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Article 21 of the Indian Constitution is the cardinal source of protection of an individual’s life and liberty. It lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law.[1] Over the years, Indian judiciary has given this provision a very wide interpretation, often enabling rights which find no explicit mention in the Constitution; it is also the bed-rock of judicial activism in India. However, this was not always the case as the original position held by the Court was antithetical to the spirit of Article 21 as it is known today.

It is well known that the Indian Constitution is an amalgamation of various constitutions, including the Constitution of the United States. Article 21 is one such provision as it is analogous to the Vth Amendment of the US Constitution. The Vth Amendment of the US constitution states inter alia that “no person shall be deprived of his life, liberty or property, without due process of the law.” The word "due" in due process has been interpreted to mean reasonable, just, and proper. It gives courts, the power to invalidate a law if the law is found to be unfair, unreasonable and unjust – procedurally or substantially. Substantive due process means that­­­­ the legislation should be fair, just and reasonable, and not arbitrary, whereas procedural due process entails an ­­­­­opportunity to be heard and a free and fair trial. The due process clause has acted as the vanguard of civil rights and personal liberty in the US while creating new rights such as right to abortion, marriage, homosexuality. However, US Supreme Court has made a distinction between a legislative action affecting life and personal liberty, and administrative legislative procedures. The due process clause is applicable on the former and not the latter.

"The Draft Indian Constitution had contained the words ‘due process of law’ but they were later omitted and purposefully substituted with ‘procedure established by law’. The reason behind this omission was uncertainty over the meaning of ‘due process’."

It was thought that ‘procedure established by law’ was more specific, and it would deter judiciary from intervening in the legislative business of the Parliament.[2] The issue of interpretation of Article 21—and more specifically the words “procedure established by law”— arose soon after the Constitution was adopted. It should be noted that this issue was not unique to India as there were disagreements amongst US Supreme courts judges over the meaning of ‘due’ in ‘due process’.

 In A.K. Gopalan,[3] while dealing with the constitutionality of Preventive Detention Act, 1950, the Court was faced with the question of whether a literal interpretation should be given to the phrase ‘procedure established by law’, or whether the procedure itself should be just and reasonable, as found in the concept of due process in US Constitution. The Court, in its majority opinion, gave it a literal and strict interpretation and held that as long as the procedure under the statute is followed by the executive, the detention would be valid, regardless of how unjust and unreasonable the procedure itself is. It was held that laws enacted legislature cannot be tested on the touchstone of fairness, justice and reasonableness as they are vague and abstract principles. By doing so, the Court made a sharp distinction between the Indian concept of ‘procedure established by law’ and American concept of substantive and procedural due process. Fazal Ali, J. dissented and opined that an expansive interpretation should be given to ‘procedure established by law’ in line with the due process clause, and principles of natural justice should be read into Article 21. The majority judgment made Article 21 futile, and gave unbridled powers to the legislature to curtail personal liberty and freedom by simply enacting a legislation.

However, the Court’s positivist streak softened with Bank Nationalisation case [4] wherein the Court linked Article 31(2) and 19(1)(f). Finally, the interpretation given to ‘procedure established by law’ was effectively overruled in Maneka Gandhi.[5]

In Maneka Gandhi the court took the following view,

“The principle of reasonableness, which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be right and just and fair and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.”

Concurring with Fazal Ali’s dissenting opinion in A.K. Gopalan, the Court ruled that fundamental rights are not mutually exclusive and cannot be read in isolation.

Hence, the procedure in Article 21 must satisfy the test of reasonableness in accordance with Article 14; and a law prescribing a procedure for depriving a person of personal liberty has to meet the requirements of Article 19. The judgment in Maneka Gandhi revived the dormant spirit of Article 21 by giving a backdoor entry to the American concept of  procedural due process. Now, the procedure itself had to stand the test of reasonableness and fairness, and could no longer be any formal but arbitrary, oppressive and unreasonable procedure, otherwise it would be no procedure at all. Thus, the judgment in Maneka Gandhi made ‘procedure established by law’ by and large synonymous with the concept of due process. Thus, not only is the procedure established by law has to be just fair and reasonable, but also the law itself has to satisfy the test of Article 14, 19 and 21.[6]

The expansive interpretation given to ‘procedure established by law’ has since been upheld in numerous judgements,[7] with each judgment expanding the scope of this interpretation.[8] 

It has also expanded the scope of Article 21 in general and enabled the Supreme Court to better protect citizens’ life and liberty against arbitrary and oppressive state action. More recently, in Selvi [9], K.G. Balakrishna rejecting the text of Article 21, held that ‘substantive’ due process is now a guarantee under Indian Constitution.

However, by and large, the Indian judiciary is wary of going against the literal text and intent of the framers of constitution,[10] specifically stating that test of due process cannot be applied to statutes passed by the Parliament and state legislature.

In Puttaswamy,[11] the Court again observed that there are certain issues of interpretation and vagueness with the phrase ‘due process of law’, and reiterated that constitution drafters had deliberately deleted this phrase from the text of Article 21. We find ourselves in a peculiar situation where the jurisprudence of ‘procedure established by law’ is more or less similar to ‘due process’ of the law. At the same time, the Courts are determined to make a distinction without a difference as this distinction is merely academic and technical. Since Maneka Gandhi, Indian Constitutional law philosophy has seen a steady import of principles of natural justice and its effects on the interpretation of Constitutional provisions. Ironically enough, this distinction has caused more uncertainty and vagueness, and gave more power to the judiciary, which is exactly what the Constituent Assembly was trying to avoid by replacing due process with procedure established by law.

The position was somewhat clarified in the Central Vista [12] judgment, wherein the Court observed that there is a difference between executive action affecting personal liberty and procedure applied in ordinary course of administrative action; the concept of ‘constitutional due process’ as found in Indian jurisprudence cannot be used as a tool to impose an individual’s idea of good governance onto the legislature and executive.

Keeping up with the trend of reposing faith in legislative and executive, the Court has observed that a higher yardstick than one found in statutes cannot be applied, and the Court cannot review an action when the Constitution provides no machinery for its review. This distinction is important as it enables Court to review and invalidate any procedure affecting life and liberty on the yardstick of fairness, justice and reasonableness while at the same time giving space to legislative to function freely in its own domain.

 

[1] Article 21, The Constitution of India, 1950.

[2] Dr. B.R. Ambedkar, Constituent Assembly Debates, Vol. VII, p. 1000.

[3] A.K. Gopalan v. Union of India, AIR 1950 SC 27.

[4] R.C. Cooper v Union of India, AIR 1970 SC 564.

[5] Maneka Gandhi v Union of India, AIR 1978 SC 597.

[6] Mohd. Arif v Supreme Court of India, (2014) 9 SCC 737.

[7] Francis Coraile Mullin v Union Territory of Delhi, 1981 SCR (2) 516­­­­­; Delhi Airtech Service Pvt. Ltd. V State     of UP, (2011) 9 SCC 354.

[8] Rameshbhai Chandubhai Rathod v State of Gujurat (2009) 5 SCC 740.

[9] Selvi v State of Karnataka, (2010) 7 SCC 263.

[10] Rajbala v State of Haryana, (2016) 1 SCC 463.

[11] K.S. Puttaswamy v Union of India, (2017) 10 SCC 1.

[12] Rajeev Suri v Union of India, Civil Writ Petition No. 229/2020, decided on 5 January 2021.

- Aman Tehlan is a Lawyer, graduated from National Law University (Jodhpur) in 2019