Authored By: Tanushree Patnayak
Lloyd School of Law
INTRODUCTION
Since the Indian Constitution’s establishment, the judiciary in India has consistently directed its development. One such example of judicial interpretation that has benefited Indian democracy is the “procedure established by law”.
The American legal system is credited with giving rise to the “due process” theory; yet, the Indian Constitution does not specifically state “due process of law,” in contrast to the US Constitution. The Indian Constitution makes use of the “procedure established by law” theory, which was purposefully added to the document following extensive discussion among the members of the Constituent Assembly. The Indian judiciary has made an effort to downplay the distinctions between the two schools of thought. Through its rulings, the judiciary has gained the authority to declare legislation that violates citizens’ rights to be unconstitutional. If the “procedure established by law” doctrine had been adhered to in its strictest form, this would not have been conceivable.
The purpose of this article is to clarify the distinctions between the two theories as well as India’s current stance on the “procedure established by law” that is referenced in Article 21 of the Constitution. This article has also covered the judiciary’s involvement in extending the reach of Article 21.
DUE PROCESS OF LAW
The concept of ‘Due Process’ is originated from the English common law, in 1215 the document MAGNA CARTA was signed which explains the rights English subjects against the king. This document includes a clause which states – “No free man shall be seized, or imprisoned except by the lawful judgment or by the law of land”. The concept of law of land laid down in Magna Carta was transformed into the phrase of ‘due process.’
Traditionally the due process was divided into two categories; (i) Substantive due process of law and (ii) Procedure due process. Substantive due process meant that even if the procedure is followed and any law is infringing the fundamental rights may be deemed invalid, whereas procedure due process is a legal process which ensures the fair legal proceeding as a person deprived of his life, liberty or property is properly heard.
DICHOTOMY: SUBSTANTIVE DUE PROCESS
This process holds that core substantive rights are protected by the Due Process Clause in addition to requiring “due process,” or fundamental procedural rights. Despite the government’s wishes to the contrary, “substantive” rights are those general rights that reserve to the person the authority to possess or do specific things. These include freedoms such as freedom of religion and speech. Instead, “procedural” rights specify how the government can legitimately take away someone’s freedom, property, or life when the law otherwise grants them the authority to do so.
These clauses not only ensure that the government must always use proper and just procedures (or “processes”) when punishing someone or taking away their life, freedom, or property, but they also ensure that no matter what procedures are used, a person’s life, freedom, or property cannot be taken without proper governmental justification. As a result, the “Due Process” provision also becomes a “Due Substance” clause. Under substantive due process, all of our most valued rights are fully protected across the country.
The doctrine’s proponents contend that the Due Process Clause was purposefully drafted in a broad manner to allow the Court discretion in its interpretation and that no procedure can be just if it is being used to unfairly deny someone their fundamental human rights. According to critics, the phrase “Substantive Due Process” is oxymoronic, and a rational individual with only a sixth-grade understanding of English could not possibly construe the “Due Process” Clause to guarantee anything other than procedural rights. When the Court employs judicial review to uphold these fictitious constitutional rights, critics in America claim that they are stealing state legislatures of their rightful authority to enact laws.
STATUS OF AMERICA
The 5th Amendment of the US Constitution lays down inter alia that “no person shall be deprived of his life, liberty or property, without due process of law.” In the 14th amendment clause of due process in 1868 declares, ‘Nor shall any state deprive any person of life, liberty or property, without due process of law’. The word ‘due’ in this clause is interpreted to mean ‘just’ , ‘proper’ or ‘reasonable’ , according to the judicial review. The court may declare a law invalid if it does not accord with its notion of what is just and fair.
Under the concept of ‘due process’ , the Courts become the arbiter of reasonableness of both substantive as well as procedural provisions in a law. The word ‘due’ is of variable content in the ‘due process’ concept. It denotes that the law should be just but what is reasonable and not arbitrary. At first, the word ‘due’ was absent in Article 21. This was very significant omission for the entire efficacy of the procedural due process concept emanates from the word ‘due.’ Secondly, the draft constitution had contained the words ‘due process of law’ but these words were later dropped that the present phraseology adopted instead[1]. This was strong evidence to show that the Constituent Assembly did not desire to introduce into India the concept of procedural due process. This was done mainly to avoid the uncertainty surrounding the due process concept in the USA. The procedure established by law has to be ‘due process.’ Due process of law was extracted from the Article 39 of the Magna Carta and later it was added in the US Constitution, after the 5th amendment of the American Constitution Dr. B.R. Ambedkar was influenced and included this concept in the Constitution of India.
STATUS IN INDIA AND ITS EVOLUTION
Customary practice shapes and nurtures due process in the common legal system. The architects of the Constitutional amendments intended for their amendments to only apply to federal legislation, not state laws, as the Bill of Rights’ history made abundantly evident. Consequently, the 14th Amendment has granted the state due process. The Supreme Court of India attempts to read the Indian Constitution’s due process clause through the interpretation of two articles, specifically Articles 14 and 21, despite the Constitution’s authors’ wilful exclusion of this clause. The Indian judiciary therefore gained extensive ability to oversee and declare any action taken by the state or union, whether it is legislative, executive, or any other public authority, “arbitrary” or “unreasonable.”2 The progression toward achieving justice throughout time has transformed a barbaric and primitive legal system into a civilized one. Through the integration of all its components and the application of the equality and fairness principles to each one, the due process concept has further enhanced the legal method.
PROCEDURE ESTABLISHED BY LAW
This term has been enshrined in the Article 21 of the Constitution of India which states “No one shall be deprived of his life and personal liberty unless in accordance with the procedure established by law.” [2]
As per the Oxford Dictionary, the term ‘established’ implies “to fix, settle, initiate, or regulate by statute or contract.” The term ‘established’ implies an authority that sets the boundaries. This authority, according to the word, might be either the Parliament or a written agreement between the parties. As a result, there is no reason for assigning the definition of ‘jus’ to ‘law’ in Article 21.
“Procedure established by law” refers to a procedure that has been specified by state legislation or laid down by statute. Six it suggests that the process by which an individual’s “life” and “personal liberty” might be deprived must be outlined in a law that the government has enacted. A person may be deprived of their life if the legal process has been adhered to, regardless of how arbitrary or unfair the process may have been. The Parliament has been bestowed with extensive powers under this philosophy. The concept of “Procedure established by law” is limited in its application and limits the authority of the judiciary. It is not permitted for the judiciary to determine if the process violates natural or not.
The basic meaning that it holds states that a law passed by the parliament would be valid if it passes or follows the proper procedure of the same. In comparison to the ‘due process of law’ this term has a narrower scope thus gives limited power in the hands of judiciary. It holds the strict adherence in the legal procedures so that no individual’s liberty shall be affected. This term follows the doctrine which put more emphasis on public and protecting them.
HISTORY
This term has been borrowed in our constitution from Article 31 of the Japanese Constitution, 1946.Before the constituent assembly on April 23, 1947, the advisory group on fundamental rights presented draft article 15, which subsequently became article 21 of the Indian Constitution, with the following clause:
“No person shall be deprived of his life, liberty or property without due process of law”
The members of the constituent assembly debated upon the terms used and when the final draft of the Constitution was submitted in February 1948, the term “personal” was added before liberty and “due process of law” was replaced by “procedure established by law”.
Mr. B. N. Rao, Constitutional Advisor, was of the belief that judicial review would hamper the introduction of beneficial social legislation. Rao met US Supreme Court Justice Felix Frankfurter during his visit to USA. Justice Frankfurter told Rao that the power of judicial review implicit in the due process clause was undemocratic and burdensome on the judiciary9. This meeting fortified the beliefs of Rau. Consequently, he protested against the introduction of “due process of law” in the Indian Constitution and persuaded the constituent assembly to replace it with “procedure established by law” and was successful in doing so.
Many members, including B.R. Ambedkar, were unhappy with the wording of the Article 21. Most of the members argued that the wide powers imparted to the legislature by “procedure established by law” could be detrimental for the rights and liberties of the citizens as Judiciary is placed subservient to the Parliament. They were anxious about cruel preventive detention laws and arbitrariness of the executive. To resolve this issue, draft Article 15A (which later became article 22 of the Constitution) was introduced to prevent arbitrary arrests.[3]
EVOLUTION OF THIS TWO DOCTRINES AS PER CASE LAWS
1] A.K. Gopalan v. State of Madras (1950)[4]
In this case, the Supreme Court ruled that Article 21 of the COI did not require Indian courts to apply a due process of law.
2] Rustom Cooper v. Union of India (1970)[5]
This case overruled the judgment of A. K. Gopalan case and gave prominence to basic structure; the basic structure is homogeneous to the due process of law under American Constitution.
3] Maneka Gandhi v. Union of India (1978)[6]
This case was based upon the due process of law. It denied the arbitrary nature of any law restricting life and personal liberty of an individual.
4] K. S. Puttaswamy v. Union of India (2019)[7]
In this case, it was stated that the substitution of due process of law; by procedure established by law by the Drafting Committee has made it more cryptic and ambiguous.
5] Indian Social Action Forum (INSAF) v. Union of India (2020)[8]
The Supreme Court did not use the due process of law but stated that the objectives of legislative body behind adding any provision must be complied with while interpreting and executing it.
Through these cases, the judiciary developed the idea of due process of law and legally mandated procedure, which in turn gave these terms a new meaning in the modern day.
CONCLUSION
Although the need of reasonableness of procedure was established by J. Bhagwati in Maneka Gandhi in Articles 21 through 14, some courts in the case have interpreted “procedure established by law” as “due process of law,” which the constitution authors purposefully avoided. Despite adopting and borrowing many elements from the US constitution, the Indian constitution does not embrace the American concept of the “Due process of law” in its full and formal sense; instead, the judiciary is left to determine whether a procedure is reasonable. However, as mentioned, this idea is enshrined in the Indian Constitution, particularly in Article 21. In examining the limited perspective of Article 21 as presented in the Gopalan Case, one can discern that the judiciary appeared to be ensconced in an isolated realm, detached and indifferent to the societal realities that lie at the very foundation of legal principles – the essence of nature itself. A value of natural justice was being undermined by the judiciary. The Maneka Gandhi case’s astounding verdict was the only thing that drastically changed the situation in India.
[1] The Framing of the Indian Constitution,III, 218(1968)
[2] The Constitution of India 1950, art. 21
[3] https://articles.manupatra.com/article-details/DUE-PROCESS-OF-LAW-VS-PROCEDURE-ESTABLISHED-BY-LAW-AND-INDIAS-POSITION
[4] A.K. Gopalan v State of Madras [1950] AIR 1950 SC 27.
[5] Rustom Cooper v Union of India [1970] SCR (3) 530
[6] Maneka Gandhi v Union of India [1978] 2 SCR 62.
[7] K.S. Puttaswamy v Union of India [2019] 1 SCC 248.
[8] Indian Social Action Forum v Union of India [2020] SC 1363.
