Procedure Established by Law and Due Process PDF

CHAPTER- III
PROCEDURE ESTABLISHED BY LAW

TO DUE PROCESS OF LAW
3.1 Introduction
The history of democratic countries reveals that the realization of justice is the
ultimate end of every Nation. Obviously, the realization of justice depends upon the
quality of legal system it has accommodated. Indeed a nation’s quality of legal system is
measured by its commitment to the rule of law, fairness of laws and respect for human
rights. The Second World War has made the international community to think seriously
about the promotion and implementation of human rights across the Universe.1 India,
being a democratic nation committed to rule of law, cannot be indifferent to promotion of
human rights. In fact, the greatest gift of democracy to mankind is the right of personal
liberty.2 The right to life and liberty is the most important of all the human rights because
existence and protection of life is condition precedent for the enjoyment of rest of the
human rights. The importance of right to life and personal liberty is evidenced by the fact
that it cannot be suspended even during an extraordinary situation.3
Unlike US Constitution, the Indian Constitution does not explicitly mention the
familiar constitutional expression of ‘due process of law’ in any part of it. Fifth and
Fourteenth Amendments have inserted the concept of Due Process in the US
Constitution. Undoubtedly, this concept has given vast and undefined powers to the
American judiciary over federal and state legislatures and their actions. Despite its
1
Universal Declaration of Human Rights 1948 and International Covenants on Civil and Political Rights,
1966 is the result of such thinking.
2
Salmond, Jurisprudence, Fitzerald P.J. 12th edn. (New Delhi: Universal Law Publishing Co. Pvt. Ltd,
2013), p. 102.
3
See, Forty- fourth Amendment Act, 1978 has made significant change in Article 359 it provides that the
President does not have the power to suspend the enforcement of the fundamental rights guaranteed in
Articles 20 and 21 of the Constitution.
78
deliberate omission by the makers of the Indian Constitution, the Supreme Court of India
by a process of interpretation of two Articles of the Constitution, namely Articles 14 and
21, has read the ‘due process’ concept in to the Constitution of India. Thereby Indian
judiciary has acquired vast powers to supervise and invalidate any Union or State action,
whether legislative or executive or of any public authority which is perceived by the
Court to be ‘arbitrary’ or ‘unreasonable’.4 The process of realization of justice over a
period of time has transition savage and crude procedure of law into refined and civilized
procedure. Further, due process concept has strengthened the procedure of law by
integrating all of its components and by addressing each of them with the principle of
equality and fairness.5
3.2 The Evolution of Due Process in India
The due process development in India is enriched mainly by two principal
reasons: First, the concept of ‘procedure established by law’ under Article 21 is required
to be just, fair and reasonable because of the interactions of Articles 14, 19 and 21.
Secondly, inter-relationships among Articles 20, 21 and 22, as corollary of development
under Article 21, have furthered this phenomenon to a considerable extent.6 Regarding
the first reason, the Constitution Makers preferred a neutral phrase “procedure established
by law” in Article 21 for the protection of life and personal liberty of persons with a clear
intention to avoid the possible judicial vicissitudes pertaining to due process of law.7
4
T.R. Andhyarujina, “The Evolution of Due Process of Law by the Supreme Court”, in, Supreme But Not
Infallible, B.N. kirpal, et.al., (ed.), (New Delhi: Oxford University Press, Seventh impression 2011), p.193.
5
P. Ishwara Bhat, Fundamental Rights, (Kolkata: Eastern Law House Private Ltd. 2004), p.90.
6
Ibid., at p.107.
7
Constituent Assembly Debates, Vol. VII, (New Delhi: Secretariat, Government of India, 1948-1949), pp.
845-852.
79
Deprivation of right to life or personal liberty is an unusual course of action taken by
the state against any person. While the impact of deprivation of life or personal liberty is
generally direct upon enjoyment of rights or equality of opportunity, the impact of it upon
various freedoms guaranteed under Article 19(1) may be direct or indirect depending
upon the circumstances. On the whole, the consequence of deprivation of life or personal
liberty is not exclusive to Article 21, but has considerable bearing on rights under
Articles 14 and 19.8 Article 21 of the Constitution provides that “No person shall be
deprived of his life or personal liberty except according to procedure established by
law”. The very requirement that there should be a legal procedure if at all life or personal
liberty shall be deprived, amplifies the protective purpose stated in the marginal note and
hence, cannot be compatible with arbitrary or unfair procedure.9 Although, Article 21
does not specifically prescribe any quality or standard for the procedure, its place as a
basic postulate of criminal justice system,10 compels it to receive radiation from the
companion provisions like Articles 20, 22, 14 and 19 in order to respond to the claims of
justice.11
3.2.1 The Due process
The expression “Due Process” has derived its meaning from the word “the law of
the land” used in the Section 39 of Magna Carta of 1215. The due process in the common
law system is shaped and nourished by customary practice. But, the American legal
system went one step ahead and gave a statutory recognition to the due process. The
terms “the law of the land” and “due process of law” were transplanted in the American
8
Supra note 5, at p.108.
9
Ibid., at p.110.
10
P.N. Bhagawati, “Human Rights in the Criminal Justice System”, Vol. XII (3), IBR (1985) 316 at 321-
323.
11
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soil by English Colonists. US Congress incorporated Human Rights in the Constitution
by first ten Amendments that are known as Bill of Rights.12 The Fifth Amendment is the
most important one because it lays down that person’s life, liberty or property would not
be deprived without due process of law.
3.2.2 Constituent Assembly debates on Due Process
The legislative history of Article 21 is that, originally it was passed by Constituent
Assembly as Article 15 which provided that “No person shall be deprived of his life or
liberty without the due process of law.”13 Thereafter, the Drafting Committee proposed
two amendments to Article 15. First, the addition of the word “personal” before the word
“liberty.” Second, the substitution of the expression “except according to procedure
established by law” for the words “without due process of law.” The Drafting Committee
moved the second amendment because it thought that the word due process was abused in
American legal system. Further, it was the result of 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 due process clause is undemocratic and burdensome
to the judiciary, because it empowered judges to invalidate the legislation enacted by
democratic majorities.14
Constituent Assembly debated in depth over drafting of Article 15 on 6th and 13th
December 1948 in the background of many counter amendments moved by the members
12
The first Ten Amendments to the US Constitution came into effect on November 3, 1791. However, only
first eight Amendments dealt about the protection of human rights.
13
H.M., Seervai, Constitutional Law of India, 4th edn. Vol. 2, (New Delhi: Universal Law Publishing Co.
Pvt. Ltd. 2010), p. 970.
14
B.N. Rau had met Justice Felix Frankfurter of the United States Supreme Court for advice in the drafting
of the Indian Constitution. Frankfurter told him that he considered the power of judicial review implied in
the due process clause both undemocratic – because a few judges could negate legislation enacted by the
representatives of a nation and also burdensome to the judiciary. See, Granville Austin, The Indian
Constitution Corner Stone of a Nation, (New Delhi: Oxford University Press, 2010), p.103.
81
of the Constituent Assembly over the proposed amendment moved by the Drafting
Committee to Article 15. One of the Members contented that if the proposed amendment
by the Drafting Committee that “No person shall be deprived of his life or personal
liberty except according to procedure established by law…” is accepted as it is, it would
open a sad chapter in the history of constitutional law.15 Therefore, Shri Kazi Syed
Karimuddin, suggested that “No person shall be deprived of his life or personal liberty
except according to procedure established by law” should be replaced by the words “No
person shall be deprived of his life or liberty without due process of law”. He opined that
once the legislature lays down procedure by enacting law and such procedure is complied
by the authority, then the courts cannot question the decision of the authority even though
that decision is unjust or taken malafide. His reasoning was based on the American case
Chambers v Florida16 where an Act was challenged in a court of law on the ground that
the law was not sound and that it was capricious and unjust. Therefore, his submission
was that if the words “according to procedure established by law” are retained, then it
will not be open to the courts to look into the injustice of a law or in to a capricious
provision in a law. As soon as the procedure is complied with, there will be an end to
everything and the judges will be only spectators. The Advisory Committee on
Fundamental Rights appointed by the Constituent Assembly endorsed the opinion of Shri
Sayed Karimuddin Kazi.17
Pandit Thakur Dass Bhargava, another member of Constituent Assembly,
supported the amendment moved by Shri Karimuddin because the word ‘law’ is generally
15
Kazi Syed Karimuddin, Member of Constituent Assembly. Constituent Assembly Debates, Volume VII
(New Delhi: Secretariat, Government of India, 1948-1949), p. 842.
16
309 U.S. 227 (1940)
17
Supra note 7, pp. 842-843.
82
understood in the sense of positive law as defined by Austin which is not ideal. On the
other hand, due process word is a broader one and accommodates the meaning of law on
the lines of natural law school. The Japanese constitution and other constitutions used this
word in the broad sense which meant to convey the word ‘law’ in the sense of principles
of natural justice. Bahadur, who was another member of Constituent Assembly, said that
words “without due process of law” should be inserted in Article 15. He acknowledged
that even though expression ‘due process’ is nowhere defined yet its meaning and
implication can be inferred without confusion. He expressed that the words “without due
process of law” would empower the courts to go into the question of the substantive as
well as procedural law. According to proposed amendment, whenever law is enacted by
the Parliament, courts will have the right to go into the question whether that law is just
or not, whether it is good or bad, whether as a matter of fact it protects the liberties of the
people or not. Obviously, if the Supreme Court comes to conclusion that the law is
unreasonable or unjust, the Court may declare such law as ultra vires.18
Another member of the Constituent Assembly Shri Chimanlal Chakkubhai Shah
also endorsed the expression ‘due processes.’ These words enable the courts not only to
look into the fairness of procedure but also into the substantive provisions of law to see
whether they are fair, just, and are not unreasonable or oppressive or capricious or
arbitrary.19 He contended that in America the word due process has created much
confusion because it is used in relation with property but whereas in India Article 15 does
18
Pandit Thakur Das Bhargava, Constituent Assembly Debates, Vol.VII, (New Delhi: Secretariat,
Government of India, 1948-1949), p. 846.
19
Honorable members expressed that “the right conferred by article 15 is the most fundamental of the
Fundamental Rights in this chapter, because it is the right which relates to life and personal liberty without
which all other rights will be meaningless.” Constituent Assembly Debates, Vol.VII, (New Delhi:
Secretariat, Government of India, 1948-1949), p. 848.
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not deal with property but deals with life and personal liberty. Therefore, he argued, the
apprehension of members that there would be much litigation on the words ‘due process’
related to right to life and personal liberty was unfounded. In America there has been
practically no litigation and no uncertainty as regards the interpretation of the words ‘due
process of law’, as applied to ‘life’ and ‘liberty’. Further, he reasoned that the word
‘liberty’ in India is qualified by the word ‘personal’ which ensures that Article 15 does
not refer to any other kind of liberty such as, for instance, of contract. Therefore, it would
be wrong to say that the words ‘due process of law’ is likely to lead to any uncertainty in
legislation or unnecessary interference by the judiciary in reviewing legislations.
Shri Kamaruddin observed that, all Courts can do is to interpret the legislations.
But in Federal Constitutions the judiciary has the power to hold that a law is
unconstitutional. He noted that:
“In several Articles of this Constitution, we have ourselves provided for this and
given express powers to the judiciary to pronounce any law to be unconstitutional
or beyond the powers of the legislature. I have doubt in my mind that this is a
very salutary check on the arbitrary exercise of any power by the executive.”
He further submitted that, at times it does happen that the executive requires
extraordinary powers to deal with extraordinary situations and they can pass emergency
laws. Legislature is generally controlled by the executive because it is the majority party
that forms the government which gives such powers to the executive in moments of
emergency. Therefore, it is but proper that judicary should be empowered to review
legislation.20
Shri Krishna Chandra Sharma also lent his support of the substitution of the
words “without due process of law” for the words “except according to procedure
20
Supra note 7, at pp. 848-849.
84
established by law.”21 The term “without due process of law” has a necessary limitation
on the powers of the State, both executive and legislative. It does not lay down a specific
rule of law but it implies a fundamental principle of justice. These words have nowhere
been defined either in the English Constitution or in the American Constitution but we
can find their meaning through reading the various antecedents of this expression. Shri K.
M. Munshi also supported the amendment No. 528 which seeks to incorporate the words
“without due process of law’ in substitution of the words “except according to procedure
established by law” on the ground that it will strike balance between individual liberty
and social control.22 Shri Alladi Krishnaswami Ayyar expressed that the debate on the
Article 15 reveals that there seems to be a leaning on the part of a good number of
members in the House in favour of the expression ‘due process’ being retained and not
for substituting the expression ‘procedure established by law’, which is the expression
suggested by the Drafting Committee at the last stage.23 Shri Z. H. Lari observed that it is
necessary not only in the interest of individual liberty but in the interest of proper
working of legislatures that such a clause as ‘due process of law’ should find a place in
the Constitution.24
On 13th December 1948, the Honorable Dr. B. R. Ambedkar admitted that he was
in a some what difficult position to determine with regard to proposed amendment moved
by the Drafting Committee on the Article 15 and the counter amendment moved by the
21
Shri Krishna Chandra Sharma, Constituent Assembly Debates, Vol. VII, (New Delhi: Secretariat,
22
K. M. Munshi, Constituent Assembly Debates, Vol. VII, (New Delhi: Secretariat, Government of India,
1948-1949), p. 851.
23
Alladi Krishnaswami Ayyar, Constituent Assembly Debates, Vol. VII, (New Delhi: Secretariat,
24
Z. H. Lari, Constituent Assembly Debates, Vol. VII, (New Delhi: Secretariat, Government of India, 1948-
1949), pp. 854-857.
85
various members of the Constituent Assembly members.25 Constituent Assembly was
divided over the wordings of Article 15. One point of view is that “due process of law”
must be there in this article; otherwise the article is a nugatory one. The other point of
view is that the existing phraseology drafted by Drafting Committee is quite sufficient for
the purpose.
The question of “due process” raises, the question of the relationship between the
legislature and the judiciary. In a Federal Constitution, it is always open to the judiciary
to decide whether any particular law passed by the legislature is ultra vires or intra vires
with reference to the powers of legislation which are granted by the Constitution to the
particular legislature. If the law made by the particular legislature exceeds the authority
of the power given to it by the Constitution, such law would be ultra vires and invalid.
That is the normal thing that happens in all Federal Constitutions. Every law in a Federal
Constitution, whether made by the Parliament and State, is always subject to examination
by the judiciary from the point of view of the authority of the legislature making the law.
The ‘due process’ clause would give the judiciary the power to question the law made by
the legislature on another ground. That ground would be whether that law is in keeping
with certain fundamental principles relating to the rights of the individual. In other words,
the judiciary would be endowed with the authority to question the law not merely on the
ground whether it was in excess of the authority of the legislature, but also on the ground
whether the law is good law, apart from the question of the powers of the legislature
making the law. The law may be perfectly good and valid so for as the authority of the
legislature is concerned. But it may not be a good law, that is to say, it violates certain
25
Dr. B. R. Ambedkar, Constituent Assembly Debates, Vol. VII, (New Delhi: Secretariat, Government of
India, 1948-1949), p. 999.
86
fundamental principles; and the judiciary would have that additional power of declaring
the law invalid. The question which arises in considering this matter is this. It is no doubt
the judiciary is given the power to examine the law made by different legislative bodies
as to whether that law is in accordance with the powers given to it or not. The question
now raised by the introduction of the phrase ‘due process’ is whether the judiciary should
be given the additional power to examine the laws made by the State as to whether they
violate certain fundamental principles.
There are two thoughts on this point. First one is that the legislature may be
trusted not to make any law which would abrogate the fundamental rights of a person.
Therefore, there is no danger arising from the introduction of the phrase ‘due process’.
Second thought is that it is not possible to trust the legislature; the legislature is likely to
err, is likely to be led away by passion, by party prejudice, by party considerations, and
the legislature may make a law which may abrogate what may be regarded as the
fundamental principles that safeguard the individual rights of a citizen. It is difficult to
determine which of these two positions is to be preferred. One is to give the judiciary the
authority to sit in judgement over the will of the legislature and to quash a law made by
the legislature on the ground that it is not in consonance with fundamental principles and
hence not good law. The second position is that the legislature ought to be trusted not to
make bad laws. Ambedkar said it is very difficult to come to any definite conclusion.
There are dangers on both sides. He expressed the apprehension that there is every
possibility of a Legislature packed by party men making laws which may abrogate or
violate certain fundamental principles affecting the life and liberty of an individual. At
the same time, he expressed difficulty to digest the fact that how five or six gentlemen
87
sitting in the Federal or Supreme Court examining laws made by the legislature and by
dint of their own individual conscience or their bias or prejudices be trusted to determine
which law is good and which law is bad. It is rather a case where a man has to sail
between Charybdis and Scylla and therefore would not say anything. Finally, Ambedkar,
left the matter to be decided by the Constituent Assembly as it likes.26 The framers of the
Constitution, after deep deliberation, rejected the United States concept of due process in
the Indian Constitution. The debates in the Constituent Assembly, and the deliberations
of the Drafting Committee and the Advisory Committee, show that the makers of the
Constitution were deeply concerned with the possibility of interference and nullification
by the judiciary of laws of social reform and of security of the state if the due process
clause is introduced in the vigorous form it was observed in United States Constitution in
relation to the fundamental rights of property and personal liberty.27 It took the
Constituent Assembly members nearly three years to decide how to treat these matters in
the Constitution. On the one hand it was recognised, in the words of Shri K. M. Munshi
that the due process provision would prevent legislative extravagance and executive
excess. On the other hand, Shri B. N. Rau, the Constitutional Advisor to the Constituent
Assembly, believed that it would provide excessive powers to the courts. He stated:
“The Courts, manned by an irremovable judiciary not so sensitive to public needs

in the social or economic sphere as the representatives of a periodically elected
legislature, will, in effect, have a veto on legislation exercisable at any time and
at the instance of any litigant”.
26
Dr. B. R. Ambedkar, Constituent Assembly Debates, Vol. VII, (New Delhi: Secretariat, Government of
India, 1948-1949), pp. 999-1001.
27
88
He warned that 40 percent of the litigation before the United States Supreme
Court during the past fifty years had centred on due process and due process meant only
that which the Courts said it meant. 28
The House adopted the Clause as drafted by the Drafting Committee and rejected
the phrase ‘due processes’. The result, as stated by Dr. Ambedkar, at a subsequent
stage,29 is that Article 21 gave “a carte blanche to make and provide for the arrest of any
person under any circumstances as Parliament may think fit.” The matter was keenly
debated in the Drafting Committee. Eventually, in a close voting, it was decided that the
provision of due process of law in the Article for deprivation of life and personal liberty
should be deleted and the expression ‘according to procedure established by law’ be
substituted. As it has finally emerged in Article 21 of the Constitution, the Drafting
Committee merely said that the latter expression is ‘more specific’ and the Committee
cited in support Article XXXI of the Japanese Constitution of 1946. 30 Despite further
consideration by the Assembly, in which a number of members of the House favoured
retention of due process in personal liberty, the Article was retained without it. However,
as a mitigation of the members’ fear that ‘the procedure established by law’ would allow
the legislature to prescribe any procedure it deemed fit to deprive a person of his life or
liberty, a new Article 22 was introduced. Dr. Ambedkar said that the Article
‘compensated’ for what had been done in passing Article 21. He said the new Article
28
B.N. Rao, argued that due process may provide a safeguard against predatory legislation, but they may
also stand in the way of beneficial social legislation. However, B.N. Rao did not emphasize the change
occurred in the United States Supreme Court’s view after 1937 of abandoning substantive due process in
economic and social legislation. See, T.R. Andhyarujina, “The Evolution of Due Process of Law by the
Supreme Court”, in, Supreme But Not Infallible, B.N. Kirpal, et.al., (ed.), (New Delhi: Oxford University
Press, 2008), pp. 195-196.
29
30
Article XXXI of Japanese Constitution provides that “No person shall be deprived of life or liberty, nor
shall any other criminal penalty be imposed, except according to procedure established by law.”
89
‘certainly saves a great deal which had been lost by the non-introduction of the words
“due process of law”.31 Apparently, the Constituent Assembly was satisfied that the
provisions of Article 22 would serve as a sufficient safeguard in the absence of a due
process of law provision in Article 21.32
3.2.3 Judicial Interpretation of Procedure Established by Law
The Supreme Court of US has interpreted the guarantee given under 5th and 14th
Amendments to the US Constitution to the effect that it empowers the court to examine a
law, both the substantive provisions and the procedure contained therein, to ascertain
whether it is a just law or not.33 In India the expression “procedure established by law”
means procedure laid down by a statute or procedure prescribed by the law of the State.34
Soon after the adoption of the Constitution of India, the words used in the Article 21
came under the scrutiny of the Supreme Court in the historical Goplan’s case in which
the validity of the Preventive Detention Act, 195035 was challenged.36 The petitioner
questioned his detention on the ground, inter alia, that his detention affected his rights
guaranteed under Article 19 (1) (a), (b), (c), (d), (e), and (g).37 Further, the petitioner
alleged that Section 3(1) of Preventive Detention Act, 195038 imposes unreasonable
restrictions on the exercise of rights conferred by Article 19. The petitioner also argued
31
Dr. B. R. Ambedkar, Constituent Assembly Debates, Vol. IX, (New Delhi: Secretariat, Government of
India, 1948-1949), pp.497-498.
32
Supra note 4, at p. 198.
33
Mamta Rao, Constitutional Law, 1st edn., (Lucknow: Eastern Book Company, 2013), p.222.
34
V.N. Shukla’s Constitution of India, 12th edn., (Lucknow: Eastern Book Company, 2013), p.215.
35
Act No. 4 of 1950.
36
A.K. Gopalan v. State of Madras, AIR 1950 SC 27 at 91-92.
37
Article 19 (1) of the Indian Constitution guarantees citizen , (a) freedom of speech and expression, (b)
assemble peaceably and without arms, (c) form associations or unions, (d) move freely throughout the
territory of India, (e) to reside and settle in any part of the territory of India; (f) omitted and (g) practice
any profession, or to carry on any occupation, trade or business.
38
Section 3(1) of the Preventive Detention Act, 1950 empowered the Central or State Government to issue
detention order to prevent a person from on the grounds that his acts are prejudicial to security, defense of
India, or Security of State or the maintenance of public order or services essential to the community or who
is foreigner within the meaning of the Foreigners Act, 1946 (XXXI 31 of 1946).
90
that the law under Article 21 must fulfil the criteria of due process. That means the law
must be jus not lex.
The Supreme Court was exposed to a state of dilemma of either infusing the
doctrine of reasonableness through Article 19 in to Article 21 or to literally construe the
‘procedure established by law’ as a legal frame work prescribed by legislature without
any substantive notions of fairness. The majority of judges adopted the latter approach
and considered that the rights guaranteed under Article 19(1) were separate from, and
independent of the right to personal liberty. Kania, J., joined by Mukherjee, J.
propounded the doctrine of directness of legislation. Kania, J., observed, that the
legislation has not directly encroached upon Article 19, but as a result of his detention
under detention law, if his rights under Article 21 are violated, then the application of
Article 19 does not arise. The true approach is only to consider the directness of the
legislation and not what the result of the detention is.39
On the other hand, Mahajan, J. put forward the doctrine of exclusiveness which
suggested that clauses (4) to (7) of Article 2240 form a self-contained code in respect of
laws dealing with preventive detention and excluded the application of Articles 19 and
21.41 Once the majority of the judges arrived at a conclusion about the non-application of
Article 19 in the sphere of Article 21 on the above reasoning, they considered that the
requirement of reasonableness either of law or of procedure could not be super-added to
39
Supra note 36, at 35 and 96.
40
Article 22(4) to (7) deals with Preventive Detention laws, Article 22 (4) provides that, No law providing
for preventive detention shall authorize the detention of a person for a longer period than three months
unless Advisory Board gives opinion that there are sufficient grounds for detention. Article 22(5) obligates
the authority who has issued the order of detention to communicate the grounds of detention as soon as
may be, and afford detainee the earliest opportunity of making a representation against the order. Article
22(6) authorizes the authority to withhold the communication of grounds of arrest in the interest of public.
Article 22(7) authorizes the Parliament to pass law by which a person can be detained beyond three months
without the opinion of Advisory Board.
41
Supra note 36, at 81-82.
91
Article 21.42 The judges of the Supreme Court relied on the principle of literal
interpretation in respect of “procedure established by law" and ignored the principle of
functional interpretation.
The main question was whether the procedure envisaged by Article 21 may be
any procedure laid down by a law enacted by a legislature, or whether such procedure
should be fair and reasonable. A three pronged argument was developed for this purpose:
i. The word ‘law’ in Article 21 does not mean merely enacted law but
incorporates principles of natural justice so that a law to deprive a person of
his life or personal liberty cannot be valid unless it incorporates these
principles in the procedure laid down by it.
ii. The reasonableness of the law of preventive detention ought to be judged
under Article 19.
iii. The expression ‘procedure established by law’ introduces in to India the
American concept of procedural due process which enables the courts to see
whether the law fulfils the requisite elements of a reasonable procedure.
Thus, in Gopalan,43 an attempt was made to read the ‘due processes into
‘procedure established by law’ under Article 21. The Apex Court, by majority, rejected
all these arguments and held that the word ‘law’ in Article 21 could not be equated to the
principles of natural justice because it considered these principles vague, indefinite and
abstract. Incorporation of such vague principles in the law leads to confusion and
uncertainty, therefore the word ‘law’ was used in the sense of lex and not jus. The
expression ‘procedure established by law’ would therefore mean the procedure as laid
42
Ibid., at p. 39 and 102.
43
AIR 1950 SC 27.
92
down in an enacted law. On the other hand, Fazal Ali, J. disagreeing with the majority
view, adopted 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 delinked
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.44
In Ram Singh v. The State of Delhi,45 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)46 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 a preventive detention order was issued on the ground of making speeches
prejudicial to the maintenance of public order. The Supreme Court refused to assess the
validity of the detention order with reference to Article 19(1) (a) read with Article 19(2)
stating that even if a right under Article 19(1) (a) is abridged, the validity of the
preventive detention order could not be considered with reference to Article 19(2)
because of the Supreme Court’s interpretation of Article 21 made in the Gopalan. It
observed that the detention legislation authorizing deprivation of personal liberty did not
fall under Article 19 and its validity could not be judged by the criteria in Article 19.
44
M.P.Jain, Indian Constitutional Law, 6th edn. (Nagpur:LexisNexis Butterworths Wadhwa, 2010), p.1183.
45
AIR 1951 SC 270.
46
Article 19 (2) empowers the state to impose reasonable restrictions on the right of freedom of speech in
the interests of the sovereignty and integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality or in relation to contempt of court, defamation or
incitement to an offence.
93
The validity of such a law depended on its compliance with Articles 21 and 22. The
Court expressed its inability to resolve this kind of anomaly because it was inherent in
the structure and language of the relevant constitutional provisions.
In Kharak Singh47, the constitutional validity of regulations 22848 and 23649 in
Chapter XX of the Uttar Pradesh Police Regulations, which provided for ‘domiciliary
visits’50 and police surveillance of a suspect’s home was challenged before the Supreme
Court as voilative of Articles 19 (1)(d) and 21 of the Constitution. The Supreme Court
observed that only procedure established by valid law could deprive the person’s right to
life and personal liberty under Article 21. Therefore, right to life and personal liberty
cannot be deprived on the basis of administrative direction. Obviously, Supreme Court
struck down an administrative direction of Regulation 236(b) authorizing ‘domiciliary
visits’ of police authorities in to the houses of habitual offenders as voilative of Article
21. Supreme Court relying on the principles laid down in the Gopalan, refused to
examine the issue under Article 19 (1) (d). However, the separate but concurring
judgement of delivered by Subba Rao, J., is worthy of notice because it held that entire
regulations of Section 236 are unconstitutional not only under Article 21 but also under
Article 19(1). Subba Rao, J. observed that not only clause (b) of Regulation 236 is
47
Kharak Singh v. State of U.P., AIR1963 SC 1295.
48
Regulation 228 of Uttar Pradesh Police Regulations has defined "history-sheets" as "the personal records
of criminals under surveillance". That regulation further directs that a "history-sheet" should be opened
only for persons who are or are likely to become habitual criminals or the aiders or abettors of such
criminals.
49
Regulation 236 of Uttar Pradesh Police Regulations empowers the Police Superintendent to (a) Secret
picketing of the house or approaches to the house of suspects; (b) domiciliary visits at night; (c) through
periodical inquiries of habits, associations, income, expenses and occupation; (d) directing the constables
and chaukidars to report the movements and absence from home; (e) the verification of movements and
absences by means of inquiry slips; (f) the collection and record on a history- sheet of all information
bearing on conduct.
50
Domiciliary visit is a visit of police authorities to search or inspect a private house by entering the
premises of the suspect, knock at the door and have it opened and search it for the purpose of ascertaining
his presence in the house. See, Kharak Singh v. State of U.P. AIR1963 SC 1295 at 1296.
94
unconstitutional but the entire Regulation under 236, consisting clauses (a) to (f) is
unconstitutional on the ground that it violates both Article 19(1) and Article 21 of the
Constitution. The judgement is clearly in favour of an integrated interpretation of the
fundamental rights. The learned judge observed:
“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 other words, the state must satisfy that
both the fundamental rights are not infringed by showing that there is a law and
that it does amount to a reasonable restriction.51
Chief Justice Subba Rao’s dissenting position in Kharak Singh’s effectively

52
became the majority opinion in Satwant Singh Sawhney’s case, which dealt with a
decision of the Indian Government to withdraw passport and travel privileges from an
import/export businessman.53 Ministry of External Affairs had impounded Sawhney’s
passport on the ground that Sawhney had violated conditions of the import license
granted to him by the Indian Government, and the matter was under investigation in
respect of offences under the Export and Import Control Act, 1947, and further that there
was every chance that Sawhney was likely to flee India to avoid prosecution. Sawhney
challenged the action of the Ministry of External Affairs on the ground that it infringed
his fundamental rights under both Article 21 and Article 14 of the Constitution. The
Constitution Bench of the Supreme Court reasoned that there was no law which
prescribed the procedure for the authority to either issue or impound the passport of
51
Supra note 47, at 1305.
52
Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, 1967 SCR (2) 525.
53
Manoj Mate, “The Origins of Due Process in India”: The Role of Borrowing in Personal Liberty and
Preventive Detention Cases, 28 Berkeley Journal of International Law. 216. (2010), p. 240.
95
person; thereby left the matter to the discretion of the executive, which was violation of
Articles 14 and 21 of the Constitution.54
The Supreme Court, in Kharak Singh and Satwant Singh Sawhney,
unambiguously and explicitly stated that right to life and personal liberty could be
deprived only on the strength of procedure established by a valid law under Article 21 but
not on mere executive direction or order. However, Satwant Singh Sawhney has set
indication that procedure of depriving right to life and personal liberty could be tested
even under Article 14 of the Constitution on the ground of arbitrariness in the exercise of
discretion, which is an improvement over the principle stated in the Gopalan’s case.
Further, in Satwant Singh Sawhney, the Court has laid down the foundation for the view
that fundamental rights are not exclusive and independent but mutual and interdependent
and they should be interpreted by reading the entire Third Chapter of the Constitution as
a whole.
The beginning of this new trend which is deviating from procedure established by
law and leaning towards fair procedure is further boosted by the Supreme Court in the
Bank Nationalisation55 in which the constitutional validity of the Banking Companies
(Acquisition and Transfer of Undertakings) Act, 196956 was challenged. The Constitution
Bench of the Supreme Court quashed the legislation as voilative of Articles 14, 19 and
31. Shah, J. speaking for the Court held that each fundamental right in the Constitution
should be interpreted in the light of other fundamental rights. The sound general
principles of interpretation state that interpretation of any particular section of the
54
Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, 1967 SCR (2) 525.
55
R.C. Cooper v. Union of India, AIR 1970 SC 564.
56
Act No. 22 of 1969.
96
legislation is to be made after taking into consideration of entire legislation. Applying the
principle, the Court held:
“It is not the object of the authority making the law impairing the right of a
citizen, not the form of action taken that determines the protection he can claim;
it is the effect of the law and the action upon the right which attract the
jurisdiction of the court to grant relief”.57
The Apex Court observed that ‘law’ under Article 21 should be read with Articles
19, and 14, whenever necessary with a view to strengthen the right to personal liberty and
to overcome the weakness of the guarantee of “procedure established by law”. The ratio
of the Bank Nationalization case makes an inference that procedure established by law
needs to be just and fair. The difference between the Gopalan and Cooper approach is
very clear. While the former stated that each article is exclusive, independent and
complete and has focused on the nature and object of the legislation but not the effect of
the legislation, the latter emphasized that the Articles in Part III laying down the
fundamental rights are mutual and interdependent but each article is not a complete code.
Further, the effect of the law should be taken into consideration in order to determine
which Articles are to be linked in determining the constitutional validity of the
legislation.
In Cooper cleared the way for integrated application of fundamental rights. This
has been reflected in Jagmohan Singh v. State of U.P.58 In this case the petitioner
challenged the constitutional validity of Section 302 of The Indian Penal Code 186059
(hereinafter referred to as IPC) which has authorized judges to impose either death
penalty or life imprisonment on person who is guilty of murder, on the ground that it has
57
58
AIR 1973 SC 947.
59
Act No. 45 of 1860.
97
violated Articles 14, 19 and 21. The petitioner contended that the Code of Criminal
Procedure, 197360 (hereinafter referred to as Cr.P.C.) and Indian Evidence Act, 187261
have prescribed the procedure to determine the guilt of the accused of murder charges but
neither IPC nor Cr.P.C. has laid down any principle or guideline for awarding either
death or life imprisonment. Thus, judges have blanket discretionary power to award
either life imprisonment or death sentences, which is arbitrary and such procedure is not
fair.
The argument that conferment of discretion to impose death penalty is unguided
and uncontrolled, and hence abridged right to equality was rejected by the Apex Court on
the ground that the power is conferred upon judges, to be exercised after scrutinizing the
aggravating and mitigating circumstances and it is impossible to lay down standards.
Further in respect of the argument based on Article 19, the Court observed that there are
adequate procedural safeguards under the Cr.P.C. and under the Constitution, hence the
requirement of procedural reasonableness is complied with. Further, the Apex Court held
that the procedure at the sentencing stage subsequent to conviction is fair and upheld the
law under Article 21. Although, Jagmohan did not give rise to any startling result, it is a
significant decision inaugurating the approach of requiring a reasonable procedure by
means of applying Articles 14 and 19 into the domain of Article 21, without entering into
the dichotomy between Gopalan and Cooper.62

63
In Govind v. State of Madhya Pradesh the petitioner challenged the validity of
Regulations 855 and 85664 of the Madhya Pradesh Police Regulations prescribed by the
60
Act No. 2 of 1974.
61
Act No. 1 of 1872.
62
63
AIR 1975 SC 1378.
98
Government of Madhya Pradesh under Section 46(2) (c) of the Police Act, 186165 on the
grounds that these Regulations violated the fundamental rights guaranteed to him under
Articles 19(1) (d) and 21 of the Constitution. The petitioner also contended that the
regulations in question were not framed under any provision of the Police Act inasmuch
as Section 46(2(c) of the Police Act, 1861, empowers the State Government to issue
Regulations through notification in the official gazette.66 The Supreme Court held that the
regulation 856 is a delegated legislation and not merely an executive order, as the same is
issued under the authority of law. Further, it held that the procedure under Regulations
853(c) and 85767 to be quite fair. Therefore, it cannot be said that the fundamental right of
the petitioner under Article 21 is violated. Article 19(1) (d) guarantees to a citizen a right
to movement which includes right to privacy in his movement but that is not absolute
right but is subject to reasonable restrictions. Supreme Court held that the restrictions
imposed by Regulation 856 under the section 46(2) (c) of the Police Act, 1861 were quite
reasonable and in the interest of State. Therefore, Regulation 856 was held to be not ultra
vires Articles 19(1) (d) and 21 of the Constitution. The Supreme Court expressed the
view that the procedure laid down by the legislator under Article 21 has to satisfy the test
of reasonableness under Article 19(2).
64
Regulation 855 of Madhya Pradesh Police Regulations empowers the District Superintendent of Police
to register a person name in the register of surveillance and place such person under regular surveillance on
the satisfaction that such person is leading a life of crime, and his conduct shows a determination to lead a
life of crime. Regulation 856 provides that such surveillance, inter alia may consist of domiciliary visits
both by day and night at frequent but irregular intervals.
65
Act No. 5 of 1861 of MP.
66
AIR 1975 SC 1378, at 1381.
67
Regulation 853 (c) of Madhya Pradesh Police Regulations empowers the Superintendent of Police to
pass an order in respect of domiciliary visits of persons who are suspected to be habitual criminals.
Regulation 857 obligates the authorities to have effective short duration surveillance which can either prove
or disprove that suspicion criminal livelihood is unfounded. In case of suspicion person has no criminal
livelihood, the authorities must stop surveillance and remove his name from the register.
99
In A.D.M. Jabalpur v. Shivkanth Shukla,68 which is considered to be “self
wounded” case and it is a black dot on the history of Indian Judiciary, the Government of
India challenged the decisions of the nine High Courts which had held that even during
the period of suspension of Fundamental Rights on the ground of internal emergency writ
of habeas corpus can be admitted to determine the legality of arrest under the Section
3(1) of the Maintenance of Internal Security Act, 1971.69 The High Courts were
unanimous in holding that detention of persons under Maintenance of Internal Security
Act, 1971 could be set aside on the ground of mala fides, abuse of power and non-
application of mind to substantiate the detention because the common law and rule of law
are not suspended. High Courts were of the view that since Part III of the Constitution is
not the sole repository of personal rights, suspension of Part III rights does not affect
application of common law principles. Astonishingly the Supreme Court held that
executive action cannot be challenged before the Courts on any grounds because the
Fundamental Rights under Articles 14, 19, 21 and 22 are suspended. The right to life and
personal liberty under Article 21 is recognized by the state. Therefore, if such right is
suspended, it cannot be enforced in any manner. Further, it is held that certainty in law is
a condition precedent for sound legal system. Hence law under Article 21 means positive
law. It means the law as it is enacted by State. Such law need not be just or fair. Holding
otherwise will lead to ambiguity. The Supreme Court went to the extent of holding that
detention order issued by the executive authority cannot be questioned even if the
68
AIR 1976 SC 1207.
69
Act No. 26 of 1971. Section 3 (1) of the Maintenance of Internal Security Act, 1971, Provided the
Central Government or the State Government on its satisfaction, with view to prevent a person from acting
in any manner pre judicial to (i), the defense of India, friendly relation with foreign powers, or the security
of India, (ii), the security of the state or the maintenance of public order, (iii), the maintenance of supplies
and service essential to the community, may order for the detention. Further the government may issue
order of detention of foreigner with view to make arrangements for his expulsion from of India.
100
procedure laid down under the law is not complied with. Khanna, J. delivered a
dissenting judgement and observed that even during the suspension of Article 21, the
State has got no power to deprive a person of his life or personal liberty without the
authority of law. That is the essential postulate and basic assumption of the rule of law in
every civilized society.70 This approach has shown the remarkable potentiality of the rule
of law in protecting personal liberty. The obvious affect of the judgement in Jabalpur is
that it reversed the progress made by the previous cases in respect of fair and non
arbitrary procedure under Article 21. Thus, the Supreme Court reversed the clock and
reached the point of Gopalan where it had began its journey in respect of Article 21.
3.3 “Procedure Established by Law” to “Due Process of Law”
3.3.1 Maneka Gandhi: The New Approach
H. R. Khanna J. was deprived of his deserved position as Chief Justice of India
because of his courageous minority judgement in Jabalpur. The Supreme Court was
criticized heavily by the intellectuals across the nation because it failed to protect the
people against atrocities committed by the authorities during emergency. Supreme Court
has a statutory obligation to protect the rights of people and it is more sacrosanct during
emergency because it is during emergency that people are badly in need of such
protection which the Supreme Court failed to provide, and thus failed to live up to the
expectations of the people.
Maneka Gandhi v. Union of India71 is a land mark case in the post-emergency
period. Maneka Gandhi’s passport was seized by the authorities on the ground of public
70
AIR 1976 SC 1207, at pp. 1276-1277.
71
AIR 1978 SC 597.
101
interest under Section 10(3) (c) of the Passport Act, 196772 without providing an
opportunity of being heard to her. Maneka Gandhi, the petitioner challenged the action
on three grounds. Firstly, she contended that the Passport Act, 1967 has conferred
undefined power of impounding the passport upon the authorities which is voilative
Article 14. Secondly, the petitioner’s freedom of speech and expression and freedom of
occupation were incidentally deprived because of impounding of her passport; such
deprival should be subject to reasonable restrictions provided in the Article 19 (2).
Thirdly, that procedure established by law under Article 21 should conform to the
principle of natural justice and should not be arbitrary.
The Supreme Court unanimously upheld the contentions of the petitioner. Court
observed that the procedure established under Article 21 should be just, fair and
reasonable in view of the interaction of Articles 14, 19 and 21. Thus the seizure of
passport without providing opportunity of being heard is unjust procedure and voilative
of Article 21. P.N. Bhagawati, J., wrote the majority judgement based upon the principles
laid down in earlier cases in respect of integrated application Article 14, 19, and 2173
reflecting a creative application of the interrelationship of rights. The learned judge
observed:
“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, it would be no procedure at all and requirement of Article 21 would
not be satisfied”.74
72
Act No. 15 of 1967. Section 10 (3) (c) of the Passport Act, 1967 authorized the passport authority to
impound a passport in the interest of the sovereignty and integrity of India, the security of India, friendly
relations of India with any foreign country, or in the interest of the general public.
73
AIR 1978 SC 597, at pp. 620-639.
74
Ibid., at p. 624.
102
It is pointed out that any law envisaged under Article 21 which abridges or takes
away any fundamental right under Article 19 has to meet the test laid down under that
Article.75 The Court further observed:
“The direct and inevitable effect of an order impounding a passport may, in a

given case, be to abridge or take away freedom of speech and expression or the
right to carry on a profession and where such is the case, the order would be
invalid, unless saved by Article 19(2) or Article 19(6).”76
In a nutshell, the procedure contemplated under Article 21 should be non-arbitrary
under Article 14 in addition to being fair, just, and reasonable. Further if that law
encroaches upon the domain of Article 19, then it must pass the test laid down under
Article 19(2).77 The majority judges analyzed, to what extent the ‘reasonable legal
procedure’ embodied principles of natural justice. They held that the principles of natural
justice are not encapsulated into invariable content and that the post decisional hearing
would also conform to the constitutional requirement in Maneka Gandhi type of cases.78
This case shows how liberal tendencies have influenced the Supreme Court in the matter
of interpreting Fundamental Rights, particularly, Article 21. Even though the Supreme
Court explicitly did not overrule the ratio of Goplan’s case but made it defunct. The
concurrent judgement delivered by Krishna Iyer, J. is also remarkable and novel in its use
of almost literary prose, citation and reference to eclectic sources, and rich historical
description. He also explicitly supports an interpretative mode that takes into account
foreign precedents and universal norms and seeks to bring Indian constitutional norms in
line with the universal norms.79
75
Ibid., at p. 636.
76
Ibid., at p. 644.
77
78
Ibid., at pp. 647and 665.
79
103
The principle laid down in the Maneka Gandhi is nothing but, the introduction of
procedural due process of American Constitution in to Article 21 by articulating that
“procedure established by law” must be fair, just and reasonable. Finally, the Supreme
Court asserted its authority and proved that it is the true guardian of fundamental rights of
people of India. The Supreme Court even went beyond the principles of interpretation of
statutes that the courts have to interpret the statute in accordance with intention of
legislature. In Maneka Gandhi, the Supreme Court read just, fair, and reasonable words
in Article 21 which were deliberately avoided by the Drafting Committee of the
Constitution. The defect which had existed in Article 21 because of misconception of the
makers of the Constitution in respect of due process has been removed and corrected by
the judiciary in the process of interpretation. The Supreme Court’s decision is
courageous, dynamic, innovative and adventurous which laid the foundation for the
judicial creativity in the Indian legal system.
In Sunil Batra v. Delhi Administration80, two persons convicted of murder and
confined in Tihar Jail filed two petitions under Article 32, challenging the validity of
Section 30 and Section 56 of the Prisons Act, 189481 and questioning the ‘solitary
confinement’ imposed upon prisoners who were under sentence of death as voilative of
Articles 14, 19, and 21 of the Constitution. The Supreme Court’s interpretation in respect
of the expression “prisoner under sentence of death” in the context of Section 30(2)
could only mean the prisoner whose sentence of death has become final and could not be
80
(1978) 4 SCC 494.
81
Act No. 9 of 1894. Section 30(1) of the Prison Act, 1894 mandates the Deputy Superintendent of police
to search and seize the all articles which are deemed to be dangerous or inexpedient to live in his prison
from the person who is subject to death sentence. Further Section obligates the authority to confine that
person in separate cell and he shall be placed guarded by guard day and night. Section 56 of the Prison Act,
1890 empowers the superintendent of police to put irons around the shoulder and legs on the prisoner who
is danger to the life of other prisoner and he may be subjected to such restrictions and conditions as may be
imposed.
104
annulled or violated by any judicial or constitutional procedure. A prisoner is not under
sentence of death till his right to appeal against sentence or to appeal for mercy is
exhausted. Thus, the Court held that solitary confinement of such convicts was voilative
of Article 21. However, Section 30 was upheld because the procedure prescribed under it
for the curtailment of prisoner’s liberty in jail was found to be fair and just within the
meaning of Article 21.82 Further, the Court observed that continuously keeping a prisoner
in fetters, day and night reduces the prisoner from a human being to an animal and such
kind of treatment is cruel and unusual. Use of bars to put fetters upon a convicted person,
even if he was not of a dangerous character was against the spirit of the Constitution.
Section 56 of Prisons Act, 1894 lays down certain conditions under which this may be
done and hence, it was held to be constitutional. But those conditions were not present in
the impugned case, and therefore using bars to put fetter was not justifiable. Krishan Iyer,
J. who delivered the judgement concluded as under:
“[T]rue our Constitution has no ‘due process’ clause but in this branch of
law, after Cooper and Maneka Gandhi, the consequence is the same.”
He further added that Article 21 is the counterpart of the procedural due process
in the United States.83
Supreme Court’s interpretation of Article 21 in Maneka Gandhi has infused fresh
blood to Article 21 which has encouraged and inspired the judiciary to bring out various
facets of personal liberty under the ambit of Article 21 of the Constitution. Supreme
Court has already settled the matter that imposition of death sentence under Section 302
of I.P.C. is not violative Article 21 in Jagmohan Singh’s case.84 However, the judgement
82
83
Ibid., at p. 541.
84
Jagmohan Singh v. State of U.P. AIR 1973 SC 947.
105
of Supreme Court in Maneka Gandhi has encouraged the persons who are convicted for
death sentence under Section 302 of IPC to challenge their death sentences by
challenging the procedure as arbitrary and unjust, and hence, voilative of Article 21 of the
Constitution. The Supreme Court again reiterated its stand on death sentence in Bachhan
Singh v. State of Punab,85 wherein the Supreme Court held that Section 302 of IPC and
Section 354 of the Cr.P.C. intra vires.86 Sarkaria, J. speaking for the Court observed that
judge’s power of imposing death sentence is subject to quality of evidence furnished by
the public prosecutor and accused, guilty person is again heard at the time of imposing
death sentence and the judge has to give reasons for awarding death sentence. Moreover
death sentence is awarded in the rarest of rare cases.87 Therefore, the Court held that
procedure of imposing death sentence is non-arbitrary under Article 14 and just under
Article 21 of the Constitution. Sarkaria, J. has stated that after Maneka Gandhi’s case
Article 21 must read as:
“No person shall be deprived of his life or personal liberty except according to
fair, just and reasonable procedure established by valid law”.
The Supreme Court by exercising its power of interpretation has almost rewritten
Article 21. The Supreme Court in Ranjan Dwivedi v. Union of India 88 has expressed the
opinion that ‘It is difficult to hold that the substance of the American doctrine of due
process has not been introduced in the conservative text of Article 21 of the Constitution’
which is in tune with statement of Sarkaria, J. in Bachan Singh’s case. Finally, the
85
1983 1 SCR 145 at 222.
86
Section 354(3) of the Code Criminal Procedure, 1973 mandates the judges to give reasons for
punishment of life imprisonment or imprisonment of years; further judges should give special reasons for
death sentences.
87
88
(1983) 2 SCR 982.
106
Supreme Court in M. Nagaraj v. Union of India89 explicitly stated that the procedure
under Article 21 has to be just and fair as per the ratio of Maneka Gandhi not as laid
down by legislator stated in the ratio of the Gopalan. Thus, Goplan’s ratio is explicitly
overruled in Maneka Gandhi.90
On the basis of the foregoing discussion it can be concluded that the judiciary,
through its creative interpretation has inserted the content of ‘due process’ in Article 21.
The fears of the Constitution makers that due process concept is vague and will create
confusion; that it gives discretionary power to few judges to reject the legislation which is
passed by the majority of legislator and that amounts veto and that judiciary is likely to
hamper the process of social development by using the power of due process have proven
to be wrong. In fact the Constitution makers at the time of drafting Article 21 had
deposed trust in the legislators than few judges because legislators are true
representatives of the people, elected by the people, and are accountable to the people.
Therefore, legislators may not abuse their power of enacting law. However, in the last 60
years the morality in the politics has eroded considerably and the legislator’s hunger for
power is unimaginable. These factors are amply demonstrated and proved by the glaring
example of A. K. Goplan, Jabalpur and Maneka Ganhi cases. On the other hand, the
judiciary, which was thought to be likely to abuse or misuse due process concept proved
that the Constitution maker were wrong. Judiciary’s quest for justice and better law has
made it more active, vibrant, and assertive. It has extended the safeguards of the due
process to the people of India by successfully reading it into Article 21 of the
89
(2006) 8 SCC 212.
90
M. Nagaraj v. Union of India, (2006) 8 SCC 212, at pp. 241-242.
107
Constitution and brought it on par with the safeguards of V and XIV Amendments of the
American constitution.
3.4 New Dimensions of Due Process after Maneka Gandhi
Post Maneka Gandhi’s decision, Article 21 protects the right to life and personal
liberty of persons not only from the executive action but also from the legislative action.
A person's right to life and personal liberty can be deprived only if two conditions are
complied with. First, there must be a valid law and second, there must be a procedure
prescribed by that law, provided that the procedure is just, fair and reasonable. The
interpretation adopted by the Supreme Court in Maneka Gandhi has given new
dimensions to and widened the scope of Article 21. The Supreme Court had tried to
evolve the rights of the prisoners to fair treatment through the application of Articles 14,
19 and 21 in an ad hoc manner much earlier than Maneka Gandhi.
3.4.1 Rights of an accused to know his arrest and the reasons for arrest
Accused’s right to know his arrest and grounds of arrest are essential ingredients
of a fair process. Article 22(1) ensures that an arrested person shall be informed of his
arrest and grounds of arrest “as soon as may be.” The world “as soon as may be” means
as early as possible and within a reasonable time in the circumstances of the particular
case. This creates confusion about the time within which the grounds of arrest should be
informed to the accused. The Supreme Court in Jogindar Kumar v. State of U.P. 91 has
laid down that arrested person is entitled to get the fact of his arrest informed to one of
his relatives. The police shall inform the accused of his arrest when he is bought to the
police station and must record in the dairy to whom the information of arrest is
communicated.
91
(1994) 4 SCC 260.
108
Apex Court further strengthened these norms in D. K. Basu v. State of W.B.92
wherein the Court held that police must prepare a memorandum of arrest which must
disclose who arrested the person, place of arrest, time of arrest and it must be attested by
at least one witness either from amongst the relatives of the arrested person or by any
other respectable person form the same locality. Information as to when and where he is
arrested and where he is detained must be communicated to a relative of the accused
within 8 to 12 hours from the arrest. The arrest shall be made with due diligence and after
an accurate, visible and clear identification of arrested person. The Court made it clear
that failure to comply with these norms by the authorities makes them liable for contempt
of court.
3.4.2 Handcuffing is unjust procedure
In the Prem Shankar v. Delhi Administration93, V. R. Krishna Iyer, J. Observed,
that time has come to emphasize on socialization of prisoners. The Supreme Court
criticized the casual attitude of the police to arrest every accused with handcuff without
taking into consideration the character of the accused, nature of offence committed, and
chance of accused escaping from the arrest, and held that such a procedure is unjust and
voilative of Articles 14 and 21. The police used to arrest an accused with handcuff even
when he voluntarily submitted himself for arrest for social cause. The Court held that an
accused who is dangerous, hard core criminal and likely to escape from the clutches of
92
AIR 1997 SC 610. The National Human Rights Commission has similarly issued extensive guidelines on
the rights to be provided at the time of arrest. NATIONAL HUMAN RIGHTRS COMMISSION OF INDIA,
GUIDELINES ON ARREST, NOV 22 1989, http//nhrc.nic.in/Documents/sec-3.pdf., Accessed, on June 22,
2012.
93
J, Krishna Iyer, V.R., observed that “We lay down as necessarily implicit in Articles 14 and 19 that
where there is no compulsive need to fetter a prison’s limbs, it is sadistic, capricious, despotic and
demoralizing to humble a man by manhandling him. Such arbitrary conduct surely slaps Article 14 on the
face. The minimum freedom of movement, which even a detainee is entitled to under Article 19, cannot be
cut down cruelly by application of handcuffs or other hoops.” See, Prem Shankar v. Delhi Administration
AIR 1980 SC 1535.
109
police needs to be handcuffed and reason for handcuffing should be mentioned in the
dairy of police. The Supreme Court has issued guidelines in this regard which have put
break on the power of police which is sometimes exercised to humiliate an accused.
3.4.3 Prisoner’s Rights under Article 19 within Prison
The accused who is guilty of an offence would be punished. Such person has to
spend his life in prison till the completion of sentence period. Indeed a convicted person
never losses his citizenship merely because he is imprisoned. Thus, imprisoned convicted
person still he can enjoy certain fundamental rights even inside the prison. Obviously the
sentenced person cannot claim the right of residence, form association, movement, and
carry trade commerce and business. However he can claim the right of equality and right
to life and personal liberty.
The Apex Court in Ranbir Singh v. State of Punjab94 invalidated mala fide
exercise of power of separate confinement of the prisoner as voilative of Article 14
although the relevant provisions of Prisons Act, 1894 and Punjab Jail Manual Rules are
in accordance with the principles of reasonable classification. In Prabhakar
Panduranga,95 the prisoner is held to have his right to freedom of expression by means of
publication of a book outside the prison through others. The Supreme Court in Sunil
Batra,96 made use of the principle of classification and non- arbitrariness under Article 14
to read down Section 30(2) of the Prisons Act, 189497 as providing for separate
confinement rather than solitary confinement of any person under the sentence of death
penalty. The prisoner’s liberty to move, mix, mingle, talk and share company with co-
94
AIR 1962 SC 510.
95
State of Maharashtra v. Prabhakar Panduranga AIR 1966 SC 424.
96
Sunil Batra v. Delhi Administration AIR 1978 SC 1675, p. 1715.
97
Act No. 9 of 1894.
110
prisoners could thus be protected through application of Article 14 of the Constitution.
Further, in Sunil Batra v. Delhi Administration (II)98 the Supreme Court laid down some
guidelines to be followed by the prison authorities in imposing bar fetters and relied upon
procedural safeguards against abuse of powers of shackling.
V.R.Krishna Iyer, J., in Charles Shobraj said that Article 14, 19 and 21 are
interlinked and need to be interpreted together. The different treatment to under trials and
convicts persons is reasonable classification and does not violate Article 14. Further even
among the under trials and convicted person classification can be made on the basis of
nature of act alleged or committed and their violent attitude. Therefore the law has to be
compassion whoever is soft, decent and mild and equally it has to be strict and harsh on
those who is found to violent and cruel inside the prison. The Court observed:
“… Every prison sentence is a conditional deprivation of life and liberty, with

civilized norms built in and unlimited trauma interdicted. In this sense, judicial
policy of prison practices is implied in the sentencing power”.99
The under trials of offences and detenues under Preventive laws ought to be
treated differently otherwise it is arbitrary and unjust procedure under Article 14 and 21
respectively. Moreover, detenues are placed on a better footing than under trials because
unlike under trials detainees are not charged of any offence. Therefore, detenues should
be treated better than under trials. On the contrary a detenue under rules framed under the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974100 is
treated unfairly compared to an under trial in respect of meeting his lawyers and family
members. The rules permitted the detenue to interact with his family members once in a
month and that too in the presence of a Customs Officer, whereas under trials are
98
AIR 1980 SC 1579
99
Charles Sobraj v. Supd.t, Central Jail, AIR 1978 SC 1514 at p. 1517.
100
Act No. 52 of 1974.
111
permitted to meet their family members twice a week and convicts once a week. The
Court quashed the Rules as discriminatory and unreasonable, particularly when a detenue
stood on a higher footing than an under trial or convict.101 According to the court,
constant contact with the world would remind them “the good of the world, kindness and
joy” instead of them being wrapped up in evil. Thus the right of the prisoner to
socialization is thereby protected.
3.4.4 Right to Bail
The conditions of jail in India are pathetic. They are over crowded not only with
convicted persons but even with under trials prisoners. Moreover the structure of the jail
is not in good conditions also. Further it does not have sufficient basic amenities like,
toilets, bathrooms, pure and drinking waters. Most of the jails do not have facility of
recreation for inmates. In some jails the convicted persons and under trials are kept
together. Under such circumstances the better idea is to see that jails should not be over
crowded. The device of bail can be utilised to balance the conflict interest between liberty
and security. The right to bail is ordinarily enables accused to stay out of jail until he is
found guilty. The object of arrest or detention of an accused is primarily to secure at the
time of investigation, trial and at the time of receiving sentences, in case he is found
guilty. The accused is unlikely to escape, he is freely available for investigation or trial
and accused interference with witness is too remote. Under such circumstances detention
of accused would be obviously deprive the liberty of an accused and indeed such
procedure of law would definitely offend due process. The Indian Constitution does not
contain any Article that explicitly provides right to bail. Nevertheless, the Apex Court has
101
Frances Coralie Mulin v. Union Territory AIR 1981 SC 746.
112
read the right to bail into Article 21.102 The Supreme Court in group of Hussainra
Khatoon,103 observed: “...denying bail to the under trials who are in jail without trial,
because of their poverty is a violation of right to life under Article 21 and discriminatory
under Article 14.
The present law of bail thus operates on what has been described as a property
oriented approach. Thus, the need for a comprehensive and dynamic legal service
programme is required to make bail system equitable responsive to the needs of poor
prisoner and not to just the rich. Kishna Iyer, J., viewed that without such an approach,
the poor, the adivasis and the minorities would be unfree in free India. In Moti Ram v.
State of M.P.104 the Supreme Court found that imposition of bail requirement of Rs.
10,000 against a poor mason and rejection of his brother’s surety for the reason that his
assets were in another district were shockingly discriminatory. Similar development has
taken place by structuring the judicial discretion to bail in order to evolve the basic rule
of “bail, but not jail”.
3.4.5 Right to Legal Aid
The fairness of procedure under Article 21 mandates that authority should provide
copy of the judgment to convicted person with free of cost to enable appeal, and equally
authority has obligation provide free legal aid to the needy people clearly held in M. H.
Hoskot v. State of Maharashtra105. In that case it is held that a prisoner who is indigent
or otherwise disabled from securing legal assistance is entitled get legal service at the
cost of state exchequer under Article 21. The principle laid down in Hoskot is reiterated
102
Babu Singh and others v. State of Uttar Pradesh, AIR 1978 SC 527.
103
AIR 1979 SC 1360, AIR 1979 SC 1369, and AIR 1979 SC 1377.
104
AIR 1978 SC 1594; (1978)4 SCC 474.
105
AIR 1978 SC 1548.
113
by Supreme Court in the Hussainara Khatoon v. Home Secretary, Bihar.106 Therein the
Court held that it is the constitutional right of every accused person who is unable to
engage a lawyer and secure legal services on account of reasons such as poverty,
indigence or incommunicado situation, to have free legal services provided to him by the
State and the State is under constitutional duty to provide a lawyer to such person if the
needs of justice so require. In Suk Das v. Union Territory of Arunachal Pradesh,107 the
Court observed that failure to provide free legal aid to an accused at the State’s cost,
unless refused by the accused, would vitiate the trial. He need not apply for the same.
Free legal aid at the State’s cost is a fundamental right of a person accused of an offence
and the right is implicit in the requirement of reasonable, fair and just procedure
prescribed by Article 21. The Supreme Court refused to accept the argument of financial
or administrative inability as a defence for not providing free legal service to the poor
accused.
3.4.6 Speedy Trial
‘Justice delayed is justice denied’ is a trite saying in relation to criminal justice
system, especially because the accused is presumed to be innocent until the guilt is
proved. Obviously, the stakes in criminal matters are high because it is a matter of
depriving the life and liberty of an individual. Therefore, it is imperative on the part of
government to provide a speedy trial to the accused, otherwise keeping the accused in
captivity for longer duration than a normal period without a trial would definitely amount
to injustice. The Supreme Court in a catena of cases has held that not providing speedy
trial would amount to unreasonable procedure, contrary to Article 21 of the Indian
106
AIR 1979 SC 1377.
107
(1986) 25 SCC 401.
114
Constitution. In Hussainara Khatoon (I) v. Home Secretary, State of Bihar,108 the
Supreme Court held that “right to speedy trial” is a fundamental right implicit in the
guarantee of life and personal liberty enshrined in Article 21 of the Constitution. Speedy
trial is the essence of criminal justice. Thus, the Supreme Court by reading speedy trial in
the procedure established by law under Article 21 provided greater relief to the accused
as well as to the society, because speedy justice ensures either innocent accused is
acquitted or guilty is convicted. Obviously, the society is interested to see that guilty
person should be punished without undue delay. Thus, the Apex Court has balanced the
interest of the accused and also of the society by incorporating the component of speedy
trial in the procedure established by law under Article 21 which is analogous to due
process.
In a significant judgment in Abdul Rehman Antuley v. R. S. Nayak,109 the Supreme
Court has laid down detailed guidelines for speedy trial of an accused in a criminal case.
Nevertheless it has declined to fix any time limit for trial of offences. The Court thought
that the fixing of time frame would amount to rigidity because delay in trial would
depend upon the various factors which cannot be enumerated. However, delay on the part
of prosecutor or state to conduct trial would certainly provide much needed relief to the
accused to challenge that procedure to be unfair. This has bought the procedure under
Article 21 closer to due process. Recently, the Supreme Court in the case of Sanjay
110
Chandra v. C. B. I., which is also known as 2G Scam, opined that the detention of
under trial prisoners in custody for an indefinite period violates Article 21. Every person
108
AIR 1979 SC 1360.
109
AIR 1992 SC 1630.
110
AIR 2012 SC 830.
115
detained or arrested is entitled to speedy trial. In Brij Mohan Lal v. Union of India,111 it is
held that financial constraints upon the State cannot be a ground to deny fundamental
rights to citizens. The Supreme Court has taken the right to speedy trial to its logical end
by awarding compensation to the accused where delay in trial occurred due to default on
the part of prosecution.112
3.4.7 Procedural Safeguards in Imposition of Death Penalty
Trial judge’s discretion to impose death penalty is structurised by the Supreme
Court in Bachan Singh113 by pointing out the aggravating and mitigating factors that
guide the imposition of death penalty with a general principle that death penalty can be
imposed, only in the rarest of rare circumstances. Bifurcation of sentencing procedure,
requirement of special reasons for death penalty and the affirmation by the High Court
could save the constitutionality of the relevant law from the challenges based on Articles
14 and 19. In Mithu v. State of Punjab114 the Supreme Court quashed Section 303 of the
Indian Penal Code imposing mandatory death penalty as voilative of Articles 14 and 21.
Since there was no scope for judicial discretion to consider mitigating circumstances on
one hand, and on the other, since the classification between persons undergoing life
imprisonment and those undergoing prescribed imprisonment was arbitrary, the court
reasoned that Section 303 of IPC violated Article 14 as well. The Court noticed that the
criterion of classification has no nexus with object of the statute which is sought to be
achieved.
111
(2012) 6 SCC 502. That the State, cannot be permitted to deny fundamental right to speedy trial to the
accused on the ground that State does not have adequate financial resources to incur necessary expenditure
needed for improving administrative and judicial apparatus to ensure speedy trial.
112
Hardeep Singh v. State of M.P., AIR 2012 SC 1751.
113
Bachan Singh v. State of Punjab AIR 1980 SC 898.
114
AIR 1983 SC 473.
116
The due process compliance of the mode of execution of death penalty came to be
considered by the Supreme Court in several cases. The Supreme Court in Deena v. Union
of India115 observed that the present procedure of execution of death sentence by rope is
just and fair compared to other modes of execution of death sentence. Unreasonable delay
in the execution of death sentence of the convicted person by executive is obviously
unjust procedure and it is violation of Article 21. The Supreme Court in T.V.
Vatheeswaran,116 held that delay of exceeding two years in the execution of death
sentence entitled a convict to get it commuted to life imprisonment. The Supreme Court
applied Articles 14, 19 and 21 conjointly and viewed that prolonged detention which has
avoided the execution of sentence of death is unjust, unfair and unreasonable, and hence
violated these Articles.
However, the Supreme Court in Sher Singh v. State of Punjab,117 showed
reluctance to endorse the reasoning of T. V. Vatheeswaran’s case. Chinnappa Reddy, J.
observed that no such time limit could be fixed for execution of death sentence otherwise
it amounts to rigidity because delay in execution of death sentence depends upon various
factors. Sometimes convicted person himself might have adopted the delay tactics.
Therefore, blanket mandate that two years delay in the execution of death sentence
entitles the convict to have the death sentence commuted to life imprisonment is
untenable in the interest of justice. Finally, a Constitutional Bench of the Supreme Court
in Triveni Ben v. State of Gujarat,118 set right the confusion by overruling Vatheeswaran
and holding that “delay in execution of death sentence may be a ground to be considered
115
AIR 1983 SC 1155.
116
T.V. Vatheeswaran v. State of Tamil Nadu AIR 1983 SC 361 (2).
117
AIR 1983 SC 465.
118
AIR 1989 SC 1335.
117
in the light of all circumstances of the case”. However, the Court held that delay in
execution of death sentence cannot be mandatory ground to reduce the death sentences.
Therefore, Articles 14 and 21 could be invoked when there is inordinate delay in
execution of death sentence subsequent to the final judicial verdict. Recently, in

119
Shatrughan Chauhan & Anr v. Union of India, the Supreme Court commuted the
death sentence of fifteen convicted prisoners including terrorists into imprisonment for
life, because of the involvement of delay of 5 to 11 years in various cases while disposing
the mercy petition.
3.4.8 Fairness in rules of evidence
Truth and justice are two faces of the same coin. Fairness in rules of evidence in
the process of adjudication forms inevitable component of fair procedure. In order to
uphold rule of law, the judiciary in some cases has resorted to modification of ordinary
rules of evidence.120 In Ramsagar Yadav,121 the uncorroborated dying declaration of a
detenue, who was fatally beaten by the police officers, is accepted by the Supreme Court
as sufficient to lead to conviction in the circumstances of the case. In Bhagwan Singh v.
State of Punjab122 it was inferred that for the disappearance of the dead body of a person,
who died in police custody because of the torture inflicted by the police, the police officer
who caused the death was responsible. In Nilabati Behera v. State of Orissa123 it was
ruled that when unnatural death occurred in police lock-up, the burden of proof should be
upon the accused police officer to prove that he is not guilty.
119
Writ Petition (Criminal No. 55 of 2013), See, http://www.supremecourtofindia.nic.in/outtoday/wpc
552013.pdf, Accessed on August 2, 2014.
120
121
State of U.P. v. Ram Sagar Yadav AIR 1985 SC 416.
122
(1992) 2 SCJ 364; AIR 1992 SC 1689.
123
(1993) SCJ 487; AIR 1993 SC 1960.
118
3.4.8.1 Onus of Proof
The Indian criminal justice system is based upon the principle that the accused
shall be presumed to be innocent till his guilt is proved beyond reasonable doubt.
Obviously it is the duty of prosecution to prove the guilt of the accused. This principle is
stated in the Latin maxim of Ei qui affirmat non ei qui negat incumbit probabtio, (He
who invokes the aid of the law should be the first to prove his case) and as crime is
generally proven affirmatively, the burden lies on the prosecution.124 This principle is
acknowledged by the House of Lords in Woolmington v. D.P.P.125, wherein it observed:
“[T]hroughout the web of English Criminal Law, one golden thread is always to
be seen, that is the duty of the prosecution to prove the prisoner’s guilt, subject to
the defence of insanity and any statutory exception. If at the end of the whole
case there is a reasonable doubt, as to whether the prisoner killed the deceased
with malicious intention, the Prosecution has not made out a case and the
defendant is entitled to acquittal.”126
In every case every fact need not be proved because proof of one fact may lead to
inference of another fact or to a presumption. The effect of a presumption is that a party
in whose favour a fact is presumed is relieved of the initial burden of proof. Presumptions
are the results of human experience and reason allied to the course of nature and the
ordinary flow of life. If a man and woman are found alone in suspicious circumstances
the law presumes that they were not there to say their prayers and the divorce laws would
take this as evidence of adultery. They are the result of reasoning. Presumptions are based
on the general experience or probability of any kind or merely on policy or
convenience.127 Presumptions are of either law or fact. Presumptions of law are arbitrary
consequences expressly annexed by law to particular facts. In some cases, it is difficult
124
Keane, A. The Modern Law of Evidence, 5th edn., (London: Butterworths, 2000), p.86.
125
(1935) AC 462 (HL).
126
Ibid.
127
Dr. Avtar Singh, The Law of Evidence, 16th edn., (Allahabad: Central Law Publications, 2007), p. 416.
119
for the authoritys to find or discover the evidence against the act of the accused because it
might happen behind the closed doors. The people who have seen the act may not depose
before the authoritys because the accused happened to be there close relative; this is truer
in case of socio-economic offences. These things make it hard for the authoritys to prove
the act of the accused beyond reasonable doubt, which would result in the acquittal of the
accused. Therefore, certain laws have provided for presumption that the accused has
committed the act unless contrary is proved. The Supreme Court of India has in several
cases held that such presumptions are fair and reasonable and do not contravene Art 14
and 21 of the Constitution.128 The Supreme Court has held that such procedure is not
unjust and arbitrary. The Supreme Court has held that the presumption of innocence
being human right cannot be thrown aside, but it has to be applied subject to exceptions.
In reverse presumptions, initial burden exists upon the prosecution and only when it
stands satisfied, the legal burden would shift and standard of proof required to be proved
is not as high as of prosecution, therefore principle of reverse presumption is not
violation of Article 21 of Indian Constitution.129 The Law Commission of India has
recommended that the burden of proof of disproving mens rea should be shifted on the
accused.130 It has observed:
“After very careful considerations we have come to conclusion that the social
interest in the prosecution and conviction of those guilty of anti-social acts would
be protected by the amendment which we propose. At the same time the
substantive provision would not in its formulation be so unreasonable as to attract
the culpability (and consequently to impose punishments) where there is no
intention to evade its provision and no want of reasonable care”.131
128
Veeraswamay v. Union of India, 1991SCC (Cri) 734. Sodhi Transport Co. v. State of Uttar Pradesh,
(1986) 2 SCC 486.
129
Noor Aga v. State of Punjab, (2008) 16 SCC 417, MANU/SC/2913/2008.
130
47th Report of the Law Commission of India on, The Trial and Punishment of Social and Economic
Offences, (New Delhi: Ministry of Law and Justice, Government of India, 1972), p. 11.
131
Ibid.
120
Chief Justice Cooley of U.S. has said:
“I agree that as rule there can be no crime without a criminal intent: but this is
not by any means a universal rule…. Many statutes which are in the nature of
police regulation, as this, imposing criminal penalties irrespective of any intent of
violate them: the purpose being to require a degree of diligence for the protection
of the public which shall render violation impossible”.132
Even House of Lords supported the doctrine and noticed that “the duty of
prosecution to prove the prisoner’s guilt is subject to the defense of insanity and statutory
exceptions”.133 Naturally, this useful logical device is incorporated in various socio-
economic legislations. Followings are the enactments, which have made the presumption
of mens rea.
1. Section 30 of the Protection of Children from Sexual Offences Act, 2012.134
2. Section 20 of the Prevention of Terrorism Act, 2002.135
3. Section 68 of the Standard of Weight and Measurement Act, 1976.136
4. Section 10(C) of the Essential Commodities Act, 1955.137
5. Section 138-A (1) of the Custom Act, 1962.138
6. Section 35(1) of the NDPS Act,139
7. Section 9-C (1) of the Central Exercise and Salt Act, 1944.140
The next question to be addressed is what is the standard or degree of proof
required for the accused to prove his innocence. The view is that there is no rule of
132
People v. Roby, 52 Mich 577, 579, 18 N.W. 365 (1884) cited in Morissette v. U.S., (1951) 342 U.S. 246,
247.
133
Woolmington v. D.P.P., (1935) AC 462 (HL).
134
Act No. 32 of 2012.
135
Act No. 15 of 2002.
136
Act No. 60 of 1976.
137
Act No. 10 of 1955.
138
Act No. 52 of 1962.
139
Act No. 61 of 1985.
140
Act No. 1 of 1944.
121
general application and it is a question of policy and fairness.141 Nevertheless, if the court
entertains reasonable doubt regarding the guilt of the accused; the accused must have the
benefit of that doubt.142 Therefore, the burden of proof on the accused is not beyond the
degree of preponderance of probabilities.143 However, the Supreme Court in Gautham
Kundu v. State of West Bengal144 held that “this presumption can only be displaced by a
strong preponderance of evidence and not only by a mere balance of preponderances.
Shifting of the burden of proof on to the accused may be in the interest of the
society. But, from the perspective of the accused, it is unjust because, failure on the part
of the accused to disprove the guilt results in conviction. It means innocent accused are
likely to be convicted. Moreover, it would be very difficult to collect the evidence and
prove his innocence. Obviously, judiciary has to balance the interest of the society and
accused. Therefore, the courts have reasoned that accuser’s obligation to prove his
innocence cannot be equated with prosecution’s obligation to prove guilt beyond
reasonable doubt. In other words accused has to prove his innocence to the degree of a
probability and not beyond reasonable doubt. In reverse presumptions, initial burden
exists upon the prosecution and only when it stands satisfied, the legal burden would shift
and standard of proof required proving his innocence is not as high as of prosecution,
therefore principle of reverse presumption is fair, just and equitable procedure and not
violation of Article 21 of Indian Constitution.145
141
P. Healy, “Proof and Policy: No Golden Threads”, (1987) Crim. L.R. p. 355.
142
Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2733.
143
State of U.P. v. Lakhmi, 1998 SCC (Cri) 929.
144
(1993) 1 SCC 418.
145
Supra note 129.
122
3.4.9 Humanisation of custodial conditions
Articles 14, 19 and 21 are used to ensure reasonable conditions in protective
custody. In Munna v. State of U.P.146 the court found that the lodging of juvenile
offenders with adult prisoners instead of sending them to children’s home had resulted in
sexual abuse of children by the adult prisoners. While ordering that accused juveniles be
sent to children’s home, the Court was governed by the egalitarian principle of reasonable
classification. In Upendra Baxi147 and Sheela Barse148 the Supreme Court issued
necessary directions for providing suitable human conditions in the protective homes and
safeguarding the interest of inmates. In Rakesh Chandra v. State of Bihar149 the Court
ordered for better facilities in the mental asylums.
3.5 Conclusion
The legal positivism and the theory of ‘original intent’ of the makers of the
Constitution propounded in Goplan was abandoned in favour of an interpretation that
would ensure just and fair laws under the Constitution.150 Thus, the procedure established
by law under Article 21 of the Indian Constitution must satisfy the test laid down under
Article 14. It means the procedure prescribed by law must not be discriminatory and
arbitrary. An arbitrary law violates Article 14. Arbitrary procedure would be no
procedure at all and the requirements of Article 21 would not be complied with. A
procedure which is unreasonable, harsh and prejudicial to the people cannot be in
consonance with Article 21.151 This judicial approach has made the ‘procedure
146
AIR 1982 SC 806.
147
Upendra Bakshi v. State of U.P., AIR 1987 SC 191.
148
Sheela Barse v. Secretary, Children Aid Society, AIR 1987 SC 656.
149
AIR 1989 SC 348 at p. 355.
150
Supra note 4, p. 203.
151
Superintendent & Remembrancer, Legal Affairs, West Bengal v. S. Bhowmick, AIR 1981 SC 917.
123
established by law’ of Article 21 more or less synonymous with the concept of procedural
due process obtaining under the United States Constitution. The new dimensions added
by interpretation of Article 21 ensured so many rights to the accused, which were not
explicitly mentioned in the Constitution.
The object of substantive law is to provide justice to people and that is an end of
law. On the other hand procedural law provides means to achieve justice. The end and
means are inter-related. Justice cannot be achieved unless the means are fair. Equally the
means cannot be justified unless the end is fair. The relation between the end and means
is entrenched in Article 21 of the Constitution. Ascertaining the true meaning of ‘life,’
‘personal liberty,’ and ‘procedure established by law’ under Article 21 is an endless
process. The scope of Article 21 is in the mode of expansion particularly after Maneka
Gandhi. The narrow interpretation of Article 21 made by the Supreme Court in Goplan152
is gradually watered down and finally buried. The liberal interpretation of procedure
established by law in Maneka Gandhi marks the beginning of a new dimension of
procedural due process especially in criminal justice system under Article 21 of the
Constitution. The Apex Court in numerous cases has observed that the procedure
established by law must be just and fair. Procedure must be fair not only from the
perspective of accused but also from the perspective of victim of crime and society. Now
the Courts do not hesitate to quash the law if such law offends the due process
requirements.
The re-interpretation of Article 21 and Article 14 by the Court after 1978 marks a
watershed in the development of Indian Constitutional Law. The vast extent of public law
and public interest litigation and the Court’s routine intervention in administration which
152
A.K.Gopalan v. State of Madras, AIR 1950 SC 27.
124
is seen in Indian courts today is the result of the due process of law in the Indian
Constitution. It has been aptly said that judicial review is always a function, so to speak,
of the viable constitutional law of a particular period. The viable constitutional law of
India since 1978 has been the concept of due process of law in the Constitution.153
153

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CHAPTER- III

PROCEDURE ESTABLISHED BY LAW

being a democratic nation committed to rule of law, cannot be indifferent to promotion of

that it cannot be suspended even during an extraordinary situation.3

Fourteenth Amendments have inserted the concept of Due Process in the US

by a process of interpretation of two Articles of the Constitution, namely Articles 14 and

whether legislative or executive or of any public authority which is perceived by the

Court to be ‘arbitrary’ or ‘unreasonable’.4 The process of realization of justice over a

equality and fairness.5

3.2 The Evolution of Due Process in India

The due process development in India is enriched mainly by two principal

Secondly, inter-relationships among Articles 20, 21 and 22, as corollary of development

Deprivation of right to life or personal liberty is an unusual course of action taken by

deprived of his life or personal liberty except according to procedure established by

hence, cannot be compatible with arbitrary or unfair procedure.9 Although, Article 21

3.2.1 The Due process

soil by English Colonists. US Congress incorporated Human Rights in the Constitution

be deprived without due process of law.

3.2.2 Constituent Assembly debates on Due Process

The legislative history of Article 21 is that, originally it was passed by Constituent

“liberty.” Second, the substitution of the expression “except according to procedure

to the judiciary, because it empowered judges to invalidate the legislation enacted by

liberty except according to procedure established by law…” is accepted as it is, it would

Sayed Karimuddin Kazi.17

Pandit Thakur Dass Bhargava, another member of Constituent Assembly,

well as procedural law. According to proposed amendment, whenever law is enacted by

Another member of the Constituent Assembly Shri Chimanlal Chakkubhai Shah

legislation or unnecessary interference by the judiciary in reviewing legislations.

unconstitutional. He noted that:

emergency. Therefore, it is but proper that judicary should be empowered to review

various members of the Constituent Assembly members.25 Constituent Assembly was

violate certain fundamental principles.

fundamental principles that safeguard the individual rights of a citizen. It is difficult to

“The Courts, manned by an irremovable judiciary not so sensitive to public needs

that which the Courts said it meant. 28

should be deleted and the expression ‘according to procedure established by law’ be

substituted. As it has finally emerged in Article 21 of the Constitution, the Drafting

consideration by the Assembly, in which a number of members of the House favoured

provisions of Article 22 would serve as a sufficient safeguard in the absence of a due

process of law provision in Article 21.32

3.2.3 Judicial Interpretation of Procedure Established by Law

must be jus not lex.

doctrine of reasonableness through Article 19 in to Article 21 or to literally construe the

‘procedure established by law’ as a legal frame work prescribed by legislature without

independent of the right to personal liberty. Kania, J., joined by Mukherjee, J.

legislation and not what the result of the detention is.39

requirement of reasonableness either of law or of procedure could not be super-added to

interpretation in respect of “procedure established by law" and ignored the principle of

incorporates principles of natural justice so that a law to deprive a person of

his life or personal liberty cannot be valid unless it incorporates these

principles in the procedure laid down by it.

ii. The reasonableness of the law of preventive detention ought to be judged

under Article 19.

iii. The expression ‘procedure established by law’ introduces in to India the

whether the law fulfils the requisite elements of a reasonable procedure.

this view even leading to anomalous results.44

because of the Supreme Court’s interpretation of Article 21 made in the Gopalan. It

the structure and language of the relevant constitutional provisions.

In Kharak Singh47, the constitutional validity of regulations 22848 and 23649 in

cannot be deprived on the basis of administrative direction. Obviously, Supreme Court

struck down an administrative direction of Regulation 236(b) authorizing ‘domiciliary

visits’ of police authorities in to the houses of habitual offenders as voilative of Article

Constitution. The judgement is clearly in favour of an integrated interpretation of the