It is very important to understand the procedure established by law and due process of law when we are studying the right to freedom which comes under our fundamental right ;

In this article, we will discuss ‘ Procedure established by law ‘ and ‘ Due process of law ‘ in a simple and easy way, and try to understand its various important aspects.

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| Difference between procedure established by law and due process of law

Article 21 (which deals with life and personal liberty) states that only according to procedure established by law, a person can be deprived of his life and personal liberty.

It simply means that the state can also take the life of any person if it wants, but this can be done only under the procedure established by law.

In other words, if the state makes a law that slapping someone will be punishable with life imprisonment, it will happen. Because the state has, by all means, procedures to make this law; Followed everyone. This is the essence of procedure established by law , that is, procedure established by law .

But the problem comes whether it is appropriate to give life sentence to someone just for slapping. If it is not proper then how can it be made right? For this there is a concept which is called due process of law , that is, due process of law . Let us understand these two in detail;

| Procedure established by law

Article 21 of Part III of our Constitution, which gives the right to life and personal liberty ; It is written in this that the right to life and personal liberty can be taken away  from any person only by ‘ procedure established by law ‘.

We know that there is a definite procedure for making laws in the Parliament. If a law is made by the same definite procedure, however bad the law may be, however undemocratic its provisions, the element contained in that law may be violative of the fundamental rights of the constitution; So, it is called ‘  procedure established by law ‘.

That is, to make laws on the norms laid down by the constitution, irrespective of the nature of that law. It is a symbol of parliamentary supremacy as it gives immense powers to the Parliament.

To understand it in another language, the country in which the procedure established by law is followed. The parliament of that country is the most powerful. Because as soon as that law will be challenged in the Supreme Court there. The hands of the court will be tied. The court can only see that law in the name of judicial review whether the process of making law is correct or not. He cannot even touch what is contained in the law. 

The same procedure is followed in the UK. That is why the most powerful institution there is Parliament. Once a law is made by the Parliament, it becomes a streak of stone. 

Let us understand this with an example– let us assume that the Parliament of Britain made a law that the person who commits theft will be given direct death penalty. Now imagine what would happen in such a situation.

The accused of theft go to the highest court there and plead with the court that why only 10 dollars were stolen, why the death penalty for this.

Now the court also knows that the death penalty cannot be given for this, even the whole country knows that the death penalty should not be given for this.

But the court cannot do anything, since the Parliament of the country has made such a law; Even though this law is not right, but the process of making law is completely correct. And thus due to the procedure established by law, the court would have to sentence him to death.

| Even in Article 21 of the Constitution of India, it is written here that if anyone is to be punished by the procedure established by law , it can be given.

But if you look at it, the Supreme Court in India also reviews the process of making laws and also the elements contained therein. That is, in the eyes of the Supreme Court, the process of making laws must be correct, as well as what is written in that law should also be correct.

If anything is found wrong in the law, the Supreme Court also quashes that law. Now the question comes that why does this happen? Whereas Article 21 of the Constitution clearly states about the procedure established by law, does the Supreme Court violate it?

To understand this, let us first know about due process of law or due process of law.

Note – It is very important to understand two cases here (1) AK Gopalan case (2) Habeas Corpus case. For a better understanding of this article, at least read the first one.

Due process of law

This too has come out of Britain itself, Britain did not adopt it, but this provision was suitable to America and it adopted it. 

| Due process of law means that the law will be made according to the established procedure, but when the judiciary reviews that law, they will not only review the process of making law but will also review what is written in that law. 

And this means that if the court finds anything in that law which is not constitutional or is going to violate the fundamental rights, then that law can be canceled.

You must be understanding how in the process established by law, where only the process is taken care of, the due process of law pays attention to the process as well as the element contained therein.

That is, the Parliament is not powerful in this, but it also has a fear that if the law is not made properly, then the judiciary can also repeal it. 

| Now the example given earlier – suppose that event now takes place in America where ‘ due process of law ‘ works. So in such a situation the court could set aside that law and say that no one’s life can be snatched from him just for petty theft.

Something similar would have happened in India as well. The courts here would also give a similar verdict.

| Now talking about India, here is a strange case. Article 21 says ‘Procedure established by law’ but in practice all work is done by ‘due process of law’. 

Why this happens? And if this happens, then what will be the meaning of that sentence written in Article 21. Actually this happens for many reasons.

| One reason for this is that Article 13 states that no law can be made to abrogate the Fundamental Rights. 

That is, if we take the same example, then that accused should be hanged in India also under the procedure established by law. But under Article 20 there is protection in respect of conviction for an offense. Not only does one get the right to life under Article 21 and protection from arrest is also provided under Article 22 .

| But the greatest protection comes from Article 13. Under this, the Supreme Court not only reviews the procedure, as well as the element contained in that law.

That is, the ‘procedure established by law’ written in Article 21 can apply only to Article 21, whereas Article 13 applies to the entire Fundamental Right. This means that Article 21 will also apply.

Basic Structure of the Constitution

The court gets one power from Article 13 and the other power comes from Article 32. But in 1973, the Supreme Court got an even greater power, which gives so much power to the Supreme Court as it does not give due process of law in many cases.

That power is the power of the Supreme Court to interpret the ‘ basic structure of the Constitution ‘. Or in other words, the power to do judicial review on the basis of the basic structure of the constitution.

Now it is very important to know the principle of ‘ Basic Structure of the Constitution ‘. The Supreme Court in a 1973 judgment held that Parliament cannot tamper with the basic spirit or basic structure of the Constitution.

If the Supreme Court feels that a law is destroying the basic structure of the Constitution, then it can be suspended. That is, if Parliament makes any such law tomorrow which makes Parliament powerful or implements the procedure established by law, then the Supreme Court will immediately dismiss that law as a law that violates the ‘ basic structure of the Constitution ‘. .

On the basis of this, how many laws have been rejected so far. Article 13 applies only to the Fundamental Rights, but this power of the court applies to the entire Constitution.

These are some of the reasons under which the procedure established by law has become secondary, and ‘ due process of law ‘ is going on in practice even though it is not written in the constitution.

Hope you have understood the procedure established by law and due process of law. Click here for a better understanding of the Constitution in a sequence .

M Laxmikant
मूल संविधान भाग 3↗️
AK Gopalan case 1950 and Maneka Gandhi case 1978
Conflict Between Fundamental Rights and DPSP