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  • Bhupendra Prakash says:
    sherlockholmes@hackermail.com
    7/6/2019 11:50:05 AM

    Procedure Established by Law and Due Process of Law.

     

    Procedure Established by Law is Indian constitutional doctrine and Due Process of Law is American


    Article 21 in The Constitution Of India


    21. Protection of life and personal liberty:  No person shall be deprived of his life or personal liberty except according to procedure established by law.

    Procedure Established by Law vs. Due Process of Law

     

    As we have seen, the term “procedure established by law” is used directly in the Indian constitution. Due Process of Law has much wider significance, but it is not explicitly mentioned in Indian Constitution. The due process doctrine is followed in the United States of America, and Indian constitutional framers purposefully left that out. But in most of the recent judgments of the Supreme Court, the due process aspect is coming into the picture again. Let’s see the difference in detail.


        1-       Procedure Established by Law

    It means 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 the 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 procedures of that law.

     

    This doctrine has a major flaw. What is it?

    It does not seek whether the laws made by Parliament is fair, just and not arbitrary.

    “Procedure established by law” means a law duly enacted is valid even if it’s contrary to principles of justice and equity. The strict following of the procedure established by law may raise the risk of compromise to life and personal liberty of individuals due to unjust laws made by the law-making authorities. It is to avoid this situation, SC stressed the importance of due process of law.


        2-      Due Process of 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 individual rights.

    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 conform to the laws of the land like – fairness, fundamental rights, liberty etc. It also gives the judiciary to access fundamental fairness, justice, and liberty of any legislation.

    The difference in layman’s terms is as below: 

    Due Process of Law is Procedure Established by Law with The procedure should be fair and just and not arbitrary.


    History of Due Process of law

    The due process developed from clause 39 of the Magna Carta in England. When English and American law gradually diverged, due process was not upheld in England but did become incorporated in the Constitution of the United States.


    Change of situation in India: Maneka Gandhi vs. Union of India case (1978) 

    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 protecting individual rights.

    In Maneka Gandhi vs. Union of India case (1978) SC held that – Procedure established by law’ within the meaning of Article 21 must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.

     

    Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.

     

  • Ishita Dwivedi says:
    dwivedi8ishita@gmail.com
    7/6/2019 10:20:35 AM

    Article 21 of the Indian Constitution says, "No person shall be deprived of his life or personal liberty except according to procedure established by law."

    In our constitution "procedure established by law" is clearly mentioned but "due process of law" is an American concept having a wider significance. 

    "Procedure established by law" means that a parliament passes a law then the life or personal liberty can be taken of according to procedures of that law.Reasonablility of law is not focused upon.

    "Due process of law" checks the laws made are not depriving any person of his life or personal liberty along with the fact that law not arbitrary.

    In famous case of AK Gopalan vs State of Madras 1950 Supreme Court has taken narrow interpretation of Article 21. It held that protection is only against arbitrary executive action and not arbitrary legislative action. State can deprive a person of his right to life and personal liberty based on law.

    But wider interpretation was highlighted in Maneka Gandhi vs Union of India 1978 and said that both executive and legislature action under the ambit of Article 21. Right to life and personal liberty can only be deprived by law if the procedure prescribed by law is "just, fair and reasonable" and "not fanciful, oppressive or arbitrary." It must embody principles of natural justice.

     Hence, "due process of law" may not be explicitly mentioned but has implied importance while deciding case laws in India.

  • Aafreen says:
    Aafreen@gmail.com
    7/2/2019 1:07:59 PM

  • Awantika shukla says:
    Vntkshukla@gmail.com
    7/1/2019 4:10:54 PM

    The term "procedure established by law" is clearly mentioned in article 21 of Indian Constitution while the term "due process of law" is an American concept. Article 21 of Indian Constitution states that no person shall be deprived of his life and personal liberty except according to procedure established by law.It means that a law is enacted by legislature is valid even if it is contrary with the principles of equity,just and fair.it is a much narrower term. The term "due process of law" states that law must be reasonable,fair, just and without arbitrary power of state. Related cases- A.k gopalan v state of Madras-scope of art.21 was much narrower till this case.court held that life and liberty means life of physical existence and freedom from unlawful detention. Meneka Gandhi v. Union of India-supreme court widened the scope of personal liberty.now meaning of life included right to live in fair and with reasonable means. Unni Krishnan v. State of Andhra Pradesh-supreme court expanded the scope of art. 21 in this case and provided list of some rights like- 1.right to go abroad 2.right to privacy 3.right against solitary confinement 4.right against handcuffs 5.right against delayed execution 6.right to shelter 7.right against custodial death 8.right against public hanging 9.right of doctors assistance Francis Mullins v the administrator union Territory of Delhi-art 21 requires no one shall be deprived of his life or personal liberty except acc. To procedure established by law and this procedure must be fair, just and fancyful. Olga tellus v. Bombay municipal corporation-it was held that law must follow the principles of equity,just and fair.there should be no place for unreasonableness in law. Conclusion-Although procedure established by law is clearly mentioned in the Indian Constitution but the recent cases have been following the doctrine of due process of law which is much broader in itself.

  • Priya says:
    Shah.priya2704@gmail.com
    7/1/2019 3:59:19 PM

    The term “procedure established by law” is used directly in the Indian constitution. Due Process of Law has much wider significance, but it is not explicitly mentioned in Indian Constitution. Procedure Established by Law It means 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 the procedure established by law. This doctrine has a major flaw that it does not seek whether the laws made by Parliament is fair, just and not arbitrary. “Procedure established by law” means a law duly enacted is valid even if it’s contrary to principles of justice and equity. The strict following of the procedure established by law may raise the risk of compromise to life and personal liberty of individuals due to unjust laws made by the law-making authorities. It is to avoid this situation, SC stressed the importance of due process of 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 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. Hence, we can give an equation : Due Process of Law = Procedure Established by Law + The procedure should be fair and just and not arbitrary. Landmark case : Maneka Gandhi vs Union of India case (1978) SC held that – ‘Procedure established by law’ within the meaning of Article 21 must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.

  • Priya says:
    Shah.priya2704@gmail.com
    7/1/2019 3:58:40 PM

    The term “procedure established by law” is used directly in the Indian constitution. Due Process of Law has much wider significance, but it is not explicitly mentioned in Indian Constitution. Procedure Established by Law It means 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 the procedure established by law. This doctrine has a major flaw that it does not seek whether the laws made by Parliament is fair, just and not arbitrary. “Procedure established by law” means a law duly enacted is valid even if it’s contrary to principles of justice and equity. The strict following of the procedure established by law may raise the risk of compromise to life and personal liberty of individuals due to unjust laws made by the law-making authorities. It is to avoid this situation, SC stressed the importance of due process of 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 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. Hence, we can give an equation : Due Process of Law = Procedure Established by Law + The procedure should be fair and just and not arbitrary. Landmark case : Maneka Gandhi vs Union of India case (1978) SC held that – ‘Procedure established by law’ within the meaning of Article 21 must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.

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