that entire Regulation 236
consisting of Clause (a) to (f) is unconstitutional and violative of Art. 19(1)
and 21.
The
court, inter alia, said that secret picketing of house or approached to houses
of suspects, constitute infringement. Right to personal liberty takes in, not
only right to be free from restrictions placed on his movements but also free
from encroachment on his movements and also free from encroachments on his
private life.
In
one of the most memorable judgments that defended the importance of personal
liberty, Justice Subba Rao observed that right to personal liberty is Article
21 is the right to be free from restrictions or encroachments, whether imposed
directly or indirectly by calculative measures. Justice Subba Rao further
stated that question of personal liberty is of far reaching importance and the
fact that the petition is filed by an allegedly disreputable character should
not be allowed to deflect the Court’s perspective. It is because if the law would be applicable to a person accused of
dacoity, an honest law abiding citizen would also be subjected to the same law.
Justice Subba Rao further observed that the freedom of movement implies where a
Citizen can do whatever he likes, speak to whomsoever he wants and meet people
of his own choices, without any apprehension to the laws of the social control.
It was further advanced that it is not merely imprisonment deprives life and
personal liberty of a person, but life and personal liberty may be deprived by
other means.
In this case the SC rejected the theory
that the “Procedure established by law” provided under Article 21, can be “any
procedure” as may be provided by the “State”.
State of Bombay versus Atmaram Shridhar
– AIR 1951 SC 157
In
this case, the SC tested the constitutionality of vague detention grounds under
the Preventive Detention Act, 1950. The Respondent was detained under the said
Act on the grounds that he is likely to be engaged in promoting acts of
sabotage on railway and railway property in Bombay. The Respondent challenged
his detention on the principle that the grounds furnished to him are too vague.
Article 22(5) provides that (a) a detainee be given grounds for his detention
and (b) earliest opportunity be given to him to make a due representation
against the said detention order.
The
Court, inter alia, observed that the aforesaid two rights under Article 22(5)
are interrelated, and so as to make an effective representation to meet the
charges contained in the grounds, the grounds conveyed should be “sufficient”
to make a due representation. A distinction was also sought between a “vague”
ground and “irrelevant” ground. It was held that right to be furnished grounds
on which an order of detention was made is an “elementary right” in a free
democratic State.
Para
16: The contention that the grounds are vague requires some clarification. What
is meant by vague ? Vague can be considered as the antonym of 'definite.' If
the ground which is supplied is incapable of being understood or defined with
sufficient certainty it can be called vague.
The only argument which could be urged
is that the language used in specifying the ground is so general that it does
not permit the detained person to legitimately meet the charge against him
because the only answer which he can make is to say that he did not act, as
generally suggested.
Harikisan versus State of Maharashtra –
AIR 1962 SC 911
In this case, the Appellant was detained
under the Preventive Detention Act, 1950; and he was supplied the grounds for
his detention, but in English language, the language with which the appellant
was not conversant with.
The
court held that the requirement of communication could be satisfied only by
imparting to the detainee sufficient knowledge of all the grounds on which the
order of detention was based. It was held that the detainee ought to have been
given effective knowledge of the facts and circumstances on which the order of
detention was based, which amounted to non compliance of requirements in Clause
(5) of Art. 22 of Constitution and rendered the detention illegal.
In this case the SC said that the
grounds of detention may not be vague, but the grounds may be incomprehensible
to the accused, and it is the same as furnishing no ground to the accused.
1982 (3) SCC 24 : AIR 1982 SC 1325
In
the landmark Ajay Hasia case, AIR 1981 SC 487, the Constitution Bench
comprising Hon'ble Judges:Y.V.Chandrachud, P.N.Bhagwati, V.R.Krishna Iyer, Syed
M.Fazal Ali and A.D.Koshal JJ., inter alia, observed to say that –
The
principle of reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades Art. 14 like a
brooding omnipresence".
Wherever
therefore there is arbitrariness in State action whether it be of the
legislature or of the executive or of an "authority" under Art. 12,
Art. 14 immediately springs into action and strikes down such State action. In
fact, the concept of reasonableness and non-arbitrariness pervades the entire
constitutional scheme and is a golden thread which runs through the whole of
the fabric of the Constitution.
An
action per se arbitrary itself denies equality of protection by law. The
Constitution Bench pertinently observed in Ajay Hasia's case and put the matter
beyond controversy when it said 'wherever therefore, there is arbitrariness in
State action whether it be of the legislature or of the executive or of act
"authority" under Art. 12, Art. 14 immediately springs into action
and strikes down such State action'.
1984 (3) SCC
316 : AIR 1984 SC 1361
19 The scope and ambit of Art. 14 have been the subject
matter of a catena of decisions. One facet of Art. 14 which has been noticed in
E. P. Royappa V/s. State of Tamil Nadu, (1974) 2 SCR 348, deserves special
mention because that effectively answers the contention of Mr. Sinha. The
Constitution Bench speaking through Bhagwati, J. in a concurring judgment in Royappa's,
case observed as under:
"The basic principle
which, therefore, informs both Arts. 14 and 16 is equality and inhibition
against discrimination. Now what is the content and reach of this great
equalising principle ? It is a founding faith, to use the words of pedantic or
lexicographic approach. We cannot countenance any attempt to truncate its
all-embracing scope and meaning, for to do so would be to violate its activist
magnitude. Equality is a dynamic concept, with many aspects and dimensions and
it cannot be "cribbed, cabined and confined" within traditional and
doctrinaire limits. From a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarch. Where an act is arbitrary it is implicit in it
that it is unequal both according to political logic and constitutional law and
is therefore violative of Art. 14, and it affects any matter relating to public
employment, it is also violative of Art. 16. Articles 14 and 16 strike at
arbitrariness in State action and ensure fairness and equality of
treatment."
This
view was approved by the Constitution Bench in Ajay Hasia's case (AIR 1981 SC
487). It thus appears well settled that Art. 14 strikes, at arbitrariness in
executive administrative action because any action that is arbitrary must
necessarily involve the negation of equality. One need not confine the denial
of equality to a comparative evaluation between two persons to arrive at a
conclusion of discriminatory treatment. An action per se arbitrary itself
denies equality of protection by law. The Constitution Bench pertinently
observed in Ajay Hasia's case and put the matter beyond controversy when it
said 'wherever therefore, there is arbitrariness in State action whether it be
of the legislature or of the executive or of "authority" under Art.
12, Art. 14 immediately springs into action and strikes down such State
action'. This view was further elaborated and affirmed in D. S. Nakara V/s.
Union of India, (1983) 1 SCC 305. In Maneka Gandhi V/s. Union of India, (1979)
2 SCR 621, it was observed that Art. 14 strikes at arbitrariness in State
action and ensures fairness and equality of treatment. It is thus too late in
the day to contend that an executive action shown to be arbitrary is not either
judicially reviewable or within the reach of Art. 14. The contention as
formulated by Mr. Sinha. must accordingly be negatived.
Rustom Cavasji Cooper Case – AIR 1970 SC
564 : (1970) 1 SCC 248:
This
important judgment had a significant impact on the development of
constitutional law. This case arose in the backdrop of where 14 major banks
were nationalized by virtue of Banking Companies (Acquisition and Transfer of
Undertakings) Act, 1969.
Aggrieved
by the said action, the Petitioner challenged the constitutionality of the said
statute, alleging that the impugned statute impair his rights guaranteed under
Art. 14, 19 and 31 of the Constitution, and are on that account invalid.
Para
49: It is not the object of the
authority making the law impairing the right of a citizen, nor the form of
action taken that determines the protection be can claim. It is the effect of
the law and of the action upon the right which attracts the jurisdiction of the
Court to grant relief. If this be the true view and we think it is, in
determining the impact of State action upon constitutional guarantees which are
fundamental, it follows that the extent of protection against impairment of a
fundamental right is determined not by the object of the Legislature nor by the
form of the action, but by its direct operation upon the individual's right.
Maneka Gandhi Case – (1978) 1 SCC 248
In
july, 1977, the Passport of Maneka Gandhi, the daughter-in-law of Indira
Gandhi, was impounded by the Passport Authority. She wrote to Regional Passport
Officer asking for reasons as why her Passport is impounded. The said Authority
made an insensitive reply, that the Govt of India had decided not to furnish
reasons “in the interest of general public”.
She
then filed a Writ Petition under Article 32 of the Constitution of India,
thereby challenging the said impounding of her Passport, on the ground that –
(a)
Section 10(3)(c) is infected with arbitrariness and is thus violative of
Article 14 of the Constitution;
(b)
the act of impounding violates her fundamental rights, more particularly
enshrined under Article 19(1)(a), 19(1)(g) and 21.
It
was also claimed in the Petition that –
(a)
The right to go abroad is implicit in right to life and personal liberty
guaranteed under Article 21 of the Indian Constitution;
(b)
She was denied of the said right to go abroad without a hearing and without
affording any reasons, and therefore, the procedure established by law, to
deprive the right to life and personal liberty, is procedurally unfair,
(c)
Section 10(3)(c) of the Passport Act, 1967 is vague in its application, which
gives unfettered powers to the Passport Authority to impound Passport of any
person “in the interest of general public”, and the said Section gives profound
scope for the Authority to act arbitrarily.
The
Court found that by denying Maneka Gandhi a hearing before impounding her
Passport, the Passport Authority have violated principles of natural justice.
The
Court also observed that right to go abroad is implicit in Article 21 of our
Constitution; and the most memorable and cherished observation, which was
instrumental in shaping the Constitutional landscape of India, post this
judgment. The Court said – the
“Procedure established by law” for the deprivation of life and personal
liberty, enshrined under Article 21, should be fair, just and reasonable, and
not fanciful, oppressive and arbitrary, a conscious, resounding and emphatic
departure from the ruling in the Gopalan case. The Court also held that right
to equality is antithetic to arbitrariness and Article 14 militates against
arbitrariness.
The court said that a Statute which
essentially violate right to life or personal liberty may be challenged on the
grounds of unfair, fanciful or oppressive procedure, on the premise of being
arbitrary, the incidence of Article 14.
Para
56: The principle of reasonableness, which legally as well as philosophically,
is an essential element of equality or non arbitrariness pervades Art. 14 like
a brooding omnipresence and the procedure contemplated by Art. 21 must answer
the test of reasonableness in order to be in conformity with Art. 14. It must
be "right and just and fair" and not arbitrary, fanciful or
oppressive ; otherwise, it would be no procedure at all and the requirement of
Art. 21 would not be satisfied.
However,
in this case the said provision was not invalidated with the reservation that
administrative authority would have to record reasons for their decision.
In
this case, arbitrariness and equality were declared as sworn enemies, on the
premise that arbitrariness is contrary to rule of law. The rule of law requires
that coercive powers of the State can only be used in cases defined in advance
by law and in such a way that it can be foreseen how it will be used,
distinguished from ruled by men. A Society governed by Rule of law ensures that
State action is not ad hoc and Citizens are put to notice of law, so that they know
how to order their lives.
In this case, in the words of CJ P N
Bhagwati, “the principle of reasonableness, which legally as well as
philosophically, is an essential element of equality or non arbitrariness
pervades Art. 14 like a brooding omnipresence and the procedure contemplated by
Art. 21 must answer the test of reasonableness in order to be in conformity
with Art. 14. It must be "right and just and fair" and not arbitrary,
fanciful or oppressive.” In this case, arbitrariness and equality were declared
sworn enemies on the premise that arbitrariness is contrary to rule of law. The
rule of law requires that the coercive powers of the State can be used only in
cases defined in advance by law and in such a way that it can be foreseen how
it will be used.
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