Doctrine of Due Process of Law
Table of contents
Introduction: What is the doctrine?
Kinds of Due Process
- Procedural Due Process
- Substantive Due Process
- Keshavananda Bharti v. State of Kerala
Its evolution
- Due process in England
- Due process in USA
- Barron v. The Mayor and City council of Baltimore
- Murray’s Lessee v. Hoboken Land and Improvement Co.
- Due Process in India
- K. Goplan v. Union of India
- Rustom Cavasjee Cooper v. Union of India
Salient features
Landmark judgements in relation to India
- K. Goplan v. State of Madras
- ADM, Jabalpur v. Shivkant Shukla
- Shankari Prasad Singh v. Union of India
- Sajjan Singh v. State of Rajasthan
- C. Golak Nath v. State of Punjab
Critical analysis
Conclusion
1. Introduction: What is the doctrine?
The phrase “due process of law”, found by the Fifth Amendment of the US constitution is equivalent to the phrase “law of the land”. The Doctrine of Due Process of Law is a constitutional guarantee that prevents government from arbitrary, unreasonable and capricious use of power on citizens. Sense of Justice requires due process of law to establish the principles of natural justice. It also balances the power of the state to regulate rights of people and individual rights. The word “Due” in America has been interpreted as ‘reasonable’, ‘just’ and ‘proper’. This concept has been implemented differently in different parts of the world, depending upon the circumstances and need of the hour.
2. Kinds of Due Process
- Procedural Due Process– It protects the individual from any unfair and arbitrary process adopted by the state to deprive individuals of their rights. It ensures that the process of decision making should be just. For example, procedural due process must serve sufficient notice to the accused; give the accused a chance to present his arguments and evidence, etc.
- Substantive Due Process– It ensures that the government power of law making must be suitable with the spirit of the Constitution. In Keshavananda Bharti v. State of Kerala court held Judicial review power is fundamental to the legal system. If legislations are incompatible with the system of democracy and individual rights, such legislation is unconstitutional and needs to be set aside.
3. Its evolution
a. Due process in England
It traces its origin from Dicey’s rule of Law; it is nothing but the due process of law which emerged from customary law of land. King John’s Magna Carta, 1215 which provides that no freeman will be seized, harmed or dispossessed of his property except by ‘the law of the land’. The phrase “Due Process of Law” first appeared in 1354 Magna Carta of King Edward III as a substitute to ‘the law of the land’. Magna Carta became the base of British Constitution. In Bonham’s case, sir Coke said that the common should control acts of parliament. But British legal system developed on the omnipotence of parliament which is the reason for no limits imposed on parliament. Hence, the British Parliament is supreme and the judiciary does not enjoy the power of Ultra Vires of legislation.
b. Due process in USA
American independence is a symbol of victory of civil and political rights if Human beings but unfortunately the federal constitution of the United States of America did not have a clause of ‘Due Process of Law’. The United States of America adopted its Constitution on September 17, 1787 which originally had no provision for Due Process of Law. Later on, in Fifth Amendment the phrase “Due Process of law” was equivalent to “Law of the land”. In the case of Barron v. The Mayor and City council of Baltimore, the US Supreme Court held that the Bill of Rights is applicable to the Federal Government but not to State Legislatures. By Fourteenth Amendment of US Constitution due process clause was made applicable to State Legislatures. Sir Edward Coke concept even restricted parliament in the USA. Mr. Madison, known as the father of American constitution, had pointed out that the doctrine of due process of law is necessary not only to the executive but also to the legislative power of the federal government. The concept of ‘Due process of law’ developed in the USA from judicial pronouncements. In the case of Murray’s Lessee v. Hoboken Land and Improvement Co., The Supreme Court adopted twin test, firstly, it looked at the settled usages and modes of preceding that were applicable on American society and secondly, it also examined whether common law practice be in conflict with constitution of USA.
The general concept followed by American courts in matter of due process of law is that in case of fundamental rights matter which involves and stake life, property and personal liberty then state must have compelling objectives and its statute must be strictly interpreted to achieve the desired objective. Whereas, in case of non-fundamental rights of citizens the state has a duty to interpret statute with legitimate objective so that statute can rationally achieve its goal.
c. Due Process in India
The expression ‘Due process of law’ is not mentioned in any of the provisions of Indian Constitution. Thereby, it has emerged from the golden triangle i.e., Article 14, 19 and 21. By judicial interpretations ‘procedure established by law’ in Article 21 has been interpreted as ‘due process of law’. The Drafting Committee intention behind the inclusion of ‘procedure established by law’ in Article 21 was that due process will give supremacy to judiciary which will hurdle social transformation and create confusion. In the case of A.K. Goplan v. Union of India, the Supreme Court of India held that Article 21 is complete code; principle of natural justice and reasonableness of Article 19 need not to be imposed on it. Court opinion at that time was when a person is arrested by procedure established by law he cannot challenge his detention.
With the passage of time this approach of the judiciary shifted from procedure established by law to procedural due process. Commonly known as Bank Nationalization case (Rustom Cavasjee Cooper v. Union of India) overruled Goplan case and held that fundamental rights are not complete code. By 24th and 25th amendment parliament tried to nullify bank nationalization case judgement. Further, by article 13, and 368 parliament established its supremacy. Article 31-C (DPSP’s) insulated law from judicial scrutiny. Parliament power to amend the Indian Constitution is permissible to the extent it does’t violate the ‘basic structure of Constitution’. The theory of basic structure reflects substantive due process of law which is akin in the USA.
The Foundation case for ‘due process of law’ in India is Maneka Gandhi case, which incorporated the concept of non-arbitrariness. The court held that any law formed to deprive a person of his life and personal liberty under Article 21 should not be Arbitrary, Unfair or Unreasonable.
4. Salient features
Largely the following elements are considered to be part of ‘Due Process of Law’, both in criminal and civil justice system:
- Right of Fair representation by legal representative.
- Adequate notice of charge.
- Impartial judiciary.
- Protection against ex-post-facto laws.
- Follow principle of nemo debet bis vexari pro una et eadem causa, i.e., Protection against Double Jeopardy.
- Follow principle of nemo tenebatur prodere seipsum; Right against self-Incrimination.
- Right to fair procedure.
- Right to know the facts of arrest and reason of his/her arrest.
- Right to Speedy Trial.
- Right to Bail.
- Also, Follow legal maxim el incumbit probation qui dicit, non qui negat, presumption of innocent.
- Public and Open trial.
- Audi alteram partem e., right to be heard.
5. Landmark judgements in relation to India
Dr.B.R. Ambedkar said “…the ‘due process of law’ in my judgement, would give judiciary the power to question the law in keeping with certain fundamental principles….it will give power to judiciary to even question powers of legislature making the law….” Kazi Syed Karimuddin said if words ‘procedure established by law’ retained in constitution it will be the saddest day in the history of Indian Constitution. He further said if ‘procedure established by law’ included it will be great injustice to the motherland and its people. Once such a phrase is included the legislature will get ultimate power, and the court won’t be able to question them no matter how unjust and unfair the law they make.
One of the different views was expressed by B.N.Rao, the Constitution Advisor who believed that due process of law will give excessive powers to the courts. Therefore, two very different views emerged. One view trusted legislature for the purpose of making any law which would abrogate the very basic fundamental right i.e., right to life and other view trusted judiciary to keep a check on the power of legislature and declare unconstitutional which is made by parliament in bad faith. Finally, the house voted in favour of ‘procedure established by law’ thereby, article 21 gave an unquestionable right to parliament to make any law to deprive a person for life and personal liberty.
In A.K. Goplan v. State of Madras, validity of preventive detention act, 1950 was challenged. It was held that “procedure established by law” means procedure enacted by state to make law. Moreover, it rejected the interpretation of “procedure established by law” as ‘due process of law’ of American Supreme Court. Between the two meanings ‘lex’ (means law) and ‘jus’(means justice), the court chose ‘lex’(Law). In the ADM, Jabalpur v. Shivkant Shukla, the Supreme Court held that article 21 was the sole repository against illegal deprivation by the executive. In the Shankari Prasad Singh v. Union of India, the court held that Article 368 empowers parliament to amend the Constitution without any exception. 13 years later, in the Sajjan Singh v. State of Rajasthan, the relation between Article 13 and 368 was established. However, the question whether the fundamental rights can be amended or diluted or taken away by parliament through a Constitutional amendment remained unanswered. The L.C. Golak Nath v. State of Punjab case, overruled Shankari Prasad Singh and Sajjan Singh judgements that the fundamental rights are non-amendable through procedure set out in Article 368.
In 1971, Parliament enacted 24th and 25th constitutional amendment act, to do certain modification in Article 13 and 368 to get over Golak case and assert the power to parliament to amend the fundamental rights. Constitutional validity of 24th and 25th constitutional amendment act was challenged in Supreme Court in Kesavananda Bharti case. The matter was heard by 13-judges bench because they have to decide on Golak case which was 11-judges bench. It was held by Supreme Court that the power to amend remains in Constitution in Article 368 but it is subjected to the basic structure or Fundamental features of Constitution. The Supreme court in Maneka Gandhi case, held that “procedure established by law” in article 21 meant procedure that are reasonable, just and fair. A free and fair trial is a sine qua non of article 21 of the constitution of India because justice must not only be done but it should seems to be done to maintain the faith of people in judiciary.
6. Critical analysis
“Due Process” unlike other concepts of law, is not technical a concept which has fixed contents unrelated to time, place and circumstances. This concept cannot be treacherous, limited to any formula. The concept of due process of law is the heart and soul of Human rights because the prime most human right is to live; all other human rights arise out of this basic right. It is very important to have a reasonable, just and fair law to restrict this basic human right i.e., right to life.
Walter Bagehot, Famous journalist said “there is nothing the British parliament cannot do except transform man into woman and woman into man”. Even the Human Rights Acts, 1998 acknowledged supremacy of parliament. As, if legislation is inconsistent with Human rights then it can be declared incompatible but cannot be declared invalidated. This supremacy of UK parliament is still present in the 21st century, which leaves ample room for law to be arbitrary in nature and violate the doctrine of due process of law.
7. Conclusion
The word ‘Due Process of Law’ has its roots from Magna Carta, just like a tree most of the part of this concept is developed from common legal system and customary usages. This word has been interpreted and reinterpreted from time to time keeping in mind the need of the hour and circumstances. Different countries have different understanding of the concept of ‘Due Process of Law’. It also obligates the states to respect the rights of the people which they have and any deprivation in these rights shall not be unreasonable, unfair or arbitrary in nature.