Part 3 | Where Procedure is Due | Landmark Judgements that Transformed India

Every good post must have compelling questions which set its user thinking. Right? Here are a few before we deep dive into our third installment of “Landmark judgements that transformed India”.


What’s the scope of right to life? Could parliament curtail personal liberties by any procedure, even one that violates all principles of natural justice? Do all fundamentals rights form an integrated scheme and need to be read together and in tandem or are all the fundamental rights distinct and should be considered in isolation ?

These were the broad questions which supreme court sought to answer in Maneka Gandhi vs Union of India case.

This is going to be a long read, yet again. Hope you enjoy these looonger narratives as they help bring out the flavour in full.

Immediate issue was impounding of Maneka Gandhi’s passport without giving her any hearing and disclosing any reasons which she challenged in supreme court under art 32 (right to remedy) on the grounds that right to travel abroad came under broad sweep of personal liberty granted under art 21 and order also violated art 14 (equality).

Before going into the supreme court observations and counter arguments, let’s have a look at the relevant constitutional provisions and supreme court interpretation of the same.

Art 21 – No person shall be deprived of life or personal liberty except in accordance with the procedure established by law .

Art 14 – Right to equality i.e. equality before law and equal protection of law

Art 19 – 6 freedoms (7th one right to property was deleted by 44th CAA)

Art 14 and 19 subject to reasonable restrictions (reasonableness being subject to judicial review)

Art 22 – Safeguards against preventive detention

For the 1st time Supreme Court was asked to interpret FR in 1950 in AK Gopalan vs state of Madras.

He was arrested under preventive detention act. (A person can be put in jail / custody for two reasons. One is that he has committed a crime. Another is that he is potential to commit a crime in future.)

Petitioner claim –

All FRs were to be read collectively, in tandem and it violated art 14(equality ) and art 21 (liberty).

Court disagreed  and applied procedure established by law textually.

  1. All FRs deal with distinct matters. Law is meant to satisfy article 22, petitioner not entitled to challenge it under other FRs ie equality and liberty.
  2. Court did not find any similarity b/w american due process of law and Indian procedure established by law in effect saying courts had no power of substantial review of laws and had only to check if correct procedure had been followed.

Due process on the other hand would check reasonableness, fairness of law whether laws follow principles of natural justice or not .

Put simply the difference between the doctrines of substantive and procedural due process is a function of the interplay between the questions of “why” and “how” an authority decides the way it does.

Inquiries that seek answers as to “why” an authority decided the way it did, and examine the justice or injustice of the decision, are substantive.

Inquiries that examine “how” an authority procedurally arrived at a decision constitute an exercise of procedural due process.

For instance – if police arrests homo sexual couples, it’s valid as per procedure established by law as police followed correct procedure prescribed by a law enacted by a competent legislature but it may not be valid as per due process of law as it seems arbitrary, unjust to minorities (sexual minority) and this violates principle of natural justice . You get the difference bw the two, right !

Right to travel abroad question was settled in Satwant singh case, where court held that liberty under art 21 has wide import and exclude only those liberties expressly granted under art 19.

Right to travel within india – art 19

Right to travel abroad – art 21

But as art 21 was subject to procedure established by law, parliament could by enact of a valid law curtail right to travel abroad .

Meanwhile during emergency civil liberties came under heavy assault and Judiciary also buckled under pressure.

In  ADM Jabalpur case also known as the habeas corpus case, supreme court held that people did not even have the right to file habeas corpus writ petition challenging illegal detention. Supreme court had applied doctrine of procedure established by law in letter but not in spirit.

After emergency in Maneka Gandhi case, supreme court sensed an opportunity for redemption and grabbed it with both hands.

Supreme court not only emphatically asserted right to travel abroad as fundamental right under art 21 but reversed its judgement in AK Gopalan case and held that rights form an integrated scheme .

Articles dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial justice… Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial.”

  1. Art 21 has to be read alongside art 14 and 19 which demand reasonableness and non arbitrariness .

In one stroke of pen, court changed procedure established by law to de facto due process of law.

In essence present position of article 21 is fair, just and reasonable procedure established by a valid law.

Courts held that personal liberty in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been made distinct fundamental rights in Article 21.


1. It marked the beginning of an era of judicial activism. It gave Judiciary the power to expand the canvass of rights and create new rights to give right to life its true meaning not just satisfied with right to life remaining an empty promise. Some of these rights include-

Right to live with dignity, right to education, right to legal aid , environmental laws such as right to clean air, right to noise free surroundings etc.

2. Judiciary got the power to review virtually every law. Using its power of substantial review of law by this judgement and basic structure doctrine courts have now started striking down even non constitutional amendment acts.

For instance in July 2014 it struck down national tax tribunal for taking away the powers of high courts of judicial review and not maintaining separation of judiciary and executive.

Similarly narcoanalysis against the wishes of the person was declared illegal by holding right to mental privacy as fundamental right.

In fact on 1997 itself supreme court in Chandra Kumar case had declared those provisions of art 323A and B (dealing with tribunals) unconstitutional which provided for direct appeal to supreme court holding judicial review by high courts as part of basic structure.

Note – tribunal were added by 42nd CAA by adding a new part 14A.


In this age of civil society activism, this judgement has given Judiciary a lot of leverage to expand scope of rights for the common citizen of this country.

But question remain should Judiciary become a super parliament, a paramount policy making body? As we would see in a later article judiciary virtually created a law in VISAKHA JUDGEMENT. Should not this task remain with parliament?

Should not power of substantial review of laws remain with the Parliament as was envisaged in the constitution?

Note that founding fathers deliberately dropped due process from the draft and replaced it with procedure established by law.

Another problem arise as different judges would surely apply different principles of morality. We examine this issue with respect to rights of sexual minority, right to privacy and euthanasia debate.

The Naz foundation case

Challenged section 377 of IPC

Delhi high court decriminalised homosexuality holding that said section –

1. Violates right to dignity and privacy

2. Creates an unreasonable classification and targets homosexuals as a class.

3. Public animus and disgust towards a particular social group or vulnerable minority, it held, is not a valid ground for classification under Article 14.

4. Article 15 of the Constitution forbids discrimination based on certain characteristics, including sex. The Court held that the word “sex” includes not only biological sex but also sexual orientation, and therefore discrimination on the ground of sexual orientation is not permissible under Article 15.

5. The right to life under Article 21 includes the right to health, and concluded that Section 377 is an impediment to public health because it hinders hiv prevention effort .

But as you would know anti climax came when supreme court quashed the judgement holding it constitutionally unsustainable as only parliament can change laws not courts.

Right to privacy

Right to privacy was an inferred right. As we saw above even in Narcoanalysis case supreme court held right to mental privacy as fundamental right .

But 8 judge bench of supreme court in  M P Sharma And Others vs Satish Chandra, District Magistrate Delhi (1954),  and 6  judge bench in Kharag Singh vs State of Uttar Pradesh (1962), held that the right to privacy was not a fundamental right.

It has not been overruled by any subsequent judgment by a larger Bench.

But note that right to life was given an expanded meaning only after Maneka Gandhi case 1978.

And then there is a small matter of India being a signatory to international covenant on civil and political rights and UN declaration on human rights both of which consider right to privacy as human right.

Are we good? Hope you enjoyed reading till now! A few paras more!

Euthanasia debate/ Aruna Shannbaug case

Does right to life includes within right not to live or right to die as right to speech includes right not to speak or right to remain silent?

Maruti Shripati Dubal vs State Of Maharashtra,

Bombay high court held

  1. Nothing unnatural about the desire to die
  2. Every man is the master of his own body and has the right to deal with it as he pleases
  3. Right to live includes right not to live or right to end one’s life
  4. Section 309 IPC prescribing punishment for attempt to commit suicide unconstitutional

P.Rathinam vs Union of India

Supreme court observations

  1. Attempt to commit suicide indicated a psychological problem rather than criminal conduct
  2. Section 309 violated art 21

But this judgement would not last long as in…

Gian Kaur v/s state of Punjab

It was argued by petitioners  that abetting suicide was merely facilitating enjoyment of fundamental right of not to live# abetment can not be penalised

Court reversed the judgement in Rathinam case

What was the logic?

  1. Right to life is a natural right but suicide is unnatural termination of life # incompatible with the concept of right to life.
  2. While other negative rights such as right not to speak suspend positive right for a temporary period, person can exercise his right to speak as he wishes; right to die would permanently end the right# incompatible with right to life

But the court held that right to life includes right to die with dignity. Court highlighted the difference bw desirability of law and constitutionality of law

Aruna shanbaug case

Court rejected mercy death petition but legalised passive euthanasia with elaborate safeguards

Judgement would obviously be challenged as it impinged not only on legal but important moral and ethical principles .

PIL filed by NGO Common Cause

3-judge bench of the Supreme Court of India said that the prior opinion in the Aruna Shanbaug case was based on a wrong interpretation of the Constitution Bench’s opinion in Gian Kaur v. State of Punjab. The court also determined that the opinion was internally inconsistent because although it held that euthanasia can be allowed only by an act of the legislature, it then proceeded to judicially establish euthanasia guidelines. The court referred the issue to a larger Constitution Bench for resolution.

You can clearly see how different judges apply their own individual morality to decide what is constitutional or not.

We can add Sallekhana judgement  (natural vs unnatural death, importance of motive in suicide ) of rajasthan high court and subsequent staying by supreme court in the same pattern .

Question remains should not parliament which has a finger or the pulse of masses take such imp calls instead of courts with different judges coming from different backgrounds applying their own moral and ethical principles in the cloak of expanding the scope of human rights .

Now it’s time for some thought questions –

#1. What should be the limits of due process review ? If taken too far supreme court can virtually become a law asking body and if not applied it can create situations such as emergency. Where  should be the right balance lie?

#2. As the doctrine has been widely accepted, isn’t it time parliament amended the constitution,provided for explicit due process clause and also specified its limits ?


If you enjoyed reading this, you might want to check earlier blogs here –

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By Dr V

Doctor by Training | AIIMSONIAN | Factually correct, Politically not so much | Opinionated? Yes!

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