The “Procedure established by Law” concept is fundamental to the Indian legal system. This concept essentially means that any procedure laid down by the law must be followed by all authorities and individuals in the administration of justice.
The doctrine of procedure established by the law confers limited powers to the judiciary when examining any action (or law) of the state.
Under it, the courts can examine whether a law allows for such an action, whether the law was enacted by a competent body/legislature and whether the correct procedure was followed during the enactment.
The Courts would not go into the legislative wisdom or rationale behind the formation of a specific law even if the law enacted goes against the principles of natural justice or equality.
The procedure established by Law is borrowed from the Japanese Constitution.
The procedure established by Law is mentioned in Article 21. It provides that a person’s life and personal liberty can be deprived so long as there is merely a “procedure established by law” (that is, a validly enacted law)
Application
- The procedures made by law in India apply to all aspects of the legal system, including criminal and civil proceedings, i.e. CrPC and CPC as well as administrative and regulatory proceedings.
- These procedures ensure that all parties involved in a legal dispute are given a fair chance to present their case, and that the evidence presented is given due consideration by the court or tribunal.
CPC and CRPC
The Code of Civil Procedure (CPC)
It lays down the rules and regulations for the civil courts in India, which are responsible for handling non-criminal proceedings, such as property disputes, breach of contract, and family matters. The Code outlines the procedures for filing a case, serving legal notices, conducting trials, and appealing to higher courts. It also defines the roles and responsibilities of judges, lawyers, and parties involved in the case.
The Code of Criminal Procedure (CRPC)
It deals with criminal proceedings and sets out the procedures for the investigation, prosecution, and trial of criminal offences. The Code lays down the rules for the arrest of an accused person, the filing of an FIR (First Information Report), the conduct of a trial, and the sentencing of the accused if found guilty. It also defines the powers of the police, public prosecutors, and judges in the criminal justice system.
Procedure established by Law: International Experience
- In the United States, the “due process” clause of the Fifth and Fourteenth Amendments of the Constitution embodies the “procedure established by law” principle. The US Supreme Court has interpreted the due process clause to require that any deprivation of life, liberty, or property be conducted according to fair procedures.
- In the United Kingdom, the “rule of law” principle embodies the “procedure established by law” concept. The courts have held that the rule of law requires that any interference with an individual’s rights and freedoms be carried out in accordance with a recognized legal framework.
- In Germany, the “Rechtsstaat” or “rule of law” principle embodies the “procedure established by law” concept. The German Federal Constitutional Court has held that the Rechtsstaat principle requires that any interference with an individual’s rights and freedoms must be based on a valid legal basis and be carried out in accordance with fair procedures.
- While In Canada, the “fundamental justice” principle under Section 7 of the Canadian Charter of Rights and Freedoms embodies the “procedure established by law” principle. The Supreme Court of Canada has held that the right to fundamental justice requires that the legal system must provide fair and just procedures for the resolution of disputes.
Difference between Procedure Established by Law and Due Process of Law
