In these times with the changing world, our constitution has to survive for ages but with changing mentality of the society, our constitution needs alteration. That’s why the meaning and purpose of ARTICLE 21 of constitution has undergone a lot of changes with time and has been interpreted regularly. This doctrine has been deciphered a lot of times in several verdicts of law courts.
There are many things, which are basic and important to the citizens so that they feel secured.
So Article 21 states “ no one shall be deprived of life and personal liberty except procedure established by law”.
This doctrine was derived from US law composition, which says that no one should be divested of their fundamental rights to live and access freedom according to DUE PROCESS OF LAW.
Initially it was not available in the constitution nonetheless after 5th and 14th amendment, this was a part of US constitution. In 19th century, US government traced the doctrine to Magna Carta. Management might not divest any individual after right to living or house under due process of law.
This theory favors the supremacy of courts over constitution and gives judiciary to access the fundamental rights, justice and liberty.
If the honorable Supreme Court finds that any law is not rational, it will be declared invalid and gives precedence over constitution.
In The Constitution of India, nowhere the expression Natural Justice is used. However, golden thread of natural justice perceptively passed through the body of Indian constitution. Preamble of the constitution includes the words, ‘Justice Social, Economic and political’ liberty of thought, belief, worship ,equality of status and of opportunity, which not only ensures fairness in social and economical activities of the people but also acts as shield to individuals liberty against the arbitrary action which is the base for principles of Natural Justice.
In India, the principles of natural justice are firmly grounded in Article 14 & 21 of the Constitution. With the introduction of concept of substantive and procedural due process in Article 21, all that fairness which is included in the principles of natural justice can be read into Art. 21.
The doctrine talks about its relevance, which comes from the due process. Due process talks about the freedom of the citizen to access fundamental right. The doctrine of natural justice tells us about the freedom to be heard and freedom to be heard without any bias or favourism. So both the doctrines are very interrelated in our legal statutes and hence help us to be productive and helpful towards the people.
WHY DUE PROCESSOF LAW WAS DROPPED FROM INDIAN CONSTITUTION?
It was Justice Frankfurter who instructed B.N Rau to drop this doctrine of due process from the draft of constitution as it was measured unfair and imposed an unfair liability on bench. B.N Rau at that time was the leading member of drafting committee.
Later in an interview, Ashok Desai (high-grade advocate of Supreme Court) said that Frankfurter advised this because of his varied view about the doctrine. He further stated that each person will have different view about various aspects and thus will cause chaos and unreason ability.
“After a lot of debates and arguments it was held that, this doctrine was new and freshly liberated, so it is not decent for our democracy.
It was feared that the legal issues might become subjective and political. The members of constituent assembly were afraid about the adoption of this American policy, it will lead to a stream of lawsuit and many cases will be registered after launch of new constitution. They were not set, hence they deleted the clause of due process of law from the draft script and substitution it with Article 21”, which quotes that –
“No person shall be deprived of his life or personal liberty except according to a procedure established by law”.
“Procedure established by law means that a by-law that is accordingly sanctioned by legislature or the concerned party is effective if it has been committed in a correct procedure”.
Thereafter this phrase (procedure established by law) was adopted in our Indian constitution.
B.R Ambedkar wanted this phrase“ due process of law) to be used but Sir Alladi Krishnaswamy Iyer said that in future when we have to introduce social legislations, this part will create problem.
So that’s why procedure established under came into action.
“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.
If Supreme Court finds that a law is not fair and just and discovers that it is infringing the rights, it will be declared invalid”.
The liberal interpretation of this policy was made after 1918 in India.
• MANEKA GANDHI CASE (1978)
“Supreme Court overruled its previous stance and it held that Article 21 seeks to provide full and complete liberty to the individual and inherently encloses the principle of natural justice”.
The court also held that the procedure established by law within the meaning of Article 21 must be right and fair and should not be harmful, offensive and arbitrary.
It also is also relative to the doctrine of Audi Alterum Partum (It is the policy that no one ought to be judged deprived of a unbiased hearing in which every party is given the chance to answer to the proof in contradiction to them).
• A.K GOPALAN V/S STATE OF MAHARASHTRA
The plaintiff was stopped somewhere by the officials. It was later alleged that he was restrained and that infringes his right to personal liberty, which comes under Article 21.
Supreme Court said that the right to personal liberty could only be infringed if –
• Physically restraining someone
• In case of coercion
In this particular case, the judgment was passed that this is not a case of infringement of personal liberty.
• LOCHNER V/S NEW YORK (17TH APRIL 1905)
“Lochner, a baker was condemned of interrupting the New York Bakeshop Act, which forbidden bakers from working extra than 10 hours a day and 60 hours a week. The Supreme Court smacked down the Bakeshop Act, ruling that it breached on “right to contract.” The Supreme Court got this “right” from the Due Process Article of the 14th Modification; a change that many think outdid jurisdictional power”.
• Regents of the University of California v. Bakke (26 Jun 1978) –
“Allan Bakke, a white person was disallowed entry in the University of California Medical School at Davis twice on different times. The medical school agreed 16 spots for minority applicants in an effort to address unjust minority omission from medical school. Bakke took the matter to the court about his omission from the Medical School as he stated that his exclusion was entirely the outcome of his race. The Supreme Court ruled that the university’s usage of firm racial allocations were unlawful and not only ordered the university to permit Bakke, but also said that race might be used as one of numerous aspects in the admissions procedure. Justice Lewis F. Powell, Jr. in his view stated that the strict usage of racial quotas disrupted the equal protection article of the 14th Amendment”.
• Mapp v. Ohio (19 Jun 1961) ―
Police got information that a shelling suspect may be located at Dollree Mapp’s house in suburban Cleveland, Ohio. When police inquired to investigate her home, Mapp denied if the police produced a permit. The police used a piece of paper as a bogus permit and got entry to her house unlawfully. After examining the home minus to find any bombing suspect, police noticed some sexual materials and detained Mapp under state law that banned the ownership of X-rated stuffs. Mapp was condemned of owning disgusting things and encountered up to seven years in jail before she filed her case on the reason that she had a right to keep the stuff. The Court said that the proof gathered from an illegitimate quest would be eliminated from her hearing. This came under the safeguarding confidentiality by exercising the Due Process Clause.
DUE PROCESS OF LAW =
PROCEDURE ESTABLISHED BY LAW + INHERENT FAIRNESS/JUSTNESS OF LAW
Due process is the legal obligation that the state must respect all legal rights that are owed to a person. When a government damages a person without following the course of the law, this means there is a due process violation, which offends the rule of law.
Due process has also been frequently interpreted as limiting laws and legal proceedings (see substantive due process) so that judges, instead of legislators, may define and guarantee fundamental fairness, justice, and liberty. That interpretation has proven controversial. The interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically.
It says that the law must be fair and just and should follow the procedure of law