Difference Between Due Process of Law And Procedure Establish By Law

Procedure Establish By Law

The concept originated from the United Kingdom under this doctrine when a person is deprived of his life and liberty then the court will examine-

  1. If or not there is a law in existence which authorizes the executive to deprive of his life and liberty?
  2. The further court will examine whether the law was passed by a competent legislature or not?
  3. The further court will also check whether the law which has been used by the executive was following procedure or not?

If any action of executive not follow above process or condition then that action consider illegal.

The court however will not examine the fairness of law or the motive of law and thus can not be declared the law unconstitutional and void.

This doctrine is available only against arbitrary executive action and not from arbitrary legislative action.

The procedure established by law relies more on a good sense of legislature. Which suitable for UK legislation not for Indian. (Balance of Power issue)

Due Process of Law

The due process of law concept originated in the USA. It gives greater power to the judiciary under this doctrine.

The Court will not only examine whether the action of the executive is backed by a law that is made by proper authority following the proper procedure but whether also the law itself is fair or not that is the intention of the legislature while enacting the law.

When a person is deprived of his life and liberty then the court will examine three processes or conditions under the concept ‘Procedure Establish By Law’.

Where in due process of law court examine one more process.

  1. If or not there is a law in existence which authorizes the executive to deprive of his life and liberty?
  2. The further court will examine whether the law was passed by a competent legislature or not?
  3. The further court will also check whether the law which has been used by the executive was following procedure or not?
  4. Is the law is fair or not?

In this concept, the court checks the fairness of the law. For checking of fairness ‘Natural Justice‘ principle take into consideration.

If the court found the action of the executive does not follow the process then their actions can be declared illegal.

If the court found any law or part of the law does not pass the fairness test then it is declared null and void. (Checks and Balance power)

This approach for judicial review extends the protection to an individual both against the arbitrary action of the executive as well as legislature.

In India, after landmark judgment, Menaka Gandhi vs UOI 1978 case on article 21 of constitution court follow both procedures for delivering judgment.


Constitution Assembly Debate:

B.R.Ambedar wants to use the phrase ‘Due process of law’ in Article 21 but Sir Alldi Krishnaswamy Aiyar put to argue that ‘In future, we want to make social legislation then procedure establish by law will more suitable’.


Difference Between Due Process of Law And Procedure Establish By Law

Due Process of LawProcedure Establish by Law
In this court examine above four(4) processesIn this court examine only the first three processes from the above four processes
Examine Fairness of LawNot examine the fairness of law
Protect against the arbitrary action of the executive as well as legislature both.protect against the arbitrary action of the executive only.
Prevalent in the USA constitutionPrevalent in the UK constitution
Indian Court follows this process after the Menaka Gandhi case 1978.Mention in Indian Constitution Article 21 from 1949

1 thought on “Difference Between Due Process of Law And Procedure Establish By Law”

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