The term “Procedure Established by Law” refers to the fact that a law validly adopted by the legislature or the relevant body is only valid if the correct procedure is strictly followed.
The notion is incorporated in Article 21 of the Indian Constitution, which declares that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.”
“Due Process of Law” is a doctrine that not only determines if a law exists to deprive a person of his or her life or personal liberty, but also assures that the legislation is fair and just.
Difference Between Procedure Established by Law and Due Process of Law
| The procedure established by Law | Due process of Law |
|---|---|
| In this case, the court will simply consider whether the legislature followed the proper procedure for drafting a law and whether the executive implemented the law correctly, i.e. in accordance with the procedure set by law. It would not delve into the legislative wisdom or rationale for enacting a given legislation, even if the statute violates the principles of natural justice or equality. | Under due process, the court would consider not just the procedural legitimacy of a legislation, but also whether it is just, fair, and reasonable. In this scenario, the court would also consider the legislative rationality of passing a specific legislation. If a law is unjust and unfair, it might be declared to be against the principles of natural justice, thus rejecting it. |
| Article 21 of the Constitution stipulates that no person can be deprived of their life or personal liberty without following established legal procedures. | It is not mentioned explicitlyanywhere in the Indian Constitution. |
| Procedure established by law has less scope. | It has a wider scope |
| Borrowed from Japanese Constitution. | Borrowed from the US Constitution. |
| It protects individuals from the arbitrary actions of solely the executive. | Due process of law protects individuals not only from the arbitrary actions of the executive, but also from legislative bodies. |
Procedure Established by Law
- The procedure of law refers to the appropriate enactment of a legislation by the legislature or competent entity, which makes it valid.
- In this context, the court considers whether a law exists, whether the legislature has the authority to enact the law, and if the right procedure was followed during the legislative process, without evaluating the intent of the law itself.
- One fundamental disadvantage of this approach is that it fails to ensure that laws passed by parliament are fair, just, and not arbitrary.
- “Procedure established by law” also means that a law, despite of its departure from principles of justice and equity, is nonetheless legal once properly implemented.
- Because the emphasis is mostly on following the method during lawmaking, there is a greater risk of jeopardizing individuals’ lives and personal liberty as a result of unjust laws enacted by legislative authorities.
- As a result, “procedure established by law” only protects individuals from the executive’s arbitrary actions.
Due Process of Law
- The doctrine of due process of law considers whether a law exists to deprive someone of their life and personal liberty while assuring that the law is fair, just, and not arbitrary.
- If the Supreme Court finds that a law is unfair, it will be declared null and void, ensuring that individual rights are properly protected.
- Under the concept of “due process of law,” all states must protect people’ legal rights.
- State legislation must correspond to ideals of fairness, fundamental rights, and liberty.
- Due process of law ensures that individuals have access to fundamental fairness, justice, and liberty as outlined in statute.
- This theory safeguards individuals from arbitrary measures by both the administration and the legislature.
What is the practical approach in India?
- Article 21 of the Indian constitution states that “no one shall be deprived of his life or personal liberty unless by the method provided by law.”
- Though Article 21 expressly provides that a person’s life and personal liberty can be taken away if a “procedure established by law” (that is, validly passed legislation) is followed, the concept of procedural due process demands that the procedural law be “fair, just, and reasonable.”
- The rights listed above can only be taken away from those who follow the legal system.
Menaka Gandhi vs Union of India Case
- In India, the judiciary has adopted a liberal interpretation since 1978, attempting to make the term ‘Procedure established by law’ synonymous with ‘Due process’ when it comes to defending individual rights.
- In the Maneka Gandhi vs Union of India case (1978), the Supreme Court ruled that a ‘procedure established by law’ under Article 21 must be ‘right, just, and fair’ and ‘not arbitrary, fanciful, or oppressive’; otherwise, it is not a procedure at all and does not meet the requirement of Article 21. Thus, the ‘method established by law’ has taken on the same significance in India as the ‘due process of law clause’ in America.
Conclusion
- “Procedure Established by Law” concentrates on formal obedience to the government’s legal procedures, whereas “Due Process of Law” emphasizes the protection of individual rights and fairness in the application of law and judicial proceedings.
- The decision between these principles has far-reaching consequences for the preservation of individual rights in a legal system.