Procedure Established by Law v. Due Process of Law
- Legal Journey
- 51 minutes ago
- 5 min read
Few constitutional phrases have shaped Indian freedom as much as the selection between the terms “procedure established by law” and “due process of law.” These doctrines, though separated by only a few words, represent fundamentally different visions of the relationship between the State and the individual.
In question is a simple yet unsettling question: Is it enough that the State follows a law, or must the law itself be fair? The answer determines the degree of ease with which individual freedom can be deprived, the extent of the authority that courts have to challenge the legislative wisdom, and whether constitutional rights are practical safeguards, or just mere formalities.
The Indian Constitution deliberately chose procedure established by law, avoiding the American model of due process in favour of legislative supremacy. However, over time, this choice has transformed through constitutional interpretation. Without altering a single word of Article 21, the Indian courts have infused it with the very safeguards the framers once declined to adopt.
Table of Contents 💻
What Is “Procedure Established by Law”?
The phrase “Procedure Established by Law” appears in Article 21 of the Indian Constitution:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
Under this doctrine:
If a law is validly enacted by the legislature, and
The procedure prescribed by that law is followed, then deprivation of life or personal liberty is constitutionally permissible.
Crucially, under this doctrine, the courts do NOT examine whether the procedure itself is fair, just, or reasonable. The ONLY examination is whether the law exists and has it been followed.
Why the Constituent Assembly Chose This Phrase
The Constituent Assembly moved away from “due process of law” largely out of concern that:-
It may allow excessive judicial interference with legislative policy, particularly in matters of social and economic reform.
Influenced by the American experience during the Lochner era and anxious about courts obstructing welfare and property reforms in a fragile post-Independence context,
India was a new independent nation which required social and economic reform through legislative flexibility.
“Procedure established by law” ended up being the pragmatic compromise adopted by the Constituent Assembly, whose motivation was not necessarily a denial of due process as a value of constitutional principles, but rather a mixture of political caution and institutional anxiety.
What Is “Due Process of Law”?
Due Process of Law, as developed in the United States, requires that:
The law itself must be fair, just, and reasonable, and
The procedure under the law must also be fair and non-arbitrary.
Courts applying due process can:
Examine the substance of a law, not just its form;
Strike down legislation that is unjust, unreasonable, or oppressive;
Act as strong guardians of individual liberty.
This doctrine places judicial scrutiny above legislative supremacy.
The Early Indian Position: The Era of A.K. Gopalan
In the early years of Independence, Indian courts adopted a strict, literal interpretation of Article 21.
The Supreme Court held that:
Article 21 ONLY required ANY procedure prescribed by law;
Courts could NOT question the fairness or reasonableness of that procedure;
Fundamental rights were watertight compartments, not interconnected.
This approach heavily favoured the State and allowed preventive detention laws to survive constitutional scrutiny with minimal interference.
The Turning Point: Maneka Gandhi and the Silent Revolution
This changed with Maneka Gandhi v. Union of India (1978).
The Court held that:
Procedure prescribed by law under Article 21 must be “just, fair, and reasonable”;
An arbitrary or oppressive procedure is NO procedure at all;
Articles 14, 19, and 21 are interconnected, not isolated.
The court imported the essence of “due process” into Article 21 without changing the constitutional text.
India officially maintained the already existing “procedure established by law” but in practice adopted the due process protections.
India’s Current Position: Due Process Without the Name
Today, Indian constitutional law reflects a hybrid model:
Aspect | Earlier View | Current Position |
Nature of procedure | Any enacted procedure | Must be fair, just, reasonable |
Judicial review | Limited | Substantive and procedural |
Liberty protection | Weak | Strong and evolving |
Role of courts | Passive | Active rights guardians |
Courts now routinely assess:
Arbitrariness
Proportionality
Reasonableness
Natural justice
All hallmarks of due process.
Why This Debate Still Matters
This distinction is not merely academic, it has real consequences.
It affects:
Preventive detention laws
Criminal procedure and bail
Death penalty jurisprudence
Surveillance and privacy
Executive discretion
Whenever a court asks whether a law or procedure is fair, it is invoking due process values, even if the Constitution does not say so explicitly.
Criticism of the Due Process Turn
While widely celebrated, this evolution has not escaped criticism.
Opponents argue:
Courts have assumed excessive power
Judicial subjectivity risks inconsistency
Democratic legitimacy of unelected judges is weakened
Supporters respond that:
Liberty cannot depend solely on legislative goodwill
Constitutional morality demands active judicial protection
Fundamental rights lose meaning without enforceability
Conclusion
India began with “procedure established by law” to preserve legislative supremacy and limited judicial scrutiny over personal liberty. Judicial interpretation, however, gradually reoriented Article 21 by insisting that any procedure authorising deprivation of life or liberty must be just, fair, and reasonable. This interpretive shift without any textual amendment reflects a living Constitution, the capacity of the Constitution to respond to lived realities and structural injustice.
Consequently, today Article 21 stands not as a mechanical safeguard dependent solely on enacted procedure, but as a substantive safeguard against arbitrary, unreasonable, and oppressive state action, no matter how neatly written into law.
Frequently Asked Questions
Q) Why did courts link Articles 14, 19, and 21 together?
A) To prevent the State from bypassing liberty protections by complying with form alone. This linkage ensures equality, freedom, and life operate as a unified safeguard.
Q) Is fairness under Article 21 an objective standard?
A) Not entirely. Fairness is context-specific and judicially determined, which introduces discretion and sometimes inconsistency.
Q) Can the Parliament reverse the due process interpretation through legislation?
A) Ordinary legislation CANNOT override constitutional interpretation. ONLY a constitutional amendment, subject to the basic structure doctrine, could attempt such a reversal.
Q) Does “procedure established by law” still exist in its original form today?
A) Formally yes, the text of Article 21 remains unchanged. Substantively, courts NO longer apply it mechanically and insist on fairness, reasonableness, and non-arbitrariness.
Q) Has India effectively amended the Constitution through judicial interpretation?
A) No textual amendment occurred, but interpretation expanded Article 21’s scope. This is viewed as constitutional evolution rather than formal amendment.
The debate between legislative supremacy and judicial fairness is still unfolding. Where do you stand?
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