Substantive Due Process and Procedural Due

Project

Anuj jain

Programme: B.A. LL.B

(Hons) Subject:
Constitutional Law II
Semester: 3rd
Roll No. : 021

Supervisor
Mr. Ashit Kumar Srivastava

Assistant Professor of Law

DHARMASHASTRA NATIONAL LAW

UNIVERSITY
Jabalpur
ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to Hon. Prof. V. Nagaraj (Vice
Chancellor of Dharamashastra National Law University, Jabalpur) for presenting me with
this opportunity to conduct a study on such an important and interesting topic. I respect and want
to thank Mr. Ashit Kumar Srivastava (Assistant Professor of Law) for providing me an
opportunity to do this project work and giving all support and guidance throughout which helped
me to complete my project on time.

I would also like to thank my parents and friends who helped me in finalizing this project within
the limited time frame.

Anuj Jain
 INDEX

 ACKNOWLEDGEMENT

 INDEX

 INTRODUCTION

 PROCEDURAL DUE

 SUBSTANTIVE DUE

 THE INDIAN EXPERIENCE WITH DUE PROCESS REVOLUTION

 JUDICIAL INTERPRETATION OF PROCEDURE ESTABLISHED BY

LAW

 TO DUE PROCESS OF LAW FROM PROCEDURE ESTABLISHED

BY LAW

 CONCLUSION

 BIBLIOGRAPHY AND REFRENCES

 Introduction
In general sense, the term due process means:

 There shall be a law prescribed in harmony or synchronisation with the general

powers of the legislature.
 That the law shall be reasonable in its operation.
 That the law shall be enforced according to the regular methods of procedure
prescribed and,
 That the law shall be applicable alike to all the citizens of the state or to all the classes.

Unlike the United States Constitution, the Indian Constitution of 1950 has no explicit
mention of 'due process of law' in any portion of the document. Without a doubt, this concept
has given the American judiciary enormous and nebulous authority over federal and state
legislatures and their actions. Despite the Indian Constitution's architects' intentional neglect,
the Supreme Court of India strives to infuse due process in the Indian Constitution by
defining two sections, namely Articles 14 and 21. The Indian judiciary obtained vast powers
as a result, including the ability to oversee and invalidate any decision performed by the
union or state, whether legislative or executive, or by any public authority that the court
deems 'ill defined' or 'unreasonable.'

Over time, the method of achieving justice has evolved from a barbaric and crude legal
procedure to one that is polished and civilised. In addition, the due process concept has
strengthened legal procedure by combining all of its components and addressing each one
with the notion of equal opportunity.

Article 21 of the constitution of India states that no person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be denied the equal protection of
the laws. The purpose of the due process is to guarantee against any kind of abuse and
arbitrariness, also to protect against any undue encroachment against the life, liberty and
property of individuals.

Substantive due process is a constitutional doctrine that allows courts to safeguard certain
fundamental rights from state intervention. It also defines the line between what courts
consider to be subject to government control or legislation and what courts consider to be
beyond the reach of state intervention. As a result, the law's intrinsic legitimacy in interfering
with a person's right to life, liberty, or property must be established. For ex: an employees’
rights not
to be dismissed without just or authorised cause as provided by law, is covered by his right to
substantial due process. Whilst procedural due process refers to the regular methods of
procedure to be observed before one’s life, liberty or property can be taken away from
him/her. Fundamental elements of procedural due process is notice, opportunity to be heard
and a court/tribunal having just jurisdiction.

Henceforth substantive due process refers to what should be done while procedural due
concerns with how it should be done.

Procedural Due:

In plain terms, the Procedural Due is a notion in the British Constitution that states, "A law
legally established by the legislature or by any other body will be valid if the procedure to
establish such laws has been correctly followed."
According to the supreme court, there are three fundamental functions of procedural due
which are notice, an independent and fair hearing and an independent tribunal as enumerated
in the case of Mullane v. Central Hanover Bank (1950)1
Additionally, The judicial system of such countries(nations with rule of law) investigates the
legislature to determine whether it is competent to enact legislation and, if so, whether it did so
in accordance with established procedures. It will not, however, engage in a legal analysis of
the law's intent.2

In comparison, procedural due is a limited idea because it does not consider whether the law is
in favour of or against the principles of justice, fairness, and reasonability. When determining
the legality of such legislation, the courts solely consider whether the measure was enacted
within the authority's powers or not. It could lead to a drop in content quality and an increase
in the possibility of individuals' rights to life and liberty being violated as a result of unfair
legislation imposed by legislators. As a result, it might be argued that the legal procedure tries
to safeguard the individual from the executive's unfair conduct.

It does not inquire whether Parliament's laws are fair, just, or arbitrary, but rather states that a
1
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)

2
https://byjus.com/free-ias-prep/difference-between-procedure-established-by-law-and-due-process-of- law/#
 statute that has been properly approved is legal, even if it contradicts ideals of egalitarianism.
Individuals' lives and personal liberties may be imperilled as a result of unfair laws imposed
by law-making bodies if the legal process is strictly followed. In order to avoid a situation like
this, the SC highlighted the importance of following the law.
The assurance of procedural due process ensures that if you are found guilty, you will be given
a fair trial by a court of your contemporaries. If the mechanisms used to gather information or
the tactics utilised to arrive at a verdict were defective, you could argue that procedural due
process rights were violated. This will result in the removal of evidence obtained illegally
from criminal proceedings, as well as the overturning of an erroneous sentence.3

Substantive due process:

The concept that the constitution protects people against unreasonable government
interference that infringes on their constitutional rights underpins the definition of substantive
due process. If the government passes a law that infringes on life, liberty, or property rights, a
substantive due process assessment is required. 15 The Supreme Court has regularly held that
the constitution's due process clauses severely limit the government's ability to adopt
legislation restricting civil freedoms.

Substantive due process refers to a judge's determination of a statute's constitutionality based

on its content. The Supreme Court is more concerned with the judicial process's equality than
with the validity of the underlying statute. As a result, any investigation that lacks procedural
due process is considered a substantive review. Due process refers to the process of
determining whether a legislation is just, reasonable, and fair. This campaign promotes more
equitable and just treatment for individuals' rights. This procedure grants the courts broad
discretion in granting individual rights protection. Its goal is to ensure that the law is not
arbitrary, unreasonable, or unfair in any way.

This gives the courts such broad powers that they can declare and hold certain legislation
unconstitutional if they infringe on citizens' fundamental rights. The court has the authority to
do so on the grounds that it is not only illegal, but also irrational. The state must recognise and
respect every individual's rights as a legal prerequisite of this process. It also promotes the idea
3
Constitutional Due Process | Procedural and Substantive. (n.d.). Kush Arora Attorney at Law. Retrieved
December 9, 2022, from https://maryland-criminallawyer.com/constitutional-due-process/
 that state legislation must follow the laws of the land.
This interpretation has sparked debate, because it comes very near to defining natural justice.
Due process is sometimes interpreted as a command to the government not to treat citizens
unfairly. Various legal systems recognise some form of due process, albeit the specifics of
how the government goes about taking someone's life are frequently unclear. The concept of
due process of law has a much larger definition, but it isn't explicitly defined in the Indian
Constitution. In the United States of America, the due process doctrine is upheld. The problem
of due process, however, has resurfaced in a number of recent Supreme Court decisions.

Justice Harlan in the case of Poe v. Ullman4in his quiet popular dissent, stated that the process
of determining the value of specific rights "has not been simplified to any particular algorithm
or method," but must be done on a case-by-case basis.

The Indian Experience with the Due Process Revolution

The development of due process in India has mainly been enhanced by two key areas: first, the
4
Poe v. Ullman, Oyez, https://www.oyez.org/cases/1960/60 (last visited Dec 9, 2022).
 concept of "procedure established by law" under Article 21 is required to be just, fair, and
reasonable due to interactions between Articles 14, 19, and 21; and second, relationships
between Articles 20, 21, and 22 as a corollary of development under Article 21 have
significantly advanced this phenomenon.5 According to Article 21 of the Constitution, "no
individual shall be deprived of his life or personal liberty unless in accordance with the
method provided by law." Although Article 21 does not directly specify any quality or
standard for the procedure, its position as a fundamental postulate of the criminal judicial
system requires it to receive radiation from companion laws such as Articles 20, 22, 14, and 19
in order to react to justice demands.

Deliberations in the Constituent Assembly on Draft Article 15

In the background of the several modifications introduced over Article 15, the Constituent
Assembly argued in depth over the wording of Article 15, which eventually became Article 21
of the Indian Constitution. Kazi Syed Karimuddin, a member of the Constituent Assembly,
stated that retaining the phrase "according to procedure established by law" would create a
tragic chapter in the history of constitutional law.6 The Constituent Assembly's Advisory
Committee on Fundamental Rights endorsed Kazi Sayed Karimuddin's opinion, suggesting
that no person shall be deprived of his life or liberty without due process of law. 7 Kazi Syed
Karimuddin cautioned that enacting the words 'according to procedure established by law'
would be a grave injustice to the people and nation. Once the legislature establishes protocol
by adopting legislation, the authority must follow that procedure. The courts cannot then
challenge the authority's judgement, even if it is unfair or made in error. As a result, he
proposed replacing the phrases "unless pursuant to procedure established by law" with
"without due process of law."on the other hand, BN Rao, the Constituent Assembly's
Constitutional Advisor, feared that due process would give the courts enormous power. "The
courts, manned by an irremovable judiciary that is not as attentive to public requirements in
the social or economic realm as the representatives of a periodically elected legislature, will, in
fact, have a veto on legislation exercisable at any time and at the instance of any petitioner," he

5
P. ISHWARA BHAT, FUNDAMENTAL RIGHTS 90 (Kolkata: Eastern Law House Private Ltd. 2004)
6
DEB. 3 INDIA CONST. ASSY. 842-43
7
DEB. 3 INDIA CONST. ASSY. 842-43
 remarked.8 Furthermore, B.N. Rao cautioned that 40% of the litigation before the United
States Supreme Court in the previous 50 years had focused on due process, and due process
meant only what the court intended it to mean.9 The phrase "without due process of law" was
borrowed from the American Constitution and has grown to have a specific meaning. The
phrase "without due process of law" imposes a crucial restraint on the state's powers, both
executive and legislative. In Anglo-American law, the concept suggested by the phrase
"without due process of law" has a lengthy history. Although it doesn't specify a particular rule
of law, it suggests a fundamental justice concept. The meaning of these words may be
determined by reading the numerous predecessors of this statement because neither the
English nor the American Constitutions specify them. If there is due process, the substantive
requirements of the law must be fair, just, and not unfair, harsh, arbitrary, or capricious. This
implies that the judiciary has the authority to evaluate laws. That type of authority given to the
court in America has surely resulted in a conservative view on the side of the judiciary and
uncertainty in legislation.

The word "due process" refers to ensuring a fair trial in both method and substance. The
method should be legal and should be appealing to the community's civilised conscience.
Additionally, it guarantees a substantively fair trial, meaning that the law itself should be
reasonable and sympathetic to the community's civilised conscience. When the various
decisions of the American Supreme Court are examined, the four fundamental principles are
highlighted: first, that a fair trial must be provided; second, that the court or agency taking
jurisdiction in the case must be duly authorised by law to such prerogative; third, that the
defendant must be given a chance to present his side of the case; and fourth, that the defendant
must be given a fair trial. Fourth that specific assistance, such as legal representation and
witness questioning, must be provided. These four key principles provide a substantively fair
trial.10 Shri K.M. Munshi agreed with the phrase "without due process of law" because it
struck a balance between individual liberty and societal control. Even Shri Alladi
Krishnaswami Ayyar supported "due process."According to Mr. Z.H. Lari, a provision like
due process of law has to be included in the Constitution for both the sake of individual liberty
and the efficient operation of legislatures.
8
3 INDIA CONST. ASSY. DEB. 842-43
9
T.R. Andhyarujina, op. cit.
10
op. cit. T.R. Andhyarujina 850, supra note 2.
Even Dr. B.R. Ambedkar admitted that he was in a difficult situation when it came to the
terms "procedure established by law" and "due process." According to one point of view, this
article must include due process of law; otherwise, the article is meaningless. The opposite
viewpoint is that the present phraseology is enough for the purpose. He went on to say that the
issue of 'due process' raises the issue of the connection between the legislative and the court.
In a federal constitution, it is always up to the judiciary to judge whether a specific law passed
by the legislature is extra vires or intra vires in relation to the legislative powers provided to
the legislature by the constitution. The 'due process' provision would provide the judge the
authority to call the legislature's statute into doubt on another basis that ground would be
whether the law is consistent with some fundamental concepts pertaining to individual rights.
In other words, the court would be given the capacity to challenge the legislation not only on
the basis of whether it exceeded the jurisdiction of the legislature, but also on the basis of
whether the statute was sound law, separate from the matter of the legislature's powers in
enacting the law. In terms of the legislature's power, the legislation may be completely sound
and lawful. However, it may not be a good legislation, in the sense that it infringes some
fundamental rights. However, it may not be a good legislation, in the sense that it infringes
some fundamental rights. judges would have the added authority to declare the statute
unconstitutional. We have without a doubt granted the judiciary the authority to evaluate the
legislation created by various legislative bodies to determine if it is in conformity with the
authorities delegated to it. The insertion of the word "due process" raises the question of
whether the judiciary should be granted the extra ability to challenge state legislation on the
grounds that they violate some basic values. There are two points of view about this. One
school of thought holds that the legislature can be trusted not to pass legislation that violates a
man's fundamental rights. Another point of view is that it is impossible to trust the legislature;
the legislature is prone to err, to be swayed by passion, party prejudice, and party
considerations, and the legislature may pass legislation that violates what may be considered
fundamental principles that protect a citizen's individual rights. As a result, we find ourselves
in two tough situations. It is quite difficult to get a firm decision. On both sides, there are risks.
Furthermore, Dr. Ambedkar stated that it is impossible to rule out the idea of a legislature
filled with party members passing laws that abrogate or violate what we see as certain
fundamental values impacting an individual's life and liberty. At the same time, he articulated
 another point of view: how can five or six gentlemen sitting in the federal or Supreme Court
analysing legislation enacted by the legislature and relying on their own individual
consciences, biases, or prejudices be trusted to make decisions?

Which laws are good and which are bad?

It is more of a situation of a guy having to sail between Charybdis and Scylla and hence not
saying anything. Finally, he delegated decision-making authority to the House. Finally, the
House accepted the Clause as proposed by the Drafting Committee, rejecting the concept of
"due process." As a result, Article 21 empowered Parliament to "create and arrange for the
arrest of any person under any conditions as Parliament may judge suitable." Article 22 was
drafted in order to impose some constraints on the legislature.11

Judicial interpretation of procedure established by Law

The phrase "process established by law" refers to a procedure outlined in a legislation or one

DURGA DAS BASU, COMENTARY ON THE INDIA CONSTITUTION 3159 (New Delhi: Lexis Nexis
11

Butterworths Wadhwa, 2008).

 that is mandated by state law.12 The famous Goplan case, in which the legality of the
Preventive Detention Act of 1950 was contested, presented the Supreme Court of India with
the difficulty of interpreting the wording used in Article 21 shortly after the Indian
government adopted the Constitution of India.13 The petitioner challenged his imprisonment on
the grounds that has harmed his Article 19(1) rights, and the Act's provisions have imposed
unjustified limits on the exercise of those rights. Furthermore, the petitioner stated that
freedom of movement is a component of the right to personal liberty guaranteed by Article 21.
As a result, under Article 21, law must be jus rather than lex.

The majority of judges ruled that Articles 19 and 21 are distinct and mutually incompatible.
Kania, CJ., and Mukherjee, J., advanced the notion of legislative directness. Kania, CJ.,
remarked that just because legislation does not directly violate any article but indirectly
encroaches on any element of the Constitution does not imply it is supra vires. The correct
approach is to analyse just the directness of the legislation and not the outcome of the
imprisonment. Once the majority of the judges reached the judgement that Article 19 did not
apply to the domain of Article 21, they reasoned that the criterion of reasonableness in law or
practise could not be superimposed on Article 21. In the case of 'process established by law,'
the Supreme Court judges relied on the concept of literal interpretation while ignoring the
principle of functional interpretation. Pantanjali Sastri, J., stated that the term "process" refers
to both the act and the manner in which a man's life or personal liberty is taken away.
According to B.K. Mukherjea, J., "process" refers to the technique and form of implementing
the law. According to Das, J., the word "process" in Article 21 must be interpreted to mean
some phase, method, or style of proceeding leading up to the deprivation of life or personal
liberty.  According to Kania CJ., Pantanjali Sastri, B.K. Mukherjea, and Das JJ., the word 'law'
in Article 21 has not been used in the sense of 'universal law,' connoting what has been defined
as natural justice principles beyond the purview of positive law. 28 In this case, a three-
pronged argument was developed:

i. The term "law" in Article 21 refers to more than just enacted legislation; it also includes
principles of natural justice, such that a law that deprives a person of his life or personal

12
Constitution of India by V.N. Shukla, page 215 (Lucknow: Eastern Book Company,
12th ed. 2013).
13
A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27
 liberty cannot be lawful unless it integrates these principles into the procedure it establishes.

ii. The legislation of preventive detention should be judged by with Article 19.

iii. The phrase "procedure established by law" incorporates the American notion of procedural
due process into India, allowing judges to determine whether the legislation meets the required
elements of a reasonable method.

Thus, in Gopalan14, an attempt is made to read 'due procedures' into 'lawful procedure' under
Article 21. All of these arguments were rejected by the Supreme Court, which concluded that
the word "law" in Article 21 could not be linked to the principles of natural justice since these
concepts are ambiguous, imprecise, and abstract. Incorporating such hazy ideas into the law
creates confusion and ambiguity; hence, the term "law" is employed in the sense of lex (state-
made) rather than jus. The phrase "process established by law" would thus refer to the
procedure outlined in an authorised statute.15

In Kharak Singh16, the Supreme Court ruled that an administrative order enabling 'domiciliary
inspections' by police officers into the homes of repeat criminals violated Article 21.
Following the Gopalan approach, the majority refused to investigate the issue under Article 19
(1). (d). However, it is important noting the separate but concurring opinion of Subba Rao, J.,
which lay the groundwork for a future integrated approach to basic rights:

"The state can depend on a law to support an action if a person's basic rights under Article 21
are violated, but that cannot be a comprehensive response unless the said legislation passes the
standard set out in Article 19(2) in so far as the traits covered by Article 19(1). In other words,
the state must demonstrate that there is a law in place and that it constitutes a reasonable
limitation in order to demonstrate that none of the fundamental rights are violated. The
minority decision made by Subba Rao, J., in Kharak Sing ultimately becomes the majority
decision in Satwant Singh Sawhney v. Union of India. 17 An import/export businessman's
passport and travel rights were revoked by the authorities in the Satwant Singh Sawhney
case.18 Because Sawhney had broken the terms of the import licence that had been issued to
14
A.I.R. 1950 S.C. 27.
15
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1183 (Nagpur: Lexis Nexis Butterworths Wadhwa, 6th 2010).
16
Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295.
17
(1967) 3 S.C.R. 525.
18
Manoj Mate, The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive
Detention Cases, 28 BERKELEY JOURNAL OF INTERNATIONAL LAW 216, 240 (2010).
 him by the Indian Government, which was being investigated for violations of the Export and
Import Control Act, the Ministry of External Affairs seized Sawhney's passport. Sawhney
contested the action on the grounds that it violated both his Article 21 and Article 14
constitutional rights. The government's conduct of seizing Sawhney's passport was declared
illegal by the Supreme Court on the grounds that it breached both Articles 14 and 21 of the
Constitution. The Cooper case, in which the constitutionality of the Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1969 was contested, further solidifies the start
of this new trend.19 The Act was overturned by the Supreme Court's constitutional bench
because it violated Articles 14, 19, and 31. In support of the majority, Shah, J., outlined a
novel perspective on how basic rights interact and pointed out that the impact of the law is
what gives the court jurisdiction to issue remedy. The supreme court stated that in order to
reinforce the guarantee of "process established by law" and to overcome the limitations of that
guarantee, "law" as defined by Article 21 should, where appropriate, be interpreted in
conjunction with Articles 19, and 14. The Cooper Ratio paved the path for the comprehensive
exercise of basic rights. According to the petitioner in Jagmohan Singh v. State of U.P.38, 20
Section 302 of the Indian Penal Code, 1860, which imposes the death penalty or life in prison
for murder convictions, is unconstitutional since it breaches Articles 14, 19, and 21. The
petitioner argued that judges' discretion to impose the death penalty was unguided and
uncontrolled, which infringed on the right to equality. The Apex Court rejected this argument
on the grounds that judges' discretion to impose the death penalty is not arbitrary and must be
used only after carefully weighing the aggravating and mitigating circumstances. The court
further noted that because each case's conditions are unique, it is not ideal to establish norms
for the exercise of such power. Even though the Jagmohan case didn't provide any unexpected
outcomes, it was an important ruling that launched the strategy of establishing a reasonable
procedure by applying Articles 14 and 19 to the context of Article 21 without delving into the
conflict between Gopalan and Cooper. 

To "Due Process of Law" from "Procedure Established by Law"

Maneka Gandhi: A New Strategy

19
R.C. Cooper v. Union of India, A.I.R. 1970 S.C. 564.
20
A.I.R. 1973 S.C. 947.
 In the history of the Indian judicial system, Maneka Gandhi v. Union of India 21 is a landmark
case that may be divided into pre- and post-Maneka Gandhi periods. Maneka Gandhi
questioned the constitutionality of Section 10(3)(c) of the Passport Act of 1967, which gave
the government the ability to seize a person's passport for the good of the public. She argued
that this clause grants the authorities the discretionary ability to seize the passport without a
hearing, which is an unfair process and a violation of the right to equality and the right to
personal liberty.
The petitioner's arguments that the process created under Article 21 should be equitable, fair,
and reasonable were supported by the seven-judge panel of the Supreme Court. Articles 14
and 19 of the Constitution should be used as further test grounds for such a procedure. The
statute defining a method for the deprivation of life and personal liberty in Article 21 could not
be any procedure, according to Krishna Iyer, J.; instead, it had to be one that was neither
arbitrarily, unfairly, nor unreasonably.22 As a result, Article 21's interpretation of the due
process clause states that "procedure established by law" must be fair, just, and reasonable. In
Sunil Batra v. Delhi Administration23, Krishan Iyer, J., acknowledged: "True, our Constitution
has no 'due process' clause but in this branch of law, after Cooper and Maneka Gandhi, the
consequence is the same," and added that Article 21 is the equivalent of procedural due
process in the United States.The supreme court stated in Ranjan Dwivedi v. Union of
India24that it is challenging to maintain that the conservative wording of Article 21 of the
Constitution does not incorporate the essence of the American notion of due process. The
Supreme Court's innovative approach to procedural law under Article 21 has resulted in the
liberalisation of bail procedures, restrictions on solitary confinement, swift resolution of
criminal cases, stringent procedures for arresting people, liberalisation of the locus standi rule,
assurance of legal aid for the poor, and the imposition of death sentences in the rarest of rare
cases.

Conclusion
In favour of an interpretation that would provide equitable and fair legislation under the
21
A.I.R. 1978 S.C. 597.
22
(1978) 2 S.C.R. 621 at 658.
23
(1978) 4 S.C.C. 494.
24
(1983) 2 S.C.R. 982.
 Constitution, legal positivism and the thesis of the "original purpose of the framers of the
Constitution" put forward in the Goplan case were abandoned. In other words, the legal
process must adhere to the nondiscriminatory and nonarbitrary principles.
Arbitrary procedure would not be a procedure at all, and Article 21's conditions would not be
met. Giving people justice is the goal of substantive law, and that is what law is about.
However, procedural law offers ways to bring about justice. The goal and the method are
connected. Without fair methods, justice cannot be justified. In the same way, a method cannot
be justified unless it leads to a just end. In Article 21 of the Constitution, the relationship
between the means and the aim is clearly stated. It takes forever to determine the fundamental
meaning of life, individual freedom, and the legal procedures outlined in Article 21.
Particularly after Maneka Gandhi, the reach of Article 21 is expanding. The Supreme Court's
restrictive reading of Article 21 in the Gopalan 25 case is progressively weakened and
ultimately forgotten. An entirely new dimension of procedural due process, namely in the
criminal justice system under Article 21 of the Constitution, has been introduced by the liberal
interpretation of procedural created by the law in Maneka Gandhi. The courts now don't think
twice about overturning laws that violate the principles of due process. The court's revision of
Articles 21 and 14 after 1978 represents a turning point in the history of Indian constitutional
law.26

Bibliography & References

1) https://plato.stanford.edu/entries/rule-of-law/
25
A.K. Gopalan v. State of Madras, A.I.R. 1950 S.C. 27.
26
T.R. Andhyarujina, op. cit. supra note 2, at 211.
2) Ibid 1

3) P. ISHWARA BHAT, FUNDAMENTAL RIGHTS 90 (Kolkata: Eastern Law House

Private Ltd. 2004).

4) Baltimore v. Barron (1833)

5) JOHAN NOWAK, CONSTITUTIONAL LAW 387 (St Paul Minnesota: St Paual

Minn., West Publishing Co. 1978).

6) http://docs.manupatra.in/newsline/articles/Upload/C64E2EB3-321D-470D-A4C8-
0EE5E55BA21A.pdf

7) https://ujala.uk.gov.in/files/Ch11.pdf

8) https://maryland-criminallawyer.com/constitutional-due-process/

9) https://constitutioncenter.org/interactive-constitution/interpretation/amendment-
xiv/clauses/701

10) Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)

11) https://byjus.com/free-ias-prep/difference-between-procedure-established-by-law-
and-due-process- of-law/#

12) https://www.clearias.com/procedure-established-by-law-vs-due-process-of-law/

13) https://maryland-criminallawyer.com/constitutional-due-process/ Griswold v.

Connecticut, Oyez, https://www.oyez.org/cases/1964/496 (last visited Mar 29, 2021).

14) Poe v. Ullman, Oyez, https://www.oyez.org/cases/1960/60 (last visited Mar 29, 2021).

15) Washington v. Glucksberg, Oyez, https://www.oyez.org/cases/1996/96-110 (last

visited Mar 29, 2021).

16) Roe v. Wade, 410 U.S. 113, 117 (1973) (quoting Lochner v. New York, 198 U.S. 45, 76
(1905) (Holmes, J., dissenting)).
17) See W. Va. State Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943)
18) https://ujala.uk.gov.in/files/Ch11.pdf

19) Dr. K.S. Rathore, “Role of Judicial Activism towards protection and promotion of
constitutional rights”, All India Reporter Sep. 2010, Vol. 97, Part - 1161.

20) A.K. Gopalan v. State of Madras, 1950 SCR 88: AIR 1950 SC 27: (1950) 51 Cri LJ
1383. 21) (1976) 2 SCC 521: AIR 1976 SC 1207.

22) https://ujala.uk.gov.in/files/Ch11.pdf

23) A.K. Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88