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‘Procedure Established by Law’ and ‘Due Process’ Clause in The Context of Indian Constitutional Law                    

Aadisha Dhaliwal*

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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