The Evolving Doctrine of "Procedure Established by Law" in Indian Constitutional Jurisprudence
Introduction
Article 21 of the Constitution of India, a cornerstone of fundamental rights, declares that "No person shall be deprived of his life or personal liberty except according to procedure established by law." The phrase "procedure established by law" has been the subject of extensive judicial interpretation, evolving significantly from a literal and positivist reading to a more expansive and substantive understanding. This transformation, largely spearheaded by the Supreme Court of India, reflects the dynamic nature of constitutionalism and the judiciary's role in safeguarding individual liberties against arbitrary state action. This article seeks to trace the interpretative journey of "procedure established by law," examining its genesis, the paradigm shifts in its understanding, its multifaceted applications across various legal domains, and its enduring significance in contemporary Indian law.
The Initial Interpretation: A Positivist Approach in A.K. Gopalan
The earliest authoritative pronouncement on the meaning of "procedure established by law" came in the landmark case of A.K. Gopalan v. State of Madras (1950 AIR SC 27). The Supreme Court, by a majority, adopted a literal interpretation, holding that "procedure established by law" meant procedure prescribed by the law of the State, i.e., a validly enacted statute. The Court explicitly distinguished this phrase from the American concept of "due process of law," which involves a judicial review of the law's intrinsic fairness and reasonableness. In Gopalan, the Court opined that the framers of the Indian Constitution had deliberately chosen "procedure established by law" over "due process of law" to limit judicial interference with legislative policy. As Kania C.J. observed, "law" in Article 21 means "state-made law" and not the principles of natural justice in the abstract. Thus, as long as a law was enacted by a competent legislature and prescribed a procedure, the courts could not question its reasonableness or fairness.
This positivist approach implied that judicial review was confined to ensuring that the procedure laid down by the statute was strictly followed, and that the law itself was intra vires the legislative competence. The Court noted that Parliament could have made a law without any safeguard or any procedure for preventive detention, but such autocratic supremacy was cut down by Article 21, requiring a procedure prescribed by a validly enacted law (A.K. Gopalan v. State Of Madras, Supreme Court Of India, 1950, as per provided text). This perspective was reflected in early judicial decisions, such as M.R. Venkataraman v. Commissioner Of Police, Madras And Another (Madras High Court, 1950), where it was suggested that once a procedure is laid down by a competent legislature, it is not open to the Court to examine its propriety or reasonableness.
However, even in this early phase, the understanding of "procedure" was not entirely static. In Lachmandas Kewalram Ahuja, And Pherumal Jessaram Sangtani v. State Of Bombay (Supreme Court Of India, 1952), the Supreme Court observed that the law of procedure "regulates legal proceedings generally from its inception up to its termination and usually connotes a continuous process." The Court found that a special procedure that departed significantly from the ordinary law and was detrimental to the accused could be discriminatory. This hinted at an underlying concern for fairness, even if not explicitly framed under the "due process" rubric.
The Watershed Moment: Maneka Gandhi and the Infusion of Substantive Due Process
The restrictive interpretation of "procedure established by law" underwent a profound transformation with the Supreme Court's decision in Maneka Gandhi v. Union Of India And Another (1978 SCC 1 248). This case marked a paradigm shift, effectively overruling the narrow view adopted in A.K. Gopalan. The Court held that the "procedure" contemplated by Article 21 must not be arbitrary, fanciful, or oppressive; rather, it must be "right and just and fair."
Justice Bhagwati, articulating the majority view, established that Article 21 is not merely a procedural safeguard but also a substantive one. The Court held that the principles of natural justice, particularly audi alteram partem (the right to be heard), are an integral part of the procedure established by law. Any law depriving a person of life or personal liberty must satisfy the test of reasonableness and fairness, which are inherent in Article 14 (equality before the law) and Article 19 (protection of certain freedoms). The Court famously expounded the "golden triangle" theory, asserting that Articles 14, 19, and 21 are not mutually exclusive but are interlinked, and any state action must satisfy the requirements of all three. Thus, a procedure that is arbitrary or unreasonable would violate not only Article 21 but also Article 14.
The Maneka Gandhi judgment effectively imported the essence of substantive due process into Indian constitutional law, significantly expanding the scope of judicial review. It established that "procedure established by law" is not a mere formality but a guarantee of fair treatment by the state. This expansive interpretation has since become the bedrock of personal liberty jurisprudence in India.
Defining "Law" and "Established" within the Doctrine
The term "law" in "procedure established by law" has consistently been interpreted to mean law enacted by a competent legislative body. In State Of Rajasthan v. Bundi Electric Supply Co. Ltd., Bundi (Rajasthan High Court, 1969), it was observed that "A law must follow the customary forms of law-making and must be expressed as a binding rule of conduct." This implies a formal legislative process. The Jammu and Kashmir High Court in Harbans Singh Ranial v. State Of Jammu And Kashmir (1998) reiterated this, stating that "authority of law" would mean law enacted by the Legislature, and an executive order would fall outside this scope, referencing A.K. Gopalan for "procedure established by law" meaning "enacted law."
The word "established," as noted in A.K. Gopalan by referring to dictionary meanings, signifies something "to fix, settle, institute or ordain by enactment or agreement." While S. Azeez Basha And Another v. Union Of India (Supreme Court Of India, 1967) discussed various meanings of "establish" in a different constitutional context (Article 30(1)), it illustrates the judicial practice of interpreting constitutional terms based on context and intent, reinforcing that "established" implies a deliberate legislative act of prescribing a procedure.
Expanding Horizons: Manifestations of Fair Procedure Post-Maneka Gandhi
The principles laid down in Maneka Gandhi have permeated various aspects of law, leading to a broad and rights-affirming interpretation of "procedure established by law."
Right to Life with Human Dignity and Livelihood
The Supreme Court, in Francis Coralie Mullin v. Administrator, Union Territory Of Delhi And Others (1981 SCC 1 608), expanded the meaning of "life" in Article 21 to include the right to live with human dignity, encompassing basic necessities and faculties. Any procedure affecting this right must be fair. Subsequently, in Olga Tellis And Others v. Bombay Municipal Corporation And Others (1985 SCC 3 545), the Court held that the right to livelihood is an integral part of the right to life under Article 21. Therefore, no person can be deprived of their livelihood except according to a procedure that is just, fair, and reasonable. However, this does not extend to an absolute right to employment by the state in all circumstances. For instance, in Butu Prasad Kumbhar And Others v. Steel Authority Of India Ltd. And Others (1995 SUPP SCC 2 225), the Court held that where land was acquired under the Land Acquisition Act (a procedure established by law) and compensation was paid, the obligation of the State to ensure livelihood did not extend to providing employment to every member of each displaced family, especially when one member per family had been offered employment.
Procedural Safeguards in Criminal Justice
The requirement of a fair, just, and reasonable procedure has had a profound impact on criminal jurisprudence.
Arrest and Detention
The Supreme Court in Manoj v. State Of M.P. (1999 SCC 3 715) (and its counterpart Manoj v. State Of Madhya Pradesh, Supreme Court Of India, 1999) emphasized that statutory procedures for arrest and detention, such as those under Sections 57 and 167 of the Code of Criminal Procedure, 1973 (CrPC), are crucial components of the "procedure established by law." These sections mandate the production of an arrested person before a Magistrate within 24 hours and regulate further detention. The Court linked these provisions directly to the constitutional mandates under Articles 21 and 22, underscoring that any deviation would vitiate the detention.
Speedy Trial and Access to Justice
In Hussainara Khatoon And Others (Iv) v. Home Secretary, State Of Bihar, Patna (1980 SCC 1 98), the Supreme Court declared that the right to a speedy trial is an essential part of the fundamental right to life and personal liberty enshrined in Article 21. A procedure that does not ensure a reasonably expeditious trial cannot be regarded as "reasonable, fair or just." Furthermore, the Court held that the right to free legal aid for an accused person who is too poor to afford a lawyer is an essential ingredient of such a procedure. This was reiterated in State (Delhi Admn) v. Balroop Singh (Delhi High Court, 1993), which cited Hussainara Khatoon to affirm that free legal service is an "unalienable element of ‘reasonable, fair and just’ procedure."
Rights of Prisoners
The protective ambit of Article 21 extends to those incarcerated. In Sunil Batra v. Delhi Administration And Others (1979 SCC CR 0 155) and Sunil Batra (Ii) v. Delhi Administration (1980 SCC 3 488), the Supreme Court held that prisoners are not stripped of their fundamental rights, though these may be subject to certain restrictions necessitated by incarceration. The Court ruled that procedures like solitary confinement or the imposition of bar fetters must be strictly regulated by law and cannot be arbitrarily imposed. Any such procedure must be fair, just, and reasonable, and not dehumanizing. The Court in Francis Coralie Mullin (1981) also emphasized that restrictions on detenus, such as those concerning interviews with family and lawyers, must be reasonable and not unduly impede fundamental rights.
Capital Punishment: Heightened Procedural Scrutiny
In the context of capital punishment, the Supreme Court has insisted on stringent procedural safeguards. In Bachan Singh v. State Of Punjab (1980 SCC 2 684), while upholding the constitutionality of the death penalty, the Court emphasized that the sentencing procedure under Section 354(3) of the CrPC, which requires "special reasons" for imposing the death sentence, must be fair and just. This led to the formulation of the "rarest of rare" doctrine, ensuring that the death penalty is not arbitrarily imposed. Further, in Mithu v. State Of Punjab (1983 SCC 2 277), the Court struck down Section 303 of the Indian Penal Code, 1860, which mandated the death penalty for murder committed by a life convict, as unconstitutional. It was held that a procedure that eliminates judicial discretion in sentencing and mandates death is arbitrary, oppressive, and violative of Articles 14 and 21.
Procedural Fairness in Administrative Action
The principles of fair procedure are not confined to criminal law but extend to administrative actions as well. In S. Malla Reddy v. M. Vijayalakshmi And Others (2005 SCC ONLINE AP 250), the Andhra Pradesh High Court emphasized that cancellation of an authorization (fair price shop dealership) could not be done without following the principles of natural justice, including a show cause notice and an opportunity to be heard, terming this as "procedure established in law." Similarly, in Rang Birajgi Sarees (P) Ltd. v. Additional Commissioner of Customs (2011 ELT CAL 265 26), the Calcutta High Court held that customs authorities must adhere to the procedure established in law (Section 150 of the Customs Act, 1962, regarding sale of goods) and deprecated selling goods without notice to the owner or public auction. Failure to follow established procedure can render administrative actions invalid, as noted in BRAHMA NAND SINGH v. STATE OF BIHAR & ORS (Patna High Court, 2010), where an order of punishment was deemed "devoid of procedure established in law" due to a flawed inquiry process.
Right to Travel Abroad
The right to travel abroad, recognized as a facet of personal liberty under Article 21 in Maneka Gandhi, continues to be protected by the requirement of fair procedure. In YUSHIKA VIVEK GEDAM THR. HER NATURAL GUARIDIAN MOTHER PRERANA. V. GEDAM v. UNION OF INDIA THR. THE MINISTRY OF EXTERNAL AFFAIRS AND ORS (Bombay High Court, 2025 - cited as per provided text, likely a recent judgment), the Bombay High Court reiterated that no person can be deprived of the right to travel abroad except according to procedure established by law, which must be fair, just, and reasonable. Similarly, in Augustine Pappaiya v. The FRRO (Madras High Court, 2022), the Madras High Court affirmed this constitutional right, emphasizing that deprivation must strictly adhere to legally established procedures.
Judicial Enforcement and the Principle of Legality
The judiciary plays a crucial role in ensuring that the state adheres to the "procedure established by law." In Rajeev Kumar v. Central Bureau Of Investigation (Calcutta High Court, 2019), the Court, citing A.R. Antulay v. R.S. Nayak, mandated that "the procedure established in law should be strictly complied with and should not be departed from to the disadvantage or detriment of any person." This underscores the principle of legality, where state actions must have a clear legal basis and follow prescribed procedures.
However, judicial intervention has its limits. As observed in Natho Mal v. State Of U.P And Another Opposite Parties. (Allahabad High Court, 1993), while courts can use writs to undo actions violating constitutional guarantees, their authority is limited by constitutional provisions, and they "cannot draft laws and enforce them in the face of already existing laws even if there be certain omissions in the existing laws of procedure." The judiciary's role is to interpret and enforce the law, ensuring its consonance with the Constitution.
The holistic reading of fundamental rights, influenced by cases like Rustom Cavasjee Cooper v. Union Of India (1970 SCC 1 248) (the Bank Nationalization case), which emphasized the interconnectedness of fundamental rights, paved the way for the expansive interpretation of Article 21 in Maneka Gandhi. This ensures that any procedure established by law must also withstand scrutiny under other relevant fundamental rights, particularly Articles 14 and 19.
Conclusion
The journey of "procedure established by law" under Article 21 of the Indian Constitution is a testament to the judiciary's role as the sentinel on the qui vive. From a narrow, positivist interpretation in A.K. Gopalan, which equated it with any legislatively prescribed procedure, the doctrine has evolved dramatically, particularly since the Maneka Gandhi decision. Today, "procedure established by law" signifies a procedure that is fair, just, reasonable, and non-arbitrary, effectively incorporating principles of natural justice and substantive due process.
This dynamic interpretation has ensured that the state's power to deprive individuals of their life or personal liberty is subject to rigorous constitutional scrutiny, thereby strengthening the rule of law and protecting fundamental human rights. The doctrine continues to be a vital tool in ensuring that legislative and executive actions remain within the bounds of constitutional morality and fairness, serving as a robust bulwark against arbitrary state power in India.