(a) "While interpreting Article 21 of the Constitution, the Supreme Court introduced the concept of 'due process of law' indirectly into the Constitution of India, and thereby expanded its scope considerably." Support your answer with the help of lea

Question

(a) "While interpreting Article 21 of the Constitution, the Supreme Court introduced the concept of 'due process of law' indirectly into the Constitution of India, and thereby expanded its scope considerably." Support your answer with the help of leading case laws. (20 marks)

(b) " 'Constitutionalism' connotes in essence—'limited government' or 'a limitation on government'. It is the antithesis of arbitrary powers." Discuss. (15 marks)

(c) "The Legislature itself must set the essential policy, or lay down standards or policy in the Delegating Act and the delegate would then legislate to advance the legislative policy." Elaborate the statement with the help of relevant case laws. (15 marks)

UPSC Answer Check · Accepted Answer

(a) Article 21 and the Entry of 'Due Process'

The Supreme Court of India has transformed Article 21 from a mere procedural guarantee into a substantive reservoir of rights, effectively importing the concept of 'due process of law' while formally maintaining that the phrase was deliberately omitted from the Constitution.

Initially, in A.K. Gopalan v. State of Madras (AIR 1950 SC 27), the Court adopted the Japanese concept of 'procedure established by law,' holding that Article 21 was satisfied if a valid law existed, regardless of its fairness. This compartmentalised view was challenged in Kharak Singh v. State of U.P. (AIR 1963 SC 1295), where the majority struck down domiciliary visits but upheld other surveillance, though Justice Subba Rao’s dissent located a right to privacy within Article 21. The doctrinal shift began in R.C. Cooper v. Union of India (1970), which discarded *Gopalan*’s compartmentalisation in favor of a 'direct and inevitable effect' test.

The definitive move occurred in Maneka Gandhi v. Union of India (1978), where the Court held that the procedure must be "right, just and fair" and not "arbitrary, fanciful or oppressive"; a mere enacted law is not enough. This established the 'Golden Triangle' of Articles 14, 19, and 21, requiring that any law restricting liberty be reasonable and non-arbitrary. Consequently, the scope of Article 21 expanded to include the right to a speedy trial (Hussainara Khatoon, 1980), the right to live with human dignity (Francis Coralie Mullin, 1981), the right to livelihood (Olga Tellis, 1985), and the right to privacy (Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1). In Puttaswamy, the nine-judge Bench also applied the four-fold proportionality test (legality, legitimate aim, necessity, balancing) to limitations on privacy and expressly overruled ADM Jabalpur.

The Court has also exercised substantive review, striking down the mandatory death sentence under Section 303 IPC in Mithu v. State of Punjab (1983) as unjust and unfair (its successor, Section 104 of the Bharatiya Nyaya Sanhita, 2023, provides death or imprisonment for the remainder of natural life, not a mandatory death sentence) — review of the law itself, not merely its procedure. While the Court has not adopted American substantive due process wholesale—as noted in Rajbala v. State of Haryana (2016)—it has applied its substance. This expansion is structurally reinforced by the 44th Amendment (1978), which made Articles 20 and 21 non-suspendable even during an emergency.

(b) Constitutionalism as Limited Government

Constitutionalism, as defined by theorists like C.H. McIlwain and Carl J. Friedrich, is the normative idea of 'limited government' and serves as the antithesis of arbitrary power. It is distinct from a mere 'constitution'; a state may have a written constitution without possessing constitutionalism, a distinction highlighted by Loewenstein’s typology of semantic constitutions.

The essence of constitutionalism is the limitation of state power through the rule of law (A.V. Dicey) and the separation of powers (Montesquieu). In the Indian context, constitutionalism is institutionalised through several devices:
1. Fundamental Rights (Part III): These act as direct limitations on the State.
2. Judicial Review: Articles 32 and 226 empower the judiciary to strike down arbitrary state action.
3. Basic Structure Doctrine: Established in Kesavananda Bharati (1973) and reaffirmed in Minerva Mills (1980), this doctrine limits the amending power of Parliament, ensuring that the 'limited government' itself is a basic feature that cannot be destroyed.
4. Anti-Arbitrariness: In E.P. Royappa v. State of Tamil Nadu (1974), the Court held that arbitrariness is the enemy of equality, making Article 14 a tool against capricious state action.
5. Federalism and independent institutions: The division of powers between the Union and States, an independent judiciary, the Election Commission (Art. 324), the CAG (Art. 148) and universal adult suffrage (Art. 326) keep power accountable.

However, the proposition is best tested against episodes where constitutionalism was strained. The 1975-77 Emergency and the ADM Jabalpur judgment (1976) represented a failure of constitutionalism, where the State claimed absolute power. This was corrected by the 44th Amendment and the subsequent overruling of ADM Jabalpur in Puttaswamy (2017). Similarly, the misuse of Article 356 was checked in S.R. Bommai (1994), and the abuse of ordinance-making power was addressed in D.C. Wadhwa (1987). These judicial interventions demonstrate that constitutionalism in India is a dynamic process of checking arbitrary power.

(c) Essential Legislative Function and Delegated Legislation

The doctrine of delegated legislation rests on the principle that while the Legislature can delegate the power to make rules, it cannot abdicate its essential legislative functions. As the statement suggests, the Legislature must set the essential policy and lay down standards in the Delegating Act, while the delegate (Executive) is limited to filling in the details to advance that policy.

The foundational authority is In re Delhi Laws Act (AIR 1951 SC 332), where the Supreme Court held that the essential legislative function is to determine the policy and lay down the standards. The delegate can only carry out the legislative policy in detail. If the Legislature delegates its essential function, the resulting law is void.

The Court has applied this 'policy and guideline' test in several cases:
In Harishankar Bagla v. State of Madhya Pradesh (1954), the Court upheld the delegation of power to the Central Government under the Essential Supplies (Temporary Powers) Act, 1946, as the essential policy was already laid down by the Legislature.
Conversely, in Hamdard Dawakhana v. Union of India (1960), the Court struck down Section 3(d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, which gave the Executive unguided discretion to specify diseases, holding that such a standard was too vague and amounted to an abdication of legislative power.
In Devi Das Gopal Krishnan v. State of Punjab (1967), the Court struck down a provision letting the Government fix sales-tax rates without any guidance, and in Rajnarain Singh v. Patna Administration Committee (1954) it held that the power to extend laws with modifications cannot be used to change essential policy.
In Jalan Trading Co. v. Mill Mazdoor Sabha (1967), the Court invalidated Section 37 of the Payment of Bonus Act, 1965 — a 'Henry VIII'-type removal-of-difficulties clause that let the Government resolve doubts under the Act by final orders — as an impermissible delegation, whereas in Gammon India v. Union of India (1974) a narrower removal-of-difficulties clause (Section 34, Contract Labour Act, 1970) was upheld.
In Gwalior Rayon v. Assistant Commissioner (1974), Mathew J. proposed the alternative 'abdication' test (delegation is valid so long as the Legislature retains the power to repeal or control), but the majority kept the 'policy and guideline' test.

Delegated legislation must also be distinguished from conditional legislation, where the Legislature enacts the law fully and leaves only the time or place of its application to the Executive (Queen v. Burah, 1878).

To ensure the delegate does not exceed these limits, several controls exist:
1. Parliamentary Control: The laying of rules before Parliament (simple laying, or laying subject to negative or affirmative resolution) and scrutiny by the Committees on Subordinate Legislation (Lok Sabha 1953, Rajya Sabha 1964).
2. Judicial Control: The doctrine of ultra vires, where the Court strikes down rules that are arbitrary or beyond the scope of the parent Act.
3. Publication: Rules must be published in the Official Gazette to be valid, as held in Harla v. State of Rajasthan (1951).

Thus, the delegate's power is strictly ancillary to the legislative policy set by the Legislature.

(a) "While interpreting Article 21 of the Constitution, the Supreme Court introduced the concept of 'due process of law'…

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(a) Article 21 and the Entry of 'Due Process'

(b) Constitutionalism as Limited Government

(c) Essential Legislative Function and Delegated Legislation

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