The drafting history of article 21 is as follows:

Draft Article 15 was debated in the Constituent Assembly on 6 and 13 December 1948. It provided for the right to life and personal liberty, subject to procedure established by law; it also gave all persons equality before the law.

Members were divided on whether the term ‘procedure established by law’ should be replaced with ‘due process’, and the implications of such a move. Some argued that ‘procedure established by law’ would allow the legislature to pass laws which violated an individual’s civil liberties. If the term ‘due process’ was adopted instead, the judiciary would have the right to protect these liberties by investigating whether a law was consistent with the other fundamental rights. However, others argued that ‘due process’ allowed the unelected judges, who themselves are not immune from prejudice, to undermine the authority of the legislature by passing judgment on lawfully-enacted legislation. Ultimately, the members chose to retain the phrase ‘procedure established by law’.

The second part of the Draft Article, relating to equality before the law, was not debated. Later, the Drafting Committee decided to move this part into a standalone Article 14.

Draft Article 15 was passed without amendments on 13 December 1948.

However the Maneka Gandhi case broadened the scope of this.

Why is that? Despite the clear drafting intent behind the article to exclude due process why did this get broadened? The court has taken a purposive approach to Article 20 by stating that the drafters didn't intend Article 20 to include "unreasonable" search warrants. So why did article 21 get broadened?

  • Why is "due process" supposedly different from "procedure established by law"? The only differences I can see is that one is truncated (the original phrase is "due process of law ") and that one is 20th-century English while the other is early modern English (translated from 14th-century law French).
    – phoog
    May 15, 2023 at 0:31
  • this goes over it @phoog byjusexamprep.com/upsc-exam/…. basically in due process the judiciary checks the "fairness" of a law while in procedure established by law the judiciary applies the law as is
    – user45449
    May 15, 2023 at 8:18
  • substantive due process basically
    – user45449
    May 15, 2023 at 8:30

1 Answer 1


The constitution of India grants the judiciary of India the sole right to interpret the constitution. From this, it gets the power of judicial review to determine the constitutional validity of any law, and to reject any law it deems unconstitutional. Thus, its role is to be the guardian of the constitution. Another important role of the judiciary is to safeguard the fundamental rights of the citizens. Thus, any citizen can approach the court if these rights are curbed by any law or action of the government, and seek reprieve.

Yes, as you pointed out, the intent of the constitution makers in including something in the constitution are important. And the constitutional courts does consider it. (That is why all the constitutional debates have been recorded and are publicly available).

But remember that the constitution of India was adopted in 1950, and it is now 73 years old. Indian society has since evolved (or devolved) with time, and with it political perspectives too have evolved. The indian constitution provides two mechanism for laws too to evolve accordingly:

  1. It allows the executive to create new laws as needed.
  2. The judgements of the constitutional courts become case laws.

But any law the executive creates needs to be mindful that it doesn't conflict with the other parts of the constitution, other laws and / or existing case laws. If it does, the indian judiciary can reject such laws.

The specific case that you mentioned happened nearly 30 years since the constitution was created. The SC ruling basically points out that even if the intent of the constitution makers are clear, it doesn't mean the executive can interpret it to extend and abuse it in a manner contradictory to other parts of the constitution or later case laws. And since the court also has to protect the fundamental rights of the citizens, it can certainly amend laws that it feels curtail any fundamental rights.

A more simpler explanation is that you cannot literally interpret the constitution in isolation. You have to read the constitution along with all the constitutional case laws to understand what something in the constitution means and how to applies.

There are many such examples of the judiciary offering either a more narrowing or broader interpretation of the constitution that some could argue goes against the original intent of those who created the constitution. But then, when you consider that the Indian Parliament today has 186 MPs facing criminal charges (36%) (some for serious crimes like murder, kidnapping and rape), we indians should perhaps accept that any such judicial overreach is happening as a "safeguarded" response to our dysfunctional politics today (that the constitution makers couldn't have predicted). As Ambedkar said:

“However good a constitution may be, it is sure to turn out to be bad because those who are called to work it happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.” - India’s Living Constitution

  • I wish there was a clause in the constitution regarding redressal of grievances. that would make a lot of difference imo
    – user45449
    May 15, 2023 at 8:38

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