Question: Critically evaluate the scope of the expression ‘Personal Liberty’ in Article 21 of the Constitution of India. Do you think that the expression ‘procedure established by law’ in Article 21 introduces in India, the American ‘due process clause’ on the subject? Discuss. Find the answer to the mains question only on Legal Bites. [Critically evaluate the scope… Read More »

Question: Critically evaluate the scope of the expression ‘Personal Liberty’ in Article 21 of the Constitution of India. Do you think that the expression ‘procedure established by law’ in Article 21 introduces in India, the American ‘due process clause’ on the subject? Discuss. Find the answer to the mains question only on Legal Bites. [Critically evaluate the scope of the expression Personal Liberty in Article 21 of the Constitution of India. Do you think that the...

Question: Critically evaluate the scope of the expression ‘Personal Liberty’ in Article 21 of the Constitution of India. Do you think that the expression ‘procedure established by law’ in Article 21 introduces in India, the American ‘due process clause’ on the subject? Discuss.

Find the answer to the mains question only on Legal Bites. [Critically evaluate the scope of the expression Personal Liberty in Article 21 of the Constitution of India. Do you think that the expression ‘procedure established by law’ in Article 21 introduces in India, the American ‘due process clause’ on the subject? Discuss.]

Answer

Article 21 in The Constitution of India provides protection of life and personal liberty. It states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 21 constitutes two rights: The right to life and the Right to personal liberty.

The scope of the expression ‘Personal Liberty’ has been widely discussed in many cases, given a wider interpretation which has led to many allied rights now mentioned under the ambit of the right of personal liberty under Article 21. For example, the right to die, the right to have a choice of partner, the right to choice of sex, and much more now comes within the scope of the right of personal liberty.

There are two important terms often cited in Supreme Court Judgments i.e. Procedure Established by Law and Due Process of Law. Notably, the former is Indian constitutional doctrine and the latter is American, but now the boundaries are very narrow. Due Process of Law has much wider significance, but it is not explicitly mentioned in the Indian Constitution. Let’s understand the meaning of the two terms:

1. The Procedure Established by law

It means that a law that is duly enacted by the legislature or the concerned body is valid if it has followed the correct procedure. Following this doctrine means that, a person can be deprived of his life or personal liberty according to the procedure established by law. So, if Parliament passes a law, which is in contravention to the right to life or personal liberty of a person, it can do so according to the provisions and procedures of that law. However, it doesn’t imply whether the laws made by Parliament must be fair, just, and not arbitrary.

Therefore, “Procedure established by law” implies that a law duly enacted is valid even if it’s contrary to principles of justice and equity. This strict following of the meaning may raise the risk of compromise to the life and personal liberty of individuals due to unjust laws made by the law-making authorities. It is to avoid this situation; SC stressed the importance of the due process of law.

2. Due Process of Law

Due process of law doctrine not only checks if there is a law to deprive the life and personal liberty of a person but also sees if the law made is fair, just, and not arbitrary. If the Supreme Court finds that any law is unjust, it will declare it null and void. Under due process, it is the legal requirement that the state must respect all of the legal rights that are owed to a person, and laws that states enact must conform to the laws of the land like – equity principles, fairness, fundamental rights, liberty, etc. This doctrine provides for more fair treatment of individual rights.

In India, a liberal interpretation is made by the judiciary after the 1978 Maneka Gandhi vs Union of India [1978 AIR 597] case and since then it has tried to make the term ‘Procedure established by law’ synonymous with ‘Due process’ when it comes to protecting individual rights. In the case, the SC ruled that ‘procedure established by law’ within the meaning of Article 21 must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.

Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.


Important Mains Questions Series for Judiciary, APO & University Exams

  1. Constitutional Law Mains Questions Series Part-I
  2. Constitutional Law Mains Questions Series Part-I
  3. Constitutional Law Mains Questions Series Part-II
  4. Constitutional Law Mains Questions Series Part-IV
  5. Constitutional Law Mains Questions Series Part-V
  6. Constitutional Law Mains Questions Series Part-VI
  7. Constitutional Law Mains Questions Series Part-VII
  8. Constitutional Law Mains Questions Series Part-VIII
  9. Constitutional Law Mains Questions Series Part-IX
  10. Constitutional Law Mains Questions Series Part-X
Updated On 2021-06-01T07:44:26+05:30
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