The Transformative Constitution

by Gautam Bhatia

  117. Ibid.

  118. Ibid., 33.

  119. C.R. Das, ‘Freedom Through Disobedience’, Presidential Address at the 37th Session of the Indian National Congress (Delhi: Arka Publishing House 1922), available at https://www.gutenberg.org/files/35349/35349-h/35349-h.htm, visited on 1 April 2018.

  120. Ibid.

  121. Ibid.

  122. Nehru spoke about the CTA during a speech in 1936.

  123. Srinivasa Sastri, The Indian Citizen: His Rights and Duties 29 (Delhi: Hind Kitab Limited 1948).

  124. See Kannabiran, The Wages of Impunity, supra, 22–23.

  125. Hansa Mehta, ‘Civil Liberties’, Presidential Address at the All India Women’s Conference, 1945 10 (Aundh: Aundh Publishing Trust 1945).

  126. In the Constituent Assembly, there was a train of thought that argued for the continuation of colonial-era powers on the specific basis that the new government, being of the people, would never misuse them. See, e.g., Parliament of India, Constituent Assembly Debates, Vol. V, 22 August 1947 (speech of Pandit Lakshmi Kanta Maitra), available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C22081947.html.

  127. Kannabiran, The Wages of Impunity, supra, 51.

  128. Sastri, The Indian Citizen, supra.

  129. See, e.g., Parliament of India, Constituent Assembly Debates, Vol. V, 22 August 1947, supra (speech of Mr Hussain Imam, pointing out that other countries allowed for preventive detention only during times of war; speech of Mahboob Ali Baig Sahab Bahadur); Parliament of India, Constituent Assembly Debates, Vol. IX, 29 August 1949 (speech of Shri Shibban Lal Saksena), available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C29081949.html; and 15 September 1949 (speech of Bakshi Tek Chand), available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C15091949.html.

  130. Parliament of India, Constituent Assembly Debates, Vol. IX, 16 December 1949, supra, available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C16091949.html.

  131. For a quick, accessible summary, see Abhinav Sekhri, ‘Preventive Justice Part I – The History Behind Article 22’, The Proof of Guilt, available at https://theproofofguilt.blogspot.in/2016/12/preventive-justice-part-1-history.html.

  132. See e.g., Parliament of India, Constituent Assembly Debates, Vol. VII, 6 December 1948 (speech of K.M. Munshi), available at http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C06121948.html.

  133. As B.N. Rau noted in his initial note on fundamental rights as early as 2 September 1946, the more conservative framing was ‘really meaningless as a guarantee against oppressive laws after enactment’. B.N. Rau, ‘Notes on Fundamental Right’, cf. B. Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol. II 21, 32 (New Delhi: Universal Law Publishing 1967); the issue was also discussed in the Sub-Committee on Fundamental Rights on 26 March 1947, where the concern was raised that a ‘due process’ clause would impede the legislature’s ability to carry out land reform. Minutes of the Meeting of the Sub-Committee on Fundamental Rights, 26 March 1947, cf. Shiva Rao, The Framing of India’s Constitution, supra, 121–22. The first internal draft Fundamental Rights chapter did contain a due process clause (Clause 11), and also a clause prohibiting prolonged detention before trial and unreasonable refusal of bail (Clause 29), based on Hersch Lauterpacht’s International Bill of Rights. Commenting on Clause 11, B.N. Rau noted that it would be a safeguard against ‘predatory legislation’ but might also ‘stand in the way of beneficent social legislation’. Note by the Constitutional Adviser (B.N. Rau) on the Effect of Some of the Proposed Clauses, cf. Shiva Rao, The Framing of India’s Constitution, supra, 151. Due process remained in the Constitutional Adviser’s draft Constitution, prepared after the first round of debates, in October 1947 (Article 16), but the detention provision had gone. ‘Due process’ then remained in the Drafting Committee’s draft Constitution until as late as 22 January 1948, but was dropped in the February draft that was presented to the Assembly, with the footnote that the phrase ‘procedure established by law’ was more ‘specific’. This was draft Article 15. Shiva Rao, The Framing of India’s Constitution, Vol. III, supra, 523.

  134. For example, Alladi Krishnaswami Ayyar, who supported dropping ‘due process’, did so on the grounds that a due process clause would preclude preventive detention laws. Parliament of India, Constituent Assembly Debates, Vol. IX, 15 September 1949 (speech of Alladi Krishnaswami Ayyar); see also 16 September 1949 (speech of Shri B.M. Gupte).

  135. See Parliament of India, Constituent Assembly Debates, Vol. VII, 13 December 1948 (speech of Dr B.R. Ambedkar), supra. Ambedkar said, with something of a flourish, that leaving the final word on liberty to a legislature ‘packed by party men’ or to ‘five or six gentlemen sitting in the … Supreme Court’ was like sailing between Scylla and Charybdis.

  136. Parliament of India, Constituent Assembly Debates, Vol. IX, 15 September 1949 (speech of Shri H.V. Pataskar), supra. The fact that the purpose of (what became) Article 22 was to compensate for what was not given under Article 21 (‘procedure established by law’) was agreed on by both supporters and opponents of preventive detention. The opponents only argued, further, that Article 22 failed miserably to achieve that purpose. See ibid.

  137. Parliament of India, Constituent Assembly Debates, Vol. IX, 16 September 1949 (speech of Ananthasayanam Ayyangar).

  138. Ibid. (speech of Shrimati G. Durgabai).

  139. Article 22(3), Constitution of India. See Parliament of India, Constituent Assembly Debates, Vol. IX, 15 September 1949, supra.

  140. Ibid., 16 September 1949 (speech of Dr B.R. Ambedkar). Ambedkar then went on to note that through its specific language, clause (3) was meant to curtail the otherwise unbounded power of the legislature to pass preventive detention laws. However, as Thakur Das Bhargava correctly noted, this argument was rather disingenuous: the legislature’s power to pass preventive detention laws flowed from the Lists of the Seventh Schedule which Ambedkar himself had drafted. To this, Ambedkar only replied: ‘I made it. You passed it.’

  141. The argument that the Constituent Assembly ultimately adopted the ‘liberty perspective’ as opposed to the ‘public order perspective’, and the view that it has been the courts that have subsequently misinterpreted the Constitution by giving primacy to the public order perspective, is supported by Aparna Chandra and Mrinal Satish. See ‘Criminal Law and the Constitution’ in The Oxford Handbook of the Indian Constitution, supra, 794, 798.

  142. R.C. Cooper v. Union of India (1970) 1 SCC 248.

  143. Seervai, Constitutional Law of India, Vol. 2, supra, 969–1014. Seervai also argues that Gopalan did not endorse the silos theory either: it only made the limited, and correct, point that Articles 19 and 21 operated in different spheres.

  144. A.K. Gopalan v. State of Madras, supra, ¶26 (opinion of CJI Kania).

  145. In Justice K.S. Puttaswamy v. Union of India, supra.

  146. A.K. Gopalan v. State of Madras, supra, ¶103 (dissenting opinion of Justice Fazl Ali) Article 19(5) allows the State to impose reasonable restrictions on the freedom of movement. See also Abhinav Sekhri, ‘Preventive Justice Part 2: Looking Inside Pandora’s Box’, The Proof of Guilt, available at https://theproofofguilt.blogspot.in/2016/12/preventive-justice-part-2-looking.html.

  147. Parliament of India, Constituent Assembly Debates, Vol. IX, 15 September 1949 (speech of Dr B.R. Ambedkar), supra.

  148. A.K. Gopalan v. State of Madras, supra, ¶93 (dissenting opinion of Justice Fazl Ali).

  149. Parliament of India, Constituent Assembly Debates, Vol. IX, 16 September 1949 (speech of Dr B.R. Ambedkar), supra.

  150. This argument has an important corollary. In Maneka Gandhi v. Union of India (1978) 1 SCC 248, the Supreme Court held that Article 21 did, in fact, include a ‘due process’ requirement. As a matter of constitutional text and history, this is indefensible. As we have seen above, the Constituent Assembly consciously adopted the phrase ‘procedure established by law’ and not ‘due process
’, and despite fierce disagreement about the merits of this choice, there was consensus about its consequences: ‘procedure established by law’ required only a validly enacted law, which stipulated a procedure. Maneka Gandhi performed an entirely unpersuasive sleight of hand by holding that the word ‘law’ itself entailed a substantive requirement that what was enacted be ‘just, fair, and reasonable’. This effectively turned the text of Article 21 on its head, and judicially resurrected the argument that had been made, and lost, in the Constituent Assembly.

  In other words, in Gopalan, the Supreme Court wrongly adopted the silos theory; and then in Maneka, it applied the wrong corrective by expanding Article 21, and making the phrase ‘procedure established by law’ bear the burden of a full-blown theory of constitutional liberty.

  Perhaps for this reason, there has been almost no serious attempt to defend Maneka Gandhi on constitutional grounds. The defences have largely been consequential: ‘Think of the peril the citizen would be in if there was no substantive check on the government’s power to deprive individuals of their life or personal liberty.’

  But the argument above should make it clear that consequential position is also flawed. Once it is established that the silos theory had no support in the text or history, and once it is established that Article 22 was never meant to be a complete code (quite the opposite), the corollary is that in adjudicating Part III violations, the Court would necessarily have to read Articles 14, 19, and 21 together, and, therefore, the proportionality standard under Article 14, and the proximity standard under Article 19, would apply to determine the constitutional validity of these impugned laws that violated personal liberty.

  However, not only was Maneka Gandhi unnecessary to achieve greater freedom under the Constitution, its impact, if any, has been damaging. Maneka Gandhi became the trigger for the Court to expand Article 21 of the Constitution to a point where the ‘right to life and personal liberty’ has lost all meaning and, as a result, has become severely diluted. Moreover, the Court’s cavalier approach to the constitutional text and history would have long-term consequences upon constitutional interpretation as a whole, sacrificing constitutional fidelity to the ideological predilections of individual judges, characterized most vividly in the public interest litigation regime. See Anuj Bhuwania, Courting the People (New York: Cambridge University Press 2017).

  While I cannot develop this argument further here, the point is this: if Maneka Gandhi is indefensible as a matter of constitutional interpretation, unnecessary for achieving substantial safeguards on personal liberty, and damaging in other respects, then perhaps, instead of granting it an uncritically canonical status, it ought to be better understood as a well-intentioned, but misguided, wrong turn. One does not need to smuggle in due process into Article 21 to protect liberty: the Constitution, as interpreted correctly, protects it. Maneka Gandhi is incorrect, and ought to be overruled.

  151. See e.g., Akhil Amar, The Bill of Rights: Creation and Reconstruction (New Haven: Yale University Press 2000), demonstrating that the phrase ‘the freedom of speech’ acquired a different connotation due to a shift from a political system in which Parliament was deemed supreme, to one in which ‘The People’ were deemed supreme.

  152. See, Gautam Bhatia, ‘Transformative Constitutional Amendments’ (2015) XIII (1) Dartmouth Law Journal 1, 22; Amar, The Bill of Rights, supra, 224.

  153. Kannabiran, The Wages of Impunity, supra.

  154. Ornit Shani, How India Became Democratic (New Delhi: Penguin 2018).

  155. The phrase ‘culture of justification’ was used by the South African constitutional scholar Etienne Mureinik to describe the transition from the apartheid regime to a constitutional democracy. See Etienne Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 South Africa Journal of Human Rights 31.

  156. Mehta, ‘Civil Liberties’, supra.

  157. Justice K.S. Puttaswamy v. Union of India, supra.

  158. See the highly deferential approach adopted by the Supreme Court in Attorney-General for India v. Amratlal Prajivandas, AIR 1994 SC 2179.

  159. Kalyani Ramnath, ‘The Other Criminal Codes: Crises, Excesses and the Goondas Acts in Indian Legal Imagination’, unpublished manuscript on file with the author.

  160. The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, (Immoral Traffic Offenders, Slum Grabbers and Video or Audio Pirates) Act, 1985.

  161. 2013 Amendments to this Act bizarrely state that audio and video piracy is prejudicial to the maintenance of public order.

  162. Section 8, Karnataka Goonda Act, supra.

  163. Gautam Bhatia, Offend, Shock, or Disturb, supra, 81.

  164. There is also an argument to be made that, insofar as the non-speech offences are concerned, they fail the proportionality standards under Articles 14 and 21.

  165. For other laws authorizing preventive detention, see e.g., Amnesty International’s work, available at https://amnesty.org.in/news-update/3200-held-administrative-detention-lawless-laws-must-scrapped-india-2/.

  166. S. 2(e)(vi), Chhattisgarh Vishesh Jan Suraksha Adhiniyam, 2005.

  167. S. 8, ibid.

  168. See the Jammu and Kashmir Public Safety Act, 1978.

  169. Chhattisgarh Special Public Safety Act, supra.

  170. Usha Ramanathan, ‘Ostensible Poverty, Beggary, and the Law’ (2008) 43/44 Economic and Political Weekly 33. The article deals in some detail with the impact of the law. Vijay Raghavan and Mohammed Tarique, ‘Penalising Poverty: The Case of the Bombay Prevention of Begging Act, 1959’ (2018) LIII(22) The Economic and Political Weekly 26. But see Ram Lakhan v. State, 137 (2007) DLT 173, where the Delhi High Court explicitly ‘read down’ the provisions of the Act in order that it might conform to constitutional standards, in a manner very similar to what Jyoti Chorge would do seven years later. For an analysis, see Ashish Goel, ‘Indian Anti-Beggary Laws and their Constitutionality through the Prism of Fundamental Rights, With Special Reference to Ram Lakhan v. State’ (2010) 1 Asia-Pacific Journal on Human Rights and the Law 23–38. On 8 August 2018, the Delhi High Court became the first state to strike down the Act. See Harsh Mander v. Union of India, W.P. (C) 10498/2009 (High Court of Delhi). However, because of concessions by the state government, the decision was based on narrow grounds, limited to a distinction between ‘voluntary’ and ‘involuntary’ begging. See Gautam Bhatia, ‘Something of Freedom Is Yet to Come: The Significance of the Delhi High Court’s Decriminalisation of Beggary’, The Indian Constitutional Law and Philosophy Blog, 10 August 2018, https://indconlawphil.wordpress.com/2018/08/10/something-of-freedom-is-yet-to-come-the-significance-of-the-delhi-high-courts-decriminalisation-of-beggary/.

  171. S. 2(d), Bombay Prevention of Beggary Act, 1959.

  172. S. 5, ibid.

  173. S. 9, ibid.

  174. There is also the Bombay Habitual Offenders Act of 1959, ostensibly a ‘successor legislation’ to the Criminal Tribes Act, and which was meant to mark a shift to the concept of ‘individual responsibility’. While it partially does so, the Act allows for compulsory fingerprinting and registration of individuals even after they have been convicted and served their time. The Act also allows the state government to restrict the movements of ‘registered offenders’, and one of the circumstances that the government is expected to take into account is whether the individual follows a lawful occupation that is conducive to an ‘honest and settled way of life’. Here again, the punishment is not for what is done but for who the person is. The Act also provides for ‘corrective settlements’. The less said about those, the better.

  9: Privacy and the Criminal Process: Selvi v. State of Karnataka

  1. Stephen David, ‘The Bangalore lab where India’s most high-profile criminals cough up the truth’, India Today, 22 May 2006, available at https://www.indiatoday.in/magazine/offtrack/story/20060522-bangalore-lab-where-criminals-of-india-cough-up-the-truth-783015-2006-05-22, visited on 19 April 2018.


  2. Rakesh Prakash, ‘Dr Narco and Ms Hide’, Bangalore Mirror, 28 February 2009, http://bangaloremirror.indiatimes.com/opinion/sunday-read/dr-narco-and-ms-hide/articleshow/22204505.cms, visited on 19 April 2018.

  3. Arun Ferreira, ‘My Tryst with Narco-Analysis’, https://www.countercurrents.org/Narco_Experiences_1_.pdf, visited on 19 April 2018.

  4. ‘To detect lies, FSL doctors truth’, Bangalore Mirror, 26 June 2008, http://bangaloremirror.indiatimes.com/bangalore/cover-story/to-detect-lies-fsl-doctors-truth/articleshow/22463752.cms, visited on 19 April 2018.

  5. Ibid.

  6. Arun Ferreira, Colours of the Cage (New Delhi: Aleph Book Company 2014). Arun Ferreira was re-arrested in August 2018, and was under house arrest at the time that this book was sent to the publisher.

  7. See, infra, Section II.

  8. S. 93, Code of Criminal Procedure.

  9. S. 53, ibid.

  10. See, e.g., the concept of ‘pre-cogs’ in the novels of Philip K. Dick.

  11. Feldman v. United States, 322 U.S. 487, 490 (1944).

  12. See Andrew Ashworth QC, The Hamlyn Lectures: Human Rights, Serious Crime and Criminal Procedure 12–13 (London: Sweet & Maxwell 2002).

  13. Rochin v. California, 342 U.S. 165 (1952).

  14. Herbert Packer, ‘Two Models of the Criminal Process’ (1964) 113 University of Pennsylvania Law Review 1; Mirjan R. Damaska, ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study’ (1972–73) (121) University of Pennsylvania Law Review 121. For a more updated version, see Erik Luna, ‘The Models of Criminal Procedure’ (1999) 2(2) Buffalo Criminal Law Review 389. Scholars have also proposed models that take into account a greater number of values than just accuracy and concern for rights. See, e.g., Ashworth, The Hamlyn Lectures, supra. Other scholars have rejected this framework altogether. See, e.g., John Griffiths, ‘Ideology in Criminal Procedure or a Third “Model” of the Criminal Process’, (1970) 79(3) The Yale Law Journal 359. For a nuanced application of this approach to Indian law (while also differing from), see Aparna Chandra and Mrinal Satish, ‘Criminal Law and the Constitution’ in The Oxford Handbook of the Indian Constitution, 794 (Sujit Chaudhry et al. eds., New Delhi: Oxford University Press 2016).