Due process of law vs Procedure established by law

The Supreme Court has discovered the ‘due process’ theory in the Indian Constitution article 21: No person shall be deprived of his life or personal liberties except according to the procedures established by law.

The expression ‘procedures established by the law’ means that a person could be deprived of his life or liberties by a competent legislation. The right to life and liberty are at the mercy of legislative majorities. There is no legal remedy available if a competent legislation intends to deprive a person of life or liberty. There is no scope of judicial intervention. This was the position of SC in A. K. Gopalan vs State of Madras case, 1950. 'Procedure established by law' expression normally finds place in constitutions having parliamentary system.

The SC overturned its position in the Menka Gandhi vs Union of India case 1978, and invented ‘due process’. It meant that the procedure prescribed by law to deprive a person of his liberty must not be unfair, unreasonable and arbitrary. This emphatically imposed a judicial restraint and brought the arbitrary deprivation of liberty by legislative majorities under strict scanner. 'Due process of law' expression is generally found in constitutions having presidential systems.

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  Posted on Thursday, June 4th, 2015 at 8:07 AM under   Polity