The project work aims at analyzing the present significance of doctrine of due process of law in Australian Constitution and compare it with well established position of the doctrine in Indian Constitution. This paper also aims to criticize absence of explicit provision of right to due process in Australian constitution to safeguard the life and liberty of people residing within the territory of Australia and provide suggestions to overcome such problem. Absence of explicit provision of right to due process in Australian constitution leaves the basic right of life and liberty at a very vulnerable position and does not provide a person effective remedy against the arbitrary actions of executive and legislature.
I. CONCEPT OF DUE PROCESS OF LAW
“No free man shall be taken or imprisoned or disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.” This phrase is recorded in chapter 39 of the Magna Carta. It has an important meaning as it connotes the powers of the king are not absolute, but their power is subjected to justice. The Right to Due Process of Law is one of the most fundamental principal of our modern day laws. It protects people from arbitrary exercise of power by the government and give people right against injustice inflicted by the government.
The doctrine of Due process of law doctrine keeps check on whether there is existing law to safeguard the life and liberty of a person and also see such law is is fair, just and not arbitrary. If the Apex Court finds the law to be unfair or arbitrary it will declare it null and void in order to give more fair treatment to individual rights. Right to due process of law demands the state to respect rights of the individuals and laws enacted by them must conform to the law of the land. This doctrine provide shield against arbitrary action of legislature as well as executive.
Due process is further divided into two categories i.e. Substantive due process and procedural due process. Substantive due process ensures safeguard of basic rights of a person by the state while making laws and if any law curtails these basic rights it is duty of the state to prove that such curtailment is the least restrictive and done in large public interest. On the other hand, procedural due process ensures the deprivation of life, liberty, property and other fundamental right to be done by a well-established fair procedure. Such fair procedure must include elements like notice, opportunity to be heard, fair trial before an impartial judge and appeal before a higher authority which independent of government influence. Although the procedural due process cannot be understood in isolation from substantive due process as the purpose of procedural due process is always to ensure that laws which conform to substantive due process amd applied fairly and in non-arbitrary manner.
The phrase “due process of law” has its origin in a 1354 translation from Latin and restatement in English of the 1215 Magna Carta, by which for the first time in the government (in this case, King John of England) was brought under the law. The king has become a subject to “Law of the land” and he has no power to alter its basic character.
First, Magna Carta was preceded by the Charter of Liberties of 1100, by which Henry I of England restricted his powers over church officials and the nobilities. Second, an important document in the evolution of Due Process of Law was the 1628 Petition of Right, which was greatly influenced by the former Attorney General and Chief Justice, Edward Coke, who asserted that not only the king but also the parliament were subject to the fundamentals of the common law. The following passages from the Petition of Right are especially important. By the statute called ‘The Great Charter of the Liberties of England,’ [Magna Carta] it is declared and enacted, that no freeman may be taken or imprisoned or be disseized of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land. And in the eight-and-twentieth year of the reign of King Edward III, it was declared and enacted by authority of parliament, that no man, of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disinherited nor put to death without being brought to answer by due process of law. During the rule of King Edward III (reigned 1327–1377). Parliament passed six statutes to clarify the meaning and scope of the liberties that Magna Carta ensures. The statutes interpreted the expression “the law of the land,” as the judicial procedures that protect an individual’s liberties.
III. DUE PROCESS OF LAW IN INDIAN CONSTITUTION
The right to ‘Life and Liberty’ has been incorporated under article 21 of the Constitution of India, it guarantees a person fundamental right to life and liberty in a very wider sense. The scope article 21 has been expanded to a great extent after special after the judgment passed by apex court in Maneka Gandhi case. By virtue of this concept every person is guaranteed the right to life and liberty and judiciary has played a vital role in expanding this concept by judicial activism. Many a time India has witness excess Executive actions leading to denial of fundamental rights of detenus and under trials which has been solved by the courts in adirect and expeditious manner.
In India, the expression “due process” was transformed into “procedure established by law”. The expression “procedure established by law” means procedure laid down by statute or procedure prescribed by the law of the state therefore due process can be divided into threefold. Firstly there should be law safeguarding life, liberty and other basic right and secondly the law should be valid and lastly the procedure laid down by the law is duly followed. If no procedure is laid down by the law to derive one from its liberty or life, then it would amount to violation of article 21 and unauthorized interference with life and liberty of a person by the state. Framers of the constitution restricted article 21 to life and liberty only and does not include property. However, they were even apprehensive of the wide judicial review with regard to liberty. Therefore, they provided for preventive detention but only restricted to the times of emergencies. By using the phrase ‘procedure established by law’ the framers attempted to narrow the scope of judicial review against legislation and give legislature an upper hand. The journey of article 21 can be divided into two eras through various judgments:
Strict interpretation era- pre Maneka Gandhi Judgment
In the case of A.K. Gopalan v. State of Madras it was held by the apex court that the expression “procedure established by law” means procedure laid down by a law enacted by the state rejecting the argument that the “law” means just law and is based on the principles of natural justice. This judgment resulted into misinterpretation of article 21 which only provides safeguard against executive and not against the legislature. Further in the case of ADM, Jabalpur v. Shivkant Shukla where the article 21 was suspended by the presidential order under article 359, the apex court held that Article 21 was the only source of the right to life and personal liberty against its illegal and arbitrary deprivation by the executive but in present case the court could not inquire into the matter. Many a time question arose before the court with regard to the scope of the constitutional amending process under article 368, up to what extent a fundamental right could be curtailed or taken away by such amendments. In the first case on such issue was Shankari Prasad Singh v. Union of India, in which the court held that the wordings of article 368 is very general and give power to the parliament to amend without any exception. The same question arose in the case of Sajjan Singh v. State of Rajasthan in which the apex court reiterated the judgment of Shankari Prasad as regards to the amending power of the parliament under article 368 although minority opinion expressed serious whether fundamental rights creates no restriction on the power of amendment under article 368 of the Constitution. Further in Golak Nath case, the court held that the fundamental rights were non-amendable through constitutional amendment procedure under article 368. In, 1971, Parliament enacted the Constitution (Twenty Fourth) Amendment Act to overrule the effect of Golak Nath judgment by making certain changes in Article 13 and 368 to assert the power of parliament to amend constitution which was again challenged in KesavanandaBharati v. State of Kerala , where the apex court held that under article 368 the parliament has the power to amend the Constitution but such amendment should not be of such nature as to destroy or undermine the basic structure of the Constitution.
Post Maneka Gandhi Judgment era
The words ‘life’, ‘liberty’ and ‘procedure established by law’ has always been most debatable topic in the constitutional assembly and amongst them the most importance was given to ‘procedure established by law’. The two judgments namely Maneka Gandhi v. Union of India and Sunil Batra v Delhi Administration being hailed as milestones in expanding the scope of the phrase ‘procedure established by law’. In the case of Maneka Gandhi v. Union of India the apex court held that the procedure establish by law means procedure reasonably fair and just. The court rejected the plain meaning attached to it and gave it same meaning as due process of law. In the case of State of Maharasthra v. Praful B. Patel, the issue raised was whether recording evidence by way of video conferencing violates procedure established by law as it would depend on virtual reality, the apex court held that in the era of advance technology if an evidence is recoded through video conferencing in the presence of accused or his pleader then it would fall under fair and just procedure and does not violate article 21.
‘Free, fair and speedy trial’ is one of the most important aspects of ‘procedure established by law’. It is an integral part of Article 21 of the Constitution. It is well established law that justice should not only be done but it should be seen tohave been done. If a criminal trial is not fair and free form bias then the public confidence in criminal justice system would be shaken. In the case of ZahiraHabibullaH.Sheikh v State of Gujarat, the court the atmosphere in which a case is tried should be conducive to holding a free and fair trial. The absence of an amiable atmosphere for a fair and unbiased trial was held to be a valid ground for transfer of case.
The liberty of a person cannot be hindered except under due process of law which include free and fair trial. And through many pronouncements the phrase ‘procedure established by law’ given same significance as ‘due process of law’ in Indian justice system.
IV. DUE PROCESS IN AUSTRALIA
Australia is the only liberal democratic country which does not have any bill of rights. In the absence of such bill of rights, chapter III of the Australian Constitution plays a very important role in safeguarding peoples’ rights and liberties. In Australia, it depends on representative and responsible government and common law safeguard against arbitrary action of executive. Chapter III the Australian Constitution deals with judiciary branch of the government and through many pronouncements, the High Court of Australia has ensured separation of power and whereby the independence of judiciary to provide protection to citizen against the arbitrary and harsh actions of other two branches. Independence of judiciary gives power to high court to apply law equally and objectively and works as check and balance on the government’s power to make law. In a way we can say that chapter III has given an implied bill of rights specially implied fair process. In many cases the court has followed the principles of Magna Carta. In the case of Chu Kheng Lim v Minister for Immigration the court held punitive detention falls outside the bounds of executive power and such order can only be made after following a fair procedure of criminal trial.
In the case of Al-Kateb v Godwin, the Court held that administrative detention of non-citizens on not legitimate purpose or on arbitrary grounds could not be done in any case. In many other cases the High Court of Australia has recognized procedural fairness is essential feature of courts and hence, cannot be compromised without risking its constitutional validity. Further the court interpreted Chapter III to safeguard right to seek judicial review of legality of the executive decision.
However, the question arises whether such implicit protection is enough to protect the most fundamental right of a person? Whether in the absence of bill of rights, Chapter III guarantees no arbitrary action of administrative to curtail rights and liberties of a person? Unfortunately the answer is no, there are plenty of cases which shows urgent need of incorporation of right to life, liberty and other basic right in the Constitution to actually safeguard people from arbitrary actions of administrative and provide remedies against such actions. In recent cases, the court held that it is not necessary that rights, liberties, fairness are relevant to Chapter III validity. In the case of Kuczborski v Qld, the High Court held that a law may result into harsh outcomes even disproportionate sometime but it does not make the law itself constitutionally invalid. Such pronouncements do not lay down laws consistent with provisions of Magna Carta. In some of the case the court recognizes the importance of judicial process to be followed in order to take away liberty of a person and the same is proportionate to the crime done by him. However, on the contrary, there are decisions being passed, where the proceedings and laws taking away the liberties disproportionately was done, under Chapter III where due process implication of Chapter III only played dormant role.
Australia is party to International Covenant on Civil and Political Rights (ICCPR) in which article 9 talks about the right to security of the person and freedom from arbitrary detention and other rights relating to detention. It applies to all individual within the territory of the country and in cases also applicable to person’s outside its territory. In both cases the person would have right to security of the person and freedom from arbitrary detention. However, in exceptional circumstance especially in cases of armed conflict such right can be do away with. Article 9 enshrines many rights like right to liberty, not subjected to arbitrary detention, to security, informed of the reason for arrest, brought before the court within reasonable time and to challenge the reasonableness of the detention. The right to liberty shall not be taken away in any way except as provided by law and such law shall not be arbitrary. The UNHR Committees clarified that arrest and detention is allowed under domestic laws but same should not be arbitrary and arbitrariness should not be judged accordance with law but other parameters like fairness and unbiased in short principles of natural justice. Under this treaty it is the obligation of the signatory state to lay down the procedure and grounds for arrest and detention and if such arrest and detention is not in compliance with article 9 of the treaty then it would be arbitrary. Reason for arbitrariness can be many such as law is vague does not give specific meaning, the punishment is disproportionate, unreasonableness, etc. A lawful detention under article 9 can become arbitrary if it exceeds the justified time period required.
International cases where Australia has failed to comply with article 9 of ICCPR
In the case of Tillman v Australia (2010), it was held that detention under Queensland Dangerous Prisoners (Sexual Offenders) Act 2003 is violation of article 9.1 of ICCPR if the person is detained exceeding the sentence period. In the case of Shams et al v Australia (2007) it was observed that arbitrary detention without review of lawfulness of such detention would result into violation of article 9 of ICCPR. In the case of D and E v Australia (2007) where a complaint was made by an Iranian family to the Human Right Committee that Australia has failed in complying with article 9 of ICCPR by detain them for 3 years and 2 months and rejecting the application for asylum. Australia contested that complaint could not be admissible as they have not exhausted all domestic remedies such as judicial review. The committee rejecting the arguments of Australia hold that this wasn’t a effective remedy as the High Court of Australia has held the mandatory detention to be constitutionally valid. The committee agreed that the detention was violation of article 9 of ICCPR as the state party has failed to provide for appropriate justification. Australia rejected the observation made by the Committee. In the case of Bakhtiyari v Australia (2003) a complaint was filed regarding the detention of Bakhtiyari children kept in migration detention for 2 years and 8 months, the Committee observed that the detention by Australian Government was arbitrary. The Committee further observed that the steps taken by the State was not in compliance with its obligation under ICCPR. In the case of A v Australia (1997) where a Cambodian asylum seeker was detained in immigration detention for more that four years, the Committee was of the view that Australia has violated article 9 of ICCPR as the detention was arbitrary and no opportunity to review lawfulness of detention was given to the person. The Committee further directed the Australian Government to pay compensation to the victim although the same was not accepted by the Australian Government. In the case of Shafiq v Australia (2006), in this case the complainant was detained in psychiatric hospital awaiting deportation to Bangladesh for the duration of 6 years. The committee found it to be unlawful and violation of the article 9. However, the Australian government rejected this view stating that the detention must be reviewed in accordance with the domestic law and not on the standards provided by international law. These case laws shows very poor implementation of ICCPR in Australia. Even after being a party to ICCPR, Australia has many a time violated its obligation.
India has explicit set of rights mentioned under Indian Constitution which also provide for right to due process under article 21 of the Constitution. On the contrary, the Australian Constitution does not incorporate any bill of rights and impliedly provide for due process to a certain extent under Chapter III of ICCPR. Both India and Australia have signed and ratified ICCPR thus, subjected to same sets of obligation at international level to protect the basic human right enlisted under ICCPR. Even after being a party to ICCPR there are laws in both countries which pose threat to the life and liberties of the persons. Laws like AFSPA, The Unlawful Activities Prevention Act in India raise serious doubts about India’s compliance with its international obligation. Similarly in Australia laws like Section 189 of the Migration Act 1958 which authorize detention of unlawful non-citizens in the migration zone in immigration jail, violates its obligation under international law.
In India, the expression “due process” was transformed into “procedure established by law”. The expression “procedure established by law” means procedure laid down by statute or procedure prescribed by the law of the state but through judicial activism the scope of “procedure established by law” has been expanded to great extent and given same status as due process. In Australian Constitution the phrase ‘Due Process’ cannot be traced anywhere and through judicial pronouncements it was deemed to be part of Chapter III of the Constitution. However,in many judgments court has rejected this view and gave judgment against the concept of due process. In India ‘Free, fair and speedy trial’ is one of the most important aspects of ‘procedure established by law’. It is an integral part of Article 21 of the Constitution. It is well established law that justice should not only be done but it should be seen tohave been done. Australia also recognizes fair process necessary and follow it in the name judicial process. It believes that a person’s right to life and liberty should only be taken away through proper judicial process.
Although there are many cases where miscarriage of these rights can be seen in judgments given by the higher courts. There are cases where the judiciary has differed from its own laid down principle of judicial process and given judgments seriously affecting the right of the persons. There is urgent need to include right to due process in the domestic law of the Constitution to give effective rights to the persons to have redressal mechanism against the arbitrary action of the executive and legislature.
VI. SUGGESTION AND CONCLUSION
Right against arbitrary detention is very essential to safeguard the life and liberty of a person and put restriction on the unlimited power of the government. After detailed study of Australian constitution and comparing it with Indian constitution in context of right to due process the author arrives at the conclusion that the Australian Constitution needs to undergo an amendment process and explicitly provide for right to life and liberty and that section should also provide for procedures and grounds under which it can be curtailed or taken away and such procedure and ground must be fair, unbiased and appropriate. Australia by not giving a express provision for due process and leaving it up to the discretion of judiciary opens the door for misuse of the power by legislative and executive branch of the government. It is clear from above mentioned pronouncement that the Australian Government has failed to protect the rights and liberty of persons in many cases leaving them in miserable condition. Express provision for due process would enable judiciary to exercise its judicial review power to keep a check on the powers of legislature and executive so that arbitrary misuse of power could be avoided. It would provide an effective and efficient remedy to a person against arbitrary detention which would ultimately give rise to sense of security in minds of the persons residing within the territory of the country. Chapter III of Australian Constitution has many a time proven to be insufficient in protecting the life and liberties through due process and in many judgments it has been held that due process is not part of Chapter III. Such approach by the judiciary has led to numerous violation of right to life and liberty on arbitrary grounds and without following fair procedure. It is a high time for the inclusion of a provision enshrining right to due process to give effect to the spirit of Magna Carta.
 Robert Aitken and Marilyn Aitken, Magna Carta, Litigation, Vol. 35, No. 3, DECISIONS (Spring 2009), pp. 59-62
 Nathan S. Chapman and Michael W. Mcconnell, Due Process as Separation of Powers, The Yale Law Journal, Vol. 121, No. 7 (MAY 2012), pp. 1672-1807
 Dr. K. S. Rathore, Procedure established by law vis-àvis due process: an overview of right to personal liberty in india, Uttarakhand Judicial & Legal Review.
 V.N. Shukla; Constitution of India 11th ed. P.199.
 Dr. K.S. Rathore, “Right to life and personal liberty in India. – an assessment”, All India Reporter Jan 2014 Vol. 101 – Part 1201.
 AIR 1950 SC27.
 (1976) 2 SCC 521: AIR 1976 SC 1207.
 AIR 1951 SC 458.
 AIR 1965 SC 845.
 L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1673 : 1967 (2) SCC 762.
 AIR 1973 SC 146.
 AIR 1978 SC 597.
 AIR 1980 SC 1579.
 AIR 2003 SC 2053.
 AIR 2004 SC 2753.
Right to security of the person and freedom from arbitrary detention at https://www.humanrights.gov.au/right-security-person-and-freedom-arbitrary-detention
Dr Rebecca Ananian-Welsh, Human Rights, the Magna Carta and Chapter III of the Australian Constitution at http://blog.naa.gov.au/constitutionday/2015/06/29/human-rights-the-magna-carta-and-chapter-iii-of-the-australian-constitution/
 HCA 64.
 HCA 37.
 HCA 46.
 Supra note 16.
 Bede Haris, Australia doesn’t have a constitutional right protecting freedom of the person – it needs one at https://theconversation.com/australia-doesnt-have-a-constitutional-right-protecting-freedom-of-the-person-it-needs-one-80603
Cite as: Shyamali Kumar, Due Process of Law Comparative Constitution- Comparison between Australia and India, 1 Int’l J. of Legal Sci. and Inno. 2 (2019)