That expression ‘Due process of law” had its roots in the expression “per legem terrae” (law of the land) used in Magna Charta in 1215. In the reign of Edward III, the words “due process of law” were used in a statute guaranteeing that no person will be deprived of his property or imprisoned or indicted or put to death without being brought in to answer by due process of law (28, Edward III, Ch. III). The expression was afterwards adopted in the American Constitution and also in the Constitutions of some of the constituent States, though some of the States preferred to use the words “in due course of law” or “according to the law of the land.”[1]
In America
In the earliest times, the American Supreme Court construed “due process of law” to cover matters of procedure only, but gradually the meaning of the expression was widened so as to cover substantive law also, by laying emphasis on the word “due.” The expression was used in such a wide sense that the judges found it difficult to define it and in one of the cases it was observed as follows: —
“It would be difficult and perhaps impossible to give to those words a definition, at once accurate, and broad enough to cover every case. This difficulty and perhaps impossibility was referred to by Mr. Justice Miller in Davidson v. New Orleans, where the opinion was expressed that it is wiser to ascertain their intent and application by the ‘gradual process of judicial inclusion and exclusion,’ as the cases presented for decision shall require, with the reasoning on which such decisions may be rounded.”[2]
In India
In Indian Constitution, Article 21 uses similar expression,
“No person shall be deprived of his life and liberty except according to procedure established by law.”
It seems plain that the Constituent Assembly did not adopt this expression on account of the very elastic meaning given to it, but preferred to use the words “according to procedure established by law” which occur in the Japanese Constitution framed in 1946. It will not be out of place to state here in a few words how the Japanese Constitution came into existence.
In Japan
It appears that on the 11th October, 1945. General McArthur directed the Japanese Cabinet to initiate measures for the preparation of the Japanese Constitution, but, as no progress was made, it was decided in February, 1946, that the problem of constitutional reform should be taken over by the Government Section of the Supreme Commander’s Headquarters. Subsequently the Chief of this Section and the staff drafted the Constitution with the help of American constitutional lawyers who were called to assist the Government Section in the task. This Constitution, as a learned writer has remarked, bore on almost every page evidences of its essentially Western origin, and this characteristic was especially evident in the preamble “particularly reminiscent of the American Declaration of Independence, a preamble which, it has been observed, no Japanese could possibly have conceived or written and which few could even understand”[3].
One of the characteristics of the Constitution which undoubtedly bespeaks of direct American influence is to be found in a lengthy chapter, consisting of 31 articles, entitled “Rights and Duties of the People,” which provided for the first time an effective “Bill of Rights” for the Japanese people. The usual safeguards have been provided there against apprehension without a warrant and against arrest or detention without being informed of the charges or without adequate cause (articles 33 and 34).
Now there are two matters which deserve to be noticed: —
(1) that the Japanese Constitution was framed wholly under American influence; and
(2) that at the time it was framed the trend of judicial opinion in America was in favour of confining the meaning of the expression “due process of law” to what is expressed by certain American writers by the somewhat quaint but useful expression “procedural due process.”
That there was such a trend would be clear from the following passage from Carl Brent Swisher’s “The Growth of Constitutional Power in the United States” (page 107.): —
“The American history of its interpretation falls into three periods. During the first period, covering roughly the first century of government under the Constitution, due process was interpreted principally as a restriction upon procedure and largely the judicial procedure–by which the government exercised its powers.
During the second period, which, again roughly speaking, extended through 1936, due process was expanded to serve as a restriction not merely upon procedure but upon the substance of the activities in which the government might engage.
During the third period, extending from 1936 to date, the use of due process as a substantive restriction has been largely suspended or abandoned, leaving it principally in its original status as a restriction upon procedure.”
[1] Cooley on “Constitutional Limitations,” 8th Edn. Vol. II, pages 734-51
[2] Missouri Pacific Railway Co. v. Humes, 115 U.S. 512 at page 513
[3] [See Ogg and Zink’s “Modern Foreign Governments”]