JOIN USA policeman’s Constitution?
At every stage of the drafting process of the Constitution, strong and cogent criticism of the text was made by members of the Constituent Assembly (CA), pointing out problems and gaps in the text that went against the ideals of the freedom movement. Perhaps the most caustic criticism came from the sole Communist Party representative in the CA -- Somnath Lahiri. During a debate on April 29, 1947, he memorably noted that the fundamental rights provisions in the Constitution had been drafted “from the point of view of a police constable.” Every right, he argued, was taken away by a proviso that favoured the constable over a free nation.
He was prescient. The very first constitutional case decided by the Supreme Court concerned the preventive detention of Communist leader A K Gopalan. Detained under the Preventive Detention Act, 1950, Gopalan approached the new Supreme Court claiming that the law and his detention under it violated the rights guaranteed under Articles 19, 21 and 22 of the Constitution. Incidentally, this case was argued on behalf of Gopalan by M K Nambyar, the father of the present Attorney General of India, K K Venugopal.
With no precedent to follow, Nambyar had to look elsewhere to build a bold legal argument. He argued that Articles 19, 21 and 22 should be read together as a charter of rights to be enjoyed by every citizen against arbitrary detention and deprivation of their personal liberty. He relied heavily on American case law and the debates that took place in the CA to argue that the preventive detention law was unconstitutional. Specifically, he argued that the court should interpret “procedure established by law” to include limits on what sort of law could direct that a citizen could be deprived of life or liberty.
Nambyar’s interpretation of Article 21 was, however, rejected by the Supreme Court. A majority of the bench of five judges, headed by Chief Justice H J Kania, preferred to read Article 21 narrowly and pedantically. They refused to look at American case law on the ground that Article 21 did not use the same words as the US Constitution. The word “law” as used in Article 21, according to CJ Kania, was whatever was passed by Parliament. He, and the majority of judges, saw no need to interpret the term “law” to mean a just, fair or reasonable law. A law, any law, could be used by the government to deprive a person of their life or liberty no matter how unjust, unfair or unreasonable.
It will go down in history that in the very first case concerning the interpretation of Article 21 reduced the Constitution’s promise of limited government and fundamental rights to ashes and made real the very worst fears expressed by members of the CA. The only saving grace was the dissenting judgement of Justice Fazl Ali, who agreed with Nambyar and held that while the Preventive Detention Act, by and large, was constitutional, Gopalan’s detention itself was unconstitutional.
Thankfully, over the years since, the Supreme Court has, slowly but steadily, chipped away at the Gopalan judgement. The most decisive turn away from the narrow and pedantic reading of Article 21 was perhaps made in Maneka Gandhi vs Union of India in 1978. A 7-judge bench of the SC headed by Justice P N Bhagwati built upon years of developing case law to hold that unjust, unreasonable or unfair laws could not be the basis for depriving one’s life or liberty simply because they had been passed by Parliament. In doing so, they gave rich content to the meaning of the “right to life and liberty”, coming closer perhaps to the idea that informed the Constituent Assembly. The interpretation favoured by Nambyar and Ali has now become law, with the court reading Article 21 ever more widely and bringing within it a number of aspects of personal liberty that do not find express mention in the Constitution.
Yet, for all that, Somnath Lahiri’s criticism that it’s a policeman’s Constitution still rings in one’s ears. More so when not a day goes by without a report of an arbitrary and unjustified exercise of power by the police in some corner of the country. The gap between the promises of the Constitution and the lived reality of most Indians is still vast. This is not to say that the promises are false but that it is a long and arduous path to realising them. Citizens have to be eternally vigilant against the power of the State. That is the price of liberty.
(Co-founder of Vidhi Centre for Legal Policy, the author uses his legal training to make the case that Harry Potter is science fiction and Star Wars is fantasy.)