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Difference Between Procedure Established By Law And Due Process Of Law


One fundamental Right, which is considered to be the heart of our living Constitution, qua the most dynamic and progressive provision in our organic Indian Constitution is Article 21. In the words of Bhagwati, J Article 21 of the Indian Constitution is “embodies a constitutional value of supreme importance in a democratic society.” But then, why does such paramount importance has been attributed to Article 21, but not for any other fundamental Rights dealt with under Part III of the Indian Constitution? Why Article 21 could not be suspended even at the time of emergency while others can? The rationale behind this could be construed by understanding Article 21.

Article 21 provides that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Comprehensively, it guarantees a person with the extreme essential leeway of the Right to life and personal liberty. Like any other Fundamental Right, the aggrieved person can claim his Right by filing the writ petition under Article 32 (Right to constitutional remedies) and Article 226 before supreme and high courts.

However, does Article 21 put an absolute embargo on deprivation of life/personal liberty? It is not a rhetorical question since the catena of judicial dictum elucidates its mode of operations in nexus with its ambit. Even the simple reading of Article 21 provides that a person can be deprived of his life or personal liberty according to the producer established by law. Hence, the right that is available to the citizen and as well as an alien person is not absolute and only granted against the arbitrary actions of the executive but not against the legislative actions. Therefore, as per Article 21, a person can be deprived of his life or personal liberty under the circumstances that comply with the following two conditions,

  • There must be a law, and
  • That duly enacted law must prescribe the procedure

Thus, the state can meddle in the life and personal liberty of a person as long as its actions are backed by a valid law.

Per contra, the case of Maneka Gandhi v. Union of India[1], broadened the interpretation and added that the existing conditions should be substantiated by being just, fair, reasonable, and not arbitrary. Howbeit, what it connotes? Let’s comprehend the whole concept briefly vis-à-vis its differences.

The procedure established by law:

Meaning: It stipulates that a law/ legislation is valid if it has appropriately enacted by the legislature and followed all the prescribed procedures. V.N. Shukla describes the phrase “Procedure established by Law” in Article 21 as the procedure laid down by a statute or procedure prescribed by the law of the State. 

Background: Reiteratively, the Indian Constitution explicitly mentions the term ‘Procedure established by law’ in its Article 21. Let’s scrutinize why Indian constitution framers have included this doctrine in lieu of the American concept of due process of law.

At the time of constituent debate, the framers had considered the adoption of the concept due process of law, but it was abandoned in subsequent phases. It was believed that Justice Felix Frankfurter (Former Associate Judge of Supreme Court of US) advised Dr. B.N. Rau to not to insert the term Due process of law in the Indian constitution, since Justice Felix felt the due process clause is undemocratic and burdensome to the judiciary because it empowered judges to invalidate the legislation enacted by democratic majoritie[2]. Consequently, after the discussion with Dr. B.N. Rau the doctrine of procedure established by law was upheld and expressly used in the draft of erstwhile Article 15 by the constituent assembly.

It is noteworthy that the ‘procedure established by law’ phraseology is there in Article 31 of the Japanese Constitution. It provides that “No person shall be deprived of life and liberty, nor shall any other criminal penalty, nor shall any other criminal be imposed, except according to procedure established by law[3].

This doctrine has a weakness, what is it?

As per Article 21, a person can be deprived of his life or personal liberty by actions of the state, which a valid law supports. This connotes that the duly enacted are valid per se. Thus, even if the parliament passes an unjust law, its provisions can justifiably take away the constitutionally granted rights of the people. Indeed, the same was argued by Z H Lari as the erstwhile Article 15 (now 21) appears to make “legislature all-powerful”[4], by doing so, the judiciary is obliged to bind the purported actions of the legislature that results in jeopardizing the fundamental rights.

Strict compliance with this doctrine will stress people to compromise their rights to life and personal liberty because of unjust and inequitable legislations. Concerning this, Apex court has construed procedure established by law in nexus with due process of law.

Due process of law:

Meaning: This doctrine not only checks whether or not the law that deprives a person’s right to life and personal liberty is duly enacted but also checks the fair and non-arbitrary nature of it. Therefore, Apex Court can nullify any law which it found unjust and unfair regardless of its procedural validity.

Due process of law = Procedure established by law+ Fairness of that procedures

Background: This concept of due process of law has its origin in the English common law. This concept of due process of law is expressly mentioned in the context of the Magna Carta, an agreement signed in 1215, which defines British rights. However, this was included in the American constitution, Fifth Amendment of the same states that “No person shall be held to answer for a capital or otherwise infamous crime, ……..nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.[5]

The fourteenth Amendment placed similar restrictions on the state government, following Barron v. Mayor and City Council of Baltimore.[6] In that case, the court has discussed the scope of its applicability.

Justice Felix Frankfurter opined that “due process cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and the government, due process is compounded in history, reason, the past course of decision, and stout confidence in the strength of the democratic faith which we profess.”[7] In the case of Joint Anti- Farcist Refugee Committee v. Mc Grath[8]

Difference between Procedure Established by Law and Due Process of Law

Procedure established by law Due process of law
 It ascertains the validity of legislation by checking that whether the legislation in question is duly enacted or not. It ascertains the validity of law by checking both the procedural and substantial aspects of law i.e. whether or not the law is fair, just, and equitable.
Protection of procedural law It encompasses both the substantive and procedural law within its ambit.
The judiciary is empowered only to assess the procedure that has been followed by the legislature to enact the law at the instance.  The judiciary has the authority to assess both the procedural adequacy of the law and the quo animo of the act.
Dealt with enacted law Dealt with the principles of natural justice
Comparatively limited in scope  It is has a vast scope, as it empowers the judiciary to protect individual rights by challenging the validity of a law, which is fanciful, oppressive, or arbitrary.
  It protects the rights of a citizen only against the arbitrary actions of the executive It protects the rights of citizens not only from the actions of the executive but also from the legislative.

Case laws:

In the A.K. Gopalan v. State of Madras[9] case, the petitioner challenged the constitutionality of the Preventive detention Act, 1950 by invoking Article 21. It was argued that the deprivation of his personal liberty is not according to the procedure established by law since the word law in Article 21 connotes the universal principle of natural justice and cannot be understood in the sense of enactment. The petitioner further contended that the phraseology ‘Procedure established by law’ has the same meaning as the expression ‘Due process of law’ in the Constitution of America.

Held:  Apex court rejected the said contentions and held that the procedure established by law and due process of law are two different concepts and cannot be comprehended to be the same. And the majority upheld the meaning of the phrase in question as the procedure prescribed by the law of the state by citing the Report of the drafting committee of the constituent assembly, which shows that constituent Assembly had purposefully dropped the adoption of American expression ‘due process of law’.

The case of Maneka Gandhi v, Union of India,[10]wherein the judicial decision of the aforementioned case was overruled by the Supreme Court of India. It was held that the mere insight of procedures is inadequate to satisfy the terms of Article 21. Law should be reasonable law and not enacted piece of the law said the court. Thereby the procedures that the law prescribes should satisfy the universal principles of natural justice i.e. it must be fair, reasonable, and equitable if not, then the law would not take it as a procedure.

The American concept of Due process of Law was imported into the Indian constitution by the mean of broadened judicial interpretation in the Maneka Gandhi case by granting that the principles of natural justice as one of the requisite concepts of law.


As far as India is concerned, it does not have the principle of Due process of law explicitly mentioned in the Constitution, unlike the American Constitution. But, later in 1978 the Supreme Court of India carried out a liberal interpretation and propounded that the term Procedure established by law in the Indian constitution is synonymous to the expression due process of law upheld in America despite the differences.

The status quo judiciary stands in relation to Article 21/ Protection of individual rights are similar to the observations that are made in the Maneka Gandhi case. The Nand Lal v. State of Punjab[11] is one of among those cases, where the principles of Maneka Gandhi case were applied. In this case, it was referred by the court to quash the order of detention issued under Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1982 against the detenue.



[1] AIR 1978 SC 597.


[3] Constitution of Japan, Article 31, Chapter III.

[4] Constituent Assembly Debates 1948 (Vol. VII, Lok Sabha Secretariat).

[5] U.S. Const. amend. V.

[6]32 243 (1833)


[8] 341 123 (1951).

[9] AIR 1950 SC 27

[10] Maneka Gandhi, Supra note 1.

[11] AIR 1981 SC 2041

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Snegapriya V S

A third-year student of law at Vellore Institute of Technology (VIT School of Law), budding first-generation lawyer cum legal researcher with multiple publications in various web journals and portals on different subject matters of law in issue. Being a zealous-natured person with thoughts enrooted in epistemophilia has boosted my passion for research writings by interpreting diversified legal facets. As a perceptive observer and reader, I pay greater attention to the overlooked legal fields where divergent challenges might arise, that include cyber law, environmental law, consumer law, and several constitutional provisions. Besides, I prioritize construing legal problems with social psychology. My dream and vision are to catch myself as a skilled legal adroit.