Procedure established by law and due process of law’: Analysing India and the USA’s scenario

This manuscript is written and curated by Priya Kumari, LLM Student, National Law University, Jodhpur


Constitution, the guiding light of citizens and officials has been protecting and defending rights since ages. Whether it’s a written document or unwritten, the preservation of fundamental rights of its citizens has been the prime concern of a Constitution. But how does it perform this function? India uses the phraseology ‘procedure established by law’ while the United States of America uses ‘due process of law’ to reflect essentially the same phenomenon that is, individual’s freedom. It is because people make up a nation. The more secure their rights, the more developed a country becomes.

The author would combine various methodologies of constitutional comparison such as the historical work and the Universalist search for just or good principles for comparing the two similar yet different concepts as propounded by the Indian and the American Constitutions respectively.

Since American jurisprudence had an influence over the phraseology’s “procedure established by law” adoption in India, the author would be throwing some light on this generic connection between the above-mentioned legal systems.

While adopting the phenomenon of “procedure established by law”, contextualism was kept in mind by the creators of the Indian Constitution. The author would point out that how after referring to a number of pitfalls that seeped into the American judicial decisions due to the adoption of the “due process” clause, the constituent assembly members decided to substitute that clause with the words “procedure established by law”.

On the other hand, Universalist methodology of comparative constitutional law seeks to identify some basic principles which is applied in a number of countries. Due process was inherent in the England’s Magna Carta, is found in the Japanese Constitution and thereby adopted by India too.

All these aspects including the improvements made by India and America while applying the concept in their respective countries will also highlighted by the author.

Tracing the American concept of Due Process of law

The phenomena of due process has been said to have originated through the Magna Carta of 1215. The 39th clause of the charter stated:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions… except by the lawful judgment of his equals or by the law of the land.”[1]

The 5th Amendment[2] of the American Constitution is mentioned below:

No person shall be held to answer for a capital, or otherwise infamous crime, ……nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”[3]

The majority’s ruling in Barron v. Mayor and City Council of Baltimore[4] believed that the restrictions as mentioned in the 5th Amendment was applicable to the national government and not on the state governments.[5]

Thereafter the 14th Amendment was introduced into the Constitution which specifically used the term State. The words were such-

“…nor shall any State deprive any person of life, liberty, or property, without due process of law …..”[6]

The American courts kept on denying the right to its citizens against state action. A shift in this approach was witnessed through the dissenting opinion of Black, J. and Douglas, J. in the case of Adamson v. California[7]. They believed that the actual purpose of bringing in the 14th Amendment of the US Constitution was to expand the notion of absolute protection of the American bill of rights in such a manner so as to include each and every person of the United States.

Justice Felix Frankfurter opined that due process cannot be contained in one definition. The ambit of it has to be judged keeping in mind the facts and state of affairs of individual cases. In Wolf v. Colorado[8], he observed that “…it is for the court to draw it (the meaning of due process clause) by the gradual and the empiric process of inclusion and exclusion.”[9]

Elaborating further, in the case of Joint Anti-Farcist Refugee Committee v. Mc Grath[10] Justice Frankfurter stated that “due process cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and the government, due process is compounded in history, reason, the past course of decision and stout confidence in the strength of the democratic faith which we profess.”[11]

It was with the decision of Malloy v. Hogan[12] that the judiciary started applying the due process principle as against the states (in criminal cases) in the same proportion as that of the federal government. On one hand, the majority of the judges thought that there was no justification for a “watered down, subjective”[13] format to be applied against the states when it comes to the bill of rights’ implementation, the minority’s opinion voiced mainly by Harlan, J. was in stark contrast. He protested that the difference in criminal laws of the federal and state governments was not taken into consideration before holding that equivalent system of enforcement of due process must take place.

India’s concept of “procedure established by law”

The text of Article 21 goes as under:

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

During the constituent assembly debates, it was pointed out that around 40% cases in the USA revolved around the elucidation of ‘…due process’.[14]

The introduction of the phrase ‘procedure established by law’ is linked with the meeting of Dr. B.N. Rau (better known as the advisor to the constitution framers) with Justice Felix Frankfurter, the then associate judge of the US Supreme court.  The latter advised the former to never adopt the words ‘due process’ in the Indian Constitution. Such a clause according to him was “undemocratic”[15] and enforced a kind of “unfair burden”[16] on the judicial system.

Justice Felix Frankfurter was basically influenced by James Bradley Thayer (an American legal theorist). He had the fear that if too strong a reliance was based upon the due process clause as a means to cure the defect caused by the legislature’s error or misconduct, it might end up in weakening the whole democracy.[17]

As a result of all of the debates mentioned above, instead of adopting the phrase ‘due process’, the terms inserted in the Indian Constitution was a ‘procedure established by law’. Makers of the Constitution found this terminology in an Article of the Japanese Constitution.[18]

The above-mentioned article (Article 31, Japanese Constitution) states that:

“No person shall be deprived of life and liberty, nor shall any other criminal penalty, nor shall any other criminal be imposed, except according to procedure established by law.”[19]

But problems of using the phraseology were several. For instance, the Japanese Constitution made sure that the execution of any fundamental right did not face any hurdle due to the non-inclusion of the due process clause. Also, Z H Lari, a constituent assembly member raised some concerns. He pointed out that the words as used in the then Article 15 (now Article 21) would mean making the “legislature all powerful”[20]. If that became the scenario anything and everything assumed proper by the legislature would have been binding upon the judiciary leading to jeopardizing individuals’ rights.

An answer to Z H Lari’s concern was provided by K M Munshi. He felt that in a democracy, it is essential to establish a sense of balance between a person’s liberty and control by the state. While agreeing to the fact that in a majority of cases, the legislature tries to enforce social control rather than thinking of individual’s rights, he recommended that as an alternative of the words “procedure established by law”, the constituent assembly should devise some mechanisms to bring about a sense of balance between a person’s freedom and social regulation.[21]

As soon as the Indian Constitution came into effect, the issue of interpreting the phrase ‘procedure established by law’ used in Article 21 was raised.[22] One of the contentions raised in the case was that ‘procedure established by law’ was at par with the American concept of ‘due process of law’. But the judges were of the view that ‘due’ refers to imparting a discretion on the judges (of USA) to enunciate what was left due from the legislature. The intentional omission of the word ‘due’ in the Indian Constitution leads to the conclusion that considering a law as reasonable or justifiable by the judiciary is not present in India. Additionally, combining the words ‘procedure’ and ‘established’ lays down the ground for deducing that the Constitution makers intended to provide the ultimate decision-making power in the hands of the legislature.

  1. Patanjali Sastri, J. beautifully summed up the logic behind the expression. According to him if the phrase used in Article 21 “…according to procedure established by law” is considered to be corresponding to the America’s ‘due process of law’ it would eventually have the consequence of incorporating into our Constitution those “subtle and elusive criteria”[23] implicit therein when it was deliberately avoided by our Constitution framers.

Thus, law was held to be in terms of what is enacted by the state (lex) and not in terms of natural justice (jus). However, Sir Saiyid Fazl Ali, J. in his dissenting opinion laid down the foundation of upcoming judgements by stating that the rudimentary standard of natural justice that is, the opportunity of being heard was a part of the term law used in India and hence, is needed to be read into the wordings of Article 21 too.

He referred to various American and British case-laws to support a wider view of personal liberty. He thus, recognized the universalistic methodology of interpreting constitutions of different countries.[24]

While referring to the procedure established by law through which an individual’s personal liberty as mentioned under Article 21 can be done away with, the judges in Gopalan case[25] declared that such a procedure should run in conformity with the requirements laid down in Article 22.

The reasons why Dr. B R Ambedkar presented the then draft Article 15A (known as Article 22 now) can be referred for a better understanding.[26] According to him, draft Article 15 (present day’s Article 21) only mentioned that the State is not allowed to deprive an individual his right of personal liberty except for a procedure established by law. If the procedure is not specifically highlighted in the Constitution, it would mean that all that would be necessary for arresting anyone was a duly enacted law by the legislature. And this would have meant leaving individual rights on the mercy of the State.

Hence, Dr. Ambedkar thought by introducing Article 22, the chaos created by the inclusion of Article 21 could be remedied. “…the substance of the law of due process”[27] was tried to be fit in the Indian Constitution through its incorporation.

The procedural aspect of due process was brought into the Indian legal system through the Kharak Singh[28] case. However, the majority denied inclusion of the substantive form of due process in the Indian context.

However around three years later, the dissenting view of Justice Subba Rao (who favoured substantive due process in the case of Kharak Singh[29])  turned into majority’s opinion in Satwant Singh Sawhney v. Union of India[30].

Since the advent of Maneka Gandhi v. Union of India[31], the Indian judiciary has started reading ‘substantive due process’ explicitly during the interpretation of Article 21. It is a standard which tests the actions of the legislature on the parameters of fairness and reasonableness.

An excellent example of transformative constitutionalism, the judges in Maneka Gandhi[32] widened the scope of procedure established in Article 21 to include features of substantive due process. The terms used in Article 21 were provided a broader connotation and the court moved beyond the limitation set up by the previous judicial decisions.

Speaking for the majority of judges, Justice Bhagwati stated that the term ‘personal liberty’ as referred to in Article 21 of the Constitution of India cannot be restrictively construed. It is so because even though it seems to be only two words, in reality it includes a wide range of rights within its ambit. Some of these rights are so fundamental in nature that they have provided supplementary protection through the application of Article 19.

He thereafter went on to expand the horizons of the phrase “procedure established by law” mentioned under Article 21. He did so by infusing America’s due process into Article 21 of the Constitution of India. Such an overt equalisation between the two concepts was happening for the first time in Indian history.

Hence, he laid down that whatever procedure is established by the State affecting the individual’s freedom of life and personal liberty should pass a test of non-arbitrariness and reasonability. If such a test is not cleared by a law, it would be held unconstitutional. While doing so, he moved steps beyond the earlier judgements dealing with similar issues. Jus or natural justice which was expressly denied in the Gopalan[33] judgement to be read into Article 21, was now held to be present therein. Thus, affording an opportunity of hearing to the petitioner in each case was mandated.

The outcome was that a law limiting rights of personal liberty would now have to be not only procedurally correct (as per Article 21) but also substantively valid, that is, not against the content of Article 14 and Article 19 of the Indian Constitution.

Justice Krishna Iyer and Justice Bhagwati referred to the Indian history and tried bringing it in consonance with the universal standards.

An interesting turn of events took place in 2015-2016. In Rajbala and Ors. v. State of Haryana and Ors.[34], the constitutional validity of an Act namely, the Haryana Panchayati Raj (Amendment) Act, 2015 was raised as an issue. Such an issue was raised as under the named Act five classes of persons were held to be ineligible for contesting the election of specific offices of the panchayat as well as disallowed them to continue in serving as an officer if already elected as a member of panchayat.

As an answer to the issue of arbitrariness inherent in the Act, the apex court cited Article 243F of the Indian Constitution and held that by virtue of the said Article the State Legislature is empowered to list out the disqualifications for a member of the panchayat. It went on to clarify that Indian courts do not run in the same manner as that of their American counterparts. In India, unless the law is infringing upon some specific rights mentioned in the Constitution, the judiciary is not allowed to probe into the wisdom and choice of the legislature. If that is allowed, there would be an importation of the concept of substantive due process in India. But since the Indian Constitution has placed more authority on the legislature through avoiding the usage of such phrases, such a concept is inapplicable in India.

When on one hand, the Supreme Court overruled the precedents which was laid by it on the acceptance of the phrase substantive due process in India, the Bombay High court went in the opposite direction.

In the year 2016, the Bombay High court had to rule whether the Maharashtra Animal Preservation Act, 1976 was constitutionally valid or invalid.[35] The court while striking down the section which infringed an individual’s right to privacy went on to define substantive and procedural aspects of due process according to the American definition.

Procedural due process is referred to the manner in which the state must deal with the individuals. Without the application of established procedure or methods, no action must be taken against an individual.

While substantive due process would mean that whenever a criminal law is framed or its validity is assessed, it should be kept in mind that it does not stand in conflict with the rights assured by the Constitution.

Explaining all these, the court concluded that in the wide ambit of Article 21 even the concept of substantive due process as propounded by the US is included.[36]


The evolution of due process in India is somewhere or the other based on borrowing from experiences and constitutions of different countries. After the advent of the Indian Constitution, judges were reluctant to draw parallels between India and other countries. It was so because they believed that Indian history differed from elsewhere and hence, application of foreign laws would mean jeopardizing the interests of its citizens.

But soon the Indian judiciary started feeling the need of referring to foreign laws and policies. It was due to something known as universal norms. These are the basic norms of human existence which are needed to be incorporate into every county’s domestic laws so as to make survival of individuals with liberty and dignity possible. The judicial borrowing of the concept of due process by the Indian judiciary happened through a series of events.

The first event was the explicit denial of its existence in Indian context. The next came the phase wherein both the procedural and substantive due process clause was incorporated in the same manner as that of the American system. Then came the era of transformation of the Constitution wherein due process became the law as supported by judges in the majority.

India, a captive in the hands of the political agenda reformed the letter of the Constitution so as to guarantee its citizens, the fundamental rights in reality which were in a way curbed by the State through the strict interpretation of words used in the Constitution. The purpose behind the enactment of the Constitution, that is protection of an individual’s rights and liberties are in a way served through the wisdom and open-mindedness of the judiciary. The time is not far when a balance between social control and an individual’s freedom would be such so as to bring contention in everyone’s lives.

[1] Magna Carta, 1215, cl. 39.

[2] U.S. Const. amend. V.

[3] Id.

[4] Barron v. Mayor and City Council of Baltimore, 32 243 (1833).

[5] Barron v. Mayor and City Council of Baltimore, Oyez, (last visited Aug 3, 2019).

[6] U.S. Const. amend. XIV, § 1.

[7] Adamson v. California, 332 46 (1947).

[8] Wolf v. Colorado, 338 25 (1949).

[9] Durga Das, 5 Commentary on the Constitution of India (9th ed. 2015).

[10] Joint Anti-Farcist Refugee Committee v. Mc Grath, 341 123 (1951).

[11] Das, supra note 9.

[12] Malloy v. Hogan, 378 1 (1964).

[13] Jesse H. Choper et al., Leading cases in Constitutional law: A compact casebook for a short course (2016).

[14] H R, Making of Indian Constitution (2019).

[15] V, A fresh look at the relevance of three early doctrines that have defined the Indian Constitution over the years, 29 Frontline, 2012.

[16] Id.

[17] Khanna, supra note 14.

[18] K K, Due process of law: A comparative study of procedural guarantees against deprivation of personal liberty in the United States and India, 4 Journal of the Indian Law Institute 99–135 (1962), (last visited Aug 4, 2019).

[19] Constitution of Japan, Article 31, Chapter III.

[20] Constituent Assembly Debates 1948 (Vol. VII, Lok Sabha Secretariat).

[21] Id.

[22] A.K. Gopalan v. State of Madras, 27 (1950).

[23] Id. at 111.

[24] Manoj, The origins of Due Process in India: The role of borrowing in personal liberty and preventive detention cases , 28 Berkeley Journal of International Law 216–260 (2010), (last visited Aug 4, 2019).

[25] supra note 21.

[26] Constituent Assembly Debates 1949 (Vol. IX, Lok Sabha Secretariat).

[27] Id.

[28] Kharak Singh v. State of Uttar Pradesh, 332 (1964).

[29] Id.

[30] Satwant Singh Sawhney v. Union of India, 3 525 (1967).

[31] Maneka Gandhi v. Union of India, 597 (1978).

[32] Id.

[33] supra note 21.

[34] Rajbala and Ors. v. State of Haryana and Ors, 33 (2016).

[35] Zahid Mukhtar v. State of Maharashtra, 2 140 (2017).

[36] Id. at 204.


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