Due process of law or Procedure established by law?

Picture Credits: ClearIAS

Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The words “procedure established by law” are of utmost importance, based on which someone’s right to life and liberty can be taken away. On the outset, the two terms ‘procedure established by law’ and ‘due process of law’ might look very similar but they are very different in their interpretation. This article will cover the meaning of the terms in relation to the Indian Constitution and the evolution of the interpretation of Article 21. 

‘Due process of law’ is an American expression which gives vast powers to the judiciary over the parliament. The due process of law has derived its meaning from the word ‘law of the land’ used in Section 39 of Magna Carta of 1215. It is a much wider term, it not only includes the power of the judiciary to see whether the right of life and liberty is taken away with a law made by the parliament but also include the power to scrutinize whether the law is just or not. Parliament cannot just make a law which is arbitrary by following the procedure to take away the right under Article 21. So basically, any law which abridges a person’s right to life and liberty will have to pass the test of procedural as well as substantive propriety.

However, sadly our Constitution makers had adopted the term ‘Procedure established by law’ in Article 21 as established in Japan. It is a limited-term and means that the right to life and liberty of a person can be abridged by a law made by the parliament following the appropriate procedure. So according to it any law made by the parliament can take away such a fundamental right even if it is not just and fair.

So, coming on to the history of our constitution in relation to Article 21 and these two terms, namely ‘procedure established by law’ and ‘due process of law’ there was a constant debate and uncertainty regarding which term to include in the Constitution. Kazi Syed Karimuddin who was Constituent Assembly member contented that if the words ‘according to procedure established by law’ are retained it would open a sad chapter in the history of constitutional law. He believed that it would be an injustice to the people if their fundamental right could be taken away by the parliament through following minimal procedure and the courts cannot even question them even if the law was unjust or made with a malafide intention. Thus, he was of the opinion that ‘due process of law’ is what should be included.  However, B.N. Rao, Constitutional Advisor to the Constituent Assembly was of a different opinion. He believed that ‘due process of law’ would give excess powers to the Judiciary and this would affect the separation of powers.

So, finally ‘procedure established by law’ was inserted in the Constitution. But there has been a stark contrast in the interpretation of Article 21 by the Courts. The Supreme Court just after adopting the Constitution had to interpret Article 21 in the case of A.K. Gopalan vs. State of Madras[1] where the Constitutional validity of the Preventive Detention Act, 1950 was challenged as it was alleged to be violative of Article 21 and 19. Here the majority of judges held that Article 19 and 21 are independent and exclusive and relied on the principle of literal interpretation in respect of ‘procedure established by law’ and held that the act is valid as it is made by following a proper procedure. The Court also held that the word ‘law’ in Article 21 could not be equated to the principles of natural justice because it considered these principles are vague, indefinite and abstract. Incorporation of such vague principles in the law leads to confusion and uncertainty, therefore the word ‘law’ is used in the sense of lex (state-made) and not jus (Just law).  Even in the case of Kharak Singh vs. State of UP[2] the stance of the Supreme Court remained the same.

Change came with the case of Satwant Singh Sawhney v. Union of India[3]. In this case the passport of Sawhney was seized by the Ministry of External Affairs as he had violated conditions of the import license that had been granted to him by the Government under the Export and Import Control Act. However, he challenged the Act of the government as violative of Article 14 and 21. The Court held the act of the government to be invalid as it violated Article 14 and 21. This view was further strengthened after the Bank Nationalization case[4] where the apex court observed that ‘law’ under Article 21 should be read with Articles 19 and 14, whenever necessary with a view to strengthen the right to personal liberty and to overcome the weakness of the guarantee of ‘procedure established by law’.

But the whole Indian scenario changed with the decision given in the case of Maneka Gandhi v. Union of India[5] which became a landmark judgement. In this case the validity of Section 10(3)(c) of the Indian Passport Act, 1967 was challenged on the ground that the section gave an unfettered power to the authority to impound the passport of any person even without conducting a proper hearing and it violated Article 21 of the Constitution. The Apex Court held that if any law is taking away the right to life and liberty, it should not only be procedurally correct but it should be just, fair and reasonable. Further such procedure should be tested under Articles 14 and 19 of the Constitution. Thus the due process concept is read under Article 21 by articulating that ‘procedure established by law’ must be fair, just and reasonable.

In conclusion it can be said that there is no doubt that between the two terms, ‘due process of law’ is at a higher pedestal and even though the Indian Constitution had incorporated the term ‘procedure established by law’ the judiciary has successfully utilized its power of review and has interpreted the Article very broadly.    

[1]  A.I.R. 1950 S.C. 27

[2]  A.I.R. 1963 S.C. 1295

[3]  (1967) 3 S.C.R. 525

[4] R.C. Cooper v. Union of India, A.I.R. 1970 S.C. 564

[5]  A.I.R. 1978 S.C. 597

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