Due process of lawThe concept of due process of law was originated in English common law. The rule that individual shall not be deprived of life, liberty or property without notice and an opportunity to defend themselves predates written constitution and was widely accepted in the England. The Magna Carta[footnoteRef:2] an agreement signed in 1215 that defined the rights of English subjects against the King is an early example of constitutional guarantee of due process. The document includes a clause that declares, No free man shall be seized or imprisoned except by the lawful judgement of the peers or by the law of the land[footnoteRef:3]. The clause itself and the actual word Due process of law appeared in the later revision of the Magna Carta.[footnoteRef:4]The framer of the US Constitution adopted the idea of Due process and incorporated in Bill of Rights. [2: Article 39 of Magna Carta in England] [3: http://manupatra.com/roundup/323/Articles/due%20process%20of%20law.pdf] [4: Article 29 of Magna Carta 1354.]

Due process, a vitally important rightof the American people has its roots in the concept of rule of law. Initially, this meant that everyone should be subject to a fair and impartial legal system, sanctions and court.The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property. Thedue process clauseof theFifth Amendment, ratified in 1791, asserts that no person shall "be deprived of life, liberty, or property, without due process of law." This amendment restricts the powers of the federal government and applies only to actions by it. The Due Process Clause of thefourteenth amendment, ratified in 1868, declares, Nor shall any State deprive any person of life, liberty, or property, without due process of law" ( 1). This clause limits the powers of the states, rather than those of the federal government... Principle of due process of law is a fundamental, constitutional guarantee that all the legal proceedings will be fair and one will be given notice of the proceedings and opportunity to be heard before the government acts to take away ones life, liberty or property. It is also a constitutional guarantee that law shall not be unreasonable or arbitrary. Due process holds that government subservient to the law of the land, protecting individual from the state.[footnoteRef:5] [5: http://manupatra.com/roundup/323/Articles/due%20process%20of%20law.pdf]

Under due process, it is the legal requirement that thestate must respect all of the legal rights that are owed to a personand laws that states enact must confirm to the laws of the land like fairness, fundamental rights, liberty etc. It also gives the judiciary to access the fundamental fairness, justice, and liberty of any legislation[footnoteRef:6]. [6: http://www.academia.edu/4107497/Due_Process_of_Law_v_Procedure_Established_by_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 Court 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[footnoteRef:7]. [7: http://www.clearias.com/procedure-established-by-law-vs-due-process-of-law/]

Substantive Due Process and Procedural Due ProcessThe application of constitutional due process was traditionally divided into two categories of Substantive due process and Procedural due processThese categories are derived from a distinction that is made between two types of law. Substantive law creates, defines, regulates rights, whereas a procedural right enforces those rights or seeks redressal for their rights. Thus in the United States, substantive due process is concerned with such issues such as freedom of speech and privacy, whereas procedural due process is concerned with provision such as the right to adequate notice of legal proceeding, the right to be present during testimony and right to be an attorney

Paradox of substantive due process[footnoteRef:8] [8: http://manupatra.com/roundup/323/Articles/due%20process%20of%20law.pdf]

The doctrine of substantive due process holds that due process clause not only requires the due process that is, basically procedural rights but it also protects the basic substantive rights. Substantive rights are those general rights that reserve to individual the power to possess or to do certain things despite the government desire to contrary. These are rights like freedom of speech and religion. Procedural rights are special rights that instead, dictate how the government can lawfully go about taking away persons freedom, life or property, when the law otherwise give them the power to do so. It is not only that appropriate and just procedure (or processes) to be used whenever the government is punishing a person or otherwise taking away person life or liberty or property but these clauses guarantee that persons life, freedom or property cannot be taken without government appropriate government justification, regardless of the procedure used to do the taking. In a sense it makes the due process clause due substance clause as well. Supporter of this concept argue that the doctrine is simple recognition that no procedure can be just if it being used to unjustly deprive a person of his basic human liberties and the due process clause was intentionally written in broad terms to give the court the flexibility in interpreting it. Critics in America say that when the court uses judicial review to enforce this pseudo- constitutional rights they are they are stealing the legitimate law making power from the state legislature.

Status in AmericaIn Den V. Hoboken Land & Improvement Company, the first supreme case to attempt to define the fifth amendment due process of law provision Justice Benjamin R. Curtis, for a unanimous court stated that the word due process of law were undoubtedly intended to convey the same meaning as the words law of the land in Magna Carta. Justice Curtis provided no description of these processes which were intended or forbidden and did not declare the principle to be applied. It is restraint on the legislative, as well as on the executive and judicial power of the government and cannot be so construed to leave the congress free to make any processes due process by its mere will. The case of Stuart v. Palmer, has to be considered in which it was declared that due process clause was based on the first principle of natural law, which is older than written constitution, that a citizen should not be deprived of his liberty, life freedom without an opportunity of be heard in defence of his rights, and constitutional provision that no person shall be deprived of these without due process of law. This concept of due process is almost analogous to natural justice. The word Due in American sense interpreted as just and reasonable and proper. The power to decide as to reasonability of the same is vested in the court.

PROCEDURE ESTABLISHED BY LAW Article 21 of the Constitution of India, lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. The most important words in this provision are procedure established by law. It means that a law that isduly enacted by legislature or the concerned bodyis valid if it hasfollowed the correct procedure. In India, there is nomention of the word 'Due Process'. A strict literal interpretation ofProcedure established by Law give the legislative authority an upper hand and they may enact laws which may not befair from a liberal perspective.[footnoteRef:9] [9: http://www.quora.com/Constitution-of-India/What-exactly-is-rule-of-law-procedure-established-by-law-due-process-of-law]

However, in India a liberal interpretation is made by judiciary after 1978 and it has tried to make the term 'Procedure established by law' assynonymous with 'Due process' when it comes to protect individual rights.

Constitutional History of Article 21[footnoteRef:10] [10: http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1381&context=bjil]

The Constituent Assembly of India originally included a due process clause in the Fundamental Rights provisions associated with preventive detention and individual liberty in the initial draft version adopted and published in October of 1947.16 At this point, a majority of members of the Constituent Assembly favoured inclusion of a due process clause, because it would provide procedural safeguards against detention of individuals without cause by the government. However, B.N.Rau, one of the member of constituent assembly had succeeded in qualifying the phrase liberty with the word "personal," effectively limiting the scope of this clause as applying to individual liberties, and not property rights. After this draft version was published, Rau embarked upon a multi-nation trip to the United States, Canada, and Ireland to meet with jurists, constitutional scholars, and other statesmen. In the United States, Rau met with American Supreme Court Justice Felix Frankfurter, a student of Harvard Law professor James Bradley Thayer, whose writings about the pitfalls of due process as weakening the democratic process had already impressed Rau prior to the visit. In his meeting with Rau, Frankfurter indicated that he believed that the power of judicial review implied in the due process clause was both undemocratic and burdensome to the judiciary, because it empowered judges to invalidate legislation enacted by democratic majorities. Frankfurter had a lasting impression on Rau, who upon his return to India, became a forceful proponent for removing the due process clause, ultimately convincing the Drafting Committee to reconsider the language of draft Article15 (now Article 21) in January 1948. In these meetings Rau apparently was able to convince Ayyar, the crucial swing vote on the committee, of the potential pitfalls associated with substantive interpretation of due process, which Frankfurter had discussed extensively with Rau. Ayyar, in ultimately upholding the new position on the floor of the Assembly in December 1948, supported removing the due process clause on the grounds that substantive due process could "impede social legislation." With the switch in Ayyar's vote ,the Drafting Committee endorsed Rau's new preferred language-replacing the due process clause with the phrase "according to the procedure established by law," which was apparently borrowed from the Japanese Constitution. Critics alleged, however, that the Japanese version had provided for separate guarantee\of certain fundamental rights potentially endangered by the omission of a due process clause. The new Article 15 was finally adopted on December 13, 1948, without a due process clause, precipitating a national outcry from political leaders, national and state bar associations, and significant opposition within the Assembly itselfAnother significant factor that influenced Ayyar's change of position and the swing toward removing due process was the rise of communal violence and instability in North India that resulted from British partition into Hindu India and Muslim Pakistan. Opponents of due process thus believed that preventive detention policies, without constitutional guarantees for due process, provided the best check on the communal violence that was gripping India at that point, which had only further intensified following Gandhi's assassination on January30, 1948. Preventive detention practices were a legacy of British colonial rule in India. The British had used preventive detention laws to detain potential saboteurs or insurgents, without trial and with minimal procedural safeguards. After the Constituent Assembly decided to eliminate due process from Article15 (now Article 21) of the Constitution, outside pressure from groups including the Indian Law Review of Calcutta and the Calcutta Bar pressured Assembly members to amend Article 15 in an attempt to reinstate some minimal procedural safeguards for individual liberty in preventive detention cases. The result of this pressure was the introduction of a new Article 15A by Ambedkar, which proposed to require that arrested persons be brought "before a magistrate within twenty-four hours of his arrest, informed of the nature of the accusation, and detained further only on the authority of the magistrate." However, these provisions in Article 15A did not apply to detainees under preventive detention legislation passed by Parliament, which could effectively detain individuals for up to three months without any procedural safeguards; after three months, specific procedural safeguards had to be complied with to allow continued detention. These standards included the requirement that an Advisory Board composed of judges find sufficient cause for continued detention. Ultimately; however, the government succeeded in amending Article 15A to all but remove judicial interference with executive detention

Difference between procedure established by & Due process of law

The due process doctrine is followed in the America. In India the term procedure established by law was used in article 21 of the constitution. Due Process of Law has much wider significance as compared to procedure established by law because doctrine of Due process of law 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. On the other hand term procedure established by law only requires that there must be some law enacted by legislature or the concerned body by following the correct procedure. The difference between the two doctrines in laymans terms is as Due Process of Law = Procedure Established by Law + The procedure should be fair and just and not arbitraryAnother difference between two terms is that, due process controls executive as well legislative action on the other hand, procedure established by law constituted restriction only on the executive which could not act without law, it is impotent against legislative power which could make any law, howsoever drastic, to impose restriction on personal liberty without being obligated to lay down any reasonable procedure for the purpose

Procedure established by law: Gopalan Case[footnoteRef:11] [11: A.K Gopalan v. State of Madras, AIR 1950 SC 27]

Immediately after the constitution became effective, the question of interpretation of these words arose in the famous Gopalan case[footnoteRef:12] where the validity of the Preventive Detention Act, 1950, was challenged. The main question was whether Art. 21 of Constitution envisaged any procedure laid down by a law enacted by a legislature, or whether the procedure should be fair and reasonable. [12: Ibid.]

On behalf of Gopalan, an attempt was made to persuade the Supreme Court to hold that the courts could adjudicate upon the reasonableness of the Preventive Detention Act, or for that matter, any law depriving a person of his personal liberty. A three pronged argument was developed for this purpose: The word law in Article 21 of the constitution does not mean only enacted law but incorporated the principle of Natural Justice so that a law to deprive a person of his life or personal liberty cannot be valid unless it incorporates these principles in the procedure laid down by it. The reasonableness of the law of preventive detention ought to be judged under Art. 19.[footnoteRef:13] [13: Article 19 protection of certain rights regarding freedom of speech, etc.]

The expression procedure established by law introduces in India the American concept of procedural due process which enables the court to see whether the law fulfils the requisite elements of reasonable procedure.

Thus in Gopalan an attempt was made for better procedural safeguards than were available to him under the relevant detention law and article 22[footnoteRef:14]. But the attempt was failed as the Supreme Court rejected all these arguments. [14: Art. 22 protection against arrest and detention in certain cases.]

Natural justice The Supreme Court ruled by majority held that the word law in article 21 could not be read as meaning rules of natural justice. These rules were vague and indefinite and the constitution could not be read as laying down a vague standard. The word Law was used in the sense of lex (state made law) and not jus. The expression procedure established by law would therefore mean the procedure as laid down in the enacted law. On the other hand, FAZL ALI, J., disagreeing with the majority view, held that the principle of natural justice that no ne shall be condemned unheard was part of the general law of the land and the same should accordingly be read into Art. 21.

Due process of law It was contended in the gopalan case that the expression procedure established by law in Art.21 was synonymous with the American concept of procedural due process and therefore, the reasonableness of any law affecting a persons life or liberty, should be justiciable in order to assess whether the person affected was given a right of hearing. The Supreme Court rejected the contention giving several reasons: First, the word Due was absent in Art. 21. This was a very significant omission for the entire efficacy of the procedural due process concept emanates from the word Due. Secondly, the draft constitution had contained the words due process of law, but these words were later dropped. This was strong evidence to show that the constituent assembly did not desire to introduce the concept of procedural due process However, FAZL ALI, J., disagreed with the majority view on this point as well. He interpreted the phrase procedure established by law in Art. 21 as implying procedural due process meaning thereby no person could be condemned unheard, a principle well recognised in all modern civilized legal systems. Thus the Supreme Court ruled in Gopalan that Art. 21, the expression procedure established by law meant the procedure as laid down in the law as enacted by the legislature and nothing more. A person could thus be deprived of his life or personal liberty in accordance with the procedure laid down in the relevant law. The court was thus concerned with the procedure as laid down in the statute. Whether the procedure was fair or reasonable, or according to natural justice or not was not the concern of the court. The decision highlighted that article 21 was a protection against the executive but not the legislature.

From Gopalan to Maneka

In Gopalan, the Supreme Court had delinked Art. 19 from Arts. 21 and 22. This view held the field for some time. At times, this view even led to anomalous results. For example, in Ram Singh v. Delhi[footnoteRef:15], a person was detained under the preventive detention Act for making speeches prejudicial to the maintenance of public order. At this time Art. 19 (2) did not contain the expression public order and so the freedom of speech could not be controlled for that purpose, but a preventive detention order, a much more drastic restriction on the person concerned, could be passed on that basis. [15: AIR 1951 SC 270]

The Supreme Court refused to assess the validity of the detention order with reference to Art. 19(1) (a) read with Art. 19(2) stating that even if a right under Art.(19)(1)(a) was abridged, the validity of the preventive detention order could not be considered in reference to article 19(2) because of the Gopalan ruling that legislation authorising deprivation of personal liberty did not fall under Art.19, and its validity not to be judged by the criteria in Art.19. The validity of such a law depended on its compliance with Art. 21 & 22. The court stated that if this led to anomaly, it was inherent in the structure and language of the relevant constitutional provisions.

In course of time, this rigid judicial view came to be softened somewhat. The beginning of the new trend is to be found in the Bank Nationalisation Case[footnoteRef:16], decided in 1970. Prior to this case, Arts.19 (1) (f) and 31(2) were regarded as unrelated and mutually exclusive on the analogy of Gopalan view. In the Bank Nationalisation case, Art. 19(1) (f) was applied to law enacted under Art 31(2). [16: R. C. Cooper v. Union of India]

This case was the precursor of the trend to link Art. 19, 21 and 22. After Bank Nationalisation, it could be legitimately argued that if Art. 19(1) (f) was linked with Art. 31(2), then there was no reason why Art.19 could not be linked with Arts 21and 22. The Supreme Court recognised the force of this logic when it declared in Sambhu Sarkar,[footnoteRef:17] that the approach of the court in the Bank nationalisation case had held the major premise of the majority in Gopalan to be incorrect. [17: Sambhu Nath Sarkar v. State of West Bengal, AIR 1973 SC 1425]

In another major development from this point of view, in the Bennett Coleman case,[footnoteRef:18] the court overruled the argument Art.19 (1) (a) could not apply to a law affecting freedom of speech but not enacted directly with respect to Art. 19(1) (a). The court declared that if a law affected freedom of speech, its reasonableness became assessable with reference to Art. 19(2) even though it was not enacted directly to control the freedom of speech. [18: Bennett Coleman &co. V. Union of India AIR 1973 Sc 106]

This completely knocked out the courts earlier argument in Gopalan that Art. 19 applied only when a law was passed directly in respect of a matter falling under it, and not when a law directly in respect of a right under Art. 19, through it abridged such a right. This view was no longer tenable after Bennett Coleman case.

MANEKA GANDHI CASE[footnoteRef:19] THE NEW APPROACH [19: AIR 1978 SC 597]

Maneka Gandhi v. Union of India,[footnoteRef:20] is a landmark case of the post-emergency period. A great transformation has come about in the judicial attitude towards the protection of the personal liberty after the traumatic experiences of the emergency during 1975-1977. This case showed that Art. 21 as interpreted in the Gopalan case could not play any role in providing any protection against any harsh law seeking to deprive a person of his life or personal liberty. In fact, this case has acted as a catalytic agent for transformation of the judicial review on Art. 21. [20: Ibid.]

In Maneka Gandhi, the fact situation was as follows: S. 10(3) (c) of the passport act authorises the passport authority to impound a passport if it deems it necessary to do so in the interest of the sovereignty and integrity of india, the security of the state, friendly relations with any foreign country, or in the interest of the general public. Maneka passport was impounded by the central government under the Passport Act in the interest of the general public. Maneka Gandhi filed a writ petition challenging the order on the ground of violation of her fundamental rights under Article 21. One of the major grounds of the challenge was that the order impounding the passport was null and void as it had been made without affording her an opportunity of being heard in her defence. The leading opinion in Maneka Gandhi case was pronounced by Justice Bhagwati, The court laid down a number of propositions seeking to make Art. Much more meaningful than hitherto. The court reiterated that propositions that Art. 14, 19 and 21 are not mutually exclusive. A nexus has been established between these three Articles. This means that law prescribing a procedure for depriving a person of personal liberty have to pass scrutiny not only under Article 21's requirement of procedural due process, but also under Article 19 (personal freedoms), and Article 14 (non arbitrariness). As a result, laws or regulations restricting personal liberty must also satisfy the "reasonableness" standard set forth in Article 19The most significant and creative aspect of Maneka Gandhi Case, is the re-interpretation by the court of the expression procedure established by law used in Art.21. Article 21 would no longer mean that law could prescribe some semblance of procedure, however arbitrary or fanciful, to deprive a person of his personal liberty. The procedure cannot be arbitrary, unfair or unreasonable. The court now assumed the power to adjudge the fairness and justness of the procedure established by law to deprive a person of his personal liberty. The court has reached this conclusion by holding that Art, 21, 19 and 14 are not mutually exclusive, but is inter-linked. According to Krishna Iyer, J., procedure in Art.21 means fair, not formal, procedure; law is reasonable law and not any enacted piece. This makes the procedure established by law by and large synonymous with the procedural due process in the U.S.A. This makes the right of hearing a component part of natural justice.

As the right to travel abroad falls under Art. 21, natural justice must be applied while exercising the power of impounding a passport under the passport act. Although the passport act does not expressly provide for the requirement of hearing before a passport is impounded, yet the same has to be implied therein. By vesting in itself the power of substantive review under Article 21, the court transformed itself from being merely a supervisor, to being a watchdog of the Constitution. This is the seminal importance of theManeka Gandhi decision...From procedure established by law to due process of law While Bhagwati .J. in Maneka Gandhi case, established the requirement of reasonableness of procedure in article 21through article 14, some of the judges in that case and in some other subsequent cases have read such requirements in article 21 itself and particularly in the word law the conversion of procedure established by law into due process of law in the American sense which the constitution makers had intended to avoid by replacing the latter expression by the former. In Sunil Batra v. Delhi Administration[footnoteRef:21], Krishna Iyer. J. Said, True our constitution has no due process clause...but ...after Maneka Gandhi Case, the consequences is the same and that article is the counterpart of the procedural due process in the United States. [21: AIR 1978 SC 1675]

In Jolly George Varghese v. Bank of Cochin,[footnoteRef:22] the Court through Krishna Iyer, J., surmised that some day the question of the validity of Section 51 and order 21 and Rule 37 of the Civil Procedure Code, which authorises the arrest and detention of judgement-debtor on the application of the decree holder, could be questioned under Article 21 although in the instant case the court referred back the matter to the lower court with the clarification that arrest and detention would violate Article 21, if the judgement debtor had no means to pay the decretal amount and did not evade its payment by any malafide or dishonest means or intentions. [22: ]

the high value of human dignity and the worth of human persons enshrined in Article 21, read with article 14 & 19 obligates the state not to incarcerate except under law which is fair, just and reasonable in its procedural essence. In Mithu v. State of Punjab[footnoteRef:23], a constitutional bench, for the first time and unanimously invalidated a substantive law, section 303 of the Indian penal code which provided for the mandatory death sentence for murder committed by life convict. Quoting from Maneka, Sunil batra cases, the court observed that, [23: AIR 1983 SC 473]

these decision have expanded the scope of Article 21 in a significant way and it is now too late in the day to contend that it is for the legislature to prescribe the procedure and for the courts to follow it; that it is for the legislature to provide the punishment and for the courts to impose it... the last word on the question of justice and fairness does not rest with the legislature.After posing the question of reasonableness of section 303 under article 21 the court concluded that it is difficult to hold that the prescription of the mandatory sentence of death answers the reasonableness and added that a provision of law which deprives the court of the use of its wise and beneficent discretion in a matter of life and death, without regard the circumstances in which the offence was committed and therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair. Thus not merely the procedure but a substantive law was invalidated under Article 21. This development was picked up, though without any reference to Mithu, by Pendse, J. Of the Bombay High Court in Basantibai v. State of Maharashtra[footnoteRef:24], and applied to a property legislation the Maharashtra Housing Area Act, 1976. The court invalidated as unjust, unreasonable, and unfair those provisions of the Act under which the acquisition of the land the owner got less compensation than provided under Land acquisition Act, 1894. [24: AIR 1984 Bom 366]

The court held that the legislation must be just, air and reasonable whether provisions of the Article 14 and 19 is available or otherwise, and the legislation providing for deprivation of property must satisfy the requirements of being fair, just and reasonable.[footnoteRef:25] [25: The decision in the Basantibai was reversed by the Supreme Court but without disturbing the conclusion of the High Court on the question of the reasonableness. This indicates that the Supreme Court does not have any disagreement with the opinion of Pendse J.on the scope and application of the reasonableness.]

The court have extended the applied the requirement of the reasonableness to a government order issued under a University Act which prohibits contesting of election to anybody including the state legislature and parliament[footnoteRef:26], to civil service rules made under Article 309 of the constitution[footnoteRef:27], to service regulation and to invalidate the offence to commit suicide[footnoteRef:28]. Validity of the offence of attempt to commit suicide under section 309 of the Indian penal Code has finally been upheld by the Supreme Court[footnoteRef:29]. [26: K. Venkatta. Ramana Reddi v. Govt. Of A.P, AIR 1985 AP73 ] [27: State of Maharashtra v. Chandrabhan, AIR 1983 SC 803] [28: Dubhal v. State of Maharashtra, (1986) 88 Bom LR 589] [29: Gian kaur v. State of Punjab, AIR 1996 SC 946]

From these decision it is clear that the requirement of the reasonableness, which originally emerged from the inter-relation of Article 14 and 21 and initially carried the impression of controlling only procedural laws to deprivation of life and personal liberty, has developed into a general principle of reasonableness similar to due process of law in the U. S constitution capable of application to any branch of law.

Conclusion While J. Bhagwati in Maneka Gandhi case establishment the requirements of reasonable procedure in article 21 through article 14 some judges in the case have read the procedure established by law as due process of law which was intentionally avoided by the constitution makers. Indian constitution even though borrowed and adopted many things from the United States Constitution has not adopted the doctrine of due process of law in its formal and comprehensive form but the discretion has been left to the judiciary to decide the rationality of a procedure. Nevertheless, this principle has been incorporated in the Indian constitution in especially in Article 21. When we compare the narrow view of article 21 in Gopalan case we can realize that judiciary was living in ivory tower unconnected and unconcerned with the social reality far away from where the law originates- nature. The judiciary was undermining the value of natural justice. Only after the astounding decision of Maneka Gandhi Case the state of affairs in india has been radically revolutionized.

Fundamental Rights and Directive Principles

Seminar on

Due Process of Law & Procedure Established By Law

Submitted to: Submitted by:Prof. Nishtha Jaswal Neeraj Kumar AroraProf. Devinder Singh 1224/14 Prof. V. K. BansalIndex IntroductionDue process of lawSubstantive due process of law & Procedural due processStatus in AmericaProcedure established by lawConstitutional history of article 21Gopalan CaseGopalan to ManekaFrom procedure established by law to due process of lawConclusion

Table of Cases A.k Gopalan v. State of Madras Maneka Gandhi v. Union of India Sunil Batra v. Delhi Administration Mithu v. State of Punjab Basantibai v. State of Maharashtra Den V. Hoboken Land & Improvement Company Stuart v. Palmer R. C. Cooper v. Union of India Ram Singh v. Delhi Jolly George Varghese v. Bank of Cochin

Introduction The modem constitutions of the United States and India, while constructed and forged in two distinct and very unique political and cultural settings, share one important common context-both countries drafted and adopted their respective political instruments after successful independence movements that secured political separation from the British "Raj." Despite these common historical threads of colonial revolutionary lineage, the Indian experience also differs in one critical respect the formation of the Indian Constitution occurred in the context of the political chaos, fragmentation and disorder that resulted from the partition of the former British colony into Hindu India and Muslim Pakistan. In both of these former British colonies, the Supreme Courts developed Doctrines of due process and jurisprudential traditions of activism that expanded the scope of fundamental rights. While the doctrine of due process was added to US Constitution after 5th amendment and 14th amendment, the Indian constitution does not have such provision. On the other hand, Indian constitution under Article 21 provides the term procedure established by law which is narrower than the former term. However, in India a liberal interpretation is made by judiciary after 1978 and it has tried to make the term 'Procedure established by law' assynonymous with 'Due process' when it comes to protect individual rights.

References http://www.quora.com/Constitution-of-India/What-exactly-is-rule-of-law-procedure-established-by-law-due-process-of-law http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1381&context=bjilhttp://manupatra.com/roundup/323/Articles/due%20process%20of%20law.pdfhttp://manupatra.com/roundup/323/Articles/due%20process%20of%20law.pdf http://www.academia.edu/4107497/Due_Process_of_Law_v_Procedure_Established_by_Law http://www.clearias.com/procedure-established-by-law-vs-due-process-of-law/