Law and “Procedure established by law”

“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”.

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.

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.

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).

 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.

Much relience was placed on the Irish case The King vs. The Military Governor of Hare Park Camp, (1924) 2 Ir R. 104, where the Court held that the term “law” in Art 6 of the Irish Constitution of 1922 which provides that “the liberty of the person is inviolable and no person shall be deprived of his liberty except in accordance with law” meant a law enacted by the Parliament, and that, therefore, the Public Safety Act of 1924 did not contravene the Constitution. The Court followed The King vs. Halliday, 1917 A. C. 260, where the House of Lords by a majority held that the Defence of the Realm (Consolidation) Act, 1914, and the Regulations framed thereunder did not infringe upon the Habeas Corpus Acts and the Magna Carta”for the simple reason that the Act and the Orders become part of the law of the land”. But that was because, as Lord Dunedin pointed out:

“The British Constitution has entrusted to the two Houses of Parliament subject to the assent of the King, an absolute power untrammelled by any written instrument obedience to which may be compelled by some judicial body,”

whereas the Irish Constitution restricted the legislative powers of the Irish Parliament by a formal declaration of fundamental rights and by providing for a judicial review of legislation in contravention of the Constitution (Art. 65). This radical distinction was overlooked.

The Attorney-General further submitted that, even on his interpretation, Art. 21 would be a protection against violation of the rights by the executive and by individuals, and that would be sufficient justification for the Article ranking as a fundamental safeguard. There is no substance in the suggestion. As pointed out in Eshugbayi Eleko vs. Officer Administering Government of Nigeria, 1931 A. C. 662:, the executive could only act in pursuance of the powers given by law and no constitutional protection against such action is really needed. Even in monarchical Britain the struggle between prerogative and law has long since ended in favour of the letter:

“In accordance with British jurisprudence” said Lord Atkin in the case cited above, “no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice.”

As for protection against individuals, it is a misconception to think that constitutional safeguards are directed against individuals. They are as a rule directed against the State and its organs. Protection against violation of the rights by individuals must be sought in the ordinary law. It is, therefore, idle to suggest that Art. 21 was designed to afford protection against infringements by the executive or individuals. On the other hand, the insertion of a declaration of Fundamental Rights in the forefront of the Constitution, coupled with an express prohibition against legislative interference with these rights (Art. 13) and the provision of a Constitutional sanction for the enforcement of such non-interference by means of a judicial review (Art. 32) is, in my opinion, a clear and emphatic indication that these rights are to be paramount to ordinary State made laws.

After giving the matter my most careful and anxious consideration, I have come to the conclusion that there are only two possible solutions of the problem. In the first place, a satisfactory via media between the two extreme positions contended for on either side may be found by stressing the word “established” which implies some degree of firmness, permanence and general acceptance, while it does not exclude origination by statute. “Procedure established by law” may well be taken to mean what the Privy Council referred to in King .Emperor vs. Benoari Lal Sharma, 1945 F. C. R. 161 as “the ordinary and well-established criminal procedure,” that is to say, those settled usages and normal modes of proceeding sanctioned by the Criminal Procedure Code which is the general law of criminal procedure in the country. Their Lordships were referring to the distinction between trial by special Courts provided by an Ordinance of the Governor- General and trial by ordinary Courts under the Criminal Procedure Code. It can be no objection to this view that the Code prescribes no single and uniform procedure for all types of cases but provides varying procedures for different classes of cases. Certain basic principles, emerge as the constant factors common to all those procedures, and they form the core of the procedure established by law. I realise that even on this view, the life and liberty of the individual will not be immune from legislative interference, for a competent Legislature may change the procedure so as to whittle down the protection if so minded. But, in the view I have indicated, it must not be a change ad hoc for any special purpose or occasion, but a change in the general law of procedure embodied in the Code. So long as such a change is not effected, the protection under Art. 21 would be available. The different measures of constitutional protection which the fundamental right to life and personal liberty will enjoy under Art. 21 as interpreted in the three ways referred to above will perhaps be best illustrated by a concrete example. Suppose that Art. 22 (1) was not there and Parliament passed an Act, as a temporary measure, taking away in certain cases the right of an accused person to be defended by a legal practitioner. According to the petitioner’s learned counsel, the Act would be void as being contrary to the immutable principles of natural justice embodied in Art. 21, whereas on the construction contended for by the Attorney-General the Act would be perfectly valid, while, on the view I have indicated above, the Act would be bad, but if the denial of such right of defence is made a normal feature of the ordinary law of criminal procedure by abrogating S. 340 (1) of the Code, Art 21 would be powerless to protect against such legislative action. But in a free democratic republic such a drastic change in the normal law of procedure, though theoretically possible, would be difficult to bring about, and that practical difficulty will be the measure of the protection afforded by Art. 21.