“Law is above all and everyone is subject to the law. Constitutionalism” is a foundation for rule of law which is due process of a law which is evolved from the customary rules of the common law.”[i]
Introduction
The idea of Dicey of rule of law is the essence of individual liberty, dignity and rights. Indian rule of Law is following Dicey’s rule of law. In the Indian context, the only difference lies in the discretionary power as Dicey’s principle left no place for discretionary power but Indian rule of law allow the same. In India, there is a check and balance system to regulate the functioning of pillars of the legal system.
In a democratic country like India, it is its basic attribute to guarantee the right to life and personal liberty. In furtherance of that, Article 21 of Indian Constitution visualizes the concept of rule of law in India which includes “procedure established by law”. The procedure established by law is synonymous to the due process of law which is emerged from the American constitution. The expression Procedure established by law substantially state about the procedure so adopted by the state which has legal support. Though the expression used in the Indian constitution is the procedure established by law, yet it is similar to due process of law which states that the procedure so followed must be fair just and equitable. The basic premise of due process of law has been developed in India by judicial Interpretations.
The procedure established by law under the Constitution
The concept of procedure established by law has been adopted from Japan. The expression ‘procedure established by law’ can be defined as the procedure so established by the law of the state. The expression ‘procedure established by law’ has been incorporated into Article 21 of the Indian Constitution which entitles a person to enjoy the right to life and personal liberty. The concept must be interpreted in the context of the article itself.
This concept provides for the following of a procedure which has been backed by Law so enacted by the legislature or the concerned body is valid. The purpose behind the inclusion of expression ‘procedure established by law’ in the right to life and personal liberty is that an absolute right can’t be given to a person while exercising the right to life and personal liberty. It stipulates that the right of the person would be subject to the ‘procedure established by law’. The Law so provides for the procedure which has no uniform standard to determine the procedure.
Whether the procedure is just, fair or equitable, is to be decided by judiciary considering the facts and circumstances of the case. Such a procedure must be under the law for ensuring that it is followed in a just and fairway.
Strict and Narrow interpretation of procedure established by law
After the enforcement of the constitution, the Supreme Court has received the opportunity to interpret the expression “procedure established by law” in the case of A.K. Gopalan v. State of Madras,commonly-known as Gopalan Case where the validity of the Preventive Detention Act, 1950 was in question. The petitioner, in this case, was detained, thereby he contended that right to freedom of movement which is enshrined under Article 19 as well as under Article 21 as personal liberty, has been infringed.
The supreme court by majority held that The expression Procedure established means the law made by the state, such law must be followed irrespective of the fact that such law implies the element of just, fair or equity in it or not. Therefore the court was reluctant to apply the American principle of due process of law in the Indian context. Further, the Hon’ble Apex Court held that the word ‘law’ used in Article 21, is not used in the sense of jus lex i.e. just law.
Therefore, the very first interpretation of the Apex court concerning the expression procedure established by law was very strict, literal and narrow which established that the protection of Article 21 is available against the executive only, not against legislative.
In Kharak Singh v. State of U.P., The Apex court upheld that the executive action can not deprive a person of his fundamental right to life and personal liberty. However, the Hon’ble court applied the Gopalan approach and held that the law under article 21 cannot deprive a person of his right to life unless the law satisfies the test of reasonable restriction in light of Article 19. However, the separate judgment was given by the Subba Rao, J., observed that law which deprives a person of his right to life and personal liberty must satisfy the test of Article 19.
Eventually, In Satwant Singh Sawhney v. Union of India, the minority judgment of Subba Rao, J., in Kharak Singh case becomes majority judgment and it was held by the court that the procedure which has been so established to deprive a person of his right to life and personal liberty, can be tested even under Article 14 of the Constitution, to ensure the justness of the procedure. By this judgment, the new trend has begun which was further strengthened in R.C. Cooper v. Union of India, in which it was made crystal clear by the apex court that the procedure so followed under Article 21 must be justifiable. Although, there was a slight shift in the approach of the Supreme Court of dealing with the expression procedure established by law from Gopalan case to cooper case, yet the approach needed more liberty.
The change in Interpretation of procedure established by law: Maneka Gandhi case
The Indian Judiciary adopted finally the liberal interpretation of the term ‘Procedure established by law’ and even tried to accept it as synonymous with ‘Due process’. The Landmark judgment was delivered by the Hon’ble Apex court in the year 1978 in Maneka Gandhi v. Union of India case.
The petitioner, in this case, questioned the constitutional validity of Section 10(3) (c) of the Passport Act, 1967. Under that section, the authority was conferred upon the officials to impound the passport of the person on the ground of public interest. It was contended by the petitioner that this section gives them enormous power to impound the passport discretionarily without following the just and fair procedure.
The above matter was heard by seven judges bench of the apex court. The court held that the procedure established by law must be fair, just and reasonable. The court further applied the principle of Natural justice in the context of fundamental rights guaranteed to the citizens by the Indian Constitution. It was observed by the Apex court that the right to life and personal liberty is intrinsic to oneself. Therefore, the procedure which deprives a person of his liberty must not be unreasonable and arbitrary. The procedure must be fair and just.
The Court even held that though the expression procedure established by law is used in the Indian constitution, yet it is synonymous with the due process of law which implies the just and fair law. In this case, the Hon’ble court even accepted the interdependence of fundamental rights. As the learned judges observed that, the principle of reasonableness and non-arbitrariness is enshrined under Article 14, 19 and 21 of the Indian Constitution.
Evolution of procedure established by law: After Maneka Gandhi case
The interpretation of the procedure established by law has been shifted from strict and literal to the wide and liberal by the landmark judgment of Maneka Gandhi case. The Maneka Gandhi case was the basic foundation of the principle of natural justice in India. The journey of liberal interpretation of the expression procedure established by law has begun from the Maneka Gandhi case only.
Procedure for prisoners – In Sunil Batra v. Delhi Administration, the constitutional validity of Section 30 and Section 56 of the Prisons Act, 1894 was challenged on the ground that the ‘solitary confinement’ imposed upon prisoners who were under sentence of death as violative of Articles 14, 19, and 21 of the Constitution.The Court held that solitary confinement of such convicts violated Article 21. Thus, the court observed that the procedure which is to be followed even in prison must be just, fair and reasonable. Further, the court has opined that, though the due process of law has not been explicitly stated in the Indian constitution, but it has been so accepted in the maneka Gandhi case.
Fair Trial – Over a while, the principle of procedure established by law has been evolved as a basis of fair and speedy trial. There was the case where the liberty of accused person has been infringed and the court has observed that such personal liberty cannot be taken away until there is a fair and just procedure for depriving such liberty. Further, the principle of fair and just procedure must be followed even in a trial. A fair trial has been deemed as the basis of fair procedure which must be followed to protect the right to life and personal liberty incorrect way.
Speedy Trial – In Hussainara Khatoon v. Home Secretary, State of Bihar, the Supreme Court upheld the right to a speedy trial as a fundamental right which guarantees life and personal liberty. Further, it has been observed that Speedy trial is the essence of criminal justice. In pursuance of that, the speedy trial is to be read following the procedure established by law which must be fair, just and equitable.
Right of Arrested Person – The Supreme Court has asserted in Joginder Kumar v. State of U.P., that the procedure established by law has been evolved to include the Accused person’s right to know about his arrest and grounds thereof. This implies the fair process.
Procedure for execution of death penalty – The procedure for the execution of the death penalty must be fair and just. It is a settled principle that the death penalty must be given in the rarest of the rare case. It has been further established that unreasonable delay in the execution of the death penalty would also lead to the unfair and unjust procedure so enshrined under Article 21 of the Indian Constitution.
Conclusion
From the aforementioned discussion, it is crystal clear that the expression procedure established by law has been incorporated into the Indian constitution to secure justice. This expression has been regarded as the due process of law principle of America. This idea behind this principle is to ensure that just and fair legal procedure is followed to protect the right to life and personal liberty of a person.
Article 21 of the Indian Constitution explicitly mentioned that every person has the right to life and personal liberty, provided that it can be taken away by the procedure so established by law. The question as to the interpretation of this expression has been raised various times before the court of justice and thus court started from strict interpretation to liberal interpretation. The journey of interpretation has clarified the position of the procedure established by law in the Indian Context.
Through the judicial approach, the Indian procedure established by law has been brought in consonance with the American principle of due process of law.
Questions
- What is the basis of procedure established by Law?
The idea of Dicey of rule of law is the essence of individual liberty, dignity and rights. Indian rule of Law is following Dicey’s rule of law. In the Indian context, the only difference lies in the discretionary power as Dicey’s principle left no place for discretionary power but Indian rule of law allow the same. In India, there is a check and balance system to regulate the functioning of pillars of the legal system.
2. Whether the interpretation of procedure established by Law has been liberal from the beginning?
After the enforcement of the constitution, the Supreme Court has received the opportunity to interpret the expression “procedure established by law” in the case of A.K. Gopalan v. State of Madras, commonly-known as Gopalan Case where the validity of the Preventive Detention Act, 1950 was in question. The petitioner, in this case, was detained, thereby he contended that right to freedom of movement which is enshrined under Article 19 as well as under Article 21 as personal liberty, has been infringed.
3. What is the significance of Maneka Gandhi case in the interpretation of the procedure established by Law?
In nutshell, the right to life and personal liberty is a fundamental right enshrined under Article 21 of Indian constitution, which requires wide interpretation to include the rights intrinsic to one’s life and liberty, the only exception where such right can be taken away is through the procedure established by law. This expression has been liberally interpreted by the Apex court in the Maneka Gandhi case wherein it has been established that the procedure for depriving a person of personal liberty has to fulfil the litmus test of reasonableness and fairness.
4. What is the scope of procedure established by Law after the Maneka Gandhi case in India?
The interpretation of the procedure established by law has been shifted from strict and literal to the wide and liberal by the landmark judgment of Maneka Gandhi case. The Maneka Gandhi case was the basic foundation of the principle of natural justice in India. The journey of liberal interpretation of the expression procedure established by law has begun from the Maneka Gandhi case only.
References –
[i] A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 110 (Indianapolis: Liberty Classics, 8th ed. 1982).
[i] V.N. SHUKLA, CONSTITUTION OF INDIA 215 (Lucknow: Eastern Book Company, 12th ed. 2013).
[ii] Tanuj Agarwal, Rule Of Law V. Rule Of Men: An Analysis Of Parliamentary Sovereignty Vis-A-Vis Article 21, MANUPATRA, file:///F:/ILP/3b0fa806-17a3-4dd7-8634-331254c2146c.pdf
[iv] A.I.R. 1950 S.C. 27.
[v] M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1183 (Nagpur: Lexis Nexis Butterworths Wadhwa, 6th 2010)
[vi] 1963 AIR 1295
[vii] AIR1963 SC 1295
[viii] (1967) 3 S.C.R. 525.
[ix] A.I.R. 1970 S.C. 564
[x] 1978 AIR 597
[xi] Ayush Srivastava, Protection of Life and Personal Liberty: Sundry Facets, MANUPATRA file:///F:/ILP/cf4efeac-c3d6-48d7-adea-477bbee981c5.pdf
[xii] (1978) 4 SCC 494.
[xii] Sidhartha v Vashisht @ Manu Sharma v. State (NCT of Delhi). AIR 2010 SC 2352.
[xiii] AIR 1979 SC 1360.
[xiv] (1994) 4 SCC 260.
[xv] Bachan Singh v. State of Punjab AIR 1980 SC 898.
[xvi] Deena v. Union of India, AIR 1983 SC 1155.
