Due Process in the Indian Constitution

The concept of “due process of law” is essential in ensuring that individuals are treated fairly and justly under the law. While the phrase is not explicitly mentioned in the Indian Constitution, its principles have been incorporated through judicial interpretations, particularly concerning Article 21. 

Over the years, the Indian judiciary has made it clear that due process is not just about the existence of a law but also about its fairness, reasonableness, and adherence to principles of justice. 

Meaning of Due Process

Due Process refers to the legal principle that ensures fairness and justice in the treatment of individuals by the law. It guarantees that no person can be deprived of life, liberty, or property without following a legally established procedure that is fair, transparent, and non-arbitrary. 

Due process encompasses both substantive due process, which checks whether laws themselves are reasonable, and procedural due process, which ensures that legal procedures are followed properly, giving individuals a fair opportunity to present their case. It is a fundamental protection against unjust or discriminatory state actions.

The Origin and Evolution of Due Process

The principle of due process has a long history and is deeply embedded in the common law tradition. It began with the Magna Carta in 1215, a foundational document in English law. The Magna Carta’s Clause 39 proclaimed that no free man could be deprived of his life or liberty except by the lawful judgement of his peers or by the law of the land. This idea of ensuring that law is followed properly laid the groundwork for the modern understanding of due process.

In the United States, due process was formally adopted into the Constitution through the Fifth and Fourteenth Amendments. The Fifth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law, while the Fourteenth Amendment extended this protection to state action. The American interpretation of due process is more developed and includes both substantive due process (the substance or fairness of a law) and procedural due process (the fairness of the processes used to enforce the law).

When drafting the Indian Constitution, the framers were mindful of these principles, but they chose not to adopt the phrase “due process of law” explicitly. Instead, they used the phrase “procedure established by law” in Article 21, which guarantees that no person shall be deprived of their life or personal liberty except according to the procedure established by law.

Textual Position of Due Process in the Indian Constitution

Unlike the United States, where the term “due process” is enshrined in the Constitution, the Indian Constitution does not explicitly mention “due process of law.” The text of Article 21 reads:

“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”

This means that an individual cannot be deprived of life or liberty unless a law exists that authorises such deprivation. At first glance, it appears to be a narrow provision, as it does not directly imply that the law must be just or reasonable. However, over time, the Indian judiciary has interpreted Article 21 to include certain elements of due process, ensuring that the law not only exists but is also fair and reasonable.

While the Constitution does not contain the term “due process,” the courts have read it into Article 21 by interpreting “procedure established by law” as a guarantee that the procedure will be just, fair, and non-arbitrary. The courts have done this by invoking the spirit of Articles 14 (Right to Equality) and Article 19 (Right to Freedom of Speech and Expression) to ensure that laws are not just enacted but are also applied in a manner that is fair and just to the individual.

Debates During the Drafting of the Constitution

The framers of the Indian Constitution were aware of the due process principle but chose not to incorporate the exact language used in the United States Constitution. The main reason for this was the fear that using the term “due process” would give too much power to the judiciary, allowing it to override laws passed by the legislature. This would potentially lead to instability in the legal system and delay justice, as feared by Justice Felix Frankfurter of the U.S. Supreme Court.

Dr. B.R. Ambedkar, the principal architect of the Constitution, opted for the phrase “procedure established by law” to make it clear that as long as there was a valid law in place, it could be used to deprive an individual of their life or liberty. The fear was that an open-ended guarantee like “due process” might result in too much judicial intervention.

At the same time, the framers wanted to ensure that there would be adequate safeguards against arbitrary and unjust laws. Thus, while “due process” was excluded from the text, the idea was preserved through judicial interpretation over the years.

Key Judicial Developments on Due Process in India

Over the years, Indian courts have developed the concept of due process through various landmark rulings. The most notable cases have shown how the judiciary has interpreted Article 21 in a manner that goes beyond the literal text of the Constitution.

A.K. Gopalan v. State of Madras (1950)

In this landmark case, A.K. Gopalan, a communist leader, challenged his preventive detention under the Preventive Detention Act of 1950. He argued that the Act violated his personal liberty under Article 21 of the Constitution. However, the Supreme Court held that “procedure established by law” was to be interpreted literally. 

This meant that as long as there was a law providing for preventive detention, it was constitutional, and the courts could not review whether the law itself was fair or just. This judgement was a significant limitation on the scope of Article 21 and the idea of due process in India.

Rustom Cavasjee Cooper v. Union of India (1970)

In this case, the Supreme Court overruled the A.K. Gopalan decision. The Bank Nationalisation case marked the first time that the Supreme Court introduced the concept of “basic structure” in Indian constitutional law, which is similar to substantive due process in the U.S. 

The Court held that certain fundamental rights are so essential to the structure of the Constitution that they cannot be altered by any amendment. This judgement paved the way for the broader interpretation of due process in India, ensuring that the law must not only be procedurally valid but also just and reasonable.

Maneka Gandhi v. Union of India (1978)

The Maneka Gandhi v. Union of India case marked a turning point in the interpretation of Article 21. Maneka Gandhi, a journalist, challenged the impounding of her passport under the Passport Act of 1967. The Supreme Court ruled that the procedure under Article 21 must be “just, fair, and reasonable” and not arbitrary. It held that “procedure established by law” should be interpreted as requiring that laws affecting life and liberty must meet certain standards of fairness and justice. 

This case introduced the idea that the law must not only follow the correct procedure but also adhere to principles of non-arbitrariness and reasonableness. This judgement effectively brought the due process doctrine into the Indian constitutional framework.

K.S. Puttaswamy v. Union of India (2017)

The Aadhaar case in 2017 reaffirmed the idea of due process by stating that the “due process” principle was intentionally omitted by the framers of the Constitution. The judgement noted that “procedure established by law” had evolved to include principles of natural justice, fairness, and reasonableness. 

This case clarified that Article 21 guarantees the protection of life and liberty, and that any law affecting these rights must not be arbitrary, but must adhere to the principles of proportionality, transparency, and necessity.

Key Features of Due Process in India Today

The Indian judiciary has crafted a distinct form of due process, influenced by common law principles and constitutional ideals. The following are the key features of due process in India:

1. Substantive Due Process: The law must be just, fair, and reasonable, not arbitrary. The courts assess whether the law infringes upon fundamental rights without justification.
2. Procedural Due Process: Any law that deprives an individual of life or liberty must follow a fair procedure. This includes giving a person the right to be heard, the right to a reasoned decision, and the right to appeal in some cases.
3. Interlinking with Articles 14 and 19: Articles 14 (Right to Equality) and Article 19 (Freedom of Speech and Expression) are intertwined with Article 21. A law depriving an individual of their life or liberty must be fair, non-arbitrary, and not discriminatory.
4. Basic Structure Doctrine: The basic structure of the Constitution cannot be altered by Parliament, even through amendments. Laws or amendments that violate this basic structure may be struck down by the judiciary.

Conclusion

Although the Indian Constitution does not explicitly mention “due process of law”, the Indian judiciary has, through judicial interpretations, ensured that principles of fairness, justice, and reasonableness govern the deprivation of life or liberty. Over the decades, through key judgements, the Supreme Court has developed Article 21 to include substantive and procedural due process, ensuring that laws affecting fundamental rights adhere to these principles. 

The principle of due process in India is now an integral part of the constitutional framework, protecting individuals against arbitrary state action and ensuring that the rule of law prevails.