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Editorial of the Day (17th May): Right to Fairness-Newsclick case

Context: The Supreme Court of India, in a recent judgement delivered in the case of Prabir Purkayastha, founder-editor of Newsclick, has reaffirmed the importance of due process of law as a fundamental right and a measure of a civilised society.

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  • The court highlighted the distinction between “reasons of arrest” (formal and common to all arrests) and “grounds of arrest” (specific to the individual).
  • Failure to communicate the grounds of arrest in writing violates the right to life and personal liberty, making the arrest and detention illegal.

Historical Context of Due Process

  • The concept of due process dates back to the Magna Carta (1215) and was first used in law by British King Edward III.
  • The Fifth Amendment to the U.S. Constitution introduced due process, later expanded by the Fourteenth Amendment.
  • Due process ensures fairness, reasonableness, justness, and non-arbitrariness, striking down several laws and recognizing new rights in the U.S.

Due Process in India

  • The Indian National Congress, in 1918, demanded the revocation of laws allowing arrest without due process.
  • Despite initial interest in the Due Process Doctrine, the framers of the Indian Constitution abandoned it, opting for “procedure established by law”.

Constituent Assembly Deliberations

  • On March 17, 1947, K.M. Munshi proposed a draft provision for due process in the Indian Constitution.
  • N. Rau’s advice led to replacing “due process” with “procedure established by law” in Article 21, narrowing its scope.
  • Several Assembly members were disappointed, fearing routine detentions without due process.
  • In September 1949, B.R. Ambedkar introduced Article 22 to compensate for the omission of due process in Article 21.
  • Article 22 incorporated rights already part of the colonial government’s Code of Criminal Procedure, 1898.

Judicial Interpretation Post-Independence

  • The SC initially undermined due process in judgments like A.K. Gopalan (1950) and ADM Jabalpur (1976).
  • In later cases, such as Maneka Gandhi (1978), due process was judicially recognized as part of the right to life and personal liberty.
  • The 44th Amendment (1978) made the right to life and personal liberty non-derogable, even during emergencies.

Recent Developments

  • In Pramod Singla (2023), the SC criticised preventive detention laws as a colonial legacy with potential for abuse.
  • The court stressed the need to follow every procedural requirement rigidly.
  • Despite this, India still has stringent preventive detention laws, with over 12,000 people in prison under such laws in 2021 and 76% of prison inmates under trial in 2022.
Aspect Due Process of Law Procedure Established by Law
Origin Rooted in the U.S. Constitution (Fifth and Fourteenth Amendments) Rooted in the Indian Constitution (Article 21)
Scope Broad and substantive Narrow and procedural
Focus Ensures fairness, reasonableness, and justness in law Ensures that the law is followed as per legislative procedures
Protection Against Arbitrary actions by the state; includes both substantive and procedural safeguards Only procedural actions; does not necessarily protect against arbitrary laws
Impact on Legislation Can lead to the invalidation of laws that are unjust, unfair, or unreasonable Only checks if the law has been followed correctly; does not assess the law’s fairness
Example of Application U.S. courts striking down laws that violate fundamental rights (e.g., privacy, liberty) Indian courts ensuring that legal procedures are adhered to, even if the laws themselves are harsh
Historical Background Evolved from the Magna Carta and further developed in the U.S. Constitution Introduced in the Indian Constitution, influenced by British and Irish legal traditions
Key Court Case (India) Maneka Gandhi v. Union of India (1978): Expanded Article 21 to include due process A.K. Gopalan v. State of Madras (1950): Interpreted Article 21 narrowly, focusing on procedure

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