1.2.1. Procedure established by Law vs. Due process of Law

The doctrine of ‘Procedure established by Law’ originated in England. It literally means “according to usages and practices as laid down by the statue”. Under this doctrine, the court examines a law from the view of the legislative competence and whether the prescribed procedure has been followed by the legislature while passing the law.

If an action of the executive is challenged before a court of law seeking protection from it then the court will subject the action of executive to following test:

a) Whether there exists a law that authorizes the executive to take such an action; and

b) Whether the legislature was competent to pass such a law; and

c) Whether the legislature followed the established procedure while enacting the law.

If the above tests are satisfied the court will uphold the executive action. The court will not go behind the fair and just nature and reasonableness of the law and cannot declare the law as unconstitutional however arbitrary or oppressive the law may be unless the law was passed without procedural formalities. Thus, the doctrine relies more on the good sense of legislature and the strength of the public opinion in the country. Therefore, this doctrine confers limited powers on the judiciary, which can extend protection for individual only against arbitrary actions of the executive and not against arbitrary actions of the legislature.

On the other hand, doctrine of ‘Due process of law’, which originated in USA confers wider power in hands of judiciary. According to this, if an executive action is challenged before a court of law, then apart from putting the action of the executive to above three tests, the court will also examine the law from the broader angle of inherent goodness of the law by applying the

principles of natural justice. Due process of law means that the law passed by the legislature shall also have to be fair, just and reasonable and not fanciful, oppressive and arbitrary. The US Supreme court, while following due process of law, can declare laws violative of rights of citizen not only on substantive grounds of being unlawful but also on procedural grounds of being unreasonable. Thus, it extends protection to an individual against the arbitrary action of both the executive and the legislature.

The India Constitution, under Article 21 provides only for procedure established by law. However, the Supreme Court in Maneka Gandhi vs. GOI, 1978 case interpreted the constitution to include the doctrine of due process of law under it by incorporating the principles of natural justice under Article 21.