October 28, 2021

Procedure Established by Law and Due Process of Law

Constitution

Introduction

Article 21 of the Indian Constitution of India states that no person shall be deprived of his Life or Personal liberty except according to procedures established by law.

The article prohibits the deprivation of rights according to procedures established by law. Article 21 is the heart of the Indian Constitution. It is the most organic and progressive provision in our Indian Constitution. Fundamental rights are protected under the charter of rights in the Constitution of India. Article 21 talks about equality before the law, freedom of speech and expression, religious and cultural freedom, etc. Article 21 is valid for every citizen of India. It is also valid for foreign citizens. 

The “Procedure Established by Law” means that a law is duly enacted by the legislature or the concerned body is valid only if the correct procedure has been followed to the letter.

The concept has been enshrined in Article 21 of the Indian Constitution, which states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”

“Due Process of Law” is a doctrine that not only checks if there is a law to deprive the life and personal liberty of a person but also ensures that the law is made fair and just.

Differences between procedures established by law and due process of law-

  1. Procedure by law means that a law that is duly enacted by the legislature or the body in question is valid if the procedure to establish it has been correctly followed.

Whereas, Due process of law checks whether any law in question is fair and not arbitrary.

  •  Judiciary would assess whether the Legislature is competent to frame the law and whether it had followed the procedure laid down to legislate and would not assess the intent of the said law

Whereas, If the Supreme court of India that any law as not fair, it will declare it as null and void. This doctrine provides for more fair treatment of individual rights

  •  Compared to ‘due process of law” it is narrow in scope as it does not question whether the law concerned is contrary to principles of justice and equity.

While in case of The due process of law which gives wide scope to the Supreme Court to grant protection to the rights of its citizens.

  • The Supreme Court, while determining the constitutionality of the law examines only the substantive question i.e., whether the law is within the powers of the authority concerned or not.

Whereas, In due process of law The Supreme Court can declare laws violative of Fundamental Rights and render them void not only on substantive grounds of being unlawful but also on procedural grounds of being unreasonable

Examples

Case 1 : Procedure Established by Law

It means that a law that is duly enacted by legislature or the concerned body is valid if it has followed the correct procedure. Following this doctrine means that, a person can be deprived of his life or personal liberty according to the procedure established by law.So, if Parliament pass a law, then the life or personal liberty of a person can be taken off according to the provisions and procedures of the that law.

“Procedure established by law” means a law duly enacted is valid even if it’s contrary to principles of justice and equity. Strictly following procedure established by law may raise the risk of compromise to life and personal liberty of individuals due to unjust laws made by the law making authorities. It is to avoid this situation, SC stressed the importance of due process of law.

Case 2 : Due Process of Law

Due process of law doctrine not only checks if there is a law to deprive the life and personal liberty of a person, but also see if the law made is fair, just and not arbitrary. If SC finds that any law as not fair, it will declare it as null and void. This doctrine provides for more fair treatment of individual rights.

Under due process, it is the legal requirement that the state must respect all of the legal rights that are owed to a person and laws that states enact must confirm to the laws of the land like – fairness, fundamental rights, liberty etc. It also gives the judiciary to access the fundamental fairness, justice, and liberty of any legislation.

Case laws

Maneka Gandhi vs Union of India case (1978) 

The Supreme Court of India considered this in the case of Maneka Gandhi vs Union of India. Prior to this case, the view of the Court was that the wording of Article 21, ie:
“No one shall be deprived of life or personal liberty except in accordance with procedure established by law”, meant simply that Parliament has to pass legislation establishing procedure by which somebody may be deprived of life or personal liberty. This was the view taken by the Supreme Court in the case of A. K. Gopalan vs State of Madras, which held sway for nearly 20 odd years.

In Maneka Gandhi vs Union of India, the Supreme Court of India held that the words “procedure established by law” doesn’t mean any random procedure laid down by Parliament, but must be interpreted in the lines of the “due process” phrasing in the American Constitution. Procedure which deprives a person of life or personal liberty must be reasonable and just, and must satisfy the ends of Justice and the collective conscience. This is what prevented tyrannical excesses from being committed by the State.

Thus, as it stands now in India, there is practically no difference between the phrases “procedure established by law” and “due process”, owing to the judgement of Maneka Gandhi vs Union of India, and several judgements since which have based itself in that landmark decision.

Shaikh Zahid Mukhtar v State of Maharashtra

Shaikh  Zahid Mukhtar v. State of Maharashtra, decided on May 6, 2016, a Division Bench of the Bombay High Court was dealing with the constitutional validity of the Maharashtra Animal Preservation Act, 1976, as amended by the Maharashtra Animal Preservation (Amendment) Act, 1995, which received the assent of the President of India on March 4, 2015 (hereinafter, the “Beef Act”). Among other provisions which were challenged, Section 5-D of the Beef Act made it a criminal offence to have in one’s possession, in the state of Maharashtra, the flesh of a cow, bull or bullock slaughtered outside the State of Maharashtra.

The question was whether this provision violated the right to privacy under Article 21 of the Constitution. Section 5-D was struck down by the court. It was held that the right to privacy is a part of the right to life under Article 21 of the Constitution, and that the right to eat the food of one’s choice, is a part of the right to privacy. By declaring that the right to life under Article 21 of the Constitution includes the right to privacy, the Bombay High Court was, in essence, circumventing the intent of the framers of India’s Constitution (who had deliberately qualified the broad word “liberty” with the word “personal”). Recognising an unenumerated right like privacy is an example of substantive due process.

Section 9-B of the Beef Act cast the burden of proof on the accused in some cases. The court was examining its constitutional validity. This was a procedural due process inquiry, as the provision reversed a well-known procedural rule of evidence in criminal trials, that is, the burden of proof is on the prosecution. Section 9-B was also struck down by the court. It was held that the “right of life and liberty under Article 21… clearly covers the [substantive] due process aspect envisaged in the American jurisprudence.”

Rajbala v Haryana

Rajbala v. Haryana (2015), a two-judge bench of the Supreme Court of India strongly rejected the doctrine of substantive due process in India. In this case, the constitutional validity of the Haryana Panchayati Raj (Amendment) Act, 2015 was in question. Under the Act, five categories of persons were considered ineligible to contest elections for certain offices in panchayats in Haryana (for example, those against whom criminal charges of a certain kind were framed, those who had not paid their electricity dues, those who did not have specified educational qualifications, those who did not have a functional toilet in their homes, etc).

The Act was challenged on the ground that it was “wholly unreasonable and arbitrary and therefore violative of Article 14 of the Constitution”. Though the Supreme Court rightly held that a statute cannot be invalidated merely because it is “arbitrary” it also went on to reject the U.S. doctrine of substantive due process by holding that Indian courts “do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution”, as “to undertake such an examination would amount to virtually importing the doctrine of ‘substantive due process’ employed by the American Supreme Court”, and under the Indian Constitution “the test of due process of law cannot be applied to statutes enacted by Parliament or the State Legislatures”.

The Rajbala decision is particularly interesting because earlier Benches of the Supreme Court, in cases like Ramlila Maidan Incident (2012) and Selvi v. State of Karnataka (2010), have repeatedly held that substantive due process and due process generally are a part of Indian constitutional law under Article 21 of the Constitution.

Selvi vs State of Karnataka

In Selvi v State of Karnataka it was held that the narco-analysis test, lie-detector test, polygraph and brain-mapping without the involuntary administration and consent of the subject are unconstitutional. He drew an interrelation between the right against self-incrimination and the guarantee of a fair trial by invoking the idea of `due process of law’.                                      

It was observed that, “The guarantee of `substantive due process’ is a part and parcel of the idea of `personal liberty’ protected by Article 21 of the Constitution and that the standard of `substantive due process’ is, of course, the threshold for examining the validity of all categories of governmental action that tend to infringe upon the idea of `personal liberty.

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