Procedure Established by Law means a law adopted by the legislature or the relevant authority is valid if it has followed the proper procedure. Article 21 of the Indian Constitution states that "no person shall be deprived of his life or personal liberty unless in accordance with the procedure established by law." That is, a person's life or personal liberty might be taken away according to the Procedure Established by Law. The UPSC Indian Polity and Governance Syllabus includes Procedure Established by Law which is described in this article.

Procedure Established by Law

• Procedure Established by Law means that a law approved by Parliament would be valid if it had followed the proper procedure.
• It originates from the British Constitution.
• The term procedure established by law is used in Article 21 of the Indian Constitution.
• The legal scope of procedure is more limited. To assess the validity of a legislation by analysing whether or not the method for establishing was followed correctly.
• Following this idea indicates that a person might be deprived of his life or personal liberty in accordance with the legal system.
• Example: Phone Tapping Violates Article 21 Unless Permitted By Procedure Established By Law
• So, if Parliament passes a legislation, a person's life or personal liberty can be taken away in accordance with the terms and processes of that law.

Procedure Established by Law in India - Background

• Since 1978, the Indian judiciary has attempted to make the terms procedure established by law synonymous with due process of law when it comes to preserving an individual's rights.
• The Supreme Court declared in Maneka Gandhi v. Union of India (1978) that a procedure established by law under Article 21 must be "just, fair, and reasonable," and not "unjustifiable, fanciful, or arbitrary."
• Thus, in India, the term procedure established by law has acquired the same significance as the phrase due process of law in the United States.

Procedure Established by Law and Article 21

• Part III of the Constitution establishes Article 21 as a fundamental right. It is regarded as one of the most essential and progressive clauses in our country's constitution.
• Article 21 can only be used when the 'State,' as defined in Article 12, deprives an individual of his or her life or personal liberty.
• As a result, infringement of the right by a private individual falls beyond the purview of Article 21.
• The Indian Constitution protects two fundamental rights in Article 21:
  • The right to life
  • The right to personal liberty
• The significance of Article 21 is that the two rights stated above cannot be taken away without following the necessary procedure.
• This indicates that the above-mentioned rights, namely life and personal liberty, can be revoked provided the legislature follows the correct procedure.
• The judgement in Maneka Gandhi v. Union of India (1978) considerably broadened the scope of Article 21 and achieved the Preamble's goal of making our country a welfare state.
• The Court found that the legal procedure should be fair, just, and reasonable.
• The Court stated that the legal procedure for depriving a person of his right to life and personal liberty must be legitimate, reasonable, and fair, rather than discretionary, and arbitrary.

Procedure Established by Law - Role of Judiciary

• The Judiciary will determine whether the Legislature is competent to pass the law and if it followed the proper legislative procedure, but it will not determine the bill's intent.
• It has a limited reach when compared to "due process of law," because it does not consider whether the law violates principles of justice and equity.
• When reviewing the constitutionality of a law, the Supreme Court simply considers the substantive question of whether the act is within the authority's powers or not.
• A rigid and inflexible adherence to the legal procedure may increase the risk of individuals' lives and personal liberty being jeopardised as a result of unjust laws enacted by the law-making authorities.
• As a result, the law-enforced procedures protect individuals from the executive's arbitrary actions.

Important judgements about Procedure Established by Law

A.K. Gopalan v. Government of India (1965)

• In this case the Supreme Court declared that if the government takes away an individual's freedom in accordance with the legal system, i.e., if the incarceration was done properly, it would not be regarded as a violation of Articles 14, 19, and 21 of the Indian Constitution.
• In this decision, the Court used a restrictive reading of Article 21.
• In this instance, the Court interpreted Article 21 quite literally, ruling that the phrase procedure established by law means that a method established in a legislation can revoke the right to life and personal liberty.

Satwant Singh Sawhney v. D. Ramarathnam (1967)

• The Court determined in this case that the procedure established under Article 21 to deprive a person of life and liberty must be evaluated under Article 14 to ensure its legitimacy and justice.
• This case established a new legal precedent, which was upheld in R.C. Cooper v. Union of India (1970), in which the Supreme Court stated unambiguously that the method used under Article 21 must be reasonable.

ADM, Jabalpur v. Shivakant Shukla (1976)

• When a national emergency was declared in 1975, the Court overruled its own judgement.
• The Court supported the imprisonment under the 1971 Maintenance of Internal Security Act (MISA), while completely rejecting Article 21.
• The Court held that Article 21 is suspended during an emergency.
• As a result, in this case, the Court will only consider the literal meaning of the Procedure Established by Law. The Court made no determination as to whether the government act (MISA, 1971) was just, fair, or reasonable.

Conclusion

"Procedure established by law" means that a law that has been lawfully enacted is valid, even if it violates justice and equitable ideals. The tight adherence to the legal procedure may increase the risk of persons' lives and personal liberty being jeopardised as a result of unjust laws enacted by the law-making authority. The Supreme Court emphasised the need for due process of law in order to avert this predicament.

FAQs

Question. What is meant by the 'Procedure Established by Law' in Indian polity?

Question. How does the 'Procedure Established by Law' differ from 'Due Process of Law'?

Question. How is the 'Procedure Established by Law' applied in India?

Question. What are the implications of the 'Procedure Established by Law' for fundamental rights in India?

Question. Can the 'Procedure Established by Law' be challenged in Indian courts?

MCQs

1. The phrase 'Procedure Established by Law' is mentioned in which Article of the Indian Constitution?

A) Article 19

B) Article 21

C) Article 32

D) Article 14

2. The concept of 'Procedure Established by Law' is most closely associated with which of the following legal principles?

A) Natural justice

B) Judicial review

C) Due process of law

D) Rule of law

3. Which of the following is a key difference between 'Procedure Established by Law' and 'Due Process of Law'?

A) 'Procedure Established by Law' requires fairness, while 'Due Process of Law' does not.

B) 'Due Process of Law' requires fairness, while 'Procedure Established by Law' does not necessarily require fairness.

C) Both terms mean the same in Indian law.

D) Both terms mean the same in American law.

4. Under 'Procedure Established by Law', actions affecting personal liberty must:

A) Follow the procedure prescribed by law

B) Be approved by the President

C) Be conducted in a fair and reasonable manner

D) Be declared in public interest

5. Can a law that violates the 'Procedure Established by Law' be challenged in Indian courts?

A) No, the law is immune to challenges.

B) Yes, if the law violates other fundamental rights or constitutional provisions.

C) Yes, but only by the government.

D) No, only procedural errors can be challenged.

GS Mains Questions and Model Answers

Q1: Discuss the concept of 'Procedure Established by Law' as enshrined in the Indian Constitution and its implications for personal liberty.

Answer: The concept of 'Procedure Established by Law' in the Indian Constitution, under Article 21, protects personal liberty and life by ensuring that no individual can be deprived of these rights except through a lawful procedure prescribed by a statute. This means that any deprivation of personal liberty or life must be carried out according to the procedures set forth in the law, but the law itself does not necessarily have to be just or reasonable. This principle emphasizes legal certainty and order but has been critiqued for allowing arbitrary or unreasonable laws, especially when the procedure may be flawed but not unconstitutional. In contrast to the American principle of 'Due Process of Law,' which ensures that laws must be fair and just, the 'Procedure Established by Law' only requires that a procedure exists. However, such laws can be challenged if they violate other constitutional guarantees, such as equality or non-arbitrariness, thereby ensuring a balance between state power and individual rights. This doctrine also underscores the importance of judicial review to ensure that the procedures comply with constitutional safeguards.

Q2: Explain the difference between 'Procedure Established by Law' and 'Due Process of Law' and discuss their relevance to the protection of fundamental rights in India.

Answer: The difference between 'Procedure Established by Law' and 'Due Process of Law' lies primarily in the scope of judicial scrutiny. 'Procedure Established by Law,' as used in the Indian Constitution, allows the state to deprive an individual of life or liberty as long as there is a legal procedure established by law. It does not require that the law or procedure be just, fair, or reasonable, as long as it follows the statutory framework. On the other hand, the 'Due Process of Law' principle, which is prevalent in American law, ensures that laws affecting personal liberty must not only follow a legal procedure but also be just, fair, and reasonable. In India, the concept of 'Procedure Established by Law' has been used to permit laws such as preventive detention laws, under which a person can be detained without trial. However, the courts have played a significant role in interpreting the application of these laws, ensuring that they do not violate the basic structure of the Constitution or fundamental rights. While 'Procedure Established by Law' focuses on adherence to prescribed procedures, the concept of 'Due Process of Law' has influenced judicial interpretations to some extent, pushing for fairness and reasonableness in the laws affecting personal liberty.

Q3: Analyze the role of judicial review in the context of the 'Procedure Established by Law' doctrine and its importance in protecting fundamental rights in India.

Answer: Judicial review plays a crucial role in ensuring that the 'Procedure Established by Law' doctrine does not infringe upon the fundamental rights of individuals. While this principle allows the state to deprive an individual of life or liberty if the prescribed legal procedures are followed, it does not permit arbitrary or unreasonable laws. Judicial review ensures that laws or procedures enacted by the state comply with constitutional principles and do not violate basic rights guaranteed under the Constitution. The judiciary has the power to examine whether the procedure established by law is being followed and whether the law is consistent with the Constitution. For instance, laws that deprive an individual of liberty must be consistent with other fundamental rights such as equality and non-discrimination. Judicial review helps in maintaining a balance between state power and individual rights by scrutinizing laws that may be unconstitutional or infringe upon personal freedoms. The courts have the authority to strike down laws or procedures that are inconsistent with fundamental rights, ensuring the protection of individual liberties. Judicial review thus acts as a safeguard against the misuse of laws and ensures that the 'Procedure Established by Law' aligns with the spirit of the Constitution and the protection of human rights.

Previous Year Questions on Procedure Established by Law

1. UPSC CSE 2020

Question: "Explain the significance of the concept of 'Procedure Established by Law' in the context of the protection of life and liberty under Article 21 of the Indian Constitution."

Answer: The concept of 'Procedure Established by Law' as enshrined in Article 21 of the Indian Constitution signifies that the deprivation of an individual’s life or liberty must only occur through a procedure that is prescribed by law. This means that any government action that affects personal liberty, such as arrest, detention, or execution, must follow the legal procedure laid down by statute. However, the law itself need not be just or reasonable, but the procedure must be lawful. While this gives the state the power to restrict personal liberty, it also acts as a safeguard against arbitrary action. The principle emphasizes that individuals can only be deprived of their rights if there is a legitimate law in place that prescribes the method of such deprivation. Although it provides protection, the lack of requirement for fairness in the law has been subject to critique. Judicial review has played a key role in ensuring that these laws do not violate fundamental rights, ensuring the balance between state power and individual freedoms.

2. UPSC CSE 2019

Question: "What are the implications of the 'Procedure Established by Law' doctrine in relation to the judicial review of laws affecting fundamental rights?"

Answer: The 'Procedure Established by Law' doctrine implies that any law that deprives an individual of life or liberty must be followed according to a legal procedure, but the fairness of the procedure itself is not guaranteed. The key implication is that while laws must exist for state actions affecting personal liberty, these laws are not automatically subjected to the same standard of fairness required by the 'Due Process of Law' principle. However, the judiciary plays a crucial role in reviewing laws under this doctrine. Judicial review ensures that laws affecting fundamental rights are not arbitrary or unconstitutional. Courts have the power to examine whether the procedures laid down in the law violate constitutional provisions such as equality or fairness. This safeguard ensures that laws, even if they exist, do not infringe upon the basic rights guaranteed by the Constitution. Through judicial review, the courts have the authority to strike down laws or procedures that are inconsistent with fundamental rights, ensuring the protection of individual liberties.

*email: contactus@prepp.in