Ak Gopalan.pptx

Procedure Established by Law vs Due Process of Law Procedure Established by Law

Due Process of Law

A law is valid if it has been duly enacted by the legislature and has followed the correct procedure. Hence, a person can be deprived of his personal life and liberty according to the procedure established by law.

This doctrine not only checks if the law takes away personal life and liberty of a person but also concerns that whether the law is just fair and non arbitrary.

Flaw in the Doctrine: If Parliament passes a law, then the life or personal liberty can be taken off according to the provisions and procedure established by that particular law. Hence it does not seeks law to be Just, fair and non arbitrary.

This doctrine was enshrined in the Indian Constitution by the Hon’ble Supreme Court of India by the Judgment of Maneka Gandhi vs Union of India (1978 AIR 597).

AK Gopalan vs State of Madras 1950 AIR 27 It was a significant decision because it represented the first case where the court meaningfully examined and interpreted key fundamental rights enlisted in the constitution including Articles 14, 19 and 21. A writ of habeas corpus was filed. The contention was whether under this writ and the provisions of THE PREVENTIVE DETENTION ACT, 1950, there was a violation of his fundamental rights which were Article 14, 19, 21 and 22.

• Judge restricted the scope of fundamental rights and by reading them in isolation of article 21 and 22 which provided guidelines for preventive detention. Justice Kania said that the term due process prevented the courts from engaging in substantive due process analysis in determining the reasonableness of the level of process provided by the legislature. • Fazal Ali dissented the Judgment by saying that Article 21 includes the higher principle of natural law and justice and not mere statutory provisions.

So in CONCLUSION Gopalan case held two major points: • 19, 21 and 22 are mutually exclusive. Art 19 was to not apply to a law affecting personal liberty to which art 21 applies. • A “LAW” affecting life and liberty could not be declared unconstitutional merely because it lacked natural justice or due procedure.

Kharak Singh v State of Uttar Pradesh 1963 AIR 1295 • The petition under Article 32 of the Constitution of India challenged the constitutional validity of Chapter 20 of the Uttar Pradesh Police Regulations and the powers conferred upon police officials by its provisions on the ground that they violate the rights guaranteed to citizens by Articles 19(1)(d) and 21 of the Constitution of India. On the basis of the accusations made against him, he had police constables entering his house and shout at his door, waking him up in the process. On a number of occasions they had compelled him to accompany them to the station an had also put restrictions on him leaving the town.

• The judges made a breakthrough while interpreting and finding the connection between article 19 and 21 by remarking that:

• If a person’s fundamental right under Article 21 is infringed, The State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Article 19(2) of the Constitution. But in this petition no such defense is available, as admittedly there is no such law. • So the petitioner Kharak Singh could legitimately plead that his fundamental rights, both under Articles 19(1)(d) and 21, were infringed by the State. Hence, on these grounds the petitioner Kharak Singh was entitled to issue of a writ of mandamus directing the respondent- State of Uttar Pradesh- not to continue visit to his house.

Rustom Cavasjee Cooper vs Union Of India 1970 AIR 564 • On 19.07.1969, then Vice President to India VV Giri promulgated the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance 8 of 1969 in exercise of power conferred by Art 123(1) of the Constitution of India. This ordinance had the effect of nationalization 14 private sector banks having a deposit base of over INR 50 Crore and thereby vesting the ownership of the private banks with the government. • 21.07.1969, petitions challenging the competence of the President to promulgate the Ordinance were filed in the Supreme Court. • Before the Court could have initiated this case, the Parliament enacted on 09.08.1969 as the Banking Companies (Acquisition and Transfer of Undertakings) Act (22 of 1969).

Contentions Raised • That the ordinance made under Art 123(1) of the Constitution was invalid, because the condition precedent to the exercise of the Ordinance making does not exist. • The Parliament was not having any legislative power to enact the ordinance and consequently made the act and that the parliament encroached upon the State List in the Seventh List of the Constitution. • The said Act and Ordinance was against Article 14, 19(1)(f), 19(1)(g), and Article 31(2) and thus the Act was held invalid. • Against Article 301.

Judgment • By a Majority of 10:1, the Supreme Court of India struck down the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1969 mainly on the ground that the proposed compensation to be provided to the 14 banks failed the test of Art 31(2). • Thereafter, the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 was enacted by the Parliament but with inclusion of a specific amount of compensation to be paid to each of the 14 banks.