DUE PROCESS OF LAW AND COMPARATIVE ANALYSIS WITH INDIAN PERSPECTIVE
INTRODUCTION
India is a democratic nation that has been following the rule of law and that could not be indifferent when it comes to the promotion and the protection of human rights. India has always kept human rights and its heritage at their greatest, and the rich background of the heritage of democracy is personal liberty and rights.[1] The fundamental rights constitute the protection of personal liberty and protection of life under Article 21 of the Indian constitution and that further deals with the prevention of the individual’s liberty or deprivation of life or the life of any person.[2]
The right to life and liberty is the most prudent fundamental right of all human rights that are being entitled to the citizens and since this right to life and its protection is a prerequisite for the enjoyment of all other human rights.
Even at the time of any sought emergency, the fundamental right to life cannot be suspended as it is an integral right of an individual that needs to be protected at all times.
The concept of due process of law was a concept in The United States that further became part of the constitution of The United States as well. Through the Fourth and Fifth Amendments, the concept of due process of law was inserted into the US constitution.
The Supreme Court of India attempts to read due process into the Indian Constitution by interpreting two articles of the Constitution that is Article 14 and Article 21. Furthermore, the principles of due process have strengthened the procedure established by the law and hence addressing each one of them. The process is being followed with the principle of equality and fairness.
ORIGIN OF THE PROCESS OF LAW
PROCEDURE ESTABLISHED BY LAW AND ITS MEANING:
The origin or the basis of the process of law starts from the law itself. In Indian law from Article 21, it is interpreted. It states that “No person shall be deprived of his life or personal liberty except according to procedure established by law nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India”.[3]
Article 21 is generally inspired by the American laws or the laws from the United States of America. So, according to the basis of the American law, which states the provision that no person should be deprived of his life and his liberty except according to the due process of law, which means that the judiciary or the courts have the power to control both the legislative as well as the executive functions of the state. It basically would give them the power to speculate and question the substantive laws and the procedural laws as well.
So, the countries which have the due process of law, it eventually means that the courts have the power to question the state, whether the state has the power to make the law, and, whether the said laws made by the state are compliant with the principle of natural justice or not. If the state could not give a suitable justification then the courts have the power to declare the part of the invalid as per the jurisdiction.
PERSONAL LIBERTY
One of the essential rights is the right to life and personal liberty, which allows any person to recite his or her life with dignity and without any kind of interference. Although, the right of personal liberty was not considered and was not fully construed, as a result of legal developments, the scope of this right has expanded and is continually expanding.
The words liberty that came up for the contemplation in the case of A.K Gopalan vs. The State of Madras. In this case, A.K Gopalan is the petitioner, the Preventive Detention Act of 1950 was used to imprison A. K. Gopalan, a communist leader.
He then questioned the act's legality, claiming that it infringed on his right to freedom of movement, which was granted to him under Article 19(1) (d) of the Indian Constitution and is the essence of personal liberty. His argument was related to the freedom of movement that shall satisfy article 19 of the constitution.[4] He further stated that Article 21 included the principle of natural justice and not the laws that were made by the state.
The Supreme Court characterized and characterized the expression "individual freedom" in an exceptionally exacting and prohibitive sense. The expression "freedom" has wide importance, yet when it is qualified by "individual," the extent of the idea of freedom strait, and it no longer incorporates all that is implied by the expression "freedom."
The Supreme Court said that the personal liberty of a person includes physical freedom only and the purview of freedom lasts to the freedom from arrest and physical detention from any kind of false imprisonment or any wrongful confinement.
The Supreme Court interpreted that they should be seen together since Article 19 is a type of substantive right and Article 21 on the other hand is a procedural right. Any law that removes somebody's life or individual freedom should meet the states of both Article 19 and Article 21. Also, in this case, the case was evaluated on a very narrow basis.
BRIEF: DUE PROCESS OF LAW
AN ELABORATED VIEW OF THE PROCESS OF LAW:
The word personal liberty was again discussed in the case of Maneka Gandhi v. Union of India[5]. The Supreme Court has overruled the interpretation that was given in Gopalan’s case and has also widened the scope of Article 21 of the Indian constitution after this case as this case set a benchmark for the interpretation of the fundamental rights. In this case, the regional passport officer in Delhi wrote to Maneka Gandhi, requesting that she relinquish her passport within seven days of receiving the letter.
She quickly addressed the letter to the police, requesting that the officer write down the cause for the letter. After some time, she also received a letter from the Indian government's Ministry of External Affairs, claiming that the explanation could not be given to her due to public interest. In the public interest, her passport was seized under Section 10(3) of the Passports Act, 1967.
Maneka Gandhi then approached the Hon’ble Supreme Court of India under Article 32 of the Indian constitution stating infringement of her fundamental right to personal liberty. The Government was not justified in hiding the grounds for the passport seizure from the petitioner, the court said. The court said that the petitioner has the right to travel and it cannot be violated as the right to go abroad is implicitly covered in the Passports Act. Also, the said act does not describe the confiscation of the passport under certain circumstances.
Also, according to the court, the petitioner was never given the chance to be heard which was a violation of the principle of natural justice. As a result, the Supreme Court overturned Gopalan's verdict and expanded the definition of "personal liberty." Justice Bhagwati stated that the ambit of Article 21 is very wide and hence it should be evaluated properly.
He also added that the courts must interpret the fundamental rights according to the ambit and the purview and not just by analyzing their scope and meaning. Any approach that reduces an individual's rights must meet the requirements of normal equity, such as being just, fair, and reasonable. Hussainara Khatoon v. Home Secretary, State of Bihar 1979 S.C.R. (3) 532 was one of the earliest PIL cases, and it dealt with countless under trial detainees languishing in Bihar's jails, some of them had been imprisoned for durations longer than the maximum punishment their accusation carried, and the court was asked to follow the due process of law in the case of the detainees.[6]
THE DUE PROCESS OF LAW
“Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the defendant to file pleadings including written statements and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.”[7]
In the case of G Silver Spoon Restaurant and others vs The State of Andhra Pradesh, 2021, the court given the due process of law stated that “the expressions due process of law, due course of law and recourse to the law have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed forcibly by the true owner taking law in his own hands. All these expressions, however, mean the same thing, ejectment from settled possession can only be had by recourse to a court of law. Due process of law or due course of law, here, simply means that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.”[8]
The term "due process" is derived from the phrase "the law of the land," which appears in Section 39 of the Magna Carta of 1215. The notion of due process states that the government has to respect all kinds of legal rights owed to a person under the law. The due process keeps the government accountable to the law of the nation and safeguards citizens against government abuses. A fair treatment infringement happens when the public authority harms an individual without submitting to the apparent aim of the law. This is a break of law and order. It may incorporate an assessment of a technique's general reasonableness as allowed by law.
The expression "meaningful fair treatment" alludes to the legal strategy deciding if the substance of an enactment is viable with the Constitution. The court is stressed over the legitimateness of the fundamental guideline is a higher priority than the decency of the lawful methodology. Thus, every single kind of considerable audit is any sort of survey that does exclude procedural fair treatment. This understanding has been demonstrated and can be questioned under the court of law and is undifferentiated from the ideas of normal equity. This understanding of fair treatment is now and then communicated as an order that the public authority will not be out of line to individuals.
DUE PROCESS OF LAW: INDIAN PERSPECTIVE
The Indian Constitution is remarkable for replicating significant topics and areas from other nations' constitutions. Since the Constitution is the pre-eminent law of the country, the court has utilized its imaginative and surprising readings to present and make considerable rights statute, despite the composers' reasonable reason.
The reason for this paper is to explore if the making of this statute was unavoidable, particularly given the composers purposely endeavored to stay away from it by excluding a "fair treatment" condition in the Constitution.
It clarifies the explanations behind the non-appropriation of the "fair treatment" arrangement and looks at whether this choice impacted the foundation of meaningful "fair treatment" rights in the Indian setting utilizing a contextual investigation strategy.
The nature and scope of the rights secured by the Fifth and Fourteenth Amendments' Due Process Clauses are among the most contentious issues in constitutional law. The issue is on whether these sections should be interpreted to safeguard simply "procedural" rights like notice and the right to a hearing, or if the due process provision should be interpreted to include certain "substantive" safeguards as well.
CONCLUSION
The due process of law in the course of legal proceedings that are according to the rules and the principles that have been established through research and analysis for a system of jurisprudence that shall be used for the enforcement and protection of private rights of the people. In each case, “due process contemplates an exercise of the powers of government as the law permits and sanctions, under-recognized safeguards for the protection of individual rights.”[9]
It may be inferred that the right to life of a person and his liberty is an inalienable right that is protected for him and not only by the Indian Constitution of India but it is also protected by the fact of human existence. It distinguishes between the life of a human and the life of an animal. This is the well-described conclusion of the process of procedure established by law and due process of law.
AUTHOR: TANISHQ BISEN
Content Writer
[1] P.J. FITZERALD, SALMOND ON JURISPRUDENCE 102 (New Delhi: Universal Law Publishing Co. Pvt. Ltd. 2013) [2] Article 21, Indian Constitution, 1949 [3] Article 21 of the Constitution of India [4] A.K. Gopalan vs. The State of Madras 1950 AIR 27, 1950 SCR 88 [5] Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 62 [6] Hussainara Khatoon v. Home Secretary, State of Bihar 1979 S.C.R. (3) 532 [7] Mrs. Poonam vs. Sh. Krishan Pal, 2014 [8] G Silver Spoon Restaurant and others vs The State of Andhra Pradesh, 2021 [9] Britannica, T. Editors of Encyclopedia (2020, April 4). Due process. Encyclopedia Britannica. https://www.britannica.com/topic/due-process
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