‘Procedure Established by Law’ and
‘Due Process’ Clause in The Context of Indian Constitutional Law
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The question of the phrase ‘procedure
established by law’ used in Article 21 takes us back to the debates of the
Constituent Assembly. Initially, the phrase ‘due process of law’ from The
American Constitution, was to be used instead. However, in 1947, Justice
Frakfurter of the US Supreme Court suggested Prof. B.N. Rau- the advisor to the
Constituent Assembly, against its use, citing the reason of judicial overreach.
This article begins with a brief
description and history of the ‘due process’ clause and then proceeds to understanding
Justice Frankfurt’s apprehensions against the term, drawing the difference between
the two terms i.e. ‘due process’ and ‘procedure established by law’ and
finally, discusses their importance in the context of Indian Constitutional
Law.
The ‘due process’ clause was introduced
in the American Constitution, through the Fifth and Fourteenth Amendment. They
prohibit the federal laws and the state laws, respectively, from depriving “any
person of life, liberty, or property, without due process of law.”
This concept of ‘due process’
travelled to America via the English colonists who had adopted it from the Magna
Carta which was a treaty signed by King John to avert a civil war under his
reign.
Magna Carta was not a statute but was merely a
personal treaty between King John and the enraged upper classes. Section 39 of
the Magna Carta of 1215 has led the foundation for the terminology of due process
which runs as follows:
“No freeman shall be taken and
imprisoned or disseized or exiled or in any way destroyed, nor will we go upon
him nor send upon him, except by the lawful judgment of his peers and by the
law of the land.”[1]
This clause, in a rudimentary
language, means that the government must not exercise its powers arbitrarily
and must respect legal rights of the individuals. Originally, this clause was
meant to protect individuals from the excesses of the state and safeguard them
against unreasonable deprivation of life and liberty.
There are essentially two concepts of
due process. The commonly invoked concept is procedural due process. It requires the state to follow fair and reasonable
procedures when it interferes with a person’s life, liberty, or property. Thus,
if a person is arrested, the state must inform the person about why they have
been arrested, provide access to a lawyer, and produce the person before a
judge.[2]
The Substantive Due Process is the
second form of Due Process. This concept questions the reasons for deprivation
of life and liberty. This is a more subjective aspect of the due process clause
as it enquires about the fairness and weight of the reasons cited for
deprivation of life and liberty of an individual. This is the aspect of due
process clause that led to controversies in America.
This clause led to the circumstances
of the Lochner Era in America. In this case, the Supreme Court struck down a
New York law that restricted the maximum number of hours bakers could work. It
held that this law violated freedom of contract- a fundamental right, and
struck it down.
Until 1937, over two hundred laws
were struck down for economic regulations. Since then, the Court has repudiated
economic substantive due process.[3]
This period in the US legal history
points to Justice Frankfurter’s concerns against the ‘due process’ clause. This
clause allowed blatant judicial overreach i.e. a situation wherein judiciary
breaches into functions of the legislature and the executive. It led to the striking
down of welfare legislations. This violated the fundamental principle of checks
and balances on which democratic governance is based.
Frankfurter told Rau to delete the
phrase ‘due process of law’ from India’s draft constitution because it was
‘undemocratic’ (‘because it gives a few judges the power of vetoing legislation
enacted by the representatives of the nation’), and because it imposed an
‘unfair burden’ on the judiciary.[4]
Thus, it is evident that the ‘due
process’ clause allows the judiciary to allow subjective criticism of
legislative and executive action.
Owing to the consequences of enacting
the ‘due process’ in America, the Drafting Committee replaced the ‘due process’
phrase with ‘procedure established by law’ which is borrowed from Article 31 of
the Japanese Constitution.
However, it was argued that this new
phrase was too extreme in nature. While, its older version conferred
extraordinary powers to the judiciary, this clause severely curtailed the power
of judicial review. According to the new phrase, a person’s life and personal
liberty can be deprived so long as the deprivation proceeds under a validly
enacted law—a restraint on the executive, but not the legislative, branch of
government. This can be termed as ‘pure form’ due process.
This rigidity of the ‘procedure
established by law’ phrase has been gradually removed through decisions of the
judiciary.
The first case to examine the scope
of the ‘procedure established by law’ phrase was AK Gopalan vs. State of Madras[5].
In this case, the petitioner tried to establish that ‘procedure established by
law’ included procedural due process as well. However, the Court rejected this
argument as it committed itself to the mindset of the framers of the
Constitution which sought to limit the powers of judiciary with respect to
legislative and executive action.
In this case, ‘pure form’ due process
was upheld.
The majority of the judges in the Gopalan case held that
Article 21 was both substantive and procedural in its content. However, by this
the judges were not referring to the American doctrines of substantive or
procedural due process. The holding was that in order for a person’s life and
personal liberty to be deprived by the State, there had to be a validly enacted
substantive and procedural law; in other words, that Article 21 did not merely
require a validly enacted procedural law. In short, even the substantive law
(not merely the procedural law) that deprives a person of his life or personal
liberty must be validly enacted according to Article 21 of the Constitution.[6]
This approach was overturned in the
case of Maneka Gandhi vs. Union of India[7].
Here, the judiciary followed a liberal approach and gave a wider view to the
Article 21. In this case, procedural due process was included in the ambit of
Article 21. The petitioner’s passport was impounded and she was given neither
the reasons for thus nor the chance to be heard. It was contended that the
procedure followed was unjust and hence, fell afoul of Article 21.
It was held that the procedure
prescribed by law should be fair, just and reasonable and not fanciful,
arbitrary and oppressive in nature otherwise it should not be considered as
procedure and would be considered in violation of Article 21 of the
constitution.[8]
Thus, the restrictive approach
followed in Gopalan case was overturned as the judiciary realized that sticking
to intent of the Constituent Assembly was not a rational method of dispensing
justice.
Sunil Batra vs. Delhi Administration[9]
also followed the decision of the Maneka Gandhi case and dealt with Sec 73 and
74 of the Indian Penal Code which are procedural laws.
Following this, in Bachan Singh vs.
State of Punjab[10],
Section 302 of the Indian Penal Code was challenged. It permitted the courts to
award punishment by death to murder convicts. This was contended to be
unconstitutional.
The Court declared this section as
constitutional. However, the Court clarified that it was necessary to take into
account not just the circumstances of the crime but also the circumstances of
the criminal. The Court listed out various aggravating and mitigating
circumstances relevant when determining the death sentence. Examples of mitigating
circumstances included the potential for reform and rehabilitation and the age
of the accused. Further, life imprisonment was to be considered the rule and
death penalty the exception. The death penalty must be imposed only in the
‘rarest of the rare’ cases.[11]
Thus, the judgement allowed Article
21 to cover substantive due process as well.
P Rathinam vs. Union of India[12]
had clear substantive due process implications as the Court held that Section
309 of the IPC which criminalized attempt to commit suicide was ‘cruel and
irrational provision’ as it punished a person who was in agony.
In 2009, the Delhi High Court’s
holding in the case of Naz Foundation v Government of National Capital
Territory of Delhi[13]
was a clear substantive due process case. There, the petitioners challenged
section 377 of the Indian Penal Code, a substantive law, which made it an
offence to perform ‘carnal intercourse against the order of nature’, as it
applied against the LGBT community. The Court held that the provision ‘insofar
as it criminalises consensual sexual acts of adults in private’ violated Article
21 of the Constitution. This was not a procedural law that was invalidated, but
a substantive law, on substantive grounds.
Thus, it is evident that the scope of
Article 21 has increased veritably from the Gopalan and the American
interpretation of the ‘due process’ clause has gradually been read into the
Indian Constituion.
It can be concluded that this
interpretation of the ‘procdeure established by law’ clause has been
implemented in India in an ideal way that created a balance between protecting
the legitimate rights of the people as well as avoiding interference in the
functioning of the legislative and executive.
In India, only those laws have been
scrutinized under Article 21 that create a possibility of violation of
fundamental rights of the citizens and welfare legislations have not been struck
down.
Thus, the Indian judiciary has
managed to achieve the delicate balance between protection of rights of
individuals against the legislative and executive and the uninterrupted
functioning of the above mentioned organs of the government.
This is an ideal situation as even the tiniest tilt in the situation could either lead to judicial overreach or access to arbitrary exercise of powers by the other organs of government, both owing to possible disruption of checks and balances in democratic governance
*Student of B.A,LL.B (Honours ) ( 1ST YEAR) National Law University , Jodhpur
[1] EVOLUTION OF DUE PROCESS IN INDIA, Mr. A.H. Hawaldar,
Bharati Law Review, Oct. – Dec., 2014
[2] The
Curious Case of ‘Due Process’ in the Indian Constitution, Vikram Raghavan, The
Indian Forum, February 13, 2023
[3] Substantive Due Process, Erwin Chemerinsky, Duke Law
Scholarship Repository
[4]
Due Process, Abhinav Chandrachud, The Oxford Handbook of The Indian
Constitution.
[5]
AK Gopalan vs, State of Madras, AIR 1950 SC 27.
[6]
Due Process, Abhinav Chandrachud, The Oxford
Handbook of The Indian Constitution.
[7] Maneka Gandhi vs. Union of India, AIR 1978 SC 597; (1978) 1 SCC 248
[8] Abhishek Singh, Analysis on Due Process and Procedure
Established by Law, 3 INDIAN J.L. & LEGAL Rsch. 1 (2021).
[9] Sunil Batra vs. Delhi Administration (1978)
4 SCC 409
[10] Bachan Singh vs. State of Punjab(1982) 3 SCC 24
[11]
Court in Review: Death Penalty, Malavika
Parthasarathy, 25th Apr 2022, Supreme Court Observer
[12] P Rathinam vs. State of Punjab (1994) 3 SCC 394.
[13]
Naz Foundation v Government of National Capital
Territory of Delh, (2009) 160 DLT 277
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