DUE PROCESS AND PROCEDURE ESTABLISHED BY LAW

AUTHOR: Nisha Harish,

 III Year,

School of Law, Christ (Deemed to be University).

The current research article is aimed at differentiating between the Due Process of Law and Procedure Established by Law along with their benefits, in systems where they are followed. The term “procedure established by law” is used directly in the Indian constitution. Procedure Established by law, means that a law that is duly enacted by the legislature or the concerned body is valid if it has followed the correct procedure. Due Process of Law has much wider significance, but it is not explicitly mentioned in Indian Constitution. 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 the fundamental fairness, justice, and liberty of any legislation. This paper deals in detail with the difference between the Due Process of Law and Procedure Established by Law, by specifically dealing with its application in the Indian context. In doing so the paper takes into consideration landmark cases like the A.K Gopalan case, Maneka Gandhi case and the A.D.M. Jabalpur case so as to understand the application of Procedure Established by Law and thereby the difference with Due Process of law.

Due Process of Law, Procedure Established by Law, Positive Law, Natural Law, Legislation

The Indian Constitution, the grundnorm of the country was adopted on 26th November 1949 and came into force on 26th January 1950. The constituent assembly adopted various parts of the constitution from different countries. The Parliamentary system, legislative procedure, concept of rule of law was adopted from Britain. The concept of Fundamental rights, Independence of Judiciary, Judicial review was adopted from the United States of America. The concept of Directive Principles of State Policy, method of election of President was adopted from Ireland.

The Indian constitution framers did not include the due process clause which is quite prevalent in the Anglo-American tradition but chose to include the concept of The phrase “procedure established by law” is borrowed from Article 31 of the Japanese Constitution. The simple meaning of this phrase must mean the basic procedures prescribed by the state. By adopting this principle, the constitution gave the legislature the final word to determine the law. 

“No person shall be deprived of his life or personal liberty except according to procedure established by law.” 

“…nor be deprived of life, liberty or property, without due process of law…” 

Dr. B.R. Ambedkar on 13th December 1948 deliberated on whether the phrase “due process” or “procedure established by law” should be incorporated in the Constitution of India.

“The question of “due process” raises, in my judgment, the question of the relationship between the legislature and the judiciary. In a federal constitution, it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature. If the law made by a particular legislature exceeds the authority of the power given to it by the Constitution, such law would be ultra vires and invalid. We have no doubt given the judiciary the power to examine the law made by different legislative bodies on the ground whether that law is in accordance with the powers given to it. The question now raised by the introduction of the phrase ‘due process’ is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles.” There are two viewpoints to the remarks made by Dr. B.R. Ambedkar on “due process “The legislation should not make any laws which abrogate the fundamental rights guaranteed to every individual and the legislation may be trusted with this responsibility of making such valid laws. The legislation is subjected to introduce those laws which will curtail the basic rights given to the citizens and the legislation is likely to err.

One cannot reasonably omit that the legislature will make laws that will reasonably abrogate the individual rights at the same time how five or six gentlemen sitting in the Federal or Supreme Court examining laws made by the Legislature and by dint of their own individual conscience or their bias or their prejudices be trusted to determine which law is good and which law is bad.

Therefore, “procedure established by law” is an apt phrase to be incorporated in the Constitution for various reasons substantiated in the later part of the study.

Natural law is an ideal which aid in the development of law. It is a dictate of the reasons which are prevalent in the universe. It creates a separation between what the law is and the law ought to be. Natural law is the highest form of law, which renders all other laws as invalid in nature. The laws that are legislated has to conform itself to the basic tenets of the law under natural law. Cicero had stated that law is just and reasonable in nature and hence cannot be arbitrary against an individual.

An early example of due process can be seen post the MAGNA CARTA agreement as it defined the rights of the English subject against ruler. A fundamental constitutional guarantee should be of the form where, all the legal proceedings should be fair and non-arbitrary in nature. The principle of Due process keeps the governmental agencies subservient to the law of the land thereby protecting the interest of the individuals in the state. In USA, the responsibility of judging whether law is just and reasonable is vested in the hands of the court. The legislature has a right to vindicate the reason for passing a particular legislation in the court of law, as a result of which, no arbitrary provisions can be implemented.

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KK Munshi during the constituent assembly debates had opined as to the fact that The

‘Due Process’ clause gives the court the power to examine the jurisdiction of the court, the procedural aspect of law, the relevant jurisdiction of the legislature and above all the substantive aspect of law. As a result, the government will have to go to court and give a reason why legislation was passed and also give a relevant justification for the same. In a democratic framework, this gives the legislature an ample opportunity to vindicate the measure they take, in the court of law. 

Kazi Syed Karimuddin stated during the constituent assembly debate that- as soon as the procedure established by law is complied with, the duty of the court will come to an end. The court at this juncture cannot challenge any law which is unjust or capricious in nature. The due process clause will help in restraining the power of the political part that comes into power. cannot infringe the basic inalienable rights like the Fundamental Right that are given to an individual. 

In the case of Chambers v. Florida, the Supreme Court had held that the various practices which were taken up by the state to the extent of applying police pressure resulting in confession of the accused was held to be violative of the due process clause. 

Procedure Established by law under Article 21 implies the law that is enacted by the legislature at any point of time. The Parliament has the authority and power to change rocedures prescribed by enacting a different law and thereby amending the provision that was prevalent earlier, and when this procedure is changed, it takes the form of ‘procedure established by law’. 

The term ‘law’ means an enacted piece of legislation and does not embody the principles of natural justice. 

Procedure established by law” is an evolving concept subject to changes in the procedures of law made by the legislators or the law making body of the state. Thus, ‘law’ would not include mere executive or departmental instructions. 

The positivist thought emphasizes that the sovereign makes the law for his subjects and makes it from a position outside any law and there can be no legal limits on his law-creating power. There can be only legal limits on the legislation or law of the sovereign, but when these limitations are exercised on the legislator then the legislator is no more the sovereign. This theory does not necessarily suggest that there are no legal limits in the laws derived from the sovereign, but wherever there is existence of such law it is backed by the sovereign as the legislator. So the sovereign can in fact defer exercising such power which are against the popular opinion and fear the consequences if implemented against the will of the people. Therefore, the public revolt and moral conviction will in fact influence the sovereign and act as the ‘legal limits’ on the laws of the sovereign. 

The inherent question that arises out of this concept is whether any procedure so established will have the legal sanctity and become a law or there are few restrictions on the proposed procedure to become a law. Similarly, the legality of law when the established procedure of law violates the fundamental rights guaranteed to every citizen under the constitution of India was not yet considered until the supreme court laid down the ratio in the Maneka Gandhi Case.

The constituent assembly was pertinent to include the term procedure established by law instead of due process due to several reasons. In the constituent assembly debate, it was pointed out by Sir Alladi Krishnaswami Ayyar- “The expression ‘due process’   itself as interpreted by the English Judges connoted merely the due course of legal proceedings according to the rules and forms established for the protection of rights, and a fair trial in a court of justice according to the modes of proceeding applicable to the case. Possibly, if the expression has been understood according to its original content and according to the interpretation of English Judges, there might be no difficulty at all. The expression, however, as developed in the United States Supreme Court, has acquired a different meaning and import in a long course of American judicial decisions. Today, according to Professor Wills, the expression means, what the Supreme Court says what it means in any particular case. In the development of the doctrine of `due process’, the United States Supreme Court has not adopted a consistent view at all and the decisions are conflicting. One decision very often reversed another decision. There is no sort of uniformity at all in the decisions of the United States Supreme Court.” 

The question of interpretation of term procedure established by law arose in the case of A K Gopalan v. State of Madras  where the Preventive Detention Act of 1950 was challenged on the basis of its validity. It was contended in the case that ‘procedure established by law’ under Article 21 of the Constitution is similar to American concept of processes. The honb’le Supreme Court rejecting the contention held firstly, the term ‘due’ is absent under Article 21, the entire effectiveness of the concept arises from the word ‘due’. Secondly, the ‘due process’ clause was omitted from the constitution and substituted with the term ‘procedure established by law, in order to avoid the uncertainty surrounding the entire concept in USA as it had varied from judge to judge, depending on the subject from time to time.

The AK Gopalan case had a great emphasis on positive school of thought. The court’s approach was extremely static, mechanical and colored by the positivist theory or imperative theory of law.  The supreme court in, held that fundamental rights were considered to be separate and distinct silos, which were mutually exclusive rather than overlapping.

In the majority opinion in AK Gopalan case, the court had decreed the fact that natural justice was vague and uncertain in nature and hence had adopted the positive approach The term ‘law’ should be construed in a broader sense and not strictly as ‘enacted law
’.

During the time of emergency between 1975-1977, the Supreme Court in A.D.M. Jabalpur v. Shivkant Shukla , held that once Article 21 was suspended by a Presidential Order under Article 359, the court could not enquire whether the deprivation of life or liberty of an individual was authorized by law. This decision of the Supreme Court was criticized to great extent because it is in contravention to the basic idea of “procedure established by law” which in itself strives to provide every person the basic rights such as life and liberty. Further in Maneka Gandhi case  the Supreme Court provided the clarity regarding the fundamental rights in contravention to the substantial and procedural laws of the state.

In 1978, the 7-judge bench of the Supreme court in Maneka Gandhi v. Union of India16, taking view that, fundamental rights are overlapping, and laid down a limitation upon law-making as well namely that the procedure prescribed for depriving a person of his life or personal liberty must be reasonable, fair and just. 

This case had a huge implication on the development of Constitutional Law in India. According to Justice Iyer, “Article 21 has the procedural Magna Charta protective of life and liberty”  Post the Maneka Gandhi case, it has given a new meaning to the article and it has become a major source of many substantive and procedural safeguards to the people.

Austin insisted on the separation of the two fields of enquiry – that is to say, “law as it is” from the law “as it ought to be”.  But this ideology does not take into consideration the moral element while formulating the law and the various legislations. According to the natural school of thought, law was to be judged in the light of the extent to which it protected certain rights, such as the rights to liberty and property. This was an individualistic doctrine.  

In the first place, there is recognition of the fact that there are basic rules and rights which, by their very nature, demand to be recognized by the legislator (rules prohibiting murder and theft, the right to life and property) and which can never be thrust aside on the ground that they are not, at any particular time or in any particular place, conducive to the good of the people. When we take the concept pf due process, the various legislations made by the legislatures can be checked by the court for the purpose of verifying that it is not arbitrary in nature whereas, it terms of procedure established by law, it only takes into consideration if procedure is in consonance with the enacted law. On the whole, the power of the court is limited into looking if the legislation is not in sound with the principles of natural justice.

In this respect, Kelsen is forced into the position of recognizing legal obligation alone (in a juristic inquiry) and excluding moral criteria of obligation. In his mind, there is no half-way position, as Austin would like it. Even if the subject refuses to obey a particular rule in a legal system, an official of that system is still obliged to carry out the duty imposed upon him to apply that rule. 

The fact is, I think, that Kelsen sees only one part of the picture. In his mind, the law is a logically self-contained system of norms deriving their validity each from a superior norm and referable ultimately to a Grundnorm. At least, however, he differs from Kelsen in recognizing that there may be a moral obligation to disobey rule of law.

When the natural law faded into the back- ground, the legal theorist found himself with no effective moral foundation for positive law and consequently felt himself excused from inquiring into the moral question. This may have brought in its train the feeling that a legal system was “self-sufficient”.

But we must also assert that there is a relationship between law as it is and law as it ought to be. We do this in order to point to the fact that a system of legal rules must be in accord with moral values if it is to satisfy the needs of those who are subject to its direction. Today, it seems, we ought to make this assertion.

When we say that there is a relationship between law as it is and law as it ought to be, we are drawing attention to the fact that the jurist ought to be concerned with the moral value of law. 

BOOKS: –

1. DATAR, THE COMMENTARY ON THE CONSTITUTION OF INDIA,

2ND EDITION, 2007

2. DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA, 15TH EDITION, VOLUME 1, LEXIS NEXIS

3. M.P. JAIN, INDIAN CONSTITUTIONAL LAW, 5TH, 2009

4. DONALD P. KOMMERS AND JOHN E. FINN, AMERICAN

CONSTITUTIONAL LAW, 3RD EDITION

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[1] A.K Gopalan. v. State of Madras, A.I.R 1950 S.C 27

[2] INDIA CONST. art 21 

[3] U.S CONST. amend. V

[4] Debates of the Constituent Assembly, Volume 7

[5] Debates of the Constituent Assembly, Volume 7

[6] 309 U.S. 227 (1940)  

[7] Krishna S v. State of Madras, 1951 S.C.R 621

[8] Ram Chandra Prasasd v State of Bihar, A.I.R 1961 S.C 1629

[9] Patnaik D. Bhuvan Mohan v. State of A.P., A.I.R 1974 S.C 2092

[10] The Concept of Law, H.L.A Hart

[11] Debates of the Constituent Assembly, Volume 7, Page 853

[12] 1950 A.I.R 27

[13] Edwards McWhiney, Judicial Review, pp: 133-138

[14] A.I.R 1976 S.C 1207

[15] A.I.R 1978 S.C 597 (India)

[16] Francis Coralie Mullin v. Union Territory Delhi, Administrator, AIR 1981 SC 746

[17] P.S.R Sadhanantham v. Arunachalam, AIR 1980 SC 856

[18] Hart, Positivism and the Separation of Law and Morals, 71 Harv.L.Rev. 593 (1958);

[19] It is true that Grotius lays stress on the “sociable” nature of man. Later writers, such as Thomasius, turn this into a psychological theory in which in- dividual needs are emphasized. Moreover, the post Grotian doctrine is based on the idea of a social contract.

[20] Hans Kelsen, General Theory of Law and the State, pp.59-61, Twentieth Century Legal Philosophy Series (1949)

[21] Cf. Marshall, Political Philosophy for Lawyers, in 4 Political Studies 198, 200 (1956): “The ‘relationship between law and morals’ is itself a blanket phrase under cover of which from time to time an unmistakable but confused chance medley can be observed