Due Process of LAW Vs Procedure 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.