The Doctrine of Due Process of law prohibits the state from taking actions
that shall deprive an individual from their rights to safety, liberty or life.
The Doctrine has its origins from the English common law. It is first seen in
the Magna Carta-the law of the Land for England.
As per the Magna Carta:
No man of what state or condition he be, shall be put out of his lands or
tenements nor taken, nor disinherited, nor put to death, without he be brought
to answer by due process of law.
The legal necessity that the state respects all legal rights owing to a person
is known as due process. Due process balances the force of the law of the land
while also protecting the individual. A due process violation occurs when the
government harms a person without obeying the letter of the law. This is a
violation of the rule of law. The due process of law doctrine examines not only
whether a law exists to deprive a person of his or her life and personal
liberty, but also whether the legislation is fair, just, and not arbitrary.
In India the Doctrine of Due Process isn't implemented in the whole sense. The
words in the constitution are Procedure established by law
which is borrowed
from the Japanese constitution which is done by the drafters in order to reduce
the ambit of the doctrine and reduce uncertainty.
Procedure established by law
says that a law that has been lawfully enacted is valid, even if it violates
justice and equitable ideals. The tight adherence to the legal procedure may
increase the risk of persons' lives and personal liberty being jeopardized as a
result of unjust laws enacted by the law-making authority. So, if Parliament
passes a law, then the life or personal liberty of a person can be taken off
according to the provisions and procedures of that law. This was upheld in the
A.K Gopalan vs. State of Madras (1950)
However the interpretation of the courts in the country changed eventually. To
avoid the exploitation of the words, the SC highlighted the importance of
Doctrine of Due process. This change was seen in the case of law of Maneka
Gandhi vs. Union of India
The scenario in India asks the basic differentiation between the two-
Procedure established by law and Due process of law. It is shown in the
Case laws: Evolution in India
Procedure established by Law
||Due process of law
|It signifies that if the method for
establishing a law has been followed correctly, a law that has been duly
enacted by the legislature or the body in question is valid.
||Due process of law checks whether the law
enacted is fair and not arbitrary
|The judiciary asses the procedure of the
legislation and its competence only.
||If the Supreme Court of India that any law as
not fair, it will declare it as null and void.
|Compared to 'due process of law it is narrow
||The due process of law gives wide scope.
|The Supreme Court, while determining the
constitutionality of the law examines whether the law is within the
powers of the authority concerned or not. It judges its procedure.
||The Supreme Court analyses the procedure and
the rationale of the law. It judges its reasonability.
|The state can deprive the basic rights if
followed the proper process.
||The state must respect all of the legal
rights that are owed to a person.
- A.K Gopalan vs. State of Madras (1950)
AK Gopalan, a communist leader, was jailed in Madras Jail under the Preventive
Detention Act 1950. Through a writ petition under Article 32 of the
Constitution, the petitioner challenged the Act's constitutionality on the
grounds that it violated freedom of movement under Article 19 (1) (d) and
personal liberty under Article 21. In this case the SC held literal
interpretation of the words Procedure established by law and declared the
Preventive Detention Act 1950 to be constitutional and further elaborated the
difference between the Doctrine of Due process and Procedure established by law.
The court said-This is clear from the Drafting Committee of the Constitution in
the respect of Article 21, that Constituent Assembly formerly used the term 'due
process of law' and later dropped it in the favor of 'procedure established by
law'. The expression 'procedure established by law' must mean procedure
prescribed by the law of the State.
Thus, Doctrine of Due process was not enforced in India as Ak Gopalan case
became a precedent. It was overruled finally in the following case:
Maneka Gandhi v Union of India (1978)
Maneka Gandhi, the petitioner, was a journalist whose passport was issued under
the Passport Act of 1967 on June 1, 1976. Maneka Gandhi received a letter from
the regional passport officer in New Delhi on July 7, 1977, in which she was
ordered to relinquish her passport in the public interest under section 10(3)(c)
 of the Act within 7 days of receiving the letter. She enquired the reasons
for impounding her passport.
The authorities, on the other hand, said that the
reasons should not be revealed in the "interest of the general public." In
response, the petitioner filed a writ petition under Art 32 stating that Section
10(3)(c) of the Act was unconstitutional, citing violations of fundamental
rights protected under Articles 14, 19, and 21 of the Constitution.
The court declared the act in question to be violative in nature. It emphasized
the reasonability behind a law to be important, not just the procedure. With
regards to Article 21, the court held even though the phrase used in Article 21
is procedure established by law instead of due process of law as found in
the American constitution, the procedure must be free from arbitrariness and
irrationality. Thus establishing the rationale in India as- Procedure
Established by Law + The procedure should be fair and just and not arbitrary.
This formula in essence is the doctrine of due process, thus we can safely
conclude that the doctrine of due process isn't completely implemented as
implemented in the USA, but the driving forces behind the doctrine are followed
in India and thus the rights of people in India are protected.