A Critical Analysis of the Procedure Established by Law and Due Process of Law
The article “Procedure Established by Law and Due Process of Law” by Adish Jain is all about the broader perspective of Procedure established by law and Due process of Law along with its origin. The idea is to critically analyze the two prominent phrases depending on their interpretation in the Law. Subsequently, the objective attached herein is, to find out the legislative intent to accommodate ‘procedure established by law’ in our Indian Constitution along with certain highlights on the suggestions to increase its ambit.
Meaning of Procedure established by law and due process of law
To understand the nitty-gritty, and go beyond the jurisprudential thought behind Article 21 of the Indian Constitution, have inferred from the legislative debates and thought process of the founding father of the Indian Constitution. Article 21 explicitly mentions the essence of “procedure established by Law”.
The expression means the procedure laid down by the statute or procedure prescribed by the Law of the State. So, indigents herein are: Firstly, no matter whether the Law is justifying or infringing on the person’s life and personal liberty, Secondly, the procedure laid down by the law has been strictly followed.
The term Due process embodies society’s basic notions of legal fairness and means that legal procedures are reasonable, fair and just.
Origin of Due process
Due process has derived its meaning from the word ‘law of the land‘ used in Section 39 of the Magna Carta of 1215.
The Magna Carta libertatum of 15th June 1215 was the great charter of liberty. Wherein afterwards, the rights and liberty were subsequently made the inherent part. King John II, the most supreme authority, was forced to sign the charter and hereby forced to follow that no one, otherwise in contravention of the Law of the Land, can be punished on the king’s will. This Magna Carta incorporated the liberties to the public for the first time in history (but it could only be construed), by the codified law of the land. And in 16th century, the bills of rights were added, which was an English constitutional document which has some rule of law.
Rule of the land infers that parliament has brought the law then it has to be applicable, it came from the actual procedure, even though arbitrary. Parliament is the will of the people, therefore, has supremacy. It may seize any liberty through that law of the land.
It was on 4th July in the year 1776, when the American declaration of independence decided a very important principle that there are certain rights, which include life, liberty and pursuit of happiness, that cannot be alienated. The purpose of government is to protect these rights and liberties. The 5th amendment and 14th amendment in the US Constitution construed no person shall be deprived of life, liberty or property even in the absence of the due process of law. There are two sects of the Due process of Law, Firstly, Substantive due process of law, Secondly, Procedural due process of Law.
Kinds of Due Process: Procedural and Substantive Due process
In any arbitrary law, procedural rights reflects only the ordinary process of law, that object is not worthful in providing justice. However, in this clause, the court will not have the right to see whether the law is just, fair and reasonable. So, this only concerns the procedural due process.
Wherein, it is inferential to understand that court cannot check the legal validity, hence law passed by the parliament in itself has its own validity and cannot be checked by the Court. This indicates, the reasonability of the law cannot be checked but the procedures need to be fair and just, which can be checked. Additionally, it limits the power of the Court to deliver equity and justice. This could be termed as an Absolute parliamentarian, not subject to check and balance of the judiciary while imparting justice and liberty. Critics say-
In American procedural due process clause, it is to prevent the judiciary expanding over the pseudo-constitutional right, consequentially stretching over the legitimate law-making power form the State Legislature.
American constitutional due process clause has to be read, to get the crisp about the Due process. US clause of due process of law makes it clear that the parliament has to bring the law which is fair, just and reasonable. Herein, American constitution-makers try to limit the law-making power of Parliament. Herein, the competence of the law-making power is checked by the judiciary.
Eventually, there is protection granted to people against the law made by the parliament in England in other words liberty in itself was the limit of power of parliament, but in the US protection to the people was given under the head of Due process of Law, which generally used to limit the Parliament power to deprive the liberties of people. Initially, American Constitution had to follow the Law of the Land theory.
Procedure Established by Law
To begin with the conceptualization of the topic, historical context is also taken into consideration as in 1949, a legislative debate took place while giving shape to Article 21 of the Indian Constitution. Consultant of the Indian Constituent assembly for constitutional-legal matters was Justice Felix Frankfurter.
For the matter of the clause, he replies to the letter of BN Rao (Constitutional Advisor) for the deletion of the term, “Due process of Law”, where his rationale was the same concept and that caused hindrance to the state at the time of making of the social welfare schemes for the marginalized section, basically hindered the state from performing its duties. And he negated it. Although B.R. Ambedkar’s design of Article 21 was,
“…. nor shall any State deprive any person of life, liberty and property without Due Process of Law”.
Wherein, the word “personal” was not included in his language. So, the assembly came up with the concept of personal liberty since liberty was the larger term and it is not possible to accommodate the right to absolute liberty in India. So personal liberty (which is limited) is subject to Procedure established by Law.
Since the debate was leading to the comparison of power between the learned gentlemen, judges of the court and elected parliamentarians. Dr Ambedkar cited that the debate was like sailing between Scylla and Charybdis. And therefore, Assembly views were taken into consideration and finally, the due process clause was deleted. But it would have led to the open-ended powers of the judiciary for the interpretation of the Constitution. Rather, Judiciary was allotted power to check procedures only. And hence, for a long time, it was followed.
Initialization of acceptance through precedents
For the First time, Article 21 was challenged. In this case, the leader of the opposition party had been arrested, and the plea was put into the Supreme Court. The court held, that the ideology of the government behind the making of that law would not be taken into consideration therein, but rather the bill passed by the parliament with a full majority was taken into consideration, and therefore, the procedure was valid.
Since the act was passed by the parliament and hence its validity was approved. Herein, Justice Fazal Ali came up with the dissenting judgement for the first time in India and said there was an infringement of natural justice on the grounds of violation of audi alteram partem. He also pointed out that one Fundamental Right cannot take away the other right.
After 20 years, the lenient view was given up. For the first time, it was held that the government has followed a procedure established by law, but the constitutional validity of the same could still be challenged. On the other hand, ADM Jabalpur case, during the emergency, in 1976, the court again dismissed article 21 and conclusively again gave importance to the procedure established by law. The case was related to the MISA 1971.
In this case, for the first time, Court was of the opinion that the court would look at not only the procedure but also the competence of the parliament, as the bill needs to be fair, just and reasonable. Additionally, held that all Fundamental rights can be read in the parlance of each other.
The substantive provision of the death penalty under section 302 of the Indian Penal code has also been challenged. The court held that procedural, as well as substantive provisions, have to be reasonable. As a result, the death penalty has to be given in the rarest of the rare case.
Additionally, Court, in this case, struck down section 303 of the Indian Penal code in which the person was not given any opportunity to be heard as it was mandatory, and their forecourt held that not even the procedural part but even the substantive part is unconstitutional. In 2014 the court mentioned that substantive due process is inherent under article 21.
Justice Chelameswar in 2015, put caution. He opined, that substantive due process and substantive question are two different concepts altogether. Additionally, Substantive due process is also not applicable in India but the question can be made on the ground of Substantive challenge to the Law. Justice Chandrachund in K Puttaswamy v. Union of India analyzed the previous judgment and held that substantive due process is still not applicable in India, but the Law is open to challenge, which violates the Fundamental right in India.
Conclusively, in India, a triangle of three concepts is followed by various cases and is still inevitably followed. The procedure establishes by law, (under the bare provision of Article 21), the procedure must be fair, reasonable and just (Maneka Gandhi case) and substantive Due process of Law. In my opinion, there needs to be a balance between the two clauses.
Absolute following of anyone will always lead to a stage of fear to a huge Democracy like India. Such a Democracy always fears authoritarian Rule, and solemnizing the power to either parliament or Judiciary would be unjust to the public. I believe in the opinion of Justice Chandrachund as a jurist, thinking of having balance is a prominent task.
 A.K. Gopalan v. State of Madras, 1950 AIR 27
 R.C. Cooper v. Union of India, 1970 AIR 564
 ADM Jabalpur v. Shivkant Shukla 1976 AIR 1207
 Maintenance of Internal Security Act, Act no. 026 of 1971
 Maneka Gandhi v. union of India, 1978 AIR 597
 The Indian Penal Code Act no. 45 OF 1860
 Bachan Singh v. State of Punjab AIR 1980 SC 898
 Mithu Singh v. The State of Punjab, Appeal (Cri) 673 of 1992
 Mohd. Arif @ Ashfaq v. The Reg. Supreme Court of India, WP (CRI) NO.77 of 2014
 Rajbala & Ors v. State of Haryana & Ors, WP (CIVIL) NO. 671 of 2015
Originally Published on: Apr 9, 2022