Core concepts of Law

Term Paper

Q. Evolution of the concepts of law.

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”.

Customary practice shapes and nurtures due process in the commo

legal system. However, the American legal system went one step
further and made due process a legislative requirement. English
colonists introduced the expression the law of land and due process
of law to American territory. The first 10 amendments to the United
States constitution known as the Bill of Rights, integrated human
rights into the constitution. The Fifth Amendment is the most
significant since it states that no one’s life, liberty or property should
be taken without due process of law. The history of the Bill of Rights
clearly demonstrated that the architects of the constitutional
amendments intended the amendments to apply solely to federal
legislation and not to state laws. Therefore the 14th amendment has
applied to the due process of state.
To rule the country in conformity with the common law system of
the parliamentary system of governance. India also borrowed the
adversarial form of administration from Britain. All national
legislation are based on the based on the remarkable Indian
Constitution. In comparison to other world constitutions, it is one of
the finest since it seeks to investigate every circumstance in which
laws are required to ensure the smooth functioning of the
democratic process. The Indian style of democracy is distinct in its
ability and capability to manage any exceptional occurrence that
arises in the legal and political systems. India won freedom later than
other countries across the world.

The Indian Constitution is strong enough to deal with unusual

conditions that may arise during the democratic period, allowing
India to maintain a significant role in world affairs. The founders
established the foundations of India’s democratic system. The Indian
Constitution has Due Process of Law sections that are comparable to
those in the American constitution. Article 21 of the Indian
constitution is the key provision that safeguards an individual’s
liberty and dignity in India.

The India democratic system is built on three pillars. Each has its own
set of features and locations of interest. The first Pillar’s role is to
make legislation as part of the nation’s government; the second pillar
is granted the authority to carry out or implemented the laws
created by the First Pillar. The Constitution is entrusted to the Third
Pillar in order to safeguard the legitimacy of the Constitution’s core
principles.
Regardless of the arbitrary activities of the first or second wings, the
third wing’s tasks are quite reliable since they serve as the
Constitution’s defender and guardian. The Indian Constitution
ensures that everyone is treated fairly and given equal access to
opportunities. The Supreme Court of India, which regulates both
Indian politics and the Constitution, wields sovereign authority in the
third pillar. The authors of the Constitution expressly provide the
Supreme Court Judicial review jurisdiction, allowing it to cancel or
reject actions passed by the first pillar if they are found to be illegal.

It is a matter of justice that the structure for “Due Process of Law” be

fair, proper, righteous and precise. Furthermore, the Indian Supreme
Court seeks to define due process under the Indian Constitution by
interpreting two of its articles, namely articles 14 and 21. Despite the
fact that the authors of Indian intentionally excluded the word “Due
Process of Law” from their text, this is done.

Cases

A.K. Gopalan vs State of Madras (1950)

As a result of the 1950 Preventive Detention Act, a communist leader
called AK Gopalan was imprisoned at Madras Jail. The petitioner
challenged the Act’s constitutionality in a writ petition filed under
Article 32 of the constitution, claiming that it violated both personal
liberty under article 21 and freedom of movement under Article
19(1). The preventive detention act of 1950 was found constitutional
by the Supreme Court in this decision, which also emphasized on the
contrast between the Doctrine of Due Process and the Procedure
provided by the law. The Supreme Court ruled that phrase process
established by law should be construed literally. According to the
Court, it is clear from the Constitution’s Drafting Committee that the
Constituent Assembly employed the phrase due process of law in
Article 21 before renouncing it in favor of method established by law.
The word lawful procedure must relate to a procedure described by
the state’s statute. As a result of the precedent made by the A.K.
Gopalan case, due process was not respected in India. Finally, in the
following instance, it was dismissed.

Maneka Gandhi vs Union Of India (1978)

Maneka Gandhi, the petitioner in this case, was a journalist whose

passport was issued on June 1, 1976, in compliance with the 1967
Passport Act. Maneka Gandhi received a letter from the regional
passport officer in New Delhi on July 7,1977 requiring her to
relinquish her passport within seven days in the public interest, as
specified in section 10(3)(c) of the act. She inquired as to why her
passport was being detained. The authorities, on the other hand,
stated that it was not in the general public interest to know the
reasons. The petitioner reacted by filing a writ petition under Article
32, arguing that section 10(3)(c) of the act was unconstitutional
owing to violations of basic rights protected by Articles 14,19 and 20
of the Constitution. The court ruled that the behavior in question
was illegal. It emphasized that the reason for a legislation should be
evaluated in addition to its formality. Even if the phrase “method
established by law” is used instead of due process of law as it is in
the American constitution, the court determined that Article 21’s
procedure must be devoid of arbitrariness and inconsistency. As a
result, the Indian legal system must be observed and the procedure
must be fair, just and non-arbitrary. While the notion of due process
is not entirely followed in India as it is in the United States, the basic
principles of the theory are respected, preserving people’s rights. In
actually, this formula is theory of due process.

ADM Jabalpur vs Shivkant Shukla

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.

Hussainara Khatoon vs Home Secretary, State of Bihar

One of the earliest PIL case was Hussainara Khatoon vs Home

Secretary, State of Bihar which dealt with numerous under trial
detainees languishing in Bihar’s jail’s, some of whom had been
imprisoned for durations longer than the maximum punishment for
their accusation. Apart from significantly relaxing the standing
requirements by allowing Kapila Hingorani, a journalist appearing as
counsel for the petitioners, to file habeas corpus petitions on behalf
of the undertrial prisoners, the court formulated and used a
continuing mandamus which allowed it to issue relief through orders
and directives rather than dispositive judgements in order to retain
jurisdiction. The court’s ruling was written by Justice Bhagwati, who
concluded that fairness under Article 21 is violated when the state
fails to provide for the accused’s prompt trial, pre-trial release on
bond and free legal assistance if he impoverished. It was not
permissible for the state to deny the accused’s constitutional right to
a speedy trial due to lack of resources. The bench led by Justice
Bhagwati also established the idea of epistolary jurisdiction by filing a
PIL in response to a letter written to the court by the leader of a
social reform organization.