Historic Pillars of Due Process: The Magna Carta and Beyond

Historic Pillars of Due Process: The Magna Carta and Beyond

By Furquan Alam, Student, BBA LL.B., Chandigarh University

Introduction

Due process of law is a principle in the welfare and for the security of individual right that ensures, the legal proceeding fair and reasonable and every individual will be pre informed and must be heard before the government acts to deprive them of life, liberty, or property. This is nothing but safeguard against arbitrary denial of legal rights.

Difference between Substantive and Procedural Due Process of Law

Substantive due process:

Substantive due process restricts the interface of government in the fundamental constitutional liberty of the inhabitants.

The government’s actions or laws interfere the fundamental rights such as the right to privacy right to marry or the right to raise children unjust interference is strictly scrutinized by the court concerning unreasonable and arbitrary interface in the fundamental rights, and the government must establish the necessity to the law compelling the necessity of the state.

Procedural due process:

It refers the procedural fairness and requirements before interface in depriving the life liberty or property of a person.

It protects the rights of a person and interface of the government in the person’s right, which provides adequate service of notice and fair hearing before any action.

The court assures whether the government is fair and adequate opportunities given for neutral decision in the interest of justice.

Substantive due process protects unjust law and action of government where the procedural due process ensures adoption of fair procedure, the power and the right of the government in the interest of state has been protected whereas the procedure of fair process adopted protects the right of a person.

Why is due process of law essential in a democratic society?

In a democratic society, due process is essential for the reason:

To protect individuals from arbitrary action of government. Everyone has a right to present their case and defend himself or herself from depriving them of their right and liberty before any action against them by the government. The rule of law binds the government officials and the member of the society and ensures the law applied consistently and fair by protecting the abuse of process by using legal procedure and service of process from exercising the power of arbitrary and discriminately manner.

There must be a trustworthy legal system, which provides confidence in the people believing that their legal right will be respected and fair treatment.

Due process helps and ensures that the court and government body are fair and just. In case of any dispute the evidence and ample opportunity to be heard, and the decision is based on established legal principle.

In the due process it ensures that the minority is protected from the trinary of the majority by providing protection from unfair laws and practices, due process is recognized as a fundamental human right and an international law. It helps democratic society global respect for human dignity and justice. Encouragement of accountability and transparency in government action fair decision and action keeps a check and balance in ratio government power and responsibility of governance.

Due process reduces the likelihood of conflict unrest by ensuring social liberty and stability. Due process is a safeguard of individual liberty, justice, equity and abuse of government power and functioning in the legitimacy in government.

Before any action against the protected rights of individuals like unlawful search and seizure and property rights are respected inequality to all individuals protects any discrimination justice and equality by ensuring the lawful service of process, notices, hearing, and redressal opportunity for every individual seeking protection of court decision and review by higher authorities in corrective of errors and justice.

The role of due process in protecting individual rights

Due process protects a person from coercive interrogation confession and torture by government agencies challenging the unfair practice of government bodies protecting the right of the individual legal and democratic rights protection of freedom and justice before the legal forum.

Confession obtained through such a means are not admissible in the eye of law due process shield the power of government agency affecting individual’s right.

Democratic society provides necessary check and balance to protect individual freedom.

Historical context of Due Process of Law

Magna carta the origin signed by king john in 1215 created as a result of the balance rebellion against the king’s arbitrary rule restricts kings’ power by inserting legal protection Clouse 39 states: no free man shall be seized imprisoned or stiped of his rights or possessions out lawed or excelled or deprived of his standing in any other way nor will be proceed with force against him or send other to do so except by the lawful judgement of his equals or by the law of the land.

It introduces the government must follow established legal procedure forming the bases for what would later be known over the century the principles of magna carta evolved within English common law. Individuals could not be arbitrary imprisoned or punished.

Habeas corpus act challenges unlawful detention no one could be held without just cause in legal process. It was enshrined into the constitution of United State. No person should be deprived of his life liberty or property without due process of law inserted in Fifth Amendment of United States constitution 1791, fourteen amendments adopted in 1868 extended this protection both federal and state government could not infringe upon individuals right without fair and established legal procedure.

Due Process in the Indian Context

Dr BR Ambedkar and other farmers were highly concerned about this doctrine of due process, which was too vague and could lead to judicial over rich. Article 21 of the Indian constitution balance the need of protection of individual right. Article 21 states: no person shall be deprived of his life or personal liability except according to procedure stablished by law i.e. a law that has been

Article 22: provides specific protection against arbitrary arrest and detention with detailed procedures for preventive detention and the right of detained individual.

Article 32: ensure the right to constitutional remedies, which allows individuals to approach the supreme court if their fundamental rights are violated.

All these insertions and approach for the safeguard of individual right of protection still not directly included as due process of law, which is felt latches, but it is still felt inclusion as due process of law for the safeguard of the individual right.

Landmark Judgements regarding Due Process of Law

A.K. Gopalan v. Union of India[1]

It is important judgement in Indian constitution law which deals with fundamental right, state power and preventive detention.

Ak Gopalan was a communist leader who was detained under the preventive detention act by the state of Madaras. He challenged his detention on the grounds of infringement of his fundamental right, which is given by the constitution under article 21, which guarantees the right to life and personal liberty. In this case an important question had been raised in front of the apex court about the scope and limitation of fundamental rights in the face of state power.

In this case court follows the concept of procedure established by law not the due process of law and court define the procedure establish by law which is mentioned under article 21 of the Indian constitution as merely following the procedure mentioned in the statute and nothing more, as the outcome of this case sate may be take away a person’s right to life and personal liberty if a law has been passed by the parliament as per the procedure.

Maneka Gandhi v union of India[2]

Maneka Gandhi case establish the interrelationship between article 14 and article 19 of Indian constitution. It expanded the scope of article 21. Landmark judgement of the honorable supreme court with reference to strict jacketed earlier case. Interpretation of fundamental right legal issue involved:

• whether the right go abroad is part if personal liberty whether the right under article 19 1A has any geographical limitation,
• whether the section 10(c)(3) of passport act violates article 14, article 19 1A and article 21?

procedure prescribed by law and personal liberty of a person infringed without giving opportunity to the holder to be heard against the making of the order and it was held that the contravention of the rule of natural justice to protect the fundamental right of ja person the procedure adopted in this case was declared null and void the supreme court held though in

article 21 ‘procedure established by law but the emphasis has been given that it has to be fair just and reasonable not oppressive or arbitrary some kind of procedure violates the mandate of article 21’

Personal liberty in its widest amplitude covers variety of rights additional protection thus the court overruled the AK Gopalan judgement no recourse can be held to a fundamental right conferred by another act the judgement made India a true welfare state the priority is given to the due process of law to protect the fundamental right of the liberty of th person enshrined in the preamble of the constitution and a balance in the procedure adopted for the welfare of the state and the liberty of a person and the opportunity in the best score providing to be heard before passing any order against the personal liberty.

[1] AIR 1950 SC 27

[2] AIR 1978 SC 597