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CCL Term Paper
CCL Term Paper
Term Paper
Introduction
The term due process derives from the phrase the law of land as
mentioned in section 39 of Magna Carta in 1215. Due process is the
notion that the government must respect all legal rights owed to a
person under the law. Due process keeps the government
accountable to the law of the nation and safeguard people from
official abuses. Due process can be either procedural or substantive.
Procedural due process evaluates whether a governmental
institution has taken an individual’s life and liberty without following
the fair method mandated by the legislation. When the government
hurts a person without following the exact course of the law, it
violets due process and violates the rule of law. Substantive due
process refers to a court judgement of law’s conformity with the
constitution. It may entail an evaluation of the general fairness of
legally allowed method. Substantive due process refers to a court
judgement of law’s conformity with the constitution. The court is
more concerned with the underlying rule’s validity than with the
fairness of the legal procedure. As a result, any type of review other
than procedural due process is substantive review. This view has
been contentious, because it is comparable to natural justice
notions.
The government method that takes away a person’s life and liberty
must adhere to the due process guarantee. However, the word due
process lacks a specific definition and the form of the procedural
provision is reliant on a number of factors. The Indian experience
with the due process has been primarily enriched by two primary
spheres because of interaction of articles 14,19 and 21, the concept
of procedure established by aw under article 21 is required to be
just, fair and reasonable; secondly, as a corollary of development
under article 21, inter relationships among articles 20, 21 and 22
have significantly accelerated this phenomenon. Article 21 of
constitution states the “No persons shall be deprived of his life or
personal liberty except according to procedure established by law”.
Cases
The most important ruling issued during the Emergency period was
undoubtedly ADM Jabalpur vs Shivkant Shukla. In the words of Chief
Justice Charles Evans Hughes, Seervai saw it as the most conspicuous
occasion in which the Supreme Court suffered mot severely from a
self-inflicted wound, whereas most people, including former
Supreme Court V.R. Krishna Iyer, see this decision as the Supreme
Court’s worst hour. This judgement dismissed a slew of habeas
corpus petitions challenging preventive detention submitted by a
variety of persons, including well known political opponents of Indira
Gandhi. According to the majority decisions, in light of the
Presidential order dated June 27,1975, no one had locus standi to file
a writ petition for habeas corpus or otherwise challenging legality of
the order of preventive detention on the grounds that it was not in
accordance with the maintenance of Internal Security Act, was illegal
or was vitiated by malafides or extraneous considerations, because
Part 3 of the constitution was suspended during the emergency, any
claim for the execution of his right was forbidden by the Presidential
decree. As discussion between Justice Khanna and the government
counsel demonstrates that the right to life did not exist under the
Emergency, and the courts were unable to intervene when life was
wrongfully snatched. There was no rule of law outside of the
Constitution, and when the constitution or the laws enacted under it
abolished the right, there was no recourse. The sole dissenting
opinion was delivered by justice Khanna who stated that Article 21
cannot be the sole repository of any right because the principle that
no one shall be deprived of his life and liberty without the authority
of law was not the gift of the Constitution but existed long before it
came into effect. Even in the absence of Article 21, no one could be
deprived of his life or liberty without the authority of law, because
no court in any country in the world, pre or post constitution would
accept such a claim. While the majority opinion reversed the fledging
trend of reading substantive due process rights into Article 21, while
still holding that it contained both procedural and substantive
aspects, Justice Khanna’s dissent continued along this path of
Universalist construction of the right to life and personal liberty that
went beyond the mere text of the Constitution.