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Liberty After Freedom: A History of Article 21, Due Process and the Constitution of India – Rohan J. Alva

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Liberty After Freedom explores the origins of what is today considered the most important fundamental right in the Indian Constitution – the right to life and personal liberty guaranteed by Article 21. This is the article which in recent years made the right to privacy as well as the decriminalization of homosexuality possible. Without a doubt, Article 21 has had the most outsized influence on the progressive development of rights in India.

But the story of how this important right was birthed is deeply controversial and its passage in the Constituent Assembly divided opinion like no other feature of the Constitution. Liberty After Freedom explores the intellectual beginnings of this paramount fundamental right in an attempt to decode and unravel the controversies which raged at the time the Constitution was being crafted.

Written in lucid prose and drawing extensively on the Constituent Assembly debates as well as a wide array of scholarly literature, it questions long-held beliefs and sheds new and important light on the fraught history of due process and Article 21. It is an indispensable book for the legal community and for everyone interested in the genesis of the Constitution.

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‘Rohan J. Alva’s debut work is an eye-opener regarding the migration of the present Article 21 from the “due process of law” to the “procedure established by law”. Liberty After Freedom is an important addition to the existing academic writing on Indian Constitutional history. To lawyers, law students and legal academics, the familiar phraseology of the right to life and personal liberty clause is almost taken for granted, finding mention in so many judgments of the constitutional courts. Alva has brought to bear an impressive grasp of legal history to shine light, however, on the arduous journey that Article 21 undertook to reach its present form. Through meticulous research, Alva shows how fragile the Article was at its inception, and how important it is for citizens to continue to ensure that this most important of rights remains protected, so that it, too, may in turn protect us in the future as it has done in all the years gone past.’ – KK VENUGOPAL, Attorney General for India

‘Liberty After Freedom is an ambitious and fascinating account of how India’s post-World War II Constitution, consciously drafted to resist American-style judicial hostility towards Progressive-era economic regulation, was nonetheless later interpreted to protect substantive liberty interests such as privacy. Alva sheds interesting historical and comparative light on the well-nigh irresolvable conflict between a society’s commitment to protecting the fundamental rights of individuals and constraining the power of unrepresentative and politically less-accountable judges.’ – MICHAEL KLARMAN, The Charles Warren Professor, Harvard Law School

‘The extraordinary story of due process in India must be told, and there is no one better to tell it than Rohan J. Alva. Drawing from the best traditions of constitutional studies, Alva reveals how the creation and evolution of Article 21 mirrors the broader history of the Republic of India. Much as the country threw off the shackles of the empire and ultimately became an inspiration for the world, the Supreme Court of India broke free from the interpretive constraints of rigid textualism to open the door to new possibilities for procedural justice beyond the bare words of Article 21. This monumental book is simultaneously a rich legal history excavated from the annals of India’s Constituent Assembly, a careful doctrinal analysis of the domestic law of due process, a global escapade through the great constitutional democracies of the world, and a manifesto for an evermore just reading of the Indian Constitution. Liberty After Freedom places Alva in the pantheon of the most thoughtful contemporary scholars of India’s democratic constitution.’ – RICHARD ALBERT, Professor of World Constitutions and Director of Constitutional Studies, The University of Texas at Austin

About the Author
Rohan J. Alva is a counsel practicing in the Supreme Court of India. He earned his LLM from Harvard Law School, where he focused on constitutional law, which he read for on numerous scholarships including as a Tata Scholar and on a Harvard Law School Scholarship. He holds a BA in History from Loyola College, University of Madras, and an LLB from Campus Law Centre, University of Delhi, where he was editor of the Delhi Law Review. Before joining Harvard, he worked as a pro bono counsel for children. His writings have been published in internationally respected journals including Statute Law Review (Oxford University Press), and Hong Kong Law Journal.

Prior to starting his counsel practice, he was a professor at Jindal Global Law School, where he was awarded the Excellence in Research Award. He has also been Visiting Faculty at NLSIU, Bengaluru. In his spare time, he enjoys playing the violin. He lives in New Delhi with his wife Nina, also a graduate of Harvard Law School and a counsel, two children, Zarina and Cyrus, and two dogs, Jerry and Jackie.

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