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Doctrine of Due Process of Law

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.

Indian scenario
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 (1978).

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 following table:
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 in scope. 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.
Case laws: Evolution in India
  • 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) [4] 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.

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