Dr Ambedkar during Constituent Assembly Debates on Article 21 subject to " due process of law" and "procedure established"

ASSEMBLY OF INDIA DEBATES (PROCEEDINGS)-

VOLUME VII

Monday, the 13th December, 1948 

Article 21 (Article 15 in  corresponding draft constitution )

 The Honourable Dr. B. R. Ambedkar : Mr. Vice-President, I must confess that I am somewhat in a difficult position with regard to article 15 and the amendment moved by my Friend Pandit Bhargava for the deletion of the words "procedure according to law" and the substitution of the words "due process".

 

It is quite clear to any one who has listened to the debate that has taken place last time that there are two sharp points of view. One point of view says that "due process of law" must be there in this article; otherwise the article is a nugatory one. The other point of view is that the existing phraseology is quite sufficient for the purpose. Let me explain what exactly "due process" involves.

 

 The question of "due process" raises, in my judgment, the question of the  relationship between the legislature and the judiciary. In a federal constitution, it is  always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature. If the law made by aparticular legislature exceeds the authority of the power given to it by the Constitution, such law would be ultra vires and invalid. That is the normal thing that happens in all federal constitutions. Every law in a federal constitution, whether made by the Parliament at the Centre or made by the legislature of a State, is always subject to examination by the judiciary from the point of view of the authority of the legislature making the law. The 'due process' clause, in my judgment, would give the judiciary the power to question the law made by the legislature on another ground. That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual. In other words, the judiciary would be  endowed with the authority to question the law not merely on the ground whether it  was in excess of the authority of the legislature, but also on the ground whether the  law was good law, apart from the question of the powers of the legislature making the  law. The law may be perfectly good and valid so far as the authority of the legislature  is concerned. But, it may not be a good law, that is to say, it violates certain

fundamental principles; and the judiciary would have that additional power of  declaring the law invalid. The question which arises in considering this matter is this. We have no doubt given the judiciary the power to examine the law made by different  legislative bodies on the ground whether that law is in accordance with the powers  given to it. The question now raised by the introduction of the phrase 'due process' is  whether the judiciary should be given the additional power to question the laws made  by the State on the ground that they violate certain fundamental principles.

 

 There are two views on this point. One view is this; that the legislature may be  trusted not to make any law which would abrogate the fundamental rights of man, so

to say, the fundamental rights which apply to every individual, and consequently, there is no danger arising from the introduction of the phrase 'due process'. Another view is this: that it is not possible to trust the legislature; the legislature is likely to  err, is likely to be led away by passion, by party prejudice, by party considerations,  and the legislature may make a law which may abrogate what may be regarded as the  fundamental principles which safeguard the individual rights of a citizen. We are  therefore placed in two difficult positions. One is to give the judiciary the authority to  sit in judgment over the will of the legislature and to question the law made by the  legislature on the ground that it is not good law, in consonance with fundamental  principles. Is that a desirable principle? The second position is that the legislature ought to be trusted not to make bad laws. It is very difficult to come to any definite conclusion. There are dangers on both sides. For myself I cannot altogether omit the possibility of a Legislature packed by party men making laws which may abrogate or  violate what we regard as certain fundamental principles affecting the life and liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the   Federal or Supreme Court examining laws made by the Legislature and by dint of their  own individual conscience or their bias or their prejudices be trusted to determine  which law is good and which law is bad. It is rather a case where a man has to sail  between Charybdis and Scylla and I therefore would not say anything. I would leave it  to the House to decide in any way it likes.