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Friday, August 06, 2021

India’s charter

Right to life enshrined in Article 21 of the Constitution draws on Magna Carta.

Written by Yuvraj Singh |
Updated: June 19, 2015 12:00:03 am
Magna Carta,  peace treaty,  peace treaty Magna Carta, right to life, right to liberty, indian constitution, Article 21, Magna Carta peace treaty, political peace treaty , Yuvraj Singh column, ie colum, indian express column Thus Article 21 ultimately relies on Magna Carta and due to judicial interpretation, it has evolved so that today, all Indians, irrespective of gender, religion or caste, are able to enjoy the liberties and protection it guarantees. (Source: Reuters)

The world is celebrating the 800th anniversary of Magna Carta. Magna Carta, or the Great Charter, was signed between King John and the great barons of England in 1215. This charter reduced the arbitrary powers of the king and was intended to protect the feudal rights of the barons. That this agreement, observed more in its breach than honour, would influence different races and cultures across the world would have astonished its authors. Clause 39 of this agreement provides that: “No free man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgement of his peers or by the law of the land.” In the 17th century, Edward Coke, James I’s chief justice before he turned against the monarchy, argued that Chapter 39 set limits on the king.

The English carried the principles of Magna Carta to their colonies. Although England seemed to have lost interest in the charter, it found new life in America and other colonies. Coke himself wrote the First Virginia Charter, guaranteeing settlers rights as free English subjects. The Americans turned to Coke and his defence that “when an act of parliament is against common right or reason, or repugnant or impossible to perform, the common law will control it and adjudge such an act void”. The constitution of the US is based on the rule of law and is the supreme law of the land. The Bill of Rights relies heavily on Magna Carta, and Clause 39 is the forerunner to the fifth and 14th amendments to the US constitution.

One of the great British exports to its colonies was the rule of law. In India, the modern concepts of rule of law and equality before law were introduced by the British. This meant that their administration was to be carried out, at least in theory, in obedience of the law, which clearly defined the rights, privileges and obligations of the subjects, and not according to the caprice or whims of the ruler. The framers of the Indian Constitution provided for fundamental rights modelled on the Bill of Rights, and Article 21 drew inspiration from the fifth and 14th amendments. Article 21 provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. Thus Article 21 ultimately relies on Magna Carta and due to judicial interpretation, it has evolved so that today, all Indians, irrespective of gender, religion or caste, are able to enjoy the liberties and protection it guarantees.

Unfortunately, the courts in India, from A.K. Gopalan (1950) to ADM Jabalpur vs Shivkant Shukla (1976), refused to read the term “procedure” established in Article 21 as due process of law provided under the fifth and 14th amendments, thus severely curtailing the right of citizens to seek remedy before the courts in case of excesses by the government of the day. This position underwent a sea change in Maneka Gandhi vs Union of India (1978), where the Supreme Court held that not only substantive law but also procedural law has to be fair, not foolish, carefully designed to effectuate and not subvert the substantive right itself.

Post Maneka Gandhi, judicial activism led to a plethora of cases where the SC has interpreted Article 21 in a broad manner, bringing relief to citizens as well as non- citizens, not only against arbitrary actions but also inaction on part of the government. Further, the SC held in Shatrughan Chauhan vs Union of India (2014) that the rights of a person extend beyond pronouncement of sentence, and inordinate delay in execution amounts to cruelty and hence a violation of rights under Article 21. So it is a ground for commutation of sentence. Similarly in Nalsa vs Union of India (2014) the SC recognised the rights of transgenders as the third gender. Referring to the Isha Upanishad (1500-1600 BC), the SC, in Animal Welfare Board vs A. Nagaraja (2014), stated that “the universe along with its creatures belongs to the land.

No creature is superior to any other. Human beings should not be above nature. Let no one species encroach over the rights and privileges of other species.” Observing the slow but certain shift from an anthropocentric approach in international environmental law, the court asserted that every species has an inherent right to live and shall be protected by law. Yet again, the court did so by expanding the meaning of the term “life” in Article 21 and referred to Magna Carta as the source of the rule of law. The barons of England would sit up in their graves if they were informed that the document they signed has travelled so far in space and time.

Singh is assistant director, School of Law, Raffles University, Neemrana. This article was co-written by Jitesh Maheshwari, a student at the School of Law, Raffles University

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