In this post, we shall see the meaning of two important terms often cited in
Supreme Court Judgments ie. Procedure Established by Law and Due
Process of Law.
The former is Indian constitutional doctrine and the latter is American, but now
the boundaries are very narrow. Let’s start our discussion with Article 21 of
the Indian Constitution. What does it say?
Article 21 in The Constitution Of India
21. Protection of life and personal liberty: No person shall be deprived of
his life or personal liberty except according to procedure established by law.
Procedure Established by Law vs Due Process of Law
As we have seen, the term “procedure established by law” is used directly in
the Indian constitution. Due Process of Law has much wider significance, but
it is not explicitly mentioned in Indian Constitution. The due process doctrine is
followed in the United States of America, and Indian constitutional framers
purposefully left that out. But in most of the recent judgments of the supreme
court, the due process aspect is coming into the picture again. Let’s see the
difference in detail.
Case 1: Procedure Established by Law
It means that a law that is duly enacted by the legislature or the concerned
body is valid if it has followed the correct procedure. Following this doctrine
means that, a person can be deprived of his life or personal liberty according
to the procedure established by law.
UPSC Prelims 2020 Test Series - Register Now!
So, if Parliament passes a law, then the life or personal liberty of a person can
be taken off according to the provisions and procedures of that law.
This doctrine has a major flaw. What is it?
It does not seek whether the laws made by Parliament is fair, just and not
arbitrary.
“Procedure established by law” means a law duly enacted is valid even if it’s
contrary to principles of justice and equity. The strict following of the
procedure established by law may raise the risk of compromise to life and
personal liberty of individuals due to unjust laws made by the law-making
authorities. It is to avoid this situation, SC stressed the importance of due
process of law.
Case 2: Due Process of Law
Due process of law doctrine not only checks if there is a law to deprive the life
and personal liberty of a person but also see if the law made is fair, just and
not arbitrary.
If SC finds that any law as not fair, it will declare it as null and void. This
doctrine provides for more fair treatment of individual rights.
Under due process, it is the legal requirement that the state must respect all of
the legal rights that are owed to a person and laws that states enact must
conform to the laws of the land like – fairness, fundamental rights, liberty etc.
It also gives the judiciary to access fundamental fairness, justice, and liberty of
any legislation.
The difference in layman’s terms is as below: Due Process of Law =
Procedure Established by Law + The procedure should be fair and just
and not arbitrary.
Extra Articles worth reading
1. Of constitutional ‘due process’: The Hindu – Are we shifting from original
constitutional norms?
2. On MCOCA: Tehelka – A Law Inconsistent With The Idea Of India
3. Due Process of law: Manupatra.
History of Due Process of law
The due process developed from clause 39 of the Magna Carta in England.
When English and American law gradually diverged, due process was not
upheld in England but did become incorporated in the Constitution of the
United States.
Change of situation in India: Maneka Gandhi vs Union
of India case (1978)
In India, a liberal interpretation is made by judiciary after 1978 and it has tried
to make the term ‘Procedure established by law’ as synonymous with ‘Due
process’ when it comes to protecting individual rights.
In Maneka Gandhi vs Union of India case (1978) SC held that – ‘Procedure
established by law’ within the meaning of Article 21 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 Article 21 would not be satisfied. Thus,
the ‘procedure established by law’ has acquired the same significance in India
as the ‘due process of law’ clause in America.
