Due process of law

The word “law” may be used in an abstract or concrete sense. Sometimes it is preceded by an article such as ‘a’ or ‘the’ or by such words as ‘any’, ‘all’. etc., and sometimes it is used without any such prefix. But, generally, the word ‘law’ has a wider meaning when used in the abstract sense without being preceded by an article. The question to be decided is whether the word ‘law’ means nothing more than statute law. Now whatever may be the meaning of the expression “due process of law,” the word ‘law’ is common to that expression as well as “procedure established by law” and though we are not bound to adopt the construction put on “law” or “due process of law” in America, yet since a number of eminent American Judges have devoted much thought to the subject, I am not prepared to hold that we can derive no help from their opinions and we should completely ignore them. I will therefore in the first instance set out certain quotation, from a few of the decisions of the American Supreme Court construing the word “law” as used in the expression “due process, of law,” in so far as it bears on the question of legal procedure.

“(1) Although the legislature may at its pleasure provide new remedies or change old ones, the power is nevertheless subject to the condition that it cannot remove certain ancient land marks, or take away certain fundamental rights which have been always recognized and observed in judicial procedures. Bardwell vs. Collins, 44 Minn. 97 ; (9 L. R. A. 152).

(2) By the law of the land is most clearly intended the general law:a law which hears before it condemns, which proceeds upon inquiry and renders judgments only after trial. The meaning is that every citizen shall hold his life, liberty and property, and immunities under the protection of the general rules which govern society. Darimouth College case 17 U. S. 4.

(3) Can it be doubted that due process of law signifies a right to be heard in one’s defence ? It the legislative department of the Government were to enact a statue conferring the right to condemn the citizen without any opportunity whatever at being heard, would it be pretended that such an enactment would not be violative of the Constitution? If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be violative of the Constitution? If such power obtains then the judicial department of the Government sitting to uphold and enforce the Constitution is the only one possessing a power to disregard it. If such authority exists then in consequence of their establishment, to compel obedience to law and enforce justice. Courts possess the right to inflict the very wrong which they were created to prevent. Hovey vs. Ellict, 167 U. S. 409 at page 417.

(4) It is a rule as old as the law, and never more to be respected then now, that no one shall be personally bound until he has had his say in Court, by which it meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes at a judicial determination; It is judicial usurpation and oppression, and can never be upheld where justice is justly administered .” Gatpin vs. Page, 85 U. S. 18.

72.  Thus, in America, the word ‘law’ does not mean merely State -made law or law enacted by the State and does not exclude certain fundamental principles of justice which inhere in every civilised system of law and which are at the root of it. The result of the numerous decisions in America has been summed up by Professor Willis in his book on “Constitutional Law” at p. 662, in the statement that the essential of due process are:

(1) notice, (2) opportunity to be heard, (3) an impartial tribunal, and (4) orderly course of procedure. It is pointed out by the learned author that those essentials may assume different forms in different circumstances, and so long as they are conceded in principle, the requirement of law will be fulfilled. For example, a person cannot require any particular form or method of hearing, but all that he can require is a reasonable opportunity to be heard. Similarly, an impartial tribunal does not necessarily mean a judicial tribunal in every case. So far as orderly course of procedure is concerned, he explains that it does not require a Court to strictly weigh the evidence but it does require it to examine the entire record to ascertain the issues, to discover whether there are facts not reported and to see whether or not the law has been correctly applied to facts. The view expressed by other writers is practically the same as just expressed by Professor Willis, though some of them do not expressly refer to the fourth element, viz., orderly course of procedure. The real point however is that these four elements are really different aspects of the same right, viz., the right to be heard before one is condemned.

73.   So far as this right is concerned, judicial opinion in England appears to be the same as that in America. In England, it would shook one to be told that a man can be deprived of hid, personal liberty without a fair trial or hearing. Such a case can happen only if the Parliament expressly takes away the right in question in an emergency as the British Parliament did during the last two world wars in a limited number of cases. I will refer here to a few cases which show that the fundamental principle that a person whose right is affected must be heard has been observed not only in cases involving personal liberty but also in proceedings affecting other rights even though they may have come before administrative or quasi-judicial tribunals, Cooper vs. The Wandsworth Board of Works, (1863) 14 C. B. (N.S.) 180:(32 L. J. C.P. 185) was a case under an Act which empowered the District Board to alter or demolish a house where the builder had neglected to give notice of his intention seven days before proceeding to lay or dig the foundation. Acting upon this power, the Board directed the demolition of a building without notice to the builder, but this was held to be illegal. Byles J. in dealing with the matter observed as follows:

“ I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punishment as well as the remedy. That being so, a long course of decisions, beginning with Dr. Bentley’s case, (supra) and ending with some vary recent cases, establish that although they are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The judgment of Fortecus J. in Dr. Beniley’s case, (supra) is somewhat quaint, but it is very applicable, and has been the law from that time to the present. He says,’ The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any.”

In the same case Erle C.J. observed:

“It has been said that the principle that no man shall be deprived of his property without an opportunity of being heard, is limited to a judicial proceeding …..I do not quite agree with that;…… the law I think, has been applied to many exercise of power which in common understanding would not be at all more a judicial proceeding than would be the act of the district board in ordering a house to be pulled down.”

The observations made by Erle C.J. were quoted and applied by Sir Robert Collier in Smithy vs. The Queen, (1878) 3 A.C. 614:(47 L.J. P.C. 51), and the observations of Lord Campbell in Regina vs. The Archbishop of Canterbury, (1859) 1 El. and El. 545 at p. 559:(28 L.J. Q.B. 154) were to the same effect. A similar opinion was expressed by Sir George Jessel in Fisher vs. Keane, (1880) 11 ch. D. 353:(49 L.J. Ch. 11) Labouchers vs. Earl of Wharncliffe, (1880) 13 Ch. D. 346:(41 L.T. 638) and Russell vs. Russell, (1881) 14 Ch. D. 471:(49 L.J. Ch. 268). In the last mentioned case, he observed as follows:

“It (Wood vs. Woad, (1874) 9 Ex 190) contains a every valuable statement by the Lord Chief Baron as to this view of the mode of administering justice by persons other than Judges who have judicial functions to parform which I should have been very glad to have had before me on both those club cases that I recently heard, namely, the case of Fisher vs. Keane, (1880) 11 Ch. D. 353:(49 L.J. Ch. 11) and the case of Lebouchare vs. Earl of Wharncliffe, (1830) 13 Ch. D. 346:(41 L.T. 638). The passage I mean is this, referring to a committee:‘They are bound in the exercise of their intentions by the rule expressed in the maxim “Audi alteram partem”, that no man should be condemned to consequences without having the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals.”

74.  This opinion was quoted with approval by Lord Macnaghten in Lapoints vs. L’ Association, etc. de Montreal, (1906) A.C. 535:(75 L.J. P.C. 73). In that case, on an application for pension by the appellant, who had been obliged to resign, the Board of Directors, without any judicial inquiry into the circumstances, resolved to refuse the claim on the ground that he was obliged to tender his resignation. This procedure was condemned by Lord Macnaghten as being “contrary to rules of society and above all contrary to the elementary principles of justice.” These observations of Lord Macnaghten were referred to and relied on in The King vs. Tribunal of Appeal under the Housing Act, 1919, (1920) 3 K. B. 334:(89 L. J. K. B. 1133). In that case, a company proposed to build a picture house and the local authority having prohibited the building, the company appealed under the Housing (Additional Powers) Act, 1919, which contained a provision that an appeal could in certain cases be properly determined without a hearing and that the appellate Court could dispense with the bearing and determine the appeal summarily. It was held that the meaning of R. 7 was that the tribunal on appeal might dispense with an oral hearing, not that they might dispense with a hearing of any kind, and that they were bound to give the appellants a bearing in the sense of an opportunity to make out a case. The Earl of Reading in delivering the judgment observed:

“The principle of law applicable to such a case is well stated by Killy C. B. in Wood vs. Woad, (1874.2 Ex. 190) in a passage which is often with approval by Lord Maonaghten in Lapointe vs. L’ Association, etc., de Montreal, (1906) A. C. 535:(75 L. J. P. C. 73)…”

75.  In Local Government Board vs. Arlidge, (1915) A. C. 120 1 (84 L. J. K. B. 72), the Local Government dismissed an appeal by a person against whom a closing order had been made under Housing Town Planning, and c. Act, without an oral hearing and without being allowed to see the report made by the Board’s Inspector upon public local inquiry. The House of Lords did not interfere with the order on the ground that the appeal had been dealt with by an administrative authority whose duty was to enforce obligations on the individual in the interests of the community and whose character was that of an organization with executive functions. The principle however was conceded and lucidly set forth that when the duty of deciding an appeal is imposed those whose duty it is to decide it must act judicially, and they must deal with the question referred to them without bias and must give to each of the parties an opportunity of presenting its case, and that the decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. Commenting upon this case, which is generally regarded as an extreme case, Mr. Gavin Simonds who afterwards became a member of the House of Lords observes:

“I think you would agree that if the subject-matter of such proceedings as are here indicated was the liberty of the subject, or indeed his life, you would regard such a judicial procedure as outrageous.” (See C. K. Allen’s “Law and Orders”‘, page 167).

76.  I have particularly referred to cases which were before administrative tribunals, because I have to deal in this case with preventive detention which is said to be an executive act and because I wish to point out that even before executive authorities and administrative tribunals an order cannot generally be passed effecting one’s rights without giving one such hearing as may be appropriate to the circumstances of the case. I have only to add that Halsbury after enumerating the most important liberties which are recognized in England, such as right of personal freedom, right to freedom of speech, right of public meeting, etc., adds:

“It seems to me that there should be added to this list the following rights which appear to have became well-established-the right of the subject to have any case affecting him tried in accordance with the principles of natural justice particularly the principles that a man may not be a judge in his own cause, and that no party ought to be condemned unheard, or to have decision given against him unless he has been given a reasonable opportunity of putting forward his case…” (Halsbury Laws at England, Edn. 2, Vol. 6, p 392).

77.  The question is whether the principle that no person can be condemned without a hearing by an impartial tribunal which is well recognized in all modern civilized systems of law, and which Halsbury puts on a par with well recognized fundamental right cannot be regarded as part of the law of this country. I must confess that I find it difficult to give a negative answer to this question. The principle being part of the British system of law and procedure which we have inherited, has been observed in this country for a very long time and is also deeply rooted in our ancient history being the basis of the panchayat system from the earliest time. The whole of the Criminal Procedure Code, whether it deals with trial of offences or with preventive or quasi-administrative measures such as are contemplated in Ss. 107,108,109, l10 and 145, is based upon the foundation of this principle, and it is difficult to see that it has not become part of the law of the land” and does not inhere in our system of law. If that is so, then “procedure established by law” must include this principle, whatever else it may or may not include. That the word ‘law’ used in Art. 21 does not mean only State-made law is clear from the fact that though there is no statute laying down the complete procedure to be adopted in contempt of Court cases, when the contempt is not within the view of the Court, yet such procedure as now prevails in these cases is part of our law. The statute-law which regulates the procedure of trials and enquiries in criminal case does not specifically provide for arguments in certain cases, but it has always been held that no decision should be pronounced without hearing arguments. In a number of cases, it has been held that though there may be no specific provision for notice, in the statute, the provision must be read into the law. I am aware that some Judges have expressed a strong dislike for the expression “natural justice” on the ground that it is too vague and elastic, but where there are wellknown principles with no vaguaness about them, which all systems of law have respected and recognized, they cannot be discarded merely because they are in the ultimate analysis found to be based on natural justice. That the expression “natural justice” is not unknown to our law is apparent from the fact that the Privy Council has in many criminal appeals from this country laid down that it shall exercise its power of interference with the course of criminal justice in this country when there has been a breach of principles at natural justice or departure from the requirements of justice:[See In re Abraham Mallory Dellet, (supra) Taba Singh vs. Emperor, 48 Bom, 515; George Gfeller vs. The King, A.I.R. (30) 1943 P.C. 211 and Bugga vs. Emperor, A.I.R. (6) 1919 P.C. 108. In the present case, there is no vaguenes about the right claimed which is the right to have one’s guilt or innocence considered by an impartial body and that right must be read into the words of Art. 21. Article 21 purports to protect life and personal liberty, and it would be a precarious protection and a protection not worth having, if the elementary principle of law under discussion, which, according to Halsbury, is on a par with fundamental rights is to be ignored and excluded. In the course of his arguments, the learned counsel for the petitioner repeatedly asked whether the Constitution would permit a law being enacted, abolishing the mode of trial permitted by the existing law and establishing the procedure of trial by battle or trial by ordeal which was in vogue in olden times in England. The question envisages something which is not likely to happen, but it doss raise a legal problem which can perhaps be met only in this way that if the expression “procedure established by law” simply means any procedure established or enacted by statute it will be difficult to give a nagative answer to the question, but if the word ‘law’ includes what I have endeavored to show it does; such an answer may be justified. It seems to me that there is nothing revolutionary in the doctrine that the words “procedure established by law” must include the four principles set out in Professor Willis’ book, which, as I have already stated, are different aspects of the same principle and which have no vagueness or uncertainty about them. These principles, as the learned author points out and as the authorities show, are not absolutely rigid principles but are adaptable to the circumstances of each case within certain limits. I have only to add that it has not been seriously controverted that “law” in this article means valid law and “procedure” means certain definits rules of proceeding and not something which is a mere pretence for procedure.


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