Substantive Due Process Update

Two interesting, recent cases tell a very different story about the incorporation of the U.S. doctrine of substantive due process in Indian constitutional law. In Rajbala v. Haryana, (2016) 2 SCC 445, a two-judge bench of the Supreme Court of India has strongly rejected the doctrine of substantive due process. In this case, the constitutional validity of the Haryana Panchayati Raj (Amendment) Act, 2015 (hereinafter, the “Act”) was in question. Under the Act, five categories of persons were considered ineligible to contest elections for certain offices in panchayats in Haryana (e.g., those against whom criminal charges of a certain kind were framed, those who had not paid their electricity dues, etc) [See: Para 11]. The Act was challenged on the ground that it was “wholly unreasonable and arbitrary and therefore violative of Article 14 of the Constitution” [Para 12(i)]. Upholding the constitutional validity of the Act, and following State of A.P. v. McDowell, it was held (per Chelameswar J) as follows [Paragraph 64]:

“From the above extract from McDowell & Co. case [State of A.P. v. McDowell & Co., (1996) 3 SCC 709, para 43] it is clear that the courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is “arbitrary” since such an exercise implies a value judgment and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution. To undertake such an examination would amount to virtually importing the doctrine of “substantive due process” employed by the American Supreme Court at an earlier point of time while examining the constitutionality of Indian legislation. As pointed out in the above extract, even in United States the doctrine is currently of doubtful legitimacy. This Court long back in A.S. Krishna v. State of Madras [A.S. Krishna v. State of Madras, AIR 1957 SC 297 : 1957 Cri LJ 409] declared that the doctrine of due process has no application under the Indian Constitution [ In Municipal Committee, Amritsar v. State of Punjab, (1969) 1 SCC 475, this Court clearly ruled out the application of the doctrine of “due process” employed by the Court adjudicating the constitutionality of the legislation: (SCC p. 479, para 7)“7. … But the rule enunciated by the American courts has no application under our constitutional set-up. The rule is regarded as an essential of the ‘due process clauses’ incorporated in the American Constitution by the 5th and the 14th Amendments. The courts in India have no authority to declare a statute invalid on the ground that it violates the ‘due process of law’. Under our Constitution, the test of due process of law cannot be applied to statutes enacted by Parliament or the State Legislatures. This Court has definitely ruled that the doctrine of ‘due process of law’ has no place in our constitutional system: (A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : (1950) 51 Cri LJ 1383 : 1950 SCR 88). Kania, C.J., observed (at SCR p. 120: AIR p. 42, para 26)‘26. … There is considerable authority for the statement that the courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not expressed in words. … it is only in express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can join a safe and solid ground for the authority of courts of justice to declare void any legislative enactment.’”] . As pointed out by Frankfurter, J., arbitrariness became a mantra.” (emphasis supplied)

This is particularly interesting because earlier Benches of the Supreme Court have held that substantive due process and due process generally are a part of Indian constitutional law and are part and parcel of Article 21 of the Constitution [see: e.g., Re: Ramlila Maidan Incident, (2012) 5 SCC 1 (Para 43); Selvi v. State of Karnataka, (2010) 7 SCC 263 (Paragraph 88)] [see further: Abhinav Chandrachud, “Due Process”, in Choudhry et al (eds.), The Oxford Handbook of the Indian Constitution (New Delhi: Oxford University Press, 2016) 777]. The Rajbala case can perhaps be read as restricting the scope of the doctrine of substantive due process to Article 21 alone (and as excluding Article 14 from its ambit).

Next, in Shaikh Zahid Mukhtar v. State of Maharashtra, Writ Petition No. 5731 of 2015 (decided on 6 May 2016) [judgment links on the website of the Bombay High Court expire, hence none provided here] a Division Bench of the Bombay High Court was dealing with the constitutional validity of the Maharashtra Animal Preservation Act, 1976, as amended by the Maharashtra Animal Preservation (Amendment) Act, 1995, which received the assent of the President of India on 4 March 2015 (hereinafter, the “Beef Act”). Among other provisions which were challenged, Section 5-D of the Beef Act made it a criminal offence to have in one’s possession, in the state of Maharashtra, the flesh of a cow, bull or bullock slaughtered outside the state of Maharashtra. The question was whether this provision violated the right to privacy under Article 21 of the Constitution. It was held that the right to privacy is a part of the right to life under Article 21 of the Constitution [Paragraphs 166-173], and that the right to eat the food of one’s choice, if the food itself is not injurious to health, is a part of the right to privacy [Paragraphs 176, 185, 190-193]. This involved an unenumerated rights type of substantive due process scrutiny. Section 5-D was struck down by the court.  

Section 9-B of the Beef Act cast the burden of proof on the accused in some cases under the Beef Act. The court was examining its constitutional validity. This was a procedural due process inquiry, as the provision reversed a well-known procedural rule of evidence in criminal trials, i.e. the burden of proof is on the prosecution. Section 9-B was also struck down by the court. It was held (per Gupte J) as follows [Paras 203-204]:

“The sanctity of human life and liberty is probably the most fundamental of human social values and Article 21, which forms the pivot of this fundamental value enshrined in our Constitution, prevents any encroachment upon this right to life and personal liberty by the executive,   save   in  accordance   with   a  procedure   established   by   law. Every punishment meted out to an individual by way of imprisonment by the State must satisfy the test of Article 21.   That is probably the least   of   the   content   of   that   Article.     Such   punishment   must   be   in accordance with the procedure established by law.  It is similar to the US   concept   of   ‘due   process’…..There are both procedural and substantive aspects of this due process.  Procedurally, it means that in dealing with individuals, the State must proceed with ‘settled usages and modes of procedure’.  For example, the rules that nobody should be convicted without a hearing or   that   the   judge   must   be   impartial   or   that   an   orderly   course   of procedure must be adopted in the trial, are part of procedural due process.… On the other hand, substantive due process mandates that a criminal law does not come into conflict with the rights guaranteed by the First Amendment, e.g. the freedom of speech and of the press, freedom of assembly, of association, etc.  A criminal statute, which, for example,   is   either   vague   or   gives   contradictory   commands,   offends against this substantive aspect of due process….In  sum, after Maneka Gandhi’s case, the law can be taken as fully settled that personal liberties cannot be restricted even by law except after satisfying Articles 14 and 19.  The right of life and liberty under Article 21, thus,  clearly covers the substantial due process aspect envisaged in the American jurisprudence.” (emphasis supplied)

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