The concept of Due process was triggered by the abuse of power by government
authorities. To ensure protection of the legal rights of the individuals from
such arbitrariness "Due Process" acts as a shield and later it was impleaded as
a fundamental in law. Due process is a cornerstone of a just and fair legal
system.
It protects individual rights, ensures government accountability, promotes
public trust in the legal system, and allows for the progressive development of
legal standards. Due process is a critical mechanism in maintaining the checks
and balances within a democratic system.
Introduction
The term 'Due Process' plays a crucial role in resisting a legal right of an
individual. It is a legal mandate that the government must respect all the legal
rights owed to a person according to the law of the land. The analysis of due
process in India, the USA and the UK is significant as it establishes distinct
legal traditions a common law in UK, a combination of common law and a written
constitution in the USA and a blend of common law, statutory law and
constitution law in India. Such an analyze enhances the understanding of how
different legal system addresses fundamental rights, contributing to a more
informed and comprehensive perspective on the rule of law.
Due Process Definition
Due process is an underlying legal principle that requires the government to
respect and uphold all the legal rights that are owed to a person under the law.
This principle is essential in ensuring that the government does not arbitrarily
or unfairly deprive individuals of their rights, particularly concerning life,
liberty, and property.
Historical Development Of Due Process
The first country to borrow the ' Due Process' is England. The original
establishment of ' Due Process' began from Article 39 of Magna Carta (1215). The
expression "due process of law" itself wasn't used in the Magna Carta, but the
document laid the foundation for the idea by guaranteeing that no one could be
penalized or deprived of their rights without a legal judgment by their peers or
by the law of the land.
The conception of due process latterly told legal systems around the world,
particularly in the United States, where it came an abecedarian indigenous
principle. The due process was espoused in the Fifth correction of US
Constitution in 1791 by the Federal Government. Latterly, following the Civil
war, the State Government espoused "Due Process" by its Fourteenth Correction in
the time 1868.
India espoused the conception of due process in its legal system through its
Constitution, though the path to its relinquishment was nuanced and evolved over
time. The Indian Constitution firstly included the conception of "procedure
established by law" rather than "due process of law" in Article 21.
Constitutional & Legal Framework
United Kingdom:
The United Kingdom doesn't have a written constitution, therefore an Uncodified
Constitution, which makes it unique among other popular nations. The whole
constitution relies upon the Common Law, Statues and the Conventions. Judicial
opinions and precedents act as a backbone in defining rights and procedures,
including those related to ' due process'. Laws passed by the Parliament,
similar as the Magna Carta (1215), the Bill of Rights (1689) and other recent
laws passed form another crucial source of the UK's Constitution.
The Human Rights Act, 1998 was a corner piece of legislation that incorporated
the rights outlined in the European Conventions on Human Rights (ECHR) into UK
law. This was a significant step in codifying certain rights and making them
enforceable in UK courts. Article 6 of the ECHR guarantees the right to a fair
trial, which is a core aspect of due process. It ensures that everyone is
entitled to a fair and public hail within a reasonable time by an independent
and unprejudiced bench.
USA:
The Due process is abecedarian element of the U.S. Constitution appearing in the
Fifth and Fourteenth emendations. The Fifth Amendment is applied only to the
Federal government, icing that any civil action that deprived a person of life,
liberty, or property had to follow a fair legal process. Following the Civil
War, the Fourteenth Amendment was espoused in 1868. It extended the due process
demand to the States.
This was a significant expansion, icing that state governments, like the Federal
government, couldn't arbitrarily deprive individualizes of their fundamental
rights. Over time, U.S. courts, particularly the Supreme Court, have interpreted
and expanded the meaning of due process.
- Procedural Due Process: This ensures that the government follows
fair procedures before depriving someone of life, liberty, or property. It
requires notice, a fair hearing, and an impartial decisionmaker.
- Substantive Due Process: This doctrine protects certain
fundamental rights from government interference, even if the procedures used
are fair. The Supreme Court has used substantive due process to protect
rights related to privacy, marriage, and bodily autonomy, among others.
India:
According to Article 21 of the Indian Constitution states that no person can be
deprived of his life or liberty except by the procedure of law. This provision
serves as fundamental safeguard of life and liberty, but the interpretation of
"procedure established by law" has evolved significantly since the Constitution
came into effect. When the Indian Constitution was espoused in 1950, Article 21
was interpreted hardly.
The expression "procedure established by law" was understood to mean any
procedure specified by a validly legislated law of the State. The early
interpretation was that as long as a law was properly passed by the Parliament
or a state council, and the government followed the procedure set out in that
law, it would be considered legal, indeed if the procedure was illegal or
unjust.
Judicial Interpretation:
United Kingdom:
- ØR v. Secretary of State for the Home Department, ex parte Simms
[2000] 2 AC 115 (HL).
The case involved two prisoners, John Simms and Raymond O'Brien, who were
serving life sentences for murder. They argued that their convictions were
wrongful and sought to give interviews to journalists to prove their
innocence.
The prison regulations at the time prohibited prisoners from giving oral
interviews to journalists unless the journalist agreed not to use the
information in the media. The prisoners challenged this regulation as a
violation of their rights to freedom of expression under Article 10 of the
European Convention on Human Rights (ECHR).
The House of Lords ruled in favor of the prisoners, holding that the
regulation was unlawful as it disproportionately restricted their rights
under Article 10 of the ECHR. The Court emphasized the importance of freedom
of expression as a fundamental right, particularly in the context of
allowing prisoners to challenge their convictions. It held that the
government could only restrict this right if it was absolutely necessary and
proportionate to achieve a legitimate aim.
USA:
- Miranda v. Arizona, 384 U.S. 436 (1966)
The ruling set a precedent that any statement made by a suspect during
custodial interrogation is inadmissible in court unless the prosecution can
show that the suspect was informed of and waived their rights knowingly,
voluntarily, and intelligently. The Miranda decision has had a profound
impact on law enforcement in the United States, mandating the issuance of
"Miranda warnings" before questioning suspects.
- Gideon v. Wainwright, 372 U.S. 335 (1963).
A landmark case decided by the United States Supreme Court in 1963. The case
established the right to legal counsel for all defendants in criminal cases,
regardless of their ability to pay for an attorney. Clarence Earl Gideon was
charged with felony breaking and entering in a Florida state court in 1961.
Gideon could not afford a lawyer and requested that the court appoint one
for him. However, under Florida law at the time, counsel could only be
appointed for defendants in capital cases, not for those charged with
noncapital offenses. Gideon was forced to represent himself at trial.
Despite his efforts, he was convicted and sentenced to five years in prison.
From prison, Gideon filed a handwritten petition to the U.S. Supreme Court,
arguing that his conviction was unconstitutional because he had been denied
the right to legal counsel. The Court held that the Sixth Amendment right to
counsel is a fundamental right essential to a fair trial, and, through the
Fourteenth Amendment, this right is applicable to the states. The ruling
required that states provide an attorney to defendants in criminal cases who
cannot afford to hire their own lawyers.
India:
- A.K. Gopalan v. State of Madras, AIR 1950 SC 27, 1950 SCR 88
A.K. Gopalan was a prominent communist leader in India who was detained
under the Preventive Detention Act, 1950. Gopalan challenged his detention,
arguing that it violated his fundamental rights under Articles 19, 21, and
22 of the Indian Constitution.
He contended that his detention without trial was unconstitutional as it
deprived him of his personal liberty without following a fair and just
procedure. He also argued that the Preventive Detention Act itself was
unconstitutional, as it violated his rights to freedom of movement (Article
19(1)(d)) and personal liberty (Article 21).
The Court ruled that "procedure established by law" under Article 21 refers
to a procedure that is validly enacted by the legislature. It does not
require the procedure to be just, fair, or reasonable, as long as it follows
the law. The decision reflected a narrow interpretation of Article 21,
focusing on the literal meaning of "procedure established by law" and
rejecting the incorporation of substantive due process.
- Maneka Gandhi v. Union of India, (1978) 1 SCC 248, AIR 1978 SC 597
The landmark case Maneka Gandhi v. Union of India (1978) marked a turning
point in the interpretation of Article 21. The petitioner, Maneka Gandhi,
had her passport impounded by the government without being given an
opportunity to be heard. She challenged this action as a violation of her
right to personal liberty under Article 21. The Supreme Court expanded the
scope of Article 21 by ruling that the "procedure established by law" must
be "fair, just, and reasonable."
The Court held that any law depriving a person of life or personal liberty must
satisfy the requirements of reasonableness and fairness, thus incorporating
elements of due process into Indian law. The Court also emphasized that Article
21 should be read in conjunction with Articles 14 (right to equality) and 19
(protection of certain rights regarding freedom of speech, etc.), making it
clear that laws affecting personal liberty must pass the test of reasonableness
under these provisions as well.
Conclusion
Due Process acts as a mechanism to gain individual trust over judiciary. It acts
as a shelter to the individuals who are exploited by the arbitrary acts of the
government authorities. Due Process protects individuals from unjust, unfair and
arbitrary acts of the government.
Due process plays a crucial role in many countries it protects minorities and
empowers the marginalized communities. It promotes fairness and justice and
helps in progressive development of the country. It is a vital mechanism
ensuring check and balances in a Democratic country.
Please Drop Your Comments