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Due process of law

Due process of law

September 27, 2022

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This article is written by Daisy Jain, from the Institute of Law, Nirma University. This is an exhaustive article that deals with the Indian interpretation of the due process of law, Dicey’s perspective, and the historical evolution of the due process of law.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Suppose for a moment that you reside in a nation where the following circumstances are real:

Anytime, for any reason, the authorities can 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 defence, you could spend the rest of your life in jail.

Now, as most of us are law-abiding citizens, the treatment mentioned above by the authorities cannot be treated as fair and just. Fortunately, the idea of due process of law governs India. When attempting to limit or deny fundamental rights, such as a person’s right to life, liberty, or property, the government must adhere to legally valid laws. Essentially, it means that the government must respect its people equally by abiding by the law and obeying the rules in place. Due process is not, in and of itself, a specific right. Instead, it combines a variety of legal principles that have developed over the years with our modern sense of what constitutes “justice” as a notion.

Understanding the meaning of due process of law

Let’s first examine the definition of due process before discussing the meaning of due process in law. Due process refers to just, rational, fair, and fair treatment under the regular judicial process. For instance, the accused must be given the chance to present their own defence before being sentenced. Let’s examine the definition of due process of law, which stipulates that a person cannot be deprived of their life, liberty, or property without following the right legal processes and protections. Therefore, due process upholds a person’s constitutional rights, which is a legal necessity. Due process safeguards a person’s rights and regulates the power of the law.

The understanding of due process is usually presented as a directive to the government not to treat the people unfairly. Although the term is frequently ambiguous, many nations recognize some type of due process under their legal systems. The due process provision must be followed when the government takes away someone’s life or freedom. However, the word “due process” lacks a precise definition. The notion of due process states that every legal right a person has under the law must be respected by the government. Due process safeguards people from state misconduct and makes the government accountable to the law of the land.

Dicey’s perspective on due process of law

Two aspects of due process of law

Constitutional due process typically falls into two categories; those are substantive due process and procedural due process. These classifications result from a divide between two categories of legislation. While procedural law carries out the enforcement of those rights or seeks compensation when they are violated, substantive law establishes, defines, and controls rights.

Substantive due process

The judicial examination of whether the fundamental elements of the legislation are consistent with the Constitution is known as substantive due process. Rather than the fairness of the legal system, the court is more interested in the constitutionality of the main norm. Every type of review, aside from those involving procedural due process, is, therefore, a type of substantive review. It anticipates that the substantive provisions of any legislation should be rational and not arbitrary in nature. It is a principle that enables courts to defend particular fundamental rights against interference from the government. It establishes the boundary between the actions that courts deem to be within the ambit of governmental regulation or legislation and those that courts deem to be outside of its purview. It calls for the inherent legitimacy of the law to infringe upon an individual’s right to life, liberty, or property. For example, an employee’s right to substantive due process protects him against being fired without a valid reason, as is required by law.

Procedural due process

It envisions a reasonable process, meaning the aggrieved party should have an equal right to a hearing. It refers to the general procedures that must be followed before a person’s life, liberty, or property can be taken from him. Whether a government body has violated a person’s life or liberty without following a fair legal process is determined by procedural due process. When a government violates someone’s rights without according to the letter of the law, it is an offence against the rule of law and a violation of due process. It might entail an examination of the overall fairness of a legal process.

Historical evolution of due process of law

The English Constitution is characterised by Dicey’s rule of law, which holds that no person can be punished or legally forced to suffer in body or property unless there has been a specific legal violation that has been proven in a proper legal manner before a proper court of law. In other words, every form of government predicated on the use of broad, arbitrary, or discretionary powers of restraint by those in positions of authority is opposed to the rule of law. Dicey’s rule of law is nothing more than the proper administration of a statute that resulted from the common law’s prevailing usages. It is possible to trace the history of due process back to the Magna Carta. The Magna Carta, which was only 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 Section 39.

The common law system’s due process is moulded and nurtured by customary practice. However, the American legal system went a step further and granted due process statutory legitimacy. English colonists introduced concepts like “due process of law” and “the law of the land” to North America. The first ten Amendments, also referred to as the Bill of Rights, were added by the US Congress to the Constitution, incorporating human rights. The Fifth Amendment is crucial because it states that a person’s life, liberty, or property cannot be taken away from them without following the required legal procedures. The Bill of Rights history made it very evident that the architects of the Constitutional amendments only intended for them to be applied to federal legislation, not state ones. The 14th Amendment has thereby given states the right to due process.

Indian interpretation of the due process of law

In the Indian Constitution, there is not a single mention in any of the clauses of the phrase “due process of law.” It has thus broken out of the golden triangle formed by Articles 14, 19, and 21. According to judicial interpretations, Article 21’s reference to “procedure established by law” has been judicially interpreted as “due process of law.” The objective of the Drafting Committee in using the phrase “procedure established by law” in Article 21 was to prevent social revolution from occurring and to avoid uncertainty by giving the court precedence. With regard to A.K. Gopalan v. Union of India (1950), the Supreme Court of India ruled that Article 21 is a full code and does not require the application of the natural justice principle or the reasonableness of Article 19 to be valid. When a person is arrested using a legal procedure, the court’s opinion at the time was that the person cannot appeal his custody.

As time went on, the judiciary’s perspective changed from procedural due process to legally required procedure. Rustom Cavasjee Cooper v. Union of India (1970), also known as the Bank Nationalisation decision, overruled the Goplan case and determined that fundamental rights are not a comprehensive code. Parliament attempted to overturn the Bank Nationalisation case ruling with the 24th and 25th amendments. Additionally, the parliament established its authority through Articles 13 and 368. The DPSP’s Article 31-C protected the law from judicial review. As long as it doesn’t go against the “fundamental structure of the Constitution,” Parliament’s ability to change the Indian Constitution is acceptable. The theory of basic structure is analogous to the substantive due process of law in the USA. In India, Maneka Gandhi v. Union of India (1978), which included the idea of non-arbitrariness, served as the precedent for what is known as “due process of law.” The court ruled that no law created to deny someone their life and personal freedom in accordance with Article 21 should be arbitrary, unfair, or unreasonable.

Due process of law: status of India

The evolution of due process in India has been greatly enhanced in two key areas: first, the principle of “procedure established by law” under Article 21 is necessary to be just, fair, and reasonable because of the interplay of Articles 14, 19, and 21; and second, the relationships between Articles 20, 21, and 22 as a corollary of advancement under Article 21 has greatly accelerated this notion. According to Article 21 of the Constitution, “No one shall be deprived of his life or personal liberty unless in accordance with the method established 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.

The preservation of life and individual freedom is guaranteed by Article 21 of the Indian Constitution. The state cannot take away someone’s life, liberty, or property without following the rules of the law written by Dr. Ambedkar. In the Constituent Assembly, this clause has been the focus of heated discussion. This idea was actually taken up by Dr Ambedkar from the Fourth and Fifth Amendments of the American Constitution. One of the greatest questions the Constituent Assembly had to decide on was whether to follow the “procedure provided by law” or the “due process of law”. Mr. B. N. Rau advocated Justice Felix Frankfurter’s opinion, who was an Associate Justice of the US Supreme Court, that the implementation of “due process of law” would increase the number of cases pending.

The constitutional perspective of due process of law

India chose the parliamentary system of government to run the country in accordance with the common law system of the United Kingdom. The adversarial system of government was also adopted by India from Britain. The outstanding Indian Constitution provides authority for all national laws. Compared to other world constitutions, it is one of the best since it attempts to examine every scenario in which laws are necessary to uphold the democratic process’s flawless operation. Due to the Apex Court’s aptitude and capacity to handle any extraordinary event that develops in the legal and political system, the Indian type of democracy is unique in itself. India gained its independence later than other nations around the globe. The Indian Constitution is strong enough to handle extraordinary circumstances that may arise over the course of democracy and will enable India to maintain a prominent position in international politics. The framers created the foundation of India’s democratic system.

Similar provisions to the American Constitution about “Due Process of Law” are also included in the Indian Constitution. From an Indian perspective, Article 21 of the Constitution of India is the key provision that preserves the rights pertaining to liberty and dignity of an individual person in India.

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 nation’s governance.
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.

In spite of the arbitrary actions of the first or second wings, the third wing’s responsibilities are extremely reliable because they serve as the defender and guardian of the Constitution. According to the Indian Constitution, everyone is treated equally and has equal access to opportunities. The Supreme Court of India, which oversees both Indian politics and the Constitution, serves as the third pillar’s sovereign power. The Supreme Court is explicitly given the authority of judicial review by the Constitution’s authors, which allows it to void or invalidate acts that the first pillar has approved if it is determined that they are in violation of the law. The framework for “Due Process of Law” must be fair, appropriate, righteous, and meticulous, and this is a question of justice.

Additionally, the Supreme Court of India attempts to interpret due process in the Indian Constitution by interpreting two of its Articles, namely Articles 14 and 21. This is done despite the fact that the authors of the Indian purposefully omitted the phrase “Due Process of Law” from their document.

Case laws: evolution of the due process of law in India

A.K. Gopalan v. the State of Madras (1950)

A communist leader named AK Gopalan was imprisoned in Madras Jail as a result of the Preventive Detention Act of 1950. The petitioner challenged the validity of the Act through a writ petition under Article 32 of the Constitution on the basis that it infringed upon both personal liberties under Article 21 and freedom of movement under Article 19 (1) (d). The Preventive Detention Act of 1950 was deemed to be constitutional by the SC in this judgment, which also focused on the distinction between the Doctrine of Due Process and the Procedure established by Law. The SC decided that the phrase “procedure established by law” should be interpreted literally. The Court stated that it is evident from the Constitution’s Drafting Committee with regard to Article 21 that the Constituent Assembly originally used the phrase “due process of law” before abandoning it in favour of “procedure established by law.” The phrase “procedure established by law” must refer to a procedure outlined by the State’s legislation.

As a result, due process was not upheld in India due to the A.K. Gopalan case setting a precedent. Finally, it was dismissed in the following case.

Maneka Gandhi v. Union of India (1978)

In this case, the petitioner, Maneka Gandhi, was a journalist whose passport was issued on June 1, 1976, in accordance with the Passport Act of 1967. On July 7, 1977, Maneka Gandhi got a letter from the regional passport officer in New Delhi ordering her to surrender her passport within seven days in the interest of the public as stated in Section 10(3)(c) of the Act. She asked why her passport was being held in custody. In contrast, the authorities said that it was not in the “general public’s interest” to know the reasons. The petitioner responded by filing a writ petition under Article 32, claiming that Section 10(3)(c) of the Act was unconstitutional due to breaches of fundamental rights guaranteed by Articles 14, 19, and 21 of the Constitution.

The act in question was deemed to be violative by the court. It underlined that a law’s justification should be considered in addition to its formalities. The Court ruled that Article 21’s procedure must be free from arbitrariness and inconsistency even though the expression “procedure established by law” is used instead of “due process of law” as it is in the American constitution. As a result, the legal method in India must be followed, and the procedure itself must be fair, just, and non-arbitrary. It is acceptable to say that while the doctrine of due process isn’t fully enforced in India as it is in the United States, the fundamental principles of the doctrine are upheld here, protecting people’s rights. This formula is, in fact, the theory of due process.

K.S. Puttaswamy v. Union of India (2017)

In this case, the Court emphasised that the phrase “due process of law” raises some interpretive difficulties and is ambiguous, and it noted once more that this phrase was purposefully left out of the language of Article 21 by the Constitution’s drafters. We are in a rare situation where the legal doctrine of “procedure established by law” is somewhat analogous to that of “due process” of law. The courts, however, are adamant about drawing a distinction that doesn’t matter because it is purely intellectual and technical. Since Maneka Gandhi, natural justice has gradually made its way into Indian constitutional legal thought, with consequences for how constitutional clauses are interpreted. Paradoxically, the Constituent Assembly sought to circumvent this discrepancy by substituting due process with the legally prescribed procedure, which has led to more ambiguity and power for the court.

Kesher Singh Ramkrishna Patil and Ors. v. State of Maharashtra and Ors. (2017)

The Court ruled that there cannot be an infringement of rights under Article 300-A of the Constitution if illegal constructions are removed after following the rules of due process. The Court ordered the BMC to observe the law’s requirements before tearing down any building constructed on either private or public property. The court also ordered the state to make an offer to individuals who qualify for rehabilitation within three weeks. After that, the inhabitants of these privately owned buildings would have one month to approve the BMC’s offer.

Tofan Singh v. the State of Tamil Nadu (2020)

The case involves the unlawful trafficking of 5.25 kg of heroin to Sri Lanka. However, NCB and intelligence officials caught the group in the middle of their operation as they were travelling from Nellore to Chennai. The appellant, in this case, appealed to the Supreme Court on the grounds that he was unfairly accused, had no involvement in the relevant operation, and was subjected to this case without his consent. The appellant’s learned counsel submitted more points in favour of his case, but the two-judge Bench directed the case to a bigger Bench while still granting bail to the appellant in this case. The Court ruled that because the term “reason to believe” was used, the officer’s contentment is the basis for and a condition of his or her ability to conduct a search, seize property, and arrest an accused. Such a belief could be supported by oral or written material that is concealed, according to the informant. A balance must be struck between the need for law and its enforcement on the one hand, and the protection of citizens from injustice and oppression on the other, in order to avoid harsh provisions that could result in a harsh sentence while taking into account the doctrine of due process as outlined in Article 21 of the Indian Constitution.

Indian Social Action Forum (INSAF) v. Union of India (2020)

The Supreme Court made a crucial ruling about the definition of what is “political.” The Foreign Contribution (Regulation) Rules of 2011 and some parts of the Foreign Contribution Regulation Act (FCRA), 2010, were the subject of a petition brought by the Indian Social Action Forum (INSAF). The Supreme Court ruled that if a statute can be interpreted in many ways, it should be interpreted in a way that best serves the legislative body’s goals and preferences. This is not the application of the idea of due process. However, where the law admits of no such interpretation, the people applying it are in a limitless sea of doubt, and the law prima facie revokes protected freedom.

Rajeev Suri v. Union of India (2021)

The notion of “constitutional due process,” as found in Indian jurisprudence, cannot be utilised as a method to enforce an individual’s conception of good governance upon the legislature and executive, the Court noted. There is a distinction between executive action impacting personal liberty and procedure adhered to in the normal course of administrative action. The Court has noted that a higher standard than one contained in legislation cannot be imposed, and the Court cannot examine an action when the Constitution does not offer a mechanism for its examination, maintaining a tendency of placing reliance on the legislative and executive branches. This difference is crucial because it allows the court to examine and invalidate any policy affecting life and liberty using the criteria of fairness, justice, and rationality while allowing the legislative branch to operate freely within its own purview.

Differences between the due process of law and procedure established by law

Parameter	Due process of law	Procedure established by law
Meaning	The due process of law checks whether the law in question is reasonable and not arbitrary.	It indicates that legislation that has been properly passed by the legislature or other relevant body is legal if the proper steps have been taken to establish it.
Origin	It has its origin in the United States Constitution.	It has its origin in the British Constitution.
Scope	The Supreme Court now has a wider range of options for protecting citizens’ fundamental rights because of this concept.	Its focus is more narrowed because the relevant law is not questioned if it conflicts with fairness and justice ideals.
Purpose	It checks whether the law in question is not arbitrary and is fair.	If the process for drafting the law has been correctly followed, the law that has been duly passed by the legislature or body in question is legal.
Constitution	It is not explicitly mentioned in the Constitution of India.	It is mentioned in Articles 14 and 21 of the Constitution of India.
Flaws	The doctrine paints a true and accurate picture. Any unfair methods used are considered void.	There is a significant flaw in the legal doctrine. It does not assess the fairness or arbitrariness of parliamentary laws.

Conclusion

Although J. Bhagwati in the Maneka Gandhi case emphasised the need for the rationality of procedure in Articles 21 through 14, some judges in the case construed “procedure established by law” as “due process of law,” which was omitted on purpose by the Constitution’s authors. Even though the Indian Constitution has accepted and borrowed many elements from the American Constitution, it has not formally and comprehensively adopted the American notion of “Due Process of Law.” Instead, the judiciary has the power to determine if a procedure is just, fair, and reasonable. However, as was mentioned, this principle has been included in the Indian Constitution, namely under Article 21.

Frequently Asked Questions (FAQs)

What do you understand by “due process of law?”

“Due Process of Law” is a legal principle that ensures that laws are created fairly and justly, as well as determining whether there are any laws in place that would deprive someone of their life and freedom.

Is there a provision in the Indian Constitution that addresses the due process of law?

No, the phrase “due process of law” was intentionally removed from the final version of the Indian Constitution and replaced with the phrase “procedure established by law.” Uncertainty regarding the definition of “due process” was the cause of this omission.

What may the Supreme Court do if a law is unfair or unjust under due process of law?

The Supreme Court should declare that particular law null and void.

References

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