Procedure Established by Law, and Due Process
Chapter Fifteen
Syllabus topic 1, "Constitutionalism". Set as a short note on Q.P. 12192 (2015).
Pages 79 to 83 of 780
In one line
The Constitution says a person may be deprived of life or liberty only by "procedure established by law", a phrase chosen deliberately to avoid the American "due process"; and the Supreme Court has since read due process into it anyway.
In the wording a student can write in an exam: article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The phrase was taken from article 31 of the Japanese Constitution of 1946 and was preferred to "due process of law" on the advice of Justice Felix Frankfurter, conveyed to B. N. Rau, on the ground that due process gave American judges an undefined power to review the substance of legislation. In A.K. Gopalan the phrase was read literally, so that any procedure enacted by a competent legislature satisfied it. In Maneka Gandhi the Court held that the procedure must be right, just and fair and not arbitrary, fanciful or oppressive, which is substantially the content of procedural due process, and later cases have gone further and reviewed the substance of a law under article 21.
The two phrases, precisely
"Due process of law" appears in the Fifth and Fourteenth Amendments to the United States Constitution: no person shall be deprived of life, liberty or property without due process of law. American courts developed it in two directions. Procedural due process asks whether the procedure was fair: notice, a hearing, an impartial adjudicator. Substantive due process asks whether the law itself was reasonable, whatever its procedure.
"Procedure established by law" points only at the existence and the observance of a procedure laid down by a valid law. On its face it asks whether there is a law and whether it was followed, not whether the law was fair.
The choice was deliberate and it is documented. The Constituent Assembly's constitutional adviser, B. N. Rau, met Frankfurter J. of the United States Supreme Court in 1947, who advised that the due process clause was undemocratic because it gave an unelected judiciary the power to strike down social legislation, and burdensome on the judiciary. The Drafting Committee adopted the Japanese formulation. Ambedkar, in the Assembly, acknowledged the force of the arguments on both sides and left the House to decide.
So the phrase is not an accident of drafting, and an answer that treats it as one has missed the point of the question.
Gopalan: the phrase read literally
In A.K. Gopalan v. State of Madras, AIR 1950 SC 27. Facts. A challenge by a detenu to the Preventive Detention Act 1950. Held, upholding the Act except for section 14 which was severable. The fundamental rights are separate and self-contained: a law of preventive detention was to be tested against article 22 alone, article 19 had no application to a person lawfully detained, and "procedure established by law" in article 21 meant procedure laid down by a law duly enacted, not procedure that a court would find fair. Fazl Ali J. dissented, holding that the rights should be read together and that certain minimum principles of natural justice were implicit in the word "procedure".
Procedure Established by Law, and Due Process
The consequence was that article 21 protected very little. If Parliament enacted a procedure, however summary, that procedure was by definition the procedure established by law. The article guaranteed the form of legality and nothing about its content.
Maneka: due process without the words
In Maneka Gandhi v. Union of India, AIR 1978 SC 597. Facts. The petitioner's passport was impounded under section 10(3)(c) of the Passports Act 1967 "in the interests of the general public", without reasons and without a hearing. Held. Three things. First, that articles 14, 19 and 21 are not mutually exclusive but form a single scheme, so a law depriving a person of personal liberty must answer the tests of all three: it must not be arbitrary (article 14), it must be a reasonable restriction on any freedom in article 19 that it touches, and it must prescribe a fair procedure (article 21). Second, that the procedure established by law must be right, just and fair, and not arbitrary, fanciful or oppressive, and that a procedure which is arbitrary is no procedure at all. Third, that the right to travel abroad is part of personal liberty.
The effect is that the Indian article now does the work of the American clause. The words were not amended; the reading changed.
How far the change has gone since
Life means more than animal existence. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746. Facts. A detenu's complaint about restrictions on interviews with her lawyer and family under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. Held. The right to life includes the right to live with human dignity and all that goes with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in diverse forms, and that any act which damages or injures or interferes with the use of any limb or faculty, permanently or temporarily, would be within the inhibition of article 21. Why it matters here is that it converts article 21 from a protection against unlawful procedure into a substantive guarantee.
And the substance of a law is now examined under article 21. In Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; AIR 2017 SC 4161. Facts. A reference to nine judges on whether the Constitution guarantees a right to privacy, earlier decisions having said it did not. Held. Unanimously that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under article 21 and as part of the freedoms in Part III, and that an invasion of it must satisfy legality, a legitimate State aim and proportionality. Why it matters here is that a proportionality test is substantive review: it asks not only whether the procedure was fair but whether the measure was a necessary and balanced way of achieving its object.
Procedure Established by Law, and Due Process
Even so, the Court has not abandoned the distinction. In Bachan Singh v. State of Punjab, AIR 1980 SC 898. Facts. A challenge to the constitutionality of the death penalty for murder and to the sentencing procedure. Held, by four to one. The death penalty is not unconstitutional, that it may be imposed only in the rarest of rare cases when the alternative option is unquestionably foreclosed, and that the sentencing procedure in section 354(3) of the Code of Criminal Procedure, requiring special reasons, satisfies article 21. Bhagwati J. dissented. Why it matters here is that the Court applied a demanding article 21 standard and still upheld the law, which shows that reading due process into article 21 is not the same as substituting the Court's view of policy.
A worked example
A statute empowers a District Magistrate to order a person to leave a district for six months if satisfied that the person's presence is likely to cause a breach of the peace. No notice is required, no reasons need be recorded, and the order is final. Test it under both readings.
Under the Gopalan reading the statute survives. There is a law; it lays down a procedure, namely the Magistrate's satisfaction and an order; and the procedure was followed. Article 21 asks nothing more, and article 19 does not apply to a person lawfully restrained.
Under the Maneka reading the statute fails three times over. Article 21 requires a procedure that is right, just and fair, and a procedure with no notice, no hearing and no reasons is none. Article 19(1)(d), the right to move freely throughout the territory of India, is engaged, and the restriction must be reasonable under article 19(5). Article 14 is engaged because a satisfaction that need not be explained cannot be shown not to be arbitrary.
And under Puttaswamy there is a fourth question. Even a law with notice and reasons must be proportionate: is externment for six months a necessary and balanced means of preventing a breach of the peace, when binding over under the ordinary criminal law is available?
Procedure Established by Law, and Due Process
The example shows the whole arc of the topic in one statute, and it is why a student should be able to answer this question by tracing a single set of facts through 1950, 1978 and 2017.
Distinctions
| Due process of law | Procedure established by law | |
|---|---|---|
| Source | Fifth and Fourteenth Amendments, United States | Article 31, Constitution of Japan 1946 |
| Asks | Was the procedure fair, and was the law itself reasonable? | Is there a law prescribing a procedure, and was it followed? |
| Chosen by the Constituent Assembly | No, and deliberately not | Yes, on Frankfurter J.'s advice conveyed by B. N. Rau |
| Indian position 1950 to 1978 | Rejected: Gopalan | Applied literally |
| Indian position after 1978 | Substantially adopted in content | Read as requiring a right, just and fair procedure |
| Procedural due process | Substantive due process | |
|---|---|---|
| Question | Was there notice, a hearing, an impartial adjudicator? | Is the law itself reasonable and proportionate? |
| Indian home | Article 21 after Maneka | Article 21 read with articles 14 and 19; the proportionality test in Puttaswamy |
| Danger | None much | That a court substitutes its policy for the legislature's, which is why the Assembly hesitated |
What it does NOT mean
It does not mean the Constitution was amended. The words of article 21 are as they were in 1950. What changed is the reading, which is worth stating because it shows how much of constitutional law is interpretation rather than text.
It does not mean Gopalan is wrong in every respect. Preventive detention remains constitutionally permissible under article 22, and the specific holding upholding the Preventive Detention Act 1950 was of its time.
It does not mean article 21 now permits a court to strike down any law it thinks unwise. Bachan Singh upheld the death penalty applying a demanding standard, and the Court has repeatedly said that reasonableness is not the same as agreement.
And it does not mean the Assembly was wrong to choose as it did. The objection Frankfurter J. raised, that an undefined due process clause transfers policy to unelected judges, is the same objection made today to expansive readings of article 21, and a good answer notes that the debate did not end in 1949.
Quick revision
Article 21: no person shall be deprived of his life or personal liberty except according to procedure established by law. The phrase comes from article 31 of the Japanese Constitution 1946 and was preferred to "due process of law" on Frankfurter J.'s advice conveyed through B. N. Rau, because due process gives unelected judges power over the substance of legislation. A.K. Gopalan 1950: the rights are separate compartments and the phrase means any duly enacted procedure; Fazl Ali J. dissented. Maneka Gandhi 1978: articles 14, 19 and 21 form a single scheme, the procedure must be right, just and fair, and an arbitrary procedure is no procedure at all. Francis Coralie Mullin: life means living with human dignity. Puttaswamy 2017: privacy is part of article 21 and an invasion must satisfy legality, legitimate aim and proportionality, which is substantive review. Bachan Singh: the death penalty is constitutional, rarest of rare, which shows the standard is demanding but not a policy veto.
Procedure Established by Law, and Due Process
Test yourself
1. Where does the phrase "procedure established by law" come from, and why was it chosen? From article 31 of the Japanese Constitution 1946. It was preferred to "due process of law" on the advice of Frankfurter J., conveyed to B. N. Rau, that due process is undemocratic because it gives unelected judges power to strike down social legislation, and burdensome on the judiciary.
2. What did Gopalan make of the phrase? That the fundamental rights are separate and self-contained, that a preventive detention law is tested against article 22 alone, and that the phrase means procedure laid down by a duly enacted law rather than procedure a court would find fair.
3. State the three holdings in Maneka Gandhi. That articles 14, 19 and 21 form a single scheme and a law depriving liberty must satisfy all three; that the procedure must be right, just and fair and not arbitrary, fanciful or oppressive, an arbitrary procedure being no procedure at all; and that the right to travel abroad is part of personal liberty.
4. Distinguish procedural from substantive due process, and say where each now lives in India. Procedural asks whether there was notice, a hearing and an impartial adjudicator, and lives in article 21 after Maneka. Substantive asks whether the law itself is reasonable and proportionate, and lives in article 21 read with articles 14 and 19 and in the proportionality test of Puttaswamy.
5. Does the adoption of due process reasoning mean a court may strike down an unwise law? No. Bachan Singh upheld the death penalty while applying a demanding article 21 standard, and the Court has repeatedly distinguished unreasonableness from disagreement with policy.
6. Why is this topic a good illustration of constitutionalism? Because the same words produced almost no limit on government in 1950 and a very strong one after 1978, which shows that a written limit is only as strong as the institution reading it.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.