In 1934 M.N. Roy, a pioneer of communist moment in India, introduced the idea of
formation of constituent assembly for India for the first time. The constituent
Assembly was constituted in November 1946 under the scheme formulated by the
cabinet mission plan. The constituent was a partly elected and partly nominated
body. Although, the people of India on the basis of adult franchise did not
directly elect the constituent assembly the assembly comprised representatives of
all sections of the Indian society.
The constituent assembly held its first meeting on December 9 1946. The meeting
was, attended by 211 members. Later Dr. Rajendra Prasad was, elected as the
president of the assembly. Similarly, both H.C. Mukherjee and V.Y.
Krishnamachari were elected as the vice- presidents of the assembly.
The drafting committee was constituted on August 29, 1947. With Dr. B.R.
Ambedkar as its chairperson. This committee was entrusted with the task of
preparing a draft of the present constitution.
The drafting committee, after taking into consideration the proposals of the
various committees, prepared the first draft of the constitution of India, which
was published in February 1948.
On 23 April 1947, the Advisory Committee on minorities and fundamental rights
presented an interim report.
And the clause 9 of the same reads as follows:
No person shall be deprived of his life or personal liberty, without due process
of law, nor shall any person be denied the equal treatment of the laws within
the territories of the union.
Clause 9 was revised and adopted by the Constituent Assembly on April 30, 1947,
"No person shall be deprived of his life, or liberty, without due process of
law, nor shall any person be denied equality before the law within the
territories of the Union".
In the final submission of the draft constitution in February 1948, clause 9 or
draft Article 15 which was similar to current Article 21 of the constitution
reads today except the word personal had been included before liberty and
without due process of law had been replaced with except according to procedure
established by law.
Reasons behind Removing the Term Due Process of Law
The true explanation for the change, however, appears to be the nature of the
legislature's relationship with the judiciary. The United States Supreme Court's
abuse of substantive due process caused B.N. Rau to point out, even before any
proposal was given to the Constituent Assembly, that a due process clause would
obstruct positive social legislation.
The historic encounter between B.N. Rau
and Justice Felix Frankfurter proved to be the last nail in the coffin. Justice
Frankfurter persuaded Rau that the due process clause's implicit judicial review
power was undemocratic and burdensome to the judiciary. Rau convinced the
drafting committee and the due process clause was removed, despite significant
The very real problem of communal violence that the country faced in the
aftermath of partition was also cited as a reason for the change. Preventive
detention tactics, which were utilized during British colonial administration
without constitutional protections of due process, were seen to be the most
efficient at preventing communal conflict. In this context, Govind Ballabh Pant
stated that if mischief-makers could not be prosecuted, communal unrest would
continue unabated, and that limiting the legislature's discretion would
inevitably culminate in anarchy.
The objection to the removal of the "due process" clause was principally
motivated by the need to preserve individual liberty from the excesses and
arbitrariness of executive actions. The introduction of draft Article 15A, which
subsequently became Article 22 of the Indian Constitution, helped to overcome
this problem to some extent.
Procedure Established By the Law
Article 21 of the Indian constitution states that "No person shall be deprived
of his life and personal liberty except according to the procedure established
Therefore, here Article 21 of the Indian constitution secures two Fundamental
- Right to Life and;
- Right to Personal liberty
That means rights mentioned above cannot be taken away from any person without
following the procedure established by law.
Now, what do we understand by the term procedure established by law, it simply
means that any legislation which is made by the legislative or by any authorized
body will be very well valid if it has followed the correct procedure.
Hence, if legislature made any law the life and personal liberty of any person
can be taken away as per the procedure and provision of that particular law. The
scope of this principle widened in the case of Maneka Gandhi V. Union of
India, which we will discuss in detail further.
Due Process of Law
It is an English concept mentioned in Magna Carta and upheld in America. It has
a wider connotation in comparison to Procedure Established by law.
The fifth amendment of American constitution provided that "No person shall be
deprived of life, liberty and property without due process of law
" and the
14th amendment of the US constitution put the similar legal obligation over all
Due process of law is a doctrine, which checks whether the concerned law or the
law, which is in dispute is fair or not, or is that law depriving any person
from his life and personal liberty. It also see that the law, which has been
enacted by the concerned authorities, must be just, fair and not arbitrary.
Doctrine of Procedure Established By Law versus Due Process of Law
Maybe the doctrines mentioned above look interchangeable but there are drastic
differences between the two, below we are going to discuss those differences in
a very simple manner.
Procedure Established by Law
Due process of law
- The Doctrine of procedure Established by law originated from British
- It does not assess whether the laws made by the legislature or by the
concerned authority is fair, just and not arbitrary.
- The judiciary's role is limited to evaluating the procedure used by the
legislature to enact the law in question.
- It solely safeguards a citizen's rights from the executive's arbitrary
- The doctrine of due process of law is an English concept mentioned in
Magna Carta and upheld in America
- It determines whether a law is valid by examining both its procedural
and substantive characteristics.
- The judiciary has the power to determine the laws' procedural adequacy
as well as its intention.
- It safeguards citizens' rights from both executive and legislative
Doctrine of Procedure Established By Law and Indian Judiciary
The Indian judiciary has from time to time defined the scope of doctrine of
procedure established by law in various cases.
AK Gopalan V. State of Maharashtra 
The dispute regarding the definition or meaning of the term firstly came into
light in this particular case.
In this case, the petitioner detained under preventative detention Act of 1950.
It argued that, the expression Procedure Established by Law
interchangeable with the expression Due process of law
of the US Constitution.
Stated that the Indian constitution provides the same protection with the only
difference, that the expression of due process interpreted in a way by American
courts, that it will give protection to substantive law as well as to procedural
law. However, the Indian constitution only guaranteed the protection related to
The petitioner contented that the exclusion of word "due", has made no
difference for the interpretation of Article 21 of the Indian Constitution. The
was not identical to word prescribed but had a broader
meaning. The word law did not mean, the law, which enacted by the legislature
after following the procedure, which is prescribed in the constitution.
Nevertheless, meant that the law, which enacted by the legislature, must follow
the principles of natural justice.
However, the Supreme Court rejected the contentions of petitioner and held, The
procedure established by law
and Due process of law
as adopted in America are
not the same concept. There was no reasonable reason given for adoption of the
word law by the US Supreme Court in Due Process of Law. The court applied the
rule of literal interpretation and held by majority, that the procedure
established by law shall mean the procedure prescribed by the law of the state.
In simple words, it said that, if the executive follows the procedure which is
given under the law will be a valid law and the detention will be valid.
Regardless, of whether the procedure that is there in the law is unjust or
arbitrary in nature. By doing so, the Supreme Court made a clear difference
between the two concepts.
ADM Jabalpur V. Shivkant Shukla 
This case popularly known as Habeas Corpus case. The Supreme Court in this case,
reversed the views of high court. Held that, no person has locus standi to file
a petition under Article 226 of the Indian constitution, under any High court
for Habeas corpus or for any other writ, and examining whether the detention
under the Act was based on proper satisfaction of executive authority or not.
Hence, the detainee had no locus standi to file a writ petition for challenging
the legality of the detention.
However, Justice HR Khanna was the only judge who dissented with the judgement.
He stated that enforcing Article 359 which deals with the power of the president
to suspend the right to enforce fundamental rights. Guaranteed by part III of
the Indian constitution does not deprive any persons' right to approach to the
court for the enforcement of the rights, given in any statute.
He further pointed out that:
New Dimension of Procedure Established By Law in Maneka Gandhi Case by Supreme
Court of India
- Article 21 is not the only guarantor of life and personal liberty.
- At the time when emergency is in force, Article 21 only loses the
procedural power but not the substantive power and the state does not have
the power to take away the right of any person without the authority of law.
Maneka Gandhi V. Union of India 
This was the landmark judgement after the emergency period. In this case, the
Supreme Court overruled the Gopalan case and extended the scope of Article 21,
which will now protect the right to life and personal liberty of citizens not
only from the executive actions but from legislative actions also. In this case,
it was further stated that "due process of law" is an integral part of
"procedure established by law".
Brief facts of the case
In this case, the central government seized the passport of the petitioner under
section 10(3)(c) of the passport Act, 1967. The Act authorized the union
government to do so if necessary in the interest of general public.
Arguments of the petitioner
Contentions of the Respondents
- Section 10(3)(c) of the Act was violative of Article 14 of the
constitution as it gives arbitrary power to the union government as it did not
provide a provision for a hearing of the passport holder before passport was
- Section 10(3)(c) was violative of article 21 of the constitution as it
did not provide any procedure under Article 21 of the Indian constitution
- Article 19 from clause (2) to clause (6) of the constitution talks about
reasonable restrictions but section 10(3)(c) was violative of Article 19(1)(a)
and (g) as the permitted restriction under the said section not provided under
clause (2) and (6) of Article 19.
Issues Before the court
- According to the respondent, the passport seized, because the petitioner
had to appear before a government committee for a hearing.
- It stated by the respondent, that the term law under Article 21 could
not interpreted as embodied in the fundamental precepts of Natural Justice,
citing the AK Gopalan case.
- The term "Procedure Established by Law" under Article 21 of the Indian
constitution and such a procedure does not have to pass the reasonability
test or be in accordance with Article 14 and Article 19.
- The American principle of Due process of Law versus Procedure the
British Procedure Established by Law were hotly debated among the framers of
our constitution, the conspicuous absence of due process of law from the
Indian constitution clauses reveals the objective of the constitution
Judgment of the Court
- Are the provisions of Article 21, 14 and 19 of the Indian constitution
related to one another or mutually exclusive?
- Should the procedure established by law, which in this case was passport
Act, 1967, be put to the test for reasonableness?
- Is it correct that article 21 includes the right to travel outside the
- Is it reasonable to pass a legislative law that takes away the right to
The Supreme Court held that:
- Although the term used in Article 21 is "procedure established by law"
rather than "due process of law," the court amended the face of the
Constitution by declaring that the procedure stated must be free of the
vices of irrationality and arbitrariness.
- The court overruled the Gopalan's Case and held that there is
interrelationship between Article 14, Article19 and Article 21 and every law
must satisfy the criteria set forth in the mentioned articles. The Supreme Court
by majority in the Gopalan's case previously held that Article 19 has no
application to laws depriving a person of his life and personal liberty enacted
under article 21 of the constitution. Hence, the court held that these articles
are not mutually exclusive but dependent on one another, by rectifying its
- Personal liberty under article 21also includes right to travel
abroad as held in case of Satwant Singh Sawhney v. D Ramarathnam,
Held by court that the phrase "personal liberty" not to be interpreted narrowly
or strictly. Personal liberty as per the court understood in a broad and liberal
manner. Hence, Article has given an extensive interpretation. The court ordered
that future courts extend Article 21 perspectives to include all Fundamental
Rights, rather than interpreting it narrowly.
Neither Article 21 nor Article 19(1)(a) or 19(1)(b) of the Indian Constitution
are violated by Section 10(3)(c) and (g) of the passport Act, 1967. The court
further held that the 1967 provision was not in violation of Article 14. Because
the aforementioned provision allows for an opportunity to be heard. The
petitioner claim that the phrase "in the interests of the general public" is not
vague dismissed by the court.
The court stated further that section 10(3)(c) of the Act is an administrative
order, hence can be challenged based on unreason ability, ultra vires and
It can be said that, prior to Maneka Gandhi case the scope of article 21 was
very narrow, in the above mentioned case the Supreme Court widened the scope of
Article 21 of the Indian constitution, by stating that "due process of law" is
an integral part of "procedure established by law". In addition, a person can be
deprived of his life and personal liberty only if the conditions, which are
mentioned below, are fulfilled:
- There must be a valid law.
- The law must provide a procedure, and;
- The procedure must be fair, just and reasonable.
If the procedure prescribed by law is fanciful, oppressive and arbitrary in
nature then it should not be a procedure at all and not all the requirements of
Article 21 would be satisfied.
The Court also answered the question that what would amount to fair and just
procedure? The court said that, a procedure must be fair or just must embody the
principle of natural justice. Natural justice is intended to invest law with
fairness and to secure natural justice. The court further said; 'law' should be
reasonable law, and not extended piece of law.
Written By: Adya Choubey,
- 1978 AIR 597, 1978 SCR (2) 621
- AIR 1950 SC 27; 1950 SCR 88
- AIR 1976 SC 1207
- 1978 AIR 597, 1978 SCR (2) 621
- AIR 1836, 1967 SCR (2) 525
B.Com LL.B (Hons.) Pursuing LL.M