"Liberty is itself the gift of the law and may by the law forfeited or abridged."[1]

Personal liberty consists in the power of locomotion or movement of one's person to whatsoever place inclination may direct, without restraint, unless by 'due course of law'. AS per Common Law, every invasion of private property is considered a trespass. No man can enter another's ground unless licensed to do so. Liberty, however, cannot exist in the absolute sense because it would signify a state of society in which everyone would be free to do whatever they intend.

Therefore, the subject-matter of all laws in the world is the limitation of the scope of liberty. Without any classifications, liberty would yield anarchy and restlessness, it would be harder to govern a populace without first setting some boundaries.[2] The need to restrict personal liberty by law arose as a measure to ensure the State's control over lawlessness and anarchical behavior. In this context, two legal principles came to light, 'procedure established by law' and 'due process of law'.

Out of the various schools of jurisprudence, the tenets of 'procedure established by law' are in consonance with the positivist school that is known for its disregard of morality. And the doctrine of 'due process of law' can be said to concur with the Natural or Philosophical school.

The concepts of "procedure established by law" and "due process of law" are two crucial legal principles that play a significant role in ensuring justice and fairness in any legal system. While both of these concepts may seem similar, they have distinct differences that can have a significant impact on how legal proceedings are conducted and how justice is served.

Between 1937 and 1939, the provincial Congress regimes had abolished several statutes allowing preventive detention. If the phrase 'absolute power corrupts absolutely' was to have some physical manifestation it would be the fact that provincial Congress regimes enacted 'Public Order' and 'Public safety' laws in dozens of provinces between 1947 and 1951. These gave them the power to regulate a person's action/movement to prevent any act in contravention to public safety or public order. These included the right to extern or force the individual to reside in an area or report his movements to authorities.

The government had broad powers to regulate the conduct in any manner otherwise than is covered by the above specific provision.[3] To keep the pre-existing laws in effect, the President Rajendra Prasad issued an ordinance, however, the high courts across the country kept striking down these laws. The Presidential order under Article 371 was overturned on various occasions, like the Bihar High Court overturned it in Brameswar Prasad V The State of Bihar[4] and the Calcutta High Court in Sunil Kumar Bose V State of West Bengal[5]. The Home ministry under Sardar Patel was always inclined towards the provision for a harsh preventive detention law, the Constituent Assembly kowtowed.[6]

The reasoning given by Patel is relevant to understand why the newborn legislature wanted to curtail personal liberty in the first place. He believed that where the very basis of law was undermined when a state of affairs was created where men ceased to be men and law ceased to be law. He claimed that the Preventive Detention Act, 1950 was not against an ideology or party but for those who make the functioning of a normal government impossible. He wanted the members in the Parliament to think of the 'liberties of the millions' that could be threatened by the actions of the 'individuals whose liberties were curtailed'.

He ensured that he intended to protect civil liberties, but he hated criminal liberties.

The bill was criticised by many and H.V Kamath predicted that section 14 of the bill maybe declared void by the Court as it limits the power of judicial review in vague terms. It must be noted that this Preventive Detention Act, 1950 came up for questions in the much celebrated AK Gopalan case from where I seek to begin this discussion.

Article 21	Fifth Amendment
No person shall be deprived of his life or personal liberty except according to procedure established by law	No person shall be deprived of Life, Liberty and property, without due process of law.

Procedure Established by Law:
The promise of Article 21 is that No person shall be deprived of his or her life and personal liberty except according to the 'procedure established by law'. This is interesting as this phrase only limits the executive and not the legislative wing of the state. If the words 'procedure established by law' ought to be construed literally, it means that a person can be deprived of his life and personal liberty if such deprivation conforms to a validly enacted law.

Justice Felix Frankfurter is reported to have suggested BN Rau to drop the term 'due process of the law' from the draft constitution and replace it with 'Procedure Established by law'. Frankfurter's suggestion was a product of the experience of the American justice system with the term 'due process of law' which was used by US Courts to quash social welfare laws. The framers were constantly weary about the use of 'due process', they made many changes before ultimately replacing the term. Changes like the omission of the property clause, the limiting of liberty to mean only 'personal liberty' are some examples.

BN Rau was suspicious that it would confer vast power on to the courts to dictate against the representatives of the people. The Lochner case[7] where the Court quashed a law which disallowed bakers from making employees work beyond sixty hours a week or beyond ten hours a day, reasoning that it interfered with personal liberty of contract. So in the backdrop of all these contemporary facts, the Indian legislature adopted the principle of procedure established by law.

The AK Gopalan Case[8]
The young Supreme Court of India was faced with the task of interpreting Article 21 in the early years of the republic. The case challenged the legality of the Preventive Detention Act of 1950 upon the detention of AK Gopalan, a communist leader. HV Kamath was right, the court struck down section 14 of the act but it held the rest to be constitutional. The bench held that the words 'personal liberty' are not confined to mean only the liberty of a person. Instead, the court reasoned that the words include the liberty or right attached to the person (or jus personem).

Thus, in the court's opinion, the words were capable of including the rights enshrined in Art. 19. But the court declared that because the constitution treats these rights as distinct Art. 19 does not apply to laws that are used to deprive someone of personal liberty under Article 21. The majority held that 19 and 21 occupy distinct domains within the constitution and do not overlap.

There are differences, like Article 19 is available to all citizens and Article 21 ensures protection to all persons. In the court's opinion, this included more restrictions on the State under Article 19. A conjoint reading of Articles 19 and 21, in the court's opinion, would have resulted in the alleged deprivation of liberty being evaluated against the provisions of Article 19.

The court expressed its view that the term 'law' refers specifically to law created by the State and not to the broader concept of law as an embodiment of the principles of natural justice. Additionally, the phrase "procedure established by law" is to be interpreted as referring exclusively to procedures established by law created by the State, i.e. the Union Parliament or the Legislatures of the States. It is not appropriate to interpret this phrase based on the definition of "due process of law" as defined by the Supreme Court of America in the American Constitution. Fazal Ali dissented and presented the view that the principles of natural justice must be ensured just so no one is condemned unheard in a democracy.

In Gopalan, the court relied on Munn v. Illinois to support its interpretation that "procedure established by law" means only that a law must exist that authorizes the deprivation of life or personal liberty, and does not require that the law be fair or just. The court held that as long as there is a law that authorizes the deprivation of life or personal liberty, it cannot be challenged on the ground of being unfair, unjust or unreasonable.

RC Cooper V Union of India[9]
In the case of RC Cooper, the Supreme Court made a significant contribution by overturning the majority position in Gopalan that had held that Articles 19 and 21 dealt with separate and exclusive areas. In the context of the right to property under Articles 19(1)(f) and 31, the Court held that the freedoms and rights enshrined in Part III of the Constitution could be addressed by more than one provision. This decision helped to clarify the relationship between different provisions of the Constitution and ensured that the fundamental rights of citizens were adequately protected.

ADM Jabalpur V Shiv Kant Shukla[10]
Fast forward 20 years, the Supreme Court was once again at crossroads with the task of preserving life and personal liberty, this time in the context of a National Emergency. The Court surprisingly held Article 21 to be the sole repository of 'life and personal liberty', claim beyond which cannot be sustained. It was in this judgement that Justice HR Khanna gave his masterly dissent where he held that right to life and personal liberty was an inherent right.

Khanna argued that if a law allows for the capricious and malicious taking of lives without legal authority, it could be argued that such actions are being carried out in accordance with that law. He contended that even the organized mass murders perpetrated by the Nazi regime could be seen as a form of law if the system or norm is based on a hierarchy of orders. This argument suggests that any system or norm that is based on hierarchy and authority can be used to justify horrific acts of violence, even if they violate basic principles of justice and humanity.

Satwant Singh's case: Maneka Gandhi minus Due Process[11]
In Satwant Singh, a manufacturer, importer, and exporter of automobile parts and engineering goods challenged the external affairs ministry's request to surrender his passports on the ground of avoiding a trial for offences under laws governing imports and exports. He claimed his fundamental rights under Articles 14 and 21 were violated. Although the Supreme Court treated fundamental rights under Articles 14, 19, and 21 as distinct, it recognized that 'liberty' under Article 21 excluded only what was otherwise expressly protected under Article 19.

While the court concluded that the right to life and personal liberty could be taken away by a 'procedure established by law,' it canceled the government's order based on the absence of a procedure regulating passport denial/surrender under the Indian Passport Act, 1920. Parliament enacted the Passports Act, 1967, to regulate passport-related matters soon after the Satwant Singh judgment.

The rationale was that there was no Procedure Established by law for the taking away of the passport.[12]

To prevent further the sacrifice of the right to life and personal liberty at the altar of state's legislature, under the guise of a 'procedure established by law', the Supreme Court devised a remedy in 1978.

Due process of law

Types	Meaning vis-à-vis Article 21
Pure Form Due Process	This is plainly to explore the motive of the framers of the constitution. Deprivation under a validly enacted law is constitutional.
Procedural Due Process	The Procedure that ought to be followed for depriving someone of her/his life and personal liberty must be just, fair and reasonable.
Substantive Due Process	Herein, the courts can examine the validity of substantive laws and check if they themselves are just, fair and reasonable.

The exclusion of the phrase "due process of law" caused a commotion in the Constituent Assembly, leading members to propose several amendments to restore it. Alladi Krishnaswami Ayyar was the only member who strongly supported its removal. Ayyar argued that including the phrase "due process of law" would create significant obstacles for social legislation and give excessive discretion to the courts, leading to unpredictable judicial decisions.

Although Ambedkar had mixed feelings about the deletion, those in favor of reintroducing "due process of law" claimed that the phrase "procedure established by law" would only enable courts to engage in a form of due process in a purely procedural sense, rather than in the substantive sense. Kazi Syed Karimuddin, for example, argued that the current clause did not permit the courts to examine "the injustice of a law or into a capricious provision in a law." On December 13, 1948, all proposed amendments to the clause were rejected, resulting in the permanent removal of the phrase "due process of law" from the text of India's Constitution.[13]

The Maneka Gandhi Case[14]
The Supreme Court refused to club two fundamental rights in AK Gopalan, and that personal liberty does not extend to the rights exclusively provided in Article 19.

Maneka Gandhi, the daughter-in-law of former Prime Minister Indira Gandhi and founder-editor of Surya, was granted a passport in 1976. After the Janata Party ousted the Congress Party, she began using Surya as a platform to resuscitate the reputation of the Congress Party and discredit the new government's leaders.

However, in 1977, when she intended to travel abroad for a speaking engagement, the Government of India decided to impound her passport under Section 10(3)(c) of the Passports Act in what it described as, public interest. Her request to provide the reasons for the order were declined stating that it would be against "interest of the general public." Gandhi filed a writ petition in the Supreme Court challenging the passport impounding order and the government's subsequent refusal to provide reasons for it.

The Court's judgement:
It was decided that the Fundamental Rights in part III of the Indian Constitution are an integrated structure. That the violation of one right can be reasonably seen linked to the violation of another.

The Supreme Court departed from the rigid interpretation of fundamental rights in the Gopalan case and ruled that the fundamental rights are interconnected and form an integrated scheme under the Constitution. The court emphasized that the different articles dealing with fundamental rights in Part III of the Constitution should not be viewed as entirely separate streams of rights that do not intersect. The court stated that the different aspects of human freedom should be read together for the protection of impartial justice.

Thus, compliance with one fundamental right requirement would not exempt the law from the operation of other fundamental rights. The Supreme Court held that any procedure established by law under Article 21 must be "fair, just, and reasonable" and cannot be "fanciful, oppressive, or arbitrary." The government's impounding order, which was issued without providing a hearing or furnishing any reasons to Maneka Gandhi, failed to satisfy the mandate of Article 21.

The court affirmed that the right to travel abroad fell within the scope of the right to personal liberty under Article 21. It also found that the government's order was arbitrary and violated the right to equality under Article 14. Although the court made strong observations, it did not pass any formal order in the case and accepted the government's assurance that Maneka Gandhi would have an adequate opportunity to be heard.

The majority upheld the impounding of Maneka Gandhi's passport and held that her passport should remain in the court's custody in the meantime. Justice Beg, who was part of the majority, opined that the government's order was neither fair nor procedurally proper and deserved to be quashed by the court.

How the court enabled due process in India?
The Supreme Court had the task to determine whether any arbitrary and unreasonable law is enough to satisfy the requirements of Article 21. Here, the court assumed the role of a watchdog, a protector instead of a mere supervisor of the Constitution.[15] The judgment of Maneka Gandhi is based on the proposition that an unjust law is no law and no excuse to deprive someone of her/his life and personal liberty.

In summary, while the Gopalan Court previously concluded that Article 21 did not encompass procedural due process, the Maneka Gandhi case later established that it did. Consequently, any legislation that denies an individual's right to life or personal liberty must adhere to the principles of natural justice, which includes the fundamental right to a fair hearing.

This brought a radical change, the violation of life and personal liberty was no longer restricted to the confinement or arrest of a person. Instead, it opened new doors of litigation, one through which the Supreme Court derived unenumerated rights.

In the case of Olga Tellis v Bombay Municipal Corporation[16], The petitioners argued that the forced eviction of pavement and slum dwellers, without providing them with alternative accommodation, violated their right to life as it deprived them of their livelihood. This case was not a traditional Article 21 right-to-life case as eviction did not amount to arrest or detention. However, the Court ruled that the right to livelihood was an integral part of the right to life under Article 21. Therefore, the government's action was subject to the requirements set under Article 21, and section 314 of the statute was held accountable.

In the case of Sunil Batra v Delhi Administration[17], the constitutionality of section 30(2) of the Prisons Act 1894 was challenged. The provision mandated that a prisoner 'under sentence of death' must be kept in a cell apart from all other prisoners. The question was whether this provision allowed jail authorities to keep death row prisoners in solitary confinement. This case is significant because it highlights the difference between the concepts of procedural and substantive due process in criminal law.

Substantive laws are those that define offenses and prescribe punishments, while procedural laws regulate how a person sentenced to death is to be treated. As section 30(2) of the Prisons Act was a procedural law and did not prescribe a punishment, it was not subject to the same constitutional scrutiny as substantive laws.

The Court clarified that sections 73 and 74 of the Indian Penal Code contained the substantive punishment of solitary confinement, which was not under examination in the Sunil Batra case. The convict on death row challenged section 30(2) of the Prisons Act using Article 21 of the Constitution, and the Court 'read down' the provision to ensure that it was not interpreted to permit solitary confinement.

Hence, unlike Frankfurter's belief, the Indian courts did not use substantive due process to quash reform regimes or dictate to the democratically elected representative. Instead, it used it to preserve natural justice for the populace.

Conclusion
The memories of emergency were fresh and the court wanted to wash its hands clean off the verdict in ADM Jabalpur. 3 judges who wrote the famous Habeas Corpus Case were also on the bench in the the Maneka Gandhi case. Justice Beg made repeated references to his holdings in ADM Jabalpur, therefore, one can notice that a certain guilt had engulfed the Supreme Court.

The masterly dissent of Justice Khanna in ADM Jabalpur was an eye-opener that made judicial activism possible. It made the judiciary, which is considered the backbone of a democracy, question the presence of its own spine. It also removed the taboo surrounding non-concurrence to the intent of the framers of the constitution and treating their intention as sacrosanct.

Thus, the Maneka Gandhi case came as an opportunity of redemption against a judgement which was ultimately overturned 34 years later. Reminiscent of the biblical dictum, the sins of the father did come to haunt the son, the son, however, repented in the Puttaswamy case.[18]

End-Notes:

1. Queen V Halliday Ex Parte Zadiq [1917] AC 210
2. Blackstone W, Vol. 1 (Oxford: Clarendon Press, 1765), I Commentaries on the Laws of England (Oxford Clarendon Press, Baskerville, 1st edn., 1765)
3. Granville Austin, Working of a Democratic Constitution 40 (Oxford University Press, Baskerville, 1st edn., 1999)
4. AIR 1950 Patna 265
5. AIR 1950 Calcutta 274
6. Ibid 55
7. Lochner v New York 198 US 45 (1905)
8. AIR 1950 SC 27
9. AIR 1970 SC 564
10. ADM Jabalpur V Shiv Kant Shukla (1976 AIR 1207)
11. Satwant Singh v. Assistant Passport Officer, New Delhi, (1967) 3 SCR 525.
12. Zia Mody, 10 Judgements That Changed India. (Penguin Random House, 2013)
13. Mehta, P. B. ed., The Oxford Handbook of the Indian Constitution (Oxford University Press, 2016).
14. Maneka Gandhi V UOI AIR 1978 SC 597
15. Supra 12 at 30
16. (1985) 3 SCC 545
17.  (1978) 4 SCC 494
18. Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India (UOI) and Ors., (2017) 10 SCC 1