Solved previous year question from the OPSC OAS/OCS Main Examination (General Studies Paper II), with a structured model answer by Strive Edge IAS.
Question
What is due process of law? How it differs from procedure established by law?
Model Answer
Introduction
"Due process of law" and "procedure established by law" are two doctrines governing the extent to which the state can restrict an individual’s life and personal liberty. While the former originates from the American Constitution, the latter was originally adopted in India (Article 21) from the Japanese/British tradition, though judicial interpretation has since blurred the distinction.
Meaning of Due Process of Law
- Due process of law requires that any law depriving a person of life or liberty must be fair, just, and reasonable — both in its content (substantive due process) and in the manner of its application (procedural due process).
- It empowers courts to examine not just whether a law was validly enacted, but also whether the law itself is just and reasonable.
- Rooted in the 5th and 14th Amendments of the US Constitution.
- Allows judicial review of the reasonableness of the law itself, not merely the procedure.
Meaning of Procedure Established by Law
- Under this doctrine, a law depriving life or liberty is valid so long as it has been enacted by a competent legislature following the correct procedure — irrespective of whether the law is fair or reasonable in substance.
- Originally adopted in Article 21 of the Indian Constitution (as interpreted in A.K. Gopalan v. State of Madras, 1950).
- Restricts judicial review to procedural validity, not the fairness of the law’s content.
- Rooted in the British and Japanese constitutional traditions.
Key Differences
| Aspect | Due Process of Law | Procedure Established by Law |
|---|---|---|
| Origin | USA | UK/Japan (originally adopted in India) |
| Scope of Judicial Review | Examines both procedure and fairness/reasonableness of the law | Examines only whether the procedure was validly followed |
| Power of Courts | Wider — can strike down a law found substantively unjust | Narrower — cannot question the wisdom or fairness of the law |
| Protection to Individual | Greater, as it protects against arbitrary/unjust laws | Limited, as it protects only against non-legal/arbitrary executive action |
Indian Position — Convergence of the Two Doctrines
- In A.K. Gopalan v. State of Madras (1950), the Supreme Court held that Article 21 embodies "procedure established by law," not due process.
- In Maneka Gandhi v. Union of India (1978), the Court expanded Article 21, holding that the "procedure" must itself be fair, just, and reasonable, and not arbitrary.
- This effectively read the essence of due process into Article 21, without amending the constitutional text.
- Since then, Indian courts examine both the procedural validity and substantive reasonableness of laws affecting life and liberty.
Conclusion
Although Article 21 formally retains the phrase "procedure established by law," the Maneka Gandhi judgment has infused it with the substantive protections of due process, making the Indian position today a hybrid — procedurally rooted in the British model but substantively enriched by American constitutional philosophy.
