Due process of Law vs Procedure Established by Law

191.  I have no doubt in my mind that if the ‘due process’ clause which appeared in the original draft was finally retained by the Constituent Assembly, it could be safely presumed that the framers of the Indian Constitution wanted that expression to bear the same sense as it does in America. But when that form was abandoned and another was deliberately substituted in its place, it is not possible to say that in spite of the difference in the language and expression. they should mean the same thing and convey the same idea. Mr. Nambiar’s contention is that in view of the somewhat uncertain and fluidic state of law as prevails in America on the subject, the Drafting Committee recommended an alteration for the purpose of making the language more specific and he would have us hold that it was made specific in this way, namely, that instead of being extended over the whole sphere of law, substantive as well as adjective, it was limited to procedural law merely.

That is the reason, he says why instead of the word ‘process’ the expression ‘procedure’ was adopted, but the word ‘law’ means the same thing as it does in the ‘due process’ clause in America and refers not to any State made law but to the fundamental principles which are inherent in the legal system and are based upon the immutable doctrines of natural justice.

192.  Attractive though this argument might at first sight appear, I do not think that it would be possible to accept it as sound. In the first place it is quite clear that the framers of the Indian Constitution did not desire to introduce into our system the elements of uncertainty, vagueness and changeability that have grown round the ‘due process’ doctrine in America. They wanted to make the provision clear, definite and precise and deliberately chose the words ‘procedure established by law’ as in their opinion no doubts would ordinarily arise about the meaning of this expression. The indefiniteness in the application of the ‘due process’ doctrine in America has nothing to do with the distinction between substantive and procedural law. The uncertainty and elasticity are in the doctrine itself which is a sort of a hidden mine, the contents of which nobody knows and it is merely revealed from time to time to the judicial conscience of the Judges.

This theory, the Indian Constitution deliberately discarded and that is why they substituted a different form in its place which, according to them, was more specific. In the second place, it appears to me that when the same words are not used, it will be against the ordinary canons of construction to interpret a provision in our Constitution in accordance with the interpretation put upon a somewhat analogous provision in the Constitution of another country, where not only the language is different, but the entire political conditions and constitutional set up are dissimilar. In the Supreme Court of America, stress has been laid uniformly upon the word ‘due’ which occurs before and qualifies the expression ‘process of law’. ‘Due’ means ‘what is just and proper’ according to the circumstances of a particular case. It is this word which introduces the variable element in the application of the doctrine; for what is reasonable in one set of circumstances may not be so in another and a different set. In the Indian Constitution, the word ‘due’ has been deliberately omitted and this shows clearly that the Constitution makers of India had no intention of introducing the American doctrine. The word ‘established’ ordinarily means ‘fixed or laid down’ and if ‘law’ means as Mr. Nambiar contends, not any particular piece of law but the indefinite and indefinable principles of natural justice which underline positive systems of law, it would not at all be appropriate to use the expression ‘established’, for natural law or natural justice cannot establish anything like a definite procedure.

A. K. Gopalan-AIR 1950 SC 27 : (1950) SCR 88 : (1950) CriLJ SC 1383