BASIC POINT

1. (a) Article 21 – No person shall be deprived of his life or personal liberty except according to the procedure established by law.

(b) Borrowed from Japanese Constitution

(c) Court is helpless to protect the person even if the law is unreasonable and unjust

2. (a) The due process of law gives weightage to individual rights. 

(b) Borrow from USA Constitution

(c) Due process of law is the principle. It checks for laws depriving the life and personal liberty of an individual. It checks if the law is fair and is not arbitrary. It also ensures the law is just an action.

What is Procedure Established by Law?

It means that the legislature duly enacts a law or the concerned body. It is valid only if the correct or legal procedure has been followed to pass the law.

The Judiciary would check legislature is competent to frame a law and follow the procedure laid down to legislate.

Parliament can take a personal liberty of an individual though established law’s procedures and provisions

It does not question the law concerned, if contrary to principle of Natural Justice

The Supreme Court only determines the law’s constitutionality within the preview of its substance.

Limit the power of Judiciary.

Key Point

Mr. B. N. Rao, Constitutional Advisor was of the belief that judicial review would hamper the introduction of beneficial social legislation

Justice Frankfurter told Rao that the power of judicial review implicit in the due process clause was undemocratic. It was also burdensome on the judiciary. 

Due Process of Law?

The law enacted by the legislature must follow a fair & just procedure and, avoiding any elements of arbitrariness

The Government, while making any law, must respect the principle of Natural Justice

The Supreme Court has a wide scope under due process to grant protection to the rights of its citizens

The Supreme Court has stated that any law that violates Fundamental Rights can be declared void. This can happen if the law is unreasonable, either on substantive or procedural grounds.

The State must protect the rights of individuals and respect the law of the land.

Considering the fact of the case that each person must not be deprived of legal rights.

It creates a balance between law and individual rights

Key Point

Articles 14, 19, 21 – Golden Triangle  – Right against arbitrariness

The phrase “Due process of law” has its genesis in the term “law of the land” used in Section 39 of the Magna Carta of 1215


Procedural due process will ensure that the measures taken by the police authorities to collect evidence from the accused are not oppressive

The government introduces a law which breaches the privacy of citizens without any reasonable grounds, then such a law can be held unconstitutional

Case Laws – Chronology

First Case – A k Gopalan v. state of Madras ( 1950) –  Reject the petition. It stated that it does not violate Art 19(1) & Art 21 of The Constitution. It also said Section of Preventive Detention Act is Constitutional. (Follow Procedure Established by law )

Second Case – ADM, Jabalpur V. shivkant Shukla (1976)

Arrest Under MISA is valid ( follow Procedure Established by Law )

Rustom Cooper v. Union of India (1970)  

Fundamental Rights guaranteed by the constitution are not mutually exclusive to each other. Article 21 as laws inconsistent with fundamental rights can now be declared void.

A k Gopalan Case Overruled by Maneka Gandhi Case

Law has to be reasonable which is an essence of equality under Article 14.

“due process of law” became synonymous with “procedure established by law”.

A 7-judge bench of the Supreme Court observed that the procedure outlined in Article 21 must be just and fair. It must not be arbitrary, fanciful, or oppressive.

Procedures must follow natural justice principles, and laws infringing fundamental rights can be declared void by the judiciary.

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