Due Process of Law

Article 21 of the Constitution of India has incorporated procedural due process standard of judicial review (meaning judicial review is limited to checking if proper procedure was followed).However, the Supreme Court of India in its judgments over the years has brought in the standard of substantive due process (meaning judiciary can review the law to see if it is arbitrary and violates rights of people). This was done by the Supreme Court to ensure that rights of citizens are not violated by actions of the government. But it is also argued that this amounts to judicial activism as it goes against what the Constituent Assembly drafted and incorporated in the Constitution's Article 21.

In a civilised society, only the State has monopoly or right to use force. For instance, a criminal can be arrested and jailed and even given the death setence by the State. But State cannot use this power recklessly. It is the judiciary which checks the State's use of power with its powers of judicial review. The Constituent Assembly of India, which was making the Constitution, debated extensively on how much power of judicial review can be given to the Judiciary. This debate between 'freedom of individuals' vs 'policing by the State' is what is discussed in this article on 'due process of law'.

The Due Process of a law is a legal principle that ensures fair and just application of laws to the citizens. It invalidates the biasness to the application of laws and ensures equality. The term is nowhere defined in the constitution. The concept is most notably enshrined in the Fifth and Fourteenth Amendments of the U.S. Constitution.

There are two types of checks on the process which is being followed by the executive or the police. The first is called the Substantive Due Process check, and the second is called Procedural Due Process. These two are standards by which executive action (i.e. police's arrest powers) are checked by the judiciary.

• In substantive due process the judiciary has more power of review to see if the action of executive was arbitrary and violative of right to life. This allows for greater protection of rights of citizens.
• In procedural due process, the judiciary can only check if executive followed the procedure laid down in the law. This allows the State greater powers for policing.

Constituent Assembly which drafted the Indian Constitution extensively debated whether they should chose substantive or procedural due process standards. The differences between the two can be seen from the following table:

• After a comparative analysis of both procedural and substantive due process standard, Dr. Ambedkar and the Constituent Assembly chose procedural due process provisions. Dr. Ambedkar said that there are other provisions in the Constitution which can be used to check the arbitrary actions of government e.g. fundamental rights.

There was a tussle between the judges in various judgments on whether the standard in Article 21 includes the question of procedural or substantive due process. Finally in the Maneka Gandhi Case substantive due process was adopted.

• In the AK Gopalan Case (1950) the majority of the judges upheld the 'procedure established by law' test. However, the minority dissenting judges stated that 'law' under Article 21 should incorporate principles of natural justice and should be reasonable.
• Again, in Kharak SinghCase (1963) in his minority judgment Justice Subba Rao said that freedoms guaranteed under Article 19 can not be curtailed by Article 21 beyond what are the 'reasonable restrictions' permissible under Article 19(2). But this is not what the majority held which still followed the 'procedural due process'.
• In the Satwant Singh Case (1967) and RC Cooper Case (1970) Supreme Court held that laws which restrict right to life and liberty under Article 21 cannot curtail the freedoms arbitrarily.
• Finally, in the Maneka Gandhi Case (1978) when a passport was impounded without due notice, Supreme Court held that this procedure for impouding passport was violative of Article 21. It was held that any procedure should have been just, fair and reasonable.
  Hence, the 'substantive due process' started to apply.

The debate between procedural and substantive due process reflects a fundamental tension in our society: how to balance individual rights with the government's need to maintain order and implement its policies. Initially it was enough that the procedure established by law is being followed. However, over time, the judges realized that just following the rules wasn't enough. They needed a way to make sure that the rules themselves were fair and just. This is where the idea of "substantive due process" was intrdocued in the Maneka Gandhi case (1978). It allows judges to check if the laws are fair and not just if they are being followed correctly.

This creates a bit of a challenge. We want judges to protect our rights, but we also don't want them to become too powerful and overturn laws made for national security. Hence there is a need to sensitize the judiciary to use substantive due process with restraint. And there is a need to sensitize the Parliamentarians to make fair laws in the first place. However, it is only the proactive and aware citizens who can hold the judges and lawmakers accountable.