What is “Procedure established by law”?
“Procedure established by law” is a phrase borrowed from Article 31 of the post-World War 2 Japanese Constitution. The literal meaning of the phrase Procedure established by law is, whether the law that has been enacted by the Parliament or the relevant authority is lawful in terms of – proper procedure has been followed during the enactment.
What is “Due Process of law”?
“Due Process of law” is found in the Fifth Amendment to the American Constitution, which guarantees that no one can be deprived of life, liberty or property without “due process of law”.
The US Supreme Court had interpreted “due process of law” in a number of cases related to personal liberty and had applied it in many to strike down laws.
What is the difference between “Procedure established by law” and “Due process of law” in a nutshell?
The difference between “procedure established by law” and “due process of law” is that under the
former only the decisions of the executive will be tested by the courts with the touchstone of fairness but
under the latter, the courts will examine the fairness of not only the decisions of the executive but also that of a law passed by the legislature.
What are the differences between Procedure established by law and Due process of law?
Procedure established by law means that a law passed by the Parliament would be valid if it had undergone the proper procedure. On the other hand Due process of law theory examines not only whether an existing law takes away a person’s life and personal liberty but also examines whether the law is fair, just, and not arbitrary.
Procedure established by law originated from the British Constitution whereas Due process of law originated from the Constitution of the United States.
Article 21 of the Indian Constitution mentions the phrase Procedure established by law. However the Indian Constitution does not explicitly mention the phrase due process of law.
The scope of Procedure established by law is narrower. Whereas the scope of due process of law is broad.
Procedure established by law determines the legality of a statute by examining whether the procedure for establishing it has been followed properly or not. On the other hand Due process of law determines that the law in question is not arbitrary and unfair.
Procedure established by law provides limited power in the hands of the judiciary whereas Due process of law provides greater power in the hands of the judiciary.
Procedure established by law safeguards individuals from the arbitrary actions of only the executive. On the other hand Due process of law protects individuals from both arbitrary executive and legislative action.
Under Procedure established by law, strict adherence to the legal procedure raises the risk of negatively impacting life and individual liberty. While Due process of law pay attention to all the legal rights and gives personal privacy to all individuals.
Procedure established by law emphasises more on the wisdom of the legislature and the power of public belief in the nation. On the other hand Due process of law gives a wide range of power in the control of the Judiciary.
What are the similarities between Procedure established by law and Due process of law?
Although the application of the doctrine of Procedure established by law and Due process of law are different but there are certain similarities between them which are mentioned below:
In the Indian polity, both the Procedure established by law and the Due process of law are essential principles.
The Supreme Court is the highest court in both situations. The Supreme Court of India decides on the legality of the legislation.
The Procedure established by law is specified in the Indian Constitution and therefore is lawful in the country. However, in several recent Supreme Court decisions, the doctrine of Due process has been brought back into focus.
What is the position in India with respect to Procedure established by law and Due process of law?
Article 21 of Indian Constitution declares that no person shall be deprived of his life or personal liberty except according to procedure established by law.
In the famous Gopalan case (A K Gopalan v. State of Madras,1950), the Supreme Court has taken a narrow interpretation of the Article 21. It held that the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action.
This means that the State can deprive the right to life and personal liberty of a person based on a law. This is because of the expression ‘procedure established by law’ in Article 21, which is different from the expression ‘due process of law’ contained in the American Constitution. Hence, the validity of a law that has prescribed a procedure cannot be questioned on the ground that the law is unreasonable, unfair or unjust.
But, in Menaka case (Menaka Gandhi v. Union of India, 1978) the Supreme Court overruled its judgement in the Gopalan case by taking a wider interpretation of the Article 21. Therefore, it ruled that the right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just. In other words, it has introduced the American expression ‘due process of law’. In effect, the protection under Article 21 should be available not only against arbitrary executive action but also against arbitrary legislative action.
Due Process of Law is a principle that makes sure that the procedure used to make a law is free from arbitrariness and irrationality.
Does ‘Due Process of Law’ follows the principle of natural justice?
In essence ‘Due Process of Law’ mean the principle of natural justice. Natural justice is an expression of English common law, and involves a procedural requirement of fairness. In the principle of Due Process of Law, fairplay is ensured by giving every party a right to be heard which in essence is Audi Alteram partem or the rule of fair hearing (hear the other side) which is the very basis of the principle of natural justice.
Natural Justice implies fairness, reasonableness, equity and equality. Natural Justice represents higher procedural principles developed by judges which every administrative agency must follow in taking any decision adversely affecting the rights of a private individual.
PRACTICE QUESTIONS
QUES . In essence, what does ‘Due Process of Law’ mean? UPSC 2023
(a) The principle of natural justice
(b) The procedure established by law
(c) Fair application of law
(d) Equality before law
Ans (c) Explanation: ֍ Due process of law is a legal principle that requires governments to follow fair and reasonable procedures when depriving individuals of their life, liberty, or property. It also requires governments to pass laws that are just, fair, and reasonable. ֍ The difference between “procedure established by law” and “due process of law” is that under the former only the decisions of the executive will be tested by the courts with the touchstone of fairness but under the latter, the courts will examine the fairness of not only the decisions of the executive but also that of a law passed by the legislature. Therefore, option (c) is the correct answer
