Procedure Established by Law and Due Process of Law
⚖️ Procedure Established by Law vs. Due Process of Law
1. Meaning of Procedure Established by Law
“Procedure Established by Law” means that the state can deprive a person of life or personal liberty only if it follows a procedure which is established by a valid law enacted by the legislature.
The procedure must be prescribed by law, and the state action must follow that procedure.
The Indian Constitution, under Article 21, originally provided that no person shall be deprived of life or personal liberty except according to procedure established by law.
2. Meaning of Due Process of Law
“Due Process of Law” is a broader and more protective concept originating from the U.S. Constitution (5th and 14th Amendments).
It requires that any law or procedure depriving life or liberty must be fair, just, and reasonable.
It not only requires a valid law but also judicial scrutiny of the fairness and reasonableness of the procedure.
It prevents arbitrary or oppressive laws even if they are enacted by the legislature.
3. Historical Background in India
The original text of Article 21 said:
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
This phrase is closer to the English doctrine of "procedure established by law" which means any procedure prescribed by a valid law.
Due Process of Law was not explicitly incorporated in the Indian Constitution, unlike the US.
4. Differences between Procedure Established by Law and Due Process of Law
| Feature | Procedure Established by Law | Due Process of Law |
|---|---|---|
| Origin | British legal tradition | American Constitution |
| Meaning | Deprivation only as per the procedure prescribed by law | Deprivation only if the procedure is fair, just, reasonable |
| Judicial Review | Limited; only checks if procedure is prescribed by law | Extensive; examines fairness, reasonableness of the law and procedure |
| Protection Against | Procedural compliance | Arbitrary, unfair, and unreasonable laws |
| Scope | Narrow; focuses on legality of procedure | Wide; focuses on fairness, justice, and reasonableness |
5. Key Case Laws in India
A. A.K. Gopalan v. State of Madras (1950)
Facts: The petitioner challenged his preventive detention under the Preventive Detention Act.
Issue: Whether Article 21 means “procedure established by law” or “due process of law”.
Held: The Supreme Court adopted the narrow interpretation of “procedure established by law”.
It held that if the law prescribes a procedure and it is followed, it satisfies Article 21, even if the law is harsh or unreasonable.
Due process of law was rejected as part of Indian constitutional law.
Significance: This decision upheld a restrictive view, allowing laws even if unfair, as long as they had a legal procedure.
B. Maneka Gandhi v. Union of India (1978)
Facts: Maneka Gandhi’s passport was impounded without providing reason or fair opportunity.
Issue: Whether the procedure followed violated Article 21.
Held: The Supreme Court expanded the scope of Article 21 and held that the procedure established by law must be “right, just and fair” and not “arbitrary, fanciful or oppressive.”
This effectively introduced the “due process” principle into Indian law under the guise of Article 21.
Significance: It overruled the restrictive view in Gopalan’s case and established that due process is implicit in the “procedure established by law”.
The Court also linked Articles 14 (equality) and 21, holding that any law or procedure must also satisfy the test of reasonableness under Article 14.
C. Kesavananda Bharati v. State of Kerala (1973)
The Supreme Court reiterated the importance of the basic structure doctrine, which includes due process as part of the fundamental rights.
The case emphasized that constitutional amendments cannot violate the essence of Article 21, which includes a fair procedure.
6. Summary of Judicial Evolution
| Case | Interpretation of Article 21 | Key Principle |
|---|---|---|
| A.K. Gopalan (1950) | Procedure established by law = any procedure prescribed by law | Narrow interpretation, no due process |
| Maneka Gandhi (1978) | Procedure established by law must be “right, just and fair” | Broadened interpretation; due process implied |
| Kesavananda Bharati (1973) | Due process and Rule of Law are part of basic structure | Protects fundamental rights against amendment |
7. Practical Implications
The state cannot enact or follow a procedure that is arbitrary, unreasonable, or unfair, even if prescribed by law.
Courts can strike down laws or executive actions that violate this expanded understanding of due process.
It protects citizens from unjust detention, deprivation of property, or other fundamental rights without a fair hearing.
8. Conclusion
Initially, Indian constitutional law accepted the “procedure established by law” doctrine with a narrow meaning.
Post Maneka Gandhi, Indian courts adopted a broader, substantive due process approach to ensure fairness and justice.
Today, “procedure established by law” and “due process” are effectively merged to protect fundamental rights under Article 21.
This evolution strengthens the Rule of Law and constitutional safeguards in India.
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