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.
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.
WHY WAS CLEAR INTERPRETATION OF ARTICLE 21 AND PROCEDURE ESTABLISHED BY LAW NECESSARY?
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.
In Kharak Singh v. the State of UP, Subba Rao, J. observed that-
"If a person's fundamental rights under Article 21 are infringed, the state can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) in so far as the attributes covered by Article 19(1) are concerned."
In the decision of the R .C. Cooper v. Union of India, the law was deviated from conventional rigid positivism and was solicitous to protect the right to protect property with the right to personal freedom. The court linked Article 31 (2) with Article 19 (1) (f) and placed the foundation to establish a link between Article 19, Article 21, and Article 22.
However, the infamous habeas corpus case- A.D.M Jabalpur v. Shivakant Shukla, during the period of emergency, is the stigma on the history of Indian Judiciary which challenged the legality of preventive detention or the scope of judicial review of the detention order under Maintenance of Internal Security Act, 1971.
The Supreme Court overruled the views expressed by the various High Courts and held that no person had any Locus Standi to move any petition before a high court under Article 226 for a writ of habeas corpus, or any other writ, to challenge the legality of a detention order or any ground whatsoever, e.g., it was not under, or, in compliance with the Act, or was illegal, or was based on extraneous considerations.
Justice Khanna stated that Article 21 is not the sole repository of the right to life and personal liberties and "the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution".
This decision was a blatant disregard for the position of Article 21 to secure the civil liberties and rule of law and reversed the progress made by the judicial pronouncements from Gopalan's case.
Nexus of Article 14, 19, and 21 concerning broad Principles of Natural Justice and Rule of Law
Maneka Gandhi v Union of India was a landmark judgment of the post-emergency period which manifested the paradigm shift from the intentions of the framers of the Indian Constitution and gave soul to the body of Article 21.
The spirit of judicial activism articles in the judgment by giving enhanced powers and substantive meaning to 'procedure established by law.' In this case, the passport of the petitioner was impounded without any notice and opportunity to be heard by not furnishing any reason for their decision on the grounds of 'general interest'.
The scope of Article 21 was expanded when the right of personal liberty included the right to travel abroad. It gave a new orientation to the meaning of Article 21. It was held that Article 21 must be fair, just, and reasonable, and not fanciful, oppressive, and arbitrary.
The American standard of 'due process' took a backdoor entry into our Constitutional provisions into our and established links between Article 14, Article 19, and Article 21.
It highlighted that any law envisaged under Article 21 which abridges or takes away any fundamental right under Article 19 has to meet the test of reasonableness laid down under Article 14. So, it is not only the procedure that has to be fair and reasonable but also the law itself must answer the test of reasonableness.
In conclusion, the concept "procedure established by law" being an extension of the "due process" clause of the American Constitution, is a very potent doctrine for protection of fundamental rights of citizens, from the excesses of the Executive or wrongful procedure or laws passed by the Parliament.
The meaning and scope of this doctrine, however, must be constantly renewed and reneged with the changing times to provide the maximum benefit to the citizens as was originally intended by the Constitution makers.