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So I am convinced that to frustrate Art. 21 by relying on any formal adjectival statute, however, filmsy or fantastic its provisions be, is to rob what the constitution treasures. Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within, Art. 21 has to be fair, riot foolish, carefully 723 designed to, effectuate. not to subvert, the substantive right itself. Thus understood, 'procedure' must rule out anything arbitrary freakish or bizarre. A valuable constitutional right can be canalised only by civilised processes. You cannot claim that it is a legal procedure if the passport is granted or refused by taking loss, ordeal of fire or by other strange or mystical methods. Nor is it tenable if life is taken by a crude or summary process of enquiry. What is fundamental is life and liberty. What is procedural is the manner of its exercise,. This quality of fairness in the process is emphasised by the strong word ,established which means 'settled firmly not wantonly whimsically. If it is rooted in the legal consciousness of the community it becomes ' established' procedure. And 'Law' leaves little doubt that it is normae, regarded as just since law is the means and justice is the end.
Is there supportive judicial thought for this reasoning. We go back to the vintage words of the learned Judges in A. K.
Gopalan (supra) and zigzag through R. C. Cooper to S. N.
Sarkar and discern attestation of this conclusion. And the elaborate constitutional procedure in Art. 22 itself fortifies the argument that 'life and liberty' in Art. 21 could not have been left to illusory legislators happenstance. Even as relevant reasonableness informs art.
14 and 19, the component of fairness is implicit in Art. 21. A close-up of the Gopalan case (supra) is necessitous at this stage to underscore the quality of procedure relevant to personal liberty.
Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is large the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights; observance of fundamental rights is not regarded as good politics and their transgression as had politics. I sometimes pensively reflect that people's militant awareness of rights and duties is a surer constitutional assurance of governmental respect and response than the sound and fury of the 'question hour' and the slow and unsure delivery of court writ 'Community Consciousness and the Indian Constitution is a fascinating subject of sociological relevance in many areas.
To sum up, 'procedure' in Art. 21 means fair, not formal procedure. 'Law' is reasonable law, not any enacted piece.
As Art. 22 ,specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Art. 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Art. 21 are available. Otherwise, as the procedural safeguards contained in Art. 22 will be available only in cases of preventive and punitive detention, the right to life