The Quiet Revolution
Story of India’s Adoption of Due Process Without Ever Writing the Words.
Author: Prerana Kamle
Student, Presidency University, Bangalore (Karnataka)
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The Beginning
The story of Article 21 is the story of Indian constitutional law itself. A single sentence that began as a modest shield and became the most powerful engine of human dignity in the world.
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Eleven words. That is all Article 21 contains. Yet from this spare text, the Supreme Court of India has woven an extraordinary tapestry of rights such as privacy, dignity, health, education, clean air, livelihood, sleep, even the right to die with dignity. No other constitutional provision anywhere has grown this far, this fast.
What renders this transformation more remarkable is that Article 21 was never expected to shoulder such weight. Multiple scholars, including H.M. Seervai, and even early judges, have recognised that it was conceived merely as a procedural safeguard, an assurance that no person would lose life or liberty without the authority of a duly enacted law. Eventually, India evolved and so did the meaning of those eleven words. The Court recognised that ‘life’ could not be reduced to animal existence and that ‘liberty’ could not be confined to physical freedom alone. What was once a narrow procedural clause became the living conscience of the Constitution.
Why did the framers disregard the doctrine of ‘due process’?
In 1948, the Constituent Assembly deliberately rejected the American phrase “due process of law”. Justice Felix Frankfurter had warned Constitutional Adviser B.N. Rau that due process gave judges “immense power” and could derail zamindari abolition and socialist planning. Members feared a repeat of America’s Lochner era, when courts struck down labour laws in the name of freedom of contract.
So, India chose the narrower, positivist formula: “procedure established by law”, which was borrowed from the Japanese Constitution and was acceptable to British-trained lawyers. Dr B.R. Ambedkar accepted the change almost without protest. Only two members dissented strongly. Believing they had tied judicial hands, however, they were wrong.
Maneka Gandhi v. Union of India (1978): The Constitutional Breakthrough
When the then PM Indira Gandhi’s government impounded Maneka Gandhi’s passport without a hearing, a Bench of seven judges assembled and rewrote history. Justice P.N. Bhagwati declared that any procedure under Article 21 must be ‘right, just and fair’ and not ‘arbitrary, fanciful or oppressive’. This marked a decisive break from the rigid position in A.K. Gopalan v. State of Madras (1950) that had confined Article 21 to a purely procedural guarantee. And Articles 14, 19, and 21 were fused into a golden triangle. Due process entered through the back door and it never left.
What began as protection against arbitrary arrest has become a charter of positive rights such as:
- Right to Dignity as the core of “life” (Francis Coralie Mullin, 1981; Common Cause, 2018 – living wills & passive euthanasia)
- Right to Livelihood (Olga Tellis, 1985)
- Right to Privacy as a primordial right (Puttaswamy, 2017 – 9-judge bench)
- Right to Health & emergency medical care (Paschim Banga Khet Mazdoor Samity, 1996; Pt Parmanand Katara, 1989)
- Right to Education up to age 14 (Unni Krishnan, 1993 → later Article 21A)
- Right to Clean Environment & Sustainable Development (Subhash Kumar, 1991; Vellore Citizens, 1996; M.C. Mehta series)
- Right to Shelter (Chameli Singh, 1996)
- Right to Sleep (Ramlila Maidan Incident, 2012)
- Right to Food & freedom from hunger (PUCL Right to Food case, 2001 – continuing mandamus)
- Right to Speedy trial (Hussainara Khatoon, 1979)
- Freedom from custodial torture & handcuffing (D.K. Basu, 1997; Prem Shankar Shukla, 1980)
- Right to free Legal Aid (M.H. Hoskot, 1978)
- Right to Travel abroad (Maneka Gandhi, 1978)
- LGBTQ+ dignity (Navtej Singh Johar, 2018)
- Right to Reputation (Subramanian Swamy, 2016)
- Protection against public hanging (Lachma Devi, 1986)
- Commutation for death-row delay (Shatrughan Chauhan, 2014)
The list keeps growing such as Right to Internet Access (Anuradha Bhasin, 2020), Right to Data Protection (Puttaswamy-II, 2019), and climate justice petitions. As Justice D.Y. Chandrachud said in Puttaswamy (2017), “Article 21 is the heartbeat of the Constitution.”
India vs. USA: Who really practises bolder due process?
America wrote due process into its text and then largely retreated after the Lochner backlash. Today, substantive due process survives mainly for personal-autonomy rights (marriage, contraception, intimacy) but almost never for socio-economic claims. The U.S. Constitution remains a charter of negative liberties.
India took the opposite path. Starting from a narrower text, the Supreme Court has built the world’s most expansive, welfare-oriented due process:
- American courts ask if a right is “deeply rooted in this Nation’s history and tradition” (Glucksberg, 1997).
- Indian courts ask only whether the State’s action is proportionate and the least restrictive alternative (Modern Indian tools (manifest arbitrariness and proportionality) have proved more intrusive than American tiers of scrutiny.
While the U.S. Supreme Court stepped back from economic due process to save the New Deal, the Indian Court stepped in where Parliament and governments failed, mandating mid-day meals, pollution norms, emergency healthcare, and humane prison conditions.
Conclusion
India did not borrow due process. India perfected it.
The Constituent Assembly feared judicial overreach. The Supreme Court proved that fear was misplaced by exercising judicial statesmanship of the highest order. Article 21 today is living proof of Justice H.R. Khanna’s dissent in ADM Jabalpur (1976) which stated that the Constitution is ‘the living embodiment of the nation’s soul’.
Seventy-five years after deliberately rejecting due process, India practises a version richer, more egalitarian, and more responsive to human suffering than anything the United States ever achieved.
That is not judicial activism.
That is the Indian Constitution keeping its tryst with destiny.
** Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect the views of The Lawscape.
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