PROCEDURE ESTABLISHED BY LAW

&
DUE PROCESS OF LAW

By: Vipul Prajapati, 1st Year BA LLB (Hons), University of Allahabad

Introduction:
Procedure Established by Law:
The term “procedure established by law” is used directly in the article 21 of Indian
constitution. This term usually mean that a law that is duly enacted by the 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
procedure established by law.
So, if parliament passes a law, then the life or personal liberty of a person can be taken
off according to the provisions and procedure of that law and if procedure is followed
by the government or executive body then nobody question for that action. This doctrine
establish the supremacy of Parliament.

Due Process of Law:

It is an American concept but it is originated in English Common 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 Supreme
Court finds that any law as not fair, it will declare it as null and void. This doctrine
provides for more fair treatment of individuals rights.
Under due process, it is the legal requirement that the state must respect all of the legal
rights that are owned to a person and laws that states enact must conform to the laws of
the land like – fairness, fundamental rights, liberty etc. This doctrine establish
supremacy of Judiciary.

Why the term “procedure established by law” used in Indian

constitution:
In the draft constitution of India, the term “due process of law” used but there had
been huge debate that whether it would be due process of law or procedure established
by law.
So Mr. BN Rau, who was the constituent assembly advisor, had gone to the America.
There he had discussed with Frankfurter, Justice of the United States of America
Supreme Court. Justice Frankfurter expressed that “the due process clause is
undemocratic and burdensome to the judiciary because it empowered judges to
invalidate the legislation enacted by democratic majorities and you were a British colony
so you understand procedure established by law better. BN Rau convinced with him and
constituent assembly used the term “procedure established by law” expressly in Art. 21
of Indian constitution.

The Debate between due process of law and procedure established by

law:
• The term procedure established by law gives supremacy to the parliament but due
process of law stands with judicial supremacy.
• If any law passed by the parliament and governing body followed the procedure
as mentioned in that then no one can question about that but due process of law
checks whether any law in question fair, just and not arbitrary.
• On the basis of procedure established by law, judiciary can’t assess the intent of
the law passed by the legislature but due process of law allows to assess the intent
of law and if judiciary find intent of law is not reasonable, fair and just then he
will declare that null and void.
• Procedure established by law is narrow in scope as it does not question whether
the law concerned is contrary to principle of justice and equity but the due process
of law gives wide scope to the Supreme Court to grant protection to the rights of
the citizens.
• Procedure established by law protect the individuals and theirs rights against the
arbitrary action of the only executive. Under due process, it is requirement that
the state must respect all of the legal rights that are owned to a person that state
must conform to the laws of the land.

Take of Indian Judiciary on these two terms:

In 1950 A.K Gopalan who was detained under the Preventive Detention Act
(Act IV of 1950) applied under Art. 32 of the Constitution for a writ of habeas corpus
and for his release from detention, on the ground that the said Act contravened the
provisions of Arts. 13, 19, 21 and 22 of the Constitution and was consequently ultra rites
and that his detention was therefore illegal.

In the Judgment of this case, Supreme Court dismissed his petition by the majority 4:2
and held that Art. 19, 21 and 22 are mutually exclusive and Court accepted the negative
interpretation of “procedure established law”. It was a carte blanche to arrest a person
without any procedural safeguards. The way Art. 21 was interpreted made it impotent
against legislative power which could make any law.
But in July 1978 regional passport officer wrote a letter to Mrs. Meneka Gandhi
to impound her passport and Meneka Gandhi questioned for that but regional passport
officer again wrote a letter and said that we can’t disclose it into public interest,
surrender your passport within one week.
Meneka moved to the Supreme Court and filed a petition and she said that it is the
violation my fundamental rights of Art. 19 and 21.
The bench of 7 judges given the judgment of this case with the majority of 4:3. Supreme
Court dismissed the judgment of AK Gopalan case and held that Art. 19 and 21 are
mutually inclusive and the procedure must be reasonable, fair, just and not arbitrary. So
indirectly by this case Supreme Court accepted the “due process of law” as procedural
due process.

Conclusion:
In conclusion we can say that procedure established by law can be an instrument
for the legislature to make any arbitrary law and It indirectly denies the fundamental of
natural justice but on other hand due process of law establish that every law must be
reasonable, fair, just and not arbitrary, legislature must be follow the principle and
fundamental of natural justice. Due process of law gives the authority to Court that he
can check the substance of the law.
In the words of layman:
“Due process of law = Procedure Established by Law + the Procedure Should be
fair and just and not arbitrary”.

References: