Procedure Established by Law

So the narrow reading in Gopalan was not a failure of imagination. It was the reading the text was designed to bear. That is why the later expansion has always attracted the criticism that the Court gave itself a power the Constituent Assembly had considered and withheld, and why a strong answer states that criticism instead of celebrating the expansion uncritically.

The narrow reading

Facts. A.K. Gopalan v. State of Madras, 1950 AIR 27, 1950 SCR 88, decided 19 May 1950. Gopalan, detained under the Preventive Detention Act 1950, argued among other things that the procedure the Act laid down was no procedure at all in any meaningful sense: there was no objective standard for the detaining officer's satisfaction, no oral hearing, no right to lead evidence, and no fixed maximum period of detention.

Held. On the meaning of the phrase, per Kania C.J., Mukherjea and Das JJ., the word "law" in article 21 is used "in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice", so "procedure established by law" means procedure established by law made by the State, that is, by Parliament or a State legislature. It was "not proper to construe this expression in the light of the meaning given to the expression 'due process of law' in the American Constitution". On the specific complaints: section 3 was not invalid merely because it provided no objective standard for determining whether the requirements of law had been complied with; and section 7 was not invalid merely because it gave only a right to make a representation and provided no oral hearing or opportunity to lead evidence.

Why it matters. This is the phrase at its narrowest, applied. Notice how completely it answers the petitioner: every one of his complaints was about the quality of the procedure, and on the majority's reading the quality of the procedure was not the court's business.

The two dissents that became the law. Patanjali Sastri J. held that "law" means positive State-made law, but that "procedure established by law" does not mean any procedure a competent legislature may prescribe; it means "the ordinary well-established criminal procedure", the settled usages and normal modes sanctioned by the Criminal Procedure Code. Fazl Ali J. went further, and his passage is the one worth learning:

There is nothing revolutionary in the view that "procedure established by law" must include the four principles of elementary justice which inhere in and are at the root of all civilized systems of law: (1) notice, (2) opportunity to be heard, (3) impartial tribunal and (4) orderly course of procedure. These four principles are really different aspects of the same right, namely, the right to be heard before one is condemned.

The wide reading

Facts. Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621, decided 25 January 1978 by seven judges. The Passports Act 1967 authorised the impounding of a passport and required reasons to be furnished; the Government impounded the petitioner's passport and refused the reasons. The Act said nothing about a hearing before impounding.

Held. "The mere prescription of some kind of procedure cannot even meet the mandate of article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary." The route to that conclusion runs through article 14: article 14 "strikes at arbitrariness in State action and ensures fairness and equality of treatment"; the principle of reasonableness "pervades article 14 like a brooding omni-presence"; and therefore "the procedure contemplated by article 21 must answer the test of reasonableness in order to be in conformity with article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive."

Why it matters. Follow the mechanism, because it is examinable and often misstated. The Court did not hold that article 21 contains a due process clause. It held that a law depriving a person of liberty must also satisfy article 14; that article 14 forbids arbitrariness; and that a procedure which is unfair is arbitrary. The fairness requirement therefore enters article 21 through article 14, not out of the words of article 21 itself. That is why the golden triangle in [Article 21: From Gopalan to Maneka] is not a slogan but the actual reasoning.

How far is "fair, just and reasonable" from "due process"?

This is the question a good LL.M. answer reaches, and it has three honest parts.

In effect, very close. A court that may ask whether a procedure is fair, just and reasonable can strike down an enactment for the quality of what it does. That is substantive review, whatever it is called. The Court in later cases has said openly that the difference between the two formulations has narrowed almost to nothing so far as procedure is concerned.

In form, still different. The Court has never claimed the power to strike down a law merely because it thinks the policy unwise, which the American doctrine at its widest once permitted. The Indian standard is anchored to arbitrariness and to article 14, and arbitrariness is a legal standard, not an invitation to substitute the judge's view of good policy.

In legitimacy, contested. The strongest criticism is not that the result is bad but that it was reached by a route the Constituent Assembly closed. The strongest answer to that criticism is that the Assembly removed "due process" fearing an open-ended review of economic and social legislation, and that what the Court has actually done is require fair procedure, which is a narrower thing.

Do not write that Maneka "introduced due process into the Constitution". It did not, and the sentence is wrong on the words as well as on the reasoning. Write that Maneka required the procedure to be fair, just and reasonable, and that in practice this achieves much of what due process achieves.

What it does NOT mean

It does not mean every deprivation now requires a hearing. Maneka itself says reasonableness is judged in the context of the purpose the Act pursues and of the urgent situations administrators must deal with, and not on hypothetical considerations "like the provision for a full-dressed hearing as in a court room trial". A post-decisional hearing may satisfy the standard where a pre-decisional one would defeat the object.

It does not mean "law" now includes unenacted principles. There must still be a law. The requirement of fairness attaches to the procedure the law lays down; it does not dispense with the need for a law.

It does not apply only to criminal procedure. The phrase governs any deprivation of life or personal liberty, and the leading case is about a passport.

A worked example

A statute permits an authority to cancel a professional licence on being "satisfied that it is expedient in the public interest", with no notice, no reasons and no appeal. Priya's licence is cancelled and she is told nothing.

Step one, is article 21 engaged? Cancellation of a licence to practise is a deprivation of livelihood, which on [Livelihood and Shelter] falls within "life" in article 21. So yes.

Step two, is there a law? Yes, and on Gopalan the enquiry would very nearly end. There is a statute, it confers the power, the power was exercised.

Step three, is the procedure fair, just and reasonable? Take the elements Fazl Ali J. listed, since they are the working checklist: was there notice; was there an opportunity to be heard; was the deciding body impartial; was the course of procedure orderly? Here there was none of the first two.

Step four, is there a reason for the absence? The State must justify it, not merely assert it. Urgency can justify dispensing with a pre-decisional hearing, as Maneka accepts. But if the licence can be suspended immediately and the question decided after a hearing, the absence of any hearing at all is not justified by urgency.

Step five, article 14. "Expedient in the public interest", standing alone and with no principle stated, confers an unguided discretion. That is arbitrariness in the sense of [Arbitrariness], and it is the same defect from the other direction.

Step six, the conclusion. The provision is bad, and the reason is stated as one proposition, not two: the procedure is not fair, just and reasonable, therefore it does not answer article 14, therefore it does not satisfy article 21.

Quick revision

• The draft article said "due process of law"; the Assembly removed it and substituted "procedure established by law", from the Japanese Constitution, to keep courts out of the merits of legislation.
• Gopalan: "law" means State-made law, not natural justice; the phrase is not to be read in the light of American due process. No objective standard, no oral hearing and no right to lead evidence were all held not to invalidate.
• Patanjali Sastri J. dissenting: the phrase means the ordinary well-established criminal procedure.
• Fazl Ali J. dissenting: it must include notice, an opportunity to be heard, an impartial tribunal and an orderly course of procedure.
• Maneka: "the mere prescription of some kind of procedure cannot even meet the mandate of article 21"; it must be fair, just and reasonable, not fanciful, oppressive or arbitrary.
• The route is through article 14: unfair procedure is arbitrary, arbitrariness offends article 14, and a law depriving liberty must satisfy article 14.
• Maneka did not adopt "due process". Say "fair, just and reasonable", and say the effect is close.
• Reasonableness is judged against the Act's purpose and any urgency, not against a courtroom trial.

Test yourself

1. What did the Constituent Assembly remove from the draft article, what did it put in its place, and why?

2. In Gopalan, what did the majority hold "law" in article 21 means? Give the two dissenting views and say which is now the law.

3. Trace the reasoning by which the requirement of fairness enters article 21. Which article does it come through, and why does that matter?

4. "Maneka Gandhi introduced due process into the Indian Constitution." Explain what is wrong with that sentence and write a correct one.

5. List Fazl Ali J.'s four principles of elementary justice and apply them to a statute that permits cancellation of a licence without notice.

6. When may a fair procedure dispense with a hearing before the decision is taken?