An Edited Excerpt from the judgment (Headings have been added)
The Meaning of ‘Procedure’, ‘Established’, and ‘Law’
What is ‘procedure’? What do we mean by ‘established’? And what is law? Law is law when it is legitimated by the conscience and consent of the community generally. Not any capricious but reasonable: mode ordinarily regarded by the cream of society as dharma or law, approximating broadly to other standard measures regulating criminal or like, procedure in the country. Often, it is a legislative act, but it must be functional, not fatuous. This line of logic alone will make the two clauses of Art. 21 concordant, the procedural machinery not destroying the substantive fundamentally.
The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be, so futile or fragmentary that any transient legislative majority in tantrums against any minority, by three quick readings of a bill with the requisite quorum; can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate.
‘Procedure’ must rule out anything arbitrary freakish or bizarre.
‘Procedure established by law’, with its lethal potentiality, will reduce life and liberty to a precarious plaything if we do not ex necessitate import into those weighty words an, adjectival rule of law, civilised in its soul, fair in its heart and fixing those imperatives of procedural protection absent which the processual tail will wag the substantive head. Can the sacred essence of the human right to secure which the struggle for liberation, with ‘do or die’ patriotism, was launched be sapped by formalistic and pharisaic prescriptions, regardless of essential standards?
An enacted apparition is a constitutional illusion. Processual justice is writ patently on Art. 21. It is too grave to be circumvented by a black letter ritual processed through the legislature.
So I am convinced that to frustrate Art. 21 by relying on any formal adjectival statute, however, flimsy or fantastic its provisions be, is to rob what the constitution treasures. Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within, Art. 21 has to be fair, riot foolish, carefully designed to, effectuate not to subvert, the substantive right itself. Thus understood, ‘procedure’ must rule out anything arbitrary freakish or bizarre.
Established means settled firmly not wantonly whimsically.
A valuable constitutional right can be canalised only by civilised processes. What is fundamental is life and liberty. What is procedural is the manner of its exercise. This quality of fairness in the process is emphasised by the strong word established which means ‘settled firmly not wantonly whimsically. If it is rooted in the legal consciousness of the community it becomes ‘established’ procedure. And ‘Law’ leaves little doubt that it is normal, regarded as just since law is the means and justice is the end.
Procedural safeguards are the indispensable essence of liberty
The history of personal liberty is large the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights; observance of fundamental rights is not regarded as good politics and their transgression as had politics.
I sometimes pensively reflect that people’s militant awareness of rights and duties is a surer constitutional assurance of governmental respect and response than the sound and fury of the ‘question hour’ and the slow and unsure delivery of court writ ‘Community Consciousness and the Indian Constitution is a fascinating subject of sociological relevance in many areas.
To sum up, ‘procedure’ in Art. 21 means fair, not formal procedure. ‘Law’ is reasonable law, not any enacted piece. As Art. 22, specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Art. 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Art. 21 are available.
Reference
Maneka Gandhi v. Union of India (1978)