Approach

Introduction: Differentiate between ‘procedure established by law’ and ‘due process of law’ as legal principles.

Main Body:

1. Procedure Established by Law:
   1. Origin: Indian Constitution, Article 21.
   2. Definition: Allows deprivation of life or liberty under legislated procedure.
   3. Scope: Limited to procedural adherence; excludes law’s fairness review.
   4. Example: Gopalan case (1950) limited protection to executive actions.
2. Due Process of Law:
   1. Origin: American Constitution.
   2. Definition: Ensures fair, just, and reasonable legal procedure.
   3. Scope: Broader, includes substantive and procedural fairness.
   4. Example: US Supreme Court uses due process for extensive judicial review.

Conclusion: Highlights how ‘due process of law’ offers wider rights protection compared to ‘procedure established by law’ in India

Ans. The concepts of ‘procedure established by law’ and ‘due process of law’ are fundamental principles in constitutional law, particularly in the context of protecting individual rights and liberties. These principles are used to determine the constitutionality of laws and the actions of the state.

Procedure Established by Law

1. Origin: The concept of ‘procedure established by law’ is derived from the Indian Constitution, specifically Article 21.
2. Definition: It means that a person can be deprived of their life or personal liberty according to the procedure laid down by a law enacted by the legislature.
3. Scope: The scope is narrower as it focuses only on whether the procedure prescribed by the law has been followed. It does not question the fairness, justness, or reasonableness of the law itself.
4. Judicial Review: Under this principle, the judiciary examines only the substantive question of whether the law is within the powers of the authority concerned. It does not delve into the reasonableness or policy implications of the law.
5. Example: In the Gopalan case (1950), the Supreme Court of India held that the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action.

Due Process of Law

1. Origin: The concept of ‘due process of law’ is derived from the American Constitution.
2. Definition: It means that a person can be deprived of their life, liberty, or property only through a fair, just, and reasonable legal procedure.
3. Scope: The scope is broader as it includes both substantive and procedural aspects. It ensures that the law itself is fair, just, and reasonable, in addition to the procedure being followed.
4. Judicial Review: Under this principle, the judiciary has a wider scope to grant protection to the rights of citizens. It can declare laws void not only on substantive grounds of being unlawful but also on procedural grounds of being unreasonable.
5. Example: The American Supreme Court has used the ‘due process of law’ clause to exercise wide powers of judicial review, making it a ‘third chamber’ of the Legislature, a super-legislature, and the arbiter of social policy.

Key Differences

1. Scope of Judicial Review: ‘Procedure established by law’ limits judicial review to the question of whether the procedure prescribed by the law has been followed, whereas ‘due process of law’ allows for a broader review, including the reasonableness and fairness of the law itself.
2. Protection of Rights: ‘Due process of law’ provides greater protection to individual rights as it ensures that both the law and the procedure are fair, just, and reasonable. ‘Procedure established by law’ focuses only on the adherence to the procedure laid down by the law.
3. Application: ‘Procedure established by law’ is applied in India, while ‘due process of law’ is applied in the United States.
4. Prior to the Maneka Gandhi case, the scope of Article 21 of the Indian constitution was very narrow; However, in the above-mentioned case, the Supreme Court widened the scope of Article 21 of the Indian constitution by stating that “due process of law” is an integral part of “procedure established by law.”

In conclusion, while both principles aim to protect individual rights, ‘due process of law’ offers a more comprehensive safeguard by ensuring the fairness of both the law and its application, whereas ‘procedure established by law’ is more limited in scope, focusing only on the adherence to the prescribed legal procedure.