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Protection of Life and Personal Liberty Article -21 BY ATRISHEKHAR -…
Protection of Life and Personal Liberty
Article -21
BY ATRISHEKHAR
The fact that Article 21 neither granted substantive due process nor procedural due process rights would go on to become a serious bone of contention when the Supreme Court of India would begin interpreting fundamental rights guaranteed by Part III of the Constitution.
except according to procedure established by law
procedure estasblished by law
It does not seek whether the laws made by Parliament is fair, just and not arbitrary.
life or personal liberty of a person can be taken off
Article 21 protected the individual from executive tyranny, but not legislative tyranny
AK Gopalan case 1950
the court upheld the procedure established by law.
constituent assembly then, to not
advocate reasonableness and said that under article 21 any law can be made by the Parliament
1978, Menaka Gandhi vs. Uol
the court said that Article 19 and 21 cannot be seen as
water tight compartments, and the test of reasonableness has to be applied to article 21 too
'due process of law'
due process developed from clause 39 of the Magna Carta in England
due process was not upheld in England but did become incorporated in the Constitution of the United States
Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.
Due Process of Law =
Procedure Established by Law
+
The procedure should be fair and just and not arbitrary
why not introduced in th begining?
AVOID FRICTION BETWEEN JUDICIARY AND LEGISLATURE
न्यायपालिका और विधायिका के बीच टकराव
2 more items...
Thus Article 21
protected the individual from executive tyranny as well as legislative tyranny.
introducing the principle of “procedural due process”
x Due prcoess of law
no person shall be deprived of his life or
personal liberty
All then that Article 21 stood for was to proclaim to free India that the State can deprive a person of their life or personal liberty in whatever manner it likes, so long as a law was enacted for that purpose.
In doing so, the State could neither be held accountable nor responsible, and least of all answerable, for the egregiousness and irrationality of the process which inhered in the law.
In 1950 then, the only hope that the people of India could perhaps have for Article 21 was to remember and recall Dr Ambedkar’s talisman: that hopefully, the people charged with working the Constitution would be respectful of due process rights, regardless of its absence from the text of the Constitution.