Which one of the following statements about 'personal liberty' is not correct?
- (a)State does not have the authority to deprive any person within the territory of India of his/her personal liberty without any rational basis.
- (b)Basis of depriving a person of his/her personal liberty must be in accordance with procedures established by law.
- (c)Personal liberty can be secured by the judicial writ of Habeas Corpus.
- (d)The majority view of the Supreme Court in A. K. Gopalan vs. State of Madras case invented 'due process of law'.
Correct — D, the claim that the majority in A. K. Gopalan invented due process of law. The Supreme Court did the opposite in that 1950 case. Gopalan, held under a preventive detention law, argued that Article 21 required a fair procedure; the majority rejected the argument, held that 'procedure established by law' means only a procedure laid down by a validly enacted statute, and treated Articles 19, 21 and 22 as separate compartments that need not be read together. The Constituent Assembly had deliberately chosen that phrase over the American 'due process' on B. N. Rau's advice, and the majority gave effect to that choice. Due process entered Indian law only in 1978, when Maneka Gandhi overruled Gopalan on this point and held that a procedure under Article 21 must be right, just and fair, and not arbitrary or oppressive.
- (a)State does not have the authority to deprive any person within the territory of India of his/her personal liberty without any rational basis. — Correct as the law now stands. After Maneka Gandhi the procedure must be fair and reasonable, and Article 14 forbids arbitrariness, so a deprivation with no rational basis cannot survive.
- (b)Basis of depriving a person of his/her personal liberty must be in accordance with procedures established by law. — This is the text of Article 21 itself — no person shall be deprived of his life or personal liberty except according to procedure established by law. It applies to any person, citizen or not.
- (c)Personal liberty can be secured by the judicial writ of Habeas Corpus. — Correct. Habeas corpus, literally an order to produce the body, is the classic remedy against unlawful detention and is available under Article 32 in the Supreme Court and Article 226 in a High Court.
Article 21 is one sentence, and almost the whole of Indian constitutional rights law has been built on how it is read. The narrow reading, from Gopalan, asks only whether a statute exists and whether the procedure it lays down was followed. The wide reading, from Maneka Gandhi, asks in addition whether that procedure is fair, just and reasonable, and links Article 21 with Articles 14 and 19 so that a law restricting liberty must survive all three.
The consequences of the 1978 shift are what later papers examine. Reading fairness into Article 21 opened the way to the rights the Court has since found inside it — a speedy trial, legal aid, livelihood, a clean environment, education, and privacy in the 2017 Puttaswamy judgement. The counterpoint worth remembering is ADM Jabalpur in 1976, where a majority held that the right to move a court under Article 21 stood suspended during the Emergency; that decision was expressly overruled in Puttaswamy, and Justice H. R. Khanna's lone dissent is now the accepted position.
- A. K. Gopalan vs State of Madras, 1950, gave Article 21 a narrow reading and rejected due process.
- The Constituent Assembly chose 'procedure established by law' over 'due process' on B. N. Rau's advice.
- Maneka Gandhi vs Union of India, 1978, held that the procedure must be right, just and fair.
- Habeas corpus is the writ against unlawful detention, available under Articles 32 and 226.
- Article 21 protects 'any person', so it extends to non-citizens as well as citizens.
- 1948-49 — the Assembly rejects 'due process' and writes 'procedure established by law', following B. N. Rau's advice
- 1950 — A. K. Gopalan: the majority reads the phrase literally and keeps Articles 19, 21 and 22 in separate compartments
- 1976 — ADM Jabalpur: the majority holds the remedy under Article 21 suspended during the Emergency; Justice Khanna dissents
- 1978 — Maneka Gandhi: procedure must be right, just and fair, and Articles 14, 19 and 21 are read together
- 2017 — Puttaswamy: privacy is located within Article 21, and ADM Jabalpur is expressly overruled
Due process arrived twenty-eight years after Gopalan, which is why attributing it to that judgement inverts the story.
- Reversing Gopalan and Maneka Gandhi; the first refused due process and the second admitted it.
- Thinking Article 21 protects citizens only, when its words are 'no person'.
- Assuming habeas corpus lies only in the Supreme Court; Article 226 gives High Courts the same writ.
A not-correct item resting on the direction of a leading case. Fix which judgement moved the law in which direction and the option answers itself.
In essence, what does 'Due Process of Law' mean?
- (a) The principle of natural justice
- (b) The procedure established by law
- (c) Fair application of law
- (d) Equality before law
Answer(a) The principle of natural justice
The concept this item misattributes, defined on its own. Due process asks whether the law itself is fair, which is the standard the 1950 majority declined to apply and the 1978 bench adopted.
- practice — not a real PYQ
The requirement that a procedure under Article 21 be 'right, just and fair' was laid down in
- (a)A. K. Gopalan vs State of Madras
- (b)Maneka Gandhi vs Union of India
- (c)Kesavananda Bharati vs State of Kerala
- (d)Minerva Mills vs Union of India
Answer(b) Maneka Gandhi vs Union of India, 1978 — which overruled Gopalan on this point.
- practice — not a real PYQ
The writ issued to produce a detained person before a court is
- (a)Mandamus
- (b)Certiorari
- (c)Habeas Corpus
- (d)Quo Warranto
Answer(c) Habeas Corpus — the remedy against unlawful detention.