Protection of life and personal liberty

Article 15, Draft Constitution of India 1948

No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India.

Article 21, Constitution of India 1950

No person shall be deprived of his life or personal liberty except according to procedure established by law.

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.