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Recently, SC delivered their verdict in Newsclick founder-editor Prabir Purkayastha’s case. SC has invalidated the arrest, citing that “grounds of arrest” were not provided to Prabir Purkayastha as required by the Constitution’s Article 22 before his production before the Additional Sessions Judge (ASJ).
The SC judgement has highlighted the importance of due process of law. Due process of law is not only an important fundamental right, but a time-tested yardstick to judge the maturity of a civilisation.
What is Due process of Law? What is the history of its evolution?What is the history of its inclusion in the Indian constitution?
Due process of Law- Due process of Law stands for rationality and fairness in the treatment before law. It is a constitutional guarantee that prevents governments from impacting citizens in an abusive way.
It is not just a procedural safeguard. It involves the right to fairness, reasonableness, justness, non-arbitrariness.
Types of Due Process
Procedural Due Process- Procedural due process refers to the legal procedures that must be followed to protect the rights of individuals. Procedural due process focuses on how laws and actions are carried out, ensuring that individuals receive fair treatment through the judicial process.
Substantive Due Process- Substantive due process focuses on the content of laws and government actions. It protects individuals from laws and government actions that may infringe on fundamental rights and liberties, even if the procedures used to implement them are fair.
Evolution of Concept of Due Process of Law
| 1. Magna Carta (1215), which was the first major human rights instrument, talked of only procedural rights. 2. The expression ‘due process’ was used for the first time in the statute of British King Edward III. 3. Fifth Amendment to the American Constitution (1791) that introduced the concept of “due process” in a constitution. 4. The Fourteenth Amendment to the American Constitution prohibited the curtailment of the right to equality, the right to life and liberty, without the due process of law. |
History of due process in India
| 1. In 1918, the Indian National Congress asked the colonial government to revoke all laws that allowed state authorities to arrest or detain people without due process. Balgangadhar Tilak and M K Gandhi invoked due process in their defence against unjust laws. 2. The proponents of Due process, in the constituent assembly, held that ‘due process of law’ provided minimum standards of fairness. Without it, Article 21 cannot be termed a Fundamental Right. They feared that people would be detained without trial on false pretences. 2. However, In Article 21 of the constitution, ‘due process‘ was replaced by the narrower expression ‘procedure established by law‘. |
SC Decisions on Due Process of Law
| A K Gopalan (1950) ADM Jabalpur (1976) | SC overemphasised the literal meaning of procedure established by law. It contributed to undermining of due process of law. |
| Maneka Gandhi v. Union of India (1978) | Due process was judicially recognised as part of the right to life and personal liberty. Every law must now be reasonable, just, fair and non-arbitrary. |
| K. S. Puttaswamy v. Union of India (2019) | SC held that the substitution of due process of law, by procedure established by law by the Drafting Committee, has made it more cryptic and ambiguous. |
What is the difference between procedure established by Law and Due process of Law?
Due process of law and procedure established by law differ primarily in protecting citizen’s rights. Due process ensures fairness and justice by safeguarding rights, while the procedure established by law has a limited focus and may not prioritize citizens’ rights.
| The procedure established by Law | Due process of Law |
| 1. It only assesses whether the legislature has followed the right procedure to form a law and whether the executive has implemented the law in the correct manner. 2. It does 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. | 1. Under due process, court would not only check the procedural validity but also check that whether a law is just, fair and reasonable. 2. In this case, the court would also go behind the legislative wisdom of enacting a particular law. If a law is unjust & unfair, then it can proclaim it to be against the principles of natural justice, thereby rejecting it. |
| It is mentioned explicitly under Article 21 of the Constitution. | 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. | It protects the individual not only against the arbitrary action of the executive but also of the legislative bodies. |
What is the significance of due process of Law?
1. Protection of Individual Rights- Due process ensures that individuals are protected from arbitrary and unjust actions by the government. It guarantees that no person will be deprived of life, liberty, or property without fair procedures and safeguards. (Protection of rights under Article 21 of the Constitution)
2. Establishment of Fair Legal Procedures- It includes the right to a fair trial, the right to be heard, and the right to an impartial judge. These procedural protections help prevent wrongful convictions and ensure justice is served. For ex- SC judgement on release of prisoners under preventive detention.
3. Equality Before the Law- It promotes equality by ensuring that all individuals receive the same legal protections and are subject to the same laws. It prevents discrimination and ensures that everyone is treated fairly regardless of their status.
4. Limitation of Government Power- It prevents the government from enacting and enforcing laws in an arbitrary manner, ensuring that all actions are conducted according to the rule of law.
5. Prevent the misuse of preventive detention laws- As per the National Crime Records Bureau (NCRB) over 12,000 people were in prisons in 2021 under preventive detention laws. Application of due process principle can help in preventing the misuse of the preventive detention laws.
What should be the way Forward?
1. Providing ‘Grounds of arrest’ must be strictly followed- The principle laid down in Pankaj Bansal (2023) regarding the practice of providing the written ground of arrest must be applied to persons arrested under UAPA act.
2. Prevent the misuse of Preventive detention laws- SC in Pramod Singla case (2023) termed preventive detention laws as a colonial legacy with great potential of abuse. India has several stringent preventive detention laws, both at the Centre and state levels. Efforts must be made to prevent the misuse of preventive detention laws.
3. Notification of preventive detention provisions of 44th Amendment Act- 44th Amendment (1978) made the right to life and personal liberty a non-derogable right that can no longer be suspended, even during an emergency. The part of the 44th amendment on preventive detention, which has not been notified even after 46 years, must be notified at the earliest.
| Read More- The Indian Express, The Hindu UPSC Syllabus- GS 2- Fundamental rights |
