Question

Consider the following statements :

1. 'Due process of Law' provides for judicial scrutiny against arbitrary action of executive only.

2. The procedure established by law provides judicial scrutiny against arbitrary actions of both legislative and executive.


3. Article 21 of the Indian Constitution explicitly mentions the 'procedure established by law'.

Which of the statements given above is/are correct?

(a) 1 and 2 only

(b) 2 and 3 only

(c) 3 only

(d) 1, 2 and 3​

Answer 1

Option C - 3 Only

■ Explanation :-

• Article 21 declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. This right is available to both citizens and non-citizens. Hence statement 3 is correct.

• The expression ‘procedure established by law’ in Article 21 is different from the expression ‘due process of law’ contained in the American Constitution. The procedure established by law means a law that is duly enacted by the legislature is valid if it has followed the correct procedure. In this, the court would assess that whether there is a law, whether the Legislature is competent to frame the law and whether it had followed the procedure laid down to legislate and would not assess the intent of the said law. Therefore under this concept, the validity of a law that has prescribed a procedure cannot be questioned on the ground that the law is unreasonable, unfair, or unjust. If Parliament passes a law, then the life or personal liberty of a person can be taken off according to the provisions and procedures of that law.

• On the other hand, '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 see if the law made is fair, just and not arbitrary. This doctrine provides for more fair treatment of individual rights. 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 state enact must confirm to the laws of the land like – fairness, fundamental rights, liberty, etc.

• In the Gopalan case (1950), the Supreme Court has taken a narrow interpretation of Article 21. The protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action. But, in Menaka case12 (1978), the Supreme Court overruled its judgment in the Gopalan case by taking a wider interpretation of Article 21 and has introduced the American expression ‘due process of law’. In effect, the protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action. Hence statements 1 and 2 are not correct.

Hope It helps you.