– Mohit Chugh 1

– Aditi Gupta2


This article is about Due process which arose from the Magna Charta which was given by king John of England in which concept of “law of the land” and “legaljudgmentof peers”was adopted. It is also described in constitution of United States.It mean that no person should be deprived of his basic rights fundamental, constitutionalguarantee that all legal

proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one’s life, liberty, or property. Justice is the main motive of due process.


Due Process means a constitution of any country or stateguarantees it citizens that laws and legalproceedings must be fair and just with its citizen. It can be said that the government ofthat particular state cannot take away a person’s basic rights to life, liberty or property, without due process of law. The concept of due process originated in English common law. The rule that no individualshall not be deprived of life, liberty, or property without notice and an opportunity to defend themselves predates written constitutions and was widely accepted in England. The Magna Charta, which is the first written legal document which was an agreement, signed in 1215that defined the rights of English subjects against the king, is an early example ofconstitutionalguarantees of due process. The Magna Charta includes a clause which declares that, “No free man shallbe seized or imprisoned except by the lawful judgment of his peers, or by the law of the land”.3 This concept of the law of the land was later transformed into the phrase “due process of law.” By the Seventeenth century,England’s North American colonies were using the phrase “due process of law” in their statutes. A constitutionalguarantee that a law shallnot be unreasonable as its main origin is to provide justice and fairlegal proceedings to people under it.

Today Due Process is the basic requirement to safeguard our legal rights. It is also defined in the USconstitution, in the fifth and fourteenth amendment. The Due Process under fourteenth amendment has also been interpreted by theUS SupremeCourt in 20th century to incorporate protections of billof right. It was done so that these protections should apply to the states and as well as federal government. Due to this the clause of Due Process whereby the bill of rights have become binding on the federalgovernment and state government. The clause of Due Process of 5th amendment was ratified in 1791, states that “no person shall be deprived of life, liberty, or property, without due process of law.” This amendment restricts the powers of the federal government as well as to state government & applies only to actions by it and the Clause of due process of the 14th amendment was ratified in 1868. This clause limits the powers of the states, rather than those of the federal government.4

As it is always noticed by the common people that somehow or other they are deprived of their rights by the government pressure and the person is no given a fair justice at many times this can be seen all over the world. For example in certain countries like China, US etc. are the biggest example setters. Chinese government turns despotic if any of its citizens raise the voice against the system.

National Miranda rule may hamper detainee trials

February 10, 2009

Accused in a 2002 grenade blast that wounded two U.S. soldiers near an Afghan market, Mohammed Jawad was sent as a youth to Guantanamo Bay. Now, under orders by President Obama, he could one day be among detainees whose fate is finally decided by a U.S. court. But in a potential problem, Pentagon officials note that most of theevidence againstJawad comes from his own admissions.And neither he nor any other detainee at the U.S.5

Guarantees of Due Process:

• Right to a fair and publictrial conducted in a competent manner.

• Right to be present at the trial.

• Rightto an impartialjury.

• Right to be heard in one’s own defense.

• Laws must bewritten so that a reasonable person can understand what criminalbehavior is.

• Taxes may only be taken for public purposes.

• Property may be taken by the government only for public purposes.

• Owners of taken property must be fairly compensated.6


Model of Due process is a type modelof justicesystem which is based runs on the basic criteria that a citizen has some absolute rights and cannot be deprived of life, liberty, or property without appropriate legal procedures and safeguards.7

There are two types of Due process aspects which are involved and that is:

1. Procedural aspects

2. Substantive aspects.

The requirement of due process applies to both criminal and civil law.

Procedural due process refers to the procedure of arresting and trying persons who have been accused requires fairness in the methods used to deprive a person of life, liberty or property, while substantive due process requires valid governmental justification for taking a person’s life’ liberty or property.8

Dueprocess generally requires fairness in governmentproceedings. As the mean of law only proveto beright when everything is fairly decided. A person in due process is entitled to receive a notice and opportunity to be heard at a hearing when they have life, liberty or property at risk. The function of law is that it should be applied to every person equally, without any discrimination on prohibited grounds, such as gender, nationality, handicap, or age.9

In criminalcases, fair procedure helps to ensure that a convicted person willnot be subjected to cruelty and unusual punishment, which occurs when an innocent person is wrongly accused. Due process requirements apply to such government proceedings as double jeopardy trials, hearings, and administrative hearings involving the benefits of the other there should be a strict eye of law upon it.

The citizen under Alabama Constitution provided complete protection as that afforded by the US Constitution. In the case, Powell v. Alabama10 theUS SupremeCourt reversed and remanded the decision ofAlabama Supreme Court and determined that a defendant must be given access to counsel upon his/her own request, in a capital trial as part of due process.11

The U.S. Supreme Court in Lujan v. G&G Fire sprinklers Inc12 held that a state is not required to hold a hearing before withholding money and imposing penalties on a building contractor. The California Division ofLabor &Standards Enforcementdetermined that a building subcontractor had failed to pay the prevailing wage to workers who installed fire sprinklers in state buildings. The Californiaagency, without providing noticeor a hearing, fined the generalcontractor, which in turn withheld money from the subcontractor.The sub-contractor,G&G Fire sprinklers, Inc., sued the California agency, claiming that the agency had violated the company’s procedural due process rights. The Court disagreed, holding that because the company could sue the agency for breach of contract, the fine did not constitute a due process violation.13


It means that a law that is duly enacted by legislature or the concerned body is valid if it has followed thecorrect procedure. Say a law enacted by Indian legislature. Article 21 of Indian Constitution says that- ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. In India, there is no mention of the word ‘Due Process’. A strict literal interpretation of Procedure established by Law give the legislative authority an upper hand and they may enact laws which may not be fair from a liberal perspective.


The differencebetween “dueprocess of law” and “procedure established by law” is that under theAmerican system,a law must satisfy the criteria of a liberal democracy. In India “procedure established by law”, on the other hand, means a law duly enacted is valid even if it’s contrary to principles of justice and equity. In India a liberal interpretation is made by judiciary after 1978 and it has tried to make the term ‘Procedure established by law’ as synonymous with ‘Due process’ when it comes to protectindividual rights.


The Supreme Court willtake it to consideration whether to reverse a troubling 2002 decision that allowed judges greater sentencing power in certain circumstances. For the sake of fairness and consistency, it should overturn that 10-year-old ruling. As the judgment lies in the question raised in the case to be argued Monday, Allelyne v. United states, is whether a trial judge can increase a defendant’s prison term beyond a mandatory minimum sentence if the facts allowing for the longer sentence were not proved beyond a reasonable doubt.

This has been a murky area of sentencing law, made confusing by the Supreme Court’s contradictory rulings. The justices ruled in 2000 that any factualdetermination that allows a sentence to beincreased beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. But in the 2002 case, Harris v. United States, the court said that this principle did not apply if theincrease was added to a mandatory minimum. In that situation, the justices said, a judge could do what a statute directed, “give specific weight to certain facts when choosing the sentence,”without a finding by a jury.

Those rights have been eroded by two major reforms by Congress beginning in the 1980s:the federalsentencing guidelines, which called for specific sentences for specific crimes; and mandatory minimum sentences, which give enormous power to prosecutors to determine sentences through thecharges they bring. But since 2005, the Supreme Court has ruled that the guidelines can only be advisory, because requiring judges to followthem violates a defendant’s Sixth Amendment right to have a jury find the facts as a basis for sentences.

By reversing Harris, the court would be bolstering Sixth Amendment rights and restoring a role that the Constitution gives the jury.14


“Due process is the necessity law which is required in every constitution. There should be some special provision fixed for this law. Magna Charta, US constitution, Indian constitution the all discuss about it but don’t implement it in a better approach. Due Process is the soul of justice and fair decision in law.”


1. Magna Charta

2. US constitution

3. Indian constitution

4. Extracts from newspapers

5. http://www.usconstitution.net