Due process of law

Polity & Governance glossary

Topic: Fundamental Rights and Constitutional Remedies · NCERT: Beyond NCERT

Meaning

Due process of law is a rule from the USA: before the State takes away a person's life or liberty, the law it uses must itself be fair, just and reasonable, and the State must also follow the law's procedure. Being passed by the legislature is not enough. India's Article 21 uses a different phrase, "procedure established by law". The Supreme Court in Maneka Gandhi (1978) still brought due process into Article 21 in practice, so courts in India can now check whether a law that limits liberty is fair.

Explanation

How it works: two phrases, two kinds of court

  • Procedure established by law (borrowed from Japan). The court asks two questions:
  • Is there a valid law?
  • Did the State follow the steps in that law?

  • If both answers are yes, the court cannot go further, even if the law is harsh.

  • Due process of law (borrowed from the USA). The court asks one more question:

  • Is the law itself fair, just and reasonable?
  • If it is not, the court can strike the law down.
Point Procedure established by law Due process of law
Borrowed from Japan USA
What the court checks Only the procedure The procedure and the content of the law
Power of the court Narrow Wide
Who has the upper hand The legislature The judiciary

Its two parts

  • Procedural due process: the way the State acts must be fair.
  • The person gets notice and a hearing.

  • The State gives reasons and does not act in an arbitrary way (without reason, at its own whim).

  • Substantive due process: the content of the law must be fair.

  • A law that takes away liberty can be struck down if it is unjust or unreasonable, even when every step was followed.
  • Maneka Gandhi (1978) brought this part into Art. 21 in practice.

Why India did not adopt it in words

  • The makers of the Constitution chose the Japanese phrase on purpose.
  • Their aim: to stop judges from overruling social and economic laws, such as land reform.
  • The result: the text of Art. 21 still says "procedure established by law". Only the courts' reading of it has changed.

Limits of the concept in India

  • India has no "due process" clause in its text. The idea comes only from court judgments.
  • Fairness is tested through the golden triangle (Arts. 14, 19 and 21 read together, explained below), not through a separate due process rule.
  • The State can still take away life or liberty. It must do so through a fair law and a fair procedure.

In the Constitution and practice

  • Article 21: "No person shall be deprived of his life or personal liberty except according to procedure established by law."
  • It says "person", so it protects foreigners too.

  • 44th Amendment, 1978: it changed Art. 359 so that Arts. 20 and 21 stay in force even during a National Emergency.

  • A.K. Gopalan v State of Madras (1950): the narrow start

  • The case was about preventive detention (holding a person to stop a possible future crime, without a trial) under the Preventive Detention Act, 1950.
  • The Court upheld the detention.
  • It read "law" as any law the legislature passed (lex), not as fairness or natural justice (jus).
  • It treated each right as a separate compartment. A law under Art. 21 did not also have to pass Art. 14 or Art. 19.

  • In effect, the Court rejected due process.

  • Kharak Singh v State of UP (1962)

  • The Court struck down night-time domiciliary visits (police knocking at a suspect's home at night) because they broke personal liberty.

  • But it said there was no fundamental right to privacy.

  • Maneka Gandhi v Union of India (1978): the turning point

  • Facts: the government impounded her passport under the Passports Act, 1967 "in public interest". It gave no reasons and no hearing.
  • Holding: life and liberty cannot be limited by any procedure. They can be limited only by a procedure that is just, fair and reasonable, not arbitrary, fanciful or oppressive [1].
  • Arts. 14, 19 and 21 must be read together. Reasonableness is the base of Art. 14 (no arbitrary state action), and it flows into Art. 21 too [1].

  • Result: substantive due process came into Art. 21 in practice, though the words did not change.

  • Minerva Mills v Union of India (1980): gave the name golden triangle to Arts. 14, 19 and 21 working as one unit.

  • Mithu v State of Punjab (1983): used the Maneka test to strike down the mandatory death sentence in Section 303, IPC, 1860. A law that leaves the judge no choice is not a fair procedure.
  • Olga Tellis v Bombay Municipal Corporation (1985): pavement dwellers could be evicted only through a fair procedure (notice and a hearing).
  • K.S. Puttaswamy v Union of India (24 August 2017): a nine-judge bench held that privacy is a fundamental right under Arts. 14, 19 and 21 [1]. This reversed the "no privacy right" part of Kharak Singh.
  • Demolition judgment (13 November 2024, 2024 INSC 866): a recent example of procedural due process [2].
  • The executive cannot act as a judge. Pulling down an accused person's house as punishment breaks the rule of law, the separation of powers and the presumption of innocence [2].
  • It set fixed steps [2]:
    1. Show cause notice: 15 days from receipt, or the time in local law, whichever is later.
    2. Personal hearing: minutes must be recorded.
    3. Final order: it must give reasons.
    4. Waiting period: 15 days before the order is carried out.
    5. Demolition: it must be video-recorded.
  • The directions were issued under Art. 142 (the Supreme Court's power to do "complete justice") [2].

Don't confuse with

  • Procedure established by law: this is the phrase actually written in Art. 21, and it comes from Japan. Due process comes from the USA and is not in India's text. It entered only through court judgments.
  • Golden triangle: this is the link between Arts. 14, 19 and 21, a term from Minerva Mills (1980). Due process is the fairness test that the link makes possible. Maneka Gandhi did not coin the term "golden triangle".
  • Natural justice: this covers basic fair-hearing rules, such as notice and hearing the other side. That is only the procedural half of due process. Substantive due process also tests whether the law itself is fair.
  • Judicial review: this is the court's general power to strike down any law or action that breaks the Constitution. Due process is one standard the court uses under Art. 21 when it reviews a law.

Prelims Hooks

  • "Procedure established by law" comes from Japan. "Due process of law" comes from the USA. Only the Japanese phrase appears in Art. 21. Watch for "which of the following is written in Art. 21?" traps.
  • A.K. Gopalan (1950) upheld preventive detention, read "law" as any enacted law and treated rights as separate compartments. Maneka Gandhi (1978), a passport case, required a "right, just and fair" procedure.
  • Golden triangle = Arts. 14, 19 and 21. The term comes from Minerva Mills (1980), not Maneka Gandhi.
  • Mithu (1983) struck down the mandatory death sentence in Sec. 303 IPC on the grounds of fair procedure.
  • Kharak Singh (1962) denied a right to privacy. K.S. Puttaswamy (2017), a nine-judge bench, held privacy to be a fundamental right [1].
  • Arts. 20 and 21 cannot be suspended during a National Emergency, under the 44th Amendment, 1978.

Mains Points

  • From form to fairness:
  • Gopalan (1950) accepted any enacted law.
  • Maneka (1978) demanded a fair, just and reasonable law, so due process entered Art. 21 without any amendment.

  • The same logic continues in Puttaswamy (2017) [1] and the 2024 demolition judgment, where the Court held that the executive cannot be the judge [2].

  • Judiciary vs legislature:

  • The framers chose the Japanese phrase so that judges would not block social and economic laws.
  • By bringing in due process, the courts took a wider role.
  • In favour: it protects the weak, such as detainees, pavement dwellers and prisoners, against arbitrary state action.
  • Against: critics see it as judicial overreach into policy.

  • A balanced view: courts should test laws for fairness, not replace the legislature's policy choices.

  • Procedure as a real safeguard:

  • Fair procedure means notice, a hearing, a reasoned order and time to appeal.
  • The 2024 demolition guidelines show this in practice: a 15-day notice, a hearing, a 15-day wait, video recording, and officers paying personally for violations [2].
  • These steps turn "fair, just and reasonable" into rules that can be checked and enforced.

Related concepts

Read more

Sources

  1. 1Supreme Court of India — Justice K.S. Puttaswamy (Retd.) v Union of India, judgment dated 24 August 2017api.sci.gov.in · tier 1
  2. 2Supreme Court of India — In Re: Directions in the matter of demolition of structures, 2024 INSC 866, judgment dated 13 November 2024api.sci.gov.in · tier 1