Procedure established by law

The phrase “procedure established by law” seems to be borrowed from Art. 31 of the Japanese Constitution. But other Articles of that Constitution which expressly preserve other personal liberties in different clauses have to be read together to determine the meaning of ‘law’ in the expression “procedure established by law.” There Articles of the Japanese Constitution have not been incorporated in the Constitution of India in the same language. It is not shown that the word ‘law’ means ‘jus’ in the Japanese Constitution. In the Japanese Constitution these rights claimed under the rules of natural justice are not given by the interpretation of the words “procedure established by law” in their Art. 31.

The word ‘due’ in the expression “due process of law” in the American Constitution is interpreted to mean “just,” according to the opinion of the Supreme Court of U. S. A. That word imparts jurisdiction to the Courts to pronounce what is “due” from otherwise, according to law. The deliberate omission of the word ‘due” from Art. 21 lends strength to the contention that the justiciable aspect of law,’ i. e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution. The omission of the word ‘due,’ the limitation imposed by the word ‘procedure’ and the insertion of the word ‘established,’ thus brings out more clearly the idea of legislative prescription in the expression used in Art 21.

By adopting the phrase “procedure established by law” the Indian Constitution gave the legislature the final word to determine the law.

A. K. Gopalan Versus State of Madras 19/5/1950