It requires judicial scrutiny not only of the legislative process but also of the content of the law itself. This doctrine empowers the judiciary to invalidate laws that are arbitrary or violate fundamental rights. However, it also carries the potential for judicial overreach, as courts could override legislative intent based on subjective interpretations of fairness.

This phrase was adopted from Article 31 of the post-World War II Japanese Constitution and is reflected in Article 21 of the Indian Constitution, which states: "No person shall be de prived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.'' The phrase essentially limits judicial review to assessing whether a law has been enacted following the prescribed legislative process. It emphasizes parliamentary sovereignty and restrains the judiciary from examining the substantive fairness of the law, focusing only on procedural compliance.

On April 23, 1947, the Advisory Committee on Fundamental Rights presented draft Article 15 (which later became Article 21 of the Indian Constitution) to the Constituent Assembly. The draft included the clause:

"No person shall be de prived of his life, liberty or property without due process of law."

During the subsequent debates, members of the Constituent Assembly deliberated on the terminology. By the time the final draft of the Constitution was submitted in February 1948, the word "personal" was added before "liberty," and the phrase "due process of law" was replaced with "procedure established by law." The adoption of "procedure established by law" in Article 21 of the Indian Constitution was a carefully considered choice during the Constituent Assembly debates. Some prominent members on both sides said:-

Those advocating for "Procedure Established by Law"

Dr. B.R. Ambedkar

Dr. Ambedkar, Chairman of the Drafting Committee, supported the inclusion of "procedure established by law," emphasizing the dangers of judicial overreach. He said, "It is not the role of thejudiciary to assume the powers of a super-legislature. judicial interpretation of vague principles, such as 'due process,' has the potential to disrupt legislative intent and undermine parliamentary sovereignty." Dr. Ambedkar further pointed out that the legislature, as a democratically elected body, was best suited to reflect the people's will.

K.M. Munshi

Munshi expressed skepticism about the ambiguity of "due process" and its potential for judicial interference. He said, "Thephrase 'due process' carries with it a vagueness and uncertainty that ouryoung democracy cannot afford. It opens the door to judicial activism where courts may set aside laws based on subjective notions offairness." He argued for a more precise standard, aligning with the principle of parliamentary supremacy.

Alladi Krishnaswami Ayyar

Ayyar defended "procedure established by law" by highlighting its origin in the Japanese Constitution. He said, "Ourobjective should be to provide a clear and definite framework for governance. The American experience with 'dueprocess' hasshown us the dangers ofgranting courts the unchecked power to invalidate lawson nebulousgrounds." He stressed the importance of a legislature-driven approach to uphold democratic principles.

T . T . Krishnamachari

Krishnamachari warned against the uncertainties of judicial interpretation under "due process". He said, "In the United States, judges have assumed the role of legislators by using the doctrine of due process to declare laws unconstitutional. This is a path fraught with peril for a nascent democracy like ours." He believed "procedure established by law" was better suited to India's socio-political realities.

Those advocating for " Due Process of Law "

H.V. Kamath