BEFORE THE DRAFT CONSTITUTION of 1948 provided that no person could be deprived of their life or personal liberty "except according to procedure established by law,” the interim report of the Advisory Committee on Minorities and Fundamental Rights (1947) stated that "No person shall be deprived of his life or personal liberty, without due process of law, nor shall any person be denied the equal treatment of the laws within the territories of the union” (emphasis ours).
The phrase “due process of law” lies at the heart of N. Kavitha Rameshwar’s book “They Created a Nation” (LexisNexis, 2026), which centres around the gradual resurrection of the original phrase by the Judiciary while broadening the scope of Article 21.
The book carries the expression of ‘due process of law’ as a yardstick for state action in both its substance and its application, and justifies the exercise of reading beyond the text of the Constitution to enforce the scheme of constitutionalism by the judiciary. As one of the important pointers of development in the Indian Constitution, the book records how the Supreme Court embraced it, acknowledged it and sometimes failed to use it in simple terms. In the end, the utilization of this expression by the judiciary to broaden the scope of Article 21, reading the directive principle of state policy in order to recognize the rights of disabled, the LGBTQ+ community, and victims of intersectionality, created the Nation.
The phrase “due process of law” lies at the heart of N. Kavitha Rameshwar’s book “They Created a Nation” (LexisNexis, 2026), which centres around the gradual resurrection of the original phrase by the Judiciary while broadening the scope of Article 21.
The winding story of how Article 21 was shaped
The book is divided into two registers: the first half traces the genealogy of the phrase. The phrase “due process of law”, derives its constitutional legitimacy in the Fifth and Fourteenth Amendments of the U.S. Constitution. Richard Posner described it as a ‘durable oxymoron’ – testing the state regulation for being unreasonable resulting in ‘deprivation of life, liberty, or property’ and then when adopted, it must be in conformity with the most rigorous ‘procedural safeguards’. The author then turns towards the Indian Constituent Assembly’s own record, and the tussle between the Advisory Committee’s stance on adopting the ‘due process doctrine’ in the Constitution against the Drafting Committee’s borrowing of Article 31 of the Japanese Constitution to incorporate ‘procedure established by law’. The author records B.N. Rau’s reservation with the doctrine, that it would enable judges to ‘veto over legislative policies’, much of which came from Justice Felix Frankfurter’s restraint for judicial outreach. In contrast to B.R. Ambedkar’s stance, centred around the problem that whether the unelected judges should be vested with the authority to invalidate the legislation on substantive grounds?
As Rameshwar reconstructs this history, one sees the irony apparent in the story of how Article 21 came to be shaped – a doctrine which was once deliberately left out of the Constitution was eventually brought back into it via judicial interpretation.
The second half of the book explores the doctrinal pendulum swings that have come to define the Supreme Court’s approach to this jurisprudence, moving from a strict approach taken in A.K. Gopalan v. State of Madras (1950), where "procedure established by law" was interpreted in a very narrow manner, to the broader approach followed in Maneka Gandhi v. Union of India (1978). The ruling in Maneka Gandhi would become a validation of sorts to the dissenting opinion of Justice Fazl Ali in A.K. Gopalan.
Through Maneka Gandhi, Rameshwar explains the doctrine of ‘due process of law’ would re-enter through the back door even though the front door of the constitutional text remained shut. She argues that the history of Article 21 is not merely a story of textual reading, rather a judicial transformation in itself; by acknowledging the interlinking of Articles 14, 19 and 21, the Supreme Court transformed the ‘procedural fairness’ into a ‘substantive constitutional safeguard’. Resulted in a wider recognition of unenumerated rights of privacy, healthy environment, sexual autonomy, abolition of bonded labour, and more recently the intellectual recognition of ‘intersectional rights of the individuals’ and ‘rights of civil union for LGBTQ+ community’.
The book’s strength lies in its title, the author’s ambitious attempt to weave together constitutional history, transformative theory and the judicial doctrine – and how the idea shaped between the citizen, the state, and the judiciary, resulted in the creation of nation. Although the words ‘They Created’ conveys the idea that the events occurred in the past, the contemporary social struggles with ‘religion, environment, politics, etc.’ proves that creation is still in process.
The revival of ‘Due process’ as a nation building exercise
An important insight emerges from the recording of the Indian experience with substantive due process as against the American experience. While in the United States, the doctrine initially evolved as a mechanism for protecting the economic interest of the citizens against state action, in its Indian counterpart, where the doctrine was introduced in the realm of non-economic rights. It began with Justice K. Subba Rao’s dissenting opinion in Kharak Singh v. State of Uttar Pradesh (1962), which laid the broader understanding of personal liberty. Rameshwar records that the evolution of due process reflected a transition from procedural safeguard to constitutional commitment of human autonomy and substantive equality.
The book’s significant intervention lies in its attempt to reconcile the tradition of originalism with living constitutionalism. Rameshwar, is sympathetic to the Supreme Court’s expansive turn – reviving due process without seeking any amendment in the original text of the Constitution, underlining that the Court’s due process jurisprudence reflects synthesis of both ‘original’ and ‘transformative’ traditions. This combination of originalism and living constitutionalism, Rameshwar says, is a type of “living originalism”.
What distinguishes ‘They Created a Nation’ from the conventional recount of jurisprudence on Article 21 is its insistence on the argument that the revival of due process is not merely a judicial development but a nation-building exercise. From Rameshwar’s lens, the true importance lies in understanding what the revival of due process enabled the Indian judiciary to accomplish. By reading the principles of ‘non-arbitrariness’, ‘reasonableness’, and ‘fairness’ against the state action, the Supreme Court has transformed Article 21 into a substantive right of its own.
Judicial expansionism and the tensions around Article 21
The book revisits the apprehension raised by Rau, about the limitations of the Court’s interpretative authority. Rau’s apprehension on the incorporation of ‘due process of law’ became even more relevant in contemporary constitutional discourse. According to him, the guarantee of ‘due process’ would not only empower the courts to assess the competence and legality of legislation, but also to evaluate its substantive legitimacy.
Instances like the invalidation of the National Judicial Appointments Commission Act in order to maintain the primacy of the judiciary in appointment matters, or the granting of open-ended 'continuing mandamus' directions on issues as wide-ranging such as environmental regulation to police reforms, are some illustrations of Court substituting its own policy preferences over legislative or executive judgment.
Undoubtedly, this phenomenon has strengthened the protection of fundamental rights. Rameshwar’s record on the Court’s expansive power with Article 21 appreciates its activism. In the current moment, however, on the record of the right to liberty under Article 21 and the issue of bail adjudication, there is a visible tension, and the very domain that due process jurisprudence was meant to safeguard most directly.
Just two days ago, a Delhi Court dismissed the fresh bail applications of Umar Khalid and Sharjeel Imam in the 2020 Delhi riots larger conspiracy case despite six years of pre-trial incarceration. This came after the Supreme Court, in January this year, denied bail to both the activists categorising them as “architects” of the alleged conspiracy. As Gautam Bhatia has rightly argued, the Supreme Court on one hand treats pre-trial detention in itself to be a breach of constitutional norms under the Najeeb (2021) case but then again weakens the very doctrine in subsequent benches which consider delays subordinate to the gravity of the crime and even at times to the part played by the accused. This unevenness has led commentators to describe Article 21’s bail jurisprudence as a fractured guarantee rather than a settled constitutional right. Hence, Rameshwar’s account of due process being the vehicle of the nation’s rights revolution sits somewhat uneasy with this reality where the same doctrine, which was revived in order to establish privacy, dignity and autonomy has, when it comes to pre-trial liberty, allowed for statutory exceptions in special laws to undermine the general principle of bail over jail.
While in the United States, the doctrine initially evolved as a mechanism for protecting the economic interest of the citizens against state action, in its Indian counterpart, where the doctrine was introduced in the realm of non-economic rights.
Broadly, They Created Nation succeeds in its attempt to trace the doctrine in the realm of constitutional jurisprudence, proving that the absence of an expression from the constitutional text did not stop the judiciary from spending 70 years, one judgment at a time, to demonstrate that the constitutional rights derive their validity not merely from its text but also from the values exhibited by it. The book ultimately invites readers to reconsider the judiciary’s role in shaping constitutional interpretation, where even though the framers chose to omit the ‘due process of law’, the Supreme Court eventually restored its substance through its own interpretation highlighting the evolution of Indian Constitution.
They Created A Nation: The Omnipresence of Due Process in the Indian Constitution is written by N Kavitha Rameshwar and published by LexisNexis. The book is available through the LexisNexis Store and EBC Webstore.