Article 21: Protection of life and personal liberty :  No person shall be deprived of his life or

personal liberty except according to procedure established by law.

Procedure Established by Law

It means that a law that is duly enacted by legislature or the concerned body is valid if it has
followed the correct procedure. In this the court would assess that whether there is law or not,
whether the Legislature is competent to frame the law and whether it had followed the procedure
laid down to legislate and would not assess the intent of the said law.

Following this doctrine means that, a person can be deprived of his life or personal liberty
according to the procedure established by law. So, if Parliament pass a law, then the life or
personal liberty of a person can be taken off according to the provisions and procedures of the
that law.

This doctrine has a major flaw. It does not assess whether the laws made by Parliament is fair,
just and not arbitrary. “Procedure established by law” means a law duly enacted is valid even if
it’s contrary to principles of justice and equity. Strictly following procedure established by law
may raise the risk of compromise to life and personal liberty of individuals due to unjust laws
made by the law making authorities. Thus Procedure established by law protect the individual
against the arbitrary action of only the executive. It is to avoid this situation, SC stressed the
importance of due process of law.

Due Process of Law

Due process of law doctrine not only checks if there is a law to deprive the life and personal
liberty of a person, but also see if the law made is fair, just and not arbitrary. If SC finds that any
law as not fair, it will declare it as null and void. This doctrine provides for more fair treatment
of individual rights.

Under due process, it is the legal requirement that the state must respect all of the legal rights
that are owed to a person and laws that states enact must confirm to the laws of the land like –
fairness, fundamental rights, liberty etc. It also gives the judiciary to assess the fundamental

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fairness, justice, and liberty of any legislation.Thus Due process protect the individual against the
arbitrary action of both executive and legislature.

The difference in layman’s terms is as below: Due Process of Law = Procedure Established by
Law + The procedure should be fair and just and not arbitrary.

History of Due Process of law

Due process developed from Clause 39 of the Magna Carta in England. When English and
American law gradually diverged, due process was not upheld in England, but did become
incorporated in the Constitution of the United States.

A K Gopalan vs State of Madras, 1950

In A K Gopalan vs State of Madras case Apex court took narrow view of article 21 and held that
Article 21 has no relationship with Article 14 and 19 and said that personal liberty has nothing to
do with rights given in article 19, which talks about different type of liberty and also held that
article 14 which talks about reasonableness has also no relationship with Article 21. Apex court
made literal interpretation of procedure establish by law.

In Maneka Gandhi vs Union of India case supreme court took broad view and held that there is
the formation of golden triangle amongst article 14 19, and 21. Apex court held that procedure
must be fair just and reasonable

In other words in  A.K Gopalan Vs state of madras 1950, SC held that Article 21 guarantees only
personal liberty for individual therefore the individual enjoys protection for his bodily part but
not the protection of the aspect of liberties such as right to movement, right to freedom and
speech.

Maneka Gandhi Vs UOI ,1978

In Maneka Gandhi Vs UOI 1978, SC overruled its earlier decision and held that there is no
difference between liberty and personal liberty. Therefore arrest and detention of an individual
has not only to satisfy Art -21 but also Art -19.

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Both the rights of personal security and personal liberty recognised by what Blackstone termed
‘natural law’ are embodied in Act. 21  of the Constitution.

The mere prescription of some kind of procedure cannot even meet the mandate of Article 21.
The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or
arbitrary. The question whether the procedure prescribed by law which curtails or takes away the
personal liberty guaranteed by Art. 21 is reasonable or not has  to  be considered.

Principle of natural justice are inherently enforced in Art -21 and succeeded in reality the due
process of law in Art -21.

This decision heralded an era of judicial activism in India.

As we have seen, the term “procedure established by law” is used directly in the Indian
constitution. Due Process of Law has much wider significance, but it is not explicitly mentioned
in Indian Constitution. The due process doctrine is followed in United States of America, and
Indian constitutional framers purposefully left that out. But in most of the recent judgments of
the supreme court, the due process aspect is coming into picture again.

So it can be said that it is a journey from procedure establish by law to due process of law.

Conclusion

In India a liberal interpretation is made by judiciary after 1978 and it has tried to make the term
‘Procedure established by law’ as synonymous with ‘Due process’ when it comes to protect
individual rights. In Maneka Gandhi vs Union of India case (1978) SC held that – ‘Procedure
established by law’ within the meaning of article 21 must be ‘right and just and fair’ and ‘not
arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement
of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the
same significance in India as the ‘due process of law’ clause in America.