Home       Top Rated       Submit Article     Advanced Search     FAQ       Contact Us       Lawyers in India       Law Forum     RSS Feeds     

Register your Copyright Online

We offer copyright registration right from your desktop click here for details.

Latest Articles | Articles 2014 | Articles 2013 | Articles 2012 | Articles 2011 | Articles 2010 | Articles 2009 | Articles 2008 | Articles 2007 | Articles 2006 | Articles 2000-05

Search On:Laws in IndiaLawyers Search

Mutual Consent Divorce in Delhi
We provide fast, cost effective and Hassle free solution.
Contact us at Ph no: 9650499965 (Divorce Law Firm Delhi)

E-mail login                       Password
     

Free Email Sign Up

Main Categories
 Accident Law
 Arbitration
 Aviation Law
 Banking and Finance laws
 Case Laws
 Civil Laws
 Company Law
 Constitutional Law
 Consumer laws
 Contracts laws
 Criminal law
 Drug laws
 Dubai laws
 Educational laws
 Employment / Labour laws
 Environmental Law
 family law
 Gay laws and Third Gender
 Human Rights laws
 Immigration laws
 Insurance / Accident Claim
 Intellectual Property
 International Law
 Juvenile Laws
 Law - lawyers & legal Profession
 Legal Aid and Lok Adalat
 Legal outsourcing
 Media laws
 Medico legal
 Miscellaneous
 Real estate laws
 Right To Information
 Tax Laws
 Torts Law
 Woman Issues
 Workplace Equality & Non-Discrimination
 Yet Another Category

More Options
 Most read articles
 Most rated articles

Subscription
Subscribe now and receive free articles and updates instantly.

Name
Email



Copyright Registration

To Copyright Your Books, Videos, Songs, Scripts etc
Call us at: 9891244487 / or email at: admin@legalserviceindia.com
Top Law Colleges

Law Updates:

# Income-Tax
# Family law
# Company Law
# Constitutional Law
# Partnership firms
# Immigration Law
# Cyber Law
# Lok Adalat, legal Aid & PIL
# Forms
# Trademarks
# Woman issues
# Medico Legal
# Consumer laws
# Criminal laws
# Supreme Court Judgments


Published : June 18, 2011 | Author : suryabhansingh
Category : Constitutional Law | Total Views : 43234 | Rating :

  
suryabhansingh
Surya Bhan Singh Billawria, Advocate (B.S.L.-LL.B.) College Attended: D.E.S. Law College, Pune. University of Pune. Other Articles by same Author: 1. Euthanasia 2. Constitutional Position of Jammu & Kashmir.
 


According to Dicey, - “The right to personal liberty as understood in England means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification.

In other words, ‘personal liberty’ means freedom from physical restraint and coercion which is not authorized by law.

Article 21 of the Constitution says, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Maneka Gandhi’s case is not only a landmark case for the interpretation of Article 21 but it also gave an entirely new viewpoint to look at the Chapter III of the Constitution. Prior to Maneka Gandhi’s decision, Article 21 guaranteed the right to life and personal liberty only against the arbitrary action of the executive and not from the legislative action. Broadly speaking, what this case did was extend this protection against legislative action too.

Pre-Maneka Gandhi: Old Position
The concept of ‘personal liberty’ first came up for consideration of the Supreme Court in A.K. Gopalan’s case. In this case, the Petitioner had been detained under Preventive Detention Act, 1950. The petitioner challenged the validity of his detention on the ground that it was violative of his Right to freedom of movement under Art. 19(1)(d), which is the very essence of personal liberty guaranteed by Art. 21 of the Constitution. He argued that the words ‘personal liberty’ include the freedom of movement also and therefore the Preventive Detention Act, 1950 must also satisfy the requirements of Art. 19(5). It was further argued that Art. 21 and Art. 19 should be read together as Art. 19 laid out the substantive rights while Art. 21 provided procedural rights. It was also argued that the words “procedure established by law” actually meant “due process of law” from the American Constitution which includes principles of natural justice and the impugned law does not satisfy that requirement.

Rejecting both the contentions, Supreme Court, by the majority, using the meaning given to the phrase ‘personal liberty’ by Dicey, held that the phrase ‘personal liberty’ in Art. 21 meant nothing more than the liberty of the physical body, that is, freedom from arrest and detention without the authority of law. According to majority, the term ‘liberty’ was wider in meaning and scope than ‘personal liberty’. Hence, while ‘liberty’ could be said to include Art. 19 within its ambit, ‘personal liberty’ had the same meaning as given to the expression “liberty of the person” under English law. Hence, the majority took the view that Art. 19 and Art. 21 deal with different aspects of liberty. The Court further interpreted the term ‘law’ as ‘State made law’ and rejected the plea that the term ‘law’ in Art. 21 meant jus naturale or principles of natural justice.

It is pertinent to mention here that in A.K. Gopalan’s case, the attention of the Supreme Court was drawn to the legislative history of Art. 21 which showed why the expression “due process of law” was replaced by “procedure established by law”. However, it is unfortunate that the legislative history of Art. 22, and particularly of clauses (1) and (2), whereby the substance of “due process” was reintroduced, was not brought to the attention of the Supreme Court.

But this restrictive interpretation of the expression ‘personal liberty’ has not been followed by the Supreme Court in its later decisions. Like for example, in Kharak Singh’s case, it was held that “personal liberty” was not only limited to bodily restraint but was used as compendious term including within itself all the varieties of rights which go to make up the personal liberty of man other than those dealt within Art. 19(1).

Post-Maneka Gandhi: New Dimension
In Maneka Gandhi’s case, the meaning and content of the words ‘personal liberty’ again came up for the consideration of the Supreme Court. In this case, the petitioner’s passport had been impounded by the Central Government u/s 10(3)(c) of the Passport Act, 1967. Here, the Supreme Court not only overruled A.K. Gopalan’s case but also widened the scope of words ‘personal liberty’ considerably. Bhagwati, J. observed:

“The expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19.”

With respect to the relationship between Art. 19 and Art. 21, the Court held that Art. 21 is controlled by Art. 19, i.e., it must satisfy the requirement of Art. 19. The Court observed:

“The law must therefore now be 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 a law in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenges of that Article.”

Thus a law “depriving a person of ‘personal liberty’ has not only to stand the test” of Article 21 but it must stand the test of Art. 19 and Art. 14 of the Constitution.

Conclusion
Hence to conclude, it may be said that Maneka Gandhi’s case, gave the term ‘personal liberty’ widest possible interpretation and gave effect to the intention of the drafters of the Constitution. This case, while adding a whole new dimension to the concept of ‘personal liberty’, extended the protection of Art. 14 to the personal liberty of every person and additional protection of Art. 19 to the personal liberty of every citizen.

Cases referred:
#
A.K. Gopalan v. The State, (1950) S.C.R. 88, (‘50) A.S.C. 27
# Kharak Singh v. State of U.P., (1964) 1 S.C.R. 332, (‘63) A.S.C. 1295
# Maneka Gandhi v. Union of India, (1978) 2 S.C.R. 621, (‘78) A.S.C. 597

Books referred:
#
Dicey, The Law of the Constitution.
# Basu, Durga Das, Shorter Constitution of India
# Jain, M.P., Indian Constitutional Law
# Mahajan, V.D., Constitutional Law of India
# Seervai, H.M., Consitutional Law of India

Authors contact info - articles The  author can be reached at: suryabhansingh@legalserviceindia.com




1 2 3 4 5
Rate this article!     Poor
Excellent    

Most viewed articles in Constitutional Law category
Dr. B.R. Ambedkar, The Father of Indian Constitution
Position of Fundamental Rights during Emergency
Principles of Natural Justice In Indian Constitution
Right To Privacy Under Article 21 and the Related Conflicts
Prospective Vs. Retrospective
Reasonable Classification under article 14
Concept of Welfare State and Its Relevance in Indian Scenario
Vulnerable Groups in India - Status, Schemes, Constitution of India
Maneka Gandhi
Election Commission of India
Emergence of Article 31 A, B and C and its validity
Doctrine of Pleasure as under the Indian Constitution
Hart
Critical Analysis on Reservation Policy in India
Revisional Power vis
Analysis Of Writ Of Mandamus
Most recent articles in Constitutional Law category
Article 44 of Constitution: A Dead Letter to be Retrieved
Fundamental Right of The Child To Education in Andaman And Nicobar Islands
Transfer Petition in India
Role of Writs In Administrative Law
The Importance of Article 370
Judicial Activism and Judicial Restraint
Fundamental Duties Under Article 51-A
Is Preamble a Part of Constitution
Writs In Indian Constitution
Secularism and Constitution of India
The constitution of Nepal
Constitutional Disability-way forward?
Harmonious and Beneficial Construction.
Article 35A: Necessity but not Charity
Anti-defection law the challenges
State Under Indian Constitution

Article Comments

Posted by Surendra Choudhary on July 19, 2011
Maneka Gandhi's verdict helped and made a way by which "procedure established by law" has become as "due process of law" in spirit.

Post Your Comments
Name

Email

Your comments

Note : Your email address is only visible to admin, other members / users cannot see it.

You can use following FXCodes


BOLD : [b]
Italic : [i]

[b] Legal Services India [/b] is a [i]nice website[/i].
[url= http://www.legalservicesindia.com/article/ ]click here to visit.[/url]

Legal Services India is a nice website.
Click here to visit

 

Note : Currently, user comments are moderated and will be posted only after approval.



Welcome!
Please login or register a new free account.

Random Pick
Following a No Objection Certificate from the Family Guidance committee, the parties can file their family case in the Dubai Courts. In the second part of the of the guide through family court proceedings, we shall be outlining some of the common mistakes made by parties while entering into settlement agreements due to the absence of a competent attorney and sound legal advice.

Statistics
» Total Articles
1373
» Total Authors
3982
» Total Views
15487471
» Total categories
40

Law Forum


Legal Articles

Lawyers in India- Click on a link below for legal Services

lawyers in Chennai
lawyers in Bangalore
lawyers in Hyderabad
lawyers in Cochin
lawyers in Pondicherry
lawyers in Guwahati
lawyers in Nashik

lawyers in Jaipur
lawyers in New Delhi
lawyers in Dimapur
lawyers in Agra
Noida lawyers
lawyers in Siliguri

For Mutual consent Divorce in Delhi

Ph no: 9650499965
For online Copyright Registration

Ph no: 9891244487
Law Articles

lawyers in Delhi
lawyers in Chandigarh
lawyers in Allahabad
lawyers in Lucknow
lawyers in Jodhpur
Faridabad lawyers

lawyers in Mumbai
lawyers in Pune
lawyers in Nagpur
lawyers in Ahmedabad
lawyers in Surat
Ghaziabad lawyers

lawyers in Kolkata
lawyers in Janjgir
lawyers in Rajkot
lawyers in Indore
lawyers in Ludhiana
Gurgaon lawyers

TOP

India's Most Trusted Online law library
Legal Services India is Copyrighted under the Registrar of Copyright Act ( Govt of India) 2000-2016
 ISBN No: 978-81-928510-1-3