The Due Process Of Law Vis-À-Vis Procedure Established By Law: A comparative Analysis

The Due Process Of Law Vis-À-Vis Procedure Established By Law: A comparative Analysis In The Context Of India, USA And UK

Naureen Hera & Akshay Sujeet Karlekar, Maharashtra National Law University, Mumbai

I) INTRODUCTION:

The procedure established by law is a doctrine that states that the laws which are duly enacted by the legislature are valid/ good law if it caters to the right procedure. Adhering to this rule aperson’s life and personal liberty can be taken away with respect to procedure established by law. It implies that a law which is enacted will be valid irrespective of its being violative of principles of equity and justice. This doctrine was initially adopted in the Indian Constitution by express words written down in Article 21.1 However later on, this doctrine expressly recognized under Article 21 was replaced by ‘due process’ doctrine by judicial interpretation in Maneka Gandhi case. The due process doctrine on the other hand entails that it is not only sufficient to see if there is a valid law which curtails person’s life or liberty but also at the same time checks if the law made in question is fair, just and not arbitrary. This doctrine is followed in the United States of America. Under this doctrine, the State should give due diligence to the legal rights which are entitled to a person and the laws so formed must comply with the principles of liberty, justice and equality. The attempt of this paper is to make a comparative analysis of due process doctrine vis-à-vis procedure prescribed by law doctrine so as to ascertain whether the adoption of due process doctrine into the Indian Constitution against the express will of the framers of the Constitution was justified on the ground of its cohesiveness with our Constitutional scheme. It is also the endeavour of the authors to contribute towards evolving an Indian jurisprudential perspective for resolving the debate between ‘due process’ doctrine and ‘procedure established by law’ doctrine in the Indian context by drawing comparison from UK and US legal systems as well.