Musings on the Constitution-XLVII Narasimhan Vijayaraghavan

Musings on the Constitution-XLVII
Narasimhan Vijayaraghavan

Then the issue of substance arose as to – Whether substantive due process could be read into ‘procedure established by law’ as mandated in Art.21. That is where the Debates had a ‘telling say’ as M K Nambiar said on a later day. The phraseology chosen by our framers was ‘procedure established by law’ (borrowing from Art.31 of the Japanese Constitution) and not the substantive ‘due process of law’ clause (as in the US Constitution0. Remember that B N Rau’s meeting with Justice Felix Frankfurter clinched it in favour of the Japanese version as Felixfurter opined that “due process clause was too malleable and dicey affording too much leeway for judiciary to knock the other two branches in any fight’.

M K Nambiar was not going down without a fight as he sought to draw the attention of the Judges to the Debates in the Constituent Assembly by individual members, who espoused the cause that the ‘due process clause’ as interpreted by the Supreme Court of United States was not alien to the perception and understanding of the members in the Debates. The judges were unwilling to buy this. They refused to bite the ‘Debates’ as having a bearing on their appreciation or understanding of the provision. The Debates were an ‘extrinsic’ tool. The provision alone was before them. What the individual members felt or understood or observed in the course of the framing of the provision cannot ‘control’ the provision. But, MKN had done well enough to put the Judges on notice that the Debates were there and they ‘may’ play a part in the interpretation of the Constitution, if not in this cause, at least in the future. Exactly what happened and MKN and Justice Fazal Ali, in dissent have prevailed, when R C Cooper (Bank nationalisation case) and Maneka Gandhi (Impounding of passport case) breathed substantive ‘due process of law’ as debated by the members of the Constituent Assembly into Art.21’s ‘procedure established by law’. The Debates came to the fore, but only much later.

Chief Justice M H Kania, echoing the majority, wrote:
“Our attention was drawn to the debates and report of the drafting committee of the Constituent Assembly in respect of the wording of this clause. The report may be read not to control the meaning of the article, but may be seen in case of ambiguity….. The result appears to be that while it is not proper to take into consideration the indi- vidual opinions of Members of Parliament or Convention to construe the meaning of the particular clause, when a ques- tion is raised whether a certain phrase or expression was up for consideration at all or not, a reference to the debates may be’ permitted. In the present case the debates were referred to to show that the expression “due process of law” was known to exist in the American Constitution (1) (1904) 1 Com. L.R. 208. (2) (169) U.S 649 at 699.and after a discussion was not adopted by the Constituent Assembly in our Constitution. In Administrator General of Bengal v. Premlal Mullick(1), a reference to the proceedings of the Legislature which resulted in the passing of the Act was not considered legitimate aid in the construction of a particular section. The same reasons were held as cogent for excluding a reference to such debates in construing an Indian Statute. Resort may be had to these sources with- great caution and only when latent ambiguities are to be resolved. See Craies’ Statute Law (4th Edition) page 122, Maxwell on Interpretation of Statutes (9th Edition)pp. 28- 29 and Crawford on Statutory Construction (1940 Edition) p. 379, article 214. A perusal of the report of the drafting committee to which our attention was drawn shows clearly that the Constituent Assembly had before it the American article and the expression “due process of law” but they deliberately dropped the use of that expression from our Constitution.

No extrinsic aid is needed to interpret the words of article 21, which in my opinion, are not ambiguous.Normally read, and without thinking of other Constitutions, the expression “procedure established by law” must mean procedure prescribed by the law of the State. If the Indian Constitution wanted to preserve to every person the protection given by the due process clause of the Ameri- can Constitution there was nothing to prevent the Assembly from adopting the phrase, or if they wanted to limit the same to procedure only, to adopt that expression with only the word “procedural” prefixed to “law.” However, the correct question is what is the right given by article 21 ? The only right is that no person shall be deprived of his life or liberty except according to procedure established by law. One may like that right to cover a larger area, but to give such a right is not the function of the Court; it is the function of the Constitution.”

MK Nambiar failed to convince the majority that ‘extrinsic aid’ vide the Debates in the Constituent Assembly of even individual members mattered .The majority was not persuaded, as they felt that the ‘provision’ as enacted by the Assembly may suffice. Typically, AK Gopalan was an easy case to handle. It almost fell into the classic golden rule of interpretation. For the Constituent Assembly had ‘debated’ the substantive ‘due process of law’ lineage, yet it chose to ‘discard it by choice’. That is how the refrain ran. More importantly, the Constitution had just been adopted. It had taken all of three years for the Constituent Assembly to debate ,delineate, discuss and decide, amidst the grant of Independence and the mayhem of Partition.

“The Debates in the Assembly were fresh in the minds of the Judges. Therefore they needed no ‘extrinsic aid’, more so as they felt that the plain words meant what they meant in Art.21,” said V R Krishna Iyer. But that a reference was allowed to be made to the Debates was itself a victory of sorts. Though it took a lot longer for the robed brethren on the pulpit to really tuck into the debating skills and the fare from the framers in the Constituent Assembly, as a valuable tool and aid for interpreting the Constitution.

Primarily, in the interpretation of the Constitution ‘the relevance of Debates came to be mentioned .more in passing’ as academicians wondered. But, the disappointment was that the 5 judges in majority chose to read Arts.19,21 and 22, independent and exclusive of each other. In the debates, several members had voiced concern that ‘right to life and liberty was too paramount to be left to the whims of the judges”, as Hari Vishnu Kamath said. He wanted the Assembly to factor in a combined reading of the ‘golden triangle’ as Arts.19, 21 and 22 have come to be known. That was not to be.

Wizards of the Constitution uniformly pay huge tribute to M K Nambiar for his ‘expansive’ vision of Art.21 and Justice Fazal Ali’s receptivity to it .It was their twin effort that ultimately paved the way for today, where we are, as the speeches of the individual members in the Constituent Assembly as K T Shah, H V Kamath, K M Munshi echoed. The Doctrine of Exclusion not to take the aid of ‘extrinsic’ tools was losing its grip over the judicial firmament.
(Author is practising advocate in the Madras High Court)