Aspirants often get confused between the procedure established by law and the due process of law. Both are different from one another and yet seem equally similar & confusing.
Today we’ll discuss key differences between the above two concepts.
The procedure established by Law | Due process of Law |
In this the court would only assess that whether the legislature has followed the right procedure to form a law band whether executive has implemented the law in correct manner i.e. as per procedure established by law.
| Under due process, court would not only check the procedural validity but also check that whether a law is just, fair and reasonable.
|
Mentioned explicitly under Article 21 of the Constitution which states that,
| It is not mentioned explicitly anywhere in the Indian Constitution. |
| Procedure established by law has less scope. | It has a wider scope. |
| Borrowed from Japanese Constitution. | Borrowed from the US Constitution. |
| it protects the individual against the arbitrary action of only the executive. | Due process of law protects the individual not only against the arbitrary action of the executive but also of the legislative bodies. |
| It does not assess whether the laws made by Parliament is fair, just and not arbitrary. | Judiciary also assesses the fundamental fairness, justice, and liberty of any legislation. |
So, which doctrine is followed by Indian judiciary presently?
Well, Supreme Court follows a mix of both. Sometimes it applies the concept procedure established by law while on some occasions it tests a law under due process of law.
- In the famous ADM Jabalpur v. Shivkant Shukla case (Habeaus Corpus case), 1976 SC followed the procedure established law.
- In Maneka Gandhi v. Union of India,1978 Supreme Court gave its judgement following the due process of law concept.
Detailed discussion of these judgements is beyond this article. We’ll discuss them in separate articles.
| Read more: Other articles in the difference between series |
We do hope that now you’re clear about the difference between the procedure established by law and the due process of law.
Till next time.
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