• Article 21 of the Indian Constitution uses the phrase “procedure established by law”. It signifies that if a law has been passed by the Parliament by following the proper procedure, then it will be a valid law. Implementing this concept indicates that a person might be deprived of his life or personal liberty according to the procedure established by law. After the judgment of Maneka Gandhi v. Union of India (1978), the Indian judiciary adopted a liberal meaning of the phrase procedure established by law to make it equivalent to the  American concept of due process of law to safeguard the fundamental rights of an individual.
• In the case of A.K. Gopalan v. the Government of India (1965), the Supreme Court defined the procedure established by law under Article 21 as merely following the procedure mentioned in the statute and nothing more. As a result, a person’s ‘life’ or ‘personal liberty’ might be taken away if a law has been passed as per the procedure. The exclusion of the term ‘due’, the restriction provided by the term ‘procedure,’ and the addition of the word ‘established’ highlight the concept of Parliamentary prescription in the language used in Article 21. The Constitution of India provides the Parliament with the final say in determining the law by using the words procedure established by law.
• In Maneka Gandhi v. Union of India (1978), the Supreme Court ruled that a procedure established by law under the ambit of Article 21 should be “fair, just and reasonable, not fanciful, oppressive or arbitrary“, otherwise it will not be considered as a procedure at all, and the condition of Article 21 will not be fulfilled. Therefore, in our country, the phrase procedure established by law has achieved the same importance as the phrase due process of law in the American Constitution.

Procedure established by law and due process of law

• Procedure established by law indicates that a law that has been passed by following a proper procedure is lawful even if it violates principles of fairness and equality. The rigorous attention to the procedure may increase the chance of endangering a person’s life and personal liberty. To minimise such circumstances, the Supreme Court through various judgements emphasised the significance of the due process of law.
• Due Process of Law = Legal method + the procedure must be fair, just, and not arbitrary.

Procedure established by law .vs. Due process of law

Although the application of the doctrine of procedure established by law and due process of law are different but there are certain similarities between them which are mentioned below:

• In the Indian polity, both the procedure established by law and the due process of law are essential principles.
• The Supreme Court is the highest court in both situations. The Supreme Court of India decides on the legality of the legislation.
• The procedure established by law is specified in the Indian Constitution and therefore is lawful in the country. However, in several recent Supreme Court decisions, the issue of due process has been brought back into focus.

Procedure established by law and Article 21 of the Indian Constitution

• Article 21 is a fundamental right under Part III of the Constitution. It is considered to be one of the most important and progressive articles in our Constitution. Article 21 can only be used whenever the ‘State,’ as defined in Article 12, deprives an individual’s life or personal liberty. As a result, infringement of the right by a private person falls beyond the scope of Article 21.
• Article 21 of the Indian Constitution provides, “No one shall be deprived of his life or personal liberty unless in accordance with the procedure established by law.” At the international level, the phrase procedure established by law has also been used in relation to the right to life and personal liberty under Article 31 of the Japanese Constitution of 1946, which specifies, “No one shall be stripped of his life and personal liberty, and no criminal punishment should be levied, apart from procedure established by law.”

Article 21 of the Indian Constitution guarantees two basic rights:

• The right to life;
• The right to personal liberty.
• The basic meaning of Article 21 is that the two rights mentioned above cannot be taken away without following the proper procedure. This means that the above rights, i.e., life and personal liberty, can be taken away if the legislature follows the proper procedure. The ambit of this concept was expanded in the case of Maneka Gandhi v. Union of India (1978), which will be addressed later in this article.

Judicial pronouncements on the procedure established by law

• In the case of A.K. Gopalan v. Government of India (1965), AK Gopalan, a political leader, was arrested in Madras under the Preventive Detention Act, 1950. He claimed that the action taken under the Prevention Detention Act violated his fundamental rights under Article 14, Article 19, and Article 21 of the Indian Constitution. He also claimed that the phrase procedure established by law in Article 21 refers to due process of law. In his case, the procedure followed was not proper, resulting in a breach of Article 21 of the Indian Constitution.
• The Supreme Court ruled that if the government takes away an individual’s freedom in accordance with the procedure established by law, i.e., if the imprisonment was done by following the proper procedure, then it will not be considered a breach of Articles 14, 19, and 21 of the Indian Constitution. The Court took a narrow interpretation of Article 21 in this case. The Court took Article 21 very literally in this case and ruled that the expression procedure established by law indicates that a procedure established in a statute can take away the right to life and personal liberty.
• However, in this case, Justice Fazal Ali gave a dissenting opinion. He said that the meaning of the term procedure established by law also implies the due process of law, which indicates that no one should be left without the opportunity of being heard i.e. audi alteram partum (no person shall be left unheard) since it is one of the important principles of natural justice.
• The Court in Satwant Singh Sawhney v. D. Ramarathnam (1967) determined that the procedure established under Article 21 to deprive a person’s life and liberty has to be examined under Article 14 to check its validity and fairness. This decision started a new trend in the legal system, which was confirmed in R.C. Cooper v. Union of India (1970), in which the Supreme Court unequivocally said that the procedure followed under Article 21 must be reasonable.
• In 1975, when a national emergency was imposed, the Court went against its own decision. In the case of ADM, Jabalpur v. Shivakant Shukla (1976), the Court upheld the detention under the Maintenance of Internal Security Act  (MISA), 1971, while rejecting Article 21 entirely. The Court ruled that during an emergency, Article 21 is deemed to be suspended (overturned by the Puttaswamy case). So, in this case, the Court will only look at the literal meaning of the procedure established by law. The Court did not acknowledge whether the act of government (MISA, 1971) was just, fair, or reasonable.
• In the case of Maneka Gandhi v. Union of India (1978), the passport of Maneka Gandhi was detained by officials under the provisions of the Passports Act, 1967. The petitioner went to the Supreme Court under Article 32 and argued that the government’s act of seizing her passport was a clear violation of her personal liberty under Article 21. This decision greatly expanded the ambit of Article 21 and accomplished the purpose of making our country a welfare state, as mentioned in the Preamble. The Court concluded that the procedure established by law ought to be fair, just, and reasonable. The Court noted that the procedure specified by law for depriving a person of his right to life and personal liberty must be proper, reasonable, and fair, rather than discretionary, whimsical, and oppressive.

Post Maneka Gandhi judgment

In the case of Mathews v. Eldridge (1976), United States Supreme Court established the triple test to assess whether the legislation violates individual freedom or not. A law has to satisfy three tests to become a valid law. Post Maneka Gandhi’s judgment, the Supreme Court of India also adopted this test. The three tests are as follows:

1. Whether there is any existing provision that allows the state to deny any person’s life and liberty;
2. Whether the Parliament that has passed the concerned legislation has the authority to do so;
3. Whether the assembly fulfilled the proper procedure while passing the legislation.

If a law fails to fulfil any of the abovementioned conditions, then it would be considered an arbitrary act of the state.

Summing up

Before the Maneka Gandhi case, the extent of Article 21 of the Indian Constitution was very limited. However, in the Maneka Gandhi case, the Supreme Court broadened the ambit of Article 21 of the Indian Constitution by declaring that due process of law is an inherent element of procedure established by law. Moreover, an individual’s life and freedoms can be taken away only when the following requirements are satisfied:

• The law must be valid.
• There must be a proper procedure.
• That procedure should be just, fair, and not arbitrary.

If the procedure provided by law is frivolous, oppressive, or unreasonable, then it should not be considered a procedure at all. A system has to be reasonable or just in order to represent the idea of natural justice. Natural justice seeks to establish justice in the law.