Answer:

Article 21, of Indian Constitution provides that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. Procedure established by law, a positive law concept means that a law that is duly enacted by the legislature is valid if correct procedure has been followed.

As incorporated in the US Constitution, due process checks if a law is fair, just and not arbitrary, thus ensuring a fair treatment.

Substantive due process prohibits the government from infringing on fundamental constitutional liberties. By contrast, procedural due process refers to the procedural limitations placed on the manner in which a law is administered, applied, or enforced. Thus, procedural due process prohibits the government from arbitrarily depriving individuals of legally protected interests without first giving them notice and the opportunity to be heard.

The Indian Constitution by incorporating ‘procedure established by law’ adopts a healthy synthesis of Parliamentary Sovereignty and Judicial Supremacy. However despite the textual choices of the framers of Indian Constitution, t “due process” found a back door entry into Indian Constitutional interpretation in late 1970s through the right to equality.

Until the decision in Maneka Gandhi case, the view which prevailed in the Supreme Court was that there was no guarantee in the Constitution against arbitrary legislation encroaching upon personal liberty. This case overturned the majority in A.K. Gopalan vs State of Madras where the majority decision adopted a narrow interpretation of ‘procedure established by law.’ .

Contrastingly the Maneka Gandhi Case took the view that:

♤ A law coming under Art. 21 must also satisfy the requirements of Art 19.

♤ Once the test of reasonableness is imported to determine the validity of law depriving a person of his liberty, it follows that such laws shall be invalid if it violates the principles of natural justice.

Over a course of judgments, the Courts indicated that “due process” has firmly become a part of the Indian Constitutional law recently reflected in Judgements such as Selvi vs State of Karnataka, where constitutionality of investigative narco-analysis was challenged , held it to be permissible only with the consent of the ‘subject’. .

Under a wide construction of Article 21, Judiciary’s view on issues such as Khap Panchayat, Custodial death, Right to die, Right to education etc. gave supremacy to ‘due process’ over ‘procedure established by law.