Due Process of Law and Natural Justice - Manupatra

D u e Pr oce ss of La w a n d N a t u r a l Ju st ice

Ch h a vi Aga r w a l*

"The principles of nat ural j ust ice are easy t o proclaim but t heir precise extent is far less easy to define"

Evershed M R

I ntroduction to Natural School :

Nat ural School of Law deals wit h norm s which are higher and which is involved in search of absolute j ust ice. I t is t he t ouchstone of all act ivities and t he ruled as well as the ruler is bound by it. I t can be divided into two parts :

- Nat ural law is higher law, which renders inconsist ent laws invalid. I f t he law is contrary t o nat ural law, it becom es ult ra vires. Law in ancient and m edieval period was prevalent in t his sense.

- Natural law is an ideal and without affecting the constitutionality the law has to conform to its principles.

I n absence of such principles peace and happiness cannot be est ablished in t he societ y. Nat ural law is t he dict at e of t he reason. I t cont ains transcendent al and im m ut able principles t o which t he syst em has t o confirm . Cicero point ed t his out t hat law is j ust and reasonable. I t cont ains in it self 3 things

- The hum an inclinat ion t owards goal and every elem ent , which prot ect s it self and t herefore it, includes all elem ents necessary for protection of hum an life and it discards all rules, which are against the sam e.

- Like ot her anim als, m en have cert ain desires and obj ect in life. Nat ural law includes rules pertaining to inst inct s.

- Due t o it s rationale nat ure it has inclination t owards what is good and bad.

According t o Diaz, Natural law has been used in 5 ways :

- as an ideal which directs the developm ent of law

- I t contains rules of m orality, which does not allow perm anent separation between law as it and law as it ought to be.

- I t's an away to search absolute law.

- Natural law is content of law derived from reason

- I t is necessary for t he legit im acy and existence of any law.

Hence, natural school basically deals wit h t he dictates of t he reason and rat ionalit y.

D UE PROCESS OF LAW :

The concept of due process originat ed in English Com m on Law.1 The rule t hat individuals shall not be deprived of life, libert y, or propert y wit hout not ice and an opport unity t o defend t hem selves predat es writ t en const it ut ions and was widely accept ed in England.2 The MAGNA CARTA, an agreem ent signed in 1215 t hat defined t he right s of English subj ect s against t he king, is an early exam ple of a const it ut ional guarant ee of due process.3 That docum ent includes a clause that declares, "No free m an shall be seized, or im prisoned ... except by t he lawful j udgm ent of his peers, or by t he law of t he land". This concept of t he law of t he land was later transform ed into the phrase "due process of law."

The applicat ion of const it ut ional due process is t radit ionally divided int o t he t wo cat egories of

* Subst ant ive Due Process and

* Procedural due process

These cat egories are derived from a dist inct ion t hat is m ade bet ween t wo t ypes of law. Subst ant ive Law creat es, defines, and regulat es right s, w hereas procedural law enforces t hose right s or seeks redress for their violation.

A fundam ent al, const it utional guarant ee t hat all legal proceedings will be fair and t hat one will be given notice of the proceedings and an opportunity to be heard before the governm ent acts to take away one's life, libert y, or propert y. I t is also, a const it ut ional guarant ee t hat law shall not be unreasonable, arbit rary, or capricious. Due process is the principle that t he governm ent m ust respect all of the legal rights that are owed to a person according to the law. Due process holds the governm ent subservient to the law of the land, protecting individual persons from the state. Due process has also been frequent ly int erpret ed as placing lim itations on laws and legal proceedings, in order for j udges instead of legislat ors t o define and guarant ee fundam ent al fairness, j ust ice, and libert y. This int erpret at ion has oft en proven cont roversial, and is analogous t o t he concept s of natural j ustice.

PARAD OX OF SUBSTAN TI V E D UE PROCESS: The doct rine of Subst ant ive Due Process holds t hat

t he Due Process Clause not only requires " due process," t hat is, basic procedural right s, but t hat it also protect s basic substant ive right s.4 "Substantive" right s are t hose general right s t hat reserve t o the individual the power to possess or to do certain things, despite the governm ent's desire to the cont rary.5 These are right s like freedom of speech and religion. " Procedural" right s are special rights that, instead, dictate how the governm ent can lawfully go about taking away a person's freedom or property or life, when the law otherwise gives them the power to do so.6 I t is not only that appropriate and just procedures ( or "processes") be used whenever the governm ent is punishing a person or otherwise taking away a person's life, freedom or property, but that these clauses also guarant ee t hat a person's life, freedom and property cannot be t aken wit hout appropriate governm ental j ust ificat ion, regardless of t he procedures used t o do t he taking. I n a sense, it m akes t he " Due Process" clause a " Due Subst ance" clause as well. Subst ant ive Due Process provides com prehensive nat ion- wide prot ect ion for all our m ost cherished right s. Support ers of this concept argue t hat t he doct rine is a sim ple recognit ion t hat no procedure can be j ust if it is being used t o unj ustly deprive a person of his basic hum an libert ies and t hat t he Due Process Clause was int ent ionally writ t en in broad t erm s t o give t he Court flexibilit y in int erpret ing it . Crit ics claim t hat " Subst ant ive Due Process" is an oxym oron and t hat t here is no way a reasonable person wit h a sixt h grade grasp of gram m ar could read t he " Due Process" Clause t o assure anyt hing but procedural right s.7 Crit ics in Am erica say t hat w hen t he Cour t uses j udicial review t o enforce t hese pseudo- Const it ut ional right s t hey are st ealing t he legit im at e law- m aking power from the state legislatures.

STATUS I N AM ERI CA :

The due process clause of t he Fift h Am endm ent , rat ified in 1791, assert s t hat no person shall " be deprived of life, libert y, or propert y, wit hout due process of law." The Due Process Clause of t he Fourt eent h Am endm ent , rat ified in 1868, declar es," Nor shall any St at e deprive any person of life, liberty, or property, without due process of law". I n Den v. Hoboken Land and I m provem ent Com pany8, t he first Suprem e Court case t o at t em pt t o define t he Fift h Am endm ent 's " due process of law " provision, Just ice Benj am in R. Curt is, for a unanim ous court, stated that the "words ' due process of law ' were undoubtedly int ended t o convey t he sam e m eaning as t he w ords 'by t he law of t he land,' in Magna Cart a. Lord Coke, in his com m ent ary on t hose words ... says, t hey m ean due process of law."9 Just ice Curt is cont inued and not ed t hat alt hough t he Const it ut ion did not define " due process of law," provided no description of those processes which were intended or forbidden and did not declare the principles to be applied: I t is a restraint on the legislative as well as on t he execut ive and j udicial powers of the governm ent , and cannot be so const rued as t o leave Congress free t o m ake any process " due process " by it s m ere will ... We m ust first exam ine t he Const it ut ion ... t o see whet her t his process be in conflict wit h

any of it s provisions.10 The case of St uart v Palm er11 has t o be consider ed in which it was declared t hat "due process of law" is based upon t he first principles of nat ural law, which is older than written constitutions, that a citizen should not be deprived of his life, libert y or propert y wit hout an opportunit y t o be heard in defense of his rights, and the const it utional provision t hat no person shall be deprived of t hese wit hout due process of law.12 This concept of "due process" is alm ost analogous to principles of natural justice. Basically due process has not been at tem pt ed t o define as it is based on t he concept of free governm ent and wide gam ut of right s. The word " due" in Am erican sense is int erpret ed as "reasonable" , "j ust " and "proper".13 The power t o decide as t o t he reasonabilit y of t he sam e is vest ed in the court s.

This concept augm ent ed and broadened t he scope of right s in Am erica leading t o a bunch of uncert aint y.14 The decisions on t he quest ion of reasonabilit y are not uniform in USA. Moreover, doct rine of police power is est ablished in USA t o rest rict t he am bit of "due process" i.e. doct rine of governm ental power to regulate private rights in public interest.15

STATUS I N I NDI A :

I n order to surm ount the uncertainty, which would arise because of broadening of scope of rights like in Am erica, I ndian const it ut ion m akers rest rict ed it t o procedure est ablished by law.16 The phrase " procedure est ablished by law" seem s t o be borrowed from art icle 31 of t he Japanese Const it ut ion, which gives t he legislat ure t he final word.17 Gopalan18 held t he field for alm ost t hree decades. I t gave legislature a carte blanche to enact a law to provide for arrest of a person without m uch procedural safeguards.19 I t gave t he ultim ate power t o t he legislat ure t o decide what was going t o be t he procedure t o curb t he libert y of a person under art icle 21. This was an absolut e right given to the legislature. I t held that the term "law" in article 21 could not be understood as principles of natural j ust ice. I n its norm al connot at ion it should m eans procedure established by law m eans law enact ed or St at e m ade law and not t he Am erican concept of due process which sim ple m eans vague and uncertain principles of nat ural j ustice.20 I t was held by t he m aj orit y t hat procedure est ablished is in t he nat ure of " Lex" and not " Jus" . Jurisprudent ially speaking Gopalan reflect ed the sway of posit ivism t he superior aut horit y of law - the t hought s of Aust in. An ext rem e view was t aken during t he em ergency of 1975- 1977 when Suprem e Court , in one of t he m ost unfort unat e decisions, held t hat once article 21 was suspended by a president ial order the court could not enquire whether t he deprivation of life or libert y of an individual was aut horized by law.21

Prof Hart and Prof Fuller at t acked t his analyt ical separat ion of law. According t o t hem t he law should discharge t he prerequisit e of j ust ice and rat ionale. I n Maneka Gandhi v UOI 22 it w as held t hat a pr ocedure lacking rat ionale and fair ness is void. Procedure as est ablished by law should not

be bizarre, oppressive or arbit rary otherwise it would not be a procedure in law. A procedure to fulfill t his basis should fulfill t he needs of nat ural law. This case generat ed an aura if peaceful transition from archaic legal positivism to the dictates of natural law and reach social j ustice jurisprudence solely on account on j udicial interpretation, som ething which was not seen by the founding fat hers of t he const it ut ion. Just ice Bhagaw at i in Maneka Gandhi point ed out t hat t he

"procedure est ablished by law under article 14 should fulfill t he t est of reasonableness under art icle 14. Law should be reasonable law, and not enact ed piece of law "

This shows t hat even in I ndia t he concept of " reasonable" and " Fair" , and not only " Lex" but " Jus" prevails. I t 's only aft er t he eye opening decision of Maneka Gandhi t hat t he st at us has changed so drast ically. Now, I n I ndia also "procedure" has t o pass t he t est of reasonability and t he Governm ent has not given unfet t ered and unregulat ed power t o curt ail t he libert y and freedom of any person. Moreover, it over ruled t he explanat ion in t he Gopalan which delinked art icle 14,19 and 21. This case laid down t hat t hese art icles are not m ut ually exclusive. A nexus has been est ablished bet ween t hese t hree art icles. To deprive a person of his " personal libert y" t he procedure should fulfill all t he requirem ent s of article 14 and 19.

The power t o decide as t o t he reasonabilit y of t he sam e is vest ed in t he court s. " Fair Procedure" includes 4 elem ents:

(1) Notice

( 2) Opport unit y t o heard

(3) Impartial tribunal

( 4) Orderly procedure

CON CLUSI ON :

While J. Bhagwat i in Maneka Gandhi est ablished t he requirem ent of reasonableness of procedure in art icle 21 through article 14 som e j udges in the case have read "procedure established by law" as "due process of law" which was int ent ionally avoided by constit ut ion m akers. I ndian const it ution, even t hough has adopt ed and borrowed m any things from the Unit ed St at es' const it ut ion has not adopt ed t he Am erican doct rine of t he "Due process of Law" in it s form al and com prehensive form but t he discret ion has been left t o t he j udiciary to decide t he rat ionalit y of a procedure. Nevert heless, t his principle has been incorporated in t he I ndian Const it ut ion in especially art icle 21 as discussed. When we com pare t he narrow view of art icle 21 in Gopalan Case we can realize t hat j udiciary was living in an ivory tower unconnect ed and unconcerned wit h t he social reality - far away from where t he law originat es - t he nat ure. The j udiciary was underm ining t he values of nat ural j ust ice. Only

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