UPSC Polity Notes

Due Process of Law vs Procedure Established by Law

Due Process of Law

Due process of law is a fundamental principle that guarantees fair treatment through the normal judicial system, especially as a citizen’s entitlement. It is a constitutional guarantee that prevents governments from impacting citizens in an abusive way. In the United States, due process is enshrined in both the Fifth and Fourteenth Amendments to the U.S. Constitution. The Fifth Amendment’s due process clause applies to the federal government, while the Fourteenth Amendment applies to state governments.

Procedural Due Process

This ensures that before depriving a citizen of life, liberty, or property, the government must follow fair procedures. This means individuals must be given an adequate notice, a fair hearing, and a chance to defend themselves before an impartial judge. It ensures that laws are not applied arbitrarily and that individuals have an opportunity to present their case.

Example: If a person is accused of a crime, procedural due process guarantees that they have the right to a fair trial, which includes the right to be heard in court, the right to an attorney, the right to confront witnesses against them, and the right to a jury trial.

Substantive Due Process

This aspect focuses on the content of the laws themselves, ensuring that laws do not violate fundamental rights unless absolutely necessary. Substantive due process protects individuals from government actions that are not just unfair but are also irrational or arbitrary, regardless of the procedures used to implement them.

Example: A law that bans all forms of public protest would likely be seen as violating substantive due process because it infringes on the fundamental right to free speech. Even if the government were to provide fair procedures for enforcing this law, the law itself would be unconstitutional because it violates a basic liberty.

Due process is a critical concept in safeguarding individual rights and maintaining the balance between the power of the state and the rights of its citizens. It ensures that the government cannot take away a person’s basic rights without going through a fair and formal process. This principle is not only foundational to the American legal system but is also a key aspect of human rights protections around the world.

Procedure Established by Law

“Procedure Established by Law” is a legal principle that signifies that a government can deprive someone of their life, liberty, or property as long as such deprivation is based on laws created through a legitimate process. This principle emphasizes the supremacy of law and the requirement that all actions by the government must follow the laws that have been formally established. Unlike “Due Process of Law,” which focuses on the fairness, reasonableness, and justice of the law itself, including the procedures used, “Procedure Established by Law” primarily concerns itself with the legality of the law. It does not delve into whether the law is just or fair.

This concept is more closely associated with legal systems like that of India, where it is enshrined in Article 21 of the Indian Constitution, which states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” This means that as long as the government follows a law that has been properly created, its actions are considered valid.

Example of Procedure Established by Law

Imagine the government of a country passes a law that requires a person to obtain a permit before holding a public demonstration. If a person holds a demonstration without obtaining this permit, the government can take action against them (such as imposing a fine or arresting them) because they violated the “procedure established by law.” In this case, the focus is not on whether the law restricting demonstrations is fair or just but rather on whether the person’s actions were in accordance with the law as it has been established.

It’s important to note that while “Procedure Established by Law” ensures that laws are followed, it does not necessarily protect against potentially oppressive laws. As long as the law is passed through the correct legislative process, any action taken under that law is considered valid. This is a key difference from the “Due Process of Law” principle prevalent in the United States, which also considers the fairness and justness of the law itself, not just the procedure used to enact it.


Maneka Gandhi Case (1978) & Its Impact on Procedure Established by Law 

The Maneka Gandhi vs Union of India case of 1978 is a landmark judgment by the Supreme Court of India that significantly expanded the interpretation of the right to life and personal liberty under Article 21 of the Indian Constitution. This case is often cited for its role in evolving the concept of “Procedure Established by Law” in India towards incorporating elements of “Due Process of Law” as understood in the American legal system.

Background of the Case:

Maneka Gandhi’s passport was issued in 1976. In July 1977, the Government of India issued a letter to her, informing her that her passport was being impounded “in the public interest” under the Passport Act of 1967, and she was required to surrender her passport within seven days. The government did not provide any reasons for this action. Maneka Gandhi challenged this action in the Supreme Court, arguing that her right to personal liberty, as guaranteed under Article 21 of the Constitution, had been violated.

Supreme Court Judgment:

The Supreme Court, in its judgment, made several key observations and rulings:

  1. Right to Travel Abroad: The Court recognized that the right to travel abroad is part of the “personal liberty” guaranteed under Article 21.
  2. Interpretation of Article 21: The Court held that the right to life and personal liberty under Article 21 could not be restricted by a law unless that law prescribed a procedure which is fair, just, and reasonable. The Court observed that the procedure cannot be arbitrary, unfair, or unreasonable.
  3. Interconnection of Rights: The judgment also established the interconnection between Articles 14 (Right to Equality), 19 (Protection of certain rights regarding freedom of speech, etc.), and 21, stating that any law depriving a person of personal liberty must also meet the requirements of Articles 14 and 19.
  4. Natural Justice: The Court emphasized the principles of natural justice, stating that the procedure established by law must include a right to be heard and the opportunity to challenge the action.
  5. Expansion of Article 21: This case marked a significant shift from a narrow interpretation of “Procedure Established by Law” to an interpretation that incorporated elements of “Due Process,” making the law not just about the procedure but also about being fair, just, and reasonable.

Impact of the Judgment:

The Maneka Gandhi case is considered a watershed moment in the evolution of constitutional law in India. It expanded the scope of Article 21 to include a wide range of rights that constitute the right to life and personal liberty. The judgment ensured that any law that seeks to deprive a person of their life or personal liberty must not only follow a procedure established by law but also that such procedure must be fair, just, and reasonable. This case laid down the foundation for judicial review of laws and actions based on their fairness and reasonableness, significantly enhancing the protection of fundamental rights in India.