Due procedure of Law vs Procedure established by Law

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A. K. Gopalan vs State of Madras

The term “Law” in Art. 21 means the immutable and universal principles of natural justice. “Procedure established by law” must be taken to refer to a procedure which has a statutory origin, for no procedure is known or can be said to have been established by such vague and uncertain concepts as “the immutable and universal principles of natural justice”. In my opinion, ‘ law” in Art. 21 means “positive or State made law”.

110. No doubt, the American Judges have adopted the other connotation in their interpretation of the due process clause in the fifth and fourteenth amendments of the American Constitution (“Nor shall any person be deprived of life, liberty or property without due process of law”). But that clause has an evolutionary history behind it. The phrase has been traced back to 28 Edw. III, Chap. 3, and Coke in his Institutes identified the term with the expression “the law of the land” in the Great Charter of John. Even in England where the legislative omnipotence of Parliament is now firmly established, Coke understood these terms as implying an inherent limitation on all legislation, and ruled in Dr. Bonham’s Case, (supra) that “the common law will control Acts of Parliament and sometimes adjudge them to be utterly void when they are against common right and reason”. Though this doctrine was later discarded in England as being “a warning rather than an authority to be followed” (per Willes J. in Lee vs. Dude and Torrington Ry., (1871) 6 C. P. 576 at p. 582) it gained ground in America, at first as a weapon in the hands of the Revolutionists with which to resist the laws of Parliament, and later as an instrument in the hands of the Judges for establishing the supremacy of the judiciary (see Calder vs. Bull, (1798) 3 Dallas 386). In the latter half of the 19th century, this doctrine of a transcandental common law or natural justice was absorbed in the connotation of the phrase “due process of law”, occurring in the fifth and fourteenth Amendments. By laying emphasis on the word “due”, interpreting “law” as the fundamental principles of natural justice and giving the words “liberty” and “property” their widest meaning, the Judges have made the due process clause into a general restriction on all legislative power. And when that power was threatened with prostration by the excesses of due process, the equally vague and expansive doctrine of ‘police powers”, i. e., the power of Government to regulate private rights in public interest, was evolved to counteract such excesses. All this has been criticised as introducing great uncertainty in the state of the law in that country, for no one could be sure how due process of law would affect a particular enactment. A century after the phrase had been the subject of judicial interpretation, one learned Judge observed in 1877 that it was incapable of precise definition and that its intent and application could only be ascertained by “the gradual process of inclusion and exclusion” Davidson vs. New Orleans, 96 U. S. 97 and, as recently as 1948, another Judge referred to the difficulty of “giving definiteness to the vigue contours of due process” and “of spinning judgmeant upon State action out of that gossamer concept” Haley vs. State of Ohio, 332 U. S. 596.

111. It is not a matter for surprise, therefore that the Drafting Committee appointed by the Constituent Assembly of India recommended the substitution of the expression “except according to procedure established by law’’ taken from the Japanese Constitution, 1946, for the words “without due process of law” which occurred in the original draft, “as the former is more specific”. In their Report the Committee added that they have “attempted to make these rights (fundamental rights) and the limitations to which they must necessarily be subject as definite as possible since the Courts may have to pronounce upon them” (para. 5). In the face of all those considerations, it is difficult to accept the suggestion that “law” in Art. 21 stands for the jus naturale of the civil law, and that the phrase “according to procedure established by law” is equivalent to due process of law in its procedural aspect, for, that would have the effect of introducing into our Constitution those “subtle and elusive criteria” implied in that phrase which it was the deliberate purpose of the framers of our Constitution to avoid.

112. On the other hand, the interpretation suggested by the Attorney-General on behalf of the intervener that the expression means nothing more than procedure prescribed by any law made by a competent Legislature is hardly more acceptable. “Established” according to him, means prescribed, and if Parliament or the Legislature of a State enacted a procedure, however novel and ineffective for affording the accused person a fair opportunity of defending himself, it would be sufficient for depriving a person of his life or personal liberty. He submitted that the Constituent Assembly definitely rejected the doctrine of judicial supremacy when it rejected the phrase “due process of law” and made the legislative will unchallengeable, provided only ‘some procedure” was laid down. The Indian Constitution having thus preferred the English doctrine of Parliamentary supremacy, the phrase “procedure established by law” must be construed in accordance with the English view of due process of law, that is to say, any procedure which Parliament may choose to prescribe. Learned counsel drew attention to the speeches made by several members of the Assembly on the floor of the House for explaining, as he put it, the “historical background”. A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental processes lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord. The Court could only search for the objective intent of the Legislature primarily in the words used in the enactment, aided by such historical material as reports of statutory committees, preambles, etc. I attach no importance, therefore, to the speeches made by some of the members of the Constituent Assembly in the course of the debate on Art. 15 (now Art. 21).

113. The main difficulty I feel in accepting the construction suggested by the Attorney General is that it completely stultifies Art. 13 (2) and, indeed, the very conception of a fundamental right. It is of the essence of that conception that it is protected by the fundamental law of the Constitution against infringement by ordinary legislation. It is not correct to say that the Constitution has adopted the doctrine of Parliamentary supremacy. So far at any rate, as part III is concerned, the Constitution, as I have already observed, has accepted the American view of fundamental rights. The provisions of Arts 13 and 32 make this reasonably clear. Could it then have been the intention of the framers of the Constitution that the most important fundamental, rights to life and personal liberty should be at the mercy of legislative majorities as, in effect, they would be if ‘established” were to mean merely “prescribed”? In other words, as an American Judge said in a similar context, does the constitutional prohibition in Art 13 (2) amount to no more than “You shall not take away life or personal freedom unless you choose to take it away”, which is mere verbiage. It is no sound answer to say that, if Art. 21 conferred no right immune from legislative invasion, there would be no question of contravening Art. 13 (2). The argument seems, to my mind, to beg the question, for it assumes that the Article affords no such immunity. It is true that Art. 21 affords no protection against competent legislative action in the field of substantive criminal law, for there is no provision for judicial review, on the ground of reasonableness or otherwise, of such laws, as in the case of the rights enumerated in Art l9. But the construction of the learned Attorney-General would have the effect of rendering wholly ineffective and illusory even the procedural protection which the Article was undoubtedly designed to afford. It was argued that “law” in Art. 31 which provides that no person shall be deprived of his property “save by authority of law” must mean enacted law and that if a person’s property could be taken away by legistive action, his right to life and personal liberty need not enjoy any greater immunity. The analogy is misleading. Clause (2) of Art. 31 provides for payment of compensation and that right is justiciable except in the two cases mentioned in cls. (4) and (6) which are of a transitory character. The constitutional safeguard of the right to property in the said Article is, therefore, not so illusory or ineffective as cl. (1) by itself might make it appear, even assuming that “law” there means ordinary legislation.

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