A

PROJECT REPORT ON

Procedure established by law in ak gopalan

&
Menaka Gandhi case .

SUBMITTED TO:
Mr. Azim B Pathan (Gold Medalist)
(Faculty Legal Meathod)

Submitted By:
Prashant Kerketta
Roll No. : 119
Semester- I

Date of Submission: 26th of October 2013

Hidaytullah National Law University
Table of Contents

Acknowledgements II
Objective......III
Research Methodology....III
Introduction....1
Due Process of Law & Procedure Established by Law..2
Difference Between Due Process of Law and Procedure established by Law....4
A.K Gopalan case...6
Maneka Gandhi case...8
From procedure established by Law to Due process of Law10
Conclusion...........................................................12
WEbliography...13

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 ACKNOWLEDGEMENT

First & foremost, I take this opportunity to thank Mr. Azim B Pathan (gold Medalist) , Faculty Legal
Method, HNLU for allotting me this challenging topic to work on. He has been very kind in
providing inputs for this work, by way of suggestions and by giving his very precious time for some
discussion and providing me resource of his vast knowledge of the subject which helped me to look
at the topic in its very broad sense also to look at some of the very narrow concepts by expertise
view. Therefore she proved to be a database in making this project. Hence I would like to thank her
for all her cooperation and support.

I would also like to thank my dear colleagues and friends in the University, who have helped me
with ideas about this work and also a source for constant motivation and hence they were a guiding
force to me in making of this project. Last, but not the least I thank the University Administration for
equipping the University with such good library and IT lab.
My special thank to library staff and IT staff for equipping me with the necessary books and data
from the website.
I would also like to thank the hostel staff for providing me a healthy and clean environment that
provided me a great concentration level.
Prashant Kerketta

Roll No. - 119

Semester- I

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 OBJECTIVE

To study about the Procedure established by law in context to Due process of Law .
To have a Description and laws pertaining in AK Gopalan Case and Maneka Gandhi case
.

Research Data base :

This research paper is descriptive & analytical in approach. It is largely based on secondary &
electronic sources. Books & other reference as guided by faculty are primarily helpful for the
completion of this

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 INTRODUCTION

India is a vast Estate which generally follows Procedure established by Law. In India a liberal
interpretation is made by judiciary after 1978 and it has tried tomake the term 'Procedure established
by law' as synonymous with 'Due process' when itcomes to protect individual rights .
In Menaka Gandhi v Union of India case (1978) SC held that -

Procedure established by law' within the meaning of article 21 must be 'right and just and fair' and
'not arbitrary, fanciful or oppressive' otherwise, it would be no procedure atall and the requirement
of Article 21 would not be satisfied. Thus, the 'procedure establishedby law' has acquired the same
significance in India as the 'due process of law' clause in America .

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 Due Process of Law & Procedure Established by Law

Due Process of Law

It is the legal requirement that the state must respect all of the legal rights that are owed to a person
and laws that states enact must confirm to the laws of theland like - fairness, fundamental rights,
liberty etc. It also gives the judiciary to access thefundamental fairness, justice, and liberty of any
legislation.

The concept of due process originated in English common law. The rule that indivisual should not be
deprived of life liberty and property without notice and an opportunity to defend themselves
predates written constitution and was widely accepted in England. The MAGNA CARTA, an
agreement signed in 1215 that defined the rights of English subjcts against the King, is an early
example of a constitutional guarantee of Due Process . That document includes a clause that
declares , No Free man shall be seized or imprisoned exept the lawful jugdement of his peers or by
the law of the land . This concept of the law of land was later transformed into the phrase DUE
PROCESS OF LAW .

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 Procedure Established By Law

It means that a law that is duly enacted bylegislature or the concerned body is valid if it has followed
the correct procedure. Say a lawenacted by Indian legislature. Article 21 of Indian Constitution says
that- 'No person shall bedeprived of his life or personal liberty except according to Procdure
Established by law .
In India, there is no mention of the word 'Due Process'. A strict literal interpretation of Procedure
established by Law give the legislative authority an upper hand and they mayenact laws which may
not be fair from a liberal perspective.

The expression Procedure established by law means procedure laid down by statute or procedure
prescribed by law of the state .
Accordingly first there must be law justifying interference with the persons life or personal liberty
and secondly the law should be a void law , and thirdly the procedure laid down by the law should
have been strictly followed . In the absence of any procedure prescribed by the law sustaining the
deprivatio of personal liberty , the executive authorities shall violate Article 21 if they interfere with
the life or personal liberty of the indivisual .

Liberty by personal it provides that a person cannot be deprived without the due process of
law .

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Difference Between Due Process of Law and Procedure established by Law.

The difference between "due process of law" and "procedure established by law" is that under the
American system, a law must satisfy the criteria of a liberal democracy. In India "procedure
established by law", on the other hand, means a law duly enacted is valid even if it's contrary to
principles of justice and equity .

In the case AK Gopalan the case passed through the procedure established by law . And in the other
case Menaka the case passed through procedure established by law and then it overruled it
followed the Due process of Law US constitution .

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 AK GOPALAN CASE

The famous case of A.K. Gopalan v. State of Madras was the first case filed challenging the
constitutional validity of an act under the provision of A.21 of the Indian Constitution.
It's a much controversial ruling in the sense that , if we think about it now, one wonders whether the
Supreme Court would have given the same ruling in favor of the state had this case come before it
today..
Of course it is very much understandable that it being the first case and the phenomenon of judicial
activism still in its fetal stage, not to mention the fact that it was the first batch of judges appointed
as justices in the Supreme Court and Kania .j was the first ever Chief Justice of Independent India..
Even then the interpretational wizardry and skillfulness of our judges are still evident from this
judgment. The Supreme Court held that :
The Preventive Detention Act 1950, is intra vires the Constitution with the exception of S. 14 which
is illegal and ultra vires. The invalidity of S. 14 does not affect that rest of the provisions in the Act.
Section 12 of the Act also does not conform to the provisions of the Constitution of India and is
therefore ultra vires. Constitutional Provisions involved in this Case:

Artilce.21. No person shall be deprived of his life or personal liberty except according to
procedure established by law.
Furthermore the case also highlights Article 22 (7) of the Indian Constitution which says that:
Article 22 (7) Parliament may by law prescribe-
(a) The circumstances under which, and the class
or classes of cases in which, a person may be detained for a period longer than three months under
any law providing for preventive detention without obtaining the opinion of an Advisory Board in
accordance with the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under
any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under [sub-clause (a) of clause
(4)].
And clause 4 of Article 22 lays down:
Article 22 (4) No law providing for preventive detention shall
authorise the detention of a person for a longer period than three months unless-

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(a) An Advisory Board consisting of persons who are, or have been, or are qualified to be appointed
As, Judges of a High Court has reported before the expiration of the said period of three months that
there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the
maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) Such person is detained in accordance with the provisions of any law made by Parliament under
subclauses (a) and (b) of clause (7).
Article 19 (1) All citizens shall have the right-
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory
of India;
(f) omitted;
(g) to practise any profession, or to carry on any
occupation, trade or business.
The Case
Interpretation of Constitutional Provisions .

A.K. Gopalan v. State of Madras, though with its many flaws, still stands as a judicial beacon for
Part III of the Constitution when viewed through the eyes of the historical kaleidoscope of judicial
interpretation.
It helps us to understand the initial concepts, to know the earlier assumptions of interpretation from
which our great judiciary has evolved to its behemoth position as the champion of fundamental and
human rights as it stands today .

At the Time to Procedure Established by Law was putted on the case mentioned above .

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 Menaka Gandhi Case

Maneka Gandhi was issued a passport on 1/06/1976 under the Passport Act 1967. The regional
passport officer , New Delhi issued a letter dated 2/7/1977 addressed to Maneka Gandhi , in which
she was asked to surrender her passport under section 10(3) (c ) of the Act in public interest, within 7
days from the date of receipt of the letter. Maneka Gandhi immediately wrote a letter to the Regional
passport officer New Delhi seeking in return a copy of the statement of reasons for such order.
However the government of India, Ministry of External Affairs refused to produce any such reason
in the interest of general public. Maneka Gandhi then filed a writ petition under Article 32 of the
constitution in the Supreme Court challenging the order of the government of India as violating her
fundamental rights guaranteed under Article 21 of the constitution. The main issues before the court
in this case were as follows; whether right to go abroad is a part of right to personal liberty under
Article 21. Whether the Passport Act prescribes a procedure as required by Article 21 before
depriving a person from the right guaranteed under the said Article. Whether section 10(3) (c) of
the Passport Act is violative of Article 14, 19(1) (a) and 21 of the constitution. Whether the
impugned order of the regional passport officer is in contravention of the principles of natural
justice. The Supreme Court in this case reiterated the proposition that the fundamental rights under
the constitution of India are not mutually exclusive but are interrelated. According to Justice K. Iyer,
a fundamental right is not an island in itself. The expression personal liberty in Article 21 was
interpreted broadly to engulf a variety of rights within itself. The court further observed that the
fundamental rights should be interpreted in such a manner so as to expand its reach and ambit rather
than to concentrate its meaning and content by judicial construction. Article 21 provides that no
person shall be deprived of his life or personal liberty except in accordance with procedure
established by law but that does not mean that a mere semblance of procedure provided by law will
satisfy the Article , the procedure should be just , fair and reasonable. The principles of natural
justice are implicit in Article 21 and hence the statutory law must not condemn anyone unheard. A
reasonable opportunity of defense or hearing should be given to the person before affecting him, and
in the absence of which the law will be an arbitrary one. One of the significant interpretation in this
case is the discovery of inter connections between Article 14, 19 and 21. Thus a law which
prescribes a procedure for depriving a person of personal liberty has to fulfill the requirements of

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Article 14 and 19 also. Moreover the procedure established by law as required under Article 21
must satisfy the test of reasonableness in order to conform with Article 14. Justice Krishna Iyer in
this case observed that, the spirit of man is at the root of Article 21, personal liberty makes for the
worth of the human person and travel makes liberty worthwhile. The court finally held that the
right to travel and go outside the country is included in the right to personal liberty guaranteed under
Article 21. Section 10(3) (c) of the Passport Act is not violative of Article 21 as it is implied in the
provision that the principles of natural justice would be applicable in the exercise of the power of
impounding a passport . The defect of the order was removed and the order was passed in
accordance with procedure established by law. The honble Supreme Court in this case laid down a
number of other propositions which made the right to life or personal liberty more meaningful.
Maneka Gandhi case has a great significance in the development of Constitutional law of India .

This case passed through the procedure established by law and then it overruled by the Due Process
of Law US constitution .

The Supreme Court in the Maneka Gandhi v. Union of India1 case changed this unfortunate
position and gave a truly fundamental character to the right in article 21.

This the court did by Establishing a relationship between acticles 14, 19, and 21 which had
apparently been denied in GOPALAN, particularly in respect of articles 19 and 21 .2

1
( 1978)1 scc 248: AIR 1978 SC 197
2
Lily Thomas v. Union of India (2000)6 scc 224: AIR 2000 SC 1640

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FROM PROCEDURE ESTABLISHED BY LAW TO DUE PROCESS OF LAW

While Bhagwati, J . in Maneka Gandhi case establishment the requirement of reasonablesness of

procedure in Article 21 through Article 14, some of the judges in that case and in some other
subsequent cases have read such reqirement in Article 21 itself and particularly in the word law in
the american sense which the constitution makers had intended to avoid by replacing the latter
expression by the former .

Thus in Maneka Gandhi , Chandrachud, J. said that the procedure in Article 21 has to be Fair , Just
and Reasonable, not Fanciful, Oppressive or Arbitary3 and Krishna Iyer J. said that the Law in
Article 21 is reasonable Law, not any enacted piece . Again in Sunil Batra v. Delhi Admn,4
Krishna Iyer J. said that True our Constitution has no Due process Clause but after Cooper and
Maneka Gandhi the consequence is the same and added that article 21 is the counterpart of the
procedural due process in the united states .

In the same case speaking for the rest of the Court Desai said :

The word Law in the expression procedure established by law in Article 21 has been interpreted
to mean in Maneka Gandhi Case that the law must be right, just and fair, and not arbitrary ,fanciful
or oppressive .5

From these decisions it is clear that the requirement of reasonableness, which originally emerged
from the inter relation of Articles 14 and 21 and initially carried the impression of controlling only
procedural laws relating to deprivation of life and personal liberty, has developed into a general
principal of reasonableness similar to due process of law in the U.S constitution capable of
application to any branch of Law .

3
Maneka Gandhi v. Union of India (1978) 1 SCC 248:AIR 1978 SC 97 .
4
(1978) 4 SCC 494: AIR 1978SC 1675
5
Ibid at P.541

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Maneka Gandhi case Sarkaria J. rephrased article 21 in the following words :

No person shall be Deprived of his life or personal liberty except according to fair, just and
reasonable procedure established by valid law .

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 CONCLUSION

From these decisions it is clear that the requirement of reasonableness, which originally emerged
from the inter relation of Articles 14 and 21 and initially carried the impression of controlling only
procedural laws relating to deprivation of life and personal liberty, has developed into a general
principal of reasonableness similar to due process of law in the U.S constitution capable of
application to any branch of Law .

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 WEBLIOGRAPHY

http://www.academia.edu/4107497/Due_Process_of_Law_v_Procedure_Established_by_Law .

http://wiki.answers.com/Q/Difference_between_due_process_of_law_and_procedure_established
_by_law

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