Procedure Established by Law" focuses on the mere existence of a legal procedure, "Due Process of Law" goes a step further by emphasizing the need for fairness and reasonableness in the procedure. Judiciary has played a crucial role in evolving and interpreting these concepts to ensure that the protection of life and personal liberty is meaningful and substantial. The landmark case of Maneka Gandhi v. Union of India (1978) is often cited as a pivotal moment where the Supreme Court expanded the scope of Article 21 to include the principles of natural justice and fairness. The UPSC Indian Polity and Governance Syllabus includes Due Process of Law vs. Procedure Established by Law which is described in this article.

Historical Background - Due Process Of Law Vs. Procedure Established By Law

• The choice between "Due Process of Law" and "Procedure Established by Law" in the Indian constitutional framework stems from a discussion between Sir B.N. Rau, the Constitutional Assembly Advisor, and Frankfurter J. of the U.S. Supreme Court. Frankfurter J. criticized the due process clause as undemocratic and burdensome to the judiciary, allowing judges to invalidate legislation.
• To avoid ambiguity and potential misuse, the constituent assembly opted for "procedure established by law" in the draft Article 15. This decision aimed to prevent anomalies and non-uniformity.
• The Constituent Assembly preferred "process defined by law" to maintain parliamentary supremacy in lawmaking, with constitutional and judicial safeguards for personal liberty. This decision upheld the supremacy of the legislature, striking a balance between legislative authority and individual rights.

Procedure Established By Law

• The doctrine of Procedure Established by Law originated under the English Constitution.
• It confers limited power in the hands of the Judiciary.
• Its deprivation of the life or liberty of individuals is challenged before a court of law.
• It will apply the following three tests to see whether the action of the state in this regard is valid or not.
• Whether there exists a law that authorizes the executive to deprive an individual of his life and liberty.
• Whether the legislature that enacted the law in question had the competence to enact such a law.
• Whether the legislature while enacting the law had followed the prescribed procedure.
• If any of the above tests fail then the court will order for case release of the individual to extend protection to him against the arbitrary actions of the executive. But the court will not apply any further test and see whether the law in question is fair, just, and reasonable. If one court finds it to be arbitrary or oppressive, it will not declare the law as unconstitutional and void and extend protection to individuals against the arbitrary action of the legislature.
• This doctrine realizes more on the good sense of the legislature and on the strength of public opinion in the country.
• It extends the protection to an individual for his life and liberty only against arbitrary action of executive but not against that of legislative.
• Has been mentioned in Article 21 of the Constitution of India.
• Article 21 of the Constitution Of India- Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to the procedure established by law.

Due Process Of Law

• The doctrine of Due Process of Law originated under the US Constitution. In England, due process developed from clause 39 of the Magna Carta.
• It confers wider power in the hands of the Judiciary.
• In a similar situation as described above the court will apply not only the above three cases but it will also examine the law from the broader angle of inheritance of goodness of law by applying Principle of Natural Justice.

Rules Of Principles Of Natural Justice

• No person shall be punished without being heard.
• No person shall be judged by his own case.
• An authority shall act Bonafede (good faith) without any bias.
• If the court finds it to be arbitrary or oppressive it will declare the law invalid and extend protection to the individual not against the arbitrary action of the executive but also against the Legislative.
• Has not been explicitly mentioned in the Constitution of India.

Judicial Pronouncements Related To Procedure Established By Law & Due Process Of Law

• “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,” it was decided in Rameshbhai Chandubhai Rathod v State of Gujarat. Within the scope of Article 21 of the Constitution, those two sections effectively merge the idea of "process established by law."
• In Gopalan vs. State of Madras case, the majority bench of Supreme Court propounded the view that by adopting the expression ‘procedure established by law’, Article 21 of our Constitution had embodied the English concept of personal liberty in preference to that of American ‘due process of law’, even though, according to the minority opinion of the bench, the result of such interpretation was to throw “the most important fundamental right to life and personal liberty” “at the mercy of legislative majorities.”
• The narco-analysis test, lie-detector test, polygraph, and brain-mapping without the subject's involuntary administration and agreement were found to be unconstitutional in Selvi v State of Karnataka. Invoking the concept of 'due process of law,' he made a connection between the right against self-incrimination and the assurance of a fair trial.

What Does India Follow?

• After 1978, the Indian judiciary adopted a liberal interpretation, attempting to make the term "procedure established by law" equivalent with "due process" when it comes to protecting individual rights.
• Under article 21 provided for only doctrine Procedure Established of Law. But Supreme Court of India held in Maneka Gandhi vs Union of India (1978) that a ‘procedure established by law' within the meaning of Article 21 must be ‘right, just, and fair,' and ‘not arbitrary, fanciful, or oppressive,' or it will be no procedure at all, and the requirement of Article 21 will not be met.
• As a result, in India, the phrase "procedure established by law" has acquired the same weight as the phrase "due process of law" in the United States.

Conclusion

While Article 21 initially mandated adherence to a legally prescribed procedure, judicial interpretation has broadened its scope to encompass the principles of fairness, justice, and natural justice under the umbrella of Due Process of Law. The judiciary's role in expanding constitutional protections has been pivotal, ensuring that the right to life and personal liberty is not merely a procedural formality but a guarantee of substantive justice.

FAQs 

Question: What is the difference between "Due Process of Law" and "Procedure Established by Law"?

Question: What is the significance of "Due Process of Law" in the Constitution?

Question: What does "Procedure Established by Law" mean in the Indian context?

Question: Which part of the Indian Constitution mentions "Procedure Established by Law"?

Question: Why is the concept of "Due Process of Law" important in a democracy?

MCQs 

1. Which of the following principles is associated with "Due Process of Law"?

A) Fair, just, and reasonable procedure

B) Procedure as per law

C) Absolute power of the state

D) Use of arbitrary power

2. The term "Procedure Established by Law" is mentioned in which Article of the Indian Constitution?

A) Article 21

B) Article 14

C) Article 19

D) Article 32

3. The concept of "Due Process of Law" was introduced in India through which case?

A) Kesavananda Bharati case

B) Maneka Gandhi case

C) Golaknath case

D) Minerva Mills case

4. Which of the following is a key difference between "Due Process of Law" and "Procedure Established by Law"?

A) Due Process requires fairness, while Procedure Established by Law is about following a legal process

B) Procedure Established by Law is concerned with human rights, while Due Process is not

C) Due Process is less important than Procedure Established by Law

D) There is no difference between the two

5. Which concept from the U.S. Constitution influenced the "Due Process of Law" in India?

A) Habeas Corpus

B) Judicial Review

C) Bill of Rights

D) Due Process Clause

GS Mains Questions and Model Answers

Q1: Discuss the distinction between "Due Process of Law" and "Procedure Established by Law" in the Indian context.

Answer: The distinction between "Due Process of Law" and "Procedure Established by Law" is fundamental in understanding how rights are protected in India.

Procedure Established by Law (Article 21 of the Indian Constitution) permits the state to deprive an individual of their life or liberty, provided it follows a procedure laid down by law. However, this procedure need not be just or reasonable; it merely needs to be legally valid.

Due Process of Law, though not explicitly mentioned in the Indian Constitution, was judicially incorporated by the Supreme Court in the Maneka Gandhi case (1978). It requires that the procedure followed must not only be legally valid but also fair, just, and reasonable. This principle safeguards individuals from arbitrary action by the state and ensures the protection of fundamental rights. The Supreme Court has, over time, adopted the "Due Process" approach, particularly in cases where individuals' rights were at risk of arbitrary curtailment by legal procedures that did not meet the standard of fairness.

Q2: How does "Due Process of Law" safeguard individual rights against arbitrary state actions?

Answer: "Due Process of Law" safeguards individual rights by ensuring that the state cannot deprive a person of their life or liberty through arbitrary actions. Under this principle, any law or procedure that deprives an individual of their rights must pass the test of fairness, justice, and reasonableness. If the procedure prescribed by law violates these principles, it would be deemed unconstitutional. The incorporation of "Due Process" into Indian jurisprudence, particularly through the Maneka Gandhi case (1978), made it clear that fundamental rights are not just about following procedures but about adhering to just and reasonable standards that respect the dignity and rights of individuals.

Q3: Explain the judicial shift in India regarding the "Due Process of Law" with reference to the Maneka Gandhi case.

Answer: The Maneka Gandhi case (1978) marked a significant judicial shift in India concerning the interpretation of Article 21 of the Constitution. Before this case, the Indian judiciary followed the concept of "Procedure Established by Law," which allowed the government to curtail individual rights as long as there was a legal process in place. However, in Maneka Gandhi v. Union of India, the Supreme Court expanded the interpretation of Article 21 to include the "Due Process of Law" principle, inspired by the American Constitution. The Court held that any law that violates personal liberty must not only follow a legal procedure but also ensure that such procedure is fair, just, and reasonable. This judgment broadened the scope of Article 21 and provided greater protection against arbitrary state actions, emphasizing the need for a procedural fairness standard that aligns with natural justice principles.

Previous Year Questions on Due Process of Law vs Procedure Established by Law

1. UPSC CSE 2023

Question: What is the significance of "Due Process of Law" in protecting personal liberty in India?

Answer: "Due Process of Law" significantly enhances the protection of personal liberty in India by ensuring that no person is deprived of their rights arbitrarily or unjustly. The concept, incorporated in the Indian judicial system through the Maneka Gandhi case (1978), emphasizes that any law or procedure that curtails personal liberty must meet the standards of fairness, reasonableness, and justice. It provides a robust safeguard against potential misuse of power by the state, requiring not only that laws are followed but that they respect the fundamental rights guaranteed by the Constitution.

2. UPSC CSE 2022

Question: Explain the legal and constitutional differences between "Due Process of Law" and "Procedure Established by Law" in the context of the Indian legal system.

Answer: In the Indian legal system, the difference between "Due Process of Law" and "Procedure Established by Law" lies in the extent of protection for individual rights.

Procedure Established by Law allows for the deprivation of life and liberty as long as the procedure followed is legally valid, irrespective of whether it is fair or reasonable.

Due Process of Law, introduced through the Maneka Gandhi case (1978), requires that any procedure followed to deprive an individual of their rights must also be fair, just, and reasonable.

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