Pran Chopra (ed.

), The Supreme Court versus the Constitution: A Challenge to Federalism, New

Delhi: Sage, 2006.

‘DUE PROCESS’ or ‘PROCEDURE ESTABLISHED BY LAW’

THE CONSTITUENT ASSEMBLY’S COGITATIONS

by
Ajay K. Mehra

The Judges of Aragon began by setting aside laws and ended by making
them. And all this sweeping development could only be possible because
of the presence of one little word ‘due’ which in its content, knows no
bounds and is not subject to any fixed definition. Whenever a substantive
law or some procedure laid down in any law did not find favour with the
majority of the learned Judges of the Supreme Court it was not reasonable
and, therefore, it was not ‘due’.
Justice Das, of the Supreme Court of India while delivering judgement in the A. K. Gopalan vs. State of
Kerala, Quoted by H. M. Seervai, Constitutional Law of India, Bombay: N. M. Tripathi Pvt. Ltd., 1993, p. 980.

The main issue involved in the debate over ‘due process’ of law (as given in the US
constitution) and ‘procedure established by law’ (as provided for in the Constitution of
India) is whether the courts should have the right to strike down as ultra vires a law
enacted or a constitutional amendment made by a legislature elected by people and
whether the power of judicial review vested in the judiciary should be allowed to override
the basic function and powers of the legislatures to legislate. In other words, and in
particular relation to India, whether the doctrine of ‘basic structure’ propounded by the
Supreme Court of India in the Kesavanand Bharti case in 1973 has negated the principle
of ‘procedure established by law’ given in the Constitution of India.
In the following discussion we attempt to review the debate in the Constituent
Assembly (CA) of India in order to understand why the CA gave its preference for ‘the
procedure established by law’ and what do the minds of the founding fathers imply for
the situation emanating out of the ‘basic structure’ doctrine given by the Supreme Court
of India in 1973.
This issue was rather keenly debated in the CA while discussing draft Articles 15
and 15A (Articles 21 and 22), because the Drafting Committee chose to override the
recommendations of CA’s Advisory Council on Fundamental Rights. The matter was
reopened again nine months later with the introduction of the draft Article 15A by Dr. B.
R. Ambedkar. In both the cases the Drafting Committee succeeded in having its way
with the members’ objections and inserting the Articles in the Constitution of India. The
debate, rather the process of this debate and the CA’s decision on it, went through five
stages:
 i The CA’s Advisory Council on Fundamental Rights recommended the use of the
phrase ‘due process of law’ in the Article meant to secure ‘Protection of life and
personal liberty’ to be incorporated in the Fundamental Rights.1
ii The Drafting Committee changed it to ‘procedure established by law’ in the
Draft Article 15.2
iii Most members of the CA taking part in the discussion on the Draft Article 15
argued (6 and 13 December 1948) in favour of ‘due process’ as they felt that
parliamentary power emanating from the ‘procedure established by law’ could be
misused on partisan grounds to curb ‘personal liberty’ of individuals, both
citizens and non-citizens.
iv Dr. Ambedkar in his reply to the debate felt that it was a difficult choice and did
not show any particular preference for either, leaving the choice to the members,
who eventually voted to retain ‘procedure established by law’, as proposed by the
Drafting Committee.
v The issue was virtually reopened nine months later (15 September 1949) when
Dr. Ambedkar introduced Draft Article 15A, now Article 22, for discussion,
which, taking account of sensibilities of the members of the CA, attempted
greater safeguards for citizens by making two clauses of the Cr. PC constitutional
– virtually taking them away from the Parliament’s amending powers, as it were.
This, he claimed, brought in the spirit of (substantive) ‘due process’ in the
functioning of the ‘procedure established by law’.

Between (i) and (ii) came in CA’s Constitutional Advisor B. N. Rau’s

understanding of the functioning of the US constitution, where he thought that the
Supreme Court had abused the substantive ‘due process’. Any doubts in his mind were
removed after a discussion with Justice Frankfurter of the US Supreme Court, who
pointed out to him that the makers of the American Constitution intended to use due
process as a procedural safeguard only, but the US Supreme Court enlarged it into a
substantive safeguard too. That, according to Frankfurter, made the judicial review
undemocratic, because the court could strike down the policies of the government even
by taking the stand that they were substantively opposed to provisions of the
constitution. He was, therefore, for restricting judicial review to procedural grounds.3
According to Seervai, ‘By substituting for the words “due process of law” the expression
“except according to procedure established by law” the Drafting Committee did not
make the American concept of “due process” more precise as a matter of drafting – the

1 The recommended draft was: ‘No person shall be deprived of his life or liberty without due process of
law.’
2The Drafting Committee changed it to: ‘No person shall be deprived of his life or personal liberty except
according to procedure established by law.’
3M. Hidaytullah (editor-in-chief), Constitutional Law of India, vol. I, The Bar Council of India Trust, in
association with Arnold-Heinmann, New Delhi, 1984, p. 494.
2
Committee gave up the concept altogether.’4 The finality in Seervai’s observation regarding the
preference of the Drafting Committee for ‘procedure established by law’ as against the
American concept of ‘due process’, which was comprehensively rejected despite the
strong tilt several members showed towards the concept, suggests the limitations of the
doctrine of ‘basic structure’ for the Constitution of India.

Meaning and Implication

Both of these concepts are linked to the evolution and eventual institutionalization of the
doctrine of the rule of law as part of democratic theory, practice and governance. Aside
from overall importance of the Magna Carta in laying the foundation of civic and human
rights, ‘due process’ was among the first legal instruments to create the basis for fair trial
of an accused both in procedure and in substance. The following two articles of the
Magna Carta deserve attention in order to understand the primacy that the ‘law of the
land’ and ‘lawful judgement of the peers’ acquired in delivering and ensuring ‘justice’ in a
democratic system.

[39] No free man shall be arrested or imprisoned or disseised or outlawed or

exiled or in any way victimised, neither will we attack him or send anyone to
attack him, except by the lawful judgment of his peers or by the law of the land.
[40] To no one will we sell, to no one will we refuse or delay right or justice.

As pointed out by one of members of the CA, the expression ‘Per Legum Terrera’ in the
Magna Carta has come to mean ‘without due process of law’. Later, the Statute No. 28
during the reign of Edward III (1331), read, ‘No man of what state or condition so ever
he be, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor indicted,
nor put to death, without he be brought to answer by due process of law’. This was
perhaps the earliest use of this expression; certainly earlier than its use in the Constitution
of the United States of America. Indeed, as the British constitutional system evolved
subsequently, unlike in the US constitutional and legal systems, ‘substantive due process’
did not acquire credence there. The parliamentary supremacy has remained unchallenged
in Britain. Obviously, what Magna Carta has given is procedural due process, which is
essentially based on the concept of procedural fairness. As a bare minimum, it includes
an individual’s rights to be adequately notified of charges of proceedings involving him,
and the opportunity to be heard at these proceedings. Thus, while Magna Carta forbade

4 H. M. Seervai, Constitutional Law of India, Bombay: N. M. Tripathi Pvt. Ltd., 1993, p. 970. Italics mine.
3
the King from disobeying Parliament, it did not create any instrument to forbid
Parliament from doing anything.
The idea of substantive due process was developed in the 18th and 19th century in
the USA. The Bill of Rights and ten Amendments (particularly the V Amendment)5 to
the US constitution that were passed as a single unit on 15 December 1791 and the XIV
Amendment6, ratified in 1868, established that the idea of due process was substantive
too. While proposing the Bill of Rights to the Congress James Madison thus explained,
‘Magna Carta does not contain any one provision for the security of those rights,
respecting which the people of America are most alarmed.’ Substantive due process has
thus developed as limitations on the power or authority of governmental legislative
bodies to abridge any person’s life, liberty, or property interests.7

The CA Debate on Article 21

The debate on the Draft Article 15 began with members expressing surprise that the
Drafting Committee ignored the recommendation of the CA’s Advisory Council on
Fundamental Rights to incorporate ‘due process of law’ in the Article meant to secure
‘Protection of life and personal liberty’ in the section on Fundamental Rights and opted
for ‘procedure established by law’. And, of course, it prefixed ‘personal’ to liberty,
which, except for a few dissenting voices, was generally accepted.
The debate that followed on the draft article was informed by the situation in the
USA and concerned with effective judicial protection to ‘personal liberty’. It was felt that
since parliament, party politics as well as conventions and traditions governing them had
yet to evolve in the country, partisanship was expected to be the guiding element of
parliamentary politics. Naturally, most members of the CA who introduced amendments
in the draft article to restore ‘due process’ and took part in the debate, were worried that
‘procedure established by law’ would weaken the role of the judiciary in protecting

5The Amendment V of the United States Constitution (ratified 15 December 1791) read, ‘... nor shall any
person be subject for the same offence twice be put in jeopardy of life or limb; nor shall be compelled to
be a witness against himself, nor deprived of life, liberty or property without due process of law[.]’. It was
written to limit the powers of the federal government and it remained so for nearly eight decades.
6 The Amendment XIV of the United States Constitution (ratified 1868) extended the guarantees against
States too, ‘... nor shall any State deprive any person of life, liberty or property without due process of
law[.]’ .
7 Dr. Bakshi Tek Chand mentioned in the CA that the best exposition of the expression ‘due process of
law’ was by an American lawyer Webster, who said that, ‘due process of law means the law which hears
before it condemns; a law which proceeds upon enquiries and a law which renders judgement after trial’.
CAD, Book No. 4, Vol. IX, pp. 1533.
4
‘personal’ liberty from an executive and a legislature that had not developed norms for
governing a complex and diverse society such as India and could be capricious and
impulsive under the existing Indian situation. Kazi Syed Karimuddin (C.P. and Berar:
Muslim) strongly argued that ‘procedure established by law’ does not make the rights
inalienable. Moreover, since institutions were yet to be developed, political parties were
not fully developed and ‘discipline is unknown’, it was advisable to have judicial
protection.8 Supporting the amendment to substitute ‘procedure established by law’ by
‘without due process of law’, H. V. Pataskar (Bombay: General) drew attention of the CA
to the fact that the new democratic India will naturally have a ‘party Government’, which
was new in the Indian context ‘and we have instances which lead us to think that the
party machine at work is likely to prescribe procedures which are going to lead to the
nullification of the provision which we have made in the Fundamental Rights….’9
Obviously, the arguments of these members strongly emphasized the non-partisan status
and role of the judiciary in ensuring personal liberty.
Mahboob Ali Baig Shah Bahadur (Madras: General), for example, wanted ‘except
according to procedure established by law’ substituted with ‘save in accordance with law’,
because the concept of ‘procedure established by law’ was taken from the Article 31 of
the Japanese Constitution, which ensured life and liberty of persons within Japan’s
territory ‘according to procedure established by law’, without providing for the safeguard
available against misuse of authority by the Japanese law enforcing agencies in
subsequent Articles 32, 33, 34 and 3510. He had no objection to the change made by the

8 Kazi Syed Karimuddin said:

The clause, as it stands, can do great mischief in a country which is the storm centre of political parties
and where discipline is unknown. Sir, let us guarantee to individuals inalienable rights in such a way
that the political parties that came into power cannot extend their jurisdiction in curtailing and
invading the Fundamental Rights laid down in this Constitution.
CAD, Vol. VII, pp. 842-43.
9He pointed out that certain provinces had legislations with provision for detention, which had been
criticized vehemently by the public. CAD, Vol. VII, pp. 851.
10 The five Articles of the Constitution of Japan read as follows:
Article 31: No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed,
except according to procedure established by law.
Article 32: No person shall be denied the right of access to the courts.
Article 33: No person shall be apprehended except upon warrant issued by a competent judicial officer
which specifies the offense with which the person is charged, unless he is apprehended, the offense being
committed.
Article 34: No person shall be arrested or detained without being at once informed of the charges against
him or without the immediate privilege of counsel; nor shall he be detained without adequate cause; and
5
Drafting Committee provided the provisions of the rest of the four Articles from the
Japanese Constitution were also incorporated to ensure the legal safeguards. In fact, by
referring to the Japanese Constitution he raised the issue of police powers of the state,
which could be misused unless sufficient judicial protection had been guaranteed to
Fundamental Rights. He said:
… I submit that there must be the right of the citizen to go to a court to prove
that the ground on which he has been arrested is wrong and he is innocent. That
is the elementary right of the citizen as against the executive which might be
clothed with power by a party legislature which might pass a law saying that the
executive is empowered to take away the liberty of a person under certain
circumstances and he will have no right to go to court and prove his
innocence…. But we must understand that the words “without due process of
law” have been held in England and other countries to convey the meaning that
every citizen has got the right when an action has been taken against him
depriving him of his personal liberty, to go before the court and say that he is
innocent. That right is given under the expression “without due process of law”
or “save in accordance with law”.11
Pandit Thakur Dass Bhargava (East Punjab: General) objected to too much
emphasis placed on procedure and making it ‘sacrosanct’, in the process weakening the
substantive law. He said, ‘Though these words “without due process of law” which are
sought to be substituted for the words in the section have not been defined anywhere,
their meanings and implications should be understood fully. By using these “without due
process of law” we want that the courts may authorized to go into the question of the
substantive law as well as procedural law.’ ‘Due process’ to him took care of both
procedural and substantive law and gave the people greater right to defend themselves
against capriciousness of an emerging state. He strongly endorsed Mahboob Ali Baig
Shah Bahadur’s contention on the provisions of the Japanese Constitution.12
Expressing similar sentiments Chimanlal Chakkubhai Shah (Saurashtra) felt
‘(T)hat connotation (of “without due process of law”) is that in reviewing legislation, the
court will have the power to see not only that the procedure is followed, namely, that the
warrant is in accordance with law or that the signature and the seal are there, but it has

upon demand of any person such cause must be immediately shown in open court in his presence and the
presence of his counsel.
Article 35: The right of all persons to be secure in their homes, papers and effects against entries, searches
and seizures shall not be impaired except upon warrant issued for adequate cause and particularly
describing the place to be searched and things to be seized, or except as provided by Article 33. 2). Each
search or seizure shall be made upon separate warrant issued by a competent judicial officer.
11 CAD, Vol. VII, p. 845
12 CAD, Vol. VII, pp. 846-47.
6
also the power to see that the substantive provisions of law are fair and just and not
unreasonable or oppressive or capricious or arbitrary. That means that judiciary is given
power to review legislation.’13 Though he did not express strong apprehension about the
legislature and executive as expressed by some other members, he thought that since the
executive might need emergency powers, which would be granted by a legislature
controlled by it, it was only proper to have safeguards against misuse by empowering the
judiciary to review legislations. He too, thus, was seeking a check on police powers of
the state.
Other members who supported the ‘due process’ against ‘procedure established
by law’, such as Krishna Chandra Sharma (UP: General) and K. M. Munshi, also thought
that it would provide a necessary judicial protection to personal liberty and fundamental
rights against a strong state. They did not think that the functioning of the ‘due process’
in the US Constitution had created such anomalies that it would lead to unexpected and
unwarranted strengthening of the judiciary vis-à-vis the legislature. Krishna Chandra
Sharma, for example, pointed out that the expression ‘Per Legum Terrera’ in the Magna
Carta has come to mean ‘without due process of law’. He pointed out that Statute No.
28 during the reign of Edward III (1331) said, ‘No man of what state or condition so
ever he be, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor
indicted, nor put to death, without he be brought to answer by due process of law’.14
Thus, he felt that ‘due process’, which originated in England much before it came to the
USA, meant fair trial both in procedure and in substance and despite assertiveness of the
American judiciary in defining the constitutional provisions there, it could protect the
fundamental right better. K. M. Munshi too felt that there appeared to be unreasonable
suspicion of ‘due process’, despite the fact that it had not upset the legislative process in
America, as 90 percent of the cases on the ‘due process’ which went to the American
courts, action of the legislatures had been upheld. He strongly felt that while the
judiciary might certainly question several actions, it was unlikely to question all the
legislations indiscreetly. He felt that ‘there must be some agency in a democracy which
strikes a balance between individual liberty and social control.’15

13 CAD, Vol. VII, p. 848-49.

14 CAD, Vol. VII, p. 850.
15 CAD, Vol. VII, p. 851-853.
7
 Alladi Krishnaswami Ayyar, however, felt that though ‘due process’ in England
meant due course of legal proceedings, it had acquired a different connotation with the
US practices, particularly because the US Supreme Court has not been consistent in
interpreting the constitution and its decisions have many a times been conflicting.
Hence, he indicated his preference for ‘procedure established by law’, as suggested by the
Drafting Committee.16
In his rather detailed reply to the debate in the Constituent Assembly on Draft
Article 15 of the constitution on 13 December 1948 Dr. Ambedkar said:
The question of ‘due process’ raises in my judgment, the question of the
relationship between the legislature and the judiciary. In a federal constitution, it
is always open to the judiciary to decide whether any particular law passed by the
legislature is ultra vires or intra vires in reference to the powers of legislation which
are granted by the Constitution to the particular legislature. If the law made by a
particular legislature exceeds the authority of the power given to it by the
Constitution, such law would be ultra vires and invalid. That is the normal thing
that happens in all federal constitutions. Every law in a federal constitution,
whether made by the Parliament at the Centre or made by the legislature of a
State, is always subject to examination by the judiciary from the point of view of
the legislature making the law. The ‘due process’ clause, in my judgment, would
give the judiciary the power to question the law made by the legislature on
another ground. That ground would be whether that law is in keeping with
certain fundamental principles relating to the rights of the individual. In other
words, the judiciary would be endowed with the authority to question the law not
merely on the ground whether the law was good law, apart from the question of
the powers of the legislature making the law. The law may be perfectly good and
valid so far as the authority of the legislature is concerned. But, it may not be a
good law, that is to say, it violates certain fundamental principles; and the
judiciary would have that additional power of declaring the law invalid. The
question which arises in considering this is this. We have no doubt given the
judiciary the power to examine the law made by different legislative bodies on the
ground whether that law is in accordance with the powers given to it. The
question now raised by the introduction of the phrase ‘due process’ is whether
the judiciary should be given the additional power to question the laws made by
the State on the ground that they violate certain fundamental principles.

There are two views on this point. One view is this; that the legislature may be
trusted not to make any law which would abrogate the fundamental rights of
man, so to say, the fundamental rights which apply to every individual, and
consequently, there is no danger arising from the introduction of the phrase ‘due
process’. Another view is this: that it is not possible to trust the legislature; the
legislature is likely to err, is likely to be led away by passion, by party prejudice, by
party considerations, and the legislature may make a law which may abrogate
what may be regarded as the fundamental principles which safeguard the
individual rights of a citizen. We are therefore placed in two difficult positions.

16 CAD, Vol. VII, p. 853-855.

8
 One is to give the judiciary the authority to sit in judgment over the will of the
legislature and to question the law made by the legislature on the ground that it is
not a good law, in consonance with fundamental principles. Is that a desirable
principle? The second position is that the legislature ought to be trusted not to
make bad laws. It is very difficult to come to any definite conclusion. There are
dangers on both sides. For myself I cannot altogether omit the possibility of a
Legislature packed by party men making laws which may abrogate or violate what
we regard as certain fundamental principles affecting the life and liberty of an
individual. At the same time, I do not see how five or six gentlemen sitting in the
Federal or Supreme Court examining laws made by the Legislature and by dint of
their own individual conscience or their bias or their prejudices be trusted to
determine which law is good and which law is bad.17

Though indicating his preference for the Drafting Committee’s proposal, Dr.
Ambedkar was non-committal about suitability of either ‘due process’, or ‘procedure
established by law’ for India. As is clear from his statement, the federal dimension did
not figure in his arguments. The federal dimension did not figure either in the arguments
of any of the members who intervened, or in the arguments of Dr. Ambedkar. The
sanctity of the fundamental rights, personal liberty to be more specific, and which
institution could be more suitable to protect rights and liberty and with what provisions,
dominated their arguments. The question of domain of the judiciary on the one hand
and of the legislature and the executive on the other in this context too is important and
implicit in the discussion and the arguments presented. The suspicion of the
representative institutions (of the elected representatives in particular) in a nascent
democracy where rules of the democratic game had yet to evolve, appears to be the
supreme concern of the members who took part in the discussion. Weak party system
and diverse social conditions appeared to be heightening their apprehensions. It is
significant, however, that even after Dr. Ambedkar made his dilemma clear, all the
amendments were defeated and the draft Article 15 as proposed by the Drafting
Committee was passed by the CA.

The CA Debate on Article 22

This issue of due process, or the importance of procedural and substantive law, was
virtually reopened by the Drafting Committee when on 15 September 1949 Dr.
Ambedkar introduced the draft Article 15A, which was finally incorporated in the
Constitution of India as Article 22 after two days of intensive debate with a few
amendments on 16 September 1949. Referring to the discomfort of the CA, including

17 CAD, Book No. 2, Volume No. 7, 13 December 1948, pp. 1000-01.

9
his own, and criticism in public of the (draft) Article 15 for giving Parliament a carte
blanche to ‘make and provide for the arrest of any person under any circumstances as
Parliament may think fit’, he introduced Article 15A to provide ‘for the substance of the
law of “due process”.’18
In this Article he put two provisions lifted from the Cr. PC, through which he
sought to incorporate two of the most fundamental principles which every civilized
country follows as principles of international justice.19 The first two clauses of Article
15A, which added a caveat to detention of a person on any charge by providing him the
right to be informed, consult a lawyer and of being produced before the nearest
magistrate within a period of twenty-four hours, were thus made sacrosanct, and taken
away from the authority of both Parliament and State legislatures. Clause 3(b) excluded
enemy aliens, or a person arrested under preventive detention from the protection
provided in clauses 1 and 2. Clause 3 empowered Parliament to legislate on
circumstances and period of preventive detention. On the whole, it was a balancing act
in restricting police powers of the state (both executive and legislature), i.e. bringing in
substantive due process, and yet maintaining parliamentary supremacy in matters of
preventive detention.
The debate on this article too was involved with members not only sticking to
the sanctity of ‘due process’ in order to reign in impending ‘parliamentary tyranny’,
which, they thought, in a parliamentary democracy would result in enhanced and skewed
executive powers too. Pandit Thakur Prasad Bhargava thought that while India needed

18 Introducing the draft article 15A Dr. Ambedkar said:

I know that a large part of the House including myself were greatly dissatisfied with the wording of
article 15. It will also be recalled that there is no part of our Draft Constitution which has been so
violently criticised by the public outside as article 15 because all that article 15 does is this, it only
prevents the executive from making and arrest. All that is necessary is to have law and the law need
not be subject to any conditions or limitations. In other words, it was felt that while this matter was
being included in the Chapter dealing with Fundamental Rights, we were giving a carte blanche to
Parliament to make and provide for the arrest of any person under any circumstances as Parliament
may think fit. We are therefore now, by introducing article 15A, making, if I may say so,
compensation for what was done then in passing article 15. In other words, we are providing for the
substance of the law of ‘due process’ by the introduction of article 15A.
I think, on the whole, those who are fighting for the protection of individual freedom ought to
congratualte themselves that it has been found possible to introduce this clause which, although it may
not satisfy those who hold absolute views in this matter, certainly saves a great deal which had been
lost by the non-introduction of the words ‘due process of law’.
CAD, Book No. 4, Vol. IX, p. 1499-50.
19 These two provisions related to power of arrest vested with the police and safeguards provided to
citizens against the misuse of this power form part of chapter V (Articles 41-60) of the Cr. PC amended in
1973.
10
‘cent per cent’ due process, a substantive part had been lost in the proposed drafts.
Making a marathon speech, he suggested several amendments aimed at giving the
accused the right to proper access to legal aid and judicial remedies for defending himself
in order to blunt the effect of the provision for preventive detention.20 Similar
sentiments were expressed by many members, who welcomed the attempt in article 15A
to plug the discrepancy resulting from the preference for ‘procedure established by law’,
but were suspicious of the provision for preventive detention, which they thought gave
extraordinary powers to the legislature and the executive. H.V. Pataskar (Bombay,
General), who proposed that an arrestee should be told of the ground of arrest within
twenty four hours and not ‘as soon as possible’ as given in the draft article, pointed out
that the persons in Advisory Board would be appointed by the executive, which could
turn tyrannical without proper judicial safeguards to the detainees. R.K. Sidhva (C.P &
Berar, General) proposed to restrict the total period of detention to nine months with
similar arguments.21 Traversing the entire field of debate all over again that was covered
while discussing the draft Article 15, Dr. Bakhshi Tek Chand (East Punjab; General)
thought that Article 15A, with the proposed clause on preventive detention that had a
weak protection for the accused and victims, created more problems not only regarding
personal liberty, but also related to ‘tyranny of the executive and legislatures’. ‘I submit
this procedure is open to serious objection and it is necessary that Constitutional
guarantee be provided, so that legislatures of this country – provincial or central – are
precluded from enacting legislation of this kind….It does not give any fundamental right
to the people. In fact, it is a charter for denial of liberties ….’ 22 He proposed an

20 Arguing forcefully, he concluded, ‘We have agreed that due process of law shall not be there. But I do
not agree that even small rights should not be put in. I submit for your consideration what these rights are.
One of these rights is that every person accused of any offence shall have the right of cross-examining the
witnesses produced against him and producing his defence. This is a very elementary right. If you do not
allow this, why speak of a trial?…. Where is the guarantee that in the future the legislature will not assume,
that the executive will not force the legislature to assume the power that any accused may be condemned
even in his absence? I know of the legislatures where attempts were made to see that in the absence of the
accused, the whole trial is gone through. Do we not know the Rowlatt Act which said, no vakil, no daleel,
no appeal?’
CAD, Book No. 4, Vol. IX, p. 1502-07.
21 CAD, Book No. 4, Vol. IX, p. 1521-29.
22 He very strongly argued:
‘We should see that our legislature do not go farther than what the British Indian Government did
under the Rowlatt Act or Defence of India Act in 1942 or what was done in the Defence of Realm
Act in England….’
‘…The whole object of constituting a tribunal of three persons, who are High Court Judges or who
have been High Court Judges or who are qualified to be High Court Judges, will be rendered nugatory
11
amendment which sought to make it constitutional to seek explanation from the arrested
accused to be placed before the Advisory Board provided for in the draft article. Jaspat
Roy Kapoor (United Provinces; General) echoed similar sentiments that the entire issue
of the period of detention was being left to the good sense of Parliament ‘… whereas, as
a matter of fact, you (referring to Dr. Ambedkar) are suggesting the extent to which the
legislature can freely go to impose limitations on personal liberty? So far as detenus are
concerned, they are given no protection in this chapter and I submit this is very hard and
strikes at the very root of fundamental rights and personal liberty.’23 Briefly speaking, the
members virtually went along with the Drafting Committee, commending it and
suggesting minor suggestions on the first couple of clauses which provided constitutional
guarantee to the two section of the Cr. PC, but had objections, some of them very
serious, to the clauses relating to preventive detention, which they thought gave undue
powers to the legislature and the executive, compromising on the spirit of ‘due process’.
Various suggested amendments were aimed at blunting the edge of detention in one way
or the other.
However, a strong defence of the proposed article came from Alladi
Krishnaswami Ayyar (Madras; General), who felt that:
I might mention that the main reason why ‘due process has been omitted was
that if that expression remained there, it will prevent the State from having any
detention laws, any deportation laws and even any laws relating to labour
regulation. Labour is essentially a problem relating to persons and I might
mention in the United States Supreme Court, in the days when the Conservative
regime dominated the USA politics, enactments restricting the hours of labour
constituted a violation of the ‘due process of law’. An American would be
employed for five hours, ten hours or twenty hours and make a slave of himself
and yet it was held to be interfering with due process of law if there was a

if the explanation of the person affected is not taken and placed before it. And no explanation can be
given by that person unless he is informed of the nature of the charges against him whether it was
merely on suspicion or upon some solid ground that he had been arrested….’
‘… I consider article 15-A as the most reactionary article that has been placed by the Drafting
Committee before the House …. I consider that this article, in the form in which it has now been
framed instead of being a fundamental right of the citizen, is a charter to the Provincial legislature to
go on enacting legislation under which persons can be arrested without trial and detained for such
period as they think fit subject to a maximum period fixed by Parliament.’
CAD, Book No. 4, Vol. IX, pp. 1530-31.
23He suggested that ‘…the cases of such persons shall be reviewed periodically after every three months,
or it may be even after six months: otherwise, once a person is detained, and once the Advisory Board
agrees to his detention for a period longer than three months, the fate of that person is virtually sealed and
he is doomed. He is absolutely at the mercy of the Executive.’
CAD, Book No. 4, Vol. IX, p. 1543-45.
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 restrictions of hours of labour until the United States Supreme Court put a
different construction in a later decision.
…. Then the next question is if you guarantee personal liberty in the Constitution
either by the use of the words ‘due process’ or ‘procedure’ or any such thing the
State will be hampered even with regard to detention and in regard to
deportation. It is agreed on all hands that the security of the State is as important
as the liberty of the individual. Having guaranteed that a person should not be
detained or arrested for more than 24 hours, the problem necessarily had to be
faced as to detention, because detention has become a necessary evil under the
existing conditions of India. Even the most enthusiastic advocate of liberty says
there are people in this land at the present day who are determined to undermine
the Constitution and the State, and if we are to flourish and if liberty of person
and property is to be secured, unless that particular evil is removed or the State is
invested with sufficient power to guard against that evil there will be no
guarantee even for that individual liberty of which we are all desirous.24
In replying to the suggestions made for amendments, Dr. Ambedkar said:
…I myself and a large majority of the Drafting Committee as well as members of
the public felt that in view of the language of article 15, viz., that arrest may be
made in accordance with a procedure laid down by the law, we had not given
sufficient attention to the safety and security of individual freedom. Ever since
that article was adopted I and my friends had been trying in some way to restore
the content of due process in its fundamentals without using the words ‘due
process’. I should have thought Members who are interested in the liberty of the
individual would be more than satisfied for being able to have the prospect
before them of the provisions contained in article 15-A and that they would have
accepted this with good grace. But I am sorry that is not the spirit which actuates
those who have taken part in this debate and put themselves in the position of
not merely critics but adversaries of this article.25
Dr. Ambedkar accepted some suggestions which were aimed providing extra
protection to the detenues under preventive detention, but he strongly turned down the
suspicion of the legislature and the executive. He also pointed out that even if preventive
detention was dropped from article 15-A, the entries dealing with it would remain in List
I and List III of the Seventh Schedule, empowering both Parliament and provincial
legislatures to make preventive detention law. He emphatically pointed out that this
article provided protection against all such laws made by the centre or the provinces.26
A detailed reading of the debates on articles 15 and 15-A brings out one point
very clearly that while the Drafting Committee led by Dr. Ambedkar had, as he stated at
the closing of discussion on article 15, had no particular preference between ‘procedure

24 CAD, Book No. 4, Vol. IX, pp. 1537-38.

25 CAD, Book No. 4, Vol. IX, p. 1558.
26 CAD, Book No. 4, Vol. IX, p. 1561.
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established by law’ and ‘due process’, they were leaning towards parliamentary supremacy
in law making, with sufficient constitutional and judicial safeguards for ‘personal liberty’,
as against judicial supremacy in determining whether every law was in accordance with
‘due process’ or not.

In Lieu of A Conclusion

Indeed the CA debates throw only limited light on the preference for either of the
concepts within the house. While some members remained strongly in favour of the
‘due process’, Dr. Ambedkar while leaning on ‘procedure established by law’ attempted
to occupy a neutral ground, but the house passed the draft Article 15 without any
amendment and the draft Article 15-A with a few procedural amendments after
prolonged intense debates. Dr. Ambedkar showed concern for personal liberty as well
for the spirit of ‘due process’ in order to keep a check on Parliament and legislatures in
specific cases. However, his faith appeared to be more on elected bodies and he seemed
prepared to give the judiciary the role of a guardian only in specific cases.
The question, however, arises as to how much of substance of due process
Articles 22 (1) and (2) give, as claimed by Dr. Ambedkar. It would be in order here to
present the perspective presented by Seervai, who has pointed out that the
interpretations of ‘due process’, aside from the judiciary vs. the legislature, have been
closely linked to police powers of the States. He points out, ‘… “due process of the law”
in England conveyed the idea of arrest or imprisonment according to the law of the land, as
opposed to the arbitrary order of the King and his Council, and the procedural
safeguards considered necessary in the USA were not a necessary part of the concept in
England.’ This, according to Seervai, has been buttressed by judgements in the A.K.
Gopalan case. Justice Das, for example, said, ‘… It will be incongruous to import the
doctrine of due process without its palliative, the doctrine of police powers. It is
impossible to read the last mentioned doctrine into Article 21.’ The Supreme Court in
the Gopalan case considered a large number of questions, including preventive detention
[Art. 22(4) to (7)]27 and ‘personal liberty’ in Article 21. However, different views
expressed by the judges in this case do not lead to a pattern establishing authoritative
correlation of Article 19 to Articles 20, 21 and 22, or to the meaning of the expression

27 The impact of Article 22(1) and (2) in limiting the police powers of the state in accordance with the
doctrine of due process appears not to have been fully realised, because their application is excluded by
clause {3(b)} of this article, which ties preventive detention mentioned therein with the expression
‘personal liberty’ mentioned in Article 21.
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‘personal liberty’. It is nevertheless worthwhile quoting from the judgement of Justice
Mukherjea in this case:
Article 19… gives a list of individual liberties and prescribes in various clauses
the restraint that may be placed upon them by law, so that they may not conflict
with public welfare and general morality. On the other hand, Articles 20, 21 and
22 are primarily concerned with penal enactments or other laws under which
personal safety or liberty of persons would be taken away in the interests of the
Society and they set down the limits within which State control should be
exercised. Article 19 uses the expression ‘freedom’ and mentions several forms
and aspects of it which are secured in individuals, together with the limitations
that could be placed upon them in the general interest of the society. Articles 20,
21 and 22 … do not make use of the expression freedom and mention the
several forms and aspects of it which are secured to individuals, together with the
limitations that could be placed on State control where an individual is sought to
be deprived of his life or personal liberty. The right to the safety of one’s life and
limbs and to enjoyment of personal liberty, in the sense of freedom from physical
restraint and coercion of any sort, are inherent birth rights of any man. The
essence of these rights consists in restraining other from interfering with them
and hence they cannot be described in terms of ‘freedom’ to do particular
things…. 28
This part of Justice Mukherjea’s judgement gives the impression that a degree of
balance has been struck between ‘due process’ and ‘procedure established by law’ in the
context of ‘police powers of the state’ and ‘personal liberty’. The question, however,
deserves a deeper and more intense analysis by experts on Constitutional Law.

Dr. Ajay K. Mehra

Director
Centre for Public Affairs
"SWASTI"; D-104, Sector 27
NOIDA 201 301
Uttar Pradesh, India
Tel: 91-120-244 1852; Mobile: 98117 22433
Email: c-p-a@eth.net; drmehra@vsnl.com

28 H. M. Seervai, op. cit., pp. 980-83.

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