The Supreme Court has directed authorities to review all barricading across Delhi, as it examines allegations of excessive force, illegal detentions and restrictions imposed during a protest against chief election commissioner Gyanesh Kumar.

The court said it would remain a neutral arbiter while discharging its constitutional responsibility to protect fundamental rights under Article 32.

During a special hearing on Sunday (October 11), the bench observed that news reports on the incident would continue to emerge, but allegations of violations of statutory duties, including the use of excessive force, unlawful detentions and the involvement of a police officer without a badge, required a response from the authorities.

The matter has been listed for further hearing on Tuesday. Lawyers seeking to intervene have been permitted to file impleadment applications, provided copies are served on the Solicitor General’s office by Sunday.

The proceedings have brought the constitutional safeguards governing personal liberty and peaceful assembly into focus. The Supreme Court’s direction that peaceful, unarmed protesters cannot be detained except in accordance with the “procedure established by law” raises fundamental questions about the limits of police powers and the State’s responsibility to uphold constitutional freedoms.

The intervention followed allegations of mass detentions, restrictions on movement and the suspension of internet services during Saturday’s protest against Gyanesh Kumar. The bench, comprising justices Joymalya Bagchi and V Mohana, also directed that metro and railway services operate normally, internet connectivity remain undisturbed in accordance with law, and free movement be permitted subject to law.

Although the court has yet to conclusively determine the legality of individual detentions or the allegations of contempt against officials, the proceedings have underscored the significance of Article 21, which protects life and personal liberty. Its interpretation has undergone a substantial transformation since the Constitution came into force, expanding the safeguards available against arbitrary State action.

Article 21 states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The provision applies to every person, not merely citizens, and requires the State to follow lawful procedures before depriving anyone of life or personal liberty.

The language of Article 21 emerged from contentious deliberations in the Constituent Assembly. An earlier formulation sought to protect individuals from deprivation of life and liberty “without due process of law”, a phrase associated with the American Constitution. The drafting committee instead adopted “procedure established by law”, drawing on the Japanese Constitution of 1946.

The distinction between the two formulations had significant implications for judicial review. A due process guarantee would allow courts to assess not only whether legislation authorised the deprivation of liberty, but also whether the law and the procedure it prescribed were fair and reasonable. The alternative formulation was initially understood to grant the legislature greater latitude, since the existence of a legally enacted procedure could appear sufficient to justify restrictions on liberty.

The decision was not without opposition. During the Constituent Assembly debates, members cautioned that a government supported by a legislative majority could use the narrower formulation to undermine individual freedoms. Others feared that granting judges extensive powers to invalidate legislation would weaken the authority of elected representatives. The Assembly ultimately retained the phrase “procedure established by law”.

The Supreme Court’s early interpretation reflected this narrower understanding. In AK Gopalan Vs State of Madras (1950), the majority held that deprivation of personal liberty had to be authorised by a law enacted by the State. The court declined to import the American concept of due process into Article 21.

The judgment also treated fundamental rights as largely separate constitutional guarantees, holding that each right should be examined independently. Under this approach, a law affecting personal liberty was assessed primarily against Article 21 rather than through a combined consideration of the constitutional guarantees of equality, freedom and life and liberty.

This position changed decisively with Maneka Gandhi Vs Union of India (1978). The case concerned the impounding of Maneka Gandhi’s passport without the reasons being furnished to her at the outset. The Supreme Court held that any procedure depriving a person of life or personal liberty could not be arbitrary, unfair or unreasonable.

The judgment established that Articles 14, 19 and 21 must be read together rather than in isolation. State action affecting personal liberty must satisfy the applicable requirements of equality and freedom, while the procedure under Article 21 must be “right, just and fair”, not arbitrary, fanciful or oppressive.

The ruling fundamentally altered the understanding of “procedure established by law”. The mere existence of legislation authorising a restriction on liberty was no longer enough to establish its constitutional validity. Courts could examine whether the procedure itself met the standards of fairness and reasonableness required by the Constitution.

The constitutional principles emerging from these judgments are particularly relevant to allegations surrounding the Delhi protest. While authorities can take measures to maintain public order in accordance with law, such powers remain subject to fundamental rights and judicial scrutiny.

The Supreme Court’s ongoing proceedings will determine how the specific allegations are addressed within the applicable legal framework.

The larger constitutional principle, however, remains that restrictions on personal liberty cannot rest solely on executive discretion. Article 21, read with Articles 14 and 19, requires State action to remain within the boundaries of legality, fairness and constitutional accountability.