In 1934 M.N. Roy, a pioneer of communist moment in India, introduced the idea of formation of constituent assembly for India for the first time. The constituent Assembly was constituted in November 1946 under the scheme formulated by the cabinet mission plan. The constituent was a partly elected and partly nominated body. Although, the people of India on the basis of adult franchise did not directly elect the constituent assembly the assembly comprised representatives of all sections of the Indian society.

The constituent assembly held its first meeting on December 9 1946. The meeting was, attended by 211 members. Later Dr. Rajendra Prasad was, elected as the president of the assembly. Similarly, both H.C. Mukherjee and V.Y. Krishnamachari were elected as the vice- presidents of the assembly.

The drafting committee was constituted on August 29, 1947. With Dr. B.R. Ambedkar as its chairperson. This committee was entrusted with the task of preparing a draft of the present constitution.

The drafting committee, after taking into consideration the proposals of the various committees, prepared the first draft of the constitution of India, which was published in February 1948.
On 23 April 1947, the Advisory Committee on minorities and fundamental rights presented an interim report.

And the clause 9 of the same reads as follows:
No person shall be deprived of his life or personal liberty, without due process of law, nor shall any person be denied the equal treatment of the laws within the territories of the union.
Clause 9 was revised and adopted by the Constituent Assembly on April 30, 1947, as follows:
"No person shall be deprived of his life, or liberty, without due process of law, nor shall any person be denied equality before the law within the territories of the Union".

In the final submission of the draft constitution in February 1948, clause 9 or draft Article 15 which was similar to current Article 21 of the constitution reads today except the word personal had been included before liberty and without due process of law had been replaced with except according to procedure established by law.

Reasons behind Removing the Term Due Process of Law

The true explanation for the change, however, appears to be the nature of the legislature's relationship with the judiciary. The United States Supreme Court's abuse of substantive due process caused B.N. Rau to point out, even before any proposal was given to the Constituent Assembly, that a due process clause would obstruct positive social legislation.

The historic encounter between B.N. Rau and Justice Felix Frankfurter proved to be the last nail in the coffin. Justice Frankfurter persuaded Rau that the due process clause's implicit judicial review power was undemocratic and burdensome to the judiciary. Rau convinced the drafting committee and the due process clause was removed, despite significant objections.

The very real problem of communal violence that the country faced in the aftermath of partition was also cited as a reason for the change. Preventive detention tactics, which were utilized during British colonial administration without constitutional protections of due process, were seen to be the most efficient at preventing communal conflict. In this context, Govind Ballabh Pant stated that if mischief-makers could not be prosecuted, communal unrest would continue unabated, and that limiting the legislature's discretion would inevitably culminate in anarchy.

The objection to the removal of the "due process" clause was principally motivated by the need to preserve individual liberty from the excesses and arbitrariness of executive actions. The introduction of draft Article 15A, which subsequently became Article 22 of the Indian Constitution, helped to overcome this problem to some extent.

Procedure Established By the Law
Article 21 of the Indian constitution states that "No person shall be deprived of his life and personal liberty except according to the procedure established by law".

Therefore, here Article 21 of the Indian constitution secures two Fundamental Rights:

• Right to Life and;
• Right to Personal liberty

That means rights mentioned above cannot be taken away from any person without following the procedure established by law.

Now, what do we understand by the term procedure established by law, it simply means that any legislation which is made by the legislative or by any authorized body will be very well valid if it has followed the correct procedure.

Hence, if legislature made any law the life and personal liberty of any person can be taken away as per the procedure and provision of that particular law. The scope of this principle widened in the case of Maneka Gandhi V. Union of India[1], which we will discuss in detail further.

Due Process of Law

It is an English concept mentioned in Magna Carta and upheld in America. It has a wider connotation in comparison to Procedure Established by law.

The fifth amendment of American constitution provided that "No person shall be deprived of life, liberty and property without due process of law" and the 14th amendment of the US constitution put the similar legal obligation over all the states.

Due process of law is a doctrine, which checks whether the concerned law or the law, which is in dispute is fair or not, or is that law depriving any person from his life and personal liberty. It also see that the law, which has been enacted by the concerned authorities, must be just, fair and not arbitrary.

Doctrine of Procedure Established By Law versus Due Process of Law

Maybe the doctrines mentioned above look interchangeable but there are drastic differences between the two, below we are going to discuss those differences in a very simple manner.

Procedure Established by Law

• The Doctrine of procedure Established by law originated from British constitution.
• It does not assess whether the laws made by the legislature or by the concerned authority is fair, just and not arbitrary.
• The judiciary's role is limited to evaluating the procedure used by the legislature to enact the law in question.
• It solely safeguards a citizen's rights from the executive's arbitrary actions.

Due process of law

• The doctrine of due process of law is an English concept mentioned in Magna Carta and upheld in America
• It determines whether a law is valid by examining both its procedural and substantive characteristics.
• The judiciary has the power to determine the laws' procedural adequacy as well as its intention.
• It safeguards citizens' rights from both executive and legislative actions.

Doctrine of Procedure Established By Law and Indian Judiciary

The Indian judiciary has from time to time defined the scope of doctrine of procedure established by law in various cases.

AK Gopalan V. State of Maharashtra [2]

The dispute regarding the definition or meaning of the term firstly came into light in this particular case.

In this case, the petitioner detained under preventative detention Act of 1950. It argued that, the expression Procedure Established by Law was interchangeable with the expression Due process of law of the US Constitution. Stated that the Indian constitution provides the same protection with the only difference, that the expression of due process interpreted in a way by American courts, that it will give protection to substantive law as well as to procedural law. However, the Indian constitution only guaranteed the protection related to procedural laws.

The petitioner contented that the exclusion of word "due", has made no difference for the interpretation of Article 21 of the Indian Constitution. The word established was not identical to word prescribed but had a broader meaning. The word law did not mean, the law, which enacted by the legislature after following the procedure, which is prescribed in the constitution. Nevertheless, meant that the law, which enacted by the legislature, must follow the principles of natural justice.

However, the Supreme Court rejected the contentions of petitioner and held, The procedure established by law and Due process of law as adopted in America are not the same concept. There was no reasonable reason given for adoption of the word law by the US Supreme Court in Due Process of Law. The court applied the rule of literal interpretation and held by majority, that the procedure established by law shall mean the procedure prescribed by the law of the state.

In simple words, it said that, if the executive follows the procedure which is given under the law will be a valid law and the detention will be valid. Regardless, of whether the procedure that is there in the law is unjust or arbitrary in nature. By doing so, the Supreme Court made a clear difference between the two concepts.

ADM Jabalpur V. Shivkant Shukla [3]

This case popularly known as Habeas Corpus case. The Supreme Court in this case, reversed the views of high court. Held that, no person has locus standi to file a petition under Article 226 of the Indian constitution, under any High court for Habeas corpus or for any other writ, and examining whether the detention under the Act was based on proper satisfaction of executive authority or not.

Hence, the detainee had no locus standi to file a writ petition for challenging the legality of the detention.

However, Justice HR Khanna was the only judge who dissented with the judgement. He stated that enforcing Article 359 which deals with the power of the president to suspend the right to enforce fundamental rights. Guaranteed by part III of the Indian constitution does not deprive any persons' right to approach to the court for the enforcement of the rights, given in any statute.

He further pointed out that:

• Article 21 is not the only guarantor of life and personal liberty.
• At the time when emergency is in force, Article 21 only loses the procedural power but not the substantive power and the state does not have the power to take away the right of any person without the authority of law.

New Dimension of Procedure Established By Law in Maneka Gandhi Case by Supreme Court of India

Maneka Gandhi V. Union of India [4]

This was the landmark judgement after the emergency period. In this case, the Supreme Court overruled the Gopalan case and extended the scope of Article 21, which will now protect the right to life and personal liberty of citizens not only from the executive actions but from legislative actions also. In this case, it was further stated that "due process of law" is an integral part of "procedure established by law".

Brief facts of the case
In this case, the central government seized the passport of the petitioner under section 10(3)(c) of the passport Act, 1967. The Act authorized the union government to do so if necessary in the interest of general public.

Arguments of the petitioner

• Section 10(3)(c) of the Act was violative of Article 14 of the constitution as it gives arbitrary power to the union government as it did not provide a provision for a hearing of the passport holder before passport was impounded.
• Section 10(3)(c) was violative of article 21 of the constitution as it did not provide any procedure under Article 21 of the Indian constitution
• Article 19 from clause (2) to clause (6) of the constitution talks about reasonable restrictions but section 10(3)(c) was violative of Article 19(1)(a) and (g) as the permitted restriction under the said section not provided under clause (2) and (6) of Article 19.

Contentions of the Respondents

• According to the respondent, the passport seized, because the petitioner had to appear before a government committee for a hearing.
• It stated by the respondent, that the term law under Article 21 could not interpreted as embodied in the fundamental precepts of Natural Justice, citing the AK Gopalan case.
• The term "Procedure Established by Law" under Article 21 of the Indian constitution and such a procedure does not have to pass the reasonability test or be in accordance with Article 14 and Article 19.
• The American principle of Due process of Law versus Procedure the British Procedure Established by Law were hotly debated among the framers of our constitution, the conspicuous absence of due process of law from the Indian constitution clauses reveals the objective of the constitution framers intention.

Issues Before the court

• Are the provisions of Article 21, 14 and 19 of the Indian constitution related to one another or mutually exclusive?
• Should the procedure established by law, which in this case was passport Act, 1967, be put to the test for reasonableness?
• Is it correct that article 21 includes the right to travel outside the country?
• Is it reasonable to pass a legislative law that takes away the right to life?

Judgment of the Court
The Supreme Court held that:

• Although the term used in Article 21 is "procedure established by law" rather than "due process of law," the court amended the face of the Constitution by declaring that the procedure stated must be free of the vices of irrationality and arbitrariness.
   
• The court overruled the Gopalan's Case and held that there is interrelationship between Article 14, Article19 and Article 21 and every law must satisfy the criteria set forth in the mentioned articles. The Supreme Court by majority in the Gopalan's case previously held that Article 19 has no application to laws depriving a person of his life and personal liberty enacted under article 21 of the constitution. Hence, the court held that these articles are not mutually exclusive but dependent on one another, by rectifying its earlier error.
   
• Personal liberty under article 21also includes right to travel abroad as held in case of Satwant Singh Sawhney v. D Ramarathnam,[5]

Held by court that the phrase "personal liberty" not to be interpreted narrowly or strictly. Personal liberty as per the court understood in a broad and liberal manner. Hence, Article has given an extensive interpretation. The court ordered that future courts extend Article 21 perspectives to include all Fundamental Rights, rather than interpreting it narrowly.

Neither Article 21 nor Article 19(1)(a) or 19(1)(b) of the Indian Constitution are violated by Section 10(3)(c) and (g) of the passport Act, 1967. The court further held that the 1967 provision was not in violation of Article 14. Because the aforementioned provision allows for an opportunity to be heard. The petitioner claim that the phrase "in the interests of the general public" is not vague dismissed by the court.

The court stated further that section 10(3)(c) of the Act is an administrative order, hence can be challenged based on unreason ability, ultra vires and arbitrariness.

Conclusion
It can be said that, prior to Maneka Gandhi case the scope of article 21 was very narrow, in the above mentioned case the Supreme Court widened the scope of Article 21 of the Indian constitution, by stating that "due process of law" is an integral part of "procedure established by law". In addition, a person can be deprived of his life and personal liberty only if the conditions, which are mentioned below, are fulfilled:

1. There must be a valid law.
2. The law must provide a procedure, and;
3. The procedure must be fair, just and reasonable.

If the procedure prescribed by law is fanciful, oppressive and arbitrary in nature then it should not be a procedure at all and not all the requirements of Article 21 would be satisfied.
The Court also answered the question that what would amount to fair and just procedure? The court said that, a procedure must be fair or just must embody the principle of natural justice. Natural justice is intended to invest law with fairness and to secure natural justice. The court further said; 'law' should be reasonable law, and not extended piece of law.

End-Notes:

1. 1978 AIR 597, 1978 SCR (2) 621
2. AIR 1950 SC 27; 1950 SCR 88
3. AIR 1976 SC 1207
4. 1978 AIR 597, 1978 SCR (2) 621
5. AIR 1836, 1967 SCR (2) 525

Written By: Adya Choubey, B.Com LL.B (Hons.) Pursuing LL.M