Before going to the details of due process of law, let me give you a real-time
situation. Suppose you assume a condition when, anytime, for any reason, the
government authorities come for a domestic visit and search for your house,
belongings, or body.If authorities suspect you have committed a crime, they may
use any method required to coerce you into providing information.Without ever
knowing what you were accused of or having the chance to put up a defense, you
could spend the rest of your life in jail.
As law-abiding individuals for the most part, the treatment described above by
the government cannot be considered fair and just. India, luckily, is governed
by the notion of due process of law. The government must abide by established
laws when seeking to restrict or deny fundamental rights, such as a person's
right to life, liberty, or property.
It basically means that the government must
treat all of its citizens equally by complying with the law and following
established standards. The due process clause is not a right in and of itself.
Instead, it integrates a number of legal ideas that have evolved over time with
our contemporary understanding of what "justice" as a concept entails.
What Is Due Process Of Law:
The term "due process" describes how a person should be treated throughout a
standard court proceeding. For instance, before being condemned, the accused
must be given the opportunity to provide their own defense. Let's look at the
meaning of due process of law, which states that a person cannot be denied their
life, liberty, or property without adhering to the required legal procedures and
receiving the appropriate protections. Due process is therefore required by law
since it maintains a person's constitutional rights. The protection of due
process limits the power of the law and protects an individual's rights.
A common way to convey the concept of due process is as a request to the
government to treat the populace equitably. Despite the fact that the phrase is
usually unclear, many countries have legal systems that acknowledge some form of
due process. When a person's life or freedom is taken away by the government,
the due process clause must be fulfilled.
However, a clear definition of "due
process" is lacking. According to the idea of due process, the government must
uphold all of a person's legal rights. Due process protects citizens from state
wrongdoing and holds the government responsible for upholding the law.
Dicey's Prospective On Due Process Of Law:
Dicey's rule of law, which states that no one can be condemned or lawfully
compelled to suffer in person or property until there has been a specific legal
offense that has been proven in a suitable legal manner before a proper court of
law, is what distinguishes the English Constitution.
In other words, the rule of
law is opposed to any type of government that is based on the application of
sweeping, arbitrary, or discretionary constraints by those in positions of
authority. The appropriate application of a statute created as a result of
common law usages is all that Dicey's rule of law entails.
Types Of Due Process Of Laws:
The Two Aspect Of Due Process Of Law Defines As Follows:
Substantive due process and procedural due process are the two main
subcategories of constitutional due process. These divisions between the two
types of legislation lead to these groupings. Substantive law creates, defines,
and controls rights, while procedural law carries out the enforcement of those
rights or seeks redress when they are violated.
Substantative Due Process Of Law:
Substantive due process is the legal process of determining whether the
fundamental provisions of a piece of legislation are in accordance with the
Constitution. The constitutionality of the primary norm is more important to the
court than the justice of the legal system. Therefore, every type of review is a
type of substantive review, with the exception of those involving procedural due
process. It assumes that any legislation's substantive provisions will be
logical and not arbitrary.
It is a notion that permits courts to protect
specific basic rights from governmental intrusion. It draws a line between behaviours that courts consider to fall inside the jurisdiction of governmental
legislation or regulation and those that courts consider to be outside of it.It
demands that an individual's right to life, liberty, or property be violated on
the basis of the law's inherent legitimacy. For instance, a worker's right to
substantive due process safeguards him against being let go without a
justification, as required by law.
Procedural Process Of Laws:
The offended party should have an equal right to a hearing because it envisions
a reasonable process. A person's life, liberty, or property cannot be taken from
him without first following some general rules. Procedural due process
determines if a government agency violated someone's life or liberty without
following a just legal procedure. It is an offense against the rule of law and a
violation of due process when a government violates someone's rights without
following the text of the law. It can entail assessing the general fairness of
the legal system.
Dicey's rule of law, which states that no one can be punished or lawfully forced
to suffer in body or property until there has been a specific legal offense that
has been proven in a suitable legal manner before a proper court of law, is what
distinguishes the English Constitution. In other words, the rule of law is
opposed to any type of government that is based on the application of sweeping,
arbitrary, or discretionary constraints by those in positions of authority.
appropriate application of a statute created as a result of common law usages is
all that Dicey's rule of law entails. Due process has a long history that dates
back to the Magna Carta. The Magna Carta, was a personal agreement between King
John and the outraged upper classes and was not a law, laid the groundwork for
the concept of due process with respect to Section 39.
The common law system is shaped and raised by customary practice. The American
judicial system, however, took it a step farther and gave due process legal
legitimacy. The English colonists brought ideas like "the law of the land" and
"due process of law" to North America.
The US Congress adopted the first ten
Amendments, often known as the Bill of Rights, to the Constitution, integrating
human rights. Because it guarantees that a person's life, liberty, or property
cannot be taken from them without first complying with the necessary legal
procedures, the Fifth Amendment is very important . 14 th amendment gives the
state the due process of law
Status Of Due Process Of Law In India:
Due process in India has advanced significantly in two key ways:
- First, the interplay of Articles 14, 19, and 21 requires that "procedure
established by law" under Article 21 to be just, fair, and reasonable;
- The relationships between Articles 20, 21, and 22 as a corollary of
advancement under Article 21 has greatly accelerated this idea. Article 21
of the Constitution states that "No one shall be deprived of his life or
personal liberty except in the manner provided by law."
Despite the fact that Article 21 does not expressly specify any quality or norm
for the procedure, its status as a fundamental tenet of the criminal justice
system forces it to absorb radiation from related articles like Articles 20, 22,
14, and 19 in order to satisfy the demands of justice.
Article 21 of the Indian Constitution guarantees the preservation of life and
individual freedom. The Dr. Ambedkar-written laws must be followed if the state
is to take away someone's life, liberty, or property. This clause has generated
a lot of debate in the Constituent Assembly. Actually, Dr. Ambedkar borrowed
this concept from the Fourth and Fifth Amendments of the American Constitution.
One of the most important decisions the Constituent Assembly had to make was
whether to adhere to "due process of law" or the "method given by law." Mr. B.
N. Rau promoted the viewpoint of Associate Justice of the US Supreme Court
Justice Felix Frankfurter that the application of "due process of law" would
increase the number of pending case.
Constitutional Perspective On The Due Process Of Law:
In order to rule the nation in conformity with the common law system of the
United Kingdom, India adopted the parliamentary form of government. India also
adopted the adversarial system of government from Britain. The excellent Indian
Constitution establishes the legal framework for all domestic regulations. It
tries to consider every situation in which laws are required to sustain the
democratic process's flawless operation, making it one of the best world
constitutions in comparison.
The Indian form of democracy is distinct in itself
due to the Apex Court's skill and capacity to manage any extraordinary
occurrence that arises in the legal and political system. India attained freedom
after other countries throughout the world. The Indian Constitution is robust
enough to deal with unusual situations.
The Indian Constitution includes clauses about "Due Process of Law" that are
similar to those in the American Constitution. From an Indian perspective,
Article 21 of the Indian Constitution is the crucial clause that protects an
individual's rights to liberty and dignity.
The democratic system in India is divided into three pillars.
Each Has Its Own Functionalities And Areas Of Interest:
- The First Pillar's responsibility is to create legislation as part of the
- The Second Pillar is given the authority to carry out or implement the
laws produced by the First Pillar.
- The Third Pillar is given custody of the Constitution in order to
preserve the validity of the Constitution's fundamental principles.
The third wing's tasks are incredibly reliable because they operate as the
defender and custodian of the Constitution, regardless of the arbitrary actions
of the first or second wings. Everyone is treated equally and has equal access
to opportunities, according to the Indian Constitution. The third pillar's
sovereign power is the Supreme Court of India, which regulates both Indian
politics and the Constitution.
The architects of the Constitution specifically granted the Supreme Court the
power of judicial review, which entitles it to annul or reject acts that the
first pillar has approved if it is found that they violate the law. This is a
question about whether the "Due Process of Law" framework is fair, suitable,
righteous, and rigorous.
In addition, the Supreme Court of India strives to interpret the Indian
Constitution's provisions on due process by reading Articles 14 and 21. This is
carried out despite the fact that the Indians' authors willfully left out the
words "due process of law" from their constitution.
Important case law:
A. K Gopalan vs. State of Madras (1950)
AK Gopalan, a communist leader, was jailed in Madras Jail under the Preventive
Detention Act of 1950. Through a writ petition under Article 32 of the
Constitution, the petitioner challenged the Act's constitutionality on the
grounds that it violated freedom of movement under Article 19 (1) (d) and
personal liberty under Article 21.
In this case, the SC held to a literal interpretation of the words "procedure
established by law" and declared the Preventive Detention Act 1950 to be
constitutional and further elaborated the difference between the doctrine of due
process and the procedure established by law.
The court said:
"This is clear from the Drafting Committee of the Constitution in respect of
Article 21, that the Constituent Assembly formerly used the term "due process of
law' and later dropped it in favor of "procedure established by law'. The
expression "procedure established by law' must mean procedure prescribed by the
laws of the state.
Thus, the doctrine of due process was not enforced in India as the Ak Gopalan
case became a precedent. It was overruled finally in the following case:
Maneka Gandhi v Union of India (1978)
Maneka Gandhi, the petitioner, was a journalist whose passport was issued under
the Passport Act of 1967 on June 1, 1976. Maneka Gandhi received a letter from
the regional passport officer in New Delhi on July 7, 1977, in which she was
ordered to relinquish her passport in the public interest under section 10(3)(c)
 of the Act within 7 days of receiving the letter. She enquired the reasons
for impounding her passport.
The authorities, on the other hand, said that the reasons should not be revealed
in the "interest of the general public." In response, the petitioner filed a
writ petition under Art 32 stating that Section 10(3)(c) of the Act was
unconstitutional, citing violations of fundamental rights protected under
Articles 14, 19, and 21 of the Constitution.
The court declared the act in question to be violative in nature. It emphasized
the reasonability behind a law to be important, not just the procedure. With
regards to Article 21, the court held even though the phrase used in Article 21
is procedure established by law instead of due process of law as found in the
American constitution, the procedure must be free from arbitrariness and
irrationality. Thus establishing the rationale in India as- Procedure
Established by Law + The procedure should be fair and just and not arbitrary.
This formula in essence is the doctrine of due process, thus we can safely
conclude that the doctrine of due process isn't completely implemented as
implemented in the USA, but the driving forces behind the doctrine are followed
in India and thus the rights of people in India are protected.
The emphasis of case law is taken form the one of the article fof legal service
India Doctrine Of Due Process Of Law.
Written By: Ark Sharma