What is the meaning “procedure established by law” ?
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]
“Procedure established by law” are words of deep meaning for all lovers of liberty and judicial sentinels. Amplified, activist fashion, “procedure” means “fair” and reasonable procedure” which comports with civilised norms like natural justice rooted firm in community consciousness,- not primitive processual barbarity nor legislated normative mockery. In a land-mark case, Maneka Gandhi, (1978) 1 SCC 248 at pages 277, 281 and 284, Bhagwati, J. (on this point the court was unanimous) explained:
“Does Art. 21 merely require that there must be some semblance of procedure, howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable? Article 21 occurs in Part III of the Constitution which confers certain fundamental rights”.
“Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements? Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law.”
“The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or nonarbitrariness pervades Art. 14 like a brooding omnipresence and the procedure contemplated by Art. 21 must answer the test of reasonableness in order to be in conformity with Art. 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Art. 21 would not be satisfied.
Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21.”
One of us in his separate opinion there observed:
“Procedure established by law”, with its lethal potentiality, will reduce life and liberty to a precarious plaything if we do not ex necessitate import into those weighty words an adjectival rule of law, civilised in its soul, fair in its heart and fixing those imperatives of procedural protection absent which the processual tail will wag the substantive head. Can the sacred essence of the human right to secure which the struggle for liberation, with “do or die” patriotism, was launched be sapped by formalistic and pharisaic prescriptions, regardless of essential standards? An enacted apparition is a constitutional illusion. Processual justice is writ patently on Art. 21.
Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Art. 21 has to be fair, not foolish, carefully designed no effectuate, not to subvert, the substantive right itself. Thus understood, “procedure” must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only by civilised process … … What is fundamental is life and liberty. What is procedural is the manner of its exercise. This quality of fairness in the process is emphasised by the strong word “established” which means “settled firmly” not wantonly or whimsically. If it is rooted in the legal consciousness of the community it becomes “established” procedure. And “law” leaves little doubt that it is normae regarded as just since law is the means and justice is the end.
Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is largely the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights, observance of fundamental rights is not regarded as good politics and their transgression as bad politics. To sum up, “procedure” in Art. 21 means fair, not formal procedure. “Law” is reasonable law, not any enacted piece.”