Transcending from Positivism towards Natural Justice: Journey of Indian Judiciary


– Aman Aditya

Symbiosis Law School, Noida

– Shreya Sinha

Symbiosis Law School, Noida


The Constitution of India enshrines various Rights and Liberty to its citizens. Article 19, 21 and 22 are the very basis of rights which are bestowed by the Indian Constitution to its citizens. Against the background of the legislative history of our country, the discussion of Article 21 and its relation to Articles 19 and 22 begins with the landmark case of A.K. Gopalanv. State of Madras. After this landmark judgement in the year 1950, the judiciary took recourse with these three Articles. Though the Supreme Court in Gopalan case clearly distinguished between these three Articles and divided them in single entities which were not correlated with each other and what the Court did was just followed the Positivist approach of law.

The final blow to Gopalan’s self-abnegation has been given by Maneka Gandhi v. Union of India. Although Maneka’s case was not prima facie responsible for overruling Gopalan’s case as there was various interim cases which directly or indirectly was responsible for it. In Maneka’s case the Court decided that Article 19, 21 and 22 are not exclusive in nature and so to derive the proper meaning of these Articles they should be considered as mutually inclusive of each other and the Court followed the principle of Natural Justice.

In contrast to positivism the theory of natural justice has a wider concept, it includes of the law which are derived from a divine origin and so depends on values, and as society and its needs changes with time the values also changes and so the theory of natural justice is that theory which is made in accordance with the needs of the society. Therefore, this research paper will focus on the jurisprudential shift which has changed the judicial structure of our country and will also give a detailed account of the important case laws which indicate the slow and steady transition of the judiciary from positivism to natural justice.

The Era of Legal Positivism

The Constitution of India enshrines various rights and liberty to its citizens. Article 19, 21 and 22 are the very basis of rights which are bestowed by the Indian Constitution to its citizens. Against the background of the legislative history of our country, the discussion of Article 21 and its relation to Articles 19 and 22 begins with the landmark case of A.K. Gopalanv. State of Madras1. Here the petitioner A.K. Gopalan was a communist leader, who was detained under the Preventive Detention Act, 1950. The petitioner challenged the validity of his detention on the wide ground that the Detention Act under which he was detained, was void as violating Articles 19 and 21, and also on narrow ground that the Act did not comply with the requirements of Article 222. It was contended by Gopalan that his detention contravened Article 21 which provides that “no person shall be deprived of life or personal liberty except according to the procedure established by law”3. Counsel of Gopalan contended his detention to be void on the basis of-

1. Personal liberty included the freedoms conferred by Article 19(1) (a) to (e) and (g) and the impugned law did not satisfy the test of Article 19(2) to (6).

2. In the alternative, the impugned law directly violated Gopalan’s right to move freely throughout the territory of India because the freedom of movement is of the essence of personal liberty and the impugned Act did not satisfy the test of Article 19(5).

3. Article 19(1) and Article 21 should be read together because Article 19(1) deals with substantive rights and Article 21 deals with procedural rights.

4. The reference in Article 21 to “procedure established by law” meant “due process of law”, and the impugned Act did not satisfy the requirement of “due process”.

5. In any event, the word “law” in Article 21 meant not state enacted law, but jus naturale or the principles of natural justice. The impugned Act did not comply with the requirements of natural justice.4

This contention of Gopalan’s counsel was opposed by saying that Article 21 did not apply to preventive detention and therefore the proposition that Article 21 applies to a law of preventive detention was incorrect and so the very basis of Gopalan’s claim was void. The validity of the impugned Act would have been tested only by Article 22.5 A six bench judge was appointed in this case and it was held by the majority that the concept of

1 A.K. Gopalan, AIR 1950 SC 27.

2 H.M. Seervai, Constitutional Law of India, 973 (Universal Law Publishing Co. Pvt. Ltd., Vol. 2, 4th edn., 2013).

3 P.M Bakshi, The Constitution of India, 63 (Universal Law Publishing Co. Pvt. Ltd., 13th edn. 2015).

4 Id. at 973.

5 Id. at 973.

the right ‘to move freely throughout the territory of India’ was entirely different from the concept of the ‘right to personal liberty’ in Article 21. The emphasis was not on the free movement, but on the right to move freely throughout the territory of India and that Article 19(1)(d) read with the sub Article (5), meant that if restrictions were put on the movement of citizen within the states then it should be in accordance to Article19(5). It is clearly stated in Article 19(5) about the reasonable restrictions to be imposed on the right in the interest of the general public. And there fore Article 19(1) (d) has nothing to do with any form of detention.6 The Supreme Court by the majority held that the word personal liberty in Article 21 means nothing more than liberty of the physical body that is freedom from arrest and detention without the authority of law. But the Court said that though liberty has a vast meaning of its own but the word personal narrows down its meaning to liberty of the person. Articles 19 and 21 deals with different concepts of ‘liberty’. Article 21 is guarantee against deprivation of personal liberty on the other hand Article 19 bestows protection under unreasonable restrictions.7 Thus the Supreme Court ruled in Gopalan that in Article 21 the expression ‘procedure established by law’ meant the procedure as laid down in the law was enacted by the legislature and nothing more. A person could thus be deprived of his ‘life’ or ‘personal liberty’ in accordance with the procedure laid down in the relevant law. The court was concerned with the procedure laid down in the statute. Whether the procedure was fair or reasonable, or according to natural justice or not was not the concern of the court. The ruling thus meant that to deprive a person of his life or personal liberty-

1. There must be a law;

2. It should lay down a procedure; and

3. The executive should follow the procedure while depriving a person of his life or personal liberty.8

There fore the Court said that preventive detention is not a part of personal liberty covered under Article 21 or a part of fundamental rights under Article 19, but it is covered by Article 22 and so it deals separately with Article 22. However as different views were expressed by different judges, no common pattern emerges from the

6 Seervai, supra note 2 at 976.

7 J.N. Pandey, Constitutional Law Of India, 249 (Central Law Agency, 52nd edn. 2015).

8 M.P. Jain, Indian Constitutional Law, 1181 (Lexis Nexis, New Delhi, 6th edn. 2011).

judgements which can be said to fix authoritatively the correlation of Article 19 to Articles 20, 21 and 22, or the meaning of the expression ‘personal liberty’.9

Though the Court in A.K. Gopalan’s case clearly distinguished between these three Articles and divided them in single entities which were not correlated with each other. The restrictive interpretation of the expression ‘personal liberty’ in Gopalan’s case has not been followed by the Supreme Court in the State of West Bengal v. Anwar Ali Sarkar10, In this case the validity of the trial of the respondents, Anwar Ali and 49 others, by the Special Courts, established under Section 5(1) of The West Bengal Special Courts Act, 1950, was at issue and where also personal liberty was involved, the Court did not take the view that, if ‘procedure established by law’ was followed no other fundamental right could be applicable and the prosecution was held to be violating the right of equality guaranteed in article 14 of the Constitution.

In the year 1953, in Ram Narayan Singh v. Delhi11, a person was detained under the Preventive Detention Act for making speeches prejudicial to the maintenance of public order. At this time, Article 19(2) did not contain the expression ‘public order’ and so the freedom of speech could not be controlled for that purpose, but a preventive detention order, a much drastic restriction on the person concerned, could be passed on that basis. The Supreme Court followed its earlier decision in 1950 and refused to access the validity of the detention order with reference to Article 19(1)(a) read with Article 19(2) stating that even if a right under Article 19(1)(a) was abridged, the validity of the preventive decision order could not be considered with reference to Article 19(2) because of the Gopalan ruling that legislation authorising deprivation of personal liberty did not fall under Article 19, and its validity was not to be judged by the criteria in Article

19. The validity of such a law depended on its compliance with Articles 21 and 22. The court stated that if this led to an anomaly, it was inherent in the structure and language of the relevant constitutional provisions.12

In KharakSinghv.State of U.P.13, the petitioner Kharak Singh was charged in a dacoity case but was released as there was no evidence against him. Under the U.P. Police

9 Seervai, supranote 2 at 981.

10 State of West Bengal, AIR 1952 SC 75.

11 Ram Narayan Singh, AIR 1953 SC 272.

12 Jain, supra note 8 at 1183.

13 Kharak Singh, AIR 1963 SC 1295.

Regulations 236(b), the police opened a history sheet for him and he was kept under police surveillance which included secret picketing of his house by the police, domiciliary visits at nights and verification of his movements and activities.14 The majority of the Supreme Court has reiterated that the personal liberty which is safeguarded by Article 21 is the freedom from a tangible physical restraint and did not, therefore, include freedom from invasion of privacy or protection of a person’s personal sensitiveness. The construction put by the majority on regulation 236 required no elaborate discussion of the meaning of the Article 19(1) (d) and Article 21, for domiciliary visits which knock up a person from sleep, compel him to open the door and to allow persons to enter his house unquestionably impose restraints on his personal liberty. It is submitted that in Kharak Singh’s case, the majority declined to lay down the relationship between Article 19 and Article 21 and the construction which the majority never the less put on Article 19(1) (d) and Article 21 is contrary to the decision in Gopalan and is incorrect.15 In the 1950’s the judicial trend of our country laid a strong emphasis on the positivist approach of law. Legal positivism is a view according to which law is produced by the ruling power in society in a historical process. In this view, law is only that which the ruling power has commanded, and anything which it has commanded is law by virtue of this very circumstance.16

Escalation Towards Natural Justice: A New Approach

In course of time the rigid judicial view came to be softened and now the cases were analysed out of the premise given in Gopalan’s case. It was the first time in R.C. Cooperv.Union of India17 when the correctness of the law laid down in Gopalan was doubted as before this no case seriously doubted Gopalan’s judgement. Also known as the Bank’s Nationalization Case, a Bench of 11 Judges by a majority of 10:1 reconsidered Gopalan and held it was wrongly decided because, according to the Court, its main premise, namely that Article 22 was a complete code was wrong, and also because the majority in Gopalan treated the fundamental rights conferred by various articles as mutually exclusive. It may be added that three majority Judges in Gopalan’s case held that Article 22 was not a complete code & they did not hold that fundamental rights conferred by different Articles were mutually exclusive, as will appear hereafter.18

14 Pandey, supra note 7 at 250.

15 Seervai, supra note 2 at 983.

16 Dr. N.K. Jaya Kumar, Lectures in Jurisprudence, 116 (Lexis Nexis Butterworth’s Wadhwa, 2nd edn. 2010).

17 R.C. Cooper, AIR 1970 SC 564.

18 Seervai, supra note 2 at 969.

This case was the trend setter in linking Articles 19, 21 and 22 as in this case Article 19(1) (f) was linked with Article 31(2) then why cannot be Articles 19, 21 and 22 is linked together.19

In another major development against the point of view of Gopalan’s case, The Bank Nationalisation case was followed by the Supreme Court in Bennett Coleman & Co. V. Union of India20, the Court overruled the argument that Article 19(1) (a) could not apply to a law affecting freedom of speech but not enacted directly with respect to Article 19(1) (a). The Court declared that if a law affected freedom of speech, its reasonableness became assessable with reference to Article 19(2) even though it was not enacted directly to control freedom of speech. This completely knocked out the Court’s earlier argument in Gopalan that Article 19 applied only when a law was passed directly in respect of a matter falling under it, and not when a law not directly in respect of a right under Article19, though it abridged such a right. The Court had emphasised in Gopalan that the question was only to consider the ‘directness’ of legislation and not what would be the result of the law on a right under Article 19. Therefore, even though preventive detention deprived a person of the several rights under Article 19, the validity thereof could not be judged under Article 19. This view was no longer tenable after Bennett Coleman.21

The Final Blow to Legal Positivism: Insurgence of Natural Justice

The final blow to Gopalan’s self-abnegation has been given by Maneka Gandhiv. Union of India22. Although Maneka’s case was not the case prima facie responsible for the overruling of Gopalan’s case as there were various interim cases which were directly or indirectly responsible for it, but it was this case which finally terminated the supremacy of Gopalan’s case over the Indian Judiciary. Thus in Maneka’s Gandhi case the Court gave a new dimension to Article 21.

In Maneka Gandhi’s case, the petitioner challenged the action of the government of India in impounding her passport in the public interest. The judgement dealt with few questions such as whether the right to obtain a passport was a fundamental right under Article 19(1) ?, whether that right was a part of ‘personal liberty’ under Article 21 which

19 Jain, supra note 8 at 1184.

20 Bennett Coleman, AIR 1973 SC 106.

21 Jain, supra note8 at 1184.

22 Maneka Gandhi, AIR 1978 SC 597.

raised the question of the correlation of the Article 21 to Article 19(1)?, whether the

provisions of the Passports Act, 1967 violated Articles 14 and 19?23

It is enough to say

that an elaborate discussion of ‘personal liberty’ in Article 21 was not called for, because even if the narrower meaning of ‘personal liberty’ was adopted, namely, a restraint on the person, to prevent a person from leaving India without the authority of law is to impose a restraint on his ‘personal liberty’. A restraint is also put on a person’s liberty by restricting his movement when he desires to leave the country. Since preventing a person from leaving India is to put a restraint on his personal liberty, such restraint can only be imposed by a procedure established by laws required by article 21. The expression ‘procedure established by law’ was interpreted in Maneka Gandhi’s case in the context of impounding passports and the interpretation so put has been rightly treated as involving an enlargement of the right conferred by the Article 21. The grounds for impounding a passport is a matter of substantive law whereas impounding a passport on the facts of the particular case is a matter of procedure, the officer being under an obligation to disclose his reasons, unless the case falls within the exception which justifies withholding the reasons.24 As limited to the procedure the judges were agreed that the procedure must be reasonable and fair not arbitrary and capricious.

In Gopalan’s case the Supreme Court held that Article 19 has no application to laws depriving a person of his life and personal liberty enacted under Article 21 of the Constitution. Thus the view taken by the majority in A.K. Gopalan’s case was that so long as a law of preventive detention satisfies the requirements of Article 22, it would not be required to meet the challenges of Article 19. But in Maneka’s case the Supreme Court has overruled the view expressed by the majority in Gopalan’s case and held that Article 21 is controlled by Article 19, that is, it must satisfy the requirement of Article 19 also.25 It was held in Maneka Gandhi’s case that the expression ‘personal liberty’ in Article 21 is of the widest amplitude and its causes a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19.26

It was A.K. Gopalan’s case that restricted the periphery of interpretation of the Indian Constitution on the lines of rights and liberty, but then slowly few cases came up and

23 Seervai, supra note 2 at 1003.

24 H.M. Seervai, Constitutional Law of India, 2513, (Universal Law Publishing Co. Pvt. Ltd., Vol. 3, 4th edn., 2013).

25 Pandey, supra note 7 at 253.

26 Jain, supra note 8 at 3107.

finally came the landmark case of ManekaGandhi. Union of India. This case not only ended the monopoly of Gopalan’s case from the Indian Judiciary but also gave a new definition to the personal rights and liberty. It took 30 years to the judiciary to accept this slow and steady transition. It is true that Maneka’s case is not the sole reason behind overruling the case of Gopalan, it is the cases which came after Gopalan which demanded a slow transition in the judiciary and as a result with the coming of Maneka’s case this demand was fulfilled and now the Court accepted that the horizon of Natural Justice is constantly expanding, and so to meet the demands of this kind of justice, the judiciary needed to adopt itself to the changes so to keep it up with the fast growing pace of the society.27 One can observe the slow diminish of positivism from the Indian judiciary with the appearance of natural justice. The theory of natural justice is contrary to the theory of positivism. Natural justice believes in morality and does not lay a thought on what is prescribed in the law but on the other hand it focuses on the path to grant justice and thereby looks on the moral and social aspect. Natural justice is not tied to any particular system or legal structure, but it seeks to give an explanatory and clarifying account of law as a complex social and political institution with a rule governed aspect.28

Jurisprudential Shift: A Closure To Legal Positivism

In India the concept of justice lies anchored in the Preamble of the Constitution. The Constitution guaranteed fundamental rights and declared that any law which

contravened a fundamental right was invalid.29

The journey from Gopalan to

Manekahas been an eventful one. Article 21 of the Constitution of India read with Articles 14 and 19 has been the gold mine for providing a shield on moral humanitarian and constitutional grounds against arbitrary state action. The influence of natural law on the Constitution makers is quite evident from the fact that they have placed the natural rights and fundamental freedoms beyond the reach of ordinary legislation.

The main difference in the concept of personal liberty between Gopalan’s case and today is that the new needs of a person for liberty in the different sphere of life can be now claimed as a part of personal liberty under Article 21 and these personal liberties cannot

27 Pandey, supra note 7 at 756.

28 H.L. A Hart, The Concept of Law, 239 (Oxford University Press, 2nd edn. 2002).

29 Jaya Kumar, supra note 16 at 114.

be restricted either by legislation or by law except satisfying Articles 14 and 19. But with the advent of Maneka’s case the judiciary widened its scope of applicability of Article 21 and other fundamental rights. Article 21 says, ‘No person shall be deprived of his life or personal liberty, except according to procedure established by law.’ The phrase ‘procedure established by law’, which was interpreted as any procedure established by an Act of the legislature during the initial years of the Constitution, was later interpreted to mean reasonable and fair procedure. The narrow interpretation in Gopalan’s case which held ‘personal liberty’ as the liberty relating to or concerning the person or body of the individual and personal liberty within sense in antithesis of physical restraint or coercion does not hold the field after Maneka Gandhi’s case.30 The judicial creativity, which we find in the interpretation of Article 21 is undoubtedly influenced and inspired by natural law.31

In Maneka’s case the approach of Article 22 was combined with Article 19 and 21 and so accordingly the scope of these Articles was widened. But such a collaboration of these Articles was not strictly required; some of the rights infringed under Article 19 such as Article 19(1) (a) and (g) was not directly the result of detention under Article 22. The infringement under Article 19 was implied by the Court itself and thus no direct link appears prima facie between these two Articles. Although it increased the scope of freedom rights in the judiciary but the compilation of these Articles makes the laws very broad in it and so it creates a ruckus.32

The Supreme Court has also imposed limitations on the power of Parliament to amend the Constitution. The makers of the Constitution have not expressly provided any such limitation in the Constitution. However, by laying down that the basic structure of the Constitution cannot be amended or abridged in exercise of the amending power, the Supreme Court has proclaimed that there are some immutable values and principles underlying the Constitution. This is nothing, but a declaration of faith in natural law, which must remain superior to positive law.33

30 Jain, supra note 12 at3147.

31 Jayakumar, supra note 16 at 114.

32 Pandey, supra note 7 at 2517.

33 Jayakumar, supra note 16 at 114.