Article 21 of the Indian Constitution mandates that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
In the case of A.K. Gopalan, an application under Article 32 of the constitution of India for a writ of habeas corpus was filed against the detention of the A.K. Gopalan who was in the madras jail in pursuance of an order of detention made under the ‘Preventive Detention Act 1950’.
While establishing their case, the petitioner counsel, strongly relied upon by the petitioner in support of his contention that the impugned Act is ultra vires the Parliament as it abridges the right given by this article to every person. It was argued that under the Constitution of the United States of America the corresponding provision is found in the 5th and 14th Amendments where the provision, inter alia, is “that no person shall be deprived of his life or liberty or property except by due process of law.”
It was contended for the petitioner that the Indian Constitution gives the same protection to every person in India, except that in the ‘United States “due process of law” has been construed by its Supreme Court to cover both substantive and procedural law, while in India only the protection of procedural law is guaranteed. It was contended that the omission of the word “due” made no difference to the interpretation of the words in article 21. The word “established”‘ was not equivalent to “prescribed”. It had a wider meaning.
The court’s answer
As regards the American Constitution its general structure is noticed in these words in “The Government of the United States” by Munro (5th Edition) at page 53:
“The architects of 1787 built only the basement. Their descendants have kept adding walls and windows, wings and gables, pillars and porches to make a rambling structure which is not yet finished. Or, to change the metaphor, it has a fabric which, to use the words of James Russell Lowell, is still being ‘woven on the roaring loom of time’. That is what the framers of the original Constitution intended it to be. Never was it in their mind to work out a final scheme for the government of the country and stereotype it for all time. They sought merely to provide a starting point.”
The same aspect is emphasized in Professor Willis’s book on Constitutional Law and Cooley’s Constitutional Limitations. In contrast to the American Constitution, the Indian Constitution is a very detailed one.
The Constitution itself provides in minute details the legislative powers of the Parliament and the State Legislatures. The same feature is noticeable in the case of the judiciary, finance, trade, commerce and services. It is thus quite detailed and the whole of it has to be read with the same sanctity, without giving undue weight to Part III or article 246, except to the extent one is legitimately and clearly limited by the other.
Distinction between both doctrines
Four marked points of distinction between the clause in the American Constitution and article 21 of the Constitution of India may be noticed at this stage.
(1) The first is that in U.S A. Constitution the word “liberty” is used simpliciter while in India it is restricted to personal liberty.
(2) In U.S.A. Constitution the same protection is given to property, while in India the fundamental right in respect of property is contained in article 31.
(3) The word “due” is omitted altogether and the expression “due process of law” is not used deliberately.
(4) The word “established” is used and is limited to “Procedure” in Our article 21.
[To understand the reason of court’s deliberation on these distinction, Read this article]
The discussion of the meaning of “due process of law” found in Willis on Constitutional Law and in Cooley’s Constitutional Limitations shows the diverse meanings given to that expression at different times and under different circumstances by the Supreme Court of U.S.A., so much so that the conclusion reached by these authors is that the expression. means reasonable law according to the view of the majority of the judges of the Supreme Court at a particular time holding office.
The court finally concluded that normally read, and without thinking of other Constitutions, the expression “procedure established by law” must mean procedure prescribed by the law of the State. If the Indian Constitution wanted to preserve to every person the protection given by the due process clause of the American Constitution there was nothing to prevent the Assembly from adopting the phrase, or if they wanted to limit the same to procedure only, to adopt that expression with only the word “procedural” prefixed to “law.”
The Interpretation of the word ‘Law’
As to the meaning of the word “law” it was argued that it meant principles of natural justice. It meant “jus”, i.e., law in the abstract sense of the principles of natural justice, as mentioned in standard works of Jurisprudence, and not “lex”, i.e., enacted law. Against the contention that such construction will leave the meaning vague, it was argued that four principles of natural justice recognised in all civilized countries were covered, in any event, by the word “law”.
(1) An objective test, i.e., a certain, definite and ascertainable rule of human conduct for the violation of which one can be detained;
(2) Notice of the grounds of such detention;
(3) An impartial tribunal, administrative, judicial or advisory, to decide whether the detention is justified; and
(4) Orderly course of procedure, including an opportunity to be heard orally (not merely by making a written representation) with a right to lead evidence and call witnesses.
But, on this, the court said that, normally read, and without thinking of other Constitutions, the expression “procedure established by law” must mean procedure prescribed by the law of the State. If the Indian Constitution wanted to preserve to every person the protection given by the due process clause of the American Constitution there was nothing to prevent the Assembly from adopting the phrase, or if they wanted to limit the same to procedure only, to adopt that expression with only the word “procedural” prefixed to “law.”
To read the word “law” as meaning rules of natural justice will land one in difficulties because the rules of natural justice, as regards procedure, are nowhere defined and in my opinion the Constitution cannot be read as laying down a vague standard. This is particularly so when in omitting to adopt “due process of law” it was considered that the expression “procedure established by law” made the standard specific. It cannot be specific except by reading the expression as meaning procedure prescribed by the legislature. The word “law” as used in this Part has different shades of meaning but in no other article it appears to bear the indefinite meaning of natural justice. If so, there appears no reason why in this article it should receive this peculiar meaning.
The world “established” according to the Oxford Dictionary means “to fix, settle, institute or ordain by enactment or agreement.” The word “established” itself suggests an agency which fixes the limits. According to the dictionary this agency can be either the legislature or an agreement between the parties. There is therefore no justification to give the meaning of “jus” to “law” in article 21.
Reference to ‘Japanese Constitution’
The court said, the phrase “procedure established by law” seems to be borrowed from article 31 of the Japanese Constitution. But other articles of that Constitution which expressly preserve other personal liberties in different clauses have to be read together to determine the meaning of “law” in the expression “procedure established by law.” These articles of the Japanese Constitution have not been incorporated in the Constitution of India in the same language. It is not shown that the word “law” means “jus” in the Japanese Constitution.
In the Japanese Constitution these rights claimed under the rules of natural justice are not given by the interpretation of the words “procedure established by law” in their article 31. The word “due” in the expression “due process of law” in the American Constitution is interpreted to mean “just,” according to the opinion of the Supreme Court of U.S.A. That word imparts jurisdiction to the Courts to pronounce what is “due” from otherwise, according to law. The deliberate omission of the word “due” from article 21 lends strength to the contention that the justiciable aspect of “law”, i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution. The omission of the word “due”, the limitation imposed by the word “procedure” and the insertion of the word “established” thus brings out more clearly the idea of legislative prescription in the expression used in article 21. By adopting the phrase “procedure established by law” the Constitution gave the legislature the final word to determine the law.
Every Article needed to be read separately
The court was of the view that the articles in Part III deal with different and separate rights. Under the caption “Right to Freedom” articles 19–22 are grouped but each with a separate marginal note. It is obvious that article 22 (1) and (2) prescribe limitations on the right given by article 21. If the procedure mentioned in those articles is followed the arrest and detention contemplated by article 22 (1) and (2), although they infringe the personal liberty of the individual, will be legal, because that becomes the established legal procedure in respect of arrest and detention.
A.K. Gopalan v. Union of India, (1950)