Procedure established by law and due process of law

The Vth Amendment of the US Constitution lays down inter alia that “no person shall be deprived of his life, liberty or property, without due process of law” 
This clause known as the due process clause, has been the most significant single source of judicial review in the U.S.A. 
The word ‘due’ in this clause is interpreted to mean ‘just’, ‘proper’ or ‘reasonable’, accordingly to the judicial view. Therefore, the Courts can pronounce whether a law affecting a person’s life, liberty or property is reasonable or not. The Court may declare a law invalid if it does not accord with its notions of what is just and fair in the circumstances. 
Due process has two aspects. Substantive due process envisages that the substantive provisions of a law should be reasonable and not arbitrary. Procedural due process envisages a reasonable procedure, i.e., the person affected should have fair right of hearing which includes four elements;

  1. Notice
  2. Opportunity to be heard
  3. An impartial tribunal
  4. An orderly procedure

Under the concept of ‘due process’, the Courts become arbiter of reasonableness of both substantive as well as procedural provisions in a law. 
The word ‘due’ is of variable content in the ‘due process’ concept. It denotes that the law should be ‘just’ but what is ‘just and reasonable’ is not a static or rigid concept; it varies from situation to situation and hence one thing might be reasonable in one case but not in another. The due process clause has been used by the U.S. Supreme Court to extend both procedural and substantive safeguards to “Life, liberty and property”. 
In A.K. Gopalan v State of Madras[1], the petitioner A.K. Gopalan, a communist leader, was detained under the Preventive Detention Act, 1950. The petitioner challenged the validity of the Act and his detention there under on the following grounds:

  1. That it violated his right to move freely throughout the territory of India which is the very essence of personal liberty guaranteed under Article 19 of the Constitution. The detention under this Act was not a reasonable detention under clause (5) of Article 19 and hence the Act was void
  2. That the Act was in conflict with Article 21 of the Constitution in as much as it provided for deprivation of the personal liberty of a man not in accordance with ‘procedure established by law’. It was argues that the word law in Article 21 should be understood not in the sense of an enactment but as signifying the universal principles of natural justice and a law which did not incorporate these principles could not be valid
  3. That the expression “procedure established by law” meant the same thing as “due process of law” in the American Constitution.

The petitioner argued that the expression “procedure established by law” was synonymous with the expression “due process of law” of the American Constitution. It was contended that the Indian Constitution gives the same protection with the only difference that while the due process clause has been interpreted in America to cover both substantive and procedural law, only the protection of procedural law is guaranteed in India. The contention was that the omission of the word due made no difference to the interpretation of Article 21; the word established was not equivalent to prescribed, but had a wider meaning; the word law did not mean enacted law but it meant principles of natural justice.

But the Supreme Court rejected the aforesaid contention and held that the “procedure established by law” did not mean “due process of law” as understood in America. There was no justification for adopting the meaning of the word “law” as interpreted by the Supreme Court of America in the expression “due process of law” merely because the word “law” is used in Article 21. This is clear from the report of the Drafting Committee of the Constituent Assembly in respect of Article 21. The Report of the Drafting Committee shows that Constituent Assembly had formerly used the American expression “due process of law” but they deliberately dropped it in favour of the expression “procedure established by law”, which is more specific.

Thus in this case, the majority held that the expression “procedure established by law” must mean procedure prescribed by the law of the State. The interpretation put on the due process clause by American Supreme Court has been characterized by the utmost vagueness and that it means just what the five Judges of the Court say. If the Constitution-makers wanted to preserve in India the same meaning, they would have not dropped the phrase.

But in Maneka Gandhi v Union of India[2], the Supreme Court has overruled the above case and has held that the mere prescription of some kind of procedure is not enough to comply with the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable. It should not be fanciful, oppressive or arbitrary. A procedure to be fair or just must embody the principles of natural justice.

In Nand Lal v State of Punjab[3], the validity of an order of detention made under Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1982, was challenged on the ground that procedure adopted by the Advisory Board in allowing legal assistance to the State but denying such assistance to the detenue, was both arbitrary and unreasonable and hence violated Article 21. The Court applying the Maneka Gandhi’s principle held that the procedure adopted by the Advisory Board was arbitrary and illegal and consequently, the detention order was liable to be quashed. Although under the above Act the detenue has no right to legal assistance in the proceedings before the Advisory Board, but it does not preclude the Board to allow such assistance to the detenue when it allows the same to the State.


[1] AIR 1950 SC 27.

[2] AIR 1978 SC 597.

[3] AIR 1981 SC 2041.

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