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Due process of law

The concept of due process of law was originated in English common law. The rule that
individual shall not be deprived of life, liberty or property without notice and an opportunity
to defend themselves predates written constitution and was widely accepted in the England.
The Magna Carta1 an agreement signed in 1215 that defined the rights of English subjects
against the King is an early example of constitutional guarantee of due process. The
document includes a clause that declares, No free man shall be seized or imprisoned except
by the lawful judgement of the peers or by the law of the land 2. The clause itself and the
actual word Due process of law appeared in the later revision of the Magna Carta. 3The framer
of the US Constitution adopted the idea of Due process and incorporated in Bill of Rights.
Due process, a vitally important right of the American people has its roots in the concept of
rule of law. Initially, this meant that everyone should be subject to a fair and impartial legal
system, sanctions and court.
The constitutional guarantee of due process of law, found in the Fifth and Fourteenth
Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or
unfairly depriving individuals of their basic constitutional rights to life, liberty, and property.
The due process clause of the Fifth Amendment, ratified in 1791, asserts that no person shall
"be deprived of life, liberty, or property, without due process of law." This amendment
restricts the powers of the federal government and applies only to actions by it. The Due
Process Clause of the fourteenth amendment, ratified in 1868, declares, Nor shall any State
deprive any person of life, liberty, or property, without due process of law" ( 1). This clause
limits the powers of the states, rather than those of the federal government...
Principle of due process of law is a fundamental, constitutional guarantee that
all the legal proceedings will be fair and one will be given notice of the proceedings and
opportunity to be heard before the government acts to take away ones life, liberty or
property. It is also a constitutional guarantee that law shall not be unreasonable or arbitrary.
1 Article 39 of Magna Carta in England
2 http://manupatra.com/roundup/323/Articles/due%20process%20of%20law.pdf
3 Article 29 of Magna Carta 1354.

Due process holds that government subservient to the law of the land, protecting individual
from the state.4
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 5.
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 Court
finds that any law as not fair, it will declare it as null and void. This doctrine provides for
more fair treatment of individual rights6.

Substantive Due Process and


Procedural Due Process
The application of constitutional due process was traditionally divided into two categories of

Substantive due process and


Procedural due process

These categories are derived from a distinction that is made between two types of law.
Substantive law creates, defines, regulates rights, whereas a procedural right enforces
those rights or seeks redressal for their rights. Thus in the United States, substantive due
process is concerned with such issues such as freedom of speech and privacy, whereas
procedural due process is concerned with provision such as the right to adequate notice
of legal proceeding, the right to be present during testimony and right to be an attorney

4 http://manupatra.com/roundup/323/Articles/due%20process%20of%20law.pdf
5
http://www.academia.edu/4107497/Due_Process_of_Law_v_Procedure_Establishe
d_by_Law
6 http://www.clearias.com/procedure-established-by-law-vs-due-process-of-law/

Paradox of substantive due


process7
The doctrine of substantive due process holds that due process clause not only requires
the due process that is, basically procedural rights but it also protects the basic
substantive rights. Substantive rights are those general rights that reserve to individual
the power to possess or to do certain things despite the government desire to contrary.
These are rights like freedom of speech and religion. Procedural rights are special rights
that instead, dictate how the government can lawfully go about taking away persons
freedom, life or property, when the law otherwise give them the power to do so. It is not
only that appropriate and just procedure (or processes) to be used whenever the
government is punishing a person or otherwise taking away person life or liberty or
property but these clauses guarantee that persons life, freedom or property cannot be
taken without government appropriate government justification, regardless of the
procedure used to do the taking. In a sense it makes the due process clause due
substance clause as well. Supporter of this concept argue that the doctrine is simple
recognition that no procedure can be just if it being used to unjustly deprive a person of
his basic human liberties and the due process clause was intentionally written in broad
terms to give the court the flexibility in interpreting it. Critics in America say that when
the court uses judicial review to enforce this pseudo- constitutional rights they are they
are stealing the legitimate law making power from the state legislature.

Status in America
In Den V. Hoboken Land & Improvement Company, the first supreme case to attempt to
define the fifth amendment due process of law provision Justice Benjamin R. Curtis, for a
unanimous court stated that the word due process of law were undoubtedly intended to
7 http://manupatra.com/roundup/323/Articles/due%20process%20of%20law.pdf

convey the same meaning as the words law of the land in Magna Carta. Justice Curtis
provided no description of these processes which were intended or forbidden and did not
declare the principle to be applied. It is restraint on the legislative, as well as on the
executive and judicial power of the government and cannot be so construed to leave the
congress free to make any processes due process by its mere will. The case of Stuart v.
Palmer, has to be considered in which it was declared that due process clause was based on
the first principle of natural law, which is older than written constitution, that a citizen should
not be deprived of his liberty, life freedom without an opportunity of be heard in defence of
his rights, and constitutional provision that no person shall be deprived of these without due
process of law. This concept of due process is almost analogous to natural justice. The word
Due in American sense interpreted as just and reasonable and proper. The power to decide as
to reasonability of the same is vested in the court.

PROCEDURE ESTABLISHED BY
LAW
Article 21 of the Constitution of India, lays down that no person shall be deprived of his
life or personal liberty except according to procedure established by law. The most
important words in this provision are 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. In India, there is no mention of the word 'Due Process'. A strict literal
interpretation of Procedure established by Law give the legislative authority an upper hand
and they may enact laws which may not be fair from a liberal perspective.8
However, in India a liberal interpretation is made by judiciary after 1978 and it
has tried to make the term 'Procedure established by law' as synonymous with 'Due
process' when it comes to protect individual rights.

Constitutional History of Article 219

8 http://www.quora.com/Constitution-of-India/What-exactly-is-rule-of-lawprocedure-established-by-law-due-process-of-law

The Constituent Assembly of India originally included a due process clause in the
Fundamental Rights provisions associated with preventive detention and individual liberty in
the initial draft version adopted and published in October of 1947.16 At this point, a majority
of members of the Constituent Assembly favoured inclusion of a due process clause, because
it would provide procedural safeguards against detention of individuals without cause by the
government.
However, B.N.Rau, one of the member of constituent assembly had succeeded in
qualifying the phrase liberty with the word "personal," effectively limiting the scope of this
clause as applying to individual liberties, and not property rights. After this draft version
was published, Rau embarked upon a multi-nation trip to the United States, Canada, and
Ireland to meet with jurists, constitutional scholars, and other statesmen. In the United States,
Rau met with American Supreme Court Justice Felix Frankfurter, a student of Harvard Law
professor James Bradley Thayer, whose writings about the pitfalls of due process as
weakening the democratic process had already impressed Rau prior to the visit. In his
meeting with Rau, Frankfurter indicated that he believed that the power of judicial review
implied in the due process clause was both undemocratic and burdensome to the judiciary,
because it empowered judges to invalidate legislation enacted by democratic majorities.
Frankfurter had a lasting impression on Rau, who upon his return to India, became a
forceful proponent for removing the due process clause, ultimately convincing the Drafting
Committee to reconsider the language of draft Article15 (now Article 21) in January 1948. In
these meetings Rau apparently was able to convince Ayyar, the crucial swing vote on the
committee, of the potential pitfalls associated with substantive interpretation of due process,
which Frankfurter had discussed extensively with Rau. Ayyar, in ultimately upholding the
new position on the floor of the Assembly in December 1948, supported removing the due
process clause on the grounds that substantive due process could "impede social legislation."
With the switch in Ayyar's vote ,the Drafting Committee endorsed Rau's new preferred
language-replacing the due process clause with the phrase "according to the procedure
established by law," which was apparently borrowed from the Japanese Constitution.
Critics alleged, however, that the Japanese version had provided for separate
guarantee\of certain fundamental rights potentially endangered by the omission of a due
process clause. The new Article 15 was finally adopted on December 13, 1948, without a due
9 http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?
article=1381&context=bjil

process clause, precipitating a national outcry from political leaders, national and state bar
associations, and significant opposition within the Assembly itself
Another significant factor that influenced Ayyar's change of position and the swing toward
removing due process was the rise of communal violence and instability in North India that
resulted from British partition into Hindu India and Muslim Pakistan. Opponents of due
process thus believed that preventive detention policies, without constitutional guarantees for
due process, provided the best check on the communal violence that was gripping India at
that point, which had only further intensified following Gandhi's assassination on January
30, 1948.
Preventive detention practices were a legacy of British colonial rule in India. The
British had used preventive detention laws to detain potential saboteurs or insurgents, without
trial and with minimal procedural safeguards. After the Constituent Assembly decided to
eliminate due process from Article15 (now Article 21) of the Constitution, outside pressure
from groups including the Indian Law Review of Calcutta and the Calcutta Bar pressured
Assembly members to amend Article 15 in an attempt to reinstate some minimal procedural
safeguards for individual liberty in preventive detention cases. The result of this pressure was
the introduction of a new Article 15A by Ambedkar, which proposed to require that arrested
persons be brought "before a magistrate within twenty-four hours of his arrest, informed of
the nature of the accusation, and detained further only on the authority of the magistrate."
However, these provisions in Article 15A did not apply to detainees under preventive
detention legislation passed by Parliament, which could effectively detain individuals for up
to three months without any procedural safeguards; after three months, specific procedural
safeguards had to be complied with to allow continued detention. These standards included
the requirement that an Advisory Board composed of judges find sufficient cause for
continued detention. Ultimately; however, the government succeeded in amending Article
15A to all but remove judicial interference with executive detention

Difference between procedure established by & Due process of law


The due process doctrine is followed in the America. In India the term procedure established
by law was used in article 21 of the constitution. Due Process of Law has much wider
significance as compared to procedure established by law because doctrine of Due process

of law 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. On the other hand term procedure established by law only requires that
there must be some law enacted by legislature or the concerned body by following the correct
procedure.
The difference between the two doctrines in laymans terms is as
Due Process of Law = Procedure Established by Law + The procedure should be fair and
just and not arbitrary
Another difference between two terms is that, due process controls executive as well
legislative action on the other hand, procedure established by law constituted restriction
only on the executive which could not act without law, it is impotent against legislative
power which could make any law, howsoever drastic, to impose restriction on personal
liberty without being obligated to lay down any reasonable procedure for the purpose

Procedure established by law: Gopalan Case10


Immediately after the constitution became effective, the question of interpretation of these
words arose in the famous Gopalan case11 where the validity of the Preventive Detention
Act, 1950, was challenged. The main question was whether Art. 21 of Constitution envisaged
any procedure laid down by a law enacted by a legislature, or whether the procedure should
be fair and reasonable.
On behalf of Gopalan, an attempt was made to persuade the Supreme Court to hold that the
courts could adjudicate upon the reasonableness of the Preventive Detention Act, or for that
matter, any law depriving a person of his personal liberty. A three pronged argument was
developed for this purpose:

The word law in Article 21 of the constitution does not mean only enacted law but
incorporated the principle of Natural Justice so that a law to deprive a person of his
life or personal liberty cannot be valid unless it incorporates these principles in the
procedure laid down by it.

10 A.K Gopalan v. State of Madras, AIR 1950 SC 27


11 Ibid.

The reasonableness of the law of preventive detention ought to be judged under Art.

19.12
The expression procedure established by law introduces in India the American
concept of procedural due process which enables the court to see whether the law
fulfils the requisite elements of reasonable procedure.

Thus in Gopalan an attempt was made for better procedural safeguards than were available to
him under the relevant detention law and article 22 13. But the attempt was failed as the
Supreme Court rejected all these arguments.
Natural justice
The Supreme Court ruled by majority held that the word law in article 21 could not be
read as meaning rules of natural justice. These rules were vague and indefinite and the
constitution could not be read as laying down a vague standard. The word Law was used in
the sense of lex (state made law) and not jus. The expression procedure established by law
would therefore mean the procedure as laid down in the enacted law.
On the other hand, FAZL ALI, J., disagreeing with the majority view, held that the
principle of natural justice that no ne shall be condemned unheard was part of the general
law of the land and the same should accordingly be read into Art. 21.
Due process of law
It was contended in the gopalan case that the expression procedure established by law
in Art.21 was synonymous with the American concept of procedural due process and
therefore, the reasonableness of any law affecting a persons life or liberty, should be
justiciable in order to assess whether the person affected was given a right of hearing. The
Supreme Court rejected the contention giving several reasons:

First, the word Due was absent in Art. 21. This was a 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. This was strong evidence to show that the constituent
assembly did not desire to introduce the concept of procedural due process

12 Article 19 protection of certain rights regarding freedom of speech, etc.


13 Art. 22 protection against arrest and detention in certain cases.

However, FAZL ALI, J., disagreed with the majority view on this point as well. He
interpreted the phrase procedure established by law in Art. 21 as implying procedural due
process meaning thereby no person could be condemned unheard, a principle well
recognised in all modern civilized legal systems.
Thus the Supreme Court ruled in Gopalan that Art. 21, the expression procedure
established by law meant the procedure as laid down in the law as enacted by the
legislature and nothing more. A person could thus be deprived of his life or personal
liberty in accordance with the procedure laid down in the relevant law. The court was thus
concerned with the procedure as laid down in the statute. Whether the procedure was fair or
reasonable, or according to natural justice or not was not the concern of the court. The
decision highlighted that article 21 was a protection against the executive but not the
legislature.

From Gopalan to Maneka


In Gopalan, the Supreme Court had delinked Art. 19 from Arts. 21 and 22. This view
held the field for some time. At times, this view even led to anomalous results. For example,
in Ram Singh v. Delhi14, a person was detained under the preventive detention Act for
making speeches prejudicial to the maintenance of public order. At this time Art. 19 (2) did
not contain the expression public order and so the freedom of speech could not be
controlled for that purpose, but a preventive detention order, a much more drastic restriction
on the person concerned, could be passed on that basis.
The Supreme Court refused to assess the validity of the detention order with reference to Art.
19(1)

(a)

read

with

Art.

19(2)

stating

that

even

if

right

under

Art.

(19)(1)(a) was abridged, the validity of the preventive detention order could not be
considered in reference to article 19(2) because of the Gopalan ruling that legislation
authorising deprivation of personal liberty did not fall under Art.19, and its validity not to be
judged by the criteria in Art.19. The validity of such a law depended on its compliance with
Art. 21 & 22. The court stated that if this led to anomaly, it was inherent in the structure and
language of the relevant constitutional provisions.

14 AIR 1951 SC 270

In course of time, this rigid judicial view came to be softened somewhat. The beginning of
the new trend is to be found in the Bank Nationalisation Case15, decided in 1970. Prior to
this case, Arts.19 (1) (f) and 31(2) were regarded as unrelated and mutually exclusive on the
analogy of Gopalan view. In the Bank Nationalisation case, Art. 19(1) (f) was applied to law
enacted under Art 31(2).
This case was the precursor of the trend to link Art. 19, 21 and 22. After Bank
Nationalisation, it could be legitimately argued that if Art. 19(1) (f) was linked with Art.
31(2), then there was no reason why Art.19 could not be linked with Arts 21and 22. The
Supreme Court recognised the force of this logic when it declared in Sambhu Sarkar,16 that
the approach of the court in the Bank nationalisation case had held the major premise of the
majority in Gopalan to be incorrect.
In another major development from this point of view, in the Bennett Coleman case,17 the
court overruled the argument Art.19 (1) (a) could not apply to a law affecting freedom of
speech but not enacted directly with respect to Art. 19(1) (a). The court declared that if a law
affected freedom of speech, its reasonableness became assessable with reference to Art. 19(2)
even though it was not enacted directly to control the freedom of speech.
This completely knocked out the courts earlier argument in Gopalan that Art. 19 applied only
when a law was passed directly in respect of a matter falling under it, and not when a law
directly in respect of a right under Art. 19, through it abridged such a right. This view was no
longer tenable after Bennett Coleman case.

MANEKA GANDHI CASE18 THE


NEW APPROACH
15 R. C. Cooper v. Union of India
16 Sambhu Nath Sarkar v. State of West Bengal, AIR 1973 SC 1425
17 Bennett Coleman &co. V. Union of India AIR 1973 Sc 106
18 AIR 1978 SC 597

Maneka Gandhi v. Union of India, 19 is a landmark case of the post-emergency


period. A great transformation has come about in the judicial attitude towards the protection
of the personal liberty after the traumatic experiences of the emergency during 1975-1977.
This case showed that Art. 21 as interpreted in the Gopalan case could not play any role in
providing any protection against any harsh law seeking to deprive a person of his life or
personal liberty. In fact, this case has acted as a catalytic agent for transformation of the
judicial review on Art. 21.
In Maneka Gandhi, the fact situation was as follows: S. 10(3) (c) of the passport act
authorises the passport authority to impound a passport if it deems it necessary to do so in the
interest of the sovereignty and integrity of india, the security of the state, friendly relations
with any foreign country, or in the interest of the general public. Maneka passport was
impounded by the central government under the Passport Act in the interest of the general
public. Maneka Gandhi filed a writ petition challenging the order on the ground of violation
of her fundamental rights under Article 21. One of the major grounds of the challenge was
that the order impounding the passport was null and void as it had been made without
affording her an opportunity of being heard in her defence. The leading opinion in Maneka
Gandhi case was pronounced by Justice Bhagwati,
The court laid down a number of propositions seeking to make Art. Much more meaningful
than hitherto.
The court reiterated that propositions that Art. 14, 19 and 21 are not mutually
exclusive. A nexus has been established between these three Articles. This means that law
prescribing a procedure for depriving a person of personal liberty have to pass scrutiny not
only under Article 21's requirement of procedural due process, but also under Article 19
(personal freedoms), and Article 14 (non arbitrariness). As a result, laws or regulations
restricting personal liberty must also satisfy the "reasonableness" standard set forth in Article
19
The most significant and creative aspect of Maneka Gandhi Case, is the re-interpretation by
the court of the expression procedure established by law used in Art.21.
Article 21 would no longer mean that law could prescribe some semblance of
procedure, however arbitrary or fanciful, to deprive a person of his personal liberty. The
procedure cannot be arbitrary, unfair or unreasonable. The court now assumed the power to
adjudge the fairness and justness of the procedure established by law to deprive a person
19 Ibid.

of his personal liberty. The court has reached this conclusion by holding that Art, 21, 19
and 14 are not mutually exclusive, but is inter-linked.
According to Krishna Iyer, J., procedure in Art.21 means fair, not formal, procedure;
law is reasonable law and not any enacted piece. This makes the procedure established by
law by and large synonymous with the procedural due process in the U.S.A. This makes
the right of hearing a component part of natural justice.
As the right to travel abroad falls under Art. 21, natural justice must be applied while
exercising the power of impounding a passport under the passport act. Although the passport
act does not expressly provide for the requirement of hearing before a passport is impounded,
yet the same has to be implied therein.
By vesting in itself the power of substantive review under Article 21, the court
transformed itself from being merely a supervisor, to being a watchdog of the Constitution.
This is the seminal importance of the Maneka Gandhi decision...

From procedure established by


law to due process of law
While Bhagwati .J. in Maneka Gandhi case, established the requirement of
reasonableness of procedure in article 21through article 14, some of the judges in that case
and in some other subsequent cases have read such requirements in article 21 itself and
particularly in the word law the conversion of procedure established by law into due process
of law in the American sense which the constitution makers had intended to avoid by
replacing the latter expression by the former.
In Sunil Batra v. Delhi Administration 20, Krishna Iyer. J. Said, True our constitution
has no due process clause...but ...after Maneka Gandhi Case, the consequences is the same
and that article is the counterpart of the procedural due process in the United States.
In Jolly George Varghese v. Bank of Cochin,21 the Court through Krishna Iyer, J.,
surmised that some day the question of the validity of Section 51 and order 21 and Rule 37 of
the Civil Procedure Code, which authorises the arrest and detention of judgement-debtor on
the application of the decree holder, could be questioned under Article 21 although in the
instant case the court referred back the matter to the lower court with the clarification that
20 AIR 1978 SC 1675
21

arrest and detention would violate Article 21, if the judgement debtor had no means to pay
the decretal amount and did not evade its payment by any malafide or dishonest means or
intentions.
the high value of human dignity and the worth of human persons enshrined in
Article 21, read with article 14 & 19 obligates the state not to incarcerate except under
law which is fair, just and reasonable in its procedural essence.
In Mithu v. State of Punjab22, a constitutional bench, for the first time and
unanimously invalidated a substantive law, section 303 of the Indian penal code which
provided for the mandatory death sentence for murder committed by life convict. Quoting
from Maneka, Sunil batra cases, the court observed that,
these decision have expanded the scope of Article 21 in a significant way and
it is now too late in the day to contend that it is for the legislature to prescribe the
procedure and for the courts to follow it; that it is for the legislature to provide the
punishment and for the courts to impose it... the last word on the question of justice
and fairness does not rest with the legislature.
After posing the question of reasonableness of section 303 under article 21 the court
concluded that it is difficult to hold that the prescription of the mandatory sentence of death
answers the reasonableness and added that a provision of law which deprives the court of
the use of its wise and beneficent discretion in a matter of life and death, without regard the
circumstances in which the offence was committed and therefore, without regard to the
gravity of the offence, cannot but be regarded as harsh, unjust and unfair. Thus not merely
the procedure but a substantive law was invalidated under Article 21.
This development was picked up, though without any reference to Mithu, by Pendse,
J. Of the Bombay High Court in Basantibai v. State of Maharashtra23, and applied to a
property legislation the Maharashtra Housing Area Act, 1976. The court invalidated as
unjust, unreasonable, and unfair those provisions of the Act under which the acquisition of
the land the owner got less compensation than provided under Land acquisition Act, 1894.
The court held that the legislation must be just, air and reasonable whether provisions
of the Article 14 and 19 is available or otherwise, and the legislation providing for
deprivation of property must satisfy the requirements of being fair, just and reasonable.24

22 AIR 1983 SC 473


23 AIR 1984 Bom 366

The court have extended the applied the requirement of the reasonableness to a government
order issued under a University Act which prohibits contesting of election to anybody
including the state legislature and parliament 25, to civil service rules made under Article 309
of the constitution26, to service regulation and to invalidate the offence to commit suicide 27.
Validity of the offence of attempt to commit suicide under section 309 of the Indian penal
Code has finally been upheld by the Supreme Court28.
From these decision it is clear that the requirement of the reasonableness, which originally
emerged from the inter-relation of Article 14 and 21 and initially carried the impression of
controlling only procedural laws to deprivation of life and personal liberty, has developed
into a general principle of reasonableness similar to due process of law in the U. S
constitution capable of application to any branch of law.

Conclusion
While J. Bhagwati in Maneka Gandhi case establishment the requirements of reasonable
procedure in article 21 through article 14 some judges in the case have read the procedure
established by law as due process of law which was intentionally avoided by the constitution
makers. Indian constitution even though borrowed and adopted many things from the United
States Constitution has not adopted the doctrine of due process of law in its formal and
comprehensive form but the discretion has been left to the judiciary to decide the rationality
of a procedure. Nevertheless, this principle has been incorporated in the Indian constitution in
24 The decision in the Basantibai was reversed by the Supreme Court but
without disturbing the conclusion of the High Court on the question of the
reasonableness. This indicates that the Supreme Court does not have any
disagreement with the opinion of Pendse J.on the scope and application of the
reasonableness.
25 K. Venkatta. Ramana Reddi v. Govt. Of A.P, AIR 1985 AP73
26 State of Maharashtra v. Chandrabhan, AIR 1983 SC 803
27 Dubhal v. State of Maharashtra, (1986) 88 Bom LR 589
28 Gian kaur v. State of Punjab, AIR 1996 SC 946

especially in Article 21. When we compare the narrow view of article 21 in Gopalan case we
can realize that judiciary was living in ivory tower unconnected and unconcerned with the
social reality far away from where the law originates- nature. The judiciary was undermining
the value of natural justice. Only after the astounding decision of Maneka Gandhi Case the
state of affairs in india has been radically revolutionized.

Fundamental Rights and Directive


Principles
Seminar on

Due Process of Law & Procedure Established


By Law

Submitted to:

Submitted by:

Prof. Nishtha Jaswal

Neeraj Kumar Arora

Prof. Devinder Singh

1224/14

Prof. V. K. Bansal

Index
Introduction
Due process of law
Substantive due process of law & Procedural due process
Status in America
Procedure established by law
Constitutional history of article 21
Gopalan Case
Gopalan to Maneka

From procedure established by law to due process of law


Conclusion

Table of Cases

A.k Gopalan v. State of Madras


Maneka Gandhi v. Union of India
Sunil Batra v. Delhi Administration
Mithu v. State of Punjab
Basantibai v. State of Maharashtra
Den V. Hoboken Land & Improvement Company
Stuart v. Palmer
R. C. Cooper v. Union of India
Ram Singh v. Delhi
Jolly George Varghese v. Bank of Cochin

Introduction
The modem constitutions of the United States and India, while constructed and forged in two
distinct and very unique political and cultural settings, share one important common contextboth countries drafted and adopted their respective political instruments after successful
independence movements that secured political separation from the British "Raj." Despite
these common historical threads of colonial revolutionary lineage, the Indian experience also
differs in one critical respect the formation of the Indian Constitution occurred in the context
of the political chaos, fragmentation and disorder that resulted from the partition of the
former British colony into Hindu India and Muslim Pakistan.
In both of these former British colonies, the Supreme Courts developed Doctrines
of due process and jurisprudential traditions of activism that expanded the scope of
fundamental rights. While the doctrine of due process was added to US Constitution after 5 th
amendment and 14th amendment, the Indian constitution does not have such provision. On the

other hand, Indian constitution under Article 21 provides the term procedure established by
law which is narrower than the former term.
However, in India a liberal interpretation is made by judiciary after 1978 and it
has tried to make the term 'Procedure established by law' as synonymous with 'Due
process' when it comes to protect individual rights.

References
http://www.quora.com/Constitution-of-India/What-exactly-is-rule-of-law-procedureestablished-by-law-due-process-of-law
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1381&context=bjil

http://manupatra.com/roundup/323/Articles/due%20process%20of%20law.pdf
http://manupatra.com/roundup/323/Articles/due%20process%20of%20law.pdf
http://www.academia.edu/4107497/Due_Process_of_Law_v_Procedure_Established_by_La
w
http://www.clearias.com/procedure-established-by-law-vs-due-process-of-law/