What 'Due Process' Looks Like in India

The phrase "due process of law" does not appear in the Indian Constitution. The Constituent Assembly deliberately rejected it. Dr. B.R. Ambedkar and the Drafting Committee opted instead for "procedure established by law" in Article 21, on the reasoning that "due process" — as understood in American constitutional jurisprudence — would give courts too much latitude to strike down legislation on vague substantive grounds, interfering with Parliament's authority to make social and economic law. 

The phrase was borrowed instead from Article 31 of the Japanese Constitution, with the intention that the "procedure" required to deprive a person of life or liberty would be a procedure enacted by the legislature — not one the courts could second-guess on substantive fairness grounds.

Representational image: What 'Due Process' Looks Like in India

For the first 28 years after independence, this original intent largely governed. In A.K. Gopalan v. State of Madras (1950), the Supreme Court held, by a five-to-one majority, that "procedure established by law" meant any procedure formally enacted by a competent legislature, without requiring that procedure to embody the principles of natural justice or substantive fairness. 

Justice Fazal Ali dissented, arguing for a broader, fairness-based interpretation. The majority's view made Article 21 a narrow procedural provision: if Parliament passed a detention law, the detention was lawful regardless of whether the procedure was fair. 

It took a passport impoundment case in 1978 to reverse this comprehensively. In Maneka Gandhi v. Union of India (1978), a seven-judge bench held that "procedure established by law" within Article 21 must be "fair, just, and reasonable, not arbitrary, fanciful or oppressive." India had, through judicial interpretation, acquired substantive due process by another name.

What You Need to Know

• Article 21 of the Indian Constitution provides: "No person shall be deprived of his life or personal liberty except according to procedure established by law" — the word "due process" was deliberately omitted by the Constituent Assembly; the phrase "procedure established by law" was adopted instead.
• A.K. Gopalan v. State of Madras (1950) — decided by a five-to-one majority — held that "procedure established by law" meant formal legislative enactment; the Gopalan interpretation made preventive detention legally unassailable if procedurally enacted, regardless of whether the procedure was fair; Justice Fazal Ali's dissent argued for natural justice principles to be read into the article.
• Maneka Gandhi v. Union of India (1978) — decided by a seven-judge bench — overruled Gopalan's restrictive interpretation and held that procedure must be "fair, just and reasonable" and not "arbitrary, fanciful or oppressive"; the judgment linked Articles 14, 19, and 21, establishing that any law restricting liberty must satisfy all three constitutional standards simultaneously.
• The practical consequences of the Maneka Gandhi transformation are extensive: it has been the basis for the court's recognition of the right to a speedy trial, bail liberalisation, restrictions on handcuffing, the right to legal assistance, the right against solitary confinement, and the right to know the grounds of arrest — none of which were mandated under the Gopalan interpretation.
• Post-Puttaswamy (2017), due process in India has extended to substantive law as well: not only must the procedure be fair, but the law itself must satisfy tests of legality, legitimate aim, and proportionality — bringing Indian constitutional law close to the American substantive due process standard the Constituent Assembly deliberately rejected.

How It Works in Practice

1. Natural justice as the procedural floor: The Maneka Gandhi judgment incorporated natural justice — particularly audi alteram partem (no person shall be condemned unheard) and the rule against bias — into the procedural requirements of Article 21. Any state action that deprives a person of life or liberty without hearing them violates Article 21, regardless of whether enabling legislation exists. This is the foundational procedural due process requirement in India.

2. The three-article test: Maneka Gandhi established that laws restricting liberty under Article 21 must also pass muster under Article 14 (non-arbitrary) and Article 19 (reasonable restriction). A detention law that is procedurally enacted but arbitrarily applied fails Article 14; a restriction on movement that is procedurally fair but unreasonably broad fails Article 19. The three articles must be read together.

3. Application in criminal procedure: The Maneka Gandhi transformation directly influenced criminal procedure: the right to be informed of grounds of arrest (Article 22 as a specific provision, now reinforced through Article 21); the right to a speedy trial; the right to bail in appropriate cases; the right not to be handcuffed except in extreme necessity; the right to legal aid; protections against custodial torture and solitary confinement. Each of these was elaborated through Article 21 as post-Maneka developments.

4. Due process in administrative action: Beyond criminal procedure, Maneka Gandhi principles apply to any administrative action affecting liberty — cancellation of licences, deportation of foreigners, termination from service, demolition of homes. Natural justice principles require hearing, reasons for decision, and absence of bias even when no statute specifically mandates them. Courts will set aside administrative decisions that fail these standards.

5. Substantive due process through proportionality: Since Puttaswamy (2017), the Supreme Court has adopted a proportionality standard for reviewing state restrictions on fundamental rights: the restriction must serve a legitimate state aim; it must be the least restrictive means of achieving that aim; and it must be proportionate in its impact on the right. This proportionality review is substantive due process by another name — examining the content of the restriction, not just its form.

What People Often Misunderstand

• India has "due process in substance" even without the term: The practical content of India's Article 21 jurisprudence post-Maneka Gandhi is similar to, and in some respects more extensive than, American procedural due process; the rejection of the term in 1949 does not mean India lacks the concept.
• Gopalan was never formally overruled until Maneka Gandhi: For 28 years, the restrictive Gopalan interpretation governed; the transformation was sudden and comprehensive in 1978 when a seven-judge bench broke with the established position and adopted Justice Fazal Ali's 1950 dissent.
• "Procedure established by law" still requires enacted law: The Maneka Gandhi transformation added a fairness requirement to the procedure; it did not eliminate the requirement that there be a procedure. State action that deprives liberty without any legal basis at all fails even more directly — there is no procedure at all, let alone a fair one.
• The proportionality standard is relatively recent and developing: The Puttaswamy judgment (2017) formally introduced proportionality as a standard of review; its application across different regulatory domains and its relationship to earlier Maneka Gandhi jurisprudence is still being worked out in subsequent judgments.
• Due process and natural justice overlap but are not identical: Natural justice principles — audi alteram partem and rule against bias — apply specifically to adjudicatory and quasi-judicial functions; due process under Article 21 applies more broadly to all state actions affecting life and liberty, including purely administrative decisions.

What Changes Over Time

The Supreme Court Observer's timeline of Article 21 jurisprudence documents the steady expansion from the Gopalan nadir through Maneka Gandhi to the Puttaswamy summit — a 70-year arc from narrow formalism to substantive rights protection. 

The Digital Personal Data Protection Act, 2023 represents Parliament's first legislative response to the Puttaswamy framework, establishing data protection obligations alongside a proportionality test for state data collection. The three new criminal codes' provisions on arrest procedure, bail timelines, and investigation quality represent an attempt to legislate the Maneka Gandhi requirements into express statutory form.

Sources and Further Reading

• CLATalogue — Due Process Under Article 21: https://lawctopus.com/clatalogue/ailet-pg/due-process-under-article-21-of-the-indian-constitution/
• Lawctopus — Due Process of Law in India: https://www.lawctopus.com/clatalogue/clat-pg/due-process-of-law-in-india/
• Clear IAS — Procedure Established by Law vs Due Process: https://www.clearias.com/procedure-established-by-law-vs-due-process-of-law/
• Supreme Court Observer — Article 21 Timeline: https://www.scobserver.in/journal/the-right-to-life-and-personal-liberty-under-article-21-a-timeline/
• Record of Law — Due Process vs Procedure Established by Law: https://recordoflaw.in/due-process-of-law-v-s-procedure-established-by-law-article-21/

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