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From “Procedure Established By Law” To “Due Process of Law”


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Shree Rastogi, LLB

Article 21 of Indian Constitution talks about Protection of Life and Personal Liberty which states that: “No person shall be deprived of his life or personal liberty except according to the procedure established by law”.

This article reminds us one of the famous clauses of the Magna Carta:

“No man shall be taken or imprisoned, disseized or outlawed, or exiled, or in any way destroyed save… by the law of the land.”

The meaning of this statement is that no member of the Executive shall be entitled to interfere with the liberty of a citizen unless he can support his action by some provision of law. In short, no man can be subjected to any physical coercion that does not admit of legal justification. When, therefore, the State or any of its agents deprives an individual of his personal liberty, such action can be justified only if there is law to support such action and the procedures prescribed by such law have been “strictly and scrupulously” observed. The word ‘law’ which figures in Article 21 of the Constitution would mean a validity enacted law and in order to be a valid law it must be just, fair and reasonable. The article 21 provides a very basic right to every single citizen of India and it says that life and liberty of any person can be taken by any law which is made by legislation subject to it has followed proper procedure.

According to this Article 21, there are two core points to be discussed about:-

 (1) Procedure established by law; and

(2) Due process of law.

 Procedure Established by law: – (This Doctrine is originated under British Constitution and India follows it.)

As per this concept, any right of any person can be taken away by law, but, only one situation to take rights from the people and that condition lies in the name itself which is the system established by law which means proper procedure shall be followed. This principle has a main flaw. It does not asses if the laws made by Parliament are fair, just, and not arbitrary.

. “Procedure established by law” states a law duly enacted is valid even if it’s different to principles of justice and equity. Procedures that are followed strictly are established by law that may increase the risk of compromise to life and personal liberty of individuals due to unjust laws made by the law making authorities. Thus Procedure established by law protects the individual against the arbitrary action of only the executive.

Due Process of Law: – (This Doctrine is originated under the US Constitution).

This doctrine not only checks if there is a law to deprive the life of personal liberty of a person, but also see whether the law made is fair, just and not arbitrary. If the Supreme Court comes to know that any law as unfair, it will declare it as null and void. This doctrine leads to more fair treatment of individual rights. It gives the judiciary to judge the fundamental fairness, justice, and liberty of any legislation. Thus, Due process protects the individual against the arbitrary action of both executive and legislature. In India, there is no mention of the word ‘Due Process”.

This concept is based on three main things: – Justice, Equity and Good Conscience.

The difference in layman’s terms is as –

Due Process of Law + Procedure Established by Law + The procedure should be fair and just and not arbitrary.

In the case of A.K.Gopalan vs. State of Madras (AIR 1950 SC 27: 1950 SCR 88), the validity of the Preventive Detention Act, 1950 was challenged and the main question was arose whether Article 21 envisaged and procedure laid down by a law enacted by legislature (procedure established by law) or whether the procedure should be fair and reasonable. In this case, the court held that the procedure established by law meant the procedure prescribed by the enacted law between the two meanings of the word ‘law’, namely ‘lex’ ( enacted law) and ‘Jus’ (justice), the court had chosen the former (procedure established by law ) and rejected the letter ( due process of law).

But in the case of Maneka Gandhi vs. Union of India, the Supreme Court has overruled the A.K.Gopalan’s case and held that procedure established by law meant procedure that eventually was reasonable, fair and just. The decision rendered void the plain and simple meaning of procedure established by law’ and introduced for the first time the grand canon of ‘due process of law’

In Sunil Batra vs. Delhi Administration, Justice Krishna Iyer has observed: ‘Truly our Constitution has no ‘due process clause’ as the VIII Amendment (of the American Constitution) but in this branch of law, after Cooper and Maneka Gandhi’s case the consequence is the same”.

In the case of Ramleela Maidan Incident (2012) and Selvi vs. State of Karnataka (2010), the Supreme Court have repeatedly held that substantive due process and due process generally are a part of Indian Constitutional law under Article 21 of the Constitution.

But in the year of 2015, in the case of Rajbala vs. Haryana, the constitutional validity of the Haryana Panchayat Raj (Amendment) Act 2015 was in question and the two-judge bench of the Supreme Court India strongly rejected the doctrine of substantive due process in India.

And in the year 2016 in the case of Shaikh Zahid Mukhtar vs. State of Maharashtra, the constitutional validity of the Maharashtra Animal Preservation Act, 1976, as amended by the Maharashtra Animal Preservation Act, 1995, which received the assent of the President of India on March 2015(here in after, “Beef Act”) and the court held that the “right of life and liberty under Article 21 clearly covers the (substantive) due process aspect envisaged in the American jurisprudence”.


As the term Due process is not specifically mentioned in our Indian Constitution but in some Indian cases this concept is followed. Some judges are in favor of due process of law in India and some judges had rejected this concept of due. A.K. Gopalan was an initial example where the Supreme Court did not favour the due process principle whereas in case Maneka Gandhi’s case the court seems to have taken into account the philosophy of law interpreting the phrase ‘procedure established by law’ in term not only what “it is” but also what “ought to be” and there by seems to have moved towards due process. Thus we can say that the phrase “procedural established by law” under Article 21 of the Indian Constitution has acquired the same significance as the ‘due process of law’ clause in the Constitution of United State of America.


Uttrakhand Judicial and Legal Review (PDF)


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