- The author has shown the contrast between two judgements, one given by the Supreme Court and the Bombay High Court, related to “procedural established by law”.
Article 21 in The Constitution Of India
- Protection of life and personal liberty :- No person shall be deprived of his life or personal liberty except according to procedure established by law.
Difference between “Due process of law” and “Procedure established by law”
Procedure established by law
- It means that a law that is duly enacted by legislature or the concerned body is valid if it has followed the correct procedure.
- In this the court would assess that whether there is law or not, whether the Legislature is competent to frame the law and whether it had followed the procedure laid down to legislate and would not assess the intent of the said law.
- This doctrine has a major flaw. It does not assess whether the laws made by Parliament is fair, just and not arbitrary.
- “Procedure established by law” means a law duly enacted is valid even if it’s contrary to principles of justice and equity.
- Strictly following procedure established by law may raise the risk of compromise to life and personal liberty of individuals due to unjust laws made by the law making authorities. Thus, Procedure established by law protect the individual against the arbitrary action of only the executive.
Due Process of Law
- Due process of law doctrine not only checks if there is a law to deprive the life and personal liberty of a person, but also see if the law made is fair, just and not arbitrary.
- If SC finds that any law as not fair, it will declare it as null and void. This doctrine provides for more fair treatment of individual rights.
- 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 confirm to the laws of the land like – fairness, fundamental rights, liberty etc.
- It also gives the judiciary to assess the fundamental fairness, justice, and liberty of any legislation.
- Thus Due process protect the individual against the arbitrary action of both executive and legislature.
The difference in layman’s terms is as below:
Due Process of Law = Procedure Established by Law + The procedure should be fair and just and not arbitrary.
What is practically followed in India?
- In India a liberal interpretation is made by judiciary after 1978 and it has tried to make the term ‘Procedure established by law’ as synonymous with ‘Due process’ when it comes to protect individual rights.
- In Maneka Gandhi vs Union of India case (1978) SC held that – ‘Procedure established by law’ within the meaning of article 21 must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.
- Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.
Why in news?
- In a recent case, Rajbala v. Haryana (2015), a two-judge bench of the Supreme Court of India strongly rejected the doctrine of substantive due process in India.
- In this case, the constitutional validity of the Haryana Panchayati Raj (Amendment) Act, 2015 was in question.
- The Act was challenged on the ground that it was “wholly unreasonable and arbitrary and therefore violative of Article 14 of the Constitution”.
- Though the Supreme Court rightly held that a statute cannot be invalidated merely because it is “arbitrary”, it also went on to reject the U.S. doctrine of substantive due process by holding that Indian courts “do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution”, as “to undertake such an examination would amount to virtually importing the doctrine of ‘substantive due process’ employed by the American Supreme Court”, and under the Indian Constitution “the test of due process of law cannot be applied to statutes enacted by Parliament or the State Legislatures”.
- The Rajbala decision is particularly interesting because in earlier cases,SC have repeatedly held that substantive due process and due process generally are a part of Indian constitutional law under Article 21 of the Constitution.
The other judgement
- In Shaikh Zahid Mukhtar v. State of Maharashtra, a Division Bench of the Bombay High Court was dealing with the constitutional validity of the Maharashtra Animal Preservation Act, 1976, as amended by the Maharashtra Animal Preservation.
- It was held that the “right of life and liberty under Article 21… clearly covers the [substantive] due process aspect envisaged in the American jurisprudence.”
Thus, interestingly, while the Supreme Court of India in the Rajbala case has strongly rejected the doctrine of substantive due process, the Bombay High Court has, following earlier Supreme Court pronouncements, applied and reiterated the doctrine in Indian constitutional law.