The Drafting Committee Knew 'Due Process' Would Have Stopped Preventive Detention — and Voted to Keep Preventive Detention

The standard story of Article 21 is a story of growth. The framers, the story runs, settled in 1948 for a thin, textually cautious clause — 'procedure established by law' — because the Lochner-era American experience had spooked B. N. Rau and Felix Frankfurter had told him to be afraid. Gopalan (1950)⁵ took that thin clause at its word; Maneka Gandhi (1978)⁶ realised it was a mistake and read due process back in; Puttaswamy (2017)⁷ completed the cycle by making substantive due process do everything the framers had quietly wanted it to do. The Indian rights jurisprudence we live under is, on this account, a long, slow correction of a 1948 fumble.

I want to argue that this story is, with the kindest possible gloss, false. The framers did not fumble. They had two full sittings of debate on whether to write 'due process of law' into the Constitution — on 6 December 1948¹ and 13 December 1948². They knew what the phrase did in American hands. The worked example sitting on the floor of the House when they voted was preventive detention. They could see that 'due process' would have made the preventive-detention regime they were already drafting into a felony against the Constitution. They voted, by a clear majority, to keep preventive detention, and they rewrote Article 21 in the only words that would let them do so.

That choice is what we have spent fifty years pretending not to make. The pretence is comfortable. It lets us keep Maneka and Puttaswamy while telling ourselves we are reading the Constitution rather than rewriting it. But the pretence has a price. It corrupts our doctrinal arguments about every preventive-detention statute. It corrupts our textbook accounts of the Constituent Assembly. And it lets the Supreme Court continue to make law in rights cases under the cover of interpretation rather than in the open. The honest move is to call the move by its name. The framers refused due process with their eyes open. The Court overruled them. Both halves of that sentence deserve to be said out loud.

The myth of the Lochner-spooked framer

Every Indian constitutional textbook tells one half of the December 1948 story. B. N. Rau met Frankfurter in late 1947⁹. Frankfurter said due process was 'undemocratic' because it gave a few judges a veto over legislation. Rau came home, persuaded the Drafting Committee, and 'due process of law' became 'procedure established by law' borrowed from Article 31 of the Japanese Constitution. Chandrachud's Oxford Handbook chapter on due process⁸ is the cleanest version of this account, and it is the one I learned in law school. It is also the one taught in every constitutional law classroom from Bangalore to Bhubaneswar.

The account is true as far as it goes, and it is incomplete in a way that matters. It treats the deletion of 'due process' as a decision about social legislation: the framers feared an Indian Lochner that would strike down price controls and minimum-wage laws. That fear was real. Rau had written it down in September 1946 and again in April 1947. Ayyar repeated it in the Assembly. Both worried about courts standing in the way of 'beneficient social legislation.' Rau even singled out price-control legislation as the kind of statute he feared an Indian court would invalidate under a generously read 'liberty.'

But Lochner is not what the Assembly was actually arguing about in the first week of December 1948. The Assembly was arguing about arrest. About detention. About what would happen, in a country two months out of Partition and run on public-safety acts in every Province, if the courts could look at a detention law and ask whether it was substantively fair. The Province of Bombay, the Punjab, Madras and the United Provinces had public-safety legislation in force on the day the Assembly debated Draft Article 15. Hundreds of detenus were inside those statutes' reach. The framers were not theorising. They were drafting a constitutional ceiling under a detention floor that already existed.

Karimuddin opened the debate on 6 December¹ by accusing the Drafting Committee of importing the Japanese Article 31 phrase while quietly leaving out Articles 32, 34 and 35 of that same Constitution — the access-to-court, right-to-counsel and search-warrant clauses that gave the Japanese phrase its bite. Mahboob Ali Baig moved the Irish 'save in accordance with law' formulation. Bhargava moved the American 'due process of law.' Munshi delivered the speech that Maneka would later quietly canonise: 'procedure established by law' left judges as 'helpless spectators.' Bhargava called the article, in its due-process form, a 'Magna Carta along with article 13', a 'victory for the judiciary over the autocracy of the legislature.' Z. H. Lari closed for the due-process side and accused Alladi of dismissing the legal profession itself.

This is not the language of people debating social-welfare legislation. It is the language of people debating who can hold a citizen behind bars without trial.

Read the Vol VII transcript with that in mind, and the December 1948 debate is the most concentrated criminal-procedure debate of the entire Constituent Assembly. The seven supporters of due process — Karimuddin, Baig, Bhargava, Munshi, Pataskar, C. C. Shah and Lari — were not asking for an industrial-relations review power. They were asking, in plain words, for the power to challenge a Public Safety Act in the courts on the ground that its substantive grounds for detention were unjust. The Assembly knew exactly what was being asked for. It said no.

What Alladi actually said

The Drafting Committee's defence on 6 December came from Alladi Krishnaswami Ayyar, whose long speech is the canonical text for everyone who later argued that India was right to reject due process. Alladi raised the Lochner worry. He raised judicial vagueness. He warned of 'judicial vagaries in the moulding of law.' He pointed out that 'due process' meant, in the American mouth, 'whatever the Supreme Court says it means in any particular case.' All of this is in the textbooks.

What is less often quoted is the rest of the same speech, where he turned to detention. India, Alladi said, was a country in the conditions of post-Partition turmoil. Public-safety acts were in force everywhere. Preventive detention under those acts could not afford American-style judicial review of substantive legislation. The Assembly could not write a clause that would let the Federal Court look at a public-safety act and ask whether it was substantively fair. The Republic, in 1948, could not survive that level of judicial second-guessing.

I think Alladi was wrong about the institutional capacity of the new Federal Court. I think he was right about what 'due process' would do to preventive detention. Those two propositions are not in tension. The 1948 Assembly listened to him and concluded he was right on both. The vote on 13 December was the result.

It is worth pausing on Ambedkar's own posture on 13 December², because the Ambedkar of the textbook accounts — the great architect, the rights-defender — is not the Ambedkar of that sitting. Ambedkar's reply on Article 15 was uncharacteristically agnostic. He framed the question as judicial supremacy versus legislative trust. He weighed the danger of 'a Legislature packed by party men' violating fundamental principles against the danger of 'five or six gentlemen sitting in the Federal or Supreme Court… by dint of their own individual conscience or their bias or their prejudices' judging laws good or bad. He famously left the choice to the House: 'a man has to sail between Charybdis and Scylla and I therefore would not say anything. I would leave it to the House to decide in any way it likes.'

The House decided. All four 'due process' amendments were negatived. The original Drafting Committee text was retained. The chairman of the Drafting Committee, the architect of the Constitution, refused to take a side — but he had drafted the narrower text, he had not moved to replace it, and he was about to spend the next eleven months drafting Article 22 to make the choice operational. To call this a fumble is to misread the man and the moment.

Article 22 is the confession

If anyone doubts that the framers knew exactly what they were doing on 13 December 1948, the proof is in what they did nine months later. On 15 September 1949³, Ambedkar rose to move New Article 15-A — final Article 22 — and said, with the candour that he sometimes permitted himself, that 'a large part of the House including myself were greatly dissatisfied' with the narrow Article 15 they had passed; that the public outside had 'violently criticised' it; and — this is the central sentence — that 'we are providing for the substance of the law of due process by the introduction of article 15A.'

So far so reassuring, until you read the article. Article 22 codifies two universal procedural safeguards on arrest — grounds to be informed, counsel of choice, magistrate within 24 hours — and then in clauses (3) through (7) it cuts a hole in the middle of that protection big enough to drive a regime through. The CrPC safeguards do not apply to enemy aliens or to persons detained under any law for preventive detention. Persons preventively detained may be held up to three months without Advisory Board review. Parliament may, by law, prescribe longer periods. The Advisory Board need only consider whether there is 'sufficient cause' for detention. The detenu has no right of cross-examination. The grounds of detention may be withheld in the public interest.

This is the 'substance of due process.' Read the clauses aloud. They are the constitutional permission slip for what would become the Preventive Detention Act 1950, MISA, COFEPOSA, the National Security Act, TADA, POTA and UAPA. They are not a slip of the framers' pen. They are the precise, deliberate accommodation that allowed Ambedkar to look the House in the eye and say 'we have provided for due process' while protecting the regime that the December debate had been waged to protect. Article 22 is what 'due process' looks like when a Drafting Committee writes it to be compatible with preventive detention. It is the answer to the question: how do you give the House a partial concession on procedural rights without giving the Federal Court the substantive review power that the December debate refused?

If you want to be even more direct about it, read the November 1949 Third Reading. Defending Article 34 (martial law), Ambedkar said in terms that without that article, Articles 20(1) and 21 would render the administration of martial law 'quite impossible'⁴. He understood, as clearly as anyone could, that the rights he was writing into Part III were rights that could and would be cut against by the security-state machinery he was writing in alongside them. Those were not unintended consequences. They were the design. Article 359 — the Emergency suspension clause — finished the architecture. Article 21 was to be a fair-weather right.

What Gopalan got right, and Maneka had to overturn

For most of my professional life I have read Gopalan as a cautionary tale — the high court of post-colonial textualism, the case the rest of Indian constitutional law was built to escape. Read against the 1948 record, Gopalan is something quite different. It is the only Supreme Court judgment that read the Constitution the way the Constituent Assembly had written it.

Sastri J at paragraph 125 said the obvious thing: importing American due process would resurrect 'those subtle and elusive criteria… which it was the deliberate purpose of the framers of our Constitution to avoid.' Das J said it more bluntly at paragraph 281: to bring in the American doctrine in spite of the deliberate deletion 'will be to stultify the intention of the Constitution as expressed in Article 21.' These were not narrow textualist tics. They were, in 1950, the readings of judges who had been in the room when the Assembly voted. Sastri and Das both knew what 'procedure established by law' had been written to mean. They did not need a footnote.

The price of being correct was that Gopalan upheld a preventive-detention statute that would have failed any honest substantive review. Indian constitutional law, faced with that price, eventually decided it was a price too high. That decision is intelligible. What I want to insist on is that it is a decision — a political and moral decision about which part of the framers' actual settlement to keep and which to discard — and not a discovery of what the Constitution had always meant.

The seven-judge bench in Maneka Gandhi⁶ did the constitutional repair work that the Constituent Assembly had refused to do. Bhagwati J read into Article 21 a requirement that any procedure depriving life or personal liberty be 'fair, just and reasonable, not fanciful, oppressive or arbitrary.' Three judges on the Maneka bench — Beg, Chandrachud, and Bhagwati himself — had been in the ADM Jabalpur¹⁰ majority that had refused habeas corpus during the Emergency. The repair was not abstract. It was personal. Bhagwati, in particular, was writing himself out of a 1976 majority that had told a country its detenus could be killed in their cells with no judicial remedy.

I do not think the Maneka court was wrong to repair the breach. I think it was wrong to pretend it was interpreting it. The 'fair, just and reasonable' standard was nowhere in 1948 — except in the four amendments the Assembly voted down. To read it into Article 21 was to read into the Constitution the rejected text. The judges did that, with strong moral cause, and the country has lived inside the result for half a century. But the legal profession has never made its peace with the move's structure. We treat it as an act of constitutional reading rather than what it is: a 1978 amendment of the 1948 settlement, carried out by a bench rather than by Parliament under Article 368, and given the colour of textual reasoning to avoid saying so.

Puttaswamy⁷ in 2017 took the move to its logical end. Nine judges held the right to privacy to be part of Article 21 and constructed an explicit proportionality test that any state interference with privacy must satisfy. This is full-throated substantive due process. The judgment is, in its values, very nearly the best thing the Supreme Court has done in a generation. It is also, on the text of Article 21, an invention. The framers debated whether to write that test into the Constitution and refused. The Court has now written it in. Pretending the framers always meant it is not a defence of the Court's role. It is a refusal of that role.

Some readers will say at this point that Maneka can be defended on a narrower textual ground: that the word 'law' in 'procedure established by law' must mean a law that satisfies Articles 14 and 19, and so the 'fair, just and reasonable' standard enters Article 21 by the back door of the equality clause. This is the elegant move that Krishna Iyer J made in his concurring opinion in Sunil Batra. It works as a piece of doctrinal carpentry. It does not save the textbook story. Because the Constituent Assembly that wrote Article 21 also wrote Article 14, and it did not think that one clause silently consumed the other. The Articles 14-19-21 triangle is itself a 1978 doctrinal construction. The framers neither anticipated it nor approved it. The carpentry is post-hoc.

The counter-argument, addressed honestly

The strongest version of the case against this essay's argument is institutional. It runs roughly as follows. The Constituent Assembly was a body of about 300 members, elected indirectly under the 1935 Act on a narrow franchise, drafting in conditions of communal violence and external instability. Its choice to refuse 'due process' was made under pressures — preventive detention, public-safety acts, post-Partition disorder — that no longer obtain. The 1978 and 2017 benches were responding to a country that had survived an Emergency, a country in which the political checks the Assembly had relied upon — a self-restraining executive, a strong Parliament, a coherent federal structure — had visibly weakened. In that environment the Court did what an honest reading of the Constitution-as-living-document required. It updated the rights regime to meet the threats actually present. Calling that 'amendment without Article 368' is a textualist quibble against a substantive achievement.

A second strand of the same argument goes through originalism's own difficulties. Original intent in India, the argument runs, is harder to recover than in the United States — the Assembly's record is fragmentary, its votes were sometimes taken on amendments before the final clauses were stable, and its members included partisans of every constitutional tradition then current. To privilege any one moment of that record — and especially the 13 December vote — over the broader project of the Assembly is to caricature originalism. The framers, this view says, gave us a Constitution capable of growing. They did not give us a fixed code with a 1948 lock on its meaning.

There is real force to both strands. I would not give up Maneka or Puttaswamy for the sake of an argument about candour. The rights they protect are rights the Republic now needs the Court to protect, because the political branches will not. If the question is whether the post-Maneka edifice should be torn down because it does not match the 1948 text, my answer is plainly no.

But that is not the question I am asking. The question is whether we should keep telling ourselves, in our textbooks and our writ petitions and our law-school syllabi, that the framers always wanted what the Court has now given us. Because we are doing two things at once that cannot both be true. We say the framers refused due process because they were spooked by an old American case-law moment that has since been overruled. And we say the framers always meant due process to be read in. The first concedes that the framers chose the narrow text; the second pretends they chose the wide one. Both cannot be right, and the second is the one we say in public.

The honest position is that the framers chose preventive detention. They wrote Article 22 to make sure that choice would survive judicial review. They wrote Article 34 to make sure it would survive martial law. They wrote Article 359 to make sure it would survive an Emergency. The Court has, over fifty years, dismantled all three of those design choices — partially in Maneka, more fully in Puttaswamy, and almost completely in the post-2017 privacy and procedural-fairness cases. That dismantling is judicial amendment. Calling it interpretation is a kindness we have extended to the Court for too long.

What changes if we stop pretending

I want to be specific about what is at stake in calling the move by its name. Three things change.

First, our argumentation about preventive-detention statutes — UAPA, the NSA, the various state public-safety acts — gets sharper. At present we challenge them as inconsistent with a 'fair, just and reasonable' Article 21 that we know perfectly well was a 1978 invention. The state, in defence, points to the 1948 text and to Article 22 (which authorises the very thing being challenged). The honest argument we should be making is not that the statute violates the original Article 21. It is that the post-1978 Article 21, having been judicially amended, has displaced parts of Article 22's authorisation. That is a much harder argument to win, and it is the one we owe the framers the courtesy of making out loud. It forces the Court to defend its own amendments rather than hide them inside the 1948 text.

Second, our scholarship gets better. Half the journal-article output of the past twenty years on Article 21 is devoted to extracting, from a handful of speeches by Munshi and Bhargava, a 'true intention of the framers' that supposedly was suppressed by Alladi and Rau and only liberated by Bhagwati. There is no such intention. The Assembly voted. The intention is the vote. Pretending the vote was a clerical error has wasted a generation of constitutional thought. It has also produced a peculiar genre — the 'lost minority view' essay — that treats every defeated amendment as the secret real meaning of the text. That is not a methodology. It is wishful reading.

Third, the case for judicial activism in rights cases becomes a candid one. The Court can argue — Khanna J in dissent in ADM Jabalpur argued exactly this — that some rights are antecedent to the Constitution, that they survive any text the Constituent Assembly may write, and that a Court charged with the rule of law must enforce them whatever the text says. That is a defensible jurisprudence. It is the natural-law jurisprudence of Coke and of the American Declaration of Independence. The Indian Supreme Court has been doing it since Maneka. It should be willing to say so. And once it does, the conversation about which rights count as antecedent — and which are merely the present Court's policy preferences — can finally happen on the right terrain.

I am not arguing for a Constitution stripped of Maneka's rights or Puttaswamy's proportionality test. I am arguing for an Indian constitutional law that owes its citizens — and its dead framers — the courtesy of saying what it is doing while it does it. The 1948 vote was the most important constitutional choice India ever made about the relation between citizen and security state. We owe that vote at least the dignity of being able to say what it was.

What 1948 chose and what we chose

What the Constituent Assembly chose, on 13 December 1948, was a Constitution under which Parliament could detain a citizen without trial, subject only to the limited safeguards of Article 22, and under which the courts had no business asking whether the detaining law was substantively fair. That choice was made with the assassination of preventive-detention review in plain view. The Assembly did not stumble into it. Alladi argued for it. Ambedkar refused to argue against it. Four amendments were put to the House and four amendments lost.

What Indian constitutional law chose, in 1978 and 2017, was a different Constitution. The framers were not careless. They were candid. They built a Constitution that licensed preventive detention, and they refused to write a clause that would have killed it. The Court that came after disagreed. It was right to disagree. It should say so in those words.

Get the week's biggest decisions, distilled.

A weekly digest for lawyers, students and the legally curious. Every Friday morning. Free.