Is Indian and Japanese Constitution interwoven with the thread of Article 21

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This article is written by Darshit Vora of SVKM Narsee Monjee Institute of Management Studies. This article covers the relationship between Article 21 of the Indian Constitution and the Japanese Constitution. Further, this paper also describes the evolution from the procedure of law to due process of law.   

Introduction

Indian Constitution is the lengthiest constitution in the world. India has a written constitution with 448 articles, 25 parts, and 12 schedules. It took about 2 years, 11 months and 18 days to come up with the final draft of the Indian Constitution. The framers of the Indian Constitution, while framing, had an advantage that they were aware of the difficulties faced by the other countries and, thus, implemented provisions to avoid the same.

Features of the Indian Constitution 

  • Combination of rigidity and flexibility: The constitution comprises certain provisions that can be easily amended, and, on the other hand, there are some provisions that are difficult to amend. 
  • Independent Judiciary: The Indian constitution has a provision to safeguard and position the judiciary, and has also vested it with the power to review laws passed by the government through judicial review. 
  • Single Citizenship: Like other countries, India doesn’t have the dual citizenship policy. The constitution only recognizes single citizenship. 
  • Secular State: India is a nation with no official religion and it respects every religious faith. it doesn’t prevent people from practising the religion of their choice. The purpose of this provision is to treat all religions equally. 
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Is the Indian Constitution a borrowed one

There have been various claims made that the Indian Constitution is a mere imitation of various other constitutions across the world. This statement is absolutely vague because it is framed by borrowing some of the features from several constitutions and taking inspiration from them, and not by copying. 

  • Indian Constitution has its own uniqueness in content and spirit. 
  • The Indian Constitution was drafted while taking into consideration the Indian Nationalist Struggles, historical perspectives, and geographical perspectives of the country, which are very different from the other countries. 
  • The provisions that were borrowed from other countries suited the polity and governance of the nation.  
  • Those features were added in the Indian Constitution so as to avoid difficulties in the future. There is no shame in learning from the experience of other countries. 

The features are as follows:

Countries 

Features 

Australia 

  • Concurrent List 
  • Freedom of trade, commerce and intercourse
  • A joint sitting of two houses of parliament

Canada

  • Federation with a strong centre 
  • Vesting of Residuary powers in the centre
  • Appointment of state governments by the centre
  • Advisory jurisdiction of the Supreme Court 

Ireland

  • Directive Principle of State policy
  • Method of election of the President

Japan

  • Procedure established by law

Russia

  • Fundamental duties 
  • Ideals in the preamble (Socialist, Secular, Equality)  

UK 

  • Parliamentary form of Government
  • Rule of law
  • Single citizenship
  • Prerogative writs
  • Bicameralism
  • Cabinet System 

USA

  • Fundamental Rights
  • Judicial Review
  • Independence of judiciary
  • Impeachment of President
  • Removal of Supreme Court and High Court judges.

South Africa

  • Procedures for amendment in the constitution
  • Election of members of Rajya sabha 

Germany 

  • Suspension of fundamental rights in cases of emergency

Article 21’s connection with the Japanese constitution 

One of the critical features that is borrowed from the Japanese constitution is the “procedure established by law”. This feature is in regard to the right to life and personal liberty of the Indian Constitution. Under Article 31 of the Japanese Constitution which mentions the right to life and personal liberty, no criminal liability shall be imposed except according to the procedure of law. This article is very similar to Article 21 of the Indian Constitution. 

Article 21 of the Indian Constitution: No person shall be denied the right to life and personal liberty except according to the procedure established by law. 

In the Indian Constitution, this feature was added to preserve the process of natural justice. This Article solely doesn’t protect the principle of natural justice. In Japan, it is due to the combined efforts of various Articles like Articles 32, 33, 34, 35, 36, 37, and 38 that the natural right of a person, in cases of life and personal liberty, is protected effectively. Through various interpretations of courts, the belief of natural justice was restored. In Nakamuen vs Japan and Yoshida vs Japan, the court held that even if the literal interpretation of Article 31 excludes the principle of reasonableness, the combined effort of the other Articles provide natural rights and protection from the violation of Article 31

While framing the constitution of India, the framers were influenced by Article 31 and ignored the presence of other indispensable articles. The framers didn’t include the concept of “due process of law” in the constitution which is more appropriate than the “procedure established by law”. The term “procedure established by law” caused various troubles especially during the time of emergency, where this provision made a mockery of the entire justice system.   

The Procedure of law and Due process of law

  • The procedure established by law: It is a principle which states that if a law is implemented with the correct procedure, even if it is against the personal liberty of the other person, the law would still be binding. The court can only decide on the matter of correctability of the procedure but cannot strike the law on the ground that it intends to violate the principle of natural justice. 

Illustration: If a law is made to legalize the offence of honour killing, and correct procedures were followed to bring the law into existence by passing it in both the Houses of the Parliament with ⅔ majority in each of the houses. In this scenario, the Court cannot strike down the law, even though it is against the principle of natural justice.  

  • Due process of Law: It is a concept that originated in English common law. Due process of law refers to a law that is passed by the government and should not abridge the rights of an individual, and if it does, then it would be held null and void by the court. In short, due process of law is a combination of procedure established by law coupled with the principle of natural justice. 

Illustration: If the government passes the law to legalize honour killing after passing it in both the Houses of the Parliament with a ⅔ majority, then the law would be struck down in the court on the ground that it is violative of the principle of natural justice and fairness.

Procedure established by law

Due process of law

The law enacted by following the corrective procedure would be held valid. 

Along with the procedures there is a further check whether the law abridges the rights of the individual or not. 

The law cannot be struck down if it’s not valid or fair. 

The law can be struck down if it’s not valid or fair. 

Law can be enacted without complying to the principle of equity. 

Law cannot be enacted without compliance with equity and Justice. 

An evolution from the procedure of law to the due process in the Indian courts

In the case of AK Gopalan vs Union of India(1950), the court made the first attempt to read the due process of law from the perspective of the procedure established by law. In this case, Judge Fazal Ali disagreed with the majority view and held that the principle of natural justice should be read with Article 21 of the Indian Constitution. In Kharak Singh vs State of UP (1962), the court followed the principle of AK Gopalan. Judge Subba Roa, in this case, gave a dissenting view that fundamental rights should not be infringed and the law should not amount to a reasonable restriction.

The landmark judgment in the post-emergency era was Maneka Gandhi vs Union of India (1978), where the passport of the victim was seized by the authorities and she wasn’t given a fair opportunity to be heard. The victim made many claims and one such being that the procedure established by law should conform to the principle of natural justice and should not be arbitrary. In this case, the court gave a majority judgment in favour of the victim and held that Article 21 should be reasonable in conformity with Article 14 of the Indian Constitution. The law must be right, just, and fair. This judgment removed the binding power of the AK Gopalan case. The defect that existed in the constitution for decades under Article 21 was removed after this judgment. After Maneka Gandhi, the court held that Article 21 should be read as ‘ No person shall be deprived of the right to life and personal liberty except according to the fair, just, and reasonable procedure established by valid law. The framers of this constitution trusted the legislature, rather than giving it supreme power to make vague laws. In Sunil Batra vs Delhi Administration,(1979) Justice Krishna Iyer observed that truly our constitution doesn’t have any due process but through previous precedents, the consequences have now become the same. The framers were proved wrong there was an unfair use of power by the legislature and the error made by the framers were corrected by the judiciary through a just interpretation among various judgments.  

Various sub-heads under Article 21 of the Indian Constitution

Article 21 consists of various subheads and they are as follows

  • Right to livelihood

There can be no restriction on any person to practice any profession unless restricted by a reasonable and fair law implemented by the State with following the correct procedures. In Ogla Tellis vs Bombay Municipal Corporation (1985), the Court held that the right to life and personal liberty includes the right to livelihood. It is the responsibility of the State to provide livelihood and the right to work. 

Case: Sodan Singh vs New Delhi Municipal Corporation (1989) 

Facts: In this case, the hawkers, while doing business on pavements in Delhi, they were denied from carrying business. The person filed a suit against this action of the government in the court claiming that the act of the government is against his right to livelihood, which is violative of Article 21 of the Indian Constitution. 

Judgment: The judgment was in favour of the government and the court held that the act was not violative of the right to livelihood. 

In this case, the court didn’t follow the principle of Olga Tellis vs State of Bombay Municipal Council, where the court gave the decision against the government stating that depriving the right to livelihood is against Article 21. 

  • Right to Privacy 

According to Blacks law dictionary, privacy refers to the right of the person to be free from any unwanted interference. The right to privacy is an essential ingredient of a democratic society. In KS Puttaswamy vs Union of India, for the first time, privacy was recognized as a fundamental right and was interpreted under Article 21 of the Indian constitution. 

Case: K.S. Puttaswamy vs Union of India (2018)

Facts: In this case, the aadhar card scheme of the government was questioned on the ground that the government was gathering data, which is violative of the ground of privacy. The government claimed that the right to privacy as a fundamental right is doubtful. 

Judgment: The right to privacy is an intricate part of Article 21 and overruled the decision of MP Sharma vs Satish Chandra (1954), where it was held that privacy was not protected under the Indian Constitution. In this case, the Supreme Court mentioned that privacy includes personal intimacies, sanctity, family, marriage, sexual orientation, etc. The court also commended the government to set up a robust regime to evaluate data protection.  

  • Right to live in a healthy environment 

The existence of the environment is critical for every human being. Therefore, to live in a healthy and safe environment is considered a basic human right of all living organisms. In Subhas vs State of Bihar,(1991) the Supreme Court held that ensuring pollution-free water and the air is included in the right to life.

Case: Shriram food and fertilizers case 

Facts: In this case, the company was involved in the manufacturing of hazardous and chemical materials which posed a grave threat to workmen and people living in the neighbourhood. The leakage of chlorine gas resulted in the death of one person and the hardship of various in the locality. 

Judgment: The court directed the management to deposit 20 lakhs as a security for the victims. In addition to this, a bank guarantee of 15 lakh was also directed which could be encashed if there is any death of or injury to people living in the vicinity. After 3 years, the factory was allowed to partially remain open.  

The efforts of the judiciary to curb crimes related to the environment are commendable as compared to the legislature. 

  • Right to a speedy and fair trial

In Zahira Habibuylla Sheikh vs State of Gujarat (2004), the court explained the term free trial. It would mean a trial before an impartial judge, with a fair public prosecutor, and in an atmosphere of judicial calm. Fair trial refers to a trial in which there is no prejudice or biases against the accused, witnesses, etc. It is necessary that the cases be disposed of as expeditiously as possible because if a judgment is pronounced after 10 years, it loses its value. Due to the delay in the proceeding, there are chances of tampering of critical evidence.   

There is a quantitative difference between these two clauses which are an integral part of Article 21 of the Indian Constitution. The difference between the two is that speedy trial doesn’t per se prejudice the accused from defending himself from right to free trial.

  • Right to choose a life partner 

Every person should have the option of choosing the partner of his/ her choice. This judgment was a significant step to curbing the number of honour killings. This right is inserted in Article 21 of the Indian constitution because the right to life and liberty involves choosing a partner of a person’s choice.  

Case: Shakti Vahini vs Union of India (2018)

Facts: In this case, the petitioner’s organization was authorized to conduct a research study on honour killings in Haryana and Uttar Pradesh. Seeing the number of honour killing cases, a writ petition was filed in the court demanding the central government to take punitive steps to curb honour killings. 

Judgment: The court referred to the 242nd commission report and suggested a legal framework. Honour killing is a serious human rights violation. A draft of the bill was prepared to combat this offence which included both preventive and punitive steps. 

  • Right to the choice of sex

Every individual has a fundamental choice to choose a person to whom he wants to have sexual intercourse with. The most essential ingredient is that there should be consensual sexual intercourse between adults. 

Case: Navtej Singh Johar vs Union of India(2018)

Facts: In this case, a writ petition was filed in the Court seeking the recognition of sexual autonomy, and also that the right to sexuality and the right to choose a sexual partner of a person’s choice comes under Article 21 of the Indian constitution. 

Judgment: The five-judge bench of the Supreme Court held that S. 377 of the Indian Penal Code is unconstitutional. It also held that there should not be any criminalization of consensual sexual intercourse between adults. 

  • Right against sexual harassment at the workplace 

Women in society have been a victim of a series of crimes. It is the responsibility of the State to protect women. The right to life includes the right against the offence of sexual harassment. 

Case: Vishaka vs state of Rajasthan and ors(1997)

Facts: In this case, a social worker named Bhanwari, who was contributing her effort in stopping child marriages, was allegedly gang-raped by five men and even though a complaint was lodged, no investigation was initiated. 

Judgment: The trial court acquitted the accused due to a lack of medical evidence. A public Interest Litigation was filed on the issue of sexual harassment at the workplace. The court decided to base its judgment on International conventions. The right to work with human dignity is granted under Articles 14, 19, 21 of the Indian Constitution. In this case, certain guidelines were given by the Supreme Court which is popularly known as Vishaka guidelines

This case led to the issuance of guidelines on sexual harassment at the workplace. Prior to this case, India didn’t have guidelines for the offence of sexual harassment at the workplace. These guidelines became legislation in 2013, in the name of Sexual Harassment at the Workplace Act, 2013. 

  • Right to die with dignity

If a person is at a stage of dying and there is no hope for recovery, reducing the period of suffering amounts to the right to die with dignity. This right is interpreted under various cases and it comes under Article 21 of the Indian Constitution

Case: Aruna Shanbaug Case (2011)

Facts: In this case, a writ petition was filed by Ms. Pinki Virani claiming to be the next best friend of the victim. The victim was raped and subsequently, her brain stopped working.  She became very feeble. Her brain was virtually dead. Her parents were dead and no close relatives had any interest in her. 

Judgment: The court allowed the victim to die with dignity by giving her passive euthanasia. It also held that the decision to discontinue life should be taken by the family member. If the decision is taken by a doctor or by a friend next door, it requires approval from the respective state’s High Court. 

                   

  • Right to live with dignity 

Dignity is a term that was added by the framers of the constitution in the Preamble. Human dignity refers to a state, worthy of honour and equal respect irrespective of caste, creed, sex or status of a person. Justice Krishan Iyer in Kharak Singh vs State of UP said that the right to life doesn’t mean the mere existence of life, it should be a dignified one.   

Case: Francois Calorie vs Union territory of Delhi (1981)

Facts: In this case, a British national was kept in the Tihar jail on the charge of smuggling. The complainant was allowed to meet her lawyer only in the presence of a customs officer. She was not allowed to meet her family members. This was challenged by a complainant on the ground of unethical treatment and in violation of the right to life and dignity under Article 21 of the Indian Constitution. 

Judgment: The court held this practice as unethical and gave the decision in favour of the complainant. The court stated that the right to live is not confined to physical existence but includes the ambit of the right to live with human dignity. 

  • Right against illegal detention of the prisoners

Illegal detention goes against the right to personal liberty. Prisoners have the right to claim their fundamental rights, even if they are imprisoned.  

Case: Joginder Kumar vs State of UP (1994)

Facts: In this case, the police officer arrested a lawyer illegally without mentioning him the charges and didn’t inform the parents or relatives about his arrest. 

Judgment: The Supreme Court held that the act of the police was against Article 21. Here, the person was illegally detained and should have been released immediately. It further laid guidelines which stated that a police officer should inform the parents and relatives of the accused about his/her arrest. Police officers should inform the person on what grounds he was arrested and should keep a record of the arrest in the diary.  

Conclusion 

India definitely has the largest constitution across countries but still there exist various flaws in the constitution. One such flaw was repealed in the Maneka Gandhi case and, thus, there was a restriction on the unlimited power of the legislature to exploit individuals by formulating vague laws. The claim that the Indian Constitution is a borrowed one is completely false because framers merely took inspiration from other constitutions and also introduced new provisions to rectify their existing errors. 

References

[1]https://www.latestlaws.com/articles/expanding-ever-evolving-article-21-of-the-constitution-of-india-right-to-life-personal-liberty/.

[2]http://shodhganga.inflibnet.ac.in/bitstream/10603/141322/11/k.chapter-iii%20procedure%20established%20by%20law%20to%20due%20process%20of.pdf.

[3]http://docs.manupatra.in/newsline/articles/Upload/C64E2EB3-321D-470D-A4C8-0EE5E55BA21A.pdf.

[4]https://www.gktoday.in/gk/sources-of-the-indian-constitution/.


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