THE REICH STATE LAWS
Procedure established by law

The protection of life and liberty of a person including a citizen is a sacrosanct commitment of the Constitution under article 21 which states:

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

The provision intrinsically is not an enabling law, but a disabling law. It cannot and should not be construed so as to mean that one's life should be taken away, by State by simply enacting a law. A larger bench of the apex court should - it is deeply felt - review, therefore, the 27 November, 1997 judgment. The sharp difference to be discovered between an enabling law and disabling law can be best understood only by considering the paradigm of justice as the basic foundation in the constitution.

The 'procedure established by law' has been construed as one of the easiest ways and methods to commit gross injustice and even genocide against an alien race. The 27 November, 1997 apex court ruling is henceforth untenable. A counterpart example is seen in the third Reich, which has taken several millions of human lives as tuition-fee for teaching the world that one can establish such a procedure under law, and constitutionally wipe out a people (race), you dislike for absurd reasons.

After this lesson, we learnt after paying a hefty tuition-fee that all the constitutional and legal acts should pass through a test of profound justice, fairness and reasonableness. Not so long ago, the USA bought and cut off colored people as they do to the vegetables and the same was repeated in apartheid regime in South Africa under 'procedure established by law'. The 'procedure established by law' of these regimes had been condemned unto the last man by the civilized world.

Similarly, the parliament had enacted in 1958 according to 'procedure established by law' - the demoniacal AFSPA 1958 - in order to give additional empowerment to the security forces to arbitrary commit extra-judicial murders by shooting down, a race of people, who have recently joined the Indian mainstream as 'distinct people' of NSGT (Non Self Governing Territories).

Ridiculously, the Third Reich had enacted lawfully. It had Nuremberg laws of September 15, 1936, Reconstruction of Law, January 30, 1934 and had witnessed Emergency Presidential Decree of February 28, 1933 under article 48 of the German Constitution. By law of March 21, 1933, special court had been set up for trial of cases of "insidious attacks against the government."

The official gazette "Reichsgesets blatt" published the lawful government orders under "AB Action" or, beautifully worded "extraordinary Pacification Action' (Ausserordenliche Befriedigungsaktion). Intelligentsia who do not subscribe to 'one people, one Reich and one faith' had been cleansed away. The third Reich and Indian parliament acted absolutely intra vires their respective constitution'

The cleansing of Germany by weeding out the Jews had not been performed without observing constitutionality and a lawful procedure. The 'Procedure established by law' may wipe out the entire populace in the North-Eastern states or, the indigenous people in the region by enacting laws like the AFSPA and the apex court totally ignored complaints since 1958, till the contemplated act has been undertaken.

However, India's apex court is usually prompt to strike down, at a moment's notice, incompatible statutes or executive action sue motto or, otherwise in the normal course. In did not happen to writ No. 550 of 1982 till 1997. The parliament has repealed TADA, and not the black AFSPA. The discriminatory approaches had reinforced the existing faultlines between the acquired NSGT and the metropolitan India.

The less nefarious 'procedure established by law in the context of article 21 of the Constitution of India has undergone enormous change in the process of construction. The transformation, it has undergone is crystallized below:

1. Justice Fazal (in minority, but in saner way that the majority) in Gopalan vs. state of Madras (1950 SCR) stated that the word 'established' - suggests "certain principles of justice which inhere in every civilized system of law" (p 180). The absence of the word "due processes in article 21 could not lead to a possible self-righteous and arbitrary use of the procedure;
2. The majority judgment in Menaka Gandhi vs. Union of India, A.I.R., 1978, S.C. 597 made it amply clear that whatever procedure is prescribed by the statute "cannot be arbitrary, unfair or unreasonable" (p.622-). If the procedure is arbitrary or so, the court would invalidate laws which prescribed and unjust, unfair or unreasonable procedure. The procedural 'due process' has been constructed out of the silent zone of article 21;
3. By a creative interpretation of the article 21, Justice P.N. Bhagwati enlarged the sweep of the procedure. In his words: "The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Art. 14 like and omnipresence and the procedure contemplated by Art. 21 must answer the test of reasonableness in order to be in conformity with Art. 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Art, 21 would not be satisfied."
4. The meaning of life under Art. 21 have been progressively and more affirmatively interpreted by the apex court 21 in the subsequent PIL cases. In this context, the amplitude of 'reasonableness' is widened to the extent of saving the life from arbitrary deprivation, and statutes forestall the slightest tinge of arbitrariness even in the common sense.
5. The "Human Rights Jurisprudence" which all the agencies of the government subscribe to, by virtue of the International Bill of Rights and Jus Cogens blatantly censures extra-judicial executions and other brutalities, committed by the states. The apex court of India has, however, overlooked the reasonableness aspect of the statute, and wantonly upheld the discriminatory law for extrajudicial execution - the AFSPA - as a good law.