Procedure Established by Law & Due Process of Law – Indian Polity Notes

Article 21 forms cornerstone of part-III of the constitution. Which reads as “no person shall be deprived of his life or personal liberty “EXCEPT PROCEDURE ESTABLISHED BY LAW”. Which implies that it isn’t an absolute right. In course of various landmark judgements judiciary has widened its scope (on lines of these two terms).

Procedure Established by Law:

• The concept of ‘Procedure Established by Law’ is taken from the Japanese Constitution.
• There are three tests to check whether procedure established by law is followed:
  • There needs to exist a law. Since individuals cannot be deprived of their liberty without law sanctioning it.
  • Law should be valid: Law needs to be valid in the sense, it should be enacted by the duly competent authority.
  • The procedure given in the law should be strictly followed: The manner in which law provides for the deprivation of an individual’s liberty shall be followed strictly.
• The procedure established by law puts restrictions on the actions of the executive. So, that, executive cannot act in an arbitrary manner.
• The executive has to act according to procedure provided in law, it is primarily concerned with the criminal justice system.

To make things easier, let’s take an example:

Kedar is an educator with a popular YouTube channel. He was arrested by the police and was produced before a court the next day. Now the district judge will check if the three parameters of procedure established by law are followed or not. Article 21 provides for no individual can be deprived of his personal liberty except for procedure established by law.

If all three parameters are satisfied like he is arrested under a valid law and the procedure given in law is followed by police. Then hearing may proceed otherwise he will be set free by the court.

• It puts restrictions only on executive, legislature is out of scope. If legislature passes an irrational, tyrannical law and police arrests many people under it (like Rowlatt Act) then actions by police will be held valid and legal.
• It doesn’t question the legislative intent behind the law.

Due Process of Law:

• It is an American concept, propounded in landmark Lawrence vs Texas Case by the US Supreme Court.
• In due process of law, in addition of checking validity of activity based on three parameters of procedure established by law. It adds the fourth test.
• Here Judiciary, checks if the law is fair, procedures mentioned in law are reasonable or not.

It also questions intention of legislature. Judiciary challenges the wisdom of the legislature.

Important Judgements:

1. Procedure Established by Law:

• AK Gopalan Case (1950): Communist leader Gopalan was arrested under the Preventive detention act of 1950. He pleaded in Supreme Court that his fundamental rights under articles 14, 19(1)(d) and 21 are being violated and he is not informed about charges framed against him. The SC held that, he was detained following due process of law. The court held that it cannot question the wisdom of legislature.
• ADM Jabalpur Case/ Habeas Corpus Case: During emergency of 1975, MISA Act  was passed which suspended the writ of Habeas Corpus during an emergency. In this case, also, the SC held that if the law provides for suspension of the writ, it is legal as India follows the procedure established by law.

2. Due Process of Law:

• Menka Gandhi Case 1978: Court overruled its verdict in A K Gopalan Case and held that the law has to satisfy reasonableness.
• Court added that there is an intrinsic link between articles 14,19,21 (Golden Triangle). 
• The test of reasonableness is the essence of article 14, restrictions have to be reasonable.
• Court held that we follow due process of law along with procedure established by law.
• Legislature cannot make law which infringes freedom under these three rights.

Principles of Natural Justice:

• Natural justice principles are no were written but are understood by reason of judges.
• Due process of law is also considered as principle natural justice.
• Procedure must confirm principles of natural justice.
  • No one shall be detained without being heard.
  • No one shall be judge in his own case.
  • Authority shall act bonafide (in good faith).

Which of them does India follow?

Post Menka Gandhi Case of 1978, the Supreme Court held that, India follows both procedure established by law and due process of law and at the same time principles of natural justice are followed.

Why Constituent Assembly adopted Procedure Established by Law?

• The advisor to the constituent assembly, B N Rau when created the first draft, it had, due process of law. After submitting the draft to the assembly, Mr. Rau travelled to the US.
• In the US, Mr. Rau met Justice Frankfurter. He persuaded Mr. Rau that due process has an implicit judicial review in it. It increases the burden on Judiciary. Further, the process might lead to the dictatorship of unelected over democratically elected government.

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