All modern democracies in the world strive to ensure justice to its citizens. The doctrine of substantive due process is a tool in the hands of constitutional courts to deliver substantial justice. The due process clause finds an express mention in the American Constitution. The draft Constitution of India also contained a proposal to include the due process clause. However, members of the constituent assembly voted against it. Thus, the doctrine of “due process of law” finds no place in the Indian Constitution, having been dropped after initial consideration. Despite its express rejection by the Constituent Assembly, constitutional courts in India have often invoked the doctrine of due process to expand the contours of right to life and personal liberty and invalidate legislative actions. However, the application of this doctrine has not been consistent. While some decisions have openly embraced due process, others have expressly repudiated the application of this doctrine. This article attempts to explore the contours of the doctrine of substantive due process and its application in the Indian context. The article attempts to reconcile various conflicting versions of the “due process” doctrine presented in different judgments of the Supreme Court of India. The author argues that the sense imparted to the doctrine of due process of law in India is different from the sense in which it is used in the United States, the country where it originated. The first part of the article explores the meaning of due process of law in the American context. The second part deals with the application of this doctrine in the Indian context. The author attempts to bring out the distinction between the American due process and the Indian due process. It will be seen that the American due process concept, often used interchangeably with the Indian due process, has no application in India. The indigenous due process clause of India embraces entirely different proportions as compared to its American progenitor.
DUE PROCESS OF LAW: AN AMERICAN CONCEPT
There is no concept in American law that is more elusive or controversial than the doctrine of “due process of law”. This doctrine finds express mention in the 5th and 14th
Amendments to the US Constitution. The fifth Amendment to the US Constitution provides that “no person shall be deprived of life, liberty or property, without due process of law”. The 14th Amendment extends this obligation to the constituent States.
Interestingly, the phrase “due process of law” has not been defined anywhere, not even in the US Constitution. It has evolved over the years to mean that no person can be deprived of his life, liberty of property without a valid justification. Substantive due process would therefore involve identification or recognition of an existing right in the individual with regard to his life, liberty or property, and finding out whether the impugned legislation causes deprivation of the right so identified or recognized. A statute which causes deprivation of an individual’s right to life, liberty or property would be struck down as unconstitutional if the government failed to establish sufficient justification for causing the deprivation.1
“Due process” can be broken down into two components – substantive due process and procedural due process. Substantive due process asks the question of whether the government’s deprivation of a person’s life, liberty or property is justified by a sufficient purpose. Procedural due process, by contrast, asks whether the government has followed proper procedures when it takes away life, liberty or property. Substantive due process involves scrutiny into the question of “sufficient justification” of a government action resulting in the deprivation of life, liberty or property.
Consider this simple illustration. The Supreme Court of United States has held that parents have a fundamental right to retain custody of their children. A law seeking to terminate the custody of children must offer substantive and sufficient justification for this deprivation. This would constitute substantive due process. Procedural due process, on the other hand, would mean that the government must give notice and an opportunity of hearing to the affected persons before terminating custody2.
1 15 Touro L. Rev. 1501 (1999): Substantive Due Process – Erwin Chemerinsky 2 ibid
The said doctrine poses little or no difficulty when challenge is with respect to laws that infringe fundamental rights expressly mentioned in the Constitution i.e. relatable directly and explicitly to life, liberty or property. However, constitutional courts have intuitively expanded the scope of substantive due process to invalidate laws which seemingly did not infringe any of the fundamental rights expressly mentioned in the Constitution. New rights were read into existing fundamental rights by the courts, and statutes were invalidated for infringement of these newly created or recognized rights, upon failure of governments to disclose a compelling reason for bringing the legislation. This practice resulted in annulment of legislations on the touchstone of rights not mentioned in the Constitution (and therefore, by implication, on the touchstone of rights that were not intended to be treated as part of the fundamental rights by the Founding Fathers).
The development of the due process clause (and much of its criticism) centres around the decision given by the United States Supreme Court in Lochner versus New York3. In this case, the Supreme Court of the United States struck down a New York law that limited the maximum number of hours that bakers could work. The Supreme Court held that freedom to contract was an inherent facet of liberty of the individual, and the New York law impinged upon this freedom of contract without any compelling reason. Thus, the US Supreme Court held that the law did not satisfy the test of substantive due process. In doing so, the Supreme Court read freedom to contract as part of the fundamental right under the liberty of the due process clause and accordingly applied the heightened scrutiny test. It did not find the reason disclosed by the government as compelling enough to justify deprivation.
Following Lochner, between 1905 and 19374, the US Supreme Court went on to invalidate over 200 legislations that were designed to implement economic reforms. It was used to aggressively protect economic liberties from government interference. In Meyer vs
3 198 US 45 (1905) 4 Lochner era
Nebraska5, the Supreme Court declared a Nebraska law that prohibited the teaching of the German language unconstitutional. The court noted that liberty did not merely denote freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, etc. Again, in Pierce vs Society of Sisters6 the Supreme Court declared unconstitutional an Oregon law that prohibited parochial school education. These decisions were rendered, not in the context of First Amendment grounds since the Free Exercise Clause had not yet been extended to the States. The Court did so on substantive due process grounds.7 The doctrine of substantive due process therefore involved reading unenumerated rights into the life, liberty and property clauses and then subjecting the statutes to a strict scrutiny.
Ultimately in 1937, the Supreme Court repudiated the economic substantive due process. In West Coast Hotel Co. vs Parrish, the US Supreme Court emphatically rejected the Lochner’s principles. The concept of liberty under the US Constitution was held not to include freedom to contract. This judgment put an end to the Lochner era, and with it the era of economic substantive due process. The words of Justice Douglas, at the beginning of the majority opinion in Griswold vs Connecticut8 are instructive – “Overtones of some arguments suggest that Lochner vs State of New York….should be our guide. But we decline that invitation as we did in [other cases]…We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physicians role in one aspect of that relationship.”9
Griswold declared unconstitutional Connecticut law that prohibited the sale, distribution and use of contraceptives. Justice Douglas used substantive due process even though at the time he denied that was what he was doing.10 But why “super legislature”? Because,
5 262 US 390 (1923) 6 268 US 510 (1925) 7 Substantive Due Process – Erwin Chemerinsky, ibid 8 381 US 479 (1965) 9 Substantive Due Process – Erwin Chemerinsky, ibid 10 Substantive Due Process – Erwin Chemerinsky, ibid
from a legislative perspective, the courts were striking down laws that did not bear any causal relationship with life, liberty or property. Thus, even when no direct infringement was involved, the courts would strike down legislations purely on the ground of arbitrariness by discovering infringement of unenumerated rights. Looked at from this angle, one can say that arbitrariness was invoked as a tool to invalidate legislations even when seemingly no enumerated rights were infringed. Even the unenumerated rights that were apparently infringed did not constitute the core of the enumerated rights, and lay somewhere in the periphery or penumbra.
The modern due process doctrine in its application precludes all substantial arbitrary impositions and purposeless restraints. The government’s deprivation of an individual’s life, liberty and property must have a rational, defensible justification – it cannot rely on bogus or sham cause of forfeiture of rights11. Legislations that deprive the fundamental rights of life, liberty and property are subjected to a heightened scrutiny test where once the deprivation is established, the government must disclose a compelling reason for causing the deprivation in order to sustain the legislation. The heightened scrutiny test is applied to legislations that infringe fundamental rights of life, liberty or property explicitly, or infringes rights that are read (through an interpretative process) as forming an essential part of the right of life, liberty or property. For example, the liberty right would include liberty of important and personal decisions that are central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.
The two main areas where substantive due process is used are:-
(i) protection of enumerated rights expressly mentioned in the Constitution and intended to be protected by the framers.
11 49 J. Marshall L. Rev. 1021 (2016): Implicit in the Concept of Ordered Liberty: How Obergefell vs Hodges Illuminates The Modern Substantive Due Process Debate by Matthew Grothouse
(ii) protection of unenumerated rights – rights not expressly mentioned in the Constitution but lie in the periphery or penumbra of express fundamental rights of life, liberty or property.
If the legislation impairs the fundamental rights of life, liberty or property then it is subjected to a heightened scrutiny test whereby the government is required to justify its reasons for enacting the legislation. On the other hand, if the legislation is assailed on the ground of impairment of any other right, it is subjected to a rational review test whereby the scrutiny is limited to finding a rational nexus with the object sought to be achieved by the legislation.
The doctrine of substantive due process entails an enquiry into whether the impugned legislation causes deprivation of enumerated or unenumerated rights of life, liberty or property. Implicit in this enquiry is identification of unenumerated rights lying in the penumbra or periphery of the fundamental rights of life, liberty and property. It is this process of incorporation of rights that makes the substantive due process controversial and, to borrow Justice Douglas’ words, makes the courts act as super-legislatures. As we have seen in the case of Lochner, the US Supreme Court read freedom to contract as forming part of the liberty clause, resulting in invalidation of an economic law. Once it is established that a particular legislation causes deprivation of right to life, liberty or property, it is left to the government to assign valid and justifiable reasons for bringing the legislation. The court would invalidate the legislation if it found the reason assigned by the government as fanciful or capricious or arbitrary. This ultimately resulted in the courts assuming the role of a super legislature sitting in appeal over legislative wisdom to enact a particular piece of legislation. Conscious of the indiscriminate invocation of substantive due process, the Indian Constitution framers dropped the due process clause from the text after initially including it in the draft.
DUE PROCESS OF LAW IN INDIA
We have seen above that under the American concept of due process, once the infringement of right to life, liberty (and property) is established, the State is required to show that the imposition is neither arbitrary nor purposeless. Taking cue from the US Constitution, the draft Article 15 of the Indian Constitution (later reframed into Article 21) included the due process clause. However, BN Rau, constitutional advisor to the Constituent Assembly, turned the tables against inclusion of the due process clause after Justice Felix Frankfurter apprised him of the difficulties presented by this clause in its application in the US12. Frankfurter, J. was, perhaps, speaking from his experience of indiscriminate invalidation of economic laws in the Lochner era. Dr. Ambedkar took an ambivalent stand in the Assembly, and without expressing any conclusive opinion, left it open to the Assembly to decide on the inclusion of the due process clause13. Ultimately the Assembly voted to drop the due process clause. Instead, the Assembly voted for “procedure established by law” in place of “due process of law”. Learning from the US experience, “liberty” was qualified to “personal liberty” so as to represent liberties central to an individual’s right to self-determination and dignity, and to prevent a Lochner era invalidation of economic laws. Thus, Article 21 was carefully worded to avoid a re-run of Lochner era in India, while preserving, at the same time, rights that formed the core of life and personal liberty without which enjoyment of these rights would be rendered nugatory. Over the years, constitutional courts in India have read unenumerated rights into Article 21, such as right to a clean and healthy environment, right to education, right to privacy, etc. However, this creative interpretation has been justified on the ground of these unenumerated rights finding place, not in the penumbra, but at the core of the right to life and personal liberty. These rights have been found to be implicit in Article 21, and have been held to occupy a central position in an individual’s quest for self-fulfillment and realization. Through this process of creative interpretation, courts in India have identified numerous unenumerated rights as forming the core of right to life and personal liberty. The courts have eschewed indiscriminate expansion of the central core, thereby tactfully avoiding the tag of “super legislature”.
12 Glanville Austin: The Indian Constitution – Cornerstone of a Nation 13 ibid
Early Supreme Court adopted a formalist approach in interpreting Article 21. The express rejection of the due process clause by the Constituent Assembly had a profound impact on the judges. The court therefore insisted on due observance of the procedure established by law, with no reference to the reasonableness of the law. In A.K. Gopalan vs State of Madras14, the Supreme Court read the fundamental rights in isolation and held that a law providing for preventive detention need not separately satisfy the test of reasonableness, so long as it fell within the contours of Article 22 which specifically dealt with preventive detention. The Supreme Court refused to read the due process requirement of sufficient justification for the enactment of the preventive detention law, even though such a law curtailed personal liberty under Article 21. Under the due process clause, the court would have required the government to offer a compelling reason to justify deprivation of “personal liberty”. Instead, influenced by the express omission of the due process clause, the Supreme Court tested the legislation only against the backdrop of Article 22, and negated the challenge.
The story continued till 1970 when in Rustom Cavasjee Cooper vs Union of India15 a bench of eleven judges expressly overruled the Gopalan doctrine and refused to read the fundamental rights in isolated silos or watertight compartments. This effectively meant that a law violating Article 21 would also have to meet the test of Article 14 and 19. Eight years later, in Maneka Gandhi vs Union of India16, the Supreme Court delivered a locus classicus on the point. Maneka Gandhi, the daughter-in-law of Indira Gandhi, assailed the seizure of her passport by the Janta Party government under the Passports Act, 1967. The petitioner claimed that right to travel abroad formed part of personal liberty which stood protected by Article 21 and that the impugned provision (S. 10(3)(c) of the 1967 Act) did not prescribe any procedure, much less any reasonable or non-arbitrary procedure, for causing deprivation of her fundamental right. The petitioner assailed S. 10(3)(c) of the Act of 1967 as violative of Article 21 for its failure to prescribe any (reasonable) procedure
14 AIR 1950 SC 27 15 (1970) 2 SCC 298 16 (1978) 1 SCC 248
for causing deprivation of personal liberty. The line of argument is important, for it neatly establishes that the legislative provision was assailed on the ground of procedural due process, and not substantive due process. The other ground of challenge was that the provision gave unbridled powers to the Passport authority to impound passports, inter alia, on the ground of public interest, without specifying or indicating the contours of “public interest”.
Justice PN Bhagwati, writing the majority opinion, agreed with the contention of the petitioner that right to travel abroad was a facet of personal liberty protected by Article 21. The procedural due process challenge was answered by reading the principles of natural justice into the offending provision and directing the Government to provide a post-decisional hearing to the petitioner. Significantly, right to travel abroad, in the peculiar facts of the case, was not treated as implicit in Article 19(1)(a) or (g). Justice Bhagwati rejected the penumbra approach of reading peripheral rights into Article 19. Justice Bhagwati noted that right to travel abroad was embedded in the concept of personal liberty, not on account of any interpretive structural reading, but because it was inextricably rooted in it. The learned judge accordingly repudiated the ‘incorporation principle” of unenumerated rights17 – the principle that had caused much consternation in United States.
Justice YV Chandrachud, in his short concurring opinion, also expressly repudiated the application of the due process doctrine in India. It however appears that what the Court rejected was the application of substantive due process inasmuch as it did entertain and answer challenge to the procedural due process aspect of the case. In the context of Article 21, “procedure established by law” was, thus, held to mean “a reasonable and fair procedure established by law” – a facet of procedural due process. The procedural due process aspect was clearly incorporated into Article 21.
17 The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases, by Manoj Mate
Justice Krishna Iyer’s concurring opinion, however, has shaped the treatment of due process doctrine in India. The opening lines of paragraph 85 have been read over and over again, at different times by different courts, to imply incorporation of the due process doctrine in India. These lines are reproduced herein below:
85: “To sum up, procedure in Article 21 means fair, not formal procedure. Law is reasonable law, not any enacted piece…..”
These words firmly established the connect between Article 14 and 21. For a law to pass constitutional muster under Article 21, it must not only prescribe a fair procedure for deprivation, but it must be just, fair and reasonable even in its substantive outreach. The interrelation between Articles 14, 19 and 21 was complete, and the ghost of Gopalan was buried forever. It is this interplay between fundamental rights that has been given the nomenclature of substantive due process in India. Interestingly, while Justice YV Chandrachud had clearly rejected application of the due process doctrine in India, Justice Krishna Iyer expressly embraced it. Indeed, in Sunil Batra vs Delhi Administration and others18, Justice Krishna Iyer categorically recorded that post Cooper and Maneka, the due process doctrine stood implicitly incorporated in Article 21. According to the learned judge, a law causing deprivation of right to life and personal liberty could be invalidated for being unreasonable and arbitrary, even if the procedure prescribed for causing deprivation was fair and reasonable. It is unclear, however, if the phrase “due process” was used to connote mere judicial invalidation of substantive provisions of a legislation, or referred to the “due process” doctrine as originally understood in the United States. The author feels that the learned judge must have meant the former, for the doctrine in its application in the United States also took within its fold the strict scrutiny test or heightened scrutiny test requiring proof of compelling State interest for sustaining legislations infringing life, liberty and property rights. The offending provision in Maneka was not subjected to the strict scrutiny test or heightened scrutiny test for determining its
18 (1978) 4 SCC 494
validity. It appears, therefore, that the phrase “due process” used by Justice Iyer connoted only the possibility of invalidation of a legislation infringing Article 21 rights on the touchstone of the reasonableness standard of Article 14, and nothing more. It did not incorporate the strict scrutiny test or heightened scrutiny test into the Indian jurisprudence. It would be pertinent to remember that the strict scrutiny test or heightened scrutiny test required the State to establish a compelling reason for bringing a legislation – an exercise which transformed the constitutional courts into a “super legislature” – one of the aspects of “due process” the founding fathers wanted to avoid. This exclusionary aspect was, apparently, not disturbed by Maneka or Sunil Batra. Also, we must remember that both Maneka and Sunil Batra were cases that related directly and substantially to Article 21 prescriptions of personal liberty and life. Once infringement of Article 21 was established, the offending law was then subjected to the reasonableness standard of Article 14. Thus, the test of Article 14 was applied, not on a stand-alone basis, but upon infringement of Article 21. It is important to bear this aspect in mind as we proceed ahead.
The next important case dealing with the subject of substantive due process is State of Andhra Pradesh versus McDowell Company Private Limited19. The petitioners had assailed the validity of the Andhra Pradesh Prohibition Act, 1995. This Act introduced prohibition of sale and consumption of intoxicating liquor in the State. Later, it was amended to include prohibition of manufacture of liquor within the State. Sections 15 and 16 of the Act, however, granted exemption to certain category of persons from its operation. The Act was assailed primarily on two grounds, on the ground of legislative competence of the State, and on the ground of arbitrariness – that the action of the State in permitting import of liquor from outside to cater to the exempted category while prohibiting manufacture within the State was capricious and whimsical.
19 (1996) 3 SCC 709
The court upheld the validity of the Act and rejected both the grounds of challenge. While rejecting the challenge based on the arbitrariness aspect of the legislation, the court explicitly recorded that arbitrariness cannot be invoked as a standalone ground to invalidate a legislation. Thus, unless some other constitutional infirmity was shown, the courts would not invalidate a legislation merely for being unreasonable or arbitrary. In doing so, the court held that the doctrine of substantive due process which permitted constitutional courts to enquire into the legislative wisdom behind the enactment was not applicable in India. This case is significant in the sense that the court categorically rejected the contention of the petitioners that the courts must apply the yardstick of arbitrariness in the sense of whims or caprice of the legislature in order to ascertain the validity of a legislation. However, the court while rejecting the application of the due process doctrine in India, did not (apparently) take note of the earlier binding precedents of the Supreme Court, notably Sunil Batra and certain other decisions to which we shall advert to later in the article. In Sunil Batra (supra), the Supreme Court had clearly declared that the doctrine of due process stands incorporated in India by virtue of Maneka and Cooper. Despite this binding precedent, the Supreme Court in McDowell rejected the doctrine. It is important, therefore, to explain this apparent contradiction.
We have already discussed that the term “substantive due process” in Sunil Batra was used to connote judicial review of legislations that violated right to life and personal liberty on the touchstone of Article 14. In that sense, it was nothing but a more expansive repudiation of the Gopalan principle, seeds of which were sown in Cooper and formalized in Maneka. However, the term “substantive due process” in McDowell was used in the sense of judicial invalidation of legislations in the manner it was done in the United States i.e. invalidation of legislations by reading unenumerated rights into right to life, liberty and property and then invoking the strict scrutiny test to ascertain the validity of such legislations. It is this process of judicial invalidation that the founding fathers wanted to avoid, and it is this definition of “due process” that the learned judges referred to in McDowell. As the impugned legislation in McDowell did not infringe any fundamental right, the court held it could not invoke the test of arbitrariness under Article 14 as a
stand-alone test20. One can therefore find a clear dichotomy in the meaning ascribed to “substantive due process” in the two decisions.
McDowell was subsequently followed in a large number of decisions, more recently in Raj Bala versus State of Haryana21. In this case the petitioners assailed the validity of Haryana Panchayati Raj (Amendment) Act, 2015 which amended the Haryana Panchayati Raj Act, 1994 and added five disqualifications for contesting elections. One of the grounds of challenge was arbitrariness of the amendment in introducing a disqualification pertaining to attainment of minimum educational standards for being eligible to contest elections. The court found that the right to contest elections and right to vote were constitutional rights only and not fundamental rights. Having held so, there was no occasion for the court to apply the yardstick of heightened scrutiny or sit in value judgment over the legislative wisdom in bringing the enactment. Pertinently, the court refused to do so. Following the dictum laid down in McDowell, the court reiterated that legislations could not be invalidated on the ground of arbitrariness of the legislative wisdom alone, absent violation of any fundamental right.
It appears from both McDowell and Rajbala that the courts wanted to avoid sitting in value judgment over legislative wisdom. Put simply, the courts did not want to judge the arbitrariness of legislative wisdom if the legislation did not infringe any fundamental right. Even in United States, the substantive due process was applied to statutes that infringed rights to life, liberty and property – enumerated or unenumerated. Thus, the doctrine was invoked only in cases which involved infraction of the aforesaid rights. Incidentally, while right to life and personal liberty was directly and substantially involved in Maneka and Sunil Batra, this aspect was absent in McDowell and Rajbala. There was, therefore, no occasion for the court in McDowell to even allude to the substantive due process doctrine in its judgment. Although it can be said of Rajbala that admittedly it
20 The author feels there was no requirement for the court to even allude to substantive due process, after having held that the impugned legislation did not violate any fundamental right.
21 (2016) 2 SCC 445
did involve infringement of a constitutional right. The court therefore ought to have tested the legislation on the reasonableness yardstick of Article 14.
This brings us to the opinion of Justice Rohinton Nariman in the celebrated case of Shayara Bano versus Union of India22 (the Triple Talaq case). While laying down the test of manifest arbitrariness as one of the tools to ascertain the validity of a legislation, the learned judge went on to hold that the doctrine of substantive due process had become a part of the Indian jurisprudence. The petitioners had assailed Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 which, according to them, sanctioned the practise of Triple Talaq. Justice Nariman, after assiduously scanning the religious literature available on the subject, noted that the practise of Triple Talaq was itself considered evil in Islam, and thus it did not constitute an essential tenet of the religion. The court therefore held that the practise of Triple Talaq was not saved by Article 25. The learned judge then invoked the test of manifest arbitrariness to invalidate Section 2 of the 1937 Act by holding that the said provision was capricious, whimsical and was without any adequate determining principle. The court found that there was absolutely no basis on which the underlying principle behind the enactment of the section could be justified. In arriving at his conclusion, Justice Nariman also held that substantive due process was a part of Article 21, meaning thereby that courts could invalidate legislations if the same were found unjustified. In other words, the courts could strike down a legislation if it did not appeal to the sense of justice. McDowell was overruled for its refusal to look into the arbitrariness aspect of a legislation. Nariman, J., however, held that arbitrariness in the context of legislation cannot be used loosely. The test of arbitrariness thus had to be broad-based when testing a legislation, as opposed to when testing an executive action. Accordingly, the test of arbitrariness was upgraded to the test of manifest arbitrariness when testing validity of legislations. Manifest arbitrariness was held to mean something done by the legislature capriciously, irrationally and/or without adequate determining
22 (2017) 9 SCC 1
principle. Further, when something was excessive and disproportionate, such legislation would also to be considered manifestly arbitrary.
In arriving at the conclusion that substantive due process had become incorporated in Article 21, Justice Nariman relied extensively on the opinion of Justice Krishna Iyer in Maneka and Sunil Batra. However, as already discussed, the use of the phrase “substantive due process” by Justice Iyer was only to connote application of Article 14 yardstick to laws that infringed Article 21 rights. This phrase was not used in its quintessential American sense. The author therefore believes that even Justice Nariman, when he spoke of substantive due process, impressed on the necessity to subject legislations that violated right to life and personal liberty to the just, fair and reasonable test of Article 14.
Can a legislation be struck down for being plainly arbitrary without any other constitutional infirmity? Discussion on this aspect is beyond the contours of the present article. Suffice it to say that striking down of a legislation for being arbitrary and capricious is not an instance of substantive due process as understood and applied in the American jurisprudence. The doctrine of substantive due process is applied to strike down legislations that violate right to life, liberty and property (in U.S.). As a corollary therefore, this doctrine will have no application where right to life and personal liberty (in the Indian context) are not infringed (as was the case in McDowell). In the opinion of the author, the test of arbitrariness under Article 14 could have been applied without reversing McDowell. The author believes that Shayara Bano did involve significant aspects of human dignity and the impugned legislation indeed offended Article 21 rights – directly and substantially. The impugned legislation was, therefore, rightly tested on the touchstone of arbitrariness.
Another interesting facet of Shayara Bano is that the offending legislation was a pre- Constitution enactment. The principle of presumption of constitutionality does not apply
to pre-Constitutional enactments. Justice Nariman, if His Lordship wanted to, could have applied the strict scrutiny test to the impugned legislation, stressing on the State to
establish compelling necessity and narrow tailoring. That this was not done further reinforces the author’s argument that substantive due process used in Indian decisions does not connote its original form and expression as prevalent in the United States (which form and expression was expressly rejected by the founding fathers). Again, in Anuj Garg vs Hotel Association of India23, the Court emphasized on strict scrutiny test for “protective discrimination” statues. The Court struck down Section 30 of Punjab Excise Act 1914 (another pre-Constitutional enactment) which prohibited employment of woman in any premises where liquor was consumed by the public. In doing so, the court invoked one of the two prongs of the strict scrutiny test – compelling State interest – to invalidate the law. The “narrow tailoring” test was not applied. The author believes that the Court could legitimately invoke the “compelling State interest” test in this case, given that the presumption of constitutionality did not attach with the impugned pre-Constitutional legislation. Although, strictly speaking, in the absence of the second prong test of “narrow tailoring”, it cannot be said that the court embraced the strict scrutiny test in toto. This decision also does not establish the application of the substantive due process doctrine in India.
Mardia Chemicals vs Union of India24 is another case where the Supreme Court struck down substantive provisions of an enactment (SARFAESI Act) for being disproportionately excessive and arbitrary. S. 17(2) of the SARFAESI Act, requiring a mandatory deposit of 75% of the claimed amount before entertainment of appeal (a misnomer really as it was effectively an application for adjudication in the first instance), was declared unconstitutional on the ground of being unreasonable and unjust. A reading of the judgment does indicate that the reasoning of the court was influenced, in a large measure, by the quantum of pre-deposit. The requirement of 75% of the amount as a precondition to approach a judicial forum in the first instance was found to be a clear negation of the right of judicial review available to a person. S. 34 of the Act barred institution of a suit. Thus S. 17(2) virtually rendered a person remediless in the wake of the onerous
23 (2008) 3 SCC 1 24 (2004) 4 SCC 311
precondition. The court thus found that the operation of the offending provision deprived a person from approaching a court of law for redressal of his grievance, and left him entirely at the mercy of the bank in the manner of assessment and recovery of dues. The author believes that the invalidation of the offending provision can be traced to infringement of right available to an individual under Article 300-A which interdicts deprivation of property except in accordance with a (fair and reasonable) law. A law that deprives a person of his property by making the judicial remedy illusory can hardly be said to be a fair and reasonable law. Mardia Chemicals therefore cannot be said to be a case founded on no violation of constitutional rights. Once the constitutional infirmity was established, the courts applied the reasonableness yardstick to invalidate the offending provision. It was a case of substantive due process in the sense of mere invalidation of a substantive legislative provision, and not in the American sense. It was not a case that involved infringement of right to life or personal liberty so as to trigger the substantive due process doctrine. Besides, a reading of the judgment also indicates that the respondent Union of India failed to establish causality between the offending provision and the object sought to be achieved.
Justice DY Chandrachud’s erudite exposition of substantive due process in the case of Justice (Retd.) K. Puttaswami versus Union of India25 leaves no manner of doubt that this doctrine is not applicable in India. Tracing the evolution of the due process doctrine in the United States and its express rejection by the Constituent Assembly, Justice Chandrachud held that the Indian courts had not incorporated the doctrine of substantive due process in testing the validity of legislations. In the Indian context, a legislation which violates the right to life and personal liberty protected by Article 21 is required to meet the standards of Articles 14 and 19 and other specific constitutional provisions relating to the subject matter of the impugned legislation. The test under Article 14 would involve scrutiny of the legislation from the standpoint of discrimination and in appropriate cases manifest arbitrariness. Certain legislations which violate Article 21 could be subjected to
25 (2017) 10 SCC 1 (9-j)
a strict scrutiny test26 wherein their impact on the subjugated class is assessed to determine its justness or fairness. If the impact of the impugned legislation causes extreme hardship or subjugation of the discriminated class, the legislation would be liable to be struck down. This decision is the final authority on the question of applicability of substantive due process in the Indian context. Pertinently, the learned judge also opined that of the phrase substantive due process used in some earlier judgments of the court was not to connote adoption of this doctrine in this sense it is used in the US, but to imply challenges to substantive provisions of a legislation on the touchstone of Articles 14 and 19 and other related constitutional provisions.
The reasoning of Justice DY Chandrachud is in line with the concept of substantive due process as understood and applied in the United States. It reinforces the ratio of McDowell which did not involve infraction of right to life and personal liberty. The use of the phrase “substantive due process” was used in the limited sense of judicial invalidation of legislations affecting Article 21 rights, by subjecting them to the tests of Article 14 and 19. How is this different from the American due process doctrine? The application of this doctrine in United States involves two components, viz.(i) identifying or establishing infraction of right to life, liberty or property by the impugned legislation, and (ii) subjecting the impugned legislation to a strict scrutiny test whereby the State is required to establish a compelling necessity to frame the law, and also show that the law has been narrowly tailored to achieve its objective. Constitutional courts in India, by virtue of Article 13(2), could strike down legislations on the ground of (i) legislative competence, and (ii) violation of fundamental rights or any other constitutional provision. However, courts in India follow the principle of presumption of constitutionality of a statute. For a petitioner to succeed, the burden is on him to establish the aforestated grounds for invalidation of law. The principle of presumption of constitutionality of a statute therefore rules out application of the strict scrutiny test, where the burden is on the State to establish compelling necessity and narrow tailoring. The Supreme Court of India has
26 The term “strict scrutiny” used in the judgment refers only to a “deeper scrutiny” involving the “test of proportionality”. It has not been used in the sense of “heightened scrutiny” as used in the U.S.
time and again refused to apply the strict scrutiny test to invalidate legislations. Although, Justice Chelameshwar in his opinion in Puttaswamy (supra) did speak of applying strict scrutiny test in the context of certain legislations, the subsequent five judges bench27 ruled out application of this doctrine in India. The test of proportionality was instead applied to test the validity of the offending legislation in the context of violation of right to privacy, held implicit in Article 21 earlier by the nine judges bench. The five judges decision in Puttaswamy (5-j) leaves no manner of doubt that the strict scrutiny test (and therefore by implication the doctrine of substantive due process), as understood in United States, has no application in India. Unless a legislative provision offends fundamental rights or a constitutional right, the substantive due process cannot be used to invalidate a legislation purely because it is found to be arbitrary.
Conclusion
The Indian version of the substantive due process is vastly different from the American version. In the United States, the indiscriminate reading of unenumerated rights bearing no causal connection with the triumvirate of life, liberty and property resulted in invalidation of laws that did not directly violate enumerated rights. Courts in India have opined that substantive due process has become a part of Article 21. However, we have seen that the due process doctrine referred to by the constitutional courts in India is different in form and character to the original American concept. Unlike the courts in United States, courts in India will not invalidate legislations if they do not infringe any fundamental or constitutional rights. In the case of unenumerated rights, judicial scrutiny would follow only if the legislation violates some aspect of a core enumerated right (example, right to privacy held intrinsic to personal liberty in Article 21), preservation of which is deemed necessary to protect the enjoyment of enumerated
27 (2019) 1 SCC 1 (5-j) – Aadhar case
rights. The doctrine of substantive due process as used in the United States has no application in India, which is in line with the intent of the framers.28
