- Maneka Gandhi v. Union of India (1978)-Beginning of a golden era of human rights jurisprudence in India.
- Article 21 and the Due Process of Law.
- Gopalan Vs State of Madras ; Satwant Singh and his Passport.
- Maneka Gandhi’s Passport, Surya and a Scandal.
- Breathing Life into Article 21
- Small Case, Large Judgement.
- Satwant Singh vis-a-vis Maneka Gandhi and the Due Process of Law.
- The importance of going Abroad.
- The Lasting Impact of Maneka Gandhi – The Inflextion Point
THE DECISION OF the Supreme Court of India in Maneka Gandhi v. Union of India1 (Maneka Gandhi) was an ‘inflexion point’ in the court’s movement towards a broader interpretation of the fundamental rights guaranteed by the Constitution.
The circumstances that set the stage for the Maneka Gandhi judgement in 1978 are important. The national Emergency, which was declared by President Fakhruddin Ali Ahmed in 1975 and was characterized by strict censorship and detention of political prisoners, had recently ended.
In 1976, in the case of ADM Jabalpur v. Shivkant Shukla (ADM Jabalpur), the Supreme Court had unhappily held that a detenu could not file a habeas corpus petition challenging the legality of his detention during an emergency.
A large segment of citizens had lost faith in the judiciary. India’s democratic structure had faced an onslaught, as the Indira Gandhi-led Congress government (ousted in 1977) had passed a deluge of revolutionary constitutional amendments which severely impinged on a person’s fundamental rights.
There was an air of disillusionment among the people, who felt betrayed by their elected representatives and abandoned by the highest court of the land. With its decision in Maneka Gandhi, the Supreme Court attempted to restore the citizens’ faith in the judiciary.
It went beyond its immediate mandate to make some striking assertions, which went on to become the bedrock of the protection of human rights of the aam aadmi in the years that followed. The case marked the beginning of a golden era of human rights jurisprudence in India—a period in which the Supreme Court transformed itself into an ‘institutional ombudsman of human rights’.
The impact of the Maneka Gandhi case can be seen in the backdrop of constitutional provisions, which the Supreme Court was called upon to interpret on several occasions until its decision in Maneka Gandhi in 1978.
Part III of the Constitution of India, dealing with fundamental rights, is arguably its most significant component, for two reasons:
(1) Any law that abridges or takes away the rights conferred under Part III is void,and
(2) Every person is entitled to approach the Supreme Court directly to enforce his/her fundamental rights under Part III.
Amongst the fundamental rights, Articles 14, 19 and 21 of the Constitution—composing the ‘golden triangle’—have been invoked most often to declare legislation or arbitrary state action invalid.
Article 14 categorically sets out that the state cannot deny to any person equality before the law or the equal protection of laws in India. Article 19 grants the following six freedoms to all citizens of India (subject to certain restrictions):
(1) The freedom of speech and expression,
(2) The freedom to assemble peaceably and without arms,
(3) The freedom to form associations or unions,
(4) The freedom to move freely throughout the territory of India,
(5) The freedom to reside and settle in any part of the territory of India, and
(6) The freedom to practise any profession, or to carry on any occupation, trade or business.
The right to life and personal liberty under Article 21 reads: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’
The phrase ‘procedure established by law’ was the subject of profound debate in the Constituent Assembly at the time of the formulation of the Indian Constitution—would the deprivation of a citizen’s life or personal liberty be undertaken under ‘procedure established by law’ or under ‘due process of law’?
Eventually, the Constituent Assembly retained the expression ‘procedure established by law’ as a part of Article 21. Our founding fathers intended for courts to examine only the procedural adequacy of laws under Article 21.
In other words, courts were not allowed to question any law—no matter how arbitrary or oppressive—as violating the right to life or personal liberty if the law had been suitably passed and enacted. Indeed, most members of the Constituent Assembly believed that only the electorate should wield the power of substantive appraisal of legislation.
In 1950, for the first time, the Supreme Court was asked to interpret fundamental rights under the Constitution in A.K. Gopalan v. State of Madras.
The petitioner, a social and political worker (who later became the first leader of the Opposition in Parliament), filed a habeas corpus petition seeking his release from detention under the Preventive Detention Act, 1950.
He claimed that the said act violated Articles 13,16 19,17 21 and 22 of the Constitution and therefore the Madras government’s order of preventive detention was illegal. The petitioner said that each of the cited fundamental rights were to be read collectively, in tandem.
The Supreme Court disagreed, holding that the fundamental rights dealt with distinct matters and should be considered in isolation.
What this implied was that when a law meets the requirements of the fundamental right applying to it, it cannot be said that the law is against any other fundamental right.
In Gopalan, the court held that since the conditions set out in Article 22 (which encompasses the safeguards against preventive detention) had been satisfied, the petitioner was not entitled to challenge his detention under any other fundamental right, such as the right to life and personal liberty under Article 21.
The court also refused to acknowledge any similarity between the American ‘due process clause’ and the expression ‘procedure established by law’ found in Article 21; in fact, it specifically pointed out marked differences between the two.
In Gopalan, the majority opinion was based on what it perceived as the original and historical intent of the Constitution.
Sathe has described the court’s stand in Gopalan as ‘extremely positivist’ and one that ‘gave finality to the law enacted by the legislature’.
People ascribe the decision in Gopalan to the pressures on the Supreme Court at the time. The Constitution had been adopted very recently by the Constituent Assembly (which was still acting as the interim Parliament at the time the Gopalan decision was delivered), and therefore the judges would have been wary of disturbing the Assembly’s understanding of the Constitution.
The constitutional history of the due process clause and its express rejection would have weighed heavily on their minds.The Maneka Gandhi case concerned the fundamental right of an Indian citizen to travel abroad.
It was not the first judgement on the subject; there was a conflict of opinion among different high courts in the country on whether the right to travel abroad formed a part of the right to personal liberty under Article 21.
This conflict was resolved by the Supreme Court in Satwant Singh v. Assistant Passport Officer, Government of India. In Satwant Singh, the petitioner was a manufacturer, importer and exporter of automobile parts and engineering goods. His business involved regular overseas travel. The external affairs ministry asked him to surrender his passports on the ground that he was likely to leave India to avoid a trial he was expected to face, for offences under laws governing imports and exports.
He moved the Supreme Court, contending that the state’s actions violated his fundamental rights under Articles 14 and 21.The Supreme Court concluded that the expression ‘liberty’ under Article 21 had a wide import and excluded only what was otherwise expressly protected under Article 19.
The majority on the bench followed the decision in Gopalan by treating the fundamental rights under Articles 14, 19 and 21 as distinct from one another. The court recognized that the right to life and personal liberty could be taken away by a ‘procedure established by law’.
However, it cancelled the government’s order to the petitioner to surrender his passports. Its judgement was founded on the limited ground of the failure to provide for any procedure regulating the denial/surrender of passports under the Indian Passport Act, 1920 (the law governing passports at the time).
The court’s objection was based on the absence of a procedure rather than the merits of an existing system. Soon after the Satwant Singh judgement, the Parliament enacted the Passports Act, 1967 (the Passports Act) to regulate how passports would be issued, refused, impounded and/or revoked—matters on which comprehensive legislation did not exist earlier.
The Impounding of Maneka Gandhi’s Passport The Maneka Gandhi case arose in the period immediately following the end of the national Emergency in India, with the Janata Party government assuming power in 1977.
Maneka Gandhi, daughter-in-law of former Prime Minister Indira Gandhi and founder-editor of a political magazine Surya, was issued a passport in 1976 under the Passports Act. Soon after the Congress Party was ousted by the Janata Party, she began using Surya as a political platform to restore the image of the Congress Party and discredit leaders of the new government. (The most notable instance of this was when Surya carried photographs showing the son of then defence minister Jagjivan Ram engaging in sexual intercourse with a student of Delhi University.)
In 1977, around the time she wished to leave India to fulfil a speaking engagement, Maneka Gandhi received a letter stating that the Government of India had decided to impound her passport ‘in public interest’ under Section 10(3)(c)28 of the Passports Act.
The government turned down her request seeking the reasons why the order had been passed, stating that it was not ‘in the interest of the general public’. In reaction, she filed a writ petition in the Supreme Court challenging the passport impounding order of the Government of India and its subsequent refusal to provide reasons for the same.
Before discussing the Supreme Court’s decision in Maneka Gandhi, it is important to note that the rigid approach adopted by the Supreme Court in Gopalan—holding that:
(1) Each fundamental right is distinct and must be read in isolation, and
(2) The expression ‘personal liberty’ under Article 21 excludes those freedoms that are categorically provided for in Article 19—had been significantly diluted in two cases decided by the Supreme Court in the pre-Emergency era.
These cases were extensively cited in the judgement of the Supreme Court in Maneka Gandhi.
In Maneka Gandhi, the Supreme Court departed from the straitjacketed interpretation of fundamental rights in Gopalan and held that the fundamental rights form an integrated scheme under the Constitution.
The court stated:
Articles dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial justice . . . Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial.
Emphasizing the need to read Part III of the Constitution in a holistic manner, the Supreme Court said that the mere fact that a law satisfied the requirements of one fundamental right did not exempt it from the operation of other fundamental rights.
What this means is that even if a law were ostensibly associated with a particular fundamental right and complied with its requirements, it would also have to satisfy the requirements of other fundamental rights.
The majority on the seven-judge bench stated that any procedure established by law under Article 21 would have to be ‘fair, just and reasonable’ and could not be ‘fanciful, oppressive or arbitrary’.
If this standard were applied, the government’s impounding order—passed without providing a hearing nor furnishing any reasons to Maneka Gandhi—failed to satisfy the mandate of Article 21. The court affirmed the decision in Satwant Singh and held that the right to travel abroad fell within the sweep of the right to personal liberty under Article 21.
The court also found that the government order was arbitrary and violated the right to equality under Article 14. In spite of its emphatic observations, the court did not pass any ‘formal order’ in the case and accepted the government’s assurance that Maneka Gandhi would get an adequate opportunity to be heard.
The majority upheld the impounding of Maneka Gandhi’s passport and held that her passport should remain in the court’s custody in the meantime. Justice Beg, who was otherwise part of the majority, did opine that the government order was ‘neither fair nor procedurally proper’ and deserved to be quashed by the court.
The Supreme Court’s judgement in Maneka Gandhi has been widely critiqued as one that went out of bounds with reference to the facts before the court. The matter concerned, on the face of it, the impounding of an individual’s passport.
The Attorney-General had undertaken that Maneka Gandhi would be provided a post-decisional hearing. Moreover, even if the government decided to stand by its impounding order after hearing Maneka Gandhi, it had conceded that the period of impounding would not exceed six months from the date of its fresh order.
Instead of deciding the case on this finite ground, the court chose to consider several peripheral issues—yes, these issues were pivotal to India’s governance, but peripheral to the case—in judgements that together added up to over 70,000 words.
In his candid style, constitutional scholar Arvind Datar said:
‘[t]here was really no need to write pages after pages on Articles 14, 19, 21 and so on.
Indeed, why did the Supreme Court say more than what needed to be said?
The immediate cause of the court’s expansive, rights-based approach in Maneka Gandhi was the criticism it faced for its decision during the Emergency in ADM Jabalpur. In fact, Maneka Gandhi was followed by a series of actions undertaken by the court and its judges to distance themselves from ADM Jabalpur—this was akin to an acknowledgement that it had ‘violated the fundamental rights of a large number of people’ thirty-four years after the case was decided.
And, yet, though the Supreme Court embarked on an inquiry not necessitated by the facts before it in Maneka Gandhi, when we look at it from a result-oriented approach, the court’s interpretation of Articles 14, 19 and 21 played a hugely beneficial role in shaping India’s constitutional policy.
Does a law that satisfies all procedural requirements in its enactment, however arbitrary or unreasonable, meet the test of Article 21?
This is the question that the Supreme Court sought to answer in Maneka Gandhi. By vesting in itself the power of substantive review under Article 21, the court transformed itself from being merely a supervisor, to being a watchdog of the Constitution.This is the seminal importance of the Maneka Gandhi decision.
The key difference between Satwant Singh and Maneka Gandhi was that, in the former, the court objected to the restraint on travelling abroad because of the absence of a law, but it did so in the latter despite the existence of a law. The court’s judgement in Maneka Gandhi is based on the simple premise that an arbitrary law is no law.
Although the makers of the Constitution rejected the American due process clause, the Supreme Court’s judgement in Maneka Gandhi effectively meant that ‘procedure established by law’ under Article 21 would have the same effect as the expression ‘due process of law’.
In a subsequent decision,the Supreme Court stated that Article 21, interpreted according to Maneka Gandhi, would read as:
‘No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law’.
Maneka Gandhi is a reflection of dynamic constitutional interpretation. It signifies the court’s changing approach towards the Constitution. In the decades that followed, it was treated as an organic document whose interpretation must evolve with the times. Substantive due process and, more broadly stated, the court’s power to review the content of legislation to ascertain if the mandate of Article 21 had been met, eventually found its way to India more than twenty-eight years after the founding fathers of our Constitution abandoned it.
Some would wonder why there was so much excitement over a verdict that essentially recognized the right of a member of India’s most influential political family to go abroad.
It is the constitutional developments after Maneka Gandhi that highlight how it was one of the cases that truly changed India. For most jurists, it was a turning point in the Supreme Court’s interpretation of Article 21. The court moved from a pedantic to a purposive approach in construing the sweep of the right to life under the Constitution. The judgement became a springboard for the evolution of the law relating to judicial preservation of human rights.
The most striking aspect of the Supreme Court’s introduction of substantive due process was that it empowered courts to expand the limited phraseology of the right to life under the Constitution, to include a wide range of un-enumerated rights.
Derived from Article 21, these rights cover areas such as the rights of prisoners, protection of women and children, and environmental rights. Since Maneka Gandhi, courts have included the following rights within the embrace of the right to life and personal liberty under Article 21:
1. Rights of Prisoners including protection from handcuffing without adequate reasons, access to a transcript of the judgement and facilities to exercise his right to appeal against his conviction, the right to treatment with dignity and humanity, the right of an undertrial to be released from custody if the police fail to file a chargesheet within the period prescribed by law, protection from custodial violence and protection against public hanging.
2. Environmental Rights including the right to a humane and healthy environment, the right to sustainable development, protection from pollution hazards due to use of pesticides, and the right to live without undue affection of air, water and the environment
3. Other Rights including the right to live with human dignity, including access to nutrition, clothing, and shelter, the right to free education of children up to the age of fourteen years, the right to livelihood, protection of one’s reputation, access to just and humane conditions of work, protection of the health and strength of workers and maternity relief.
Although the Maneka Gandhi judgement permanently clipped the wings of the legislature, it faced little or no hostility from any of the branches of the government, unlike other judgements in the same period.
In over three decades since the judgement, the right to life and personal liberty under Article 21 has gradually become a repository of human rights and fundamental freedoms in India.