“A due process” or “procedure established by law”

Four words of the Constitution provoked a heated and insoluble 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” may seem similar. For anyone with knowledge of constitutional law and its interpretation, the word gap is vast and reflects two very different worldviews.

The debate focused on draft article 15, which guaranteed that “no one shall be deprived of his life or of his personal liberty, except in accordance with the procedure established by law”. Today we know it as Article 21, and its text has remained unchanged since its introduction in CA. So what was it all about?

The “Due Process of Law” is found in the Fifth Amendment of the US 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 term borrowed from article 31 of the post-war Japanese Constitution. The United States Supreme Court has interpreted “due process” in a number of individual liberty cases and applied it in many cases to repeal 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, keep in mind that the Japanese Constitution was actually written by Americans as well!

Board members were not just lawyers debating finer points of interpretation. Many of them had experienced what it was like to have their personal freedom restricted by draconian laws. For them, the “procedure established by law” was a code for “anything goes”. It seemed to them that the law, however unfair, cruel or bizarre, would be allowed under the Constitution as long as it was approved by Parliament.

We feel the anguish of the members of this part of Chimanlal Chakkubhai Shah’s speech:

“… I have no doubt that the judiciary will take fully into account the necessities of a situation which has forced the legislator to adopt such a law. But it has sometimes happened that the law is so complete that the individual is deprived of his life and his freedom without any possibility of defending himself. What is the worst that can happen in an article like this if we put the words “without due process”? Some men can escape death or prison if justice considers the law oppressive. Sir, isn’t it better that nine guilty escape than an innocent sufferer? It is the worst that can happen even if justice has a bad opinion. “

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 which concern the right to legal assistance, the prohibition of arrest or warrantless search, the right to a trial, etc., should also be included.

These views were countered by Alladi Krishnaswamy Iyer. He objected to such confidence in the judiciary which itself is only “three gentlemen or five gentlemen” which tend to let personal prejudices influence their interpretation and which do not necessarily give coherent interpretations of the law. Constitution. He pointed out that the United States Supreme Court struck down the minimum wage laws and those prescribing safe working conditions using the “due process” clause to explain why the same should not be included in the context. Indian.

Babasaheb Ambedkar himself was ambivalent. It was one of the rare cases where he had not come out firmly on one side or the other of a debate. His intervention, which took place a week after the debate on December 13, only summarizes the points of view of both sides, without any firm commitment from either side. His own opinions on the article can perhaps be discerned from a discussion I wrote about previously – the one relating to the current article 22.

Ambedkar expresses his own dissatisfaction with the wording of draft article 15 of the Constitution, but proposes draft article 15-A (article 22), which elevates the provisions of the Code of Criminal Procedure to the rank of fundamental rights, as “compensation” for the dissatisfaction wording in section 21.

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

But that’s not the end of the story. Indian courts after independence added a different dimension to section 21. And that’s a story for another day.

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