Due Process: The Term, and Where It Comes From
Chapter Forty-Seven
Syllabus topic 3, "Exceptional Legislation"
Pages 211 to 214 of 657
In one line
Due process means that the State may not take a person's life, liberty or property except by a fair procedure, and in its wider sense that the law itself must be fair.
In the wording a student can write in an exam: due process of law is a constitutional standard, of English origin and American development, requiring that a person be deprived of life, liberty or property only in accordance with a procedure that is fair, and, in its substantive form, that the law authorising the deprivation be itself reasonable and not arbitrary. It has two branches: procedural due process, concerned with notice, a hearing, an impartial adjudicator and a reasoned decision; and substantive due process, concerned with the content of the law and its rationality.
Where the phrase comes from
Magna Carta, 1215, chapter 39. No free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. The words are "the law of the land", not "due process".
A statute of Edward III, 1354. The phrase "due process of law" first appears in an English statute, restating the Magna Carta guarantee. That is the point at which the words become a term of art.
The Fifth Amendment to the Constitution of the United States, 1791. No person shall be deprived of life, liberty, or property, without due process of law. It binds the federal government.
The Fourteenth Amendment, 1868. Nor shall any State deprive any person of life, liberty, or property, without due process of law. It binds the States, and it is under this clause that most American due process litigation has been conducted.
The two branches
Procedural due process asks how the deprivation was carried out. Its content is familiar: notice of what is alleged, an opportunity to be heard, a decision by an impartial adjudicator, a decision on the evidence, and reasons. It is close to the principles of natural justice, and in most systems the two overlap almost completely.
Substantive due process asks whether the law itself is one that may be made at all. It examines the content of the statute rather than the procedure under it, and asks whether the restriction is reasonable, whether the means are related to the end, and whether the interference is proportionate.
The distinction matters here because the Indian answer to the two branches is different. India's courts have been comfortable with the first and, for a long period, hostile to the second, and that history is in [Why Article 21 Says 'Procedure Established by Law'].
Due Process: The Term, and Where It Comes From
Why substantive due process is controversial
Because it puts a court in a position to strike down a statute on the ground that its content is unreasonable, which is a judgment about policy.
The American experience is what made the argument concrete. In the first third of the twentieth century the United States Supreme Court used substantive due process to strike down social and labour legislation on the ground that it interfered with freedom of contract, and the period is remembered as one in which a court substituted its economic preferences for a legislature's. That history is the reason Sir B.N. Rau was advised against importing the clause into the Indian Constitution, and it is the reason the Constituent Assembly wrote "procedure established by law" instead.
An answer that explains why the phrase was rejected, and not merely that it was, is doing what an LL.M. examiner wants.
Due process compared with the principles of natural justice
Students often treat them as synonyms. They overlap and they are not the same.
| Natural justice | Due process | |
|---|---|---|
| Source | common law, developed by judges | constitutional text in the United States; a standard elsewhere |
| Content | two rules: hear the other side, and no one a judge in his own cause | procedural fairness generally, and in the substantive branch the content of the law |
| Reaches the statute? | no; it fills gaps in a statute and yields to clear words | yes, in the substantive branch |
| In India | applies to administrative and quasi judicial action, and may be implied where a statute is silent | not adopted in name; the equivalent standard is that the procedure must be right, just and fair |
Maneka Gandhi v. Union of India, AIR 1978 SC 597, worked in [Maneka Gandhi, and What It Did to Preventive Detention], made both moves at once: it held that natural justice may be implied even where a statute is silent, and that the procedure under article 21 must be fair, just and reasonable.
Why this matters to a paper on national security
Because every device in an exceptional statute is a departure from one element of procedural due process, and they can be listed against each other. That list is the skeleton of MU's question.
Notice of the case. Reduced by in-camera trial and protected witnesses.
An opportunity to answer. Reduced by the reverse burden, which requires the accused to disprove rather than the State to prove.
An impartial adjudicator. Not usually reduced, since a Special Court is a court, though the question arises where the presiding officer is not a judge.
A decision on evidence properly obtained. Reduced by admitting a confession made to a police officer.
Liberty pending trial. Reduced by the bail restrictions.
Due Process: The Term, and Where It Comes From
A decision within a reasonable time. Reduced in practice by long investigations and longer trials, which is where the bail restrictions bite hardest.
Write those six as a list in an answer and the question about challenges and concerns answers itself.
A worked example
A statute provides that in a prosecution for a terrorist act, where arms are recovered from the possession of the accused, the court shall presume unless the contrary is proved that he committed the offence; that a confession made to a police officer of the rank of Superintendent is admissible; that the trial shall be held in camera and the identity of witnesses may be withheld; and that bail shall not be granted where the court is of opinion that the accusation is prima facie true.
Procedural due process. Every one of the four provisions reduces an element of it, and the cumulative effect is that a person may be convicted on a police confession he denies, by a court he cannot see the witnesses before, after years in custody he could not avoid.
Substantive due process. The question would be whether the classification of terrorist offences is rational and the means proportionate to the end. India does not ask it in that language, but it asks something similar through articles 14 and 21.
The Indian answer. Not that such provisions are void, but that they are read down. That is what Kartar Singh v. State of Punjab did to TADA and what People's Union for Civil Liberties v. Union of India (POTA), AIR 2004 SC 456, did to POTA, and it is the subject of [Due Process and Special Legislation].
What it does NOT mean
It is not part of the Indian Constitution's text. Article 21 says procedure established by law.
It is not the same as a fair trial in the ordinary sense. A fair trial is one application of it.
Substantive due process is not the same as judicial review. All constitutions with an enforceable bill of rights have judicial review; substantive due process is a particular technique of it.
Its absence from the text does not mean its absence from the law. After Maneka Gandhi the Indian standard is functionally close, and saying so is the correct conclusion.
Quick revision
- Magna Carta 1215 chapter 39, "the law of the land"; the statute of Edward III of 1354, which first uses "due process of law"; the Fifth Amendment 1791; the Fourteenth Amendment 1868.
- Two branches: procedural, concerned with notice, hearing, impartial adjudicator, evidence and reasons; substantive, concerned with the content and rationality of the law.
- Substantive due process is controversial because of the American period in which it was used to strike down social and labour legislation, and that history is why India rejected the phrase.
- Distinguish natural justice: two rules, common law, fills gaps in a statute, does not reach the statute itself.
- Six elements of procedural due process, each reduced by a device of exceptional legislation: notice, opportunity to answer, impartial adjudicator, evidence properly obtained, liberty pending trial, and decision within a reasonable time.
Due Process: The Term, and Where It Comes From
Test yourself
1. Where does the phrase first appear in a statute? In an English statute of Edward III of 1354, restating the guarantee in chapter 39 of Magna Carta, which itself used the words "the law of the land".
2. Which two amendments to the American Constitution contain the clause, and what is the difference? The Fifth, which binds the federal government, and the Fourteenth, which binds the States and under which most of the litigation has taken place.
3. Explain the difference between the two branches. Procedural due process asks whether the deprivation was carried out fairly; substantive due process asks whether the law authorising it is itself reasonable and rationally related to its end.
4. Why was the phrase rejected by the Constituent Assembly? Because of the American experience in which substantive due process was used to strike down social and labour legislation, which was thought to give judges power to substitute their policy preferences for a legislature's.
5. Name three elements of procedural due process reduced by an anti terror statute. Any three of: notice of the case, reduced by in-camera trial and protected witnesses; the opportunity to answer, reduced by a reverse burden; a decision on evidence properly obtained, reduced by admitting a police confession; liberty pending trial, reduced by bail restrictions; and a decision within a reasonable time.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.