Right to life: India
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History
The debate in the Constituent Assembly
January 26, 2022: The Times of India
On November 16, 1948, the President [Rajendra Prasad] put to vote the numerous amendments that had been moved to amend a large number of articles. After debating and voting on all the amendments, the Constitution approached its final form. On November 17, 1948, Dr Ambedkar moved to joyous jubilations the resolution: “That the Constitution as settled by the Assembly be passed.”
The Assembly would now begin the third reading of the Draft Constitution, which continued till November 25, 1949. The speeches made in the course of the third reading suggest a sharp division amongst the members on the general question of fundamental rights, and on the specific issue of the absence of a due process guarantee in the chapter on fundamental rights.
Several members expressed their happiness at the fact that the Constitution would herald a new dawn for India. Many others, however, expressed their disappointment with the Constitution, and particularly with the chapter containing the fundamental rights. They used the third reading of the Constitution as an opportunity to draw the attention of the Assembly to the problems which India, and indeed Indians, would face due to the absence of the due process guarantee.
The critics of Article 21 For K T Shah [in the Constituent Assembly], although the Drafting Committee had shown great zeal in drafting the Constitution, the document “when judged as a piece of art in drafting” could not be considered “as a gem of its kind”.
The chapter pertaining to fundamental rights held out a hollow assurance since almost all the fundamental rights were in some way subject to either restrictions or made conditional. In particular, the rights pertaining to “personal freedom” were so narrowly worded that they could be suspended during an Emergency and that a person could be detained on false pretences, with the right being of no avail.
For him, the right to personal freedom was really reduced to “a right to remain under detention without trial, without any proper judicial proceedings for a period of three months”. There was nothing ‘more painful to read’ and nothing ‘more disappointing in this Constitution’ than the chapter on fundamental rights.
As H V Patskar saw it, the entire controversy pertaining to due process seemed to have served no useful purpose. Even though the chapter on fundamental rights was detailed, the right to personal liberty was left wanting. In an effort to avoid any reference to due process the Assembly settled on the language of Article 21 selecting the phrase “procedure established by law”, but then to undo the drawbacks of Article 21, Article 22 was introduced which really contained due process rights.
However, Article 22 granted the lowest level of protection and would prove insufficient to safeguard persons against prolonged detention, since under it the Advisory Board was conferred with great powers to decide the length of preventive detention; a Board which was not a judicial body at all.
For Patskar, the only sliver of hope available now was that in time, Parliament would amend the Constitution, using the amending powers, and make appropriate amends. For Shibban Lal Saksena, Articles 21 and 22 was the “darkest blot” on the Constitution since it had achieved the unimaginable: it permitted “detention without trial”.
Saksena, pained by these two articles, proclaimed that liberty had been a casualty in our Constitution”. Articles 21 and 22 were also an enormous personal loss for Saksena and he could never come to truly accept these two articles. He himself had suffered detention under the British for over three decades and knew only too well the cruelties which were inflicted on those who were preventively detained. “I know the tortures which detention without trial means”, Saksena told the Assembly, “and I can never reconcile myself to it”.
Further, in his view, what made it worse was the fact that under Articles 358 and 359, fundamental rights could be suspended during an Emergency and would be rendered unenforceable and non-justiciable. This, for Saksena was to make “a mockery of Fundamental Rights”. For him, Article 21 along with Article 22 were nothing less than a constitutional travesty and they signalled the retreat of liberty rights so far as the Constitution was concerned. Kazi Syed Karimuddin was certain that so long as due process was absent from the Constitution, fundamental rights would be insufficiently realised. In the absence of due process, there was no fundamental right which could keep a check on the “invasion of the Fundamental Rights by the Legislature”.
As he put his point illustratively, the absence of a due process guarantee would help to validate a law which allowed for punishment by execution even though the law was highly unjust. Although he was acutely aware that the Constitution was being debated and settled amidst a period of great churning and turmoil, he expressed a fervent hope that as soon as India entered a period of peace, due process would find its way back into the Constitution. Otherwise, Karimuddin predicted, the only result would be “chaos and anarchy”.
When Pandit Thakur Dass Bhargava addressed the Constituent Assembly, he seemed somewhat satisfied with Article 21 and Article 22 since he believed that these Articles conferred “sufficient rights”, but noted that it was an undeniable fact that it was quite possible to provide for several more rights in the Constitution.
The defenders of Article 21
Alladi Krishnaswami Ayyar’s speech in support of Dr Ambedkar’s motion makes for interesting reading, for it presented a masterly defence of the Constitution.
After surveying various parts of the Constitution, Ayyar turned his attention to Articles 21 and 22. Ayyar proclaimed that the real function of Article 22 was to “secure against any abuse” of Article 21, but he made an astonishing statement. Ayyar admitted that Article 22 had to necessarily follow Article 21 or else “indefinite detention” would be a reality since all that Article 21 required was a law which laid out a procedure for detention, a scenario which was avoided by incorporating Article 22.
It is astonishing because here was an admission that Article 21 in itself had no force and meant nothing in the face of State action which marched towards eclipsing the basic liberties of the people. For Ram Chandra Gupta, Article 21 was indeed broadly worded but the fears over Article 21 being insufficient were misplaced, and it was presumptuous to assume that the State will abuse its powers, for it was highly unlikely that laws would either be passed or implemented in a “wanton or irresponsible manner”.
Even otherwise for Gupta, the breadth of Article 21 would act as a cautionary mechanism since governments would use their powers to truncate the right in times of emergencies alone. Article 21 had proven to be, for Frank Anthony, a cause for some concern, since the State could abuse the right to personal liberty by simply making laws which would upset all canons of justice.
As Anthony put it: “I am afraid that in this form Article 21, if the executive and the government of the day choose to, can be abused and made a handle for totalitarian oppression. The executive can make it a handle for superseding [the] rule of law; they can make it a handle for depriving citizens of the elementary principles of natural justice, and of jurisprudence."
As a lawyer by training, Anthony was convinced that the spectre of this fundamental right being easily abused would haunt the new republic. Intriguingly, despite his serious misgivings about Article 21, Anthony proclaimed that he had decided not to oppose its incorporation because India was transitioning into a constitutional democracy under difficult and trying times, during which the government must have the greatest flexibility in dealing with any eventualities.
For Anthony, during these troubled times there was no option but to accept a truncated right on personal liberty. Having said that, Anthony then expressed only a hope that Article 21 would not be abused by future governments. We are thus able to see that even those who spoke in favour of Article 21 were not entirely sure whether it would operate as a proper safeguard against State action infringing personal liberty.
It was this uncertainty which led, for instance, Frank Anthony to proclaim that all they could do now was to “sincerely hope” that the State would not abuse Article 21, even though it could do so unchecked, without as much as a question being raised against the motives for restricting the right to life and personal liberty.
On November 25, 1949, Dr Ambedkar addressed the Constituent Assembly on the final version of the Constitution. Dr Ambedkar was careful not to comment on the merits of the Constitution, focusing rather on its general features and thanking all the members who played an instrumental role in the shaping of the Constitution.
In his speech, a special mention was made of BN Rau who, according to Dr Ambedkar, deserved a fair share of the credit for the Constitution since it was his Draft Constitution which set things in motion for the Drafting Committee. Dr Ambedkar also profusely thanked SN Mukherjee, who was the Chief Draftsman of the Constitution.
Dr Ambedkar’s tribute paid to them both was met with cheers in the Constituent Assembly. Dr Ambedkar was aware that the Constitution was not the end of the journey, but the beginning. He was at pains to, therefore, emphasise that regardless of its structure and language, a constitution was only as good or as bad as the people who were charged with working it.
As Dr Ambedkar put it: “I shall not therefore enter into the merits of the Constitution. Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. Towards the end of his speech, Dr Ambedkar was filled with hope and expectation, and he concluded by expressing the hope that the general populace would rise to the occasion of making the Constitution a document which resulted in India’s progress.”
Since Dr Ambedkar had decided not to discuss the contents of the Constitution, Dr Ambedkar made no comment on Article 21 or on the absence of the Constitution containing a due process guarantee. Dr Ambedkar’s speech marked the conclusion of the third reading of the Constitution, and now all that was left was for the Constituent Assembly to give its seal of approval to the Indian Constitution.
On November 26, 1949, the President of the Constituent Assembly after speaking at length on the features of the Constitution, put Dr Ambedkar’s motion of November 17, 1949, to vote. Amidst rousing cheers, the Assembly voted to adopt Dr Ambedkar’s motion, thus giving to free India her new Constitution. The Constituent Assembly would meet for the final time, on January 24, 1950, in its capacity as a constituent body, for the members to affix their signatures to the Constitution.
Excerpted with permission from Liberty After Freedom: A History of Article 21, Due Process and the Constitution of India (published by Harper Collins India)
Food habits
Linked to right to life
HIGHLIGHTS
The HC said that Article 21 of the Constitution extends right to life to every citizen
Food, food habits and vending of food are linked to right to life and must not be curbed by the state
The UP government has said it never intended to ban consumption of meat
LUCKNOW: The Lucknow bench of the Allahabad high court has observed that food, food habits and vending of food are linked to right to life and must not be curbed by the state.
Hearing a petition by a retail meat shop owner from Kheri, who had appealed for renewal of his licence in view of the crackdown by the UP government+ against illegal slaughterhouses and meat shops, the bench of Justice A P Sahi and Justice Sanjai Harkauli expressed concern that meat shops were being closed without considering renewal of shop-owners' licences.
The bench pored over the legal and constitutional provisions in this regard earlier this week, and said that Article 21 of the Constitution extends right to life to every citizen.
Directing the government's high-powered committee (to be headed by the chief secretary) to deliberate on the issue on April 10 to resolve the controversy, the bench observed, "Food that is conducive to health cannot be treated as a wrong choice and it is for this reason that provisions are obligated on the state to be made available for maintaining the requirement of supply of healthy foodstuff."
The bench asked the government to apprise it of the conclusion of the committee's deliberations on April 13.
The court's observations contained echoes of what the Bombay HC had said on the Maharashtra beef ban+ about a year ago, which had stated+ : "As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health...The state cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice..."
Hearing a related petition, the Allahabad HC also directed the government to apprise it of the decision of the committee to deliberate on the issue of granting and renewing licences of slaughterhouses and meat shops.
The state government has said it never intended to ban consumption of meat, which means it was not going to close all slaughterhouses and meat shops but only wanted these to be regulated under Supreme Court and National Green Tribunal guidelines.
Right to marry
Not included in Right to life, Centre tells HC
Right to life doesn’t include right to marry, Centre tells HC, March 12, 2019: The Times of India
The Centre and Army have defended their policy to bar married people from being recruited in the Judge Advocate General (JAG) wing of the forces.
In a reply filed in the Delhi high court, the Centre has argued that the right to marry cannot be interpreted as right to life under the Constitution. It added that “there is nowhere written or proved that life of person would be miserable or unhealthy without marriage.”
The government’s response came on an earlier query by the HC where it sought to know how does marriage affect one’s ability to become an officer in JAG. Last year HC had asked the Centre why married men and women are barred from the service. HC is hearing a PIL by lawyer Kush Kalra claiming there was institutionalised discrimination against married people by not inducting them in JAG service.
