-By Abhijeet Shekhawat, Bba.Llb(H)
Gujarat National Law University
Two recent Supreme Court of India decisions clarify, reinforce, and reaffirm the Constitution’s pervasiveness of due process of law. The judgments appear to represent a departure from the previous approach of “minimalism” and point to a paradigm shift in how original constitutional rules are approached. Due process refers to the exercise of governmental power under the rule of law while taking into account the rights and interests of citizens. The principle of procedural due process refers to the government’s responsibility to provide citizens with notice and a fair hearing before depriving them of their “life, liberty, or property.”
Due Process is a principle that originates in English Common Law. Individuals’ rights to life, liberty, and property should not be taken away without warning and a chance to defend oneself predates written constitutions and was universally held in England. The MAGNA CARTA is an early example of a constitutional guarantee of due process. It was signed in 1215 and outlined the rights of English subjects against the king. “No free man shall be seized or confined… unless by the lawful judgment of his peers or by the law of the land,” according to the document. The phrase “due process of law” was derived from this understanding of the law of the land. India inherited most of the English concepts, customs, and institutions in the area of dispensing justice to the people as a result of being a part of the British system of governance in the past. The doctrine of Due Process of Law was one of the British principles established here.
However, due to the legal traditions and values contained in the Constitution, the notion of due process of law is very much a component of our country’s legal system. The Preamble of the Constitution, for instance, outlines the noble principles for which the Constitution was created. These exalted principles are the result that the new Republic’s purpose will be justice, liberty, equality, and fraternity. The sections dealing with Life, Liberty, and Property are among the specific provisions enacted in the Constitution. Although the Constitution and laws do not expressly declare Due Process theory as the Constitution of the United States of America does, the implications of the principles of Rule of Law, Equity, and Natural Justice are that the concept of Due Process of Law is implicitly applied in our country across several sectors of State Administration.
The principle of the right to “Life and Liberty,” as inscribed in Article 21 of the Indian Constitution, as a safeguarded fundamental right, is unquestionably broad in scope and applicability, and with the advent of modern jurisprudence, with radical declarations by the Hon’ble Supreme Court in judgment after judgment, especially after Maneka Gandhi, during the past three decades or so, has assumed wider connotations and implications. The right to life and personal liberty is one of the most treasured and important civil rights. The Indian Supreme Court has ushered in significant changes in the area of protection of human rights. Taking a judicial activist role, the court has put itself in a unique position to intervene when it sees a violation of these fundamental rights.
But the fundamental concern that bothers the constitutional scholar is: How Reasonable is the inclusion of “Due Process” in our Constitution? To put it another way, was ‘Due Process’ followed? The courts’ game of hide-and-seek with due process might be perplexing at times. Gopalan had specifically removed the phrase “due process” from Article 21. However, with Cooper’s help, it was repatriated in Maneka under the pretext of ‘reasonability.’ Following Maneka, there was a surge of ‘Due Process’ decisions.
In Sunil Batra, Justice Krishna Iyer reinforced the area of “due process”: “True, our Constitution has no “due process” clause… but… the ramifications are the same after Cooper and Maneka Gandhi.” Then, all of a sudden, the NSA judgment appears to signal the beginning of the end of the era of “due process.” And, as Justice Bhagwati’s minority judgment in Bachan Singh shows, “due process” is simply dormant. This legal juggling act is confusing. The court’s choices for adopting or rejecting “due process” are still open.
PROCEDURE ESTABLISHED BY LAW
“No person shall be deprived of his life or personal liberty except according to the procedure established by law,” says Article 21 of the Indian Constitution. It signifies that legislation that has been duly enacted by the legislature or the relevant body is valid if it has been done correctly. Following this idea, a person’s life or personal liberty can be taken away from them according to legal procedures. So, if parliament passes legislation, a person’s life and personal liberty can be taken away in accordance with the legislation’s provisions and processes. There is a serious weakness in this doctrine. What exactly is it? It makes no attempt to determine whether the laws passed by parliament are equitable, just, or arbitrary. “Procedure established by law,” says that a law that has been lawfully enacted is valid, even if it violates justice and equitable ideals. Following the method established by law to the letter may increase the risk of individuals’ lives and personal liberty being jeopardized as a result of unjust laws enacted by the law-making authorities, as the word “process established by law” is used explicitly in the Indian Constitution. Due process of law has a far broader meaning, yet it is not mentioned expressly in the Indian Constitution. The due process doctrine is observed in the United States of America, yet it was purposely left out by the writers of the Indian Constitution.
Article 21 only applied to life and personal liberty, not to property. Even in the case of liberty, however, the framers of the Constitution were wary of excessive judicial review. They had made provisions for preventative detention, which had hitherto only been employed in emergency situations such as war or insurrection. The phrase “procedure established by law” was very detailed, and it was anticipated that it would prevent a court veto of such legislation. In doing so, they unwittingly put the fundamental right to life and personal liberty reliant on the legislature’s benevolence. Intervening in this debate, Dr. B. R. Ambedkar had said:
“The Question of ‘due process’ raises, in my judgment, the question of the relationship between the legislature and the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature… The ‘due process clause, in my judgment, would give the judiciary the power to question the law is in keeping with certain fundamental principles relating to the right of the individual. In other words, the judiciary would be endowed with the authority to question the law not merely on the ground of whether the law was good law, apart from the question of the powers of the legislature making the law… The question now raised by the introduction of the phrase ‘due process is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles.”
DUE PROCESS OF LAW NOT PART OF INDIAN LAW – TILL 1968
On January 26, 1950, the Indian Constitution was brought into effect. Only a month later, on February 26, 1950, the Constituent Assembly (which ultimately became India’s temporary Parliament) approved India’s first Preventive Detention Act. Courts were expressly prohibited from examining the need of any detention order issued by the government; no evidence of the grounds of detention could be given in any court, either by the detainee or the authority, and the court could not enforce its disclosure; and the courts could not investigate into the truth of facts presented by the executive as grounds for confinement. Mr. A.K. Gopalan, a communist detainee, challenged the constitutional validity of the Preventive Detention Act, 1950 in the Supreme Court of India (through a writ petition under Article 32) – primarily on the grounds that it violated Article 21 (protection of life and personal liberty) and Article 19 (1)(d) of the Constitution (right of a citizen to move freely throughout India subject to reasonable restrictions imposed by law). The challenge was met with a resounding defeat. The conclusion was influenced by the historical context in which Article 21 took its ultimate form. During arguments, the Attorney General reminded the judges that the Constituent Assembly had willfully ignored “due process” in Article 21 – and that, as a result, the Court could not evaluate the legislation of preventive detention for its unreasonableness: whatever procedure was prescribed by enacted law (even if it was unjust or arbitrary), that would be sufficient justification for deprivation of life. A Constitution Bench of five judges of the Court agreed with the Attorney- General’s arguments.
In the 1950s and 1960s, the judgment in Gopalan’s case severely hampered court protection of human rights. It took the Supreme Court more than twenty-five years to break free from Gopalan’s restraints [which it finally accomplished in 1978 with the Constitution Bench ruling (of seven Judges) in Maneka Gandhi’s case]. Until then, the Article had little meaning; the protection it provided was essentially tangential – any challenge to personal liberty brought under Article 21 could be effectively overcome by demonstrating the terms of the adopted law: its rationality or unfairness was immaterial.
In Maneka Gandhi’s case, the spirit of Gopalan (1950) was finally brought to rest. A Constitutional Bench of seven judges (overruling Gopalan) read something not specifically stated in Article 21: it was not enough (said the court) that the legislation prescribes some resemblance of procedure for depriving a person of his life and personal liberty; the procedure prescribed by the law had to be reasonable, fair, and just (in the opinion of the court); otherwise, the law would be declared void as violating the guarantee of Article 21. This rewriting of Article 21 has aided the Supreme Court in its new role as India’s Institutional Ombudsman for Human Rights. Maneka Gandhi (1978) constituted the springboard for a spectacular expansion of the legislation relating to judicial action in Human Rights matters.
In Hoskot vs. State of Maharashtra, the right of a detainee to receive a copy of a verdict (imprisoning him) in order to appeal from it was read as follows from the fundamental right guaranteed by Article 21; and in Hussainara Khatoon vs. State of Bihar, the judge ruled that the right to a speedy trial was encompassed in Article 21 and that lengthy detention of those awaiting trial was a violation of Article 21. Sunil Batra vs. Delhi Administration found that a prisoner’s “personal liberty” encompassed his freedom to roam, mix, mingle, and communicate with (and share conversation with) fellow inmates and others and that any instruction from jail authorities to the contrary would be struck down as a violation of Article 21 if the orders were unreasonable or arbitrary.
Judges resorted to judicial legislation due to their excitement and a sense of independence from judicial constraints. In Sunil Batra, Justice Krishna Iyer decided that the American Constitution’s “due process” clause applied to Indian constitutional law. His remark is noteworthy: “While our Constitution lacks a ‘due process clause or the VIII Amendment, the result in this field of law is the same after the Cooper and Maneka Gandhi cases. What is blatantly awful, shockingly odd, or harsh and rehabilitatively unproductive is unquestionably unreasonable and arbitrary, as Article 14 and 19 demonstrate and if inflicted with procedural unfairness, falls foul of Article 21.”
After 1978, the Indian judiciary adopted a liberal interpretation, attempting to make the word “Procedure Established by Law” equivalent with “Due Process” when it comes to protecting the rights of the individual. The Supreme Court declared in Maneka Gandhi v. Union of India (1978) that a “process established by law” within the meaning of Article 21 must be “right, just, and fair,” not “arbitrary, whimsical, or oppressive,” otherwise it would be “no procedure at all,” and the criteria of Article 21 would not be fulfilled. As a result, in India, the phrase “procedure established by law” has acquired the same weight as the phrase “due process of law” in the United States.
Dr. Ambedkar attempted to occupy a level field by relying on “Procedure established by Law.” In order to keep control of parliament and legislature in specific circumstances, he expressed concern for personal liberty as well as the concept of “due process.” His faith, however, seemed to be in elected entities, and he looked willing to delegate the duty of protector to the courts only in special instances. Aside from the courts vs. the legislative, state police powers have been strongly related to conceptions of “due process.” The concept of ‘Due Process of the Law’ in England represented the idea of detention or imprisonment based on the law of the land, rather than the king and his council’s arbitrary decree, and the procedural safeguards required in the United States were not required in England.
In the Gopalan case, legal positivism and the doctrine of the constitution’s creators’ “original purpose” were strong arguments in favor of an interpretation that ensured just and equitable laws under the constitution. As a result, the procedure created by statute under Article 21 of the Indian Constitution must pass the Article 14 test. It indicates that the legal method must not be discriminatory or arbitrary. Article 14 is violated by an arbitrary law. The arbitrary procedure would be no procedure at all, and the Article 21 requirement would be disregarded. Article 21 cannot be violated by a process that is unreasonable, severe, or harmful to people. The judicial approach has made Article 21’s “procedure established by law” more or less synonymous with the concept of “due process” as defined by the US Constitution. The extra dimension supplied by the interpretation of Article 21 provided the accused with a slew of new rights not specifically stated in the Constitution.
The purpose of substantive law is to provide individuals with justice, and this is the goal of the law. Procedural law, on the other hand, gives tools for achieving justice. The objective and the means are inextricably linked, and justice cannot be reached without fair methods. Likewise, the tactics cannot be justified unless the ultimate result is equitable. Article 21 of the constitution elaborates on the relationship between end and means. Determining the actual meaning of the words “life,” “personal liberty,” and “procedure established by law” in Article 21 is a never-ending process. The scope of Article 21 is expanding, especially since the Maneka Gandhi case. The Supreme Court’s restrictive interpretation of Article 21 in the Gopalan case is progressively being toned down and eventually buried. Under Article 21 of the constitution, the liberal interpretation of procedure created by law in Maneka Gandhi represents the beginning of a new dimension of procedural due process in the criminal justice system. In various decisions, the Supreme Court has stated that the legal method must be just and fair. Not only from the standpoint of the accused but also from the standpoint of the victim of crime and society, must the procedure be fair. Now, if a statute violates the due process requirement, the courts will not hesitate to strike it down.
The court’s reinterpretation of Articles 21 and 14 after 1978 marked a turning point in the development of Indian constitutional law. The enormous scope of public law and public interest litigation, as well as the court’s everyday involvement in administration, that can be seen in Indian courts today, is a result of the Indian Constitution’s due process clause. It has been well remarked that judicial review is always the function, in a sense, of the then-current constitutional legislation. Since 1978, the principle of due process of law has been the most viable constitutional law in India.
- K.S. Rathore, “Role of Judicial Activism towards protection and promotion of constitutional rights”, Vol. 97, Part-1161, AIR, (2010).
- (Dr.) D.K. Bhatt, “Judicial Activism through Public Interest Litigation: Trends and Prospects”, Vol. XXV (1), Indian Bar Review, (1998).
- Solil Paul, “Was ‘Due Process’ Due? – A Critical Study of the Projection of ‘Reasonableness’ in Article 21 since Maneka Gandhi”, Vol. 1, SCC 1-10 (1983).
- P. Sathe, Judicial Activism in India Transgressing Borders and Enforcing Limits (Oxford University Press, 2nd Edn.).
- H. Hawaldar, “Evolution of Due Process in India”, Bharati Law Review, (2014).
- S. Nariman, “Due Process of Law- Its origin and Current Manifestation in the USA and its Relevance to Constitutional Law in India”, Vol. 24, Indian Advocate 1-13, (1992).
- N. Chandrasekharan Pillai, “Constitutionalism and the Protection of Due Process Rights in the Experience of India”, VOl. 7, Journal of National Human Rights Commission 105-115 (2008)
 Selvi v. Karnataka, A.I.R. (2010) S.C. 1974 and Union of India v. R. Gandhi, Civil Appeal No. 3064 of 2004 (unreported) decided on 11.05.2010
 Sirajudeen M., “Due Process of Law Has Figured Prominently from the Threshold of Constitution”, 34(1&2), ALR 115 to 134 (2010).
 The Theory of Due Process of Law in India, available at: shodhganga.inflibnet.ac.in>bitstream
 Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
 A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27.
 R. C. Cooper v. Union of India, (1970) 1 S.C.C. 248.
 M. H. Hoskot v. State of Maharashtra, (1978) 3 S.C.C. 544; Inderjeet v. State of U.P., (1979) 4 S.C.C. 246; Hussainara Khatoon (I) v. Home Secretary, (1980) 1 S.C.C. 81.
 Sunil Batra v. Delhi Administration, (1978) 4 S.C.C. 494.
 A.K. Roy v. Union of India, (1982) 1 S.C.C. 271.
 Bachan Singh v. State of Punjab, (1982) 3 S.C.C. 24.
 S.P. Sathe, Judicial Activism in India Transgressing Borders and Enforcing Limits (Oxford University Press, 2 nd Edn.).
 A.K. Gopalan vs. State of Madras A.I.R. 1950 S.C. 27.
 Maneka Gandhi vs. Union of India A.I.R. 1978 S.C. 597.
 A.I.R. 1978 S.C. 1548.
 A.I.R. 1979 S.C. 1369.
 A.I.R. 1978 S.C. 1675.
 Sunil Batra v. Delhi Administration, (1978) 4 S.C.C. 494.
 Cooper v. Union of India (1970) 1 SCC 248.
 Maneka Gandhi v. Union of India (1978) 1 SCC 248