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)

Written by
Abhinav Chandrachud
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