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Understanding Due Process vs. Procedure Established by Law

Due Process

Understanding the Legal Principles: ‘Procedure Established by Law‘ vs. ‘Due Process of Law‘” These two legal principles play a crucial role in safeguarding individual rights and ensuring fairness in legal proceedings. While they may appear similar at first glance, it’s important to grasp their unique implications and how they are applied in various legal systems across the globe.

Article 21 in The Constitution Of India

Guarantee of Life and Personal Freedom: Article 21 of the Indian Constitution ensures the protection of an individual’s life and personal liberty. This means that no one can be deprived of their life or personal freedom unless it’s done in accordance with the legal procedures established by the law. In simpler terms, if the government adheres to the specified legal steps when restricting someone’s life or freedom, it is considered constitutionally valid, regardless of whether the procedure is perceived as fair, just, or reasonable.

Procedure Established by Law vs Due Process of Law

The Indian Constitution employs the term “procedure established by law” explicitly, while the concept of Due Process of Law, though more broadly significant, is not specifically mentioned in the Constitution. Unlike the United States, where the due process doctrine is integral, the framers of the Indian Constitution intentionally omitted it. However, in recent Supreme Court judgments, there is a resurgence of the due process aspect. Let’s explore these differences in greater depth.

Case 1: Procedure Established by Law

  • The “Procedure Established by Law” is a concept primarily associated with legal systems rooted in common law, such as India’s. In these countries, the government creates laws, and individuals are required to adhere to them. The government has the authority to define the procedures and methods for implementing and enforcing these laws. According to this principle, if the government follows its established procedures, its actions are considered valid, even if they may seem unfair or unjust to individuals.
  • In essence, it means that a law enacted by the legislature or the relevant body is considered valid if it has followed the correct procedure. This doctrine allows for individuals to be deprived of their life or personal liberty according to the established legal procedures. For example, if Parliament passes a law, a person’s life or personal liberty can be affected in accordance with the provisions and procedures outlined in that law.
  • However, this doctrine has a significant drawback. It doesn’t evaluate whether the laws enacted by Parliament are fair, just, or free from arbitrariness. In other words, “Procedure Established by Law” validates a law as long as it has been correctly enacted, even if it contradicts principles of justice and equity. Strict adherence to this principle can potentially put the life and personal liberty of individuals at risk due to unjust laws passed by legislative authorities. To prevent such situations, the Supreme Court emphasizes the importance of the due process of law. This ensures a more equitable and just legal system.

Case 2: Due Process of Law

  • The doctrine of due process of law not only ensures the existence of laws that can impact a person’s life and personal freedom but also evaluates whether these laws are fair, just, and not arbitrary.
  • If the Supreme Court determines that a law is unjust, it has the power to nullify it. This principle promotes a more equitable safeguarding of individual rights.
  • Under the concept of due process, the state is obligated to uphold all the legal rights owed to an individual, and the laws it enacts must align with established legal principles, including fairness, fundamental rights, and liberty. It also grants the judiciary the authority to assess the fundamental fairness, justice, and liberty within any legislation.
  • The “Due Process of Law” is a fundamental legal principle commonly present in legal systems rooted in the common law tradition, particularly in countries such as the United States.

This important principle requires the government to uphold fair and equitable procedures before taking away an individual’s life, freedom, or possessions. The concept of due process guarantees that people have the right to voice their concerns, provide evidence, and receive fair treatment before any government actions are carried out against them.

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, the judiciary has adopted a more progressive stance since 1978, aiming to equate the term ‘Procedure established by law’ with ‘Due process’ in safeguarding individual rights.
  • In the landmark Maneka Gandhi vs Union of India case (1978), the Supreme Court asserted that ‘Procedure established by law,’ as outlined in Article 21, must be not only lawful but also equitable, just, and fair. It should not be arbitrary, whimsical, or oppressive; otherwise, it would not fulfill the requirements of Article 21.
  • This shift has effectively elevated the importance of ‘procedure established by law’ in India to a level similar to that of the ‘due process of law’ clause in the United States.


The concept of “Procedure Established by Law” highlights the importance of following the formal legal procedures laid out by the government. On the other hand, “Due Process of Law” puts a strong emphasis on safeguarding individual rights and ensuring fairness in the execution of laws and legal procedures. Deciding which principle to prioritize can have a profound impact on how individual rights are protected within a legal system.

Read Also: Freedom of Expression

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