DUE PROCESS OF LAW

1. Indian independence was the result of patience, prolonged, peaceful, and mutinying
agitations by lakhs of Indians from every corner of the Country. Starting from 1857 first
independence Revolt to 1947 August 15th, every incident, every moment was a landmark.
The humanitarian lofty aspirations and hopes of the Indian independence leaders paved the
way for the formation of the Constituent Assembly1 to draft the Young Independent Indian
people's hopes in their Constitution. The document of constitution of India is a unique legal
document with the foundation of social values. Our constitution is the embodiment of the
people's faith and aspirations towards liberty, democracy, justice including social, political,
and economic, etc. The people of India adopted the Democratic ideals to rule them. The
Framers of the Constitution took the vast task to give long towering solutions to the despair
and unrest of the people, the atmosphere of quarrels and communal disturbances 2. In the
words of Aristotle, “the basis of a democratic state is liberty”. Liberty is the hallmark of
Democracy and the Framers of the Constitution made the Edifice of the Indian constitution
on the aspect of Liberty.

2. The constitution of India deviated from many established constitutional norms and
introduced many innovations. Our constitution draw upon the abundance Experience of the
Tyranny from the British rulers. Drafting was done carefully to preserve the basic freedoms
of the individual, and to maintain the dignity and personality of the individual which are
inherent in the human life. Drafting of the Indian constitution was done to limit the power
of authoritarian and oppressive governments which jeopardizes the freedoms of the people.

1
The Assembly met for the first time in New Delhi on 9 December 1946, and its last session was held on 24 January
1950.

2
The hope of the Assembly was expressed by Jawaharlal Nehru:

The first task of this Assembly is to free India through a new constitution, to feed the starving people, and to clothe
the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity. This
is certainly a great task.
— Jawaharlal Nehru, Constituent Assembly Debates (Proceedings), Vol. II

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 But however, Indian constitution did not provide a final settlement for all the problems of
the government. It leaves several matters to be taken care of by ordinary legislation.

3. The Dignity of human life, personal Liberty, protection of life, fundamental right which
are inherent to life constitutes pillars of democracy and indeed lies at the foundation of the
ideal democratic institution. Framers of the constitution weaves the fabric of the
constitution with these cherished human values in part 3 of the constitution.

4. Many stalwarts were part of the Constituent Assembly. One of them was B.N RAU who
was the constitutional legal adviser. B.N.Rau played a key role in the formation of the
Constitution of India. It was the time when Mr. B.N.Rau met the then United States of
America Supreme court judge Justice Felix Frankfurter. Justice Frankfurter served as a
justice on the US Supreme Court for a period of 23 years. He was a believer of judicial
restraint. That he believes that the government had a duty to protect itself and public and
the court should exercise judicial restraint. He believes Judicial restraint pave the way to
promote the democratic process. In short Justice Felix Frankfurter was against to judicial
activism and judicial review. This justice Frankfurter was suggested to B.N.Rau to adopt
the procedure established by law in the place of Due process of law. According to him due
process of law was create unnecessary burdens on the judiciary. In the Article 15 of the
final draft the term ' Procedure Established by the law' was added. The Constituent
Assembly wanted to avoid the Ambiguity of the term “due".

5. The term ' Procedure Established by law' confers power limited power on the Judiciary to
invalidate the laws made by the governments and the term ' Due Process of law' confers
wider power on the Judiciary to check the particular law was based on the just and equity.
The final outcome of the Constitution of India was with the term ' Procedure Established
by law’. This deliberate withdraw of the 'due' from the article 213 creates bemuse situations
in the area of the jurisprudence of the due process in India.

3
Article 21 of the constitution runs as

21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according
to procedure established by law

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 6. The lengthy written constitution by omitted the “due process of law" made the power of
the court narrow and restricted the legacy of Judicial review. How did the Indian Supreme
court overcome the lack of the Due process clause? Some scholars have noted that the
constituent assembly designed the Indian court to be relatively weak and the parliament
and executive were supreme.

7. Indian Supreme court overcome the lack of a due process of law through the liberal
interpretation of the constitution by adopting an activist approach to curtail the arbitrariness
of the Governments. In Gopaln v state of Madras (1950), the majority view of the Supreme
Court was entirely based on literal interpretation. While in the case of Maneka Gandhi v
UOI (1978) the Supreme Court upholds Liberty as substantive component to the Article
21 and which provides broad protection of individual freedom against unreasonable and
arbitrary curtailment.

8. It is said to be that we Indians erected one of the finest democracies in the world. According
to James Cook ' Governments without separation of powers commit the worst crimes'. In
autocracies and totalitarian states, the law is not supreme. But in democracy, law is the
supreme and no one is above the law. The constitution establishes the Supreme Court with
the power of judicial review. The Supreme Court is the last bastion of hope and protector
of the fundamental rights. The Supreme Court overcomes every impediment, and
hindrance of the Executive and build the Edifice of the Due process of law in a grand way.
How the court evolved was a quite interesting aspect of the Indian constitutional
jurisprudence.

THE JOURNEY OF DUE PROCESS FROM GOPALAN TO MANEKA

9. When the newly constitution was came into force, the question of interpretation of these
words arose in the Gopalan case. In A.K. Gopalan v. State of Madras (1950), Supreme
Court ruled that Article 21 of the Constitution did not require the courts to apply due

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 process of law. In doing so, the Court upheld the validity of the Preventive Detention with
exception of Section 14, which provided that the grounds of detention communicated to
the detainee or any representation made by him against these grounds cannot be disclosed
in a court of law.

10. In the AK Gopalan case, the Court interpreted Article 21 extremely literally, concluding
that the phrase "procedure established by law" meant any procedure enshrined in statute
by the competent legislature that could deprive a person of his life or personal liberty. The
SC rejected the contention that ' procedure established by law' in article 21 was
synonymous with the American concept4 of 'procedural due process'.

11. The Gopalan5 was valid for almost three decades. In Gopalan, the SC declined the link
between articles 19 from Articles 21 and 22. In course of time, the Rigid Judicial review
came to be softened somewhat. In the Bank Nationalization case6, the SC tried to link
articles 19, 21, 22. In sambhu nath sarkar v state of WB 1973, the SC declared that the
approach of the court in the bank nationalization case had held the major premise of the
majority in gopalan to be incorrect. Bennet Coleman v UOI 1973, WB v Ashok Dey 1972
were the later developments in which SC linked the articles.

12. In 1978 after the traumatic experiences of the emergency, the Concept of Personal liberty
had reached its culmination. The SC declared that the American Due process was
synonymous with the Indian procedure established by law.

4
• The Vth amendment of the US constitution lays down interalia that " No person shall be deprived of his life ,
liberty or property, without the Due process of law'. This clause has been the most significant single source of
judicial review in the USA.

5
In the same case the most celebrated dissent judgment was given by Justice Fazl Ali.
6
Rustom Cavasjee Cooper vs Union Of India 1970

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 13. In Mohd. Arif v. Registrar, Supreme Court of India & Ors.,7 by a Constitution Bench of
this Court, has held:-

“27. The stage was now set for the judgment in Maneka Gandhi (1978) 1 SCC 248. Several judgments
were delivered, and the upshot of all of them was that Article 21 was to be read along with other
fundamental rights, and so read not only has the procedure established by law to be just, fair and
reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into
Article 21. [See: at SCR pp. 646-648 per Beg, CJ., at SCR pp. 669, 671-674 and 687 per Bhagwati, J. and
at SCR pp. 720-723 per Krishna Iyer, J.]. Krishna Iyer, J. set out the new doctrine with remarkable
clarity thus (SCR p.723, para 85):

“85. To sum up, ‘procedure’ in Article 21 means fair, not formal procedure. ‘Law’ is reasonable law, not
any enacted piece. As Article 22 specifically spells out the procedural safeguards for preventive and
punitive detention, a law providing for such detentions should conform to Article 22. It has been rightly
pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in
Article 21 are available. Otherwise, as the procedural safeguards contained in Article 22 will be
available only in cases of preventive and punitive detention, the right to life, more fundamental than any
other forming part of personal liberty and paramount to the happiness, dignity and worth of the
individual, will not be entitled to any procedural safeguard save such as a legislature’s mood chooses.”

14. Hon’ble justice Nariman in puttuswamy8 judgement observed that

Close on the heels of Maneka Gandhi case came Mithu vs. State of Punjab, (1983) 2 SCC 277, in
which case the Court noted as follows: (SCC pp. 283-84, para 6)9

7
Mohd. Arif v. Registrar, Supreme Court of India & Ors., (2014) 9 SCC 737
8
Justice K S Puttuswamy (retd) v Union of India 2018
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“6…In Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, while dealing with the question as to whether a
person awaiting death sentence can be kept in solitary confinement, Krishna Iyer J. said that though our Constitution
did not have a “due process” clause as in the American Constitution; the same consequence ensued after the
decisions in the Bank Nationalisation case (1970) 1 SCC 248, and Maneka Gandhi case (1978) 1 SCC 248.… In
Bachan Singh (Bachan Singh v. State of Punjab, (1980) 2 SCC 684) which upheld the constitutional validity of the
death penalty, Sarkaria J., speaking for the majority, said that if Article 21 is understood in accordance with the
interpretation put upon it in Maneka Gandhi, it will read to say that: (SCC p.730, para 136) “136. No person shall be
deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid

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 15. Recently in 2015 the constitutional validity of the Haryana panchayat raj amendment act
2015 was challenged10 before the Supreme Court in Rajbala v. Haryana (2015).
In this case a two judge bench of Supreme Court strongly rejected the substantive due process of
law. This decision is particularly interesting because earlier benches 11 of the Supreme Court held
that due process generally part of Indian constitution law.

16. In recent cases like the arrests of Bheema koregaon , arrests under UAPA & sedition laws,
arrests of persons who raised their voice against the governments, and sedition law cases
on media who raised their voice without following the due process of law is highly
condemnable. Human dignity and personal liberty in the right to life is the most sacred
right of mankind in India. Nelson Mandela once said “It is said that no one truly knows a
nation until one has been inside its jails. A nation should not be judged by how it treats its
highest citizens, but its lowest ones.” Human rights are the basic, inherent, immutable, and
inalienable rights of a person. Due process of law is just and equity is based on the
sacrosanct of human rights. The governments must protect those inherent rights of the
people. The supreme court of India, being the most powerful court in the world, the
Supreme Court upheld the rights of individuals. Excluding the dark days of ADM Jabalpur,
this is the only meritorious institution in this country that helped its citizens in the dark
times.

law.” The wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life
and liberty.

10
Under this act, five categories of persons were considered in eligible to contest elections for certain offices in
panchayat in Haryana the act was challenged on the ground that it was wholly unreasonable and arbitrary and
therefore violative of article 14 of the constitution. Though the supreme court rightly held that a statue cannot be
invalidated merely because it is arbitrary, it also went on to reject the US doctrine of substantive due process by
holding that Indian courts do not examine the wisdom of legislative choices unless the legislation is otherwise
violative of some specific provision of the constitution.
11
Ramlila maidan incident(2012), selvi v. state of Karnataka(2010).

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 17. To conclude, I want to conclude by quoting the Hon’ble Justice Nariman words in minority
sabarimala Verdict:

“Let every person remember that the ''holy book'' is the Constitution of India, and it is with
this book in hand that the citizens of India march together as a nation, so that they may move
forward in all spheres of human endeavour to achieve the great goals set out by this ''Magna
Carta'' or Great Charter of India"

“The wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life
and liberty.”12

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12
Hon’ble justice Nariman in puttuswamy judgment