Procedure Established by Law
vs
Due Process of Law
Procedure Established by Law
A law is valid if it has been duly
enacted by the legislature and has
followed the correct procedure.
Hence, a person can be deprived of
his personal life and liberty according
to the procedure established by law.
Flaw in the Doctrine:
If Parliament passes a law, then the
life or personal liberty can be taken
off according to the provisions and
procedure established by that
particular law. Hence it does not seeks
law to be Just, fair and non arbitrary.
Due Process of Law
This doctrine not only checks if the
law takes away personal life and
liberty of a person but also concerns
that whether the law is just fair and
non arbitrary.
This doctrine was enshrined in the
Indian Constitution by the Hon’ble
Supreme Court of India by the
Judgment of Maneka Gandhi vs Union
of India (1978 AIR 597).
 AK Gopalan vs State of Madras
1950 AIR 27
It was a significant decision because it
represented the first case where the court
meaningfully examined and interpreted key
fundamental rights enlisted in the constitution
including Articles 14, 19 and 21. A writ of habeas
corpus was filed. The contention was whether
under this writ and the provisions of THE
PREVENTIVE DETENTION ACT, 1950, there was a
violation of his fundamental rights which were
Article 14, 19, 21 and 22.
• Judge restricted the scope of fundamental rights
and by reading them in isolation of article 21 and
22 which provided guidelines for preventive
detention. Justice Kania said that the term due
process prevented the courts from engaging in
substantive due process analysis in determining
the reasonableness of the level of process
provided by the legislature.
• Fazal Ali dissented the Judgment by saying that
Article 21 includes the higher principle of natural
law and justice and not mere statutory
provisions.
So in CONCLUSION Gopalan case held
two major points:
• 19, 21 and 22 are mutually exclusive. Art 19
was to not apply to a law affecting personal
liberty to which art 21 applies.
• A “LAW” affecting life and liberty could not be
declared unconstitutional merely because it
lacked natural justice or due procedure.
Kharak Singh v State of Uttar Pradesh
1963 AIR 1295
• The petition under Article 32 of the Constitution of
India challenged the constitutional validity of Chapter
20 of the Uttar Pradesh Police Regulations and the
powers conferred upon police officials by its provisions
on the ground that they violate the rights guaranteed
to citizens by Articles 19(1)(d) and 21 of the
Constitution of India. On the basis of the accusations
made against him, he had police constables entering
his house and shout at his door, waking him up in the
process. On a number of occasions they had compelled
him to accompany them to the station an had also put
restrictions on him leaving the town.
• The judges made a breakthrough while interpreting and
finding the connection between article 19 and 21 by remarking
that:

• If a person’s fundamental right under Article 21 is infringed,

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 within the meaning of
Article 19(2) of the Constitution. But in this petition no such
defense is available, as admittedly there is no such law.
• So the petitioner Kharak Singh could legitimately plead that
his fundamental rights, both under Articles 19(1)(d) and 21,
were infringed by the State. Hence, on these grounds the
petitioner Kharak Singh was entitled to issue of a writ
of mandamus directing the respondent- State of Uttar
Pradesh- not to continue visit to his house.
 Rustom Cavasjee Cooper vs Union Of India
1970 AIR 564
• On 19.07.1969, then Vice President to India VV Giri
promulgated the Banking Companies (Acquisition and Transfer
of Undertakings) Ordinance 8 of 1969 in exercise of power
conferred by Art 123(1) of the Constitution of India. This
ordinance had the effect of nationalization 14 private sector
banks having a deposit base of over INR 50 Crore and thereby
vesting the ownership of the private banks with the
government.
• 21.07.1969, petitions challenging the competence of the
President to promulgate the Ordinance were filed in the
Supreme Court.
• Before the Court could have initiated this case, the Parliament
enacted on 09.08.1969 as the Banking Companies (Acquisition
and Transfer of Undertakings) Act (22 of 1969).
 Contentions Raised
• That the ordinance made under Art 123(1) of the
Constitution was invalid, because the condition
precedent to the exercise of the Ordinance making
does not exist.
• The Parliament was not having any legislative power to
enact the ordinance and consequently made the act
and that the parliament encroached upon the State List
in the Seventh List of the Constitution.
• The said Act and Ordinance was against Article 14,
19(1)(f), 19(1)(g), and Article 31(2) and thus the Act
was held invalid.
• Against Article 301.
 Judgment

• By a Majority of 10:1, the Supreme Court of India

struck down the Banking Companies (Acquisition
and Transfer of Undertaking) Act, 1969 mainly on
the ground that the proposed compensation to
be provided to the 14 banks failed the test of Art
31(2).
• Thereafter, the Banking Companies (Acquisition
and Transfer of Undertaking) Act, 1970 was
enacted by the Parliament but with inclusion of a
specific amount of compensation to be paid to
each of the 14 banks.