procedure established by law
Article 21 says no person shall be deprived of life or personal liberty except according to procedure established by law. The framers chose this phrase, taken from the Japanese Constitution, instead of the American “due process of law”, to avoid substantive judicial review of laws.
In A.K. Gopalan (1950) the Supreme Court read it literally: any procedure laid down by a valid enacted law was enough. Maneka Gandhi (1978) changed this: the procedure must be fair, just and reasonable, not arbitrary or oppressive, and Articles 14, 19 and 21 must be read together. Since then the phrase has been interpreted as giving much the same protection as due process.
Example
After Maneka Gandhi, a procedure established by law that is arbitrary or unfair will not satisfy Article 21.
In Indian law
- Article 21, Constitution of India
- A.K. Gopalan v. State of Madras, 1950 INSC 13: narrow, literal reading
- Maneka Gandhi v. Union of India, 1978 INSC 16: procedure must be fair, just and reasonable
See also
due process of law · right to life and personal liberty · natural justice
Read more in the study notes
- Rule of law and droit administratif (Administrative Law)
- Criminal procedure: meaning, background and salient features of the BNSS (Bharatiya Nagarik Suraksha Sanhita)
- Constitutional history, drafting and the Constituent Assembly (Constitutional Law I)
- Article 22: rights of the arrested person and preventive detention (Constitutional Law I)
- Article 21: right to life and personal liberty (Constitutional Law I)
- Active and passive voice (English)