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Liberty After Freedom: A History of Article 21, Due Process and the Constitution of India
Liberty After Freedom explores the origins of what is today considered the most important fundamental right in the Indian Constitution - the right to life and personal liberty guaranteed by Article 21. This is the article which in recent years made the right to privacy as well as the decriminalization of homosexuality possible. Without a doubt, Article 21 has had the most outsized influence on the progressive development of rights in India.
But the story of how this important right was birthed is deeply controversial and its passage in the Constituent Assembly divided opinion like no other feature of the Constitution. Liberty After Freedom explores the intellectual beginnings of this paramount fundamental right in an attempt to decode and unravel the controversies which raged at the time the Constitution was being crafted.
Written in lucid prose and drawing extensively on the Constituent Assembly debates as well as a wide array of scholarly literature, it questions long-held beliefs and sheds new and important light on the fraught history of due process and Article 21. It is an indispensable book for the legal community and for everyone interested in the genesis of the Constitution.
But the story of how this important right was birthed is deeply controversial and its passage in the Constituent Assembly divided opinion like no other feature of the Constitution. Liberty After Freedom explores the intellectual beginnings of this paramount fundamental right in an attempt to decode and unravel the controversies which raged at the time the Constitution was being crafted.
Written in lucid prose and drawing extensively on the Constituent Assembly debates as well as a wide array of scholarly literature, it questions long-held beliefs and sheds new and important light on the fraught history of due process and Article 21. It is an indispensable book for the legal community and for everyone interested in the genesis of the Constitution.
- GenresLaw
312 pages, Hardcover
First published February 10, 2022
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Displaying 1 - 4 of 4 reviews
August 23, 2022
An exhaustive dive into the history of the making of Draft Article 15 of the Indian Constitution, presently Article 21: the heart of liberty and due process. 'Liberty After Freedom' is an excellent title that summarises what happened– there was no liberty guaranteed before freedom, and arguably after the Constitution kicked in either.
[A note in fairness to the reader: this review won't make sense without a basic understanding of Article 21. My reviews are really notes to remember the core arguments in the book!]
Two thirds of the book delves into the tiniest facts/details of the Drafting and Advisory Committees on fundamental rights. To the best of the author's ability, he has extracted the position of each member, the internal contradictions, the volte face of some members and everything germane to the creation of the right to life. The last chapters are on how we address the originalism question and what was eventually the fate of Art. 21.
From Sir BN Rau's suggestion for due process in his draft to the Constituent Assembly actually passing that version, the initial days for the right to life seemed bright– due process (procedural and substantial) was going to be a sure shot addition to the Constitution. But suddenly, even after the Constituent Assembly agreed on the words 'due process', the Drafting Committee thought it fit to alter the wording of 'due process' to 'procedure established by law' and of 'liberty' to 'personal liberty' with a footnote clarifying that this was required for specificity. The fears of the Lochner Era in the US and worries about substantive due process coming in the way of social reforms led to eschewing of 'due process' and the zamindari reforms necessitated lesser protections to property, hence liberty was prefaced with the word 'personal' to avoid giving due process too wide a field of operations.
These amendments were done even after the members were well-cognisant of the weak protection 'procedure established by law' offered (as seen through the Irish Constitution example) and the fact that similar wording in the Japanese Constitution was accompanied by independent articles enumerating the due process guarantees, which were missing here. The Assembly went on to vote for this change, but the criticism eventually led to Draft Article 15A, now Article 22, which offered due process guarantees (without using that term), but only those that were already found in CrPC while at the same time sanctifying preventive detention up to 3 months. The argument is that the inclusion of Article 22 itself indicates that Article 21 offered no real protection: a law duly passed by Parliament was enough to deprive your right to life.
The excerpts of debates brought out by the author are excellent. I especially enjoyed the debates where an estoppel was implied in Draft Article 15 (now Article 21) since Draft Article 13 (now Art. 19) with its 'reasonable restrictions' implied due process. Equally, how the introduction of Article 22 implied the emptiness of the promises of Article 21– the Assembly floor was witness to all the ills that plagued Article 21.
This history really brings to life the considerations that went behind the making of Article 21– or really, the lack of consideration for converting due process to procedure established by law. Or perhaps considerations outside what was being stated. But either way, by way of a footnote, the Drafting Committee took great liberty in taking away guaranteed protection to our liberties. The author astonishingly notes how quick, under-thought this change was and of how opportunities to include due process even later were lost. And paramountly, how it was that the Constitution as adopted offered no real protection against the deprivation of liberty. And more so, of how ironic it was that despite prefacing liberty with 'personal', it was 'property rights' under Draft Article 13 that had greater protection due to the 'reasonable restrictions' wording of Draft Article 13 than 'liberty' itself!
The Supreme Court in AK Gopalan went with a textual reading and in view of the history of Amendments passed by the Assembly, held that due process wasn't part of Article 21. This changed with the judgment in Maneka Gandhi where the 'Golden Triangle' of 14-19-21 effectively laid to rest any concerns that due process wasn't a part of Article 21.
Through an excellent discussion of 'Original Meanings' (a reference to the excellent work of Jack N Rakove on the subject), the author's view is that Article 21 has no original meaning. The Court in AK Gopalan privileged the Drafting Committee's Report over Assembly debate themselves, and taking a cue from this, the author holds that given the haphazard drafting process and the absence of many members from the decision making process, it is difficult to say that the original intention of Article 21 was to avoid 'due process'. I am personally not entirely convinced by the author's reasoning on whether original intent could be read so– after all, all changes made by the Drafting Committee were put up for debate on the floor of the Assembly and due process was consciously voted out. While the argument on the drafting of the article itself are valid, once the Assembly has consciously voted by majority, it is difficult to argue original meaning otherwise. It is perhaps this reason why the Supreme Court eventually did not concern itself with delving into the merits or demerits of the drafting process itself and interpreted Article 21 expansively de hors this history.
[A note in fairness to the reader: this review won't make sense without a basic understanding of Article 21. My reviews are really notes to remember the core arguments in the book!]
Two thirds of the book delves into the tiniest facts/details of the Drafting and Advisory Committees on fundamental rights. To the best of the author's ability, he has extracted the position of each member, the internal contradictions, the volte face of some members and everything germane to the creation of the right to life. The last chapters are on how we address the originalism question and what was eventually the fate of Art. 21.
From Sir BN Rau's suggestion for due process in his draft to the Constituent Assembly actually passing that version, the initial days for the right to life seemed bright– due process (procedural and substantial) was going to be a sure shot addition to the Constitution. But suddenly, even after the Constituent Assembly agreed on the words 'due process', the Drafting Committee thought it fit to alter the wording of 'due process' to 'procedure established by law' and of 'liberty' to 'personal liberty' with a footnote clarifying that this was required for specificity. The fears of the Lochner Era in the US and worries about substantive due process coming in the way of social reforms led to eschewing of 'due process' and the zamindari reforms necessitated lesser protections to property, hence liberty was prefaced with the word 'personal' to avoid giving due process too wide a field of operations.
These amendments were done even after the members were well-cognisant of the weak protection 'procedure established by law' offered (as seen through the Irish Constitution example) and the fact that similar wording in the Japanese Constitution was accompanied by independent articles enumerating the due process guarantees, which were missing here. The Assembly went on to vote for this change, but the criticism eventually led to Draft Article 15A, now Article 22, which offered due process guarantees (without using that term), but only those that were already found in CrPC while at the same time sanctifying preventive detention up to 3 months. The argument is that the inclusion of Article 22 itself indicates that Article 21 offered no real protection: a law duly passed by Parliament was enough to deprive your right to life.
The excerpts of debates brought out by the author are excellent. I especially enjoyed the debates where an estoppel was implied in Draft Article 15 (now Article 21) since Draft Article 13 (now Art. 19) with its 'reasonable restrictions' implied due process. Equally, how the introduction of Article 22 implied the emptiness of the promises of Article 21– the Assembly floor was witness to all the ills that plagued Article 21.
This history really brings to life the considerations that went behind the making of Article 21– or really, the lack of consideration for converting due process to procedure established by law. Or perhaps considerations outside what was being stated. But either way, by way of a footnote, the Drafting Committee took great liberty in taking away guaranteed protection to our liberties. The author astonishingly notes how quick, under-thought this change was and of how opportunities to include due process even later were lost. And paramountly, how it was that the Constitution as adopted offered no real protection against the deprivation of liberty. And more so, of how ironic it was that despite prefacing liberty with 'personal', it was 'property rights' under Draft Article 13 that had greater protection due to the 'reasonable restrictions' wording of Draft Article 13 than 'liberty' itself!
The Supreme Court in AK Gopalan went with a textual reading and in view of the history of Amendments passed by the Assembly, held that due process wasn't part of Article 21. This changed with the judgment in Maneka Gandhi where the 'Golden Triangle' of 14-19-21 effectively laid to rest any concerns that due process wasn't a part of Article 21.
Through an excellent discussion of 'Original Meanings' (a reference to the excellent work of Jack N Rakove on the subject), the author's view is that Article 21 has no original meaning. The Court in AK Gopalan privileged the Drafting Committee's Report over Assembly debate themselves, and taking a cue from this, the author holds that given the haphazard drafting process and the absence of many members from the decision making process, it is difficult to say that the original intention of Article 21 was to avoid 'due process'. I am personally not entirely convinced by the author's reasoning on whether original intent could be read so– after all, all changes made by the Drafting Committee were put up for debate on the floor of the Assembly and due process was consciously voted out. While the argument on the drafting of the article itself are valid, once the Assembly has consciously voted by majority, it is difficult to argue original meaning otherwise. It is perhaps this reason why the Supreme Court eventually did not concern itself with delving into the merits or demerits of the drafting process itself and interpreted Article 21 expansively de hors this history.
This entire review has been hidden because of spoilers.
May 26, 2022
800 years ago, Britain. Monarchy is flourishing, and yet (some) members of the society demand, and are granted, some rights to have their lives subjected not to the whims and fancies of the Monarch, but to certain laws upholding the dignity of their lives. A century later, the reach of these laws protecting dignity of life extends a little bit more.
These events would go on to influence history of Britain, America, India, as well as that of the human society at large.
1947, India. The newly independent country has now "stepped out of the old into the new, into a moment that comes but rarely" with a momentous task of giving itself a future - creating the Constitution of India.
What exactly is "due process of law"? Who where all the people tasked with this humongous responsibility? Who all wrote the Constitution? How? Who collated, amended and ratified the draft? What were the debates, arguments, and perspectives that moulded the Constitution from its draft form to its final form as the longest Constitution in the world, and which would turn out to be the keystone of life, civilization, rights, peace, harmony, and progress in India? How did the Judiciary, Executive, and Legislature reconcile their roles and responsibilities to live up to its ideals?
The book mines all these answers from the Constituent Assembly Debates to construct a very engaging narrative that, in answering the question "what is due process," illuminates the time, people, and thought processes that went into making the Constitution.
The fifth star got shrouded here by a nagging unease - probably either irrational or intuitive - with the narration at times. An interesting and informative read nonetheless.
These events would go on to influence history of Britain, America, India, as well as that of the human society at large.
1947, India. The newly independent country has now "stepped out of the old into the new, into a moment that comes but rarely" with a momentous task of giving itself a future - creating the Constitution of India.
What exactly is "due process of law"? Who where all the people tasked with this humongous responsibility? Who all wrote the Constitution? How? Who collated, amended and ratified the draft? What were the debates, arguments, and perspectives that moulded the Constitution from its draft form to its final form as the longest Constitution in the world, and which would turn out to be the keystone of life, civilization, rights, peace, harmony, and progress in India? How did the Judiciary, Executive, and Legislature reconcile their roles and responsibilities to live up to its ideals?
The book mines all these answers from the Constituent Assembly Debates to construct a very engaging narrative that, in answering the question "what is due process," illuminates the time, people, and thought processes that went into making the Constitution.
The fifth star got shrouded here by a nagging unease - probably either irrational or intuitive - with the narration at times. An interesting and informative read nonetheless.
June 1, 2022
As India was journeying into a new era after the colonial rule, the leaders of the day were tasked with an important task-the task to draft a constitution of the country which would act as a foundation of the times to come. In this book, Rohan explores the history and the development of one of the most crucial rights accorded to us by the Constitution of India-The right to Life and Personal Liberty under Article 21. The author goes on to explore the events that took place in the years the constitution was adopted, and goes into the nitty gritty of the idea of Due Process that was initially envisaged to be a part of this right. I liked how Rohan uses the debates of the Constituent Assembly and the Drafting Committee so as to make the reader understand why and how things took place. He compares and contrasts the guiding documents that the framers of the constitution referred and how it affected their understanding of the concepts and why they framed the document the way they eventually did.
The book is replete with examples from the debates, direct quotes and references. As expected, this is excellently researched and provides a unique insight into the workings of the Constituent Assembly. Rohan starts from the baby steps of the constitution in 1946 and comes right till the present to show how the concepts have evolved. The book might seem to be a heavy read for people who are not very much into the concept of polity, but for anyone who is interested in reading about the history of how our rights came into being, this would be a wonderful journey.
Definitely recommended for anyone looking to explore and know about the history of Article 21 and the Indian Polity.
The book is replete with examples from the debates, direct quotes and references. As expected, this is excellently researched and provides a unique insight into the workings of the Constituent Assembly. Rohan starts from the baby steps of the constitution in 1946 and comes right till the present to show how the concepts have evolved. The book might seem to be a heavy read for people who are not very much into the concept of polity, but for anyone who is interested in reading about the history of how our rights came into being, this would be a wonderful journey.
Definitely recommended for anyone looking to explore and know about the history of Article 21 and the Indian Polity.
August 20, 2024
Not very exhaustive but an engaging read. Strangely, for a book about the journey of due process into the constitution(mostly exit), it only spends about two pages on Maneka Gandhi's passport case. :|
Displaying 1 - 4 of 4 reviews