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
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
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: "....
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.
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
The Supreme Court in its judgement held that:
- 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.
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.
- 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.
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.
- 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.
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.
- 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.
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
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
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
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:
One of the recent cases where Supreme Court neglected the clause of due process of law is:
- 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.
- 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