Processing Due Process

A key to the development of a wholly intellectual branch of legal knowledge, as opened up by the proactive role undertaken by the Supreme Court of India, engaging in the much appreciated and acclaimed era of judicial activism stems from the innovative exercise of interpreting various important provisions of the constitution in light of a presumed availability of due process. This, despite the fact, that any direct reference to the concept itself is conspicuously absent in the constitutional text. However, judicial interpretation of the constitution has provided a deep insight into the necessity and the veracity of incorporating a due process regime in our legal system.

A past constitutional reality – Rejection of Due Process or a balanced forethought of functional reality

Constitutional historian Prof. Granville Austin provides us with a veritable account of the ‘incorporation’ of due process in the constitution of India. In his distinguished book, ‘The Indian Constitution - Cornerstone of a Nation’, he discusses at length the assembly’s efforts at limiting the influence of due process in the new constitution. Due process in the constituent assembly was the subject matter of intense debate on two grounds, firstly with property acquisition and the consequent determination of compensation and secondly, preventive detention. Primarily the issue of property was sought to be resolved by excluding the term property from Article 21. Corrections made to Article 31 also ensured that, the determination of compensation would be left to the legislature and the power of the court to review the same was severely restricted. The very first amendment to the said article inserted Articles 31A and 31B along with the ninth schedule, which further alienated the courts by taking away, property acquisition and compensation from under the purview of Articles 14 and 19 as well.
It was also observed by the Fundamental Rights advisory committee that insofar as the applicability of due process to arrest and detention was concerned, the executive would not be empowered to detain any person without a trial. Even though such a restriction on arbitrary executive fiat was a welcome addition, certain other reasons impeded the incorporation of due process in its entirety. Certain key members of the assembly had at the time been greatly influenced by the works of a great American lawyer named James Bradley Thayer, who insisted that there must exist a distinction between legislation and adjudication in terms of preventing the judiciary from usurping the power by replacing the democratic value choices with that of their own. He believed that any absolute reliance on due process as a tool to safeguard against legislative oversight and executive fiat would weaken the democratic process (as acknowledged and discussed in ‘Originalism in American Law and Politics’ by Johnathan George O'Neill at p44). This view was supplemented by Justice Felix Frankfurter who suggested to Sir BN Rau, that an absolute incorporation of due process could not only be undemocratic but also be burdensome on the judiciary. Therefore it was widely acknowledged in the assembly that a balance should be achieved between protection of individual liberty against prejudicial action and safeguarding social reform legislation from the excesses of due process.
Due process was therefore intentionally omitted in favor of the Japanese ‘procedure established by law’, which largely ensured that social reform legislation would not be subject to the ‘excesses’ of due process and the demands of draft Article 15 (now Article 21), would be confined to procedure established by law, where law would be construed to mean legislation as opposed to natural law or natural justice. Owing to trenchant criticism on these grounds however the assembly adopted much later, a draft Article 15A (now Article 22), which provided further safeguards against arbitrary arrest and detention with preventive detention being the exception rather than the norm.

The current definition of due process – A presumptive evolution or a justified reality

As an inherent aspect of modern American constitutionalism due process was incorporated through the Fifth Amendment to the American Constitution wherein it famously declares that no person shall be “deprived of life, liberty, or property without due process of law”. Therefore under the due process regime in the American legal system, any law depriving a person of his life, liberty, or property must stand the test of reasonableness wherein any deprivation of property would require a just compensation to be paid and wherein the deprivation of all liberties must stand test to the strict demands of reasonableness. Under the Indian Constitution, this was however, given up in the interests of a young developing nation seeking to achieve socio-economic reform. A shadow of due process however remained in the incorporation of the specific freedoms under Article 19 (1), the deprivation of which would be subject to just, fair and reasonable grounds only or the reluctant inclusion of Article 22 which was immediately the subject matter of fierce constitutional debate in the AK Gopalan’s case. The view therein expressed by the Supreme Court was however deeply discouraging to the proponents of a due process regime under the constitution of India. The issue in question was, the construction of article 22 based on standard rules of Constitutional interpretation. Rejecting the contentions of the petitioner, the Supreme Court upheld a narrow interpretation of both Articles 22 and 21 and ensured that they shall not be read in conjunction with Article 19 which would invariably lead on towards an indirect incorporation of due process into Article 21.
This view was finally acknowledged in the landmark judgment in Maneka Gandhi’s Case wherein it was held that Article 19 and Article 21 must be read in light of each other. This further strengthened the applicability of due process by appreciating the existence of a procedural due process within Article 21. The Supreme Court further acknowledged the existence of due process by declaring that Article 21 and 19 must be read in conjunction with Article 14 and as such it is now an accepted standard rule that any law depriving any person of his life or personal liberty would have to stand the test of reasonable restriction evolved by the Supreme Court under Article 19 and similarly any classification so depriving and class of people, any such right must stand the test of reasonableness of classification under Article 14. However, the true extent of this form of an evolved due process can only be appreciated upon an understanding of the interpretation of the terms, liberty and life as discussed in this judgment.
The illustrious bench decided to agree with the statement made by Justice Stephen J Field on the interpretation of the term life (By the term "life," as here used, something more is meant than mere animal existence) in his dissenting opinion in Munn V Illinois. As to the interpretation of the term liberty, though qualified by the term personal prefixed to it, the court held that, the term brought within its ambit, a variety of rights that contributed to the development of an individual's personality such as ‘freedom to travel abroad’. This view turned out to be of great significance inasmuch as the applicability of due process is concerned. Such a wide interpretation of the terms life and personal liberty under Article 21 when read in conjunction with the concept of reasonableness underlying Article 19, paved the way for interpreting into Article 21 the existence of a subtle and indirect applicability of substantive due process. The same has from then onwards been reflected in the various decisions of the Supreme Court; reading into Article 21(a provision obviously worded to be a procedural right), innumerable substantive rights like, right to privacy, right to livelihood, right to a clean and healthy environment and such other rights as being eligible for seeking protection against deprivation through the applicability of due process.
The rights to property however, suffered a set back in terms of the deletion of Article 19(1)(f), from part III. The significant development denying due process therein was however, the first amendment which inserted into part III, Articles 31A and 31B along with the ninth schedule. These new provisions sought to eliminate property from the ambit of due process in its entirety by excluding judicial review on the grounds of deprivation of Articles 14 or 19. However, post Maneka Gandhi decisions of the Supreme Court have ensured that all such legislations that are inserted into the ninth schedule remain open to review on the grounds of the nexus between their purposes and object being subject to judicial scrutiny.
The key to development however, lies in working of the law in relation to the current socio-economic and political scenario, rather than relying on expansive legal theories. Despite the noticeable difference in interpretation between the intention and the application of this principle, it is undeniable that the current socio-political situation demands a liberal approach to constitutional interpretation. However the question as regards with whether the situation would be any different with the standard interpretations can only be answered at this juncture with speculation and hypothesis. The latter could probably lead towards an undertaking of extensive research which would undoubtedly be of great practical significance.

Sreenidhi .K.R, M.L

LIBERALIZATION FROM DOGMATISM

With the inclusion of American based teaching methodology in the form of setting up of independent schools (Dartmouth College v. Woodward, 17 U.S. 518 (1819); where the court affirmed that that state charters establishing private schools and colleges were essentially inviolate. Charters, said the court, were contracts, protected by the Constitution, and could not be unilaterally dissolved by the state. Thus, the independence and freedom of action of non-governmental schools were guaranteed) Teaching law, into a country as India where historically legal education in India was open only to graduates and seen merely as professional training had its own inadequacies. Dismayed at the quality of legal education in conventional universities, several members of the legal fraternity debated for a new system of legal education throughout the 1970s and 1980s, set up as a "pace-setter and a testing ground for bold experiments in legal education". NLSIU, often called the "Harvard of the East" has been rated as the best law school in India (9 out of past 10 years by India Today). Currently modern teaching aids, infrastructural facilities, a well stocked library, a holistic approach to teaching, promise a better tomorrow for the entire legal system. What came as an institutional response to keep abreast with this trend setter is the requirement for autonomy and a renewed demand for a deemed university status. Although I personally agree with the fact that while law is taught in colleges as a discipline the objective ought to be to encourage the student to capitalize his/her ability to think and react originally, in depth and diversity without there being a hint of how he/she would respond to questions posed by the court in the future if he/she were to decide to take up practice of law in courts. Starkly most students in non-NLSIU pathway, keep a marginal view to participate and perform in academic activity. Although workshops, seminars and guest lectures are part of the prescribed methodology, there are hardly few takers on competitive grounds. Discussing this trend amongst law students I get a disappointing response that most believe that law is different from what is practiced in the courts to what is taught in the class. We regularly discuss about privatization, liberalization and globalization without pondering about whether our minds have begun to think and react liberally and competitively, much more, have we been encouraged by our resourceful faculty to take that next step? Facilitating such surge towards excellence is the unsung hero, and the observation of the Apex Court in the case of Avinash Nagra v. Navodaya Vidyalaya Samiti etc (CDJ 1996 SC) rings a bell somewhere “...our society has elevated the teacher as `Guru Brahma, Gurur Vishnu Guru Devo Maheswarara'. As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge, discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teacher is preserver of learning. As Maheswara, he destroys ignorance”. We hardly seem to consider whether we are built to handle the responsibility that liberalization, globalization and privatization brings within its fold to an area that would enable us to conquer new heights or perhaps eke out a living. The question ought not to be whether liberalizing professional education for a global requirement provides an answer but whether we are prepared to liberalize our approach in light of a global requirement to bring in competitiveness, creativity and challenge to archaic ideas, teaching methodology and career skills in furtherance of our commitment to achieve new horizons. Perhaps we need to look back at our roots to begin with rather than look forward with no sense of identity or individuality.

Zul Kafeel
mail your comments to zkadvitam@gmail.com

INTERDISCIPLINARY APPROACH TOWARDS TRADITIONAL DISCIPLINES –CHALLENGES AND PERSPECTIVES”

When the whole tedious process of education begins; it begins as one common pursuit of knowledge. Then comes a point in time where this pursuit branches out into various disciplines or faculties. The time to make a choice; to choose one path which would lead each towards his own destiny, until such time as he may chose to tread it. However, as the more inclined amongst us reach out further than the rest, or as the more adventurous decide to step away from the beaten track, ironically, boundaries between different disciplines begin to fade. Some issues bear certain complexities that cannot be provided a complete perspective with the traditional methodology of focusing on a single discipline. If interdisciplinary relationships are allowed to foster these relationships might go a long way in promoting a critical dialogue between such disciplines and brood innovative issues of commonality that are beyond the resources of individual disciplines alone.
It follows logically that incorporating an interdisciplinary approach would result in a reduction in the number of issues being viewed from the traditional disciplinary perspective. However, incorporating such an approach is not without its own share of problems. Primarily it is a problem involving a loss of disciplinary depth resulting in a distortion of the systematic approach towards certain logic, facts and presumptions inherent in every discipline. Therefore it goes without saying that incorporating an interdisciplinary approach must not completely replace the traditional disciplinary approach. The attempt should rather be to retain, at least in essence, the mental models, cognitive maps and educational frameworks of such traditional disciplines. Another related concern is about the language. Every discipline has a distinct, discipline-specific vocabulary. It is important to ensure that every new methodology based on an interdisciplinary approach, where students are encouraged to achieve breadth as well as depth, require the language of disparate disciplines to be explicitly taught.
It is also noteworthy to observe that every student usually seeks to study a discipline in which he/she believes to have natural talent. While on the one hand students who have inculcated a narrow approach towards the study of their respective disciplines may find it hard to digest a cross-disciplinary or interdisciplinary approach, the same may benefit students who have broader interests. It is perhaps interesting to note that an illustrative example towards laying emphasis on this issue is the integrated five year LLB program available in most Universities across India. This program incorporates the study of various law and non- law subjects simultaneously as part of the same graduate program, wherein students are exposed to a composite, yet comprehensive syllabi that seeks to provide a wide perspective towards inculcating a deeper understanding of the law and the legal system.
In such courses and elsewhere an increasing number of faculty are now involved in working with interdisciplinary settings like these. The challenge from their perspective is to identify how pedagogical approaches can facilitate the ability to integrate the varied methods, systems and approaches that all such disciplines have to offer. The biggest challenge to such faculty is perhaps the democratization and internationalization of higher education, which warrants the acknowledgment of not only a multi-disciplinary but also a multi- cultural approach towards pedagogy. The incorporation of any such interdisciplinary approach to a program means that, for various reasons, students may be inclined to focus on subjects towards which they would not otherwise be inclined. It is therefore most important to introduce a comprehensive system of retaining an equitable academic orientation towards each of the disciplines which are addressed therein. As an issue of prime importance it is needless to say that any purposeful and directed interdisciplinary work by such faculty requires an appropriate system of rewards, promotion, funding, grants and recognition.
It is perhaps a paradox of our times that every new approach under the auspices of existing system is met with cynical views which seem to indicate a certain inherent aversion towards the new and the untested. Innovation is and has proved to be the key to success, nay survival in a modern liberalized economy. The same is true not only for businesses, but for every sphere of human activity. The present is a time for achievers and there is probably no better way to achieve than to dare to be different. Education is one such area which demands innovation and the same can only be achieved through focused leadership and an orientation towards change. Most of these modern approaches to education are the products of such creative endeavor and demands encouragement rather than skepticism.

Sreenidhi K R
For comments mail to skr.advitam@gmail.com

“GLOBAL ESSENTIAL REQUIREMENTS”

Globalization forces are becoming increasingly apparent in professional education. Human creativity demands that globalization includes activities in the intellectual and cultural domains. Various multilateral agreements and conventions are opening the doors to global mobility and encouraging the development of common educational standards, mutual recognition of qualifications, and certification processes by which professionals are allowed to practice their vocation. In defining the essential competencies that all professionals must have, an increasing emphasis needs to be placed on professionalism, social sciences, economics, law, education and the management of information. This must be done in the context of social and cultural characteristics of the different regions of the world. The exact methods and format for teaching may vary from school to school but the competencies required must be the same. Thus, the concept of 'essentials' does not imply a global uniformity of curricula and educational processes. To retain and advance competencies acquired in professional colleges, graduates must be aware of their own limitations, the need for regularly repeated self-assessment, acceptance of peer evaluation and continuous undertaking of self-directed study. These personal development activities permit the continued acquisition and use of new knowledge and technologies throughout their professional careers. The 'Essentials' alone are not likely to change graduates’ competencies unless they are linked to evaluation of students' competencies. This will ensure that graduates, wherever they are trained in the world, have similar core competencies at the start of further graduate education (specialty training) or when they begin to practice their profession under the appropriate, nationally determined supervision. Such tools must be developed by the specially established Task Force for Assessment. The 'Global Essential Requirements' should be considered as an instrument for improvement of the quality of the professional education.

Dr. R. Praveen
Principal CMR College of Education

Recognizing an important facet of life, it has been said that education forms an important part of a person’s right to life (Unni Krishnan judgment). Thus, primary education till the age of 14 is a fundamental right. Hailing such a generous step towards the recognition of ‘education’, the country dreamt the advent of the age where India could become a nation where every person is educated. However, the Supreme Court failed in describing the word ‘education’ in its judgments. In the T.M.A Pai Foundation Case, the Supreme Court did consider that to uplift the standards of education in the ‘professional courses imparting minority institutions’, merit must be held a criterion of the admission of students. However, as far as the standard of primary education is concerned, the state only assures the imparting of the same, without a mention of how this education ought to be. Would a mere knowledge of alphabets and numbers qualify the definition of ‘primary education’ as held in the Supreme Court decisions? When the Supreme Court recognizes the fact that education brings about dignity, a limb of the concept of ‘life’, would this dignity flow from mere education, or a minimum standard of the same? It is often seen that schools in villages around the country have thatched buildings, but no teachers, and a school of a few hundred students might have only three to four teachers. The state would still proudly proclaim that it imparts education compulsorily in the ‘grass-root’ level! Would this form of education assure ‘dignity’? Today, when the world is a small place, and distances cease to exist, education should not be the monopoly of a lucky few! Meeting the growing standards worldwide, we face the challenge of rising our education level to international competitiveness. In such an age, the assurance of mere primary educations falls behind the rising standards. A global perspective of the same might assure the removal of a myopic understanding of educational systems, but this would only be possible when the country realizes the meaning of education, in comparison with the ocean, and not a small ‘well’. Maybe, the country needs another activist approach of the Apex Judicial body bring this facet within the definition of dignity as enshrined in ‘life’ in Article 21.

Surup Ray Chaudhuri
For comments mail to src.advitam@gmail.com

IS PROVIDING EDUCATION A MERE COMMERCIAL VENTURE?

Since the world entered the new technological era, new concepts and inventions came into existence. Man setting foot on the moon was believed to be impossible. But the moon landing on 21 July 1969, had proven our ancestors wrong. Goals which our ancestors believed were unattainable have been achieved. It was yesterday when Alexander Graham Bell invented the first telephone, but today, after one century of the invention of the telephone, we have fast speed internet connections which connect you to other end of the world within minutes where live video conversations are possible. The question is, how do we survive in such a changing world? How do we adapt to the new technology and machinery which our lives revolve around? The answer lies in education. Education helps in the cultivation of skills and professions. It helps us attain the mental and moral level of knowledge required for basic survival and further advancements. Education is the core of our survival since time immemorial. Providing education for the younger generation has been our duty for a better tomorrow. But today, it would not be wrong to say that, providing education has been depicted as a form of a commercial business. Universities around the world are competing against each other to reach the first rank. New methodologies and programs are being drafted and implemented by them to attract the most number of the “stronger” group of students for enrollment as a means of acquiring the most number of credit to themselves. While the reputed universities are successful in attracting the stronger group of students, the other colleges get to select the unfortunate students. As a result, the better quality of education, the better research programs are concentrated in a handful of universities around the globe. In the run to reach the top rank, today most universities portray educational irrelevant benefits to the students in their catalogues. A winning football team, new high-tech facility dorm rooms, sorority parties, etcetera. These “benefits” usually tends to stray the students from their main objectives and goals, resulting in poor quality of education being received. The market strategies used by these universities are no longer education oriented. It provides for the attraction of the most number of students with higher fee’s thus increasing their credit points. Education should not be about increasing credits and reaching the first rank. Shouldn’t it be about providing equal education to everyone? The same quality of materials and lectures to be attainable by a student either in the U.S. or Asia? The whole point of universities is to provide education for the necessary. Be it the richest or the poorest. The time has come to liberalize the universities from market oriented programs and ranking systems.

Fathimath Shafneez

DISCUSSION FORUM

As a new feature from this edition of Ad Vitam, the editorial group have come up with a concept of creating a forum, as a part of our blog. In this forum, we will have topics raised in the month’s issue being addressed in detail, and we welcome postings and comments on the same by our readers.

TOPIC FOR THIS MONTH:
Changing role and responsibilities of a teacher in a class room environment:
Each one of us have had the best or the worst memories of a teacher having taught us. The topic for this month is centered around discussing the changing role and responsibilities of a teacher in a class room environment.
To participate in this forum, just post your opinion as a comment to this post!