Due Process vs. Procedure in Indian Constitution

Study Notes

The Drafting Committee of the Indian Constitution opted for "procedure established by law" over "due process of law"
"Procedure established by law" emphasizes procedural safeguards, while "due process of law" encompasses both procedural and substantive safeguards.
Seervai argues that the committee did not make the "due process" concept more precise; it rejected the idea altogether.
The debate around "due process" and "procedure established by law" reflects the broader discussion on the balance between individual liberty and social control in a democracy.
Justice Frankfurter of the US Supreme Court argued that the US Supreme Court's expansion of "due process" into a substantive safeguard made judicial review undemocratic.
He argued that this allows the court to strike down government policies based on their substantive content, even if they follow proper procedures.

Several members argued for the inclusion of the "due process" clause in the Indian Constitution, believing it would offer stronger protections for individual rights.
Members such as Pandit Thakur Dass Bhargava, Chimanlal Chakkubhai Shah, Krishna Chandra Sharma, and K.M.Munshi believed that "due process" would ensure fair trial in both procedure and substance, and would protect against state overreach.
They argued that "due process" had not created significant problems in the US judicial system and could act as a vital check on the executive branch's power.
Alladi Krishnaswami Ayyar favored "procedure established by law," expressing concerns about the inconsistencies in the US Supreme Court's interpretation of "due process".

Dr. B. R. Ambedkar argued that the "due process" clause would give the judiciary the power to evaluate laws not only on the ground of legislative authority but also on the ground of whether they align with fundamental principles of individual rights.
He argued that with "due process," the judiciary could declare laws invalid even if they were legally valid, if they violated fundamental principles.
His view reflects the potential for expanded judicial power under "due process" and the potential for conflicts between the judiciary and the legislature.

The Constituent Assembly debated the inclusion of a clause on preventive detention, which allows for detaining individuals without trial, under Article 15A.
Members expressed concerns that the power of preventive detention could be misused, leading to tyranny or arbitrary detention.
They argued for stronger safeguards for detainees, including the right to legal aid, access to judicial remedies, and timely notification of the grounds for arrest.

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