Procedure Established by Law vs Due Process of Law

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.

“Procedure Established by Law” and “Due Process of Law” are two legal principles that relate to the protection of individual rights and the application of law in legal proceedings. While these principles may seem similar, they have distinct implications and are used in different legal systems around the world.

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?

Also read: Sealed Cover Jurisprudence

Article 21 in The Constitution Of India

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

Article 21 of the Indian Constitution uses the term “Procedure Established by Law,” which means that no person shall be deprived of their life or personal liberty except according to a procedure established by law.

This implies that if the government follows the prescribed legal procedures while depriving a person of their life or liberty, it is constitutionally valid, irrespective of whether the procedure is fair, just, or reasonable.

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 the 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

“Procedure Established by Law” is a principle that is primarily associated with legal systems based on common law, including India. In countries following this principle, the government enacts laws, and individuals must comply with those laws.

The government has the authority to set the procedures and processes for implementing and enforcing these laws. Under this principle, as long as the government follows the procedures it has established, its actions are considered valid, even if they may appear unfair or unjust to individuals.

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.

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 are 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 the 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 the 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 sees if the law made is fair, just, and not arbitrary.

If SC finds that any law is not fair, it will declare it null and void. This doctrine provides for a 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 the state enacts 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.

“Due Process of Law” is a legal principle commonly found in legal systems based on the common law tradition, particularly in countries like the United States.

• Under this principle, the government must follow fair and just procedures before depriving an individual of life, liberty, or property. Due process ensures that individuals have the right to be heard, to present evidence, and to be treated fairly before any government action is taken against them.

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.

Also read: Must Know Articles of Indian Constitution

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

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 into the Constitution of the United States.

Unlike “Procedure Established by Law,” “Due Process of Law” requires the government to respect certain fundamental rights and treat individuals fairly and impartially. It places a higher emphasis on individual rights and procedural safeguards.

In the United States, the Fifth and Fourteenth Amendments of the U.S. Constitution include the Due Process Clause, which prohibits the government from depriving any person of life, liberty, or property without due process of law.

Procedure established by law: Maneka Gandhi vs Union of India case (1978)

In India, a liberal interpretation is made by the judiciary after 1978 and it has tried to make the term ‘Procedure established by law’ synonymous with ‘Due process’ when it comes to protecting individual rights.

In the Maneka Gandhi vs Union of India case (1978) SC held that – the ‘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.

Conclusion