Tracing Due Process In Article 21 And A Case For Hierarchy In Fundamental Rights

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T21:35:05.338Z

Updated: 2026-08-30T07:06:09.768Z

TRACING DUE PROCESS IN ARTICLE 21 AND A CASE FOR

HIERARCHY IN FUNDAMENTAL RIGHTS Pragya Chauhan, LLB (Hons), NLSIU, Bengaluru, Karnataka, India BA (H) Political Science, Miranda House, University of Delhi, Delhi, India

ABSTRACT

This paper investigates the extent to which the doctrine of ‘due process of law’—originally excluded by the framers of the Indian Constitution—has been judicially incorporated into its framework. It argues that both procedural and substantive due process have been read into Article 21 by the judiciary, particularly following the landmark decision in Maneka Gandhi v. Union of India. Later, the paper highlights the emergence of a hierarchy among fundamental rights in India. While rights under Article 21 are protected, they do not receive the same level of judicial scrutiny as those under Article 19. This has led to a differentiation in the protection of rights, with some rights subject to more rigorous judicial review than others.

I.

INTRODUCTION

The Indian Constitution is often described as a “living tree,” evolving and growing to meet changing socio-political and moral realities while preserving its foundational values. A key “branch” of this living “tree” is Article 21. It lays down “No person shall be deprived of his life or personal liberty except according to procedure established by law. ”1 The right to life and personal liberty enshrined in Article 21 is widely regarded as one of the most essential fundamental rights in India. Justice P. N. Bhagwati aptly described it as embodying “a constitutional value of supreme importance in a democratic society. ”2 As such, it serves as a cornerstone of the Indian constitutional order—offering citizens a sense of security, dignity, and the assurance of peaceful existence.

3 The phrase “procedure established by law” has been the subject of sustained judicial scrutiny and scholarly debate since the Constitution’s inception. Initially adopted in deliberate contrast to the American doctrine of “due process of law”—in order to limit judicial interference in legislative affairs—the phrase’s interpretation has not remained static. Over time, the Indian judiciary has transformed this seemingly narrow procedural safeguard into a potent instrument for the protection of individual rights. This paper argues, first, that the Indian judiciary has incorporated ‘procedural’ as well as ‘substantive’ due process, despite explicit rejection by the Constituent Assembly.

Second, while the doctrine of substantive due process has been extended to cover various rights now recognized under the expanded scope of Article 21, these rights do not receive the same degree of rigorous protection as the fundamental freedoms guaranteed under Article 19. This has led to the emergence of a hierarchy among fundamental rights—wherein some rights benefit from a more robust standard of judicial review than others. II.

DUE PROCESS OF LAW IN ARTICLE 21

There are three kinds of due process : pure form, procedural and substantive.4 This section

1 Constitution of India, art 21.

2 Francis Coralie Mullin v Administrator, Union Territory of Delhi (1981) 1 SCC 608 [6].

3 M.P. Jain, Indian Constitutional Law (8th edn, Lexis Nexis 2018) 1159.

4 Abhinav Chandrachud, 'Due Process' in Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta (eds), The Oxford Handbook of Indian Constitutional Law (Oxford University Press 2016) Chapter 43 (“Chandrachud”). argues all the three kinds have been included in the framework of the Indian constitution. The first, or pure form due process, requires that an individual's personal liberty can only be curtailed by a procedure established by a validly enacted law. 5 This form imposes a restraint on the executive, not the legislature. 6 The second, or procedural due process, mandates that the procedure for depriving an individual of liberty must be ‘fair, just, and reasonable. ’7 The third, or substantive due process, further requires that even the content of the law—its substantive part—must be fair, just, and reasonable.

8 To illustrate how procedural and substantive due process are incorporated within the Indian constitutional framework, let us consider a hypothetical scenario - suppose the Indian Parliament enacts the Public Morality and Order Act, 2025. The Act has two sections: Section

1 amends the Indian Penal Code to criminalize wearing red in public on Mondays, punishable

by up to three years' imprisonment. Section 2 amends the Criminal Procedure Code to state that persons accused under this offence shall have no right to be heard before the court, and judgments shall be delivered without affording any opportunity for defence. We will return to this hypothetical at relevant junctures. The framers of the Indian Constitution intentionally removed the "due process" clause from what was originally drafted as Article 15 (now Article 21).9 B.N. Rau, the Constitutional Advisor, had consulted U.S. Supreme Court Justice Felix Frankfurter, who cautioned against the inclusion of the term "due process of law."10 Frankfurter warned that such a clause would be undemocratic, vesting disproportionate power in the unelected judiciary (over the elected

5 ibid.

6 ibid.

7 ibid.

8 ibid. The Sunil Batra v. Delhi Admn. (1978) 4 SCC 494 case highlights this distinction between substantive and procedural due process. It involved a challenge to Section 30(2) of the Prisons Act, 1894, which mandated that a death row prisoner be kept in a separate cell. The case clarified that substantive laws define offenses and punishments, while procedural laws govern how sentences are carried out. Since Section 30(2) was about the treatment of death row prisoners rather than a punishment, it was deemed procedural. The Court, using Article 21, “read down” the provision, ruling that solitary confinement could not be imposed until all appeals and clemency petitions were exhausted. 9 Constituent Assembly Debates, 6 December 1948. The original Article 15 was identical to the Fourteenth Amendment of the US Constitution.

It read: ‘nor shall any State deprive any person of life, liberty and property without due process of law. ’ 10 P K Tripathi, 'Perspectives on the American Constitutional Influence on the Constitution of India' in Lawrence Ward Beer (ed), Constitutionalism in Asia: Asian Views of the American Influence (Oxford University Press 2004) Chapter 4. representatives in the Legislature) and placing an unfair burden upon it. 11 This advice came in the shadow of the Lochner Era in the United States, during which the judiciary had invalidated several progressive social legislations—such as restrictions on working hours—under the guise of protecting the liberty of contract. 12 All these factors led to voting against the inclusion of ‘due process’ clause and hence the ‘procedure established by law’ was put in place. 13 This reflected an intention of having a ‘pure form’ of due process.

This intent was affirmed in the Supreme Court's decision in AK Gopalan v. State of Madras (1950). 14 A six-judge bench held that reading ‘procedural’ due process into the phrase ‘procedure established by law’ is impermissible. 15 Justice Das said ‘it is common knowledge’ that the Constituent Assembly had deliberately rejected the American model, and importing it would contravene the framers' intent. 16 This meant - if a law is enacted validly, it can not be challenged for infringement of Article 21 in the court of law. Returning to our hypothetical: under the A. K. Gopalan interpretation, if the Public Morality and Order Act, 2025 was enacted following the proper constitutional procedure, it would fulfill Article 21's requirements. Thus, an individual could be imprisoned under Section 1 merely because the law had been validly enacted, regardless of its fairness or arbitrariness.

This exemplifies the ‘pure form’ due process—where the only requirement is the formal validity of the law, whether procedural or substantive. This narrow interpretation was fundamentally overturned17 by a seven-judge bench in Maneka Gandhi vs Union of India (1978). 18 It held that deprives a person of personal liberty must be "fair, just, and reasonable—not fanciful, oppressive, or arbitrary. "19 This decision

11 Chandrachud (n 4).

12 Alka Nanda Mahapatra, 'The Road Not Taken

The Pervasive Echo of 'Due Process' in Article 21' (2022) 2 Jus Corpus LJ 556.

13 Constituent Assembly Debates, 13 December 1948.

14 A.K. Gopalan v. State of Madras, 1950 SCC 22 (“A.K. Gopalan”).

15 ibid.

16 Ibid [339].

17 It is crucial to understand that this decision came in the post-Emergency era. Like many rulings from this period, the Maneka Gandhi case was decided by a Court striving to restore the legitimacy it had lost during the 1975-77 Emergency. During this time, the Court had failed to prevent arbitrary arrests and detentions in the Habeas Corpus case. The lesson learned from that experience was that the Constitution didn’t have to be interpreted rigidly, adhering strictly to its text or the framers' original intent. After all, it was the same Constitution, drafted by India's founding fathers, that allowed for the suspension of Article 21 during an Emergency. By not challenging the text of the Constitution and failing to allow habeas corpus petitions for those arbitrarily detained during the Emergency, the Court had failed the nation at a critical moment.

Ultimately, the influence of the framers' original intent began to diminish in the 1970s, shaped by the lessons of the Emergency.

18 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 [48] (“Maneka Gandhi”).

19 ibid.

marked the incorporation of procedural due process into Article 21. 20 The court was, in part, influenced by Justice Fazl Ali’s dissent in AK Gopalan, where he opined that any such procedure must ensure that the aggrieved individual receives: (i) notice, (ii) an opportunity to be heard, (iii) an impartial tribunal, and (iv) an orderly course of procedure. 21 Further, the Court in Maneka Gandhi emphasized that fundamental rights are not watertight compartments but are interrelated and mutually reinforcing. 22 It held that any law affecting personal liberty must satisfy the tests of fairness, non-arbitrariness, and reasonableness, thereby intertwining Articles 14, 19, and 21—a doctrinal development often referred to as the Golden Triangle.

23 Revisiting our hypothetical: under the Maneka Gandhi interpretation, Section 2 of the Public Morality and Order Act, 2025, which denies an accused the right to be heard, would violate Article 21. It fails the procedural fairness test (as no right to hearing) and can thus be struck down for being arbitrary and unjust. However, Section 1—which criminalizes wearing red on Mondays—would still survive scrutiny because, at this stage, Indian jurisprudence had not yet embraced substantive due process. The test of fairness applied only to the procedure, not to the content/substance of the law. Subsequently, the principle of procedural due process was invoked by the courts in several cases. For instance, in MH Hoskot v.

State of Maharashtra (1978),24 the Supreme Court held that an imprisoned convict has the right to obtain a copy of the judgment, as it is essential for exercising the right to appeal—thereby reinforcing the requirement of fairness and access to justice within the procedural framework of Article 21. 25 The doctrine of substantive due process began to take shape in Indian constitutional jurisprudence with the decision in Bachan Singh v. State of Punjab (1980). 26 In this case, the Supreme Court upheld the constitutional validity of the death penalty for murder under Section

302 of the Indian Penal Code (IPC).27 Notably, Section 302 is a substantive provision of law,

as opposed to a procedural one. Rather than limiting the application of Article 21 to procedural aspects alone, the Court examined the substantive validity of the law itself. It held that Section

302 did not, per se or by virtue of execution by hanging, amount to an “unreasonable, cruel or

20 Chandrachud (n 4).

21 AK Gopalan (n 14).

22 Maneka Gandhi (n 18).

23 ibid.

24 M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544.

25 ibid.

26 Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

27 ibid.

unusual punishment. ”28 In Saroj Rani v. Sudarshan Kumar (1984),29 the Supreme Court examined the constitutionality of Section 9 of the Hindu Marriage Act, 1955, which allows a spouse to seek restitution of conjugal rights. 30 The Court upheld the provision, holding it consistent with Article 21 of the Constitution—not just due to safeguards against misuse, but also because it served the social aim of preserving marriage. 31 Thus, the Court conducted a substantive due process review and found the law valid. A more explicit invocation of substantive due process came in Naz Foundation v. Government of NCT of Delhi,32 where the Delhi High Court struck down Section 377 of the IPC—another substantive law—as unconstitutional. 33 The Court held that criminalizing consensual sexual acts between adults in private violated the right to life and personal liberty under Article 21.

34 Applying this principle to our hypothetical scenario, Section 1 of the Public Morality and Order Act, 2025—which criminalizes wearing red in public on Mondays—could be challenged under Article 21 for violating the doctrine of substantive due process. Even though the law may have been validly enacted, its arbitrariness and lack of rational connection to any legitimate state interest render it susceptible to constitutional scrutiny under Article 21. The trend culminated in K. S. Puttaswamy v. Union of India (2017),35 where the Supreme Court held that Article 21 includes not just procedural fairness but also requires the law’s substance to be just and reasonable. 36 Justice D. Y. Chandrachud noted that challenges under Article 21 must go beyond procedure and examine the law’s inherent rationality and fairness. 37 Further clarification came in Sunil Batra v.

Delhi Administration (1979),38 where Justice Krishna Iyer distinguished between procedural and substantive aspects: procedural laws are tested under Article 21, while substantive laws are evaluated under Articles 14 and 19. 39

28 ibid [136].

29 Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90.

30 ibid.

31 ibid.

32 Naz Foundation v. Govt. (NCT of Delhi), (2016) 15 SCC 619 (“Naz Foundation”).

33 ibid.

34 ibid.

35 K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

36 ibid.

37 ibid.

38 Sunil Batra v. Delhi Admn., (1978) 4 SCC 494.

39 ibid.

Additionally, while reversing Naz Foundation v. Government of NCT of Delhi ,40 Supreme Court opined that the ‘requirement of substantive due process’ was ‘read into the Indian Constitution through a combined reading of Articles 14, 21 and 19’. 41 Therefore, Articles 14, 19, and 21 of the Constitution function as an integrated whole and courts check the arbitrariness or reasonableness of substantive laws under Articles 14 and 19 (substantive due process), respectively; while the procedural part under Article 21 (procedural due process).

Therefore it can be concluded that all forms of due process are incorporated - as the Indian judiciary evaluates (i) whether a law has been validly enacted (pure form), (ii) whether the procedure for depriving a person of liberty is fair, just, and reasonable (procedural due process), and (iii) whether the content of the law itself meets the standards of fairness and nonarbitrariness (substantive due process). III.

HIERARCHY IN FUNDAMENTAL RIGHTS

As established in the previous section, the Indian Constitution enshrines a triad of fundamental rights under Articles 14, 19, and 21, often referred to as the "golden triangle. "42 This framework ensures that any law or executive action infringing upon personal liberty must satisfy the cumulative tests of equality (Article 14), freedom (Article 19), and life and personal liberty (Article 21). 43 These provisions form the backbone of constitutional protection against arbitrary state action. However, the expansion of Article 21 to include unenumerated rights— such as the right against sexual harassment at the workplace44 and the right to live with human dignity45—has given rise to a nuanced hierarchy within fundamental rights jurisprudence.

While these rights are judicially recognized, their enforcement often depends on the State’s interpretation of legality, necessity, and proportionality, making them more vulnerable to executive discretion and uneven implementation. Take, for example, the Right to Privacy. Recognised as a fundamental right under Article 21 by the nine-judge bench in K. S. Puttaswamy v. Union of India (2017),46 privacy now

40 Naz Foundation (n 32).

41 ibid.

42 Abhinav Chandrachud, Due Process of Law (Eastern Book Company 2011).

43 ibid.

44 Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

45 Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608.

46 K.S. Puttaswamy (Aadhaar-5J.) v. Union of India, (2019) 1 SCC 1 (“K.S.Puttaswamy”).

encompasses a broad range—bodily autonomy, intimate relationships, data and informational privacy, among others. 47 However, unlike Article 19 freedoms, the right to privacy lacks an enumerated list of permissible restrictions. 48 Instead, its limitations are evaluated on a threepart test: legality, necessity, and proportionality. 49 It can result in inconsistent protections, especially in cases involving surveillance and data collection, where mere procedural safeguards are often considered sufficient. Consider this hypothetical: suppose the government introduces a law mandating AI-driven mental health screening for professionals in high-stress jobs—such as doctors, lawyers, and journalists. The system collects highly sensitive data: biometric readings, personal writings, online behavior.

Though this is a clear invasion of privacy, in the absence of defined grounds of reasonable restriction, the State could justify it by citing public interest or legitimate goal and national well-being. As long as the law appears valid and the intrusion proportionate, the courts may uphold it—even if it causes a chilling effect or targets specific groups. This reveals a deeper concern: while privacy has fundamental status under Article 21, its enforcement often depends on broad standards of proportionality or fairness. Unlike Article 19, which requires structured, ex-ante justification for restrictions, privacy protections remain more discretionary and less predictable. Thus, despite its elevated status, privacy is often more vulnerable to state intrusion—highlighting a functional hierarchy of rights within Part III.

Similarly, the right to shelter is also recognized as a fundamental right under Article 21, per Olga Tellis v Bombay Municipal Corporation (1985)50 and in Chameli Singh v. State of Uttar Pradesh (1996),51 where the Supreme Court held that the right to shelter includes adequate living space, safe structures, and access to basic amenities. 52 Despite this constitutional recognition, there have been instances where state authorities have carried out demolitions of homes, often citing illegal encroachments or unauthorized constructions - often called as “bulldozer justice”. 53 These actions have raised concerns about the lack of due process and the potential violation of fundamental rights. For example, in 2021, the Prayagraj

47 ibid.

48 Constitution of India, art 19(2)-(6).

49 K.S.Puttaswamy (n 46).

50 Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545.

51 Chameli Singh v. State of U.P., (1996) 2 SCC 549.

52 ibid.

53 Ananthakrishnan G, ‘Supreme Court slams bulldozer justice

“Executive cannot be judge, jury, executioner”’ (The Indian Express, 5 November 2024) accessed 08 April 2025.

Development Authority demolished several homes without providing adequate notice or following legal procedures. 54 This action was challenged in Zulfiquar Haider & Ors. v. Prayagraj Development Authority (2025). 55 In its decision dated 1st April 2025, the court emphasized the necessity of adhering to legal procedures before executing demolitions. 56 It criticized the manner in which notices were served—merely affixed to buildings without real attempts at personal delivery or registered post—thus denying residents a meaningful opportunity to contest the demolition orders. 57 Here, the Court focused on the violation of procedural safeguards, rather than questioning the substantive legality of the demolitions themselves. 58 This shows that even when fundamental rights like the right to shelter are constitutionally protected, their enforcement heavily relies on procedural compliance.

The failure to ensure due process can effectively render these rights illusory, especially for marginalized communities that lack the resources or access to challenge state action. Even if the court went into question of the substantive law, it would only be limited to the proportionality test–unlike the protection given to Article 19(1) rights–as the restrictions on unenumerated rights under Article 21 are not limited to any specific list of grounds of infringement. Therefore, while Articles 19 and 21 are theoretically equal pillars of fundamental rights jurisprudence dealing with liberty, their judicial enforcement mechanisms create a functional hierarchy.

Rights under Article 19 benefit from limited grounds as laid down in the constitution, while Article 21’s broader rights often rely on open-ended tests like proportionality which may include unlimited number of grounds for infringement. This dynamic results in - greater judicial discretion in interpreting Article 21 rights, inconsistent enforcement and weaker protections for unenumerated rights (privacy, shelter, etc. ) despite their high rhetorical value. Thus, the constitutional framework has evolved not just to protect rights, but to prioritize some over others in practice, creating a nuanced hierarchy of enforceability within Part III of the Constitution.

54 Zulfiquar Haider vs The State Of Uttar Pradesh 2025 INSC 480

55 ibid.

56 ibid.

57 ibid.

58 ibid.

IV.

CONCLUSION

Abhinav Chandrachud observes that the U. S Supreme Court has elevated certain rights to a hierarchically superior plane—rights grounded in the nation’s tradition and collective conscience. 59 He contrasts this with the Indian context, where the Supreme Court has applied the test of “arbitrariness” without erecting such a hierarchy, primarily because only the enumerated rights in Part III are deemed “fundamental. ”60 However, while the Indian judiciary has not adopted a formal hierarchy of rights like the U. S. , it has functionally privileged certain rights—such as dignity, privacy, and personal liberty—by subjecting State action in these domains to heightened judicial scrutiny. 61 Hence, to say that Indian courts have failed to create a hierarchy of values is to miss the subtle but significant doctrinal evolution that has occurred under the umbrella of Article 21.

The absence of a formal structure does not imply an absence of substantive prioritisation. Therefore, while Chandrachud’s comparative insight is valuable, his conclusion may underappreciate the normative influence with evolving times, with which Indian courts have used Article 21—not only to enforce rights within Part III, but also to constitutionalised principles beyond it. The Indian model, though less explicit, reflects a deeply political and ethical engagement with rights—a model more pluralistic, if less rigidly hierarchical, than its American counterpart.

59 Abhinav Chandrachud, Due Process of Law (Eastern Book Company 2011) chapter 1.

60 ibid,

61 Arpita Sarkar, ‘Book Review

A Journey with the “Due Process of Law”: Recording Some Revelations and Disappointments with the Work of Abhinav Chandrachud’ (2011–12) 3(1) JILS 158.

Table of Cases

1. A.K. Gopalan v. State of Madras, 1950 SCC 22.

2. Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

3. Chameli Singh v. State of Uttar Pradesh, (1996) 2 SCC 549.

4. Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608.

5. K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

6. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

7. M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544.

8. Naz Foundation v. Government of NCT of Delhi, (2016) 15 SCC 619.

9. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.

10. Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90.

11. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494.

12. Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

13. Zulfiquar Haider & Ors. v. Prayagraj Development Authority, 2025 INSC 480.

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