Procedure Established by Law: An In-depth Analysis, Art 21

Introduction

The concept of “procedure established by law“ is a fundamental principle in the legal and constitutional framework of many democratic nations. It plays a crucial role in ensuring that state actions, particularly those that affect individual human rights, are conducted within the framework of predefined legal procedures. This doctrine emphasizes that a law duly enacted by the legislature is sufficient to curtail personal freedoms, as long as the procedure prescribed by that law is followed.

This principle is particularly significant in countries like India, where it finds mention in Article 21 of the Indian Constitution, stating that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” This article explores the origins, interpretations, implications, and criticisms of this principle, especially in contrast with the “due process of law” doctrine.

Origins and Evolution of the Concept

The phrase “procedure established by law” traces its roots to the Government of India Act, 1935, which was a precursor to the Indian Constitution. The framers of the Indian Constitution borrowed it from the Japanese Constitution, which in turn was influenced by British legal traditions. Unlike the American principle of “due process of law”, which allows courts to examine the reasonableness of laws, the Indian doctrine limits judicial review to procedural compliance with an enacted law.

During the Constituent Assembly Debates, some members advocated for the inclusion of “due process of law”, arguing that courts should have the power to scrutinize the fairness and reasonableness of laws. However, the fear of excessive judicial intervention in legislative matters led to the adoption of “procedure established by law” instead.

Meaning and Interpretation in India

In the Indian context, procedure established by law means that if a law is duly enacted and follows the prescribed legal procedure, it is deemed valid, even if it is arbitrary, unjust, or unreasonable. This principle is narrower than “due process of law”, as it does not provide courts the authority to question the fairness or morality of the law.

However, over time, the interpretation of procedure established by law has evolved due to judicial activism. The Supreme Court of India has, through various landmark judgments, expanded the scope of Article 21 to include elements of natural justice, reasonableness, and fairness.

Key Judicial Pronouncements

A. A. K. Gopalan v. State of Madras (1950)

This was one of the earliest cases that tested the doctrine of procedure established by law. The Supreme Court upheld the preventive detention of A.K. Gopalan, ruling that if a law prescribed a procedure and was duly enacted, courts could not question its reasonableness. This judgment firmly established a literal interpretation of procedure established by law.

Maneka Gandhi v. Union of India (1978)

This case marked a significant shift in the interpretation of procedure established by law. The petitioner, Maneka Gandhi, had her passport impounded without a proper hearing. The Supreme Court ruled that any procedure established by law must be fair, just, and reasonable and cannot be arbitrary. This judgment effectively introduced elements of due process of law into the Indian legal system, ensuring that laws must adhere to principles of natural justice.

Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981)

The Supreme Court held that the right to life is not merely about physical existence but includes the right to live with human dignity. This interpretation extended the procedure established by law doctrine to ensure humane treatment of individuals, emphasizing fairness and reasonableness in state actions.

K. S. Puttaswamy v. Union of India (2017) (Right to Privacy Case)

This landmark judgment declared the right to privacy as a fundamental right under Article 21. The Supreme Court ruled that any law affecting privacy must satisfy the test of legality, necessity, and proportionality, thereby reinforcing that procedure established by law cannot be arbitrary and must be just and reasonable.

Procedure Established by Law vs. Due Process of Law

Key Differences

Aspect	Procedure Established by Law	Due Process of Law
Origin	Indian Constitution (borrowed from Japan)	US Constitution
Judicial Review	Courts examine whether procedures are followed	Courts examine both the procedure and the reasonableness of the law
Scope	Limited to statutory compliance	Includes substantive fairness and natural justice
Protection Against Arbitrary Laws	Limited	Stronger

Due process of law provides broader protection against arbitrary state action by allowing courts to assess the substance of the law, while procedure established by law primarily ensures that laws are enacted and implemented according to legislative procedures.

Implications of Procedure Established by Law

The procedure established by law doctrine has both positive and negative implications:

Advantages

Legislative Supremacy – Ensures that laws enacted by a democratically elected legislature are respected and followed.
Clarity and Predictability – Ensures legal stability, as courts cannot invalidate laws solely based on their subjective perceptions of fairness.
Separation of Powers – Maintains a clear distinction between legislative and judicial functions, preventing judicial overreach.

Disadvantages

Potential for Arbitrary Laws – Laws that violate fundamental rights can still be upheld if they follow prescribed procedures.
Weaker Protection of Rights – Individuals may suffer from unfair laws that courts cannot strike down merely on the grounds of being unjust.
Historical Misuse – Examples such as the Preventive Detention Act (1950) and the Maintenance of Internal Security Act (MISA) (1971) demonstrate how procedural laws can be misused to suppress dissent.

The Need for a Balanced Approach

While procedure established by law is an essential principle, its rigid application may sometimes lead to injustices. The judiciary has attempted to balance legislative intent with constitutional morality by integrating elements of substantive due process into Indian jurisprudence. This approach ensures that laws are not only followed procedurally but also adhere to the principles of justice, fairness, and equality.

Suggestions for Reform

Judicial Review of Legislative Actions – Courts should have broader powers to assess the reasonableness of laws.
Incorporation of Due Process Principles – The doctrine should include fairness and proportionality tests to prevent misuse of legislative powers.
Public Awareness and Legal Education – Citizens should be made aware of their legal rights and remedies against unjust laws.

Conclusion

The doctrine of procedure established by law is a cornerstone of constitutional governance in India. Although it originally focused on procedural compliance, judicial interpretations have expanded its scope to include fairness, reasonableness, and substantive justice. The evolution from A. K. Gopalan to Maneka Gandhi and beyond demonstrates a progressive approach toward safeguarding fundamental rights.

However, the debate between procedure established by law and due process of law continues. While the former emphasizes legislative authority, the latter prioritizes individual rights. A balanced legal system must incorporate the benefits of both doctrines, ensuring that laws are not only followed procedurally but also conform to principles of justice and constitutional morality. By refining the existing framework, India can continue to strengthen its democratic and human rights foundations, making its legal system more just, transparent, and equitable.