What Is The Difference Between Due Process Of Law And Procedure Established By Law?

"Procedure Established by Law" implies that the law was made by the legislature or another appropriate entity and that it is only valid if the procedure is adhered to precisely. The idea of "Due Process of Law" ensures that laws are created in a fair and just manner and determines whether any laws have been passed that restrict someone's freedom or life. In both circumstances, the Supreme Court is the highest court. Before rendering a decision, the Indian Supreme Court takes the law's validity into account. 

 

The term "procedure established by law" was used by the Constituent Assembly after a discussion between Sir B.N. Rau, the advisor to the Constitutional Assembly, and Frankfurter J., a judge on the Supreme Court of the United States of America, who claimed that the due process clause is undemocratic and burdensome to the judiciary because it allows judges to invalidate passed legislation.

 

The ambiguity of the phrase "due," which may have resulted in anomalies, non-uniformity, and strengthened the judiciary's standing in regard to the legislature in the United States, was something the constituent assembly wished to avoid.

 

Preventive detention policies were seen to be the most effective in reducing communal violence, which was only partially resolved after the incorporation of Article 22 into the constitution and adopted during British colonial rule without constitutional protections for due process. The word received criticism during the founding assembly because it may be abused for partisan purposes, party prejudices, and worries, endangering the individual's right to life and liberty.

 

The "process defined by law" expressed during the founding discussion sought to guarantee parliamentary authority in enacting laws while providing adequate constitutional and judicial protections for "personal liberty" against judicial supremacy. The constitutive assembly upheld the legislature's supremacy.

 

•    Under the English Constitution, the concept of Procedure Established by Law was first developed.

 

•    It gives the judiciary a small amount of authority.

 

•    Individuals' lives or liberties are violated, and this is contested in court.

 

•    To determine the validity of the state's conduct in this regard, it will apply the following three tests.

 

•    Whether a law exists that allows the executive to rob someone of their life and freedom.

 

•    If the legislature has the authority to pass the relevant statute in the first place.

 

•    If the legislature followed the correct process when passing the bill.

 

•    In order to provide with protection against the executive's arbitrary actions, the court will order the release of the person from custody if any of the aforementioned tests are unsuccessful. 

 

•    However, the court will not use any additional criteria to determine whether the relevant statute is fair, just, and reasonable. Even if a court deems a legislation to be oppressive or arbitrary, it will not nullify the law and provide individuals with protection from the legislature's arbitrary actions.

 

•    This concept is more dependent on the legislature's common sense and the strength of national public opinion.

 

•    It increases a person's protection for his or her life and freedom.

 

•    Only against the arbitrary presidential action, but not against legislative action.

 

•    It has been referred to in Article 21 of the Indian Constitution.

 

•    Article 21 of the Indian Constitution ‘’Life and personal freedom protection’’: No one may be deprived of their life or personal freedom other than in accordance with the legal process.

 

•    The US Constitution served as the foundation for the concept of due process of law. Due process was formed in England as a result of Magna Carta clause 39.

 

•    Wider authority is granted to the judiciary as a result.

 

•    In a circumstance like the one just described, the court will apply the three examples mentioned above, as well as the Principle of Natural Justice to assess the law from a wider perspective of the law's transmission of goodness.

 

•    No one may be penalized without first being heard.

 

•    Nobody should be held accountable for their own actions.

 

•    An authority must behave impartially and in good faith (bonafede).

 

•    If the court determines that the law is oppressive or arbitrary, it will invalidate the law and grant individuals protection not only against the president's arbitrary actions but also from both the legislative and executive branches.

 

•    It has not been specifically addressed in the Indian Constitution.

 

It was held in Rameshbhai Chandubhai Rathod v State of Gujarat that "fairness, justice, and reasonableness, which represent the essence of guarantee of life, and liberty exemplified in Article 21 of the Constitution, also pervades the sentencing policy in Sections 235(2) and 354(3) of the Code," within the meaning of Article 21 of the Constitution.

 

In the case of Gopalan v. State of Madras, the majority bench of the Supreme Court argued that Article 21 of our Constitution had embodied the English concept of personal liberty in preference to that of American "due process of law" by adopting the phrase "procedure established by law." However, the minority opinion of the bench claimed that this interpretation would "throw the most important fundamental right to life and personal liberty" "away."

 

In Selvi v. State of Karnataka, it was determined that the administration of the narco-analysis test, lie detector test, polygraph, and brain-mapping without the subject's involuntary consent was illegal. He drew a connection between the prohibition against self-incrimination and the guarantee of a fair trial by referring to the idea of "due process of law."

 

After 1978, the Indian judiciary adopted a more liberal approach, aiming to equate "due process" with "procedure established by law" in terms of defending individual rights.

 

Only theory developed that was Procedure established of law were covered by article 21. However, according to the Supreme Court of India's ruling in Maneka Gandhi v. Union of India (1978), a "procedure established by law" as defined by Article 21 must be "right, just, and fair" and "not arbitrary, fanciful, or oppressive" otherwise it won't be a procedure at all and the requirement of Article 21 won't be satisfied.

 

The word "procedure established by law" now has the same significance in India as the phrase "due process of law" does in the US.