Day 59 – Q 1. Do you think ‘due process of law’ is an ethical legal principle? Substantiate your views.
1. Do you think ‘due process of law’ is an ethical legal principle? Substantiate your views.
क्या आपको लगता है कि ‘कानून की उचित प्रक्रिया‘ एक नैतिक कानूनी सिद्धांत है? अपने विचारों की पुष्टि करें।
In case of dissension, never dare to judge till you’ve heard the other side.”
The doctrine of “Due process of law” originated under the US constitution. Due process of law doctrine not only checks if there is a law to deprive the life and personal liberty of a person but also see if the law made is fair, just and not arbitrary.
‘Due process of law’ is an ethical legal principle
In Maneka Gandhi vs Union of India case (1978) SC held that – ‘Procedure established by law’ within the meaning of Article 21 must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America
If SC finds that any law as not fair, it will declare it as null and void. This doctrine provides for more fair treatment of individual rights.
Under due process, it is the legal requirement that the state must respect all of the legal rights that are owed to a person and laws that states enact must conform to the laws of the land like – fairness, fundamental rights, liberty etc. It also gives the judiciary to access fundamental
fairness, justice, and liberty of any legislation.
The power of judicial review implicit in the due process clause ensure protection of the fundamental rights of the citizens. It also prevents legislature from interfering into the rights of the citizens. Moreover, it helped to nullify draconian laws passed by the Legislature .eg: TADA, POTA, section 66A of IT act etc.
While laws carry with them a punishment for violations, ethics does not. In ethics everything depends on the person’s conscience and self-worth. For example, driving carefully and within the speed limit because a person not wanting to hurt someone is ethical, but if one drives slowly because he/she sees a police car behind, this suggests fear of breaking the law and being punished for it. This way ’due process of law’ is ethical legal principle.
However, the illegitimacy of the court’s opinion in the habeas corpus case subsequently offered a sufficient moral basis for the rejection of the theory of original intent. The Supreme Court’s current opinions on this strike a lethal blow to the theory of original intent, and firmly recognise that constitutional “due process” is here to stay.
Though the term “procedure established by law” is used directly in the Indian constitution. Due Process of Law has much wider significance, but it is not explicitly mentioned in Indian Constitution. Even after six decades of making, the Indian sacred document has been proved successful because of its strong ethical foundations and continues to guide the state and its subjects in an ethical direction.