Procedure established by Law

Updated: Jun 2, 2021

Article 21, under Part III of the Indian Constitution, is one of the most important liberties as well as a human right granted to the citizens of India by the Constitution, and therefore a clear understanding of the extent of its application as well as the widening of interpretation with the changing times was and is very necessary to accommodate this freedom to the widest possible measure.

The Judiciary, therefore, must deeply analyze the implication of any interpretation or explanation made by them and its effect on the exercise of these rights by the citizens.

Procedure established by law

Implications of ‘Procedure Established by Law’

In India, the expression "procedure established by law" means procedure laid down by a statute or procedure prescribed by the law of the State.

The question of the interpretation of 'procedure established by law' after the coming of the Constitution in 1950 in the A.K. Gopalan v State of Madras, the words used in Article 21 came under the scrutiny of the Supreme Court in which the validity of the Preventive Detention Act, 1950 was challenged.

Thus, the Supreme Court ruled in Gopalan that in Article 21, the expression "procedure established by law" meant the procedure as laid down in the law as enacted by the Legislature and nothing more. Thus, a person could be deprived of his "life" or "personal liberty" following the procedure laid down in the relevant law.

The Court was thus concerned with the procedure as laid down in the statute.

The reasonableness of the procedure was not considered to be the concern of the court. The ruling thus meant that to deprive a person of his life or personal liberty--

(1) There must be a law;

(2) It should lay down a procedure; and

(3) The executive should follow this procedure while depriving a person of his life or personal liberty.

The way the majority handled Article 21 in Gopalan was not free from criticism. Gopalan was characterized as the 'high-water mark of legal positivism'. Court's approach was very static, mechanical, and purely literal and was too much colored by the positivist or imperative theory of law.

Procedure established by law


The Court treated the Constitution as merely another statute. The way Article 21 was interpreted by the majority in Gopalan meant that Article 21 constituted a restriction only on the executive which could not act without law and that Article 21 was impotent against legislative power which could make any law, howsoever drastic, to impose restraints on personal liberty without being obligated to lay down any reasonable procedure for the purpose.

It was not for the Court to judge whether the law provided for a fair or reasonable procedure or not. Some of the arguments adopted by the majority in Gopalan, to reach the result cannot stand scrutiny.

For instance, the Court's concept of natural justice decried as vague and uncertain is very well known in India. Since Gopalan, the concept of natural justice has been applied by the Courts in the number of cases and its area of application has expanded by leaps and bounds with the lapse of time.

Then, the majority in Gopalan characterized the concept of due process as vague and variable. The fact however remains that the Indian Constitution itself incorporates the very same concept to some extent in Article 19 in the form of 'reasonableness' of restrictions imposed on the rights guaranteed by Article 19 (1).

The argument that 'due process and 'police power' concepts go together, in reality, applies only to 'substantive due process and not to 'procedural due process and it was the latter, not the former, which was sought to be imported in Article 21.

There is not much vagueness about the essentials of procedural due process because it means "fair hearing", which is a very well-known concept. There may arise variations in the application of this concept to concrete factual situations but this is inevitable in any legal system.

The Court has applied the concept of fair hearing in a multitude of cases and recognizes that this is a flexible and not a rigid concept.

It was held that 'lex' is not 'jus' so the laws which were enacted by the legislature can be tested on the touchstone of reasonableness and principles of natural justice which were vague, indefinite, and abstract.

The formalistic approach of the constitution was adopted where Article 19, Article 21, and Article 22 were mutually exclusive. It was a carte blanche to arrest a person without any procedural safeguards.

Article 21 was interpreted as impotent against legislative power, which could make any law, however drastic, impose restraints on personal liberty without being obligated to lay down any reasonable procedure for the purpose. It was not for the court to judge whether the law provided was a fair or reasonable procedure or not.

On the other hand, Fazal Ali, J. dissenting with the majority view, adopted a much more expansive interpretation of the phrase "procedure established by law" in Article 21 and held that the principles of natural justice are part of the general law of the land; the same should be read into Article 21.

Further, he suggested a broad and structural reading of the Constitution whereby the fundamental rights contained in Article 19 are read in conjunction with Articles 21 and 22. The Supreme Court had disassociated Article 19 from Articles 21 and 22. This view held the field for quite some time, at times, this view even leading to anomalous results.

The court construed the "procedure established by law" as a legal framework prescribed by legislature mechanically without any substantive notion of fairness and ignored functional interpretation by solely relying upon the constituent assembly's debates.