Described as an “executive’s court” in some quarters in recent times, the Supreme Court has proved its critics wrong yet again. A 41-page judgment of Justice Sandeep Mehta and Justice B R Gavai, authored by the former, has highlighted the importance of due process.
Due process of law is not only an important fundamental right but a time-tested yardstick to judge the maturity of a civilisation. But, is it just a procedural requirement? Or does it offer substantive protection against the state’s arbitrary exercise of power?
Justices Mehta and Gavai delivered their verdict in Newsclick founder-editor Prabir Purkayastha’s case. Purkayastha was not informed of the “grounds of arrest” as required by the Constitution’s Article 22 before his production before the Additional Sessions Judge (ASJ). However, the ASJ mechanically passed the remand order at 6 am on October 4, 2023.
The SC verdict has rightly drawn a fine line between the “reasons of arrest,” which are formal and common to all arrested persons, and the “grounds of arrest,” which have to be peculiar to an individual arrested person. If the “grounds of arrest” are not communicated in writing, the right to life and personal liberty is violated making the arrest and detention illegal, despite repeated remand orders.
Even the first major human rights instrument, the Magna Carta (1215), talked of only procedural rights — of course, only of nobles or barons. Yet, it too was categorical that “no freeman shall be seized or imprisoned or stripped of his rights…except by the lawful judgment of his co-equals or by the law of the land.” The expression “due process” was used for the first time two centuries later in the statute of British King Edward III. But it was the Fifth Amendment to the American Constitution (1791) that introduced the concept of “due process” in a constitution. Subsequently, the Fourteenth Amendment guaranteed, in........