Abhishek Singh, Amity University Rajasthan
ABSTRACT
This paper deals with the concept of 'due process' and 'procedure established by law.' The concept of 'due process' was introduced in the American Constitution by the Vth and XIVth Amendment. The concept of 'due process' was widely discussed by the members of the Constituent Assembly whether the American concept shall be added in the Constitution of India. Shri B.N.Rau was appointed as the advisor of the Constituent Assembly and suggested in his draft constitution that 'due process' shall be added to the Constitution, but after he met Justice Felix Frankfurter of the U.S. Supreme Court. The latter suggests deleting the phrase from the Indian Constitution because it will create an immense power to the Judiciary to strike down any legislation passed by the elected representatives and would result in an undemocratic provision in the Indian text of the Constitution.
The framers of the Constitution, after a detailed discussion, deleted the phrase 'due process' and replaced it with 'Procedure established by law,' which was also mentioned in Article XXXI of the Japanese Constitution.
After the Constitution became effective, the question of interpreting these words emerged in the landmark case of A.K. Gopalan v. State of Madras. It was contended that the American concept of 'Due process' and 'procedure established by law' are synonymous. Still, the majority rejected the argument and stated that 'Due process' was purposely deleted from the constitutional text by the drafters of the Constitution.
Maneka Gandhi v. Union of India, a landmark case, showed the liberal tendencies of the supreme court interpreting fundamental rights and particularly Article 21 of the Constitution. The interpretation of Article 21, as defined in the Gopalan case, could not provide adequate protection against the harsh and arbitrary laws depriving a person of the right to life and liberty. The dissenting judgment of Justice Fazal Ali in the Gopalan case held to be Fair, Reasonable, and Just.
Keywords: Due process, Procedure established by law, Article 21, Constitution.
