Nikhil Sanjay-Rekha Adsule
Dr.Ambedkar’s role in the crafting of the majestic document called Constitution of India (not Indian Constitution as there is a still a long way to go in becoming a nation!) is undisputed. His entire repertoire of works when keenly read invokes passion and inspiration among the Bahujan masses especially Dalits. He is the epitome of excellence and a goal to mould their lives and what they ought to become. With the passage of time, space and place Babasaheb is being read more and more globally owing to his Humanistic Writings which are modus operandi for the annihilation of any injustice be it Gender, Race, Ethnicity and so on and establish an egalitarian society which upholds Human Rights with social justice being its foundation!
But the sad part one realises while reading, rereading and interpreting Babasaheb is that the gem was neglected and kept in abeyance and whatever taught was the Brahmanical in tandem with the patriarchal version of all social sciences. Babasaheb appeared only during the end of history as (reluctantly) “Father of Indian Constitution” but his role in the making of the democratic ethos and in making this nation that is based on the Buddhist pragmatism of Liberty, Equality and Fraternity was neglected. His work as a lawyer also called “Poor Man’s Barrister” and being one of the pioneers of India’s Civil Rights Tradition. His work as a Lawyer still is very crudely documented with errors of omissions but still a tangibly compiled volume by Vijay B.Gaikwad. Thus opening another less focused multifaceted arena of Babasaheb’s persona!
Due process of Law :
Babasaheb was fond of fourteenth Constitutional Amendment of the USA ( 1868) which granted Rights of Equality to the Afro-Americans after the dastardly Civil War (1861-65). This Amendment along with Fifth Constitutional Amendment had the words “due process of law” and even while drafting the provision of Constitution which now is Art.21 i.e., Protection of Life and Personal Liberty looked something like this as mentioned below,
“… Nor shall any State deprive any person of life, liberty and property without due process of law.”
But the meeting of B.N.Rau with the Supreme court judge Frankfurter, who advised him that it could lead to catastrophe as evident in wide interpretations in cases like
● In Lochner v. New York, 198 U.S. 45 (1905), where the Supreme Court held that the Fourteenth Amendment protects a general right to make private contracts and that a state may not interfere with this liberty in the name of protecting the health of the worker thus unveiling Lochner era(1905-1937)
Then came cases like,
● West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) where the Supreme Court upheld Washington’s state minimum wage law, effectively ending the Lochner era ideals of the right to private contract superseding a legislature’s economic regulatory abilities along with a formidable threat by the then-President Franklin Roosevelt to pack the Supreme Court with favourable judges to ensure passage and survival of his “New Deal” legislation.
Thus after intense debate in the Constituent Assembly, Ambedkar left the decision on the will of the learned people of that Assembly by citing a Greek mythological story of Charybdis and Scylla. So the new Art 21 looked thus,
“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
During the discussion on Art 22 that delved with the degree of Constitutional protection against arbitrary arrest, Ambedkar after defending the clauses from Art 22(3) to Art 22(7) and vigorous debate in September 1949, said,
‘My friends and I had been trying in some way to restore the content of the due process of law in its fundamentals without using the word “due process” ‘
Thus from the above-mentioned arguments, it could be devised that
1. Art 22 was not to be a complete entity in itself (silos theory)
2. It doesn’t exist in silos but with the whole “Spirit of Constitution of India”
Mindless Mind of Supreme Court :
Though with the established idea of Framers of the Constitution along with its historical setup Hon. Supreme Court applied the “silos theory” in its interpretation starting with A.K GOPALAN CASE (1950), ADM Jabalpur Case (1976) and so on. With the Judicial Activism sprouting in the 1980s as Upendra Baxi says “Social Action Litigation” (SAL) duly countered by Anuj Bhuwania in his ” Courting the people (2017)”.The last nail in the coffin was the Maneka Gandhi Judgement (1978) which upheld the principle of “due process of Law” being inherent in ART 21 of the Constitution of India.
Thus, as observed above what Maneka Gandhi judgement (1978) has propounded i.e., ‘Substantive Due Process of Law’ in the words of Gautam Bhatia, is indefensible as a matter of constitutional interpretation, unnecessary for achieving substantial safeguards on personal liberty, and damaging in other respects, then, perhaps, instead of granting it uncritically canonical status, it ought to be better understood as a well-intentioned but misguided, wrong turn! Maneka Gandhi Judgement (1978) can’t be defended on Constitutional Grounds and its defence till now has largely been vague and consequential punctuated with what if’s! It is incorrect and ought to be overruled. One doesn’t have to take refuge of vague and non constitutional grounds to haphazardly bring the dictum of ‘due process of law’ via Art.21 of Constitution of India but a resort to “Spirit of Constitution” which was envisaged by Dr.B.R.Ambedkar via his speeches and writings taking its crux from Constitutionality and Constitutional Morality based on pragmatism and facts by taking a cue from Historian Grotius. Dr.Ambedkar had already anticipated the need for such substantive due process taking inspiration from the fourteenth Constitutional Amendment and thus while arguing the case of “due process of law” via the modes of Art.22 and “spirit of Constitution” a major loophole can be plugged by reversing the Maneka Judgement and imbibing its very essence via Dr.Ambedkar’s methodology as explained above to rule out the the element of discretion and thus ideological assaults and individual biases which ultimately corrupt and assault the democratic Institutions. Thus, the mentioned modus-operandi can put a full-stop to the degradation of Institutions that signify as well as to epitomize democracy nullifying all the biases that have crept in via the Brahmanical codes of Conduct that dominate the Caste Hindu Majority of the Country and thus if not arrested in time shall lead the country to peril. What is the need of the hour is reading and rereading of Dr.Ambedkar and to pay heed to his warnings by taking tangible actions akin one mentioned and explained minutely above to uphold and save Democracy and instill in the populace the essence of Constitutional Morality which shall be a mirror image of Social Morality and thus establish a Begumpura to use Sant Ravidas analogy, a Land where Justice, Liberty, Equality and Fraternity are the most cherished and nurtured ideals!
Nikhil Sanjay-Rekha Adsule is pursuing Masters of Law from TATA INSTITUTE OF SOCIAL SCIENCES (TISS). He dreams of creating a BEGUMPURA of Genderless, Casteless and Classless India.