due process of law

The phrase comes from the Fifth and Fourteenth Amendments to the US Constitution and covers both fair procedure (procedural due process) and the reasonableness of the law itself (substantive due process). The Constituent Assembly deliberately avoided it, and Article 21 instead says no person shall be deprived of life or personal liberty “except according to procedure established by law”.

In Maneka Gandhi the Supreme Court held that the procedure must be fair, just and reasonable, not arbitrary, fanciful or oppressive, and read Articles 14, 19 and 21 together. The effect is close to due process, though Indian courts still speak of “procedure established by law”. The right to property is now only a constitutional right under Article 300A.

Example

After Maneka Gandhi, a law permitting impounding of passports without a hearing fails Article 21, which in effect now demands due process of law.

In Indian law

• Article 21, Constitution of India
• Maneka Gandhi v. Union of India, 1978 INSC 16

See also

equality before law · ex post facto · emergency

Read more in the study notes

• Article 21: right to life and personal liberty (Constitutional Law I)
• Constitutional interpretation (Constitutional Law II)
• Specific relief: nature, kinds and recovery of possession (Contract I)
• The Inter-American system: Commission and Court (Human Rights Law and Practice)
• Compensation jurisprudence: public law damages for violation of fundamental rights (Indian Constitutional Law - New Challenges)
• Concept of Property and Its Evolution (IPR II)