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Procedure Established by Law Due Process of Law
Procedure Established by Law Due Process of Law
Procedure Established by Law Due Process of Law
vs
Due Process of Law
Procedure Established by Law Due Process of Law
A law is valid if it has been duly This doctrine not only checks if the
enacted by the legislature and has law takes away personal life and
followed the correct procedure. liberty of a person but also concerns
Hence, a person can be deprived of that whether the law is just fair and
his personal life and liberty according non arbitrary.
to the procedure established by law.
This doctrine was enshrined in the
Flaw in the Doctrine: Indian Constitution by the Hon’ble
If Parliament passes a law, then the Supreme Court of India by the
life or personal liberty can be taken Judgment of Maneka Gandhi vs Union
off according to the provisions and of India (1978 AIR 597).
procedure established by that
particular law. Hence it does not seeks
law to be Just, fair and non arbitrary.
AK Gopalan vs State of Madras
1950 AIR 27
It was a significant decision because it
represented the first case where the court
meaningfully examined and interpreted key
fundamental rights enlisted in the constitution
including Articles 14, 19 and 21. A writ of habeas
corpus was filed. The contention was whether
under this writ and the provisions of THE
PREVENTIVE DETENTION ACT, 1950, there was a
violation of his fundamental rights which were
Article 14, 19, 21 and 22.
• Judge restricted the scope of fundamental rights
and by reading them in isolation of article 21 and
22 which provided guidelines for preventive
detention. Justice Kania said that the term due
process prevented the courts from engaging in
substantive due process analysis in determining
the reasonableness of the level of process
provided by the legislature.
• Fazal Ali dissented the Judgment by saying that
Article 21 includes the higher principle of natural
law and justice and not mere statutory
provisions.
So in CONCLUSION Gopalan case held
two major points:
• 19, 21 and 22 are mutually exclusive. Art 19
was to not apply to a law affecting personal
liberty to which art 21 applies.
• A “LAW” affecting life and liberty could not be
declared unconstitutional merely because it
lacked natural justice or due procedure.
Kharak Singh v State of Uttar Pradesh
1963 AIR 1295
• The petition under Article 32 of the Constitution of
India challenged the constitutional validity of Chapter
20 of the Uttar Pradesh Police Regulations and the
powers conferred upon police officials by its provisions
on the ground that they violate the rights guaranteed
to citizens by Articles 19(1)(d) and 21 of the
Constitution of India. On the basis of the accusations
made against him, he had police constables entering
his house and shout at his door, waking him up in the
process. On a number of occasions they had compelled
him to accompany them to the station an had also put
restrictions on him leaving the town.
• The judges made a breakthrough while interpreting and
finding the connection between article 19 and 21 by remarking
that: