Procedure established by law and due process of law; Is “Due process

of law” hidden in “procedure established by law” in India?

Introduction
Indian constitution has borrowed a lot of things from other constitutions all over the world. And
judiciary has always played an important role in doing creative and unconventional interpretation of
the law of the land and going contrary with the intention of the framers. This paper seeks to study
that when the framers specifically took the principle of “procedure established by law” over “due
process of law” then why the judiciary made synonyms to procedure established by law with due
process of law in its interpretation. This paper tries lays out the reasons for broadening the
interpretation of procedure established by law.

Statement of problem
As the term “due process of law” isn’t particularly specified in Indian constitution but still many a
time this concept is accepted. Judges have diverse view about due process of law while some judges
support it and some not. At the initial stage in AK Gopalan case Supreme Court rejected the
principle of due process of law. But after the case of Maneka Gandhi scenario has changed courts
seems to have broadened the interpretation of the phrase “procedure established by law”. Now it
also looks at the concepts of just, fair and reasonability. So by this we can say we have moved
towards the principle of due process of law. But still when after the Maneka Gandhi case many
more cases were judged by the principle of due process of law it is not included in Indian
constitution. So now this is the time when we should do some amendments to include it in our
constitution which will give more clarity to the judiciary and the people.

Review of literature
 Indian constitutional law 7th edition written by MP Jain published by lexisnexis
This book tells about the history of article 21 and it also tells about how the interpretation of
procedure established by law changed from Gopalan era to Maneka Gandhi’s case

 Due process of law written by Abhinav Chandra publishing house is eastern book company.
This book reveals the writers view about the due process of law and how it came in Indian
judicial system. And it also tells about the two major judgements of AK Gopalan case and
Maneka Gandhi case

 The constitution of India written by Gopal Sankaranarayanan publishing house is eastern

book company.
This book only gives the glimpse of article 21

 Articles on the topic “the origins of due process in India: the role of borrowing in personal
liberty and preventive detention cases” by Manoj Mate
In this article author talks about the evolution of due process of law in India and how it
changed the interpretation of procedure established by law.

Objectives
 To examine the balance between “procedure established by law” and “Due process of law”
in India.
 To analyse the judicial interpretation of the phrase “procedure established by law” from time
to time.
  To understand the dilemmas of the judiciary in taking right decisions because of the
“procedure established by law”.

Hypothesis
 After Maneka Gandhi case the term ‘procedure established by law’ becomes synonymous to
‘due process of law in India’.

Research question
 Weather procedure established by law or due process of law should follow in India.
 Weather preferring “procedure established by law” instead of “due process of law” had a
negative impact.
 Weather procedure established by law had actually included the principle of due process of
law in India.

Research Methodology
This research is basically a doctrinal research. All the resources used in this research are either
library based or online database. This research is mostly concerned with constitution of India,
constitutional debates, landmark judgements, articles etc. The research will look through the lens
and examine Indian laws relating to procedure established by law and due process of law.

Tentative chapterization
 Constitutional debate on procedure established by law.
(This chapter basically deals with the constitutional debates on procedure established by law
which basically tells about the reasons that why the framers take procedure established by
law over due process of law)

 Pre Maneka Gandhi vs. Union of India case scenario

(This chapter deals with the interpretation of procedure established by law before the
Maneka Gandhi case and how judiciary interpreted it in AK Gopalan case)

 Post Maneka Gandhi vs. Union of India case scenario

(This chapter deals with the interpretation of procedure established by law in Maneka
Gandhi case and how judiciary start including due process of law in procedure established
by law)

 Present situation
(This chapter deals with the present scenario with respect to the judiciary’s interpretation of
procedure established by law)

 Conclusion & suggestion

(This chapter deals with the final conclusion of the research which tells us about hypothesis
for this research is correct or not and gives the answer to the research questions. Suggestions
for the betterment was also given in this chapters)
Footnotes
The footnoting or citation style done in this research paper is 19th Bluebook edition.

Bibliography
 Ssconline.com
 lawtimesjournal.in
 The constitution of India by Gopal Sankaranarayanan publishing house is eastern book
company
 Due process of law by Abhinav Chandrachud publishing house is eastern book company.
 Indian constitutional law 7th edition by MP Jain publishing house is lexisnexis
 Articles on the topic “the origins of due process in India: the role of borrowing in personal
liberty and preventive detention cases” by Manoj Mate