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Report No. 177

In Bolling v. Sharpe, Warren, C.J. speaking for the U.S. Supreme Court observed:

Although the court has not assumed to define 'liberty' with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective."

These words, though spoken in the context of the US Bill of Rights, have yet been relied upon in various decisions of the Supreme Court of India.

In Maneka Gandhi v. UOI, a Constitution Bench of the Supreme Court went into the meaning of the expression "procedure established by law" in Article 21. The Court held that the procedure established by law does not mean any procedure but a procedure which is reasonable, just and fair. In fact Article 19 and Article 14 were both read into Article 21 for this purpose. The following dicta from the said decision bears reproduction:

"the law must therefore now be taken to be well-settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of 'personal liberty' and there is consequently no infringement of the fundamental right conferred by Article 21, such law, insofar as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that Article Now, if a law depriving a person of 'personal liberty' and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex-hypothesi it must also be liable to be tested with reference to Article 14.

There can be no doubt that it (Article 14) is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.

The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or nonarbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied."

(emphasis added)

Several jurists have opined, not without justification, that the effect of Maneka Gandhi is to practically import the concept of 'due process of law' from the American Constitution into our jurisprudence. Be that as it may, the fact remains that the procedure established by law which affects the liberty of a citizen must be right, just and fair and should not be arbitrary, fanciful or oppressive and that a procedure which does not satisfy the said test would be violative of Article 21. We have to examine the relevant provisions in the Criminal Procedure Code, 1973 (relating to arrest) from the above standpoint.

The concept of 'human rights' is not of recent origin. The expression was first employed in the Declaration of United Nations signed by the Allied Powers on January 1, 1942. The concept owes its origin, in western thought, to the Bill of Rights, 1689 which declared for the first time that "excessive bail ought not to be required nor excessive fine imposed, nor cruel and unusual punishment inflicted". The French Declaration on the Rights of Man and the Citizen also spoke of "freedom from arrest except in conformity with the law", in addition to "liberty, property, security and resistance to oppression" which were declared to be the natural and inalienable rights of man.

The first ten amendments to U.S. Constitution effected in 1791, speak of all the above concepts and more. The Declaration of United nations dated January 1, 1942 stated, inter alia, "complete victory over their enemies is essential to defend life, liberty, independence and religious freedom and to preserve human rights and justice in their own lands as well as in other lands". The several articles of the UN Charter speak of respect for human rights and fundamental freedoms for all without distinction as to race, sex or religion.

The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948 declared that no one shall be subject to arbitrary arrest, detention or exile (Article 9). Article 12 provided that the privacy, reputation and honour of every individual shall be protected by the State. Article 9(1) of the International Covenant on Civil and Political Rights 1966 declares, inter alia, that "every one has the right to liberty and security of person (and that) no one shall be subject to arbitrary arrest or detention".

Clause (3) of Article 9 declares further that "any one arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that the persons awaiting trial shall be detained in custody but release may be subject to guarantees to appear for trial at any stage of the judicial proceedings and, should occasion arise, for execution of the judgment".

Article 10(1) of the Covenant declares that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person". Article 17 says that the privacy, honour and reputation of an individual shall not be interfered with unlawfully. Article 2(2) of the Covenant creates an obligation upon the ratifying States to enact domestic legislation to give effect to the rights guaranteed by the Covenant. Article 3 creates a further obligation upon such States to ensure that the rights guaranteed by the Covenant are made available to all their citizens.

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