It is far too well-settled that the procedure prescribed by law for the deprivation of the right conferred by Article 21 must be fair, just and reasonable.

Article 21 provides that,

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

Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, in this case the right to life, must confirm to the norms of justice and fairplay.

Procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it.

Test to determine the fairness of any statutory provision

Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards:

  • The action must be within the scope of the authority conferred by law and
  • it must be reasonable.

If any action, within the scope of the authority conferred by law, is found to be unreasonable it must mean that the procedure established by law under which that action is taken is itself unreasonable.

Procedure also must be faire

The substance of the law cannot be divorced from the procedure which it prescribes for, how reasonable the law is, depends upon how fair is the procedure prescribed by it, Sir Raymond Evershad says that, from the point of view of the ordinary citizen, it is the procedure that will most strongly weigh with him. He will tend to form his judgment of the excellence or otherwise of the legal system from his personal knowledge and experience in seeing the legal machine at work”[1].

Therefore, He that takes the procedural sword shall perish with the sword. “[Per Frankfurter J. in Viteralli v. Seton 3 L.Ed. (2nd Series) 1012]

Justice K.K.Mathew points out in his article on `The welfare State, Rule of Law and Natural Justice’, which is to be found in his book `Democracy, equality and Freedom’, that there is

“substantial agreement in juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power wherever it is found”.

Adopting that formulation, Bhagwati J., speaking for the Court, observed in Ramana Dayaram, Shetty v. The International Airport Authority of India,[2] that it is “unthinkable that in a democracy governed by the rule of law, the executive Government or any of its officers should possess arbitrary power over the interest of the individual. Every action of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement”

If a law is found to direct the doing of an act which is forbidden by the Constitution or to compel, in the performance of an act, the adoption of a procedure which is impermissible under the Constitution, it would have to be struck down.[3]

[1] The influence of Remedies on Rights’ (Current Legal Problems 1953, Volume 6

[2] [1979] 3 S.C.R. 1014,1032

[3] Olga Tellis & Ors vs Bombay Municipal Corporation; 1986 AIR 180, 1985 SCR Supl. (2) 51