This article is written by Namrata Singhal, from VIPS, New Delhi. The article examines the interrelation of ‘procedure established by law’ and ‘due process of law’ in India and the evolution and development of the doctrine of ‘procedure established by law’ and its position pari passu ‘due process of law’ through various judicial interpretations and pronouncements.
Table of Contents
Introduction
‘Procedure established by law’ is the duly enacted law by the legislature which is valid when it complies with the prescribed procedure and requirements. The American concept of ‘due process’ which was an English concept from clause 39 Magna Carta was upheld in America. The constituent assembly expressly used the term ‘procedure established by law’ in the draft Article 15 after a discussion which the Constitutional Assembly Advisor, Sir B.N. Rau had with Frankfurter J. of the United States of America Supreme Court who expressed that the due process clause is undemocratic and burdensome to the judiciary because it empowered judges to invalidate the legislation enacted by democratic majorities.[i] The constituent assembly intended to avoid the uncertainty of the term ‘due’ which created anomalies, non-uniformity in the USA and strengthened the judiciary vis-à-vis the legislature. The arguments were dominated by the sanctity of the fundamental rights and the domains of legislature and judiciary. The factor put forth for the adoption of ‘procedure established by law’ was the very real problem of communal violence facing the country in the aftermath of partition. It was believed that preventive detention policies used during the British colonial rule without constitutional guarantees of due process would be the most effective in checking communal violence which was partly solved after the inculcation of Article 22 in the constitution.[ii] The term faced criticism in the constituent assembly as it could be misused on partisan grounds, party prejudices and considerations which consequently risk the individual’s right to life and liberty. They expressed no particular preference as they feared the restrictive interpretation of the phraseology which jeopardized the exercise of the position and placement of civil liberties.
The preference of ‘procedure established by law’ as manifested in the constituent debate was to give parliamentary supremacy in the law making with sufficient constitutional and judicial safeguards for ‘personal liberty’ against the judicial supremacy. The constituent assembly kept the supremacy of the legislature paramount. In Gopalan’s case,[iii] the majority favored the strict and literal interpretation of Art. 21. The court’s approach was negative and influenced by the imperative theory of law. The court’s attitude, however, somewhat liberalised in the Bank Nationalization case.
After the astounding Maneka Gandhi v Union of India[iv] which held that procedure established by law should be reasonable, fair and just; overruled the Gopalan’s case.[v] The manifested judicial activism and liberal interpretation of the term were to establish democracy, governance in favour of rule of law and values of natural justice. Constitutional guarantee and protection to life, liberty, property with fair, just, reasonable procedure and opportunity to hear, defend and fair legal proceedings were granted in contrast to the government’s unfettered, and unregulated power to curtail civil liberties.
Implication of the ‘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.[vi] 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,[vii] 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.
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. The way Article 21 was interpreted made it impotent against legislative power which could make any law, however 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 was a fair or reasonable procedure or not.[viii]
On the other hand, Fazal Ali, J. disagreeing 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.[ix]
The court literally 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.
Similarly, Ram Singh v. The State of Delhi,[x] a person was detained under the Preventive Detention Act, 1950 for making speeches prejudicial to the maintenance of public order. At that time, Article 19(2) did not provide restrictions of freedom of speech on the ground of ‘public order.’ Therefore, freedom of speech could not be restricted on that ground. But issued a preventive detention order on the ground of making speeches prejudicial to the maintenance of public order. It was held that the validity cannot be considered concerning Article 19 and is dependent on the compliance of Article 21 and Article 22.[xi]
In Kharak Singh v. State of UP,[xii] 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.”
The decision of the Bank Nationalisation case[xiii], 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[xiv] 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 Art. 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.[xv] 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 the Gopalan’s case.
Nexus of Article 14, 19 and 21 with respect to broad Principles of Natural Justice and Rule of Law
The Maneka Gandhi v Union of India[xvi] 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[xvii]. The American standard of ‘procedural due process’ took a backdoor entry and established links between Article 14, Article 19, and Article 21.
The learned judge observed that, “The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be ‘right and just and fair’ and not arbitrary, fanciful or oppressive, otherwise, there would be no procedure at all and the requirement of Article 21 would not be satisfied”.
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 which has to be fair and reasonable but also the law itself must answer the test of reasonableness.
Also, in Rameshbhai Chandubhai Rathod v State of Gujarat,[xviii] it was held that, “fairness, justice and reasonableness which constitute the essence of guarantee of life, and liberty epitomized in Article 21 of the Constitution also pervades the sentencing policy in Sections 235(2) and 354(3) of the Code. Those two provisions virtually assimilate the concept of “procedure established by law” within the meaning of Article 21 of the Constitution.”
Free, Just and Reasonable legal proceedings as necessary corollary to ‘Procedure Established by Law’
The term ‘due process’ includes substantive as well as procedural due process. The fundamental requisite of “due process” is the opportunity to be heard, to be aware that a matter is pending, to make an informed choice whether to acquiesce or contest and to assert before the appropriate decision making-body the reasons for such choice.[xix] The essential elements of due process of law are impartial tribunal, notice and opportunity to be heard and to defend in orderly. Proceeding adapted to the nature of the case and the guarantee of due process requires that every man have the protection of day in court and benefit of general law.[xx]
The Slaughter-House Cases were a series of cases before the U.S. Supreme Court that considered the extent to which the Fourteenth Amendment placed limits on the states’ legislative powers. Despite the narrow interpretation of the amendment, Justice Stephen J. Field’s dissenting opinion argued that the individuals are protected from state legislation which infringed their “privileges and immunities” by the amendment under the federal Constitution which was a crucial step toward the modern doctrine of substantive due process.[xxi]
Historically, the clause of ‘Magna Carta’ of Great Britain, King John’s thirteenth-century articulates the promise of legal and fair procedure. The promise of proper, fair and reasonable procedure is to be followed before depriving any person’s life and personal liberty.
In the Maneka Gandhi case[xxii], her passport was impounded without any opportunity to be heard in the defence and does not prescribe ‘procedure’ within the meaning of that article and if it is held that procedure has been prescribed, it is arbitrary and unreasonable. Justice Krishna Iyer made the ‘procedure established by law’ synonymous with the American concept of ‘procedural due process’ and held that procedure in Article 21 is not to be construed as a formal and enacted procedure. It has to be fair and reasonable giving the right of hearing a component part of natural justice. An orderly procedure has an opportunity to be heard and to enforce and protect his rights before a court having the power to hear and determine the case.[xxiii] It enabled them to scrutinize not the procedure which has to be followed but also the reasonableness of the law.
Impact of Due Process of Law’ on the Criminal Judicial System
The withdrawal of the judiciary from the timidious matters of extrajudicial matters and movement of judicial activism led to the enhancement of not only the constitutional jurisprudence but also the criminal jurisprudence. The liberal interpretation of the widest amplitude of the term ‘procedure established by law’ gave flesh and blood to the life and personal liberties within the meaning of Article 21. It gave power to the judiciary to interpret and invalidate the enacted laws if they interfered with the individual’s rights.
It is manifested that the ‘due process’ has recognised the rights to the accused person against arbitrary and indiscriminate punishment. The accused person has a right under Article 22(1) to know and gets informed about the grounds of arrest[xxiv] which must be made with due diligence and proper identification.[xxv] As promulgated by Justice Krishna Iyer, Article 21 is the “sanctuary of human values forbidding barbarities” and withdraws from the practice of handcuffing the under trials to avoid arbitrariness unless the danger from the accused is apparent and imminent.[xxvi] Article 21 includes the right to live with dignity and condemns the physical atrocities of the police methodology during interrogation and investigation.
In the case of Francis Coralie Mulin v Union Territory of Delhi[xxvii] it was observed that, “Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21. It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment…”
Fair procedure also calls for right to appeal[xxviii], fair trial which is corollary to justice[xxix] and provision of legal aid and representation.[xxx] Bhagwati J, held that, “Now, a procedure which does not make available legal services to an accused person who is too poor to afford a lawyer and who would, therefore, have to go through the trial without legal assistance, cannot possibly be regarded as ‘reasonable fair and just. It is an essential ingredient of reasonable, fair and just procedure to a prisoner who is to seek his liberation through the court’s process that he should have legal services available to him.”
The right to fair trial is a facet of democratic polity and rule of law in the heart of the criminal jurisprudence.[xxxi] It means trial before an unbiased judge, unbiased witnesses and fair prosecutor in the concept of justice. In Hussainara Khatoon v. Home Secretary, State of Bihar[xxxii], the Court held that though the speedy trial is not specifically mentioned in our Constitution, it is implicit in the broad sweep and contents of Article 21 as interpreted in Maneka Gandhi v. Union of India[xxxiii].
In Selvi v State of Karnataka[xxxiv], it was held that the narco-analysis test, lie-detector test, polygraph and brain-mapping without the involuntary administration and consent of the subject are unconstitutional. He drew an interrelation between the right against self-incrimination and the guarantee of a fair trial by invoking the idea of `due process of law’.
It was observed that, “The guarantee of `substantive due process’ is a part and parcel of the idea of `personal liberty’ protected by Article 21 of the Constitution and that the standard of `substantive due process’ is, of course, the threshold for examining the validity of all categories of governmental action that tend to infringe upon the idea of `personal liberty.”
The Supreme Court of India played an important role in almost every part of society through its self-generated concept of judicial activism[xxxv]. In the area of human rights, it has been facilitated in considerable measure by PIL. Executive excesses resulting in denial of basic rights of detenus and undertrials have continued to engage the court’s attention in this jurisdiction which has made possible the access of these causes to the court in a direct and expeditious manner.[xxxvi]
Conclusion
The judiciary gave narrow and mechanical meaning and swayed positivism, imperative theory of law and parliamentary supremacy. Judiciary was a living ivory tower unconnected and unconcerned with the social realm, surmounting the values of natural justice and rule of law. It accepted the original intent and the meaning of ‘procedure established by law’ in restricted fashion as promulgated by the constitution framers by relying on the advice of Justice Frankfurter. The implication of the former doctrine in the pre-emergency era compromised with the civil liberties as there was no appeal to natural justice. The reluctance and timid fashion of the judiciary can be manifested in the mechanical interpretation and application of the enacted laws with the preference of the security of the state vis-à-vis individual life and rights. But it would not be correct to say that Article 21 is of no use as it constituted restriction upon the arbitrary and ultra vires decisions of the executive. But the fallacy of Article 21 lies in the impotency against the legislative powers to enact any law against the principles of natural justice and rule of law without any power to the judiciary to question o to review it.
Hence, withdrawing from the philosophy of a democratic state.
The key judicial activism articulated in the post-emergency of Menaka’s case led to the liberal interpretation of ‘procedure established by law’ to the widest amplitude and transformed in the American doctrine of ‘due process of law.’ It has allowed establishing the trinity of Article 14, Article 19 and Article 21 by which a procedure or law is not merely an enacted law but has to go through the test of reasonableness and has to be fair, just and reasonable. It led to the establishment of the mechanism of free and speedy trial of the legal proceedings with a colossal impact on not only the constitutional jurisprudence but also on the criminal jurisprudence. Hence, it can be concluded that the nuanced meaning of Article 21 as the ‘heart and soul of the constitution’ has been acquired by the acquisition of the meaning of the American ‘due process of law’ in India.
References
[i] Granville Austin, The Indian Constitution Corner Stone of a Nation, (New Delhi: Oxford University Press, 2010), p.103.
[ii] Manoj Mate, The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases. See here, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2302815.
[iii] Supra (Note 3).
[iv] 1978 AIR 597, 1978 SCR (2) 621 See here https://indiankanoon.org/doc/1766147/.
[v] 1950 AIR 27, 1950 SCR 88 See here https://indiankanoon.org/doc/1857950/.
[vi] V.N. Shukla’s Constitution of India, 12th edn., (Lucknow: Eastern Book Company, 2013), p.215.
[vii] Supra (Note 3).
[viii] Abdul Quaiyum, Due Process Vis-à-vis Procedure established by law (1992) (Published LLM Dissertation, Aligarh Muslim University).
[ix] M.P. Jain, Indian Constitutional Law, 6 th edn. (Nagpur: LexisNexis Butterworths Wadhwa, 2010), p.1183.
[x] AIR 1951 270, 1951 SCR 451 See here https://indiankanoon.org/doc/959860/.
[xi] M.P. Jain, Indian Constitutional Law, 6th edn. (Nagpur: LexisNexis Butterworths Wadhwa, 2010), p.1183.
[xii] (1994) 3 SCC 569 See here https://indiankanoon.org/doc/619152/.
[xiii] R.C. Cooper v. Union of India, AIR 1970 SC 564. See here https://indiankanoon.org/doc/513801/.
[xiv] ADM Jabalpur v Shivkant Shukla, AIR 1976 SC 1207 See here https://indiankanoon.org/doc/1735815/.
[xv] Dr. K. S. Rathore, Procedure Established By Law Vis-À-Vis Due Process: An Overview Of Right To Personal Liberty In India. See here http://ujala.uk.gov.in/files/Ch11.pdf.
[xvi] Supra (Note 2).
[xvii] Kartar Singh v State of Punjab, (1994) 3 SCC 569 See here https://indiankanoon.org/doc/619152/.
[xviii] (2009) 5 SCC 740 See here https://indiankanoon.org/doc/1338996/.
[xix] Sovereignty Education and Defense Ministry, Legal Deception, Propaganda, and Fraud, Volume 1; Trinity Episcopal Corp V. Pomnev, DC. N.Y 387F SUPP 1044.
[xx] Di Maio v. Reid, 37 A.2d 829, 132 N.J.L. 17 See here https://www.courtlistener.com/opinion/3581939/di-maio-v-reid/.
[xxi] https://www.law.cornell.edu/wex/substantive_due_process.
[xxii] Supra (Note 2).
[xxiii] Kazubowski v. Kazubowski – 270 N.E.2d 845, 48 Ill. 2d 401 See here https://www.courtlistener.com/opinion/2180214/kazubowski-v-kazubowski/.
[xxiv] Jogindar Kumar v. State of U.P, (1994) 4 SCC 260 See here https://indiankanoon.org/doc/768175/.
[xxv] D. K. Basu v. State of W.B, AIR 1997 SC 610 See here https://indiankanoon.org/doc/501198/.
[xxvi] Prem Shankar v Delhi Administration, AIR 1980 SC 1535 See here https://indiankanoon.org/doc/853252/.
[xxvii] AIR 1981 SC 608.
[xxviii] MH Hoskot v State of Maharashtra, AIR 1979 SC 1548 See here http://lawtimesjournal.in/madhav-hayawadanrao-hoskot-vs-state-of-maharashtra/.
[xxix] Varkey Joseph v State of Kerala, AIR 1993 SC 1892 See here https://indiankanoon.org/doc/541683/.
[xxx] Hussainara Khatoon v State of Bihar, AIR 1979 SC 1373 See here https://indiankanoon.org/doc/1373215/.
[xxxi] Rattiram v State of MP through Inspector of Police, AIR 2012 SC 1485 See here https://indiankanoon.org/doc/146351380/.
[xxxii] AIR 1979 SC 1360 : (1980) 1 SCC 81. See here https://indiankanoon.org/doc/1373215/.
[xxxiii] AIR 1978 SC 597 : (1978) 1 SCC 248 See here https://indiankanoon.org/doc/1766147/.
[xxxiv] AIR 2010 SC 1974 See here https://indiankanoon.org/doc/338008/.
[xxxv] Dr.K.S.Rathore, “Historical Overview of Judicial Activism in India”, Indian Bar Review Vol. XXXIX (2) 2012.
[xxxvi] S. Muralidhar, “Public Interest Litigation” Annual Survey of Indian Law Vol. XXXI: 1995.
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