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Journey Of Article 21 Procedure Established By Law To Due Process Of Law

Article 21 states that:
"No person shall be deprived of his life or personal liberty except according to procedure established by law."

Article 21 provides two rights:
  • Right to life
  • Right to personal liberty
Article 21 is one of the most important articles of constitution of India. It is enshrined in Part III of the constitution i.e. fundamental rights. The Supreme Court of India has described the right as the "heart of the fundamental rights". The right specifically mentions that no person shall be deprived of life and liberty except procedure established by law.

This implies that this right has been provided against the State only. State here includes not just the government, but also, government departments etc. It guarantees a person of his life and personal liberty which is the most important aspect of a human being life for its survival.

Article 21 contains the phrase "Procedure established by law". This phrase was added by the constitution makers while making the provision of article 21. The line in its simpler terms means that if any law has been made by the legislature and duly enacted, then its is valid if the procedure to establish it has been correctly followed. The judiciary here was of the view that it would assess that whether legislature had followed the procedure laid down to legislate and whether the legislature is competent to frame the law and it would not assess the intent of the said law.

The Supreme court said while determining the constitutionality of the law, it examines only the substantive question i.e. 'whether the law is within the powers of the authority concerned or not.' The basic problem which lies in this concept was that it narrowed the scope as to examine whether the law concerned is contrary to the principles of justice and equity?

The rigid and the inflexible nature of the procedure established by law clause could be danger as it gave the legislature to make the laws even if it is arbitrary in nature and unjust and unfair. It also raises the risk of compromise to life and personal liberty of individuals due to the unjust and unfair laws made by the law making supreme authorities. These all difficulties were being faced by the judiciary and very persons due to the narrow interpretation of the clause.

When the constitution was being drafted in 1947, a product of Columbia Law School itself Dr. B.R. Ambedkar had drafted provision for the Indian Constitution which was very similar , if not identical, to the due process of law clause of the 14th amendment of the US Constitution, it read: "....

Nor shall any State deprive any person of life, liberty and property without due process of law." Dr. Ambedkar from starting was of the view that the clause should contain due process of law which should give power to the judiciary to interpret the law and the motive of the legislature behind that law but this view of Dr. Ambedkar was not taken into consideration.

The principal adviser to the constituent assembly of India Sir Benegal Narsing Rau shared his first draft of the constitution of India to Justice Felix Frankfurter of the U.S. Supreme court who had closely followed the political developments in India. J. Felix after reviewing objected to the clause of Article 21 that guaranteed that "no person's life or personal liberty" could be taken away by "due process of law".

He warned Rau that Indian judiciary is very new and if the clause due process of law is kept, it will be a heavy burden for the judiciary to interpret the constitution again and again. He believed that due process of law was undemocratic and it enables judges to veto laws validly enacted for the economic and social welfare by the people's representative. Instead he suggested to keep a simple phrase wherein it will be the job of judiciary to check the procedure of the law and protect Article 21.

Thus following the suggestion, the draft constitution which was published in February 1948 omitted the clause "due process of law" and replaced it with "procedure established by law". But Dr. Ambedkar was of stringent view that without due process, legislatures could curtail individual liberty beyond any limit. He was, however, unwilling to let decide the judges whether a law was a good or bad one.

After the constitution came into force on 26th January 1949 in which the wordings of Article 21 were "No person shall be deprived of his life or personal liberty except according to procedure established by law."

Relevant Case Laws
  1. AK Gopalan Vs Sate of Madras (AIR 1950 SC 27) - After the enactment, for the first time the question arose that whether the clause procedure established by law of parliament can be challenged or not? In 1950, a case came before the Supreme Court of India named AK Gopalan Vs Sate of Madras (AIR 1950 SC 27), in this case the validity of Preventive Detention Act, 1950.

    Was challenged under the provisions of which a opposition leader AK Gopalan was arrested. The allegations put by the leader were that his right to life and personal liberty has been infringed; the government is politically motivated behind the passing of this legislation and there are no grounds for my arrest and this is totally a political move to gain benefits in the election.

    The court gave its view that it is of our no consideration to check the motive and the intention of the parliament behind the passing of the act. The court will only check the validity of the law and since this is a legislation passed by the parliament soo it is valid and thus come in the ambit of procedure established by law. The court in its judgment upheld the detention of AK Gopalan and dismissed his plea.

    One judge named J. Fazal Ali gave the dissenting opinion, he said that the interpretation of the word "procedure established by law" also implies "procedural due process" which means that no person can be left without giving the chance of Audi Aulteram Partem ("let the other side be heard as well") as it is principle of natural justice.
  2. R C Cooper vs Union of India (1970 AIR 564) - After 20 years of the AK Gopalan vs Sate of Madras case, new case named R C Cooper vs Union of India (1970 AIR 564) also known as Bank Nationalization Case, came before the Supreme Court took into consideration that a law was passed by legislature wherein the government negated and vitiated the property and the personal liberty of the citizens. Here the court gave the view that the validity of the law passed by the parliament needs to questioned and even though procedure established by law is there but due process of law also needs to be taken into consideration.

    The Apex Court overruled the 20 years law laid down by the AK Gopalan case rejecting the mutual exclusivity theory. The court held that we cannot overlook the violation of citizens of the nation on mere technicalities. If due to state actions the fundamental rights of a citizen are violated, the court is bound to prohibit such violation. The court by holding this test laid down the Effect test and overruled the Object test.

    Therefore, now the courts won't look into the object of the impunged act and rather they will look into the effect of the impunged act. In case effect of such act violates the Fundamental rights of citizens it would be violative of Constitution and liable to be struck down.
  3. ADM Jabalpur vs Shivkant Shukla (Air 1976 SC 1207) - During the period of emergency, a famous case named ADM Jabalpur vs Shivkant Shukla (Air 1976 SC 1207) also known as Habeas Corpus Case. The facts of the case were such that one day after the emergency declared, article 359(1) was invoked and the fundamental rights were suspended including article 14, article 21 and article 22.

    Then, the government of India started arresting the prominent opposition leaders under the purview of Maintenance of Internal Security Act, 1971 (MISA). The arrested leaders approached the various high courts and gained the favourable orders. But the state in collective, against all the orders of High Courts challenged them in the Supreme Court. The Supreme Court again took a plain view on procedure established by law and negated the due process of law concept which was taken into consideration in Bank Nationalization Case.

    The majority of the judges of SC were of the view that "since its an emergency no person has locus standi to approach the high courts under article 226 for habeas corpus or any other writs. And "they cannot challenge the legality of the order of detention on the ground that such detention order is not in tune with the provisions of the Act or was passed with mala fide intentions." The court also upheld the validity of Sec 16A(9) of MISA act under which the arrests were made.

    Here J. HR Khanna gave dissenting view wherein he stated that "State by invoking article 359(1) cannot deprive and individual of the right to approach courts for enforcing the rights, even regarding Article 21 its is the sole repository of Right to life and personal liberty and thee is no way state can deprive a person of his life and personal liberty." The judgement was heavily criticized and once again the court took the narrow interpretation of procedure established by law and did not consider the due process of law.
  4. Maneka Gandhi vs Union of India (AIR 1978 SC 597):
    Finally the case came in which court accepted the clause of "due process of law". The case is Maneka Gandhi vs Union of India (AIR 1978 SC 597), in this case the passport of Maneka Gandhi was confiscated by the airport authorities under section 10(3)(c) of the Passport Act, 1967 and she was not allowed to travel abroad.

    Maneka Gandhi directly approached supreme court under article 32 and challenged the confiscation of the passport by the government and also claimed that the state infringed her right under article 21. The state in reply could not give any reasonable ground for such confiscation made and why she was not allowed to travel abroad.

The Supreme Court in its judgement held that:
"The fundamental rights enshrined in Part II of the Constitution are not distinct or separate from one another. Any law that deprives an individual of their personal liberty must be tested against one or more of these fundamental rights, as provided for under Article 19. When referring to article 14, its is assumed that is will be subject to this test. The concept of reasonableness must be applied throughout the process.

While Article 21 uses the phrase 'Procedure established by law' instead of 'due process of law', it still requires that the procedures be free from arbitrariness and irrationality. Any infringement of the basic principles of natural justice, such as audi alterarm partem, cannot be deemed fair or just, even if a statute is silent on the matter."

AK Gopalan was overruled stating there is a unique relationship between the provisions of Article 14, 19 & 21 and every must pass the tests of the said provisions. Earlier in Gopalan, the majority held that these provisions in itself are mutually exclusive. Therefore, to correct its earlier mistake the court held that these provisions are not mutually exclusive and dependant on each other.

The ruling reinstated public trust in the judiciary and ensured that the fundamental rights of individuals would be safeguarded. The court overturned its previous stance in the AK Gopalan case, which allowed for the restriction of the right to life and personal liberty through a procedure established by law. The court rejected this regressive perspective and instead established that the phrase "procedure established by law" in this case referred to a procedure that was ultimately reasonable, fair and just.

Thus, the Supreme Court in the case of Maneka Gandhi vs Union of India established that procedure established by law also contains the term due process of law and hence the judiciary has the power to exercise due process of law.

After Effects On Case laws
After 1976, judiciary started using the clause of due process of law along with procedure established by law but there are still various cases where judiciary neglects the due process of law. Few case laws where court took into consideration due process of law along with procedure established by law are:
  • Kharak Singh Vs. State of Uttar Pradesh (1964 SCR (1) 332) - The court in this case used clause of due process of law and expanded the scope of article 21 by the term "life" as here used something more is meant than mere animal existence.
  • Sunil Batra Vs. Delhi Administration (1980 SCR (2) 557) - The court in this case used clause of due process of law and approved the above observations and held that "right to life" included the right to lead a healthy life so as to enjoy all faculties of the human body in prime conditions.
  • Shaikh Zahid Mukhtar Vs. State of Maharashtra - The court in this case used clause of due process of law and held that the Supreme Court pronouncements, applied and reiterated the doctrine in Indian Constitutional law.
One of the recent cases where Supreme Court neglected the clause of due process of law is:
  • Rajbala Case 2015 (Rajsthan Panchayat Case) (2016) 2 SCC 445 - The court in this case did not use clause of due process of law and strongly rejected the doctrine of substantive due process and took into consideration only procedure established by law.
Due process of law has come a long way with procedure established by law thus giving the judiciary a powerful outlook on the parliament mandates. There are few benefits of due process of law:
  • It checks whether and question of law is fair and not arbitrary and the legislation must be just fair and reasonable.
  • If the Supreme Court finds and law not to be fair and just reasonable, then it can strike down that law being it null and void.
  • It widely gives the scope to the Supreme Court to grant protection to the rights of the citizens.
  • It gave Supreme Court the power to declare laws that are violative of fundamental rights as null and void and even being unlawful on the procedural grounds being unlawful.
  • Due process of law lays down that it is the legal duty of the state to make laws that are just fair and reasonable and conform to the laws of the land.
Thus, though article 21 permits the deprivation of an individual's life and liberty, it necessitates the presence of a legally established process to justify the deprivation. However, the concept of procedural due process of law asserts that the procedure established by law must be "fair, just and reasonable."

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