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‘Due process of law’ or ‘procedure established by law’

Articles of Faith
Last Updated 17 October 2021, 00:13 IST

Four words in the Constitution caused a heated, intractable debate in the Constituent Assembly (CA) on December 6, 1948. To the English-speaking non-lawyer, the words “procedure established by law” and “due process of law” might seem similar. To anyone with a knowledge of constitutional law and interpretation, the gulf between the words is vast and reflects two very different worldviews.

The debate related to the draft Article 15, which guaranteed that “no person shall be deprived of his life or personal liberty, except according to procedure established by law.” Today, we know this as Article 21, and its text has remained unchanged since it was first introduced in the CA. So, what was all the fuss about?

“Due Process of law” is found in the Fifth Amendment to the American Constitution, which guarantees that no one can be deprived of life, liberty or property without “due process of law”. “Procedure established by law” is a phrase borrowed from Article 31 of the post-World War 2 Japanese Constitution. The US Supreme Court had interpreted “due process of law” in a number of cases related to personal liberty and had applied it in many to strike down laws. The Japanese Constitution was less than two years old when this debate took place in the CA and the exact meaning of “procedure established by law” was still unclear. To complicate the situation, one has to keep in mind that the Japanese Constitution was also effectively drafted by Americans!

The members of the CA were not just lawyers debating finer points of interpretation. Many of them had themselves experienced what it was like to have one’s personal liberty curtailed by draconian laws. To them “procedure established by law” was code for “anything goes.” It seemed to them that law, no matter how unjust, cruel or bizarre, would be permitted under the Constitution so long as it was cleared by Parliament.

One gets a sense of the anguish of the members from this part of Chimanlal Chakkubhai Shah’s speech:

“…I have no doubt that the judiciary will take into account fully the necessities of a situation which have required the legislature to pass such a law. But it has happened at times that the law is so comprehensive that the individual is deprived of life and liberty without any opportunity of defence. What is the worst that can happen in an Article like this if we put in the words “without due process of law”? Some men may escape death or jail if the judiciary takes the view that the law is oppressive. Sir, is it not better than nine guilty men escape than that one innocent man should suffer? That is the worst that can happen even if the judiciary takes a wrong view.”

Mahboob Ali Baig Sahib Bahadur also pointed out that if Article 31 of the Japanese Constitution was to be borrowed, then the other provisions of the same Constitution that relate to the right to counsel, no arrest or search without a warrant, the right to a speedy trial, etc., also ought to be included.

These views were countered by Alladi Krishnaswamy Iyer. He argued against placing so much faith in the judiciary which is itself just “three gentlemen or five gentlemen” who tend to let personal biases sway their interpretation and who do not necessarily give consistent interpretations of the Constitution. He pointed to the US Supreme Court striking down laws on minimum wage and those prescribing safe conditions of work using the “due process” clause to argue why the same should not be included in the Indian context.

Babasaheb Ambedkar was himself ambivalent. It was one of the rare instances in which he did not firmly come down on one side of a debate or the other. His intervention, which came a week after the debate, on December 13, only summarises the views of both sides, with no firm commitment to either. His own views on the Article perhaps can be discerned from a discussion I have previously written about -- the one relating to the present Article 22.

Ambedkar mentions his own dissatisfaction over the wording of draft Article 15 of the Constitution but proposes draft Article 15-A (Article 22), which elevates provisions of the Code of Criminal Procedure to the level of fundamental rights, as “compensation” for the unsatisfactory wording of Article 21.

In the end, however, the wording proposed by the Drafting Committee was accepted by the majority, and all the proposed amendments seeking to insert the phrase “due process of law” were rejected.

But that is not the end of the story. Indian courts, post-Independence, added a different dimension to Article 21. And that’s a tale for another day.

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(Published 16 October 2021, 17:38 IST)

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