Due Process of Law 9350281031, 9789350281031

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General Editor ABHINANDAN MALIK BA, LL B (Hons), NALSAR , LL M (Toronto)

Due Process of Law AllHINAV

CHANDRACHUO

LL~t , l·b,rvard Law School ULS, 1, L I).• Gc,-r«n mcnr l,.aw Co ll~e )l!umb:u

Fc,rew ord by

HON'0 LE Ml\ JUS TICE R.V. RAVEENDRAN Judge, $uprem~ Coon of Jndi:,

•

EASTE R N BOO K COM PANY LUCKNOW

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t 800.00 ISBN: 978-93-5145-168-6 All right s reserved. N o part of this w ork may be copied, reproduced, adapted, abridged or translated, stored in any retrieva.l system, computer system., photographic or other syst em or transmitted in any form by any means whether electronic, mechanical, digi tal, optical, photographic or otherwise with out a prior written permi ssion of the copyright holders, Eastern

Book Company, Lucknow . Any breach will entail legal action and prosecu tion with out furth er notice. This book is sold subject to the condition that it, or any part of it, shall not by way of trade or otherwise, be sold, lent, re-sold, displayed, advertised or otherwise circulated, witho ut the publishers' prior wri tten consent, in any f orm of binding, cover or titl e other than that in which it is publi shed and without a similar condition including this condition being imposed on the subsequent purchaser(s). An y breach of any of these rights or conditions will entail civil and criminal action witho ut further notice. v\lhile every effort has been made to avoid any mis take or omission, this publication is being sold on the condition and understanding that neither the a.uthor nor the publishers or printer s would be liable in any manner to any person by reason of any mistake or omission in this publication or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this work. For any error in the text or any def ect in printi ng or binding, the publishers will be liable only to replace the defective copy by another correct copy of this work then available. All disput es subject to the exclusi ve ju risdiction of court s, tribunals and forum s at Lucknow only . Copyright© EBC Pub lishing (P) Ltd ., Luckno w

Publi sher: EBC Publishing (P) Ltd ., 34-A, Lalb agh, Luckno w- 226 001

To AAI, DAD, AAJU &

PRABHA , N ANI & BAB A,

THE C H ITALE S, T HE C HANDR AC HUD S

andC HINTAN

thoug h the founding fathers had consciously decided not to adop t the due pro cess clause an d ha d op ted for "procedur e estab lish ed by law " in Article 21 of th e !!F a,,,.·.!230 / 8320 Con stitu tion of Ind ia . Due proc ess1 as initially und erstood , referred to a course of legal proc eedings according to those rules and lil v 11Foreword principle s whi ch h ave been established for the prot ection and enfor cemen t of pr ivate rights". [Pennoyer v. Neff, 24 L Ed 565: 95 US 714 (1877)] Slowly and stea dily app lication of due pro cess expand ed be~ jud icial proce eding s and th e State and its officers, t~ ad minis trat ive decisions and actions which affected th e rights of pe rson s1 we re requ ired to comply with the re,gu irements of due pr ocess1 namely 1 notice1 hearing/ WRITING A TREATISE ON AN ABSTRACT BUT RELEVAli 1rJ; QN.£Ef~ cedur e. Simulta neo usly, the scope and like "due pr ocess" is a difficult task, w hen compare_dto ambit of du e process also exp an ded fro m me rely wri ting a text on a trad itional subje ct. Mr _~ bhinav proceduraldu e proc ess (relatin g to fairness in t~ial, right Ch andra chud has atte mpted to cap ture th e sp1nt of due to be hear d before being condemned or sub Jected to proc ess1 as it develop ed in Ame rican jurisprudenc e/ and adv erse decision) to substantive du e proc ess (referring to explain s how it has inevitably but discreetly entered right to counse t right to legal aid 1 right to remain silent/ Indian constitut ional law in a mu tated form even .;1.,,,,,@c.tt,1- uo ou Rk& .. f!.!JO18043

II

right to be wa rned or put on notice that any thing said by a p erson arre sted m ay be used agains t him etc.). Frankfu rter J, expl aine d the elus ive natur e of due pr ocess in Joint Anti-Fascist Refugee Conzmittee v. M cGrath [95 L Ed 817: 341 US 123 (1951)] as: ' Due process ', unlike son1e lega l rules , is not a technica l concep tion with a fixed conten t un related to time , place and circumstances. Expressing as it does in its u ltimate analys is, respect enforced by law for that feeling of ju st treatme nt which h as been evo lve d th rou gh centu ries of Anglo -An1eri can W VIII cons titu tion al his tory and civi lization , ' due proc ess' cann ot be imprisoned wi thi n the treacherous limi ts of any formul a. Represe nti ng a pro foun d attitu de of fairness be twee n man an d man , an d more p articularly between the indivi dua l an d governn 1ent, ' due pro cess' is compo un ded of history , reason , the pas t course of decisions, and stou t confi denc e in the streng th of the democ ratic faith which we pro fess . Due pro cess is no t a me chan ical instrumen t . It is not a yards tick. It is a process .

In India, for mo re th an a quar ter centu ry after the Constitutio n was adopt ed, Article 21 pr ovid ing th at no p erson sh all be depr ived of his life or pe rsonal libe rty except according to proced ure establi shed by law, w as interpr eted by th e Supr em e Cour t strictly and narrow ly. It consistentl y resisted att empts to read du e process requ irem ents into Article 21. A.K . Gopalan v . State of Madras [AIR 1950 SC 27] ru led from 1950 to 1978. The n cam e 1\1.anek.aGandhi v . Union of India [(1978) 1 SCC 248]. Int erpreting Article 2\ ~h e Supr em e C~ur t he_ld t~ depn ve a person of his life or pe rson al liberty 1t w ~ enough for law to prescribe a pr ocedu re, bu t the proc edu re pr escribed by law should be fair, just and reasonable. In short, it held th at procedu re establi shed by a valid law in effect meant due pr ocess of law . Thi s resulte d in a series of righ ts being recognise d as a pa rt of the right to life. By equati ng proced ure establi shed by law to due pr ocess of law, the Supre me Court impliedly impo rted and in corpo rated fairn ess in triat right to be heard before being cond emned, judgm ent only after

tri al, an d depr ivation of life and liber ty only after due pro cess, as part of Article 21. It also sub sequently rea d the right to counsel , righ t to legal aid, right to pr iva cy among others , as parts of substa nti ve due process. Rule of law be came truly meaningful. The book an alyses the difference bet wee n procedural due pro cess and substantive due proces s. The autho r lu cid ly explain s the thin line different iating substantive due pro cess from procedural due process. He po ints out that any enqu iry into why a per son is arr ested (depri vation of freedom from physical restrai nt ) wo uld be a substantive due proce ss and any enqu iry into how a per son is de pr ived of libe rty by an arre st (proce dure followed in dep rivation of life an d liberty) wo uld be a procedural due pro cess. The procedural due process relates to giving notice, disclosing reaso ns for the propo sed action an d giving a hearing in a fair enqu iry or trial , wherea s substanti've due proce ss refers to the investigation into the reasons why he is charged w ith a misconduc t or a crime. Where and w hen bot h w ill be

available is aptly explained with reference to a government servant who is charged with a misconduc t and a per son accused of a crime. In disciplin ary proceed ings again st a government servant, wh at is assured is only procedural due pro cess an d not substantive due pro cess (or very limited substantive due proces s). On the other hand , a pe rson tried for a criminal offence is entitled to W IX prote ction of both procedural due proces s and substantive due pro cess. He also expl ains the scope and appli cability of the due proces s doctr ine in regard to executive and legislative actions. He po int s out that importing the requi remen ts of substantive due pro cess w ith reference to legislative action w ill create difficult ies as it involves conside ration of political philosophies, economic policies an d, there fore, the enquiry wo uld be limited . The author identifies the effective application of substantive due pro cess in thr ee spheres of Indian constitu tional law: i) articulat ion of basic stru ctu re do ctrine; ii) ap plicat ion of arbitra rines s test de rived

from Article 14; an d iii) recognition an d creation of several un enume rated rights relating to life an d person al libe rty. The book fills the vacu um th at ha s existed in regard to this bra nch of law in Ind ia1 thoug h du e proce ss h as been gra dually assimil ated in Indian constitu tional law in th e last thr ee decade s. The book will be of consider able intere st and assistan ce to seriou s stude nt s of law as also membe rs of the Bar an d the Bench in un derstan ding the intricacies of due proce ss. Th e aut hor should be congratulated for his maiden effort.

R.V. Raveendran

New Delhi 31-3-2011

W X THIS IS A SIGN IFICANT SCHOLAR LY INVESTIC

fascinat ing, impo rt ant, an d evergreen top ic of "jud icial review an d sub stant ive due pro cess", of value both for its general treatment and for its original int erpreta tion of Indian cases an d constitut ional m aterials. Abhinav Ch andra chud ' s centr al argu me nt that sub stantive jud icial rev iew has ente red In dian constitut ional law by variou s distinc tive mea ns is a m ajor contr ibutio n to the ongoing tra nsn ational deba te about constituti ons and their jud icial interpr etation.

Noah Feldman Bemis Professor of Law H au ser H all 210, H arv ard Law Schoo l Camb ridge, MA 02138

Kapad ia for his research assistance. Thi s boo k began as a discussion with Rohan Rajadh yaksha, benefiting along lill x1 Acknowledgment the way from Mr Ni khil Sakhar dan de' s comments on early morning flight s to Delhi, an d from an illuminating insight offered by Mr Soli Sorabjee dur ing the Q&A session of his speech at the M.C. Chagla Memo rial Lectu re Series in 2007. I canno t begin withou t th ank ing my teache rs. I am un able to exp ress in wo rds my etern al gra titude to Ms for the rigorou s training at AZB & Partn ers, I AM GRATEFUL TO PROFESSOR NOAH FELDMAN, ~ ~r; an d for th e bird' s eye insight into the discipline of the p ape r supe rvisor at Harv ard Law School, for his law on the 23rd floor of Expr ess Tow ers. I am deep ly guida nce duri ng th e acade mic year 2008- 09. I am also oblig ed to H on'ble Mr Justice S.J. Vazifdar for traini ng dee ply gra teful to Professor s Richard Fallon, Mark me as a studen t over three weeks in Janua ry 2005. I am Tushnet an d John Mansfield . I thank Ni ck Robinson, also deeply gratefu l to H on'ble Mr Ju stice Y.K. N amita Wahi, Jan e Bestor and the w riting progr am at Sabharwal, former Chief Justice of India, for th e H arvar d Law School, H eathe r Wallick, and the library invaluable guidan ce in the months of Au gu st and staff at Langdell. I am deeply grateful to Mr Arvin d Sept ember 2006 whe n I serve d as H is Lordship's train ee Datar for his guida nce when this boo k wa s only a pape r. law clerk. I am deep ly grateful to Mr Jai Pathak for his I th ank Professor Upendra Baxi, Abh a Gan dh i, Roopsi continue d gu id an ce, support and encourageme nt. I N arula an d Ben Owe n. I espe cially thank Bharat

espe cially thank Professor K.L. Daswani an d the Law Review Committee at l!J XII Government Law College, Mum bai, from who se training I have bene fited enormou sly . I thank Ms P.R. Rao, and my college. I would also like to th ank my tea chers not of law, but of life, Dr . P .B. Desai and Dr . Satyavan Sharma. Last, but not in the least, I th ank Mr Sum eet Malik, for his comments on earlier drafts of this work , and for his guidan ce. I am also deeply grateful to Mr Abhinanda n Malik, and the EBC team . All fault s with thi s work may be attribu ted to me alon e.

Content s Tableof Cases Introduction I. Int roduction II. Meaning of Substantive Due Process III. "Due Pro cess of Law" and the Constituen t Assembl y of India IV. The Early Years V. The Birth of Procedura l Due Pro cess VI. Substan tive Due Process VII. Conclus ion

Subject Index

Tab l e of Ca se s

20th Centu ry Financ e Corp n. Ltd . v. State of Maharas ht r a, (2000) 6 SCC 12: AIR 2000 SC 2436 » XLIII AK. Gopa lan v . Govt. of Indi a, AIR 1966 SC 816: (1966) 2 SCR 427 »

xx.xv

AK. Gopa lan v . State of Madras , AIR 1950 SC 27 » 5 AK. Gopa lan v . State of Madras , AIR 1950 SC 27: 1950 SCR 88 » VIII, XX.IX, XX.XII, XX.XIII, XX.XIV, XLIV, 2, 76, 77, 78, 89, 103, 105, 107, 108, 109, 110, 111, 112, 113, 123, 146, 147, 148, 149 AK. Roy v. Union of India , (1982) 1 SCC 271: AIR 1982 SC 710 » 166, 239, 241 AP. Gr ain an d Seed Merchan ts Assn . v. Uni on of Ind ia, (1970) 2 SCC 71: AIR 1971 SC 2346 » 81, 91 AP. State Coop . Societies v . Govt., (2002) 4 ALD 527 » 179 Ad am son v . Californi a, 91 L Ed 1903: 332 US 46 (1947) » 22, 34, 58 Adkins v . Children ' s Hospital, 67 L Ed 785: 261 US 525 (1923) » 30, 35, 58 ADM, Jabalp ur v . Shivaka nt Shukla, (1976) 2 SCC 521: AIR 1976 SC 1207 » XX.XVIII,7, 107, 113, 128, 131, 132, 133, 141, 143, 145, 147

Ahmed Noormo hmed Bhatti v . State of Gujarat, (2005) 3 SCC 647 » 78, 179 Air In dia v. Nerge sh Meerza, (1981) 4 SCC 335: AIR 1981 SC 1829 » 89, 184, 202, 228 Ajay Ha sia v . Khalid Mujib Sehra vard i, (1981) 1 SCC 722 » 155, 157, 184 Ajit Kum ar Nag v. Indi an Oil Corpn . Ltd ., (2005) 7 SCC 764: AIR 2005 SC 4217 » 78 Aliga rh Mu slim Uni versity v. Man soo r Ali Khan, (2000) 7 SCC 529 » 160 All India Bank Em ployees' Assn . v . N ational Industrial Tribuna l, AIR 1962 SC 171 » 81 Allge yer v. State of Loui siana , 41 L Ed 832: 165 US 578 (1896) » 27, 43 Altager v. Rama t Gan,, (1966) 20 PD 29 (Israe l) » 157 Ame emnni ssa Begum v. Mahboob Begum, AIR 1953 SC 91 » 96, 144 An th ony, Re, AIR 1960 Ma d 308 » 95 Anuj Garg v. Hotel Assn . of India, (2008) 3 SCC 1: AIR 2008 SC 663 » 192, 231 Arm stro ng v . Manzo, 14 L Ed 2d 62: 380 US 545 (1965) » 50 Am nachala Nada r v. State of Mad ras, AIR 1959 SC 300 » 83 Ashcr oft v. Free Speech Coal ition, 152 L Ed 2d 403: 535 US 234 (2002) » 221 Ashok a Kuma r Thaku r v. Union of India, (2008) 6 SCC 1 » 231 Associ ated Managemen t v . State of Kam atak a, (2008) 4 Kan t LJ 593 » 235 Associ ated Managemen ts of Prima ry an d Seconda ry Schools v . State of Karna taka, ILR 1996 Kant 3669 » 178 Associ ated Provincial Picture Hou ses v. Wed nesbury Corp n ., (1948) 1 KB 223: (1947) 2 All ER 680 (CA) » 79 Attorne y General of In dia v. Lachm a Devi, 1989 Supp (1) SCC 264: AIR 1986 SC 467 » 207 Avtar Sing h v. State of Harya na, (2002) 3 SCC 18 » 179

B. Noorsingh u. Union of India, (2001) 249 ITR 378 (Mad) » 179 B. Prabhakar Rao u. State of A.P., 1985 Supp SCC 432 » 101

Brundaban Kayak u. Election Commi ssio n of India, AIR 1965 SC 1892

B.S. Yad av u. Cen tral Bank of India, (1987) 3 SCC 120: AIR 1987 SC 1706 » 90, 101

Budh an Ch oudhry v. Stat e of Bihar , AIR 1955 SC 191: 1955 Cri LJ 374 » 89 Bunting v. Oregon, 61 L Ed 830 : 243 US 426 (1917) » 35, 58

Ballarpur Ind ustries ltd. u. Director General of Investigation and Registration, (1988) 64 Comp Cas 88-J:ILR (1988) 2 Del 10 » 178 Bandhua Mukti Mo rcha v. Uni on of Ind ia, (1984) 3 SCC 161: AIR 1984 SC 802 » XLIII, 207 Barium Chemicals ltd. u. Comp any la w Board , AIR 1967 SC 295 • 89,

156 Bashis hat Chand Rai v. Radhika Devi, ILR 1951 Pu nj 470 » 96 Benton v. Mary lan d, 23 L Ed 2d 7()7:395 US 784 (1969) . 21 Betts v. Brad y, 86 L Ed 1595: 316 US 455 (1941) » 21 Bharat Surfactants (P) ltd. u. Union of India, (1989) -1SCC 21 » 178 Bhau Ram v. Baij N ath Sin gh, AIR 1962 SC 1476 » 83 Bhawani Singh v. Stat e, AIR 1956 Bhop al 4: 1956 Cri LJ 44 » 178 Bhim Singh u. Election Commr. of India, (1996) 4 SCC 188 » 178 Bicli Supp ly Co. u. Union of India , AIR 1956 SC 479 92 Bijay Cotto n Mills ltd . v. State of Ajm er, AIR 1955 SC 33 » 73 Bi ra Kish ore Deb v. State of Oris sa, AIR 1964 SC 1501 » 144 Bishan Dass Bagha v. Govt . of Punjab , (1992) 2 SCC 193: AIR 1993 SC 972

, 243

Board of Edu cation v. Rice, 1911 A C 179 (HL) » 49 Boddie v. Con nectic u t, 28 l Ed 2d 113: 401 US 371 (1971) » 53 Bolling v. Sharpe , 98 L Ed 884: 347 US 49 7 (1953) • 18, 26, 146 Bombay Dyeing & Mfg. Co. ltd . (3) u. Bombav Env iomm ental Action Group, (2006) 3 SCC 434 » 5 . Bowers v. Ha rd wick, 92 L Ed 2d 140: 478 US 186 (1986) » 35, 39 Brown v. Board of Educati on, 98 L Ed 873: 347 US 483 (1954) • 26, 35, 197

»

12-1

C. N arayanaswamy v. State of Kama taka, AIR 1992 Kant 28 » 2-11 C.M. Pande y u. State of U.P. , (1999) 4 All WC 3415 157, 184 C.S. Row jee v. Sta te of A.P., AI R 1964 SC 962 » 239 Champlin Refining Co . u. Corp n. Co mmission of Oklahoma, 76 L Ed 262: 286 us 210, 2-13(1932) " 52 Charan Lal Sahu v. Union of Ind ia, (1990) 1 SCC 613 : AIR 1990 SC 1480 » 5, 178 Charanjit Lal Chow dhury v. Union of India, AIR 1951 SC 41 • 96, 99, 143 Charles Sobraj u. Central Jail, (1978) -1SCC 104: AIR 1978 SC 151-1 • 207, 215, 237 Chest er v. Bat eson, (1920) 1 KB 829 » 13 Chintam an Rao v. Stat e of M .P., 1950 SCR 759 » 82, 83, 88 Civil Rights cases, 27 l Ed 835: 109 US 3 (1883) » 19 Conn.ally v. General Constru ction Co., 70 L Ed 322: 269 US 385 (1926) » 52 Consu m er Edu cati on & Resea rch Cen tre v. Union of India, (1995) 3 SCC 42 • 237

County of Sacramento u. le\\is , 140 L Ed 2d 1043: 523 US 833 (1998) » 44 D. Bhuvan Mohan Patnaik u. State of A.P. , (1975) 3 SCC 185: AIR 1974 SC 2092 » 211 D. Sriniv as Rao v. Gov t. of A.P., (1993) 1 ALT 86 » 182 D.A.V. College u. Stat e of Punjab , (1971) 2 SCC 261 233 D.C. Wadhwa v. State of Bihar , (1987) 1 SCC 378: AIR 1987 SC 579 241 D .K. Basu v. State of W .B., (1997) 1 SCC 416: AIR 1997 SC 610 » 208, 209, 210, 214, 215, 216

D.P. Joshi v . State of M.B., AIR 1955 SC 334 » 100 D.S. Nakara v . Unio n of Indi a, (1983) 1 SCC 305 » 101 D.S. Redd y v. Osmania Uni versity, AIR 1967 SC 1305 » 90, 99 Daily Rated Cas ua l Labo ur v . Union of India , (1988) 1 SCC 122 » 203 Dalip Singh v. Rakha Ram, AIR 1960 Punj 176 » 101 Dalmia Cemen t (Bhara t) Ltd . v . Unio n of In dia, (1996) 10 SCC 104 » 5 Danie ls v. Williams , 88 L Ed 2d 662: 474 US 327 (1986) » 16 Dejonge v. Orego n, 81 L Ed 278: 299 US 353 (1936) » 20 Delhi Law s Act, 1912, Re, AIR 1951 SC 332 » 183 Dha keshwari Cotton l\llills Ltd . v. CIT~ AIR 1955 SC 65 » 90 District Coop . Cen tral Bank v. State of A P., (1998) 2 ALD 535 » 178 District of Colum b ia v . Heller, 171 L Ed 2d 637: 128 S Ct 2783: 554 US 570 (2008) » 25 District Regist rar and Collector v . Can ara Bank, (2005) 1 SCC 496 » 225 Dr . Bonh am case , (1610) 8 Co Rep 114a : 77 ER 646 » 12 Dred Scott v . Sandfor d, 15 L Ed 691: 60 US 393 (1857) » 16, 18, 28, 30, 31, 35 DTC v . Mazdoo r Cong ress, 1991 Su p p (1) SCC 600: AIR 1991 SC 101 » 211 Dunca n v . Lou isiana , 20 L Ed 2d 491: 391 US 145 (1968) » 23, 24 Durga Sh ank ar Meht a v. Raghura j Sing h, AIR 1954 SC 520 » 124 Dwar ka Pras ad Laxmi Narain v . State of U.P., AIR 1954 SC 224 » 82, 90 E.P. Royap pa v . State of T.N ., (1974) 4 SCC 3: AIR 1974 SC 555 » XXXIX, XLIV, 142, 143, 144, 145, 147, 150, 151, 152, 153, 169 Ebrahim Vazir Mavat v . State of Bomba y, AIR 1954 SC 229 » 84 Eisens tad t v . Baird , 31 L Ed 2d 349: 405 US 438 (1972) » 35, 220, 230 English Med ium Studen ts Paren ts Ass n. v . State of Kam ataka, (1994) 1 SCC 550: AIR 1994 SC 1702 » 157, 234

Emak ulam Chambe r of Comme rce v . State of Kerala, (2004) 3 KLT 822 » 179 Est ep v . Uni ted States, 90 L Ed 567: 327 US 114 (1946) » 55 Express Ne wspa p ers (P) Ltd . v. Unio n of India, (1986) 1 SCC 133: AIR 1986 SC 872 » 238, 239 F.N. Balsara v. State of Bomb ay, AIR 1951 SC 318 » 78 Fateh chand Himma tlal v . State of Maha rash tra , (1977) 2 SCC 670: AIR 1977 SC 1825 » 73, 81 Ferguso n v. Skrupa, 10 L Ed 2d 93: 372 US 726 (1963) » XXVIII Food Corp n . of In di a v. State of Kerala, (1997) 3 SCC 410: AIR 1997 SC 1252 » 243 Fran cis Coralie Mullin v. UT of Delhi , (1981) 1 SCC 608: AIR 1981 SC 746 » 184, 211, 222 Fran k v . Mangum , 59 L Ed 969: 237 US 309 (1915) » XXXVI Fron tiero v . Richards on, 36 L Ed 2d 583: 411 US 677 (1973) » XXIX Fuen tes v. Shevin, 32 L Ed 2d 556: 407 US 67 (1972) » 50 G.C. Kanu ngo v . State of Oriss a, (1995) 5 SCC 96: AIR 1995 SC 1655 » 240 Gajan ana Age n cies v. State of Kerala, (2002) 3 KLT 242 » 159 Gian Kaur v . State of Pu njab, (1996) 2 SCC 648: AIR 1996 SC 946 » 232, 233 Gideon v . Wain wrigh t, 9 L Ed 2d 799: 372 US 335 (1963) » XXVIII, 24, 54 Gitlow v. New York, 69 L Ed 1138: 268 US 652 (1925) » 20, 45 Gob ind v . State of M .P., (1975) 2 SCC 148: AIR 1975 SC 1378 » 211, 223, 224 Go lak Nath v. State of Punjab , AIR 1967 SC 1643 » XXXVI, 115, 119 Go ldb erg v. Kelly, 25 L Ed 2d 287: 397 US 254 (1970) » 50, 51, 146 Gopa l Narain v. State of U.P., AIR 1964 SC 370 » 93 Go vindb h ai Hirabhai Sura ti v . State of Gu jar at, AIR 2003 Guj 200 » 179

Grannis v. Ordean, 58 L Ed 1363: 234 US 385 (1914) » 50 Grisw old v. State of Connecticu t, 14 L Ed 2d 510: 381 US 479 (1965) » 4, 33, 34, 35, 43, 44, 45, 66, 72, 157, 220, 224, 230 Grosjean v. American Press Co ., 80 L Ed 660: 297 US 233 (1936) » 20 Gulamahamed Tarasaheb v . Stat e of Bombay , AIR 1962 Born 97 » 95 Gutjee wan Garewal (Dr.) v. Dr . Sum itra Das h, (2004) 5 SCC 263 » 160 H .H . Shri Swamiji of Shr i Amar Mu tt v . Commr ., Hindu Religio u s an d Chari table Endowments Deptt. , (1979) 4 SCC 642: AIR 1980 SC 1 » 191 Ham ilton v . Regen ts of Uni versity of California, 79 L Ed 343: 293 US 245 (1934) » 20 Ha ri Chand Sar d a v. l\1izo District Counci l, AIR 1967 SC 829 » 87 Hari Khemu Gawali v . Dy . Comm r . of Police, AIR 1956 SC 559 » 73 Ha rikis an v . State of Maha rash tra, AIR 1962 SC 911 » 106 Harm an Singh v . RTA, Calcutta Region, AIR 1954 SC 190 » 95 Herbe rt v. State of Louisiana, 71 L Ed 270: 272 US 312 (1926) » 4 Hern do n v. Low ry , 81 L Ed 1066: 301 US 242 (1936) » 20 Heyd en' s case, (1584) 76 ER 637 » 227 Ho vey v. Elliot, 42 L Ed 215: 167 US 409 (1897) » 15 Hurtado v . People of California, 28 L Ed 232: 110 US 516 (1884) » 15, 37 Hussainar a Khatoon (III) v . State of Bihar , (1980) 1 SCC 93: AIR 1979 SC 1360 » 207 LK. Gujral v. Election Commission of India , (1993) 50 DLT 458 » 178 LP. Vashist v . State of Haryan a, (2005) 140 PLR 70 » 241 LR. Coelh o v. State of T.N., (2007) 2 SCC 1: AIR 2007 SC 861 » 119, 149 ICICI Bank Ltd . v . Pra ka sh Kaur, (2007) 2 SCC 711 » 216 Indian Counci l of Legal Aid and Ad vice v . Bar Counci l of India, (1995) 1 sec 732: AIR 1995 SC 691 » 89

Ind ian Han dicra fts Empo rium v . Union of Ind ia, (2003) 7 SCC 589: AIR 2003 SC 3240 » 179 Indi ra Nehru Gan dhi v . Raj Narai n, 1975 Sup p SCC 1: AIR 1975 SC 2299 » 126, 164, 165, 166, 174, 176, 195, 243, 249 Ind ra Sawhn ey v. Union of India, 1992 Supp (3) SCC 217: AIR 1993 SC 477 » 182 Iron an d Metal Trade rs (P) Ltd . v . M.S. Ha skiel, (1984) 1 SCC 304: AIR 1984 SC 629 » 144 Islami c Academ y of Ed ucation v . State of Kama taka , (2003) 6 SCC 697: AIR 2003 SC 3724 » 211 ITO v. Seth Bros., (1969) 2 SCC 324 » 225 J.Y. Konda la Rao v . A.P. SRTC, AIR 1961 SC 82 » 81 Jacob Math ew v. State of Pun jab, (2005) 6 SCC 1: AIR 2005 SC 3180 » 89 Jai Lal v . Delhi Admn ., AIR 1962 SC 1781 » 100 Jan ey Joseph v . Unio n of In dia, AIR 1999 Ker 234 » 179 John Barron v . Mayor and City Council of Baltimore , 8 L Ed 672: 32 US (7 Pet) 243 (1833) » 16 John James v. Bangalore Developmen t Auth ority , ILR 2000 Kant 4134 » 241 Johnson v . Robison, 39 L Ed 2d 389: 415 US 361 (1974) » 55 Join t Ant i-Fascist Refugee Committee v. McGra th,, 95 L Ed 817: 341 US 123 (1951) » VIII, 50 Joseph Kuru villa Vellukunn el v . RBI, AIR 1962 SC 1371 » 86, 91 Jyoti Persha d v. UT of Delhi , AIR 1961 SC 1602 » 85, 91 K. Nagara j v . Unio n ofin dia, (1985) 1 SCC523 : AIR 1985 SC 551 » 240 K.A. Abbas v . Unio n of In dia, (1970) 2 SCC 780: AIR 1971 SC 481 » 81 K.C. Gajapati Narayan Deo v . State of Orissa , AIR 1953 SC 375 » 240

K.K. Kochuni v . Stat es of Madra s and Kerala , AIR 1960 SC 1080: (1960) 3 SCR 887 » XXXIII, 81, 82, 108, 109, 111 K.M . Pra sad (Dr .) v . State of Bihar , (1997) 1 BLJR 673 » 157, 184 K.S. An to v. Unio n of India , (1993) 76 Comp Cas 105 (Ker ) » 178 K.T. Moopi l N air v . State of Kerala, AIR 1961 SC 552 » 85 Kalu Ram v. St at e of U .P., (2000) 1 All WC 509 » 157, 184 Kangsha ri Ha ldar v . State of W.B., AIR 1960 SC 457 » 90, 99 Karimbil Kunhikoman v . State of Kera la, A IR 1962 SC 723 » 90, 91, 98, 99 Kathi Rani ng Raw at v. State of Sau ras htra , AIR 1952 SC 123 » 91, 93, 94, 155 Kedar N ath Bajoria v. State of W.B., AIR 1953 SC 404 » 89, 90, 91, 102 Keha r Singh v . Union of Ind ia, (1989) 1 SCC 204 » 166 Kemm ler, Re, 34 L Ed 519: 136 U S 436 (1890) » 20 Kesavananda Bhara ti v . State of Kera la, (1973) 4 SCC 225: AIR 1973 SC 1461 » X)00! , XXXVII, XL, 5, 107, 114, 115, 116, 119, 120, 121, 122, 124, 125, 126, 130, 132, 147, 163, 164, 165, 166, 167, 168, 169, 170, 172, 173, 176, 177, 193, 195, 196, 198, 174 Kharak Singh v. State of U. P., AIR 1963 SC 1295 » XXXIV, 44, 109, 111, 141, 145, 207, 211, 222 Kholamuhana Primary Fishem,an Coop. Society v. State of Oris sa, AIR 1994 Ori 191 » 157 Kiho ta H ollohon v . Zachilhu, (1992) 1 SCC 309 » 124 Kiho to Hollohan v . Zachillh u, 1992 Supp (2) SCC 651 » 165 Kish an Chand Arora v . Commr . of Police, AIR 1961 SC 705. » 81 Kishan Sing h v . State of Rajas than, AIR 1955 SC 795 » 100 Kishen Pattna yak v. State of O rissa, 1989 Supp (1) SCC 258: AIR 1989 SC 677 » 238 Korem at su v . Uni t ed Stat es, 89 L Ed 194: 323 US 214 (1944) » 18, 25, 26, 146

Kris hn a Ku ma r ]Vlishra v. St at e of Bihar , AIR 1996 Pat 112 » 180, 182 Kris hn a Ku ma r Singh v . Stat e of Bihar , (1998) 5 SCC 643 » 240 Ku ldip Na yar v . Unio n of India , (2006) 7 SCC 1 » 179

L. Chandra Kumar v . Unio n of India , (1997) 3 SCC 261 » 136, 137, 138 Lachhrnan Dass v. State of Pun jab, AIR 1963 SC 222 » 95, 144 Lachhmandas Genuma l v. State of M .P., 1995 MPLJ 925 » 178 Lachm andas Kew alram Ahuja v. State of Bom b ay, AIR 1952 SC 235 » 90, 99 Law rence Joa chim Joseph D'Souja v . Bomba y, AIR 1956 SC 531 » 104 Law rence v. Texas, 156 L Ed 2d 508: 539 U S 558 (2003) » 35, 39, 46, 220, 230 Lexicon Fina nce v . Uni on of In dia, !LR 2002 Kan t 2050 » 179 Lochne r v. N ew York, 49 L Ed 937: 198 US 45 (1905) » XXVIII, 4, 5, 26, 27, 28, 37, 43, 45, 58, 93, 149, 151 Lord Kris hn a Sugar Mills Ltd . v. Union of In d ia , AIR 1959 SC 1124 » 82 Loving v . Virginia, 18 L Ed 2d 1010: 388 US 1 (1967) » 35, 219, 220 M . Cha n dru v . Ch ennai Metropoli tan Developmen t Au thor ity, (2009) 4 SCC 72 » 179 M .C. Meh ta v. Unio n of India , (1986) 2 SCC 176: AIR 1987 SC 965 » 207, 214, 222 M .H . Ho sko t v . State of Maha rash tra, (1978) 3 SCC 544: AIR 1978 SC 1548 » 207, 237 M .P. Sham,a v . Satish Chan dra, AIR 1954 SC 300 » 224 M .R. U tensils v . Union of India , (2003) 113 Comp Cas 667 (Gui) » 179 Madhu Kishw ar v . State of Bihar , (1996) 5 SCC 125: AIR 1996 SC 1864 » 211 Madhu Llma ye, Re (1969) 1 SCC 292 » 106 Madhubhai Am athala l Gandhi v. Uni on of Ind ia, AIR 1961 SC 21 » 92

Mala k Singh v . Stat e of P&H, (1981) 1 SCC 420 » 224 Mal loy v. H oga n, 12 L Ed 2d 653: 378 US 1 (1964) » 20, 22 Mal p e Vish wanath Acharya v. State of Maharas htr a, (1998) 2 SCC 1: AIR 1998 SC 602 » 187, 188, 189, 190, 191, 192, 193, 199, 248 Man eka Gandhi v. Union of India, (1978) 1 SCC 248 » VIII, XXIX, XXXV, XXXIX, XLI, XLIV, 4, 123, 131, 145, 146, 148, 150, 151, 152, 153, 156, 157, 158, 164, 177, 180, 182, 183, 187, 188, 193, 195, 196, 197, 199, 200, 207, 209, 210, 231, 149 Man eklal Chh otalal v. M. G. Makwana , AIR 1967 SC 1373 » 82, 87 Mang ayamma v. Union of Ind ia, (1999) 106 Taxman 339 (AP) » 179 Manna Lal v . Colle ctor of Jhal aw ar, AIR 1961 SC 828 » 95 Ma pp v. Ohio , 6 L Ed 2d 1081: 367 US 643 (1961) » 24 Marbury v . Madison, 2 L Ed 60: 5 US (1 Cranch ) 137 (1803) » 40, 52, 53, 72 Mardia Chemica ls Ltd. v. Unio n of In dia , (2004) 4 SCC 311: AIR 2004 SC 2371 » XLII, 125, 179, 193, 194, 195, 196, 197, 198, 199, 200, 201, 203, 248, 197 Mardia Chemica ls v. Union of India, (2008) 2 Indian J Cons t L 179 » 242 Mata jog Dob ey v. H .C. Bha ri, AIR 1956 SC 44 » 95 Math ew s v. Eld ridge , 47 L Ed 2d 18: 424 U S 319 (1976) » 51, 156 Max w ell v. Dow, 44 L Ed 597: 176 U S 581 (1900) » 20 McC ulloch v. State of Mary land , 4 L Ed 579: 17 US 316 (1819) » 66 McN ary v . Ha itian Refug ee Cen ter, 112 L Ed 2d 1005: 498 US 479: 111 S C t 888 (1991) » 55 Meman As lam Hus sain v . Dir ector of Muni cipali ties, (1994) 1 GLR 446 » 178 Meyer v . Neb ras ka, 67 L Ed 1042: 262 US 390 (1923) » 32, 72 J.vliller v. State of Texas, 38 L Ed 812: 153 US 535 (1893) » 25 J.vliller v. Str ahl, 60 L Ed 364: 239 US 426 (1915) » 52

Mine rv a J.vlillsLtd . v. Union of India, (1980) 3 SCC 625: AIR 1980 SC 1789 » 125, 166, 167, 168, 170, 172, 173, 177, 195 Miranda v. Arizo n a, 16 L Ed 2d 694 : 384 U S 436 (1966) » XXIX, 24 Mohanla l Jain v . Sawai Man Singh ji, A IR 1962 SC 73 » 96, 99 Mohd . Hani f Qua reshi v. State of Bihar , AIR 1958 SC 731 » 73, 91 Mohd . Illyas v . Unio n of In dia , ILR 1991 Kant 2804 » 178 Mohd . Saheb Mahboob Medico (D r .) v. Cu stod ia n Gener al, AIR 1961 SC 1657 » 101 Mohind er Kumar v . Stat e of Ha ry an a, (1985) 4 SCC 221 » 178 Mohini Jain v . Stat e of Karna tak a, (1992) 3 SCC 666 » 238 Morehead v . N ew York Ex Rel Tipa ldo , 80 L Ed 1347: 298 US 587 (1935) » 30 Motor Gene ral Trade rs v. State of A. P., (1984) 1 SCC 222 » 191 Mr 'X' v. Hos p ital 'Z', (1998) 8 SCC 296 » 229 Mugler v. Kan sas, 31 L Ed 205: 123 U S 623 (1887) » 15 Mul lane v. Cen tral H ano ver Bank & Tru st Co ., 94 L Ed 865: 339 U S 306 (1950) » 50 Munn v . Illinoi s, 24 L Ed 77: 94 US 113 (1876) » 15, 44, 211 Murray v . Hob oken Land and Imp rove men t Co., 15 L Ed 372: 59 US (18 Ho w ) 272 (1855) » 10, 15 N .B. Khare (Dr .) v . State of De lhi, AIR 1950 SC 211 » 78, 81 Na n d Lal Bajaj v . State of Punjab , (1981) 4 SCC 327 : AIR 1981 SC 2041 » 222 Na resh Chandra Gangul i v. State of W.B., AIR 1959 SC 1335 » 104 Na rott am Kishore Deb Varman v. Uni on of Ind ia, A IR 1964 SC 1590 » 190 Nawabkha n Abba skhan v. St at e of Gujarat, (1974) 2 SCC 121: AIR 1974 SC 1471 » 81, 87 Naz Found ation v . State (Govt. of NC T of Delhi ), (2009) 111 DRJ 1 » 216, 229, 230, 231, 249

Near v . Minne sota, 75 L Ed 1357: 283 US 697 (1931) » 20 Neera Math ur v . LIC, (1992) 1 SCC 286 » 225, 227 New York Times Co. v. Sullivan, 11 L Ed 2d 686: 376 US 254 (1964) » 24 New York v. Ferbe r, 73 L Ed 2d 1113: 458 US 747 (1982) » 221 Novartis AG v . Uni on of In di a, (2007) 4 l\1LJ 1153 » 179 Ohio v . Price, 4 L Ed 2d 1708: 364 US 263 (1960) » 23 Olga Tellis v . Bomba y Muni cipal Corp n ., (1985) 3 SCC 545: AIR 1986 SC 180 » 157, 159, 160, 207, 211, 213, 222, 237 Om Na ra in Agar wal v. Nagar Palika, Shahja hanp ur, (1993) 2 SCC 242 » 178 Om Prakash Mittal v . Unio n of In di a, (2007) 138 Com p Cas 708 (Del) » 179 Oma Ram v. State of Rajasthan , (2008) 5 SCC 502 » 179 Ort wein v . Schwab, 35 L Ed 2d 572: 410 US 656 (1973) » 54 Osb orne v. Ohio , 109 L Ed 2d 98: 495 US 103 (1990) » 221 P. Rajen dran v . State of Madras , AIR 1968 SC 1012 » 101 P. Rathin am v. Unio n of India, (1994) 3 SCC 394: AIR 1994 SC 1844 » 211, 232 P. Vajravelu Mu daliar v. Colle ctor (L.A.), AIR 1965 SC 1017 » 90 P.N. Kaushal v. Union of Ind ia, (1978) 3 SCC 558: AIR 1978 SC 1484 » 148, 151 P.V. Shivarajan v . Union of In dia, AIR 1959 SC 556 » 81 Palak dh ari Sing h v. State of U.P., AIR 1962 SC 1145 » 73 Palko v . Conne cticut, 82 L Ed 288: 302 US 319 (1937) » 21, 22 Panam a Refining Co. v. Ryan, 79 L Ed 446: 293 US 388 (1934) » 29 Pannalal Binjraj v . Uni on of Ind ia, AIR 1957 SC 397 » 155 Pam1anan d Katara v . Unio n of In dia, (1989) 4 SCC 286: AIR 1989 SC 2039 » 214, 215

Par manand Katara v. Unio n of Ind ia, (1995) 3 SCC 248 » 208 Parratt v. Tay lor, 68 L Ed 2d 420: 451 US 527 (1981) » 15 Pata Ram Bheel v. State of Rajas th an, (2005) 1 RUN 415: (2005) 1 WLC 322 » 181, 242 Path umm a v. State of Kerala, (1978) 2 SCC 1: AIR 1978 SC 771 » 73 Penno yer v . Neff, 24 L Ed 565: 95 US 714 (1877) » VII Peop le's Union for Civil Libe rties v . Unio n of In dia, (1997) 1 SCC 301: AIR 1997 SC 568 » 211, 224, 225 Peop le's Unio n for Civil Libe rties v . Unio n of India , (2004) 12 SCC 104 » 208 Ph usu Koiri v . State of Assam, 1986 Cri LJ 1057 » 157 Pierce v. Society of Sisters , 69 L Ed 1070: 268 US 510 (1925) » 21, 32, 72, 220 Plann ed Paren th ood of South eastern Penns y lvartia v. Casey , 120 L Ed 2d 674: 505 us 833 (1992) » 15, 35, 37, 38, 45, 46, 66, 213 Ple ssy v. Fergu son, 41 L Ed 256: 163 US 537 (1896) » 197 Poe v . Ullman, 6 L Ed 2d 989: 367 US 497 (1961) » 33, 37, 141 Por t of Madras v. Amin chan d Pyare lal, (1976) 3 SCC 167: AIR 1975 SC 1935 » 89 Powell v . State of Alab ama , 77 L Ed 158: 287 US 45 (1932) » 4, 15, 23 Prabh akar Rao H . Mawle v . State of A P., AIR 1965 SC 1827 » 95 Prakas h Singh v. Uni on of Ind ia, (2006) 8 SCC 1 » 208, 214 Pratap Singh v. State of Punjab, AIR 1964 SC 72 » 239 Prem Sh ank ar Shu kla v. Dellii Ad mn ., (1980) 3 SCC 526: AIR 1980 SC 1535 » 207, 237 Preman v. Union of Indi a, AIR 1999 Ker 93 » 179 Presser v. Illinoi s, 29 L Ed 615: 116 US 252 (1886) » 25 Puranlal Lakhanpa l v . Unio n of In di a, AIR 1958 SC 163 » 104 Purs hottam Govin d Ha lai v. B. M. Desai , AIR 1956 SC 20 » 100

R. v. Secy. of State for the Home Department, Exp . Phan sop kar, 1976 QB 606: (1975) 3 WLR 322: (1975) 3 All ER 497 (CA) » 13 R.C. Toba cco (P) Ltd . v . Union of India , (2005) 7 SCC 725 » 179 R.K. Garg v. Union of India, (1981) 4 SCC 675 » 166 R.M. Malkani v . State of Mahara shtra, (1973) 1 SCC 471 » 224, 225 R.M. Sesha dri v . District Magist rate , Tanjore, AIR 1954 SC 747 » 84 R.M.D. Ch amarbaugwal la v . Unio n of Ind ia, AIR 1957 SC 628 » 201 R.P. Kapu r v. S. Pratap Singh Kairon, AIR 1964 SC 295 » 238 Raghub ir Singh v. Cour t of Wards , Ajm er, AIR 1953 SC 373 » 81 Rai Ramkri shna v. Stat e of Bihar, AIR 1963 SC 1667 » 85 Railroad Retire men t Board v . Alt on Railroa d Co ., 79 L Ed 1468: 295 US 330 (1935) » 29 Railway Board v . C.R. Rangadhamaiah, (1997) 6 SCC 623 » 203 Raja Ram Pal v. Hon'b le Spea ker, Lok Sabh a, (2007) 3 SCC 184 » 78, 241 Raju v. Union of India, (2001) 5 lvIPHT 410 » 179 Ram Chan dr a Palai v. State of Orissa, AIR 1956 SC 298 » 100 Ram Krisha n Bhard waj v . State of Delhi , AIR 1953 SC 318 » 105 Ram Kris hn a Dalmia v. Ju stice S. R. Ten dolkar , AIR 1958 SC 538 » 78, 89, 144, 243 Ram Singh v . State of Delhi , AIR 1951 SC 270 » 77, 104 Ramana Dayaram Shetty v . Intern ationa l Airpo rt Authority of Ind ia, (1979) 3 sec 489: AIR 1979 SC 1628 » XLII, 154, 157, 238 Ramjilal v. ITO, AIR 1951 SC 97 » 101 Ran dhi r Singh v . Unio n of Ind ia, (1982) 1 SCC 618: AIR 1982 SC 879 » 203 Ranjit Thakur v . Unio n of Ind ia, (1987) 4 SCC 611 » 199 Rattan Arya v . Stat e ofT.N ., (1986) 3 SCC 385: AIR 1986 SC 1444 » 191 Reno v . Flore s, 123 L Ed 2d 1: 507 US 292 (1993) » 5, 43, 220 Rob ert s v. Loui sian a, 52 L Ed 2d 637: 431 US 633 (1977) » XXVIII

Rochin v. California, 96 L Ed 183: 342 US 165 (1952) » 227 Roe v . Wade, 35 L Ed 2d 147: 410 US 113 (1973) » 4, 32, 35, 36, 45, 220, 230 Rohtas Ind u stries Ltd . v . S.D . Agarwa l, (1969) 1 SCC 325: AIR 1969 SC 707 » 89, 155, 156 Roller v. Holl y, 44 L Ed 520: 176 US 398 (1900) » 15 Roshan Lal Mehra v . lsh war Das s, AIR 1962 SC 646 » 101 Rustom Cavasjee Cooper v . Unio n of India (Bank Na tiona lisation Ca se), (1970) 1 sec 248: AIR 1970 SC 564 » XXXV, XXXVI, 70, 107, 111, 112, 113, 147, 149 S. Krishnan v. State of Madras, AIR 1951 SC30 1 » 143 S.G. Jaisinghani v . Unio n of Ind ia, AIR 1967 SC 1427 » 157 S.L. Kapoo r v . Jagmo han, (1980) 4 SCC 379 » 160 S.P. Gup ta v . Union of India , 1981 Supp SCC 87: AIR 1982 SC 149 » 212 S.P. Mittal v. Union of India, (1983) 1 SCC 51: AIR 1983 SC 1 » 144 S.P. Sampa th Kumar v. Union of India, (1987) 1 SCC 124 » 132, 133, 135, 136, 137 S.R. Bommai v. Union of Ind ia, (1994) 3 SCC 1: AIR 1994 SC 1918 » XLI, 166, 174, 175, 176, 195, 196, 239 Saghi r Ahma d v . Stat e of U.P., AIR 1954 SC 728 » 81 Sajjan Sing h v. State of Rajasthan, AIR 1965 SC 845 » 115 Sakhawa t Ali v. State of Orissa, AIR 1955 SC 166 » 102 Sanjeev Coke l\1fg. Co. v. Bharat Coki ng Coal Ltd., (1983) 1 SCC 147: AIR 1983 SC 239 » 172 Sankari Prasad Sing h Deo v . Unio n of India , AIR 1951 SC 458 » 115 Sant osh Ach cha v. State of Karna taka, AIR 2007 Kant 77: ILR 2008 Kant 2413 » 179 Sard ar lnd er Singh v . State of Rajastha n, AIR 1957 SC 510 » 101, 143 Satw an t Singh Sawhney v . Passpo rt Officer, AIR 1967 SC 1836 » 141, 146, 211

Savi t a Kumari v . Unio n of India , (1993) 2 SCC 357 » 243 Saw ai Mad h op u r Oi l and Pulse Ind u strie s v . Stat e of Rajasthan, (2001) 3 VlLC 419 » 179 Sch oo l Dist rict of Abington Tow ns hi p v . Sche m pp, 10 L Ed 2d 844: 374 us 203 (1963) » 24 Selvi v . Stat e of Kamataka , (20 10) 7 SCC 263 » 5, 225, 226, 227 Sham Lal v. Uni on of India, A IR 1995 P&H 147 » 157, 184 Shamrao Vishnu Paru lekar v. Dist rict Magi str at e, Th ana, AIR 1957 SC 23 » 104 Shantista r Buil der s v. N araya n Khima lal To tame, (1990) 1 SCC 520: AIR 1990 SC 630 » 208, 237, 238 Shar d a v . Dha rmp al, (2003) 4 SCC 493 » 225 Shee la Barse v . Stat e of M aha rash tr a, (1983) 2 SCC 96: AIR 1983 SC 378 » 207, 213, 214 Sher Singh v . State of Pun jab , (1983) 2 SCC 344: AIR 1983 SC 465 » 207 Shibba n Lal Saks ena v. St at e of U.P., AIR 1954 SC 179 » 104 Shi vajir ao N ilange kar Patil v . Mahesh M adha v Gosa vi, (1987) 1 SCC 227 : AIR 1987 SC 294 » 239 Shr ilekha Vidy arthi v. St at e of U .P., (199 1) 1 SCC 212 » 157 Shyamsun der M oh ota v. Unio n of India, (2008) 5 Mah LJ 27 » 179 Sikan der Jehan Begu m v. AP . Stat e Govt ., AIR 1962 SC 996 » 95, 101 Skinner v . O klahom a, 86 L Ed 1655: 316 US 535 (1942) » 44, 219, 220 Slau gh te rhous e cas es, 21 L Ed 394 : 83 US 36 (1873) » 18 Snyde r v. M as sach u setts , 78 L Ed 674: 291 US 97 (1934) » 20 Stanle y v. Geo rgi a, 22 L Ed 2d 542 : 394 U S 557 (1969) » 219, 22 1 State of A P . v. Mc Do well & Co ., (1996) 3 SCC 709 » 5, 180, 186, 187, 188 State of Bihar v . Kaml a Kant lvlisra, (1969) 3 SCC 337 : AIR 1971 SC 1667 » 82 State of Bombay v . Atma Ram Shridha r Vai dy a, AIR 1951 SC 157 » 104

St at e of Bomb ay v. F.N. Balsara , AIR 1951 SC 318: (1951) 53 Born LR 982 » 73, 100, 192, 20 1 St at e of H aryana v. Bhajan Lal , 1992 Su p p (1) SCC 335: AIR 1992 SC 604 » 239 St at e of J&K v . Bak shi Gulam Mo h ammad , AIR 1967 SC 122 » 144 St at e of Kam at aka v . B. A Ha sanabha , AIR 1998 Kan t 210 » 241 St at e of M. P . v. Baldeo Prasa d, AIR 1961 SC 293 » 81, 86 St at e of M. P . v. Bh op al Sug ar Ind ustr ies Ltd ., AIR 1964 SC 1179 » 102, 190 St at e of Madras v . V. G . Row, AIR 1952 SC 196 » 81, 82, 189 St at e of Mah ar ash tr a v . Chandr abhan Tale, (1983) 3 SCC 387: AIR 1983 SC 803 » 89 St at e of Mah ar ash tr a v . Himmat bh ai Na rbheram Rao , AIR 1970 SC 1157 » 81, 82 St at e of Mah ar ash tr a v . Pr abhakar Pandurang Sanzgiri, AI R 1966 SC 424 » xx.xv , 110 St at e of Pun jab v. Ajaib Singh , AIR 1953 SC 10 » 91, 95 St at e of Rajas th an v . Uni on of In dia, (1977) 3 SCC 592 : AIR 1977 SC 1361 » 78, 239 St at e of T .N. v . Anan thi Ammal , (1995) 1 SCC 519: AI R 1995 SC 2114 » 180, 186 St at e of W .B. v . An w ar Al i Sarkar, AIR 1952 SC 75 » 78, 91, 92, 93, 97, 103, 143 St at e of W .B. v . E.I.T .A. Ind ia Lt d ., (2003 ) 5 SCC 239 » 179 STO v. Aji t Mills Ltd ., (1977) 4 SCC 98 : AIR 19·77 SC 2279 » 240 Sub rah am anyan v. ITO, (1987) 167 ITR 409 (AP ) » 178 Sukhde v Sing h v . Bhaga tram Sardar Sing h Ragh u vans hi , (1975) 1 SCC 421: (1975) 1 LLJ 399 » 154 Sukhpa l Sing h Bal v . State of U.P., AIR 2003 All 295 » 199 Suk u mar Mukherjee v . State of W. B., (1993) 3 SCC 723 » 178

Suni l Bat ra v. Delhi Ad mn ., (1978) 4 SCC 494 : AIR 1978 SC 1675 » XLIV, 158, 207, 211, 215, 224, 237 Sur aj Mall Mehta & Co . v . A.V . Visvanath Sastri, AIR 1954 SC 545 » 90 Sure ndr a Prasa d Khug sal v . M.M.T.C., 1994 Su p p (1) SCC 87: AIR 1993 SC 2491 » 243 Sw ath i Trad ers v. CTO, ILR 1990 Kant 425 : (1990) 76 STC 393 » 182 Syn th et ics and Che mi cals Ltd. v . State of U .P., (1990) 1 SCC 109: AI R 1990 SC 1927 » 191 T . De vad asan v. Uni on of Ind ia, AI R 1964 SC 179 » 90 T . Venk ata Redd y v. Stat e of A.P., (1985) 3 SCC 198: AIR 1985 SC 724 » 240 T .A.C.A. A ssn . v . Stat e of Kerala, (1988) 71 STC 332 (Ker ) » 178 T .M . Apa rtm ent s v . DDA , (1990) 41 DLT 139 » 157 T .N. Go davarma n Thi ruma lpa d v . Unio n of Ind ia, (2002) 10 SCC 606: AIR 2003 SC 724 » XLIV T .V. Vath eesw aran v. State of T.N ., (1983) 2 SCC 68 » 207, 237 Tapat i Sengupt a (Dr .) v . Enforceme nt Officer, (1998) 60 ECC 48 » 179 Tarapa da De v . State of W.B., AIR 1951 SC 174 » 104 Tata Cellular v. Uni on of Ind ia, (1994) 6 SCC 651: AIR 1996 SC 11 » 161, 162 Thiru Muruga Fina nce v . State of T.N ., AI R 2000 Mad 137 » 179 Tilka yat Sh ri Govind lalji v . Stat e of Rajast han, AI R 1963 SC 1638 » 144 T insu khia Electri c Su p ply Co . Ltd . v. State of Assam , (1989) 3 SCC 709 » 5 Tms tees of D art mou th Coll ege v . Wood w ard, 4 L Ed 629: 17 U S (4 Whea t) 518 (1819) » 9 Tw ining v . N ew Jersey, 53 L Ed 97: 211 US 78 (1908) » 20 U .P. SRTC v . Mahes h Kumar lvlishr a, (2000) 3 SCC 450

»

199

Union of Ind ia v. Jyoti Prakas h Mitter, (1971) 1 SCC 396 : (1971) 1 LLJ 256 » 124 Union of Ind ia v. Madras Bar Assn ., (20 10) 11 SCC 1 » 138, 139 Uni ted States v . Caro lene Pro du cts Co ., 82 L Ed 1234 : 304 U S 144 » 3, 102, 181 Uni ted States v . Crui kshank , 23 L Ed 588 : 92 US 542 (1875) » 19 Uni ted States v . Harris , 27 L Ed 290 : 106 US 629 (1883) » 19 Uni ted States v . O'Bri en, 20 L Ed 2d 672: 391 U S 367 (1968) » 45 Uni ted States v . Reese, 23 L Ed 563 : 92 US 214 (1876) » 19 Uni ted States . v . Kras, 34 L Ed 2d 626: 409 US 434 (1973) » 54 Unni Kris hnan J.P. v. State of A. P., (1993) 1 SCC 645: AIR 1993 SC 2178 » 208, 211, 238 Up endr a Ku mar Joshi v. N ew Victoria Mills Co. Ltd ., (1986) 59 Com p Cas 798 (Pa t) » 178 Us ha Meh ta v . State of Maharashtra, (2004) 6 SCC 264 » 234 V. Kunha bd ulla v. Stat e of Keral a, AIR 2000 Ker 376 » 182 V. Laxm inara samma v . A. Yad aiah, (2009) 12 SCC 544 » 5 V.B. Rangara j v . V.B. Gop alakri shnan, (1992) 1 SCC 160: AIR 1992 SC 453 » 215 Vasan tha R. v. Union of Ind ia, (2001) 2 LLJ 843 (Mad ) » 180 Vasulal Internatio na l v . Adell . STO, (2004) 3 KLT 162 » 179 Venka tramaia h v. State of Karna taka, ILR 1989 Kan t 1264 » 178 Virendr a v. State of Pun jab, AIR 1957 SC 896 » 81 Vishak a v . State of Rajasth an, (1997) 6 SCC 241: AIR 1997 SC 3011 » XLIII, 208, 210, 215, 216 Walke r v . Sauvinet , 23 L Ed 678: 92 US 90 (1875) » 20 Walter s v . N ational A ssn . of Radi ation Su rv ivors , 87 L Ed 2d 220 : 473 U S 305 (1985) » 55

Wama n Rao v. Union of Uni on, (1981) 2 SCC 362 » 120, 172, 195 Washin gton v . Glucksbe rg, 138 L Ed 2d 772: 521 US 702 (1997) » 4, 44 Webster v. Doe, 100 L Ed 2d 632: 486 US 592 (1988) » 55 Welfare Assn . v. Ranjit P. Gohi l, (2003) 9 SCC 358: AIR 2003 SC 1266 » 240 West Co ast Ho tel Co . v . Parris h, 81 L Ed 703: 300 US 379 (1937) » 30, 31, 35, 58 Wolff v . McDonnell , 41 L Ed 2d 935: 418 U S 539 (1974) » 49 Wooley v . Maynard , 51 L Ed 2d 752: 430 US 705 (1977) » 222 Zab locki v. Red hai l, 54 L Ed 2d 618: 434 US 374 (1978)

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46

lillxxv11Introduction AR V I N D

P.

D ATAR*

No person shall be held to answer for any cap ital, or othe rwise infamous crime , unless on a presentme nt or indictmen t of a Grand Jury , except in cases arisi ng in the land or naval forces , or in the Militia, when in actu al service in tin1e of War or pu blic dange r; no r shall any person be subject for the san1e offence to be twice put in jeopa rdy of life or limb ; no r sh all be compelled in any crim inal case to be a witness agai nst himself , nor be deprived of life, libe rt y, or property , without due process of law; nor shall private pro perty be taken for pub lic use , witho u t just compe nsatio n .1

All p ersons born or natu ralized in the Un ited States , an d sub ject to the jurisdic tion ther eof, are citizens of the Unit ed States and of the State wherein they reside . N o State sh all make or enfo rce any law which shal l abr idge the pr ivi leges or immu nities of citizens of the Unit ed States ; nor shall any State deprive any person of life, liberty, or p rop erty, without due process of law; nor deny to any person w ithin its jur isdic tion the equ al prot ection of the laws. 2

These five wor ds (without due process of law) occurr ing in the 5th and 14th Ame ndme nt s to the U S Constitutio n have done more for the develo pment of American constitu tional law than any other phr ase. It has enabled the US to be governe d by a Constitutio n whi ch is mo re than 200-year-old . It has helped ma intain an effective sepa ration of powe rs betwee n the legislatu re, executive an d jud iciary. Most imp ortant of all, this expression has added ma lleability an d elasticity to the US Constituti on, enabling it to meet the felt necessities of the time s. Over the year s, it ha s given rise to a numbe r of subst antive

right s an d given llJ XXVIII judg es the scope not only to expa n d judi cial pow er by creative an d exp ansive interpre tation but also cur b th e majo ritarian tenden cies of elected legislatu res.3 Abhinav Chandr achud h as examin ed the origins of th e du e pro cess pr inciple, tracing it to the 800-year-old Magna Carta in Eng lan d. H e has car efully an d closely analysed the mann er in which it w as initia lly dormant bu t subsequ ently activa ted by the US Supre me Cou rt. The interested readers can now get an excellent sum m ary of the du e pr ocess pr inciples in the US with a careful an alysis of both its limbs - subs tantive and proc edu ral. Ch andra chud po ints out the difference betwee n substan tive and pr ocedu ral du e process and how th ese two branches hav e been applie d by the US cou rts. The book also gives a useful but brief compa rative stu dy of th e law in th e US and UK. The du e process clause has had its ups and dow ns. In the early days , it was u sed to strike down several laws . Th ose who suppo rted Roosevelt' s New Deal pol icies

ha d seen the cou rt fru strate th e new libe ral policies of the progre ssive regime u sing th e pr ecedent of Lochnerv. New York.4, a case w here the Supre me Court had struck down a New York law limitin g th e number of hou rs th at a ba ker could wo rk each day to 10, and limite d the num ber of hours that a bake r could wo rk each w eek to 60. The division w as 5 : 4 in th e nine - member court. Th e decision created a rift and generation of judg es who advoca ted jud icial restraint and greater de feren ce to th e legislature. Th e pendulu m then swung to the other extrem e. The US Supr eme Court held that the law s could not be struck down because they are contrary to a pa rticula r pattern of econo mic thinking . As Black It point ed out in 1963: Th e doctr ine th at preva iled in Lochner, Copp age, Adki ns, Burn s, and like case s - th at due proc ess au thorize s cou rts to hol d law s uncon stitution al when they be lieve th e legislatu re h as acted unw isely - h as long since bee n di scarded . We h ave retu rned to the or igin al con stitu tion al p ropo sition th at court s do not

substitute their social and econon1ic beliefs for the judg n1ent of legislative bodies, who are elected to pass laws.5 The du e proc ess clause h as been the source of crea tin g several new right s and imposed corre spo nding obligatio ns on the States - the du ty to provide cou nsel to in digent accu sed,6 the need to prov ide and conside r mit igatin g circumsta n ces wh ile impo sing dea th pen alty,7 to W XXIX provide equa l bene fits to men and women in the milit ary,8 to n ame only a few. The US Supreme Court has crafted several proc edu ral safegua rds on th e basi s of the du e process clause. For instan ce, it has held th at the sta teme nts obtained from a person while in po lice custody are not adm issible an d laid dow n pro cedu res that would effectively imp lement the 5th Ame n dme nt wh ich prohib its a person from being compelled to be a witne ss aga inst himself . Viewers of courtroom dram as on Amer ican television or cinem a would have not iced that a person who is taken

into custody is inform ed by the po lice officer that he ha s a right to rem ain silent and that any thing he says may be used as evidence against him . The two additio nal safegua rds not mentioned are th at a person h as a right to the presence of an attorney du ring questioning, an d if poor has a right to a lawy er without ch arge . Unless this four-fold war ning was given , th e cou rt would assume that the stateme nts given to the po lice were un der coercion and , therefo re, inad missible in eviden ce. These safegua rds were laid dow n in a Supreme Court decision,9 popularly called the "Miranda warning " . The decision h as been criticised as placing a premium on the rights of th e offen ders at th e expe nse of victim s of a crime. 10 1. Due process in India -

from rejection to acceptance

In India, " due pro cess of law " has an interesting and chequered history that has been well -docum ented in the p ages th at follow . It is th e story of how the deliberate an d original intent 1976 to exclud e th e phr ase was laid

to dus t by jud ges looking for way s to curb a gover nm ent on w hom the legislatu re dominated by a single party could not act as an effective check. In su ch a situation 1 satisfying the requirem ents of proc edur al du e proc ess become s rath er easy. Institu tions 1 like children 1 alway s tend to be forbidden . So it was with our judg es. From the emphatic denia l of " du e pr ocess" in A.K. Gopalan v. State of i\1adras11 (Gopalan)1 to its acceptanc e in M aneka Gandhi v. Union of India12 (Maneka Gandhit the cou rt ha d travell ed a great jud icial distanc e in a relatively short time. Th e importation of subst anti ve and proc edu ral due proc ess was made WXXX po ssible by an activist judic iary an d legislative an d executive decisions mad e in h aste with out though t and import antly with an increasing ebbing of their m oral au th ority and integrity. The flexibility an d limits of th e pow er of the Supr eme Court will greatly depen d on the manner in w hich the Supr eme Court interp rets Articles 14 and 21 of th e Constitut ion .13 Th e intr oductio n of the due pr ocess 1

1

1

principle in our Constitut ion1 albeit thr ough the jud icial rout e requires the demarcatio n of the limits of jud icial powe r of bot h the Sup reme Court an d H igh Courts. In thi s turbulent ba ckground 1 th is book on du e proc ess by Abhinav Chan drachu d is as tim ely as it is well -writt en . 1

2. Constituent Assembly debates

The Constituent Assembly appoin ted a drafting comm ittee pre sided over by Dr. B.R. Am bed kar. A controve rsial issu e was wheth er the "du e pr ocess" clause should be includ ed in one of th e articles in the Cha pter on ''Fun da mental Rights " . Dr. B.N . Rau an ICS officer1 play ed a leading rol e in the drafting commi ttee. H e visited the US1 the UK1 Canada and Irelan d to discuss various prov isions of different constituti ons with emin ent constituti on al scholars and jud ges. In a historic an d oft-quo ted meetin& Dr. Rau met Felix Frankfu rter J of the US Supr eme Court in 1947. In the US, he also me t Hug hes form er CL Bu rton L Mu rphy J an d Learn ed H and the legen dary J. Frank furter L 1

advi sed Dr. Rau no t to in clud e th e "due pro cess" clause in the Ind ian Con sti tu tion as it would lead to extens ive litig ation on th e valid ity of laws . Thi s expre ssion did not h ave a p recise me ani n g and wo uld introduce an eleme nt of unce rtain ty an d cou ld po ssibly give th e judi ciary a p ower to ve to Parliamen t an d State Legi slatu res wh ich con sist of p eop le' s rep resen tative s elected by and account ab le to the electo ra tes. On th e oth er h an d, ju dge s wh o ha d a fixed -term of office1 could sit in judgmen t ove r the wi ll of th e legislatur e. In d eed 1 wh en the d raft rep ort wa s pr ep ar ed by the Sub-comm ittee on Fund ame n tal Righ ts, the d raft clau se 12 wh ich was to become Art icle 21 cont ained the due pr ocess clau se an d rea d as follow s : No per son sh all be deprive d of his life, liber ty or proper ty without due proce ss of law nor shall any per son be denied the equal tr eatment of the law s wi thin the territories of the Union. llJ XXXI Dur in g the d ebate s, th e Con stituen t Assemb ly wa s divided . Some membe rs like Gob ind Vallabh Pan t

were comp lete ly against the due proce ss clau se wh ile othe rs like K.M . Munsh i favou red its inclu sion. In terestin gly , Ch an drach ud h as p oin ted ou t the contradictory view s taken by Sir Alla d i Krishn aswamy Iye r . Initia lly, on 21- 22 Apr il 19471 h e vo ted to includ e th is clau se eve n th oug h h e re alised th e d ange r of judge s in valida ting legi slation th at took ove r p rop erty . Later, h e ch an ge d hi s min d and opp osed it. Dr . Ambedkar clearly u n de rstoo d the dilemm a: We are therefore placed in two difficult po sitions. One is to give the jud iciary the autho rity to sit in judgment over the will of the legislature and to que stion the law n1ade by the legislature on the groun d th at it is no t good law, in consonance with fundan1en tal p rinciples . . . . For n1yself I canno t altogether omit the po ssibility of a Legislatu re packed by party n1en n1aking laws which n1ay abrog ate or vio late wh at we reg ard as certain fundan1en tal principle s affecting the life and liberty of an ind ividu al. At the same time , I do no t see how five or six gent len1en sitting in the Federal or Supreme Court examining laws mad e by the Legislatu re and by d int of

-

-

.

.

their own individual conscience or their bias or their prejudices be tru sted to determine which law is good and which law is bad . It is rather a case whe re a man has to sail between Charybdis and Scylla and I therefore wou ld not say anyt hing. I wou ld leave it to the House to decide in any way it likes.14 After a lengthy d ebate, the Constitu ent Assembly fina lly decid ed to delete the du e process" clause and substitut ed it by the expr ession "procedure established by law ". Th e exclusion wa s m ade w ith th e intent to lim it jud icial powe r (whi ch po liticians have always feared all ove r the worl d) an d an un w illingn ess to tru st th e jud ges.15 In cidentally, it was po in ted out th at the exp ression "procedure established by law " had substitut ed the exp ression '' du e pr ocess of law " even in Article 31 of th e then n ew ly drafted Jap an ese Constitution whi ch had been prep ared su bstantially by Am erican lawy ers. Th e net result wa s th at Article 15 of the final draft con stituti on, w hi ch later beca m e Article 21, rea d as follow s:

No person shall be deprived of his life or personal liberty except according to procedure established by law . De spite thi s un equ ivoca l decision by the Consti tu ent Assembly, th e m anne r in which the du e pr ocess clause eventua lly became part of th e Indian Constitu tion is a fascin ating saga w hi ch has been m eticulously chr onicled an d analysed by Chan d rachud .

II

3. W XXX II Gopalan case

Soon after th e Constitu tion came in to force on 26 Janu ary 1950, th e Su pr em e Cou rt had to d eal w ith its first landm ark decision, the fam ou s Gopalan case16 . Thi s case wa s heard by a Bench of six jud ges and invo lved a challen ge to the law of preven tive detention . In dia has p erhap s th e only Constitu tion w h ose Chap ter on "Fu ndam enta l Rights" contain s a p rovision permi ttin g the arrest an d detention of a m an in prison w ithou t trial on the app reh ension th at he wou ld be a thr eat to secu rity .

A .K. Gopa lan, a leade r of the Commu ni st Party of

Indi a (CPit argued that the "prevent ive detention laws " ser iou sly interfe red with his right to trave l an d other fundament al freedoms un der Art icle 19 of the Constitut ion. A detenue has not been pro ve d guilty an d his incarcera tion is on a mere su spicio n by the execu tive. Un doubted ly, there are safeguards like the form ation of an Advisory Board an d the righ t to challenge detention by way of a habeas corpu s wr it pe tition. The majority held th at fun dame ntal rights un der Art icle 19 are distinc t an d separ ate from Art icles 21 and 22. The consti tutionality had to be measured by the object an d not by the incidenta l effect the law would have on othe r freedoms. Therefore , a per son who was detained cou ld not com plain of the vio lation of his rights un der Art icle 19. For examp le, S.R. Das 1' who was one of the judges in the majority, observed that the fundament al freedo ms prote cte d by Art icle 19 would be available only to free citizens wh ich mea ns those who we re able to exercise their freedo m un impaired. A

pe rson who is detained is not free an d, the refore, canno t claim the right to exercise freedo m under Article 19. N othing illustrates the more emphatic rejection of the due pro cess clause than the observat ion in the Gopalan case17. It was argued th at the law passed by King Henry VIII to execu te the cook of the Bishop of Roches ter by boiling would be a procedure established by law but wou ld be un sustaina ble under our Const itu tion . But this w as rejected with the following observation by Das

J: If Parlian1ent may take away life by providing for hanging by the neck, logically there can be no objection if it provides a sentence of death by shooting by a firing squad or by guillotine or in the electric chair or even by boiling in oil. A procedure laid down by the legislature n1ay offend against the court's sense of justice and fair play and a sentence provided by the legislature n1ay outrage the court's noti ons of penology , but that is a wholly irrelevant consider ation .18

one jud ge, Faz l Ali J, obse rved th at p reve ntive d ete n tion laws cou ld amo un t to de p rivatio n of pe rson al libe rty and violate th e righ t to move freely un d er Ar ti cle 19(1)(d). H e d elibe rately refer red to the histo ry of th e Jap an ese Con stitu tio n in his dissen tin g op 1n1on : It w ill not be ou t of place to state here in a few words how the Jap anese Constitu tion can1e into existence . It appears that on 11th October, 1945, General McA rthu r directed the Japanese Cabinet to initiate me asu res for the prep aration of the Japanese Constitu tion, bu t, as no progress was n1ade, it was decided in Febru ary 1946, th at the prob lem of constitu tion al reform should be take n over by the Governmen t Section of the Su pre me Comm an der' s H eadquar ters. Sub sequen tly the Chief of this Section, and the staff d rafted the Cons titution wi th the help of Amer ican cons titu tion al lawyers who we re called to ass ist the Gove rnme nt Section in the task. This Cons titution, as a learne d w riter has ren1arked, bore on almos t every page evi dences of its essenti ally Western origi n, and th is characte ristic was especially eviden t in W XXXIII Only

the pream ble 'p articularly remini scent of the Ame rican Declar ation of Indepen dence, a p rean1ble whi ch, it h as been observed, no Jap anese could possibly h ave conceive d or w ritten an d w hich few cou ld even un derst and' . . . . Now there are two matters which deserve to be noti ced : 1) th at the Japanese Constitu tion was framed wholly unde r An1eri can influen ce; and 2) th at at the time it w as frame d the tr end of judi cial opin ion in An1eri ca was in favou r of confining the n1eaning of the express ion ' due process of law' to w h at is expresse d by certain Ame rican w riters by the somew h at qua int but use ful exp ression ' p rocedura l due process '. 19 The se we re th e wo rds of a p roud jud ge of a ne w ly in depe n dent repu blic w h o wo u ld sho w p refere n ce for an in de p en dent ju d icial defin ition of the Am er ican cou rts rat h er th an a d elib erate cu rtailme n t given by the government w in g of a milita ry Su pr eme Comm an de r of an occu p ied n ation . In th e en d, the Su pr eme Cou rt d ecisive ly rejected the ap p licat ion of the due pr ocess clause p oin tin g ou t th at

as long as a person was detai ned according to th e "pr ocedu re established by law", he could not challenge his detention . 4. Procedural due process

After the Gopalan case20, Articles 19 an d 21 w ere treated as separate an d distin ct fun da mental righ ts. Th e correctn ess of this view was pe rhaps do ubt ed for the first tim e in 1960 by Subba Rao J.21 Thi s gr eat judg e ha d the cour age to strike down legislation whe n it int erfered w ith the personal liberties an d right s of citizens. H e po int ed out that if the issue liJ XXX IV was being conside red for the first tim e, some of th e judg es wou ld be inclined to agree with the dissentin g view of Fazl Ali J. Unfortunately , he said, the jud gment in th e Gopalan case22 was bin ding on th e court. An excellent exam ple of th e Supre me Court later rejecting the theory th at the "pr ocedu re established by law " can be any procedu re adopted by Parliament is

Kharak Singh v . State of U.P.23 Regu lation 236 of th e U.P. Police Regu lation s perm itted surve illanc e by any of th e following measur es: (i) secret picketing of the ho use or appr oach es to the house of suspe cts; (ii) domiciliary visit s at night; (iii) thr ough periodical inqu iries by officers not below the rank of sub-inspe ctor into repu te, habits, associations, incom e, exp enses and occupat ion; (i'u) th e repo rting by consta bles an d chaukidar s of movement s an d absences from hom e; (7.7 ) the verification of movements and absen ces by mean s of inqu iry slip s; and (7.7 i) th e collection and record on a history sheet of all info rm ation bearing on con du ct. Regu lation 237 pr ovided th at all history sheeters (p ersons wi th a crimin al record) wou ld be subject to the surveilla nc e mentioned in Regulation 236. Kha rak Singh, the pe titioner, had been accused of th e offence of da coity but wa s acquitte d for lack of evidence.

H oweve r, he w as inclu ded in the list of ''history sheeters" . Rajagopala Ayyan gar It for the majority, struck down Regulation 236(b) but upheld the oth er prov isions. Subba Rao and Shah JJ struck dow n the entire Regulation 236. In one of the most memo rable jud gmen ts th at defended th e importance of pe rsonal liberty, Subba Rao J observe d that the right to pe rsonal liberty in Article 21 is the righ t to be free from restrictions or en croachme nts, whethe r impo sed directly or indirectly by calculative mea sures. Most importan t, he bega n hi s ju dgment by saying th at the qu estion of person al liberty was of far reaching importan ce an d the fact th at the petition had been filed by an alleged ly disreputab le character should not be allowed to de flect the cou rt' s perspective . Thi s wa s becau se what was done to a person accused of dacoity could equally be done to an honest law-a biding citizen. Subba Rao J observed that if a man was sha dowe d his moveme nts were obviously constricted; su it a m an can move physically but it can only be the moveme nt of an

aut omaton . Th e w hole coun try is hi s jail. The freedom of moveme nt unde r ou r Constitu tion mus t be a moveme nt in a free coun try i.e. in a coun try where he can do lill XXXV whateve r he like s, speak to w homsoever he wants and meet people of his own choice without any app reh ension subject, of course, to the law s of social control. Subba Rao J later went one step fu rther in uphold ing the righ t of a de tenue to have his book published on th e qua ntum theo ry of physi cs.24 Th e executi ve ha d refused pe rmi ssion merely on the groun d that a detenu e had no right to publish a boo k. Rejectin g thi s stan d, Subba Rao J set-out th e following five distin ct lines of thoug ht to reconcile Articles 19 an d 21: 1) if one lose s his freedom by de tentio n, he lose s all the other att ributes of freedom en sh rine d in Articl e 19; 2) per son al libe rty in Arti cle 21 is the residue of pe rsonal liberty after exclu ding the attribute s of that liberty embod ied in Arti cle 19; 3) the per son al libe rty inclu ded in Arti cle 21 is w ide eno u gh to includ e some or all the

freedon1s men tioned in Article 19, but they are two distin ct fun dame nt al rights - a law to be valid sha ll not infringe bo th the rights; 4) the expressio n law in Art icle 21 mea ns a valid law and , therefore , even if a pe rson s liberty is deprived by law of detenti on, the said law shall not infringe Article 19; and 5) Article 21 app lies to procedural law, whe reas Article 19 to sub stanti ve law relating to person al liberty. We do not propose to pursue the matter furt her or to expr ess ou r op inion one way or other . We h ave on ly n1entioned the said views to show that the view expressed by Das J, as he then was, in A .K. Gopalan case [(1950) SCR 88, 291] is not the last wo rd on the subject.25 1

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5. From "Bank Nationali sation case" to "Kesavananda Bharati case"26

Th e 11-Judg e Bench in Rustom Cavasjee Cooper v. Union of lndia27 (Bank Nationalisation) ov erru led th e vi ew of th e

case28 an d h eld th at various fun dame n tal righ ts

Gopalan we re not to be con side red in isolat ion bu t we re

in terdep en den t. This im po rtant jud gment h ad a signi fican t im p act on the d eve lop m ent of con stitutional law . The Supre me Cou rt introduc ed, for th e first tim e, the object an d effect test. Thi s d ecision wa s to be th e foun da tion of in tro duc ing p rocedural due p roc ess in

Maneka Gandhi v. Union of India29 (M aneka Gandhi), w hich h as been di scus sed in great d etail by Chan dr ach u d . Perhaps the b est summ ary of p roc edu ral du e proc ess wa s p resen ted by Oliver Wen d ell H olm es J: Wh ateve r disag reeme nt there may be as to the scope of the phrase due proc ess of law the re can be no do ub t th at it embrac es the fundame nt al W XXXV I con ceptio n of a fair triat w ith opportun ity to be heard . Mob law does not become due process of law by securing the assent of a terrorized jur y .30 I

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6. Prelude to "Kesavananda Bharati "

Certain even ts after 1967 sho we d an in creasing tenden cy to d isregar d con stitutional p rin ciples an d freq u ently ame n d the Cons titut ion . As long as Pan d it

Ne hr u an d Lal Bahadur Sha stri w ere at the helm of affairs, there wa s no need for any ba sic structu re th eory to prot ect the Constitu tion . But the enti re political atmo sphere ha d chan ged by th e lat e 60s an d it was not pos sible to tru st the legislatu res to safegua rd the fundame ntal right s of citizens. Th ere was also a freque nt tendency to amend th e Constitutio n an d increasingly curtail jud icial review . The massive mandat e whi ch Mrs Gan dhi's governm ent h ad acqu ired in 1971 wa s an ad ded da ng er because it gav e her the necessary legislative streng th to suitably amend th e Constitut ion. The shocking and destruct ive natu re of these amendm ents can be seen by the texts of th e 24th and 25th Am en dment s to the Con stitu tion . The 24th Am endm ent wa s a clear att empt to overru le th e decision of the 11-Judg e Bench in Golak Nath v. State of Punjab31 . In th at case, the Supr eme Cou rt he ld th at the Parlia ment wou ld h ave no pow er to ta ke away or abridge th e funda menta l right s. Article 13(2) app lied

not only to legislative amen dments bu t constitut ional amendment s as well. The 24th Amen dment 1 by amending Articles 13 and 368, gav e unlimit ed powe r to Parliame nt to ad d, vary or repeal any pro7.7isionof the Constitution. On the sam e day , th e 25th Ame ndment was intro duc ed whereby the wo rd "compensation" payab le for acqui sition of pr op erty w as replaced by the wo rd "amount " . It was stipu lated that no court could qu estion th e in adequa cy of compensation or whether the amoun t was pai d otherw ise than in cash. This amendment nullified the verd ict 1n the Bank Nationalisation case32 . The wo rst w as the intro ductio n of Article 31-C which enab led the ma kin g of law s whi ch contain ed a mere declaratio n th at it was to give effect to Directive Principles of Sta te Policy. Once su ch a declaration was given, no such law could be chall enged in any cour t of law .33 Fin ally, the 26th Am end ment inserte d Article 363-A which constitu tionally abolished the pr ivy pur se. Th e solem n pro mise giv en to the former rule rs wa s br eached an d, without question , this

w as a breach of constitu tion al morality and a source of scheme ever sin ce. N o gov ernme nt can bre ak its solem n pr omise that lillXXXVII is enshr ined in its Constitu tion. Th e amoun t payab le to the Princes by way of privy purses was less th an ru pees five crores per ann um . Th ere is no doubt that that this was an act of pure vendetta because several former ruler s had defeated Congress can did ates in the 1967 elections and m any openly supported the Swatantra Party of Rajaji.34 7. "Kesavananda Bharati " -

the saving of democrac y

It was in this legislative an d constitu tional backgroun d that the Supreme Court wa s called upon to decide the scope of th e amending pow er of Parliament. The w riting w as clearly on th e wall. Th ese amendments were a meth od of indicat ing to th e Supre me Cou rt th at Parlia ment w as supr eme and could do wha t it wan ted. A law could take away any pr op erty an d pay any "amoun t" as compensation . Fu rther, Parliament or the State Legislatu res could ma ke any law th at wa s imm un e

from jud icial review by a simple declaration in th at law stating th at it w as mean t to achi eve the Directive Principles of State Policy. In fact, a pe rson could logically argu e th at a pa rticu lar law could never attain the directive pr inciples an d th at it wa s a colourable exercise of power. The 25th Amendment took care of this possible objection by simply stating th at such a question could not be raised in any court of law . By destroying ju dicial review, th ese am endm ents, un doubted ly, destroyed the separa tion of power s. In deed , after these am endments, ou r Supr eme Court an d High Cou rts wo uld have the same pow er as th e sup erior courts of milita ry dictatorship s an d commu nist regrmes . It was in this ba ckgroun d th at the Sup reme Court constitu ted th e largest Bench of 13 jud ges to hear th e historic case of Kesavananda Bharati v. State of Kerala35 (Kesavananda Bharati). After a mar athon hearing th at continued for almost four months du ring 1972- 73, the Supreme Cou rt laid down the ba sic stru ctu re th eory.

Parliament 's power to amend the Constitut ion w as perm issible to any extent with the only limitation of not violating its "basic stru cture ". Over the years, w hat con stitu ted the ba sic stru ctu re w as the subject-matter of various de cisions. Abhinav Chandra chud has astu tely observe d th at the KesavanandaBharati judgmen t36 has actually uphe ld most of the conten tion s of the government and is very deferent ial. In a very useful table, Abh inav Chandrachud has pointed ou t that all the 13 judge s upheld the 24th an d part of 25th Amendmen ts. The basic structu re theory was laid down an d p art of Article 31-C was stru ck do wn by just seven ou t of 13 judge s. Finally, 12 out of 13 judge s uphel d the 29th Amendment wi th Sikri CJ, lill XXXVIII no t expre ssing any view on the issue. Thus , the Supreme Court was per ilously close to giving Parli amen t unfettere d and unb ridled po wer to alter, amend , vary or repe al any part of the Const itution. Nevertheles s, as futu re event s showe d, the Constitut ion wa s really saved by th e basic stru ctu re

theory an d, bu t for thi s pr inciple laid down by a waferth in majority, the obnox iou s 39th and 42nd Amendmen ts wou ld h ave surely conver ted India into a dictatorship . It is no w been the protective shield against any futu re Parliament running am uck as did the Indi an Parli ame nt (min us the oppo sition parties) du ring th e Emergency . 8. The Emergency and the regrettable ruling of the Suprem e Court

The adverse ver di ct against Indira Gan dhi by the Allahabad High Cou rt in 1975 was per hap s the last straw and she declared emergen cy un de r Arti cle 359. All fund ame ntal right s we re suspended , an d not only sever al political leade rs, but thou san ds of per sons were jailed arb itr arily du ring th e Emergen cy . Some of the detenue s challenged the ir deten tion before various High Court s. To the ir cred it, it was held th at even though fund ame ntal righ ts were suspended , a per son could challenge his de tention on the gro un d that it wa s

violative of th e statu tory prov isions of that particular Act. In a judgm ent tha t will etern ally h aun t th e Supr eme Cour t, the decision s of various H igh Court s w ere reversed . Indeed, the Attorn ey General had info rmed th e court that even if a person was shot dead, there wou ld be no remedy in a court of law so long as the Emergen cy wa s in force. Thi s wa s in AD M , Jabalpur v. Shivakan t Shuk la37 . By a m ajori ty of 4 : 1, the Supr eme Court held that a person detain ed without trial un der the dr eaded Maintenan ce of Int erna l Security Act (MISA) could not qu estion his dete ntion on any ground wh atsoever. Chandrac hud has righ tly criticised the de plorable pusillanimity of the m ajority, and pr aised the strong and bold dissent of H .R. Khanna J, whi ch cost him th e Chi ef Justiceship of India but earned him the everla stin g respe ct an d gratitu de of millions of Indians .38 9. Post-Emergenc y -

bravery replaces timidity

Mrs Indira Gan dhi called for elections in 1977 an d w as ba dly defeated in th e ensuing poll s by the Janata party . In a stro ng reaction aga inst th e excesses of Emergency, several Congress can dida tes wer e route d an d, for th e first tim e, th ere was a non -Cong ress gov ernm ent at the lill XXX IX Centre . With this chang e in Parliament, one of reversal, the Supr eme Cou rt sudde nly became aggre ssive and suprem ely concerned with hum an rights an d the value of freedom . The same jud ges who enabled thou san ds of person s to lang ui sh in jails w ithout trial suddenly wo ke up and became awa re of the need for laws to be just an d fair and not arbitrary or opp ressive. Th e first su ch case after th e Emerg ency w as Maneka Gandhi v . Union of India 39 (Maneka Gandhi), a wri t p etition filed by Maneka Gandhi , da ug hter-in-law of In dira Gan dhi. After th e Jan ata party came to powe r, he r pas sport was impoun ded in July 1977 unde r Section 10(3)(c) of th e Passport Act, 1967. She w rote to th e Regional Passport Officer asking for rea son s why he r pas sport was impound ed an d she received a terse rep ly

stating that the Governme nt of Ind ia had decided not to fu rnish reasons in the interest of genera l pu blic" . She then filed a w rit pe tition unde r Article 32 of the Cons titution challengi ng impoun ding of her passport on the groun d th at it wa s in vio lation of Article 14. She argued that Section 10(3)(c) wou ld be infected w ith the vice of arbitrar ine ss and violat ive of Article 14. Later, she raised add ition al ground s alleging violat ion of Articles 19(1)(a), 19(1)(g) an d 21 bu t the wr it was ultimately dismissed after a lengthy an d unne cessary judgme nt. Th e writ could have been dispo sed of summar ily in view of the und ertaking given by S.V. Gupte , the th en Attor ney General, th at the gove rnme nt wo uld reconsid er her ap plicat ion and pass a detailed or der. This und ertaking wa s mo re th an sufficient to dispo se of the w rit petition but a five-Judge Ben ch, p articu larly P.N . Bhagwati an d V.R. Krishna Iyer JJ, took this opportun ity of writing an elabora te judgme nt whic h even tua lly ran to 222 p aragrap hs an d 97 closely pr inte d page s. 11

The Maneka Gandhi case40 is now accepted as the star tin g point of the introduc tion of the due process clau se. The concep t of arbitrar iness, first articulate d in E.P. Royappa v . State of T.N.41 (Royappa), became firmly established in the 1\1.aneka Gandhi case42 an d has bee n ap plied ever since. With th e conversion of ''procedu re established by law " to mea n th e same as "due pro cess of law ", the Supr eme Cou rt emp hatically rejected the theory of origin al inte nt and emb raced a more organi c an d contempo raneou s view of ou r Const itutio n . Chan drachu d makes a brillian t analysis of the Maneka Gandhi case43 an d its impac t on the due pro cess clau se. He point s out th at the llJ XL Maneka Gandhi case44 pr im arily introduced the pro cedural due proce ss test the procedu re contemp lated by Ar ticle 21. If th e proce du re wa s not reasonab le, it wo uld not be in conformity wi th Art icle 14. Fur ther, the proce dure mu st not only be rea sonable bu t it must be right, just an d fair an d not arbit rary, fanciful or op pr essive . After the

Manek,a Gandhi case45, Articles 14, 19 an d 21 became the golden triangle of fundame nt al rights" . Chan drachud calls it as an "isosceles trian gle" but I do not unde rstand why it cannot be called an "equilateral triangle ". 11

10. "Minerva Mills" - balancing fundamental rights and directive principle s

Indira Gan dhi made a ma ladro it attempt to get th e ru ling of ba sic struc tu re reversed in November 1975. Ray CJ constituted a spe cial 13-Jud ge Ben ch to reconsider the Kesavananda Bharati case46 an d wante d to get rid of the basic structu re theory . Afte r hearing argu men ts for two day s, almo st all the judge s felt th at the constitu tion of th e 13-Judg e Bench was highly impro pe r. On the third day, Ray CJ announced th at the Bench is "dissolved " . Despi te the Emergen cy, the other judg es were very firm and rejected th e unf ortun ate attem pt to overtu rn the KesavanandaBharati case47_48 After the Emergency , the Congress w as quick to intro du ce th e 42nd Ame ndmen t to the Constituti on . It

was th e mo st deva stating attack on the Constituti on and nullified th e ba sic structure theory by amen ding Article 368. Several other provi sions sub stant ially diluted the powe rs of the High Court s and the Sup reme Court. H.M . Seervai, th e great ju rist, called this ame ndmen t a constitut ional ou trage " . With mo st of the opp osition in pr ison, this amen dme nt was pa ssed un animously and also ratified by th e respective Sta te Legislatu res with virtually no examination of its long -term conseque nces. Briefly, Section 4 of th e 42nd Ame nd men t fur ther modi fied Article 31-C an d stipulate d th at any law which containe d the declaration that it w as to give effect to any of th e Directive Principles of State Policy could not be called in que stion. This further expa n ded the scope of Article 31-C an d virtually ma de almost any law, eith er Centr al or Sta te, imm un e from challen ge; all tha t was requ ired was a simp le llJ XU pr ovision th at a particular law was intended to give effect to any of th e Directive Principles of Sta te Policy. 11

Section 55 of the 42nd Amendme nt w as even wo rse and it provide d th at th ere wo uld be no limitation wh atsoever on th e constituen t p ower of Parliame nt to amend the Constitu tion . Parliame nt could add , vary or repeal any pr ovision of th e Constitu tion an d it went on to observe that no constitut ional amendmen t whe ther before or after 1976, could be called in question in any cou rt on any ground . By one simp le section, all judg ments of the Supreme Court w hich had struck down portions of constitu tional amen dme nts were nulli fied and every am endment from 1950 was deeme d to be valid. It is not surpr ising that the Supr eme Cour t, after th e Emergen cy, struck down th ese ridiculous amendm ents althoug h it is su rpri sing that Bhagw ati CJ sought to up hold the ame ndm ent to Article 31-C. Mercifully, the majority view prev ailed an d thi s deplo rable attempt to mut ilate the Constitu tion miserably failed . If thi s ame ndmen t had been up held, it would have de stroyed all th e essential featu res of a repu blican democr acy. In passing this judgme nt, the

Supreme Court laid down th e prin cipl e that there ha s to be a balan ce between funda me ntal right s and directive principle s - the latter could not have suprema cy over the forme r. Similarly, it w as not perm issible to give pr imacy to fund am ental rights in Part III over the directive prin cipl es in Part IV. Both were two whee ls of a chariot an d equally im portan t. Th e directive principles set-out in Part IV shoul d be achi eved witho ut the abrog ation of the fundame nt al rights provided by Part III. Any law that destroyed the balan ce betwee n funda me ntal rights an d directive prin ciples wo uld ipso facto destroy an essent ial eleme nt of the ba sic struc tu re of our Constitut ion. Th e next impo rtant case is S.R. Bonzmai v. Union of India49, whi ch challenged th e impo sition of emerg ency and President' s rule un der Article 356. Chandra chud ha s discussed both these cases extensively in the context of the app licability of th e due pr ocess do ctrine . 11. Ramana Dayaram Shetty case

Maneka Gandhi case50 thu s laid down

a bold , new appr oach to Article 14 an d firmly intro du ced th e du e pro cess clau se althoug h the facts nev er wa rr ant ed su ch a dec ision. Similarly, the Supreme Cour t went on to extend the du e pro cess pri n ciple to contracts entered into by the State and this was again in liJ XLII a case that shou ld have been summ arily dismissed .51 On facts, the Bombay High Court in Ramana Dayaram Shetty v. In ternational A irport A uthority of India 52 (Ramana Dayarani Shetty) had dismissed th e app eal filed by Rama na Shetty on the gro un d of delay. The facts also show ed that Raman a Shetty had no real intere st in the litigation but w as putup by an other un succe ssful bidd er. The contr act w as for setting- up a second class restaur ant an d two snack bar s at the Intern ational Airp ort at Bombay. Th e Sup reme Court could have simply upheld the decision of the Bombay H igh Court an d dismissed the app eal. In deed , it eventua lly dismi ssed th e appeal on the ground th at it w as not a fit case for granting relief to Shetty unde r

Article 226 of the Constituti on. If thi s w as a clear case for dismissat one wo n ders why 24 page s we re writte n on ''fairn ess on the part of the State" whi le taking action in exer cise of statutory or executive powe r. Once aga in, far rea ching pr inciples were laid down in a case where the facts only requ ired a mere dismissal. Ironically, th e Supreme Cou rt h as un aba shedly and repeat edly told the H igh Court s th at judgm ents mu st not deal with any issue whi ch is not really necessary for the deter min ation of a pa rticu lar case. Nevertheless, Manek,a Gandhi an d Ramana Dayarani Shetty are now an important part of ou r constitut ional and admini strative law an d can be app lied to che ck executiv e arbitrariness. 12. Substantive due process

Chan drachud ha s identi fied th e followi ng three sources or spheres of th e substantive du e pr ocess do ctrine in In dia:

(i) cases arising unde r the court 's "ba sic stru ctu re" test

whi ch went beyond jud icial access; (ii) cases arising un der the court's "arbitrar iness" doctri ne, which seemed to de rive from the "core" of Article 14; and (iii) cases arising un der the court's "right to life" jurisprude n ce. 13. Test of arbitrarine ss -

lack of clarity

On the issue of arbitrari ness, Chan drachud analyses the often illogical m ann er in whi ch the arbitrari nes s test is app lied . Thoug h it is now a groun d for invali datin g execu tive and legislative action, it is very rarely th at th e cou rt has struck down legislativ e action on th e touch stone of arbitrariness. Indeed, Mardia Chemicals Ltd. v. Union of India 53 was perhap s liJ XLIII the only case whe re arbitrarine ss was applied to invali da te a p articu lar sta tut ory prov ision. It is rather ironical that after th e Em ergen cy, the Supr eme Court ha s made lofty stat ement s on the

impor tan ce of human right s, pe rsonal liberty and requ irem ent of fairn ess on the part of execu tive an d the legislation. But when it comes striking down a statut e, the Supreme Court h as shown extreme deference to the Parli ame nt an d Stat e Legislatu res. In the first 25 yea rs of the Constitu tion, the Supr eme Cou rt struck dow n several law s wit h a minimum amount of rhetoric and witho ut the due process clause. After the late 70s, the Supreme Court ha s been extrem ely eloquent in its referen ces to th e du e pr ocess and other legal pr inciple s, foreign ju dgment s and articles but extraor dinar ily relu ctant to strike down any law. Very often, th e cou rt wou ld "read down " a legislation, som etim es add wor ds an d almost ben d ba ckwards in su staining a ba d law. 54 When th e judg ment s of the last 30 years (post 1977) are an alysed an d contr asted with earlier Supre me Court jud gment s, one repeated ly gets a feeling th at judges like Subba Rao, Hidayatu llah and Vivian Bose would h ave simply stru ck down a bad legislation. In deed, if the bank nation alisation or abolition of privy pu rses wer e to

be challenged today , it would be very unlikely if the Supr eme Court or any H igh Cou rt wo uld strike it down . Felix Frank fu rter J w as again st th e introd uction of the du e pr ocess clau se because it wou ld enable the ~ou rts to strike down legislation. Paradoxically , th e intro du ction of the due pro cess clause by the Supreme Court ha s resulted in the exact opposit e - extreme deferen ce to the legislatu re an d conseque nt reluc tanc e to strike down a law .

14. Expanding the scope of Article 21 Substa nti ve du e process has been the ba sis for expa n ding the scope of Article 21. Variou s rights, perh ap s n~ver contemplated by the foun ding fathers , have been int rod u ced by "read ing" th em into Article 21. Several of these judgm ents are inde ed welcome as the juridicial process was th e only way to give relief in certain extrao rdina ry cases. For instance, prote ction again st sexua l harassment at the work place,55 relief to bonded labou rers,56 an d relief to pr isoners ag ainst

solitary confinement and bar llJ XLIV fett ers,57 and the right to a hyg ienic enviro nment,58 have bee n rightly read into Article 21.

15. Conclusion Chan dr achud h as admir ably performe d the difficult ta sk of summ arising the pr inciples laid dow n in severa l impo rtant cases. Every prac tition er who is to argu e a cas~ chall eng ing the valid ity of a legislation un der Art~cles_14, 19 or 21 or fighting against executive arb1tran ness cannot afford to ignore thi s book. Speaking for myself, I hav e benefited enormously as no oth er comme ntary in th e Con stitu tion con tains a detailed exp lanat ion and an alysis of this branch of law . This historical narrative an alysis of all the judg men ts relating to due pr ocess, an d the Suprem e Court 's jou rney from the Gopalan case59 to the Royappa case6o, an d the Maneka Gandhi case61 and beyond are instructiv e of how the court fun ctions and has adapted itself to

social, economic, an d polit ical chan ges. The first 60 years have been on the overall bala nce do ne cred it to th e cour t. Out of the thr ee pr imary bra nches, it remains th e mos t respecte d in the percept ions of th e common man. As the second decade of the new century gets un de rway , there are debates of jud icial over reach and the qu ality of th e justice delivery system, th e courts will have to redefine themse lves to chang ing times. An d central to th e powe r of the court will be the lines of due pr ocess th at the court itself will have to draw . Will it wane with the ebbing even tide or wax wi th the rising mo rning tid e to confron t th e legislative an d the execu tive wings? These are choices th at w ill confron t the cou rts in the coming years an d the detailed analys is made in thi s book may well be the plat form for judges of the Sup reme Court and High Courts to resolve th e compl ex lega l issues that are bo und to arise in constituti ona l an d admini strative law . *. Senior Advocate , Mach-as High Court. 1. The 5th Arn.endn1ent to the US Constitution ratified on 15-12-1791.

2. S. 1 of the 14th An1endinent to the US Constitution r atified on 9-71868. 3. See, Laurence Tribe , A merican Constitutiona l Law (3rd Edi1. Fotu1dation Pr ess 2000) 1334. 4. 49 L Ed 937: 198 US 45 (1905). 5. Fergus on v. Skrupa, 10 L Ed 2d 93: 372 US 726, 730 (1963). 6. Gideon v. Wainwright, 9 L Ed 2d 799: 372 US 335 (1963). 7. Roberts v. Louisiana, 52 L Ed 2d 637: 431 US 633 (1977). TI1e 1najorit y held tha t the fun dainen tal respect for hurn .aility encon1passed in the 8th An1endinent requi res conside r ation of circu 1nstances surro tu1ding the crirn.e before the dea th sentence cai1 be irn.posed. 8. Fron tiero v. R ichardson, 36 L Ed 2d 583 : 411 US 677 (1973). 9. M iranda v . A rizona, 16 L Ed 2d 694: 384 US 436 (1966). 10. See, Fred E. h1bau , "Over -Reaction: TI1e Mischie f of M iranda v. A rizona" (1982) 73 Journal of Criin inal Law & Crinlinology 797; Gerald M. Cap lai1, "Questionil1g M iranda" (1985) 38 Vai1de rb ilt L Rev 1417; Stephen J. Schulhofe r, "Reconsideril1g M iranda" (1987) 54 U O u L Rev 435. 11. AIR 1950 SC 27: 1950 SCR 88. 12 . (1978) 1 sec 248: AIR 1978 SC 597 . 13. Art. 14: Equality before law: TI1e State shall not deny to ai1y pe rson equality befo re the law or the equal protection of the laws within th e terr itory of h1dia.

Art. 21: Protection of life and p er sonal libe rty : N o pe rson shall b e depr ive d of hi s life or pe rsonal liber ty excep t according to proced ur e es tabli sh ed by law . 14. CAD, Vol. VII, 1000- 1001. 15. See, CAD, Vol. VII, 853. 16. AIR 1950 SC 27: 1950 SCR 88. 17. Ibid, pa r a 27. 18. Ibid, pa r a 285. 19. Ibid, pa r as 73 an d 74. 20. AIR 1950 SC 27: 1950 SCR 88. 21. K.K. Kochunni v. Sta.le of Ma.dra.sand Kera.la, AIR 1960 SC 1080: (1960) 3 SCR 887. 22. AIR 1950 SC 27: 1950 SCR 88. 23. AIR 1963 SC 1295: (1964) 1 SCR 332. 24. A nucha A nta.ra.ngaa t (Inside the Atom) in Mar athi . 25. Sta.le of 1'1.aharashtra.v . Prabhakar Pandura.ng Sa.nzgiri, AIR 1966 SC 424, para 7: (1966) 1 SCR 702. 26. Kesava.na.ndaBha.ra.tiv. Sta.le of Kera.la.,(1973) 4 SCC 225: AIR 1973 SC 1461. 27. (1970) 1 sec 248: AIR 1970 SC 564. 28. AIR 1966 SC 816: (1966) 2 SCR 427. 29. (1978) 1 sec 248: AIR 1978 SC 597. 30. Fra.nkv. Mangum, 59 L Ed 969: 237 US 309, 347 (1915). 31. AIR 1967 SC 1643: (1967) 2 SCR 672.

32. (1970) 1 sec 248: AIR 1970 SC 564. 33. In a sp eed 1 in Madras in 1971, Palkhivala tem 1ed Articl e 31-C as th e "ultiin ate in utt er contem p t for th e Constituti on" . 34. C. Rajagopalad 1ari, the first Goven10r General of Ind ia and form er O lief Mhli ster of Mach as. 35. (1973) 4 sec 225: AIR 1973 SC 1461. 36. Ibid. 37. (1976) 2 sec 521: AIR 1976 SC 1207. 38. New York Times qu ote. 39. (1978) 1 sec 248: AIR 1978 SC 597. 40. Ibid. 41. (1974) 4 sec 3: AIR 1974 SC 555. 42. (1978) 1 sec 248: AIR 1978 SC 597. 43. Ibid. 44. Ibid. 45. Ibid. 46. (1973) 4 sec 225: AIR 1973 SC 1461. 47. Ibid. 48. T.R. An dhyan tjina , "TI1e Untold Story of H ow Kesa.va.na.nda Bha.rati and th e Basic Stn1ch1r e Doctri11e Su rvived an Attem p t to Rever se th em by th e Supr em e Court " (2009) 9 SCC-J 33. 49. (1994) 3 sec 1: AIR 1994 SC 1918. 50. (1978) 1 sec 248: AIR 1978 SC 597.

5 1. Rainana Dayaram Shetty v. In ternational A irport Au thority of India, (1979) 3 sec 489: AIR 1979 SC 1628. 52 . (1979) 3 sec 489: AIR 1979 SC 1628. 53 . (2004) 4 sec 3 11: AIR 2004 SC 2371 . 54 . See, 20th Centu ry Finance Corpn . Ltd . v. St ate of M aharashtra, (2000) 6 SCC 12: AIR 2000 SC 2436 w here th e Sup re1n e Cour t coul d and ou ght to h ave stru ck down certain sales tax pr ovis ions bu t ch ose to adop t th e sai d app road 1. 55 . Vishaka v. State of Rajasthan, (1997) 6 SCC 241: AIR 1997 SC 30 11. 56 . Bandhua Muk ti M orcha v. Union of India, (1984) 3 SCC 161: AIR 1984 SC 802. 57 . Sunil Batra v . Delhi A dmn ., (1978) 4 SCC 494: AIR 1978 SC 1675. 58 . T.N. Godavannan Thiruma.lpad v. Union of India, (2002) 10 SCC 606, 621: AIR 2003 SC 724. 59 . AIR 1950 SC 27: 1950 SCR 88. 60. (1974) 4 sec 3: AIR 1974 SC 555. 61. (1978) 1 sec 248: AIR 1978 SC 597 .

federal constitu tional standard s aga inst th e States; an d iii) wh en courts engag ed in any form of substantiv e w1I. Introduction scru tiny into deprivations of life, liberty or proper ty value s. In each of these circum stan ces, th e courts wer e said , at some point in tim e or the other, to be exercising "substant ive du e proc ess" review. Stran gely, one of th e do ctrine' s strongest oppone nts was also one of its gr eatest contribu tors. Felix Frank fu rter J strongly dep recated the doctrine whi ch eman ate from th e du e pr ocess clause of the SUBSTANTIVE DUE PROCESS IS A PIQUANT AND Nff A~~ 14th Am endm ent in th e jud icial tu ssle whi ch he would doctrine wh ich has bee n attribu te d many meaning s. At hav e w ith Black J. Howev er, in his em pha sis on its best, it is a constituti on al oxym oron . At its wor st, it is fairnes s", ordered liberty" and idea s fun da men tal to a a historical hi ccup. Its nomencla tu re uncomfor tably "civilised society", Frankfurter J contribu ted to the invoke s "subst an ce" and ''proc ess" within th e same constitu tion alisation of "fairne ss" as a gov ern an ce phra se. Its an alysis doe s not begin an d en d with aspi ratio n . "Fairn ess" as constitut ionalism is p erhaps substan tive scrutiny . It ha s often been confu sed with one of the most striking develo pments of subst antive any form of jud icial review of legislative action, du e proc ess doctrin e, comparabl e with "nonalthough it involves much more and far less. arbitrari ness" in India' s constituti on al jurisprud ence. Substa ntive due pro cess doctrine in Am erican llJ 2 The purpo se of this book is to identi fy the constituti onal law had thr ee specific meanings: i) when boundar ies of subst antive due pr ocess doctrine in the cou rts created right s wh ich could not pe rsu asively be constitu tion al jurisprudenc e of the US, and more link ed with any textual provi sion of th e Constitut ion impor tantly to define its contou rs with in the realm of (typically the Bill of Rights); ii) wh en cour ts app lied 11

11

Ind ian constitu tional law, consequen t to th e exp ressed textu al value choices of th e framers of India' s Constitut ion . It is th e thesi s of this boo k that the fluid interpr etation of constitu tional prov isions unde r th e Indian Constitu tion, an d the consequ ent emphasis on "fairn ess" and "non -arbitrariness", the doct rinal develop ment which is typ ically pegg ed to cases in th e late 70s (althoug h the tre nd may have started earlier ), is the foun da tion of Indi an "subst antive du e proc ess". It is pro posed that stro ng sub stant ive review in the early yea rs of India's constitut ional developm ent, the fluid interpr etation of constituti ona l provisions in the years leading up to th e Emergen cy, an d the court 's own per formance du ring th e Emerge ncy wh ich ju stified its posit ion against original intent (an d in favou r of jud icial activism ) in futu re years , collectively constitut e "subst antive due proc ess" in India , comp arable with Ameri can due pr ocess. H owever , in analy sing substan tive du e pr ocess in Indian consti tut ional law, this book will also demar cate the contours of proc edura l du e pro cess do ctrine, whi ch it is sugge sted , are inextricably intertwine d with substantive du e process doctrine in India .

Historically, th e frame rs of the Indian Constitut ion ha d ap parently, on the sugge stion of Felix Frank furter J, delete d the wo rds "du e pr ocess of law " from the text of the draft constitut ion,1 replacing them with the wo rds "procedure established by law ", 2 althoug h the pr ecise na tu re of the exchan ge be twee n Frank fur ter J an d B.N. Rau 3 is not entire ly clear . Thi s book seeks to ans wer two closely relate d que stions: i) whethe r the deletion of the phra se "due pr ocess of law " successfully exclud ed du e proc ess doctrine from India's constituti on al jurisprud ence; an d ii) w hethe r Frank furter J and B.N . Rau wou ld have been discouraged if they had lived to see In dia' s due process doctrine. Althoug h the me thodology employe d in this book is comp arat ive, the thesi s of this boo k does not mean to unde rmine the uniq ue nua nces of the manne r in w hich constituti on al law has dev elop ed in India. Rather, in analy sing the history, tr ajectory an d development of due pr ocess do ctrine in India, thi s boo k seeks incidentally to elucidate whethe r "constituti onal learnin g" is really po ssible i.e. wheth er textu al valu e choices can seriously thwa rt th e emerge n ce of constituti onal doctrine.

Why did the framer s of India' s Constitu tion delete the "due pro cess" clau se from its text? India n lawye rs were familiar with the equitab le liJ 3 power s of interp retat ion that the H igh Cour ts establishe d pr ior to Inde pen dence wo uld wield unde r the do ctrine of "justice, equity an d good conscien ce", where prin ciples of common law wo uld be applied to cases in a legislative va cuum or to fill a legislative vo id . Wha t factors compelled the frame rs of India 's Constitu tion to curb the powe rs of the judi ciary ? In 1949, the " due pro cess" clau se w as spe cifically deleted from the final dr aft of the Indian Con stitu tion by its framer s in an effor t to preclude jud icial overr each . H owever , the frame rs gave In dia's constitu tional courts power s of sub stantive review un der Articles 14 and 19, and of pro cedur al review under Article 22. The stark absence of the " due proce ss" clause from the text of the India n Constitutio n accor dingly did not prevent a due pr ocess-like doctrine from eme rging in Indian constitutio nal jurispruden ce, even thoug h it may have had thr eads of Frankfurte r's approa ch to due proce ss analysis that ran throug h its fabric. According ly, the absence of a "due process" clause could no t preve nt

In dian cou rts from using stand ard s of sub stantive review devised und er equal prote ction and Article 19 analy sis, to read "due pro cess" into the India n Constitu tion . Add ressing the cou rt' s sub stan tive due proce ss review thr ough the lens of demo cratic theory , the cou rt articulated its doctr ine as enf orcing ' fairne ss", althoug h it may not have emp hasised "endu ring valu es" 4 or "mo ral consensus" 5 or prote cted "discrete and insular mino rities" 6 through "rep resentatio n reinfor ceme nt " 7 . The rigid bou ndar ies th at the court had initially construc ted amongst constitu tional provi sions soon came down in the early 70s, even as the cou rt identi fied fluid ' feature s" of the Con stitu tion wh ich it consid ered deserving of deepe r entrenchmen t. The excesses of the poli tical Emerge n cy of 1975, an d the Supreme Court' s disma l performance in prote cting civil righ ts dur ing this pe riod, legitim ately enabled th e court to implied ly reject original inten t an d to embrace judicial activism . It is sugge sted th at the aftermath of the Emergency created two form s of due process doctrine in India: i) a harmonio u s or fluid unde rst anding of the "core" or 1

1

"essence" of equa lity un de r Article 14 articulated as an arbitrariness" test, in an app roach remar kably similar to that ado pte d by Frankfu rter an d Cardozo IT in Ameri can feder al sta te du e proce ss cases; an d ii) the creation of "new" or "unenumerate d" rights foun ded in the sub stantive right to pr iva cy (typ ically in a negative sense man da ting W4 State inactio n), or in th e right to human "dignity" (sometime s in a po sitive sense mandating State action ). In 2004, pe rhap s for th e first time in Indi a' s con stituti onal hi story, the Sup reme Court used an arbitrariness" test to invalidate legislation . Althoug h the wo rd "arb itrariness" ha s been around since the ince ption of the Con stitutio n, it ha s rarely bee n invoked wi th ou t some reference to equal prote ction or Article 19 "reasonable ness" an alysis. While the do ctrinal found ations of the test appeared to have been rooted in notion s of equa l prote ction, a closer analy sis reve als tra ces of sub stan tive due pro cess of th e kind employe d by the US Supr eme Court in Lochner v. New Yorl~ (Lochner). Yet, th e "arbi trar iness" standard ha s been aroun d for a while - it was often used to test acts of adm inistrative autho rities, resembling common law 11

11

jud icial review of admini str ative action; it was a "new do ctrine" 9 meant to en able court s to gauge th e leg ality of admi ni strative statut es. It strongly resembled the "reason ablene ss" test developed in the common law and applie d to Article 19 an alysis. Cou rts would often ap ply due pro cess con cep ts unde r Article 22(4) and (7) w hile rarely invo kin g due pro cess nomen clatu re. H ow did substantive review under the Indi an Con stituti on evolve into substanti ve due pro cess? Non-interpretivi st argument s are ne ither unknown to conven tional constitu tional theo ry 10 nor is this the first time th at Indi an jud icial opinio ns have reflected per sonal value choices. But significantl y, the experience of n ations ha s sho wn th at courts typically transgress constitution al boun dar ies an d create or declare new rights w hen the right s are hierarchi cally su preme , w here infringement tend s to outrage one's moral sensibilities" .11 In American constitutio nal law, judge s have cre ated a hierar chic ally superio r set of "fundamen tal right s" wh ich repre sent, at least to th em, a set of values which fund ame ntally inhere in the American Constitution ,12 an d repre sent "fun damen tal II

pr incip les of liberty and ju stice whic h lie at the ba se of all [their ] civil and poli tical institutio ns" .13 Cons titutional court s typically adopt framewor k tests llJ 5 which guide their an alysis of statute s.14 Ration al ba sis means - end analysis1 is one su ch examp le. H oweve r, the In dian var iant of sub stantive due proce ss noti ceab ly did not trigger higher bu rden s of scrut iny, as the "arbitrariness" test has bee n frequen tly applied without id entifying the hierarc hy of the value s to w hich it is app lied . "Substantive due pro cess" doctrine forms a sub set of judi cial review. All forms of sub stanti ve scrutin y involving legislative enactm ent s do not constitu te "subs tantive du e proce ss" . Similarly 1 "substanti ve du e pr ocess" review can follow an executive or admini strative action . Interestingly1 the term "fun dame ntal right s" in Amer ican constitu tional law app lies to rights th at a court typ ically found "so roote d in the tra ditions an d conscience of [the] peop le as to be ranke d as fund amental" .15 In Ind ian constitutional law 1 every right conferred by Part III of the India n

Constitu tion, the "Bill of Rights", 1s terme d "fun damental" . The doctr ine of "substan tive due proce ss" has been referr ed to by th e Supre me Court on several occasions1 16 often depre cating its Lochnere squ e foun dations.17 In 2010, the Supr eme Cou rt for arguab ly the first time in its history held that it was a "guar ant ee" un der the Indian Constitu tion .18 But wha t doe s ''sub stan tive du e proce ss" really mean ? Wha t idea s does the theory of "substan tive du e proces s" evo ke in the Ame rican constitu tional contex t? Is it me rely a fancy phr ase that describes the court's invalidat ion of econo mi c legislatio n in the Lochne r Era (referr ing to the period w hen the decision in Lochner case19 came in), or does it mea n somet hing more? Why did th e framer s of the In dian Constitutio n delete the "due pr ocess" clause despite what ap peared to be strong suppo rt for the clause both by the Sub-comm ittee on Fundame ntal Right s an d in the Constituent Assemb ly1 gene rally ? H ow did the deletion of the "due pr ocess" clause from the text of the Ind ian Constitu tion impact constitu tional development in India? More impo rtantly , doe s In dia

have its ow n doctrine comparab le wi th "substanti ve due process" despite the expr ess deletio n of the due pr ocess clau se, llJ 6 and if so, what doe s this say abou t the theory of origi n al intent un der Indian constitu tion al law an d abou t constitu tional learning gene rally? The se are the prim ary que stions th at this book attemp ts to answ er in th e ch apter s th at follow . It w ill first be propo sed that "substantive due process" has thr ee piqua nt me anin gs in Amer ican constitutio nal law : i) "federal state " due pr ocess, where rights available against the fede ral Government w ere made available aga inst the States, thr ough harmoniou s constitutio nal constructio n; ii) substant ive scrutiny of liberty deprivations un der the 5th an d 14th Amen dments to the Ame rican Con stitut ion ; an d iii) the creation of "new" or ''une numerate d" right s considered "fun dame ntal", typically rights association w ith sub stan tive privacy. It w ill next be propo sed that despite the deletion of the "due proce ss" clau se from the Indian Constitutio n, India h as its own version of "subs tantive due process" doctr ine . At the outset, it is import ant to hig hli ght that it would be fallacious to believe th at the "du e pr ocess" clause

was delete d in its entirety from the In dian Con stitut ion. The right to "life, liberty and proper ty", fou n d in the 5th and 14th Amendment s to the Amer ican Constitutio n w ere sliced int o tw o provi sions in th e India n Constitutio n : Article 21 contained the right to life and "per sonal liberty", while Article 19 contained right s to enumerate d liberties including the right to prope rty (which w as sub sequ ently delete d by constitutio nal amendme nt ). Alth ough the due pr ocess clause was delete d from Article 21, cou rts we re per mitte d to analy se the "rea sonablene ss" of liberty de privatio ns un der Article 19. Accordingly , Article 19 w as amen able to "du e process" type sub stantive investigation s. For this reason, it wou ld be err oneou s to believe th at the du e proce ss clau se wa s deleted entirely from the In dian Constitutio n . The thesis of this wo rk is th at In dian subs tantive due pro cess resembles Ameri can doctri ne in three spheres: i) harmonio u s constitutio nal interpretation, beginning w ith the end of the influen ce w ielded by A .K. Gopalanv. State of Madras20 an d culminating in the ba sic stru ctu re theory and the "arb itrari ness" test where the "essen ce" or core" of constitution al pr inciple wa s de rived from II

text, much in the same manne r as the approac h adopted by Cardozo an d Frankfu rter JJin the ''fe de ral state" due proce ss cases; ii) the tests of constitut ional "reason ableness" and "arbitrarine ss", especi ally the "ne w" doctrine of "arbitrar ine ss" w hich permitte d substan tive scru tiny of p ersonal libe rty de pr ivations un de r Article 21, althoug h th e doct rine was hinged on Article 14- an undoing of the deletion of the due pro cess clau se, attributed in this w ork to th e moral authorita tivene ss of Khann a J's dissent in A D1vt Jabalpur W7 v. Shi'vakant Shukla21 an d the cour t's subseque nt attem pt to redeem itself; an d iii) the creation of "new" or "unenumerated " rights un de r Article 21 in a phenomenon some times referred as the "right to life jurisprudence " w here righ ts associated with pr ivacy or dignity were created , although these we re not declared "fundame ntal" un derstood as hierarchically super ior to other con stitu tion al righ ts. There can be no do ubt th at this book only scratches the su rface of the sub stantive due pro cess icebe rg . Its purpose is to give the rea de r a flavour, but not a five cou rse meal , a sample , though not surfeit. At its bes t, the analysis in this boo k me asures th e unh appy inter section

between the court' s "bas ic stru cture " an d arbi trariness" doctrines, gro un ding them in a form of constitu tional interp retation whic h can best be de scribe d as substa ntive du e pro cess. At its wo rst, this book attem pt s a compara tive analysis of constitut ional due pro cess do ctrine and vent u res a definition for substantive due process in Indian const itutio nal law . 11

l. See infra, tex t acco 1npan y ing O,ap. II. 2. 11, es e wo rds appe ar to be der ive d fron1 Art. 31 of the Consti tution of Japan [Nih onkok u Kenpo (1946)]. See, A.K. Gopalan v. State of 1\1adras,AIR 1950 SC 27, para 23. 3. See infra, tex t acco 1npan y ing O,ap. II. 4. Ale xander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (196 2) 25 . 5. Gar y Jeffre y Jaco bsol u1, Apple of Gold: Constitutiona.lism in Isra.el and the United States (1993). 6. United States v . Carolene Products Co., 82 L Ed 1234: 304 US 144 . 7. Jolu1 Hart Ely, D emocracy and Distrust : Theory of Judicial R eview (Har var d 1980 ) 73- 104 . 8. 49 L Ed 937: 198 US 45 (1905) . 9. See, Maneka Gandhi v. Union of Ind ia, (1978) 1 SCC 248 . 10. See, T.L. Je1uungs , The Responsible Exercise of Judicial Power: In Defence of a Politica.l Court (1990) Disser tation ; Joseph D . Grano , "Ju dicial Review an d a Wri tten Co n sti tu tio n in a De1nocra ti c Socie ty" 46 Way n e L Rev 1305 .

11. Joseph D. Gr an o, "Ju dicial Review an d a Written Constituti on in a Den1oc1·atic Society " 46 Wayn e L Rev 1305, 1318. 12. Cases th at do n ot in volve "hu1dan1ent al right s" tri gger a 1nilder fom 1 of "ration al b asis " rev iew. See, Roe v. Wade, 35 L Ed 2d 147: 410 US 113 (1973); Washingto n v. Glucks berg, 138 L Ed 2d 772: 521 us 702 (1997). 13. Grisw old v . State of Conne cticu t, 14 L Ed 2d 510: 381 US 479 (1965); Powell v. St ate of A laba1na, 77 L Ed 158: 287 US 45, 67 (1932); H erbert v. Stat e of Louisiana, 71 L Ed 270: 272 US 312, 316 (1926). 14. The catego risa tion ap proad 1, howeve r, is not free fro1n criti cis1n eith er . See e.g., N ote, "Strict Scn 1tiny in th e Midd le Fon lll1" (2009) 122 H arv L Rev 2140. 15. R eno v. Flores, 123 L Ed 2d 1: 507 US 292 (1993). See fii rther, Kon1ll1ers, "Gem1ai1 Constit uti on alis1n: A Prolegon1e non " (1991) 40 E1nory LJ 837, 843 (disc u ssing th e con cep t of ai1 "objec tive ord er of val u es" in Gern1a11consti tuti onal law ). 16. See e.g ., V La.xminarasamma v . A . Yadaiah, (2009) 12 SCC 544; Bombay Dye ing & Mf g. Co. Ltd. (3) v. Bom bay Envio rnm enta.l A ction Group, (2006) 3 SCC 434; Charan Lal Sahu v. Union of India, (1990) 1 SCC 613: AI R 1990 SC 1480; Tinsu khia Electr ic Supply Co. Ltd. v. Stat e of. A ssam, (1989) 3 SCC 709; Kesavananda Bharati v . St ate of. Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461; A .K . Gopalan v . Stat e of M adras, AIR 1950 SC 27. 17. See e.g ., Dalmia Cemen t (Bharat) Ltd. v . Union of India, (1996) 10 SCC 104; Stat e of A .P. v. Mc Dowell & Co., (1996) 3 SCC 709. 18. Selvi v. Stat e of Karnata.ka, (2010) 7 SCC 263. See f11rther, Abhin av Chai 1d1·ach u d, "Of Constih1tional Du e Process ", The H in du, 24-5-

2010. 19. 49 L Ed 937: 198 US 45 (1905). 20. AIR 1950 SC 27. 21. (1976) 2 sec 521: AIR 1976 SC 1207.

W9ll. Meaning Proce ss

of Sub stantive

Due

1. Origins of "due process of law"

Th e 39th Cha pter of King John 's Charter of Libe rties, po pularly referr ed to as the "Ma gna Charta" 1 of 15 June 1215, or as th e original Runny me de Ch arter, and th e 29th Ch apter of the mo re po pularly known version subsequ entl y reissued by Henr y III in 1225, is said to have conferred upon a subject the right to trial by due pro cess of law .2 The 39th Chapte r of King John 's Ch arter of Libe rties provided th at " [n]o freema n shall be arr este d or detai ned in prison, or de prived of his freehold, or outlawed , or banished, or in any way

mo leste d : an d we will not set forth aga inst him, nor sen d aga inst him, un less by the lawful judgmen t of his p eers an d by the law of th e lan d ."3 The phr ase "law of the land" or per legem terre wa s held to mean "a law w hich he ars before it condemn s; which pr oceeds upon inquiry , an d rende rs jud gment s only after trial" .4 Cha pter 3 of 28 (statut e of Edwar d III) u sed the phr ase "due process of law" instead.5 Thi s 1354 sta tut e provi ded that no person llJ 1o could be evi cted, disinheri ted, impr isoned or executed "wit hout being broug ht in answer by du e pr ocess of law " .6 Similarly, the Petition of Right to Charle s I conta ined th e wo rds due pro cess of law ". Lord Coke in his comm ent ary said that th e wo rds "law of th e land" me ant "due proc ess of law",7 and thereafte r the two phr ases seem to hav e been used interch ang eably .8 H owever , as a histor ical do cume nt, the Magna Carta was an odd pl ace to find the origin s of the "keystone of Eng lish liberty" 9 an d of modem freedom from "arbitrariness" . Simp ly stated, the Charter me ant to prot ect feuda l ba ron s aga inst the tyranny of an 11

"un scru pulou s and opp ortuni stic1110 King. 11 It was a reiteration of feudal custom, 12 and marked me rely th e first skirmi sh" in the tu ssle betw een the feuda l baronage and bu reaucr acy in the King's Council or curia legis.13 "Due pro cess" type rights we re me ant to accru e only to th e "free man" i.e. the liber homo or mem bers of the pr ivileged feudal class especially tho se th at held lan d in terms of military tenu re,14 a declaration which did not profess any un derlying assumptio ns abou t the freedom of all men. In fact, besides the conten ts of wha t we novv knovv as Chapter 29 of the Magna Carta, th e Magn a Carta listed out un controver ted feud al rights, most pro minently that no arbitrary taxes could be levied except with the consent of archb ishops, bishop s, earls, barons, knights, burg ess and other free men " .15 King John was said to have disp atched me ssengers to per sua de the Pope to decla re th e Charter invalid .16 The Magn a Carta could not shield the pop ulace from "Tudor despotism" .17 The Magna Carta' s hi storical origins lay in th e tu ssle betwee n King John and th e ba ronia l class. In Jun e 1215, 11

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King John had rul ed for nearly 16 years, bu t his reign ha d not been entirely su ccessful. H e W 11 had been driven out of Norman dy by Phili p of Fran ce. A civil war ha d eru pted within th e coun try and the ba rons ha d ta ken control of London . Most impor tantly , King John ha d been excommuni cate d by Pope Innoce nt III for his oppo sition to th e appo intmen t of Stephe n Langto n as the Archbishop of Canterbu ry. The coun try was un de r an interdict. Brilliantly enoug h, King John tu rned aroun d, accept ed the appointme nt of the Archbishop of Can terbu ry an d became a cru sader. With th e Pop e now on his side, he attempted a tru ce wit h the baro ns. Th e two sid es met at wha t Chu rchill called the " dicey" 18 Runny me de meadow, betw een Staines and Windsor. 19 The Magna Carta reflected their comprom ise. Int erestin gly, certain pr ovisions of the Magna Car ta soug ht to protect th e feud al ba ronage from the heavy fees of the itine ran t "ju stices of assize" that ha d usurped local judici al administration .20 In fact, the "due proc ess" clause of the Magn a Car ta is said to have conferr ed th e following right upon feud al ba rons: "The King's just ices shall not decide crim inal cases where a tena nt in capite

1s the defendan t, unles s the said justice be also of baronial rank " .21 As a conseque nce, even m contempo rary time s, peer s could de man d trial before the Hou se of Lord s, unt il this pr actice wa s aboli shed in 1948.22 It is interestin g to note, therefore, that the Magna Carta, despit e its so called "du e pr ocess" clau se, soug ht to curb th e po w er of the royal jud iciary, rather th an conf er far reachin g po wers upon it. By man dati ng that the "King is an d shall be below the law ", 23 wh at the Magn a Carta did do was m ark the first step in achiev ing the supr em acy of law over the king . Howeve r, the ide as animati ng the Magn a Carta became mo re w ide ly know n as a consequence of "misconstru ction" in the 17th century , no t of constru ction in the 13th century .24 The idea of the "due pr ocess of law" in the Magn a Carta has bee n compa red in relatively recent time s to the ''supremacy of the law "25 an d "ru le of law " i.e. th e definition of W12 sub stan tive rights an d th eir vindi cation throug h the "machin ery of courts " .26

Wh ile th e idea of the due pr ocess of law in the Magn a Carta milita ted aga inst the arbitrary action of an absolu te mo nar ch, it did not militate aga inst valu e choices made by the British Parliament .27 Th e restrictions placed by the Magn a Carta on the King have been said not to have been rega rded as limi tations upon the legislative power s of Parliament.28 It could perh ap s mo re easily be u sed by the British Parliament rather than aga inst it 29 mu ch of the 17th centu ry distortion" of th e mea nin g of Magna Carta resulted from parliame ntary vo ices such as B akewe ll, Eliot, Pym and H amp den again st the royal pr eroga tive exercised by Jame s I and Charles I.30 In fact, any references to the Magna Carta as th e sou rce of liberties has bee n equat ed w ith the ignoran ce of historical resear ch,31 and the British Parliament has been said capable of abolishing the Magna Carta.32 In this cont ext, it is interestin g to note that Lord Coke and Blackstone differed in their un de rstanding of th e Magna Carta' s ability to overr ide law s enacted by the British Parliame nt. In Lord Coke's view , the phr ase "per 11

lege·m terre" de rive d from "natu ral law" an d could consequ ently overr ide actions of Parlia ment.33 For example , in 1610, Lord Coke in the Dr. Bonham. case34 said : It app ears in our boo ks, th at in n1any cases, the con1mon law w ill cont rol acts of Parliam en t, an d son1etime s adju dge then 1 to be utterly void : for when an act of Parlian1ent is aga inst con1n1on right an d reaso n, or repu gnan t, or imposs ible to be perforn 1ed, the con1mon law w ill cont rol it an d adjudge such act to be vo id. (emphasis supp lied ) Accord ingly, it is said th at Coke believe d that per leae ·m 0 terre" included natu ral law that Parliame nt could not overr ide . lill 13 On the othe r han d, Blackstone35 was believe d to 11

have rejected Coke's broad categor isation .36 In his comme ntaries of 1769, Blackstone said th at due pro cess merely protected every in dividua l in the nation in the free enjoym ent of hi s life, his liberty and his prope rty, un less decla red to be forfeited by the judgme nt of his pee rs or the law of the lan d" .37 In Blackstone's pre sumed un derstan ding , the Magn a Carta and its 11

rights w ere no t inte nded to limit the actions of the British Parliament. It is non ethe less important to consid er th at the "due proce ss of law" as derived from the Magn a Carta was not unde rstoo d very liberally in Eng lan d . Even Coke did not be lieve th at courts could ad d to the list of proce du ral ru les. Fu rther, to Coke, "life" invo ked capital puni shmen t, "liberty" phy sical restrain t an d "prope rty private wealt h,38 not abor tion, ho mo sexuality an d welf are benefit s. Similarly , in relatively recent time s, the Magn a Carta has ~ot been given th e status of a w ritten constitutio n by Eng lish courts, althoug h it may have be en invoke d within context s unr elated to statu tory challenge.39 For exampl e, in Chesterv. Bateson40, it w as cont ended before the King's Bench Division that Regulation 2A (2) of the Defence of the Realm Regul ations, w hich pro hibited pe rsons from accessing courts, violated the Magna Cart a, whe re the King declared : "to no one will we sell, to n? one will we refu se or delay right or justice Darling J refuse d to accept th e argume nt, hold ing that the Magn a Cart a was not immune to ch ange . 11

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Magn a Cart a has not ren1ained un touche d; and , like every other law of England , it is not condemned to that immunity fron1 developmen t or improvement which was attribute d to the laws of the Medes and Persians .41 H owever , the Magna Carta exer ted a profound influen ce on the develop ment of con stitutiona l law in the British colonie s,42 an d wa s par ticularly visible in the 5th Amendment to the Amer ican Con stitution. On the eve of the ena ctment of the Amer ican Constitut ion, the app arent tu ssle betwee n Lord Coke an d Blackstone (the latter' s commentaries had been publi shed only a few de cade s before the Amer ican Con stitu tion and lill 14 Bill of Right s were ena cte d) may have shaped Amer ican con stitutiona l choi ces. Frank Easterb rook believed that the Amer ican framer s thought Coke righ t an d rejected Blacksto ne 's view. 43 The do ctrinal deve lopment s of the due pro cess" clause in the 5th Amendment an d later 14th Amendment to the Amer ican Constitut ion with its his tori cal origins in the Magna Car ta, have charted a more pronoun ced and piquant trajectory con sequent to the Constitut ion's empha sis on expres s limi tation s on legislative authority an d on jud icial rev iew . 11

2. "Substantive due process" in American constituti onal Ia,v 2.1. The doctrine of inco1poraJion versus ordered liberty

The "due proce ss" clause of the 5th and 14th Amendment s to the Ameri can Con stitu tion have a unique , hi stor ically acquired signifi cance. The orig in al text of the American Constitut ion propose d by the Philade lphi a convention 44 carried provi sion s tha t dea lt with the stru ctu re of government , while the first 10 amendment s45 pa ssed by the first Congres s of the US, deal t with ind ividual right s.46 The 5th Amendment to the Ameri can Constitut ion, which app lied aga inst the federal Government , contained a due pro cess" clause wh ich seemed to bo rrow from New York' s guaran tee of libertie s ado pted on 17 January 1787, and provided tha t the federa l Government may not deprive any per son of "life, liberty or proper ty without due pro cess of law " .47 For 65 years , the clau se wa s no t signifi cantly interpreted by the Amer ican Supreme Cour t. According to Easterbrook , it "fell into de suetu de" becau se it "sta ted an uncontrove rsial princi ple that wa s expe cte d II

W15 to be trivial" .48 Kent 49 and Story 50 believe d that it was mea nt only to apply to criminal trials. Althoug h some scholar s believed th at the "due pro cess" clau se mandate d nothing mo re than mere process to de pr ive "life, liberty and proper ty", the clause was soon un derstood as a "due fair process" or "proce du ral due proc ess" clause,51 requi ring at least the observ ance of "fun da men tal" 52 establi shed pro cedu res. For examp le, in Murray v. Hoboken Land and Improvement Co.53 (i\1:urray), the Supre me Cour t emp h asised th at Congres s wa s not pe rmi tted to enac t any process, bu t "due " pr ocess. This case, whi ch is said to be one of the first due proc ess cases w hich arose in Ame rican const itutional jurisprudence , was de cid ed in 1855, sever al decade s since the enactme nt of the Bill of Right s in 1789. It was her e that the origin s of the "due proc ess" clause were tr aced to the Magna Car ta, even as the court seemed to empha sise the wo rd " du e" in the phra se du e pr ocess" . The court observe d: That the warran t now in question is legal process, is not den ied . It is issued in conforn1ity with an act of Congress. But is it 'due process of law'? The Consti tution II

contains no description of tho se processes which it was intended to allow or forbid. It doe s not even declare what principles are to be applied to ascertain whether it be due process . It is manife st that it was not left to legislative power to enact any process which n1ight be dev ised . The article is a restr aint on the legislative as well as on the executive and judic ial powers of the governmen t, and cannot be constr ued as to leave Congress free to n1ake any process 'due proce ss of law' by its mere will. In 1877, it wa s reiterate d by the American Sup rem e Court that the "du e proc ess" clau se is derived from th e Magna Car ta.54 Since the Supre me Court's opinio n in Mugler v. Kansas55, the du e pr ocess clause wa s held to hav e a sub stantive compone nt as we ll, wh ich opera ted irrespe ctive W16 of the fair ness of the pro cedu re involve d.56 Significantl y, the 5th Amen dm ent did not ap ply to the State Governme nts, a position th at wa s strongly em phasised in 1833 by Ma rshall CJ in John Barron v. Mayor and City Council of Baltimore57 _ 2.1.1. Origins of federal state due process

Much of th e do ctr inal developm ents of the " due proc ess" clau se in Am erican constitut ional hi story ha d their origins in a notor ious civil righ ts case, Dred Scott v. Sandford58 (Dred Scott). Due proce ss cases whi ch are ter me d here as ''federal sta te" du e pr ocess cases, for th e manner in wh ich fede ral right s wer e held ava ilable again st th e State Gover nment s, sprang from Congr ess' s attem pts to reverse the Ameri can Supr eme Court's holding in this case. In Dred Scott case59, th e Ame rican Supr eme Cou rt conside red the question whet her th e plaintiff, Dred Scott, a "negro slav e" of "African des cent", wa s entitled to the righ ts, priv ileges and imm uniti es gua ran teed by the Ame rican Constitu tion, one of wh ich w as the righ t to "sue in a court of the Unit ed States" .60 Dred Scott, who ha d be en sold togeth er with his wife an d two child ren to the de fendant, John Sanf or d, br ough t sui t for his freedo m in the Circuit Court of St. Lou is coun ty. Slav ery at the time wa s legal in some State s and illegal in others. H aving trav elled w ith his "m aster and ow ner" thr oug h ter ritori es wh ere slavery was illega l, Dred Scott argu ed befor e th e Supr eme Court th at he had become a

US citizen and wa s entitled to the privi leges an d immun1hes of citizenship, includ ing the right to su e. H ow ever , the court drew a distin ction be twee n citizenship of the Uni on and citiz enship of the Stat es, an d he ld by a majority of 7 : 2 tha t Dred Scott wa s not a citizen of the Uni on by having tr avelled thro ugh territories whe re slavery w as abolished, since the Con stitu tion only app lied to pe rsons who w ere at the tim e of the adop tion of the Constituti on recognised as citizens. It was held th at "no state ... can by natura lizing an alien invest him with the rights an d pr ivileges secu red to a citiz en of a State unde r th e Fede ral Government ..." or of any oth er State.61 According ly, Dred Scott wa s denied the right to su e, an d held not entitled to th e right s, pr ivileges an d immuni ties to w hich citiz ens of th e US are ent itled .62 It is impo rtant to consider th at the case tu rned on the ho lding that Dred Scott wa s not a US citiz en (as liJ 17 op posed to th e citizen of any State ). Only "citizens" had the right to sue. Th e "slav e", Dred Scott, wa s not a citizen of the Union at the tim e of the en actm ent of the Const itution. Similarly, Dred Scott was not a citiz en of any State in the opini on

of the cou rt. Accordi ng ly, follow ing the civil war , Congress soug ht to redefine what it me ant to be a citizen of the Union , an d to rever se the Dred Scott case63, so that even forme r "slave s" coul d sue, being right fully "citizens of th e Union ". Th e amendmen ts to the Constitut ion ma de du ring this era arguab ly produce d the first federal sta te du e pro cess case. It is also important to view this case throug h the pr ism of "procedu ral due pr ocess", discussed later on. By denying Dred Scott the righ t to sue, the court ha d denied him jud icial access, a value inheren t in proce du ral due process. Follow ing the civil war , Cong ress en acted con stituti ona l amendme nts popularly referred to as the "recon struct ion amendme nts" . These were three in num ber. The 13th Amen dment abolishe d slavery . The 14th Amen dme nt confer red civil right s on all State citizen s. The 15th Amen dment granted vo ting righ ts regardle ss of "race, colour or previous condition of servitude " . Ratified be tween 1865- 1870,64 each of these sought to reme dy the ills of slavery . Each of th e

recon stru ction ame ndments authorised the US Congres s to enforce its provi sions by app ropriate legislation" . The 14th Amendme nt to the Amer ican Con stitu tion ap plied aga inst the Sta tes. Section 1 defined nationa l citizenship an d said, "All p ersons bor n or n atur alized in the Un ited Sta tes, an d subject to the jurisdiction thereof , are citizen s of th e Un ited State s and of the Sta te wherein they reside " . Going forward , the section provided that a Sta te shall not "abridge th e pr ivilege s or imm uniti es of citizens of the Unit ed States; no r shall any Sta te deprive any person of life, liberty, or proper ty, wi th ou t due pr ocess of law; no r deny to any pe rson within its jurisdiction the equal pr otection of the law s." 65 H ere aga in, the due process clau se appeared to be a fair pr ocess or "pro cedu ral due pr ocess" clau se, whi ch m an dated that th e State establish fair proce du re before effecting libe rty or other depr ivatio ns. Intere stingly, the right to equ ality under liJ 18 the American Con stitut ion as a con seque nce w as only gu aranteed by the 14th Amendmen t ag ainst the States, although no comp arab le pr ovision existe d whi ch prote cte d citizen s ag ainst "unequal " actions of the fede ral Government .66 II

Conside ring that in the Dred Scott case67, the American Supr eme Court had restricted th e pow er of Congress to pr ote ct slaves, former slave s an d their de scendan tsI as · · citizen s, 68 th e en actm ent of the ''pr ivilege s and immunitie s" clau se of the 14th Ame ndme nt and its wi de r definitio n of citizenship, brought with it the hope that right s available to Amer ican citizen s would thereafter app ly to "s laves" as well. 69 H oweve r, this was not to be . Soon after the enactme nt of th e reconst ru ction amendm ents, in an opinion which dispo sed of thr ee cases referred to as the "Slaug hter-Hou se Cases 1170, the Ame rican Sup reme Court in 1872 refused to interpret the "pr ivileges an d imm unities" clause of the 14th Ame ndme nt as conferr ing again st the States fund amental freedoms available against Congress. The plaintiffs, a group of N ew Orle ans bu tche rs, challenged a statut e ena cted by the legislatu re of th e State of Loui sian a which confer red a monopoly upo n the Crescent City Live-Sto ck Lan ding and Slaug hter-H ou se Comp any. Ironi cally, the bu tchers hir ed Mr John Campb ell as th eir lawyer , a former Supr eme Court judge who had concurred wi th the Dred Scott case

m ajor ity and had sin ce retired from the judi ciary . Int erestingly, one dissenting judge , Swayne J, foun d that the reconstructio n amendme nts rose to the dignity of a new Magn a Charta" _71 The statute w as challenged on the pr incip al grou n d that it de pr ived citizen s of the right to exercise their tr ade, consequently infringing the "pr ivilege s an d immunitie s" clau se of the 14th Ame nd ment. The court drew a distin ction between th e privilege s an d immunitie s of citizens of the States an d of citiz ens of the Uni on once more, holding th at whil e the 14th A~~ nd ment pro hibite d States from inf ring ing the pnv 1lege s an d immunitie s of citizens of the US, it did not pro hibit Sta tes from infringing the pr ivilege s an d immuni ties typica lly associated wit h lill 19 Sta te citize nship . Con sequ ent to thi s decision, th ere was a distinction betwee n two "distin ct citizen ship s, State an d national , each with its own distin ct set of concomitant rights" ?2 Speak ing for the m ajority, Miller J held that all "fun da mental rights" were right s associate d wit h State citize nship an d could consequently be abridge d by the Sta tes. On this view , very few rights accrue d to Union II

citizen ship , an d the 14th Amendment only pr ohibite d the State from infrin ging righ ts accru ing to citizens hip of the Union . Accor dingly , nearly all the right s cont ained in the Bill of Rights cou ld, on thi s view, be infr inged by the Sta te Gove rnme nts notwith stan ding the 14th Amendme nt. While the federal Government could not infr inge the Bill of Rights, the State Governm ents we re free to do so. All the State Governme nts were pr ohibited from do ing w as infringing righ ts which "owed th eir existence to the federal Gove rnmen t", e.g. the righ t to free access of sea po rts, the righ t to peaceably assemble an d petition for redres s of grievan ces. In sho rt, following the Slaug hterH ouse Cases, the righ ts contained in the Bill of Rights could be infr inged by the State Gove rnme nts, despite the 14th Ame ndment . The "privilege s an d imm un ities" clause of the 14th Ame ndment only requi red State Gove rnme nts to refrain from infringing tan gential righ ts associated with "federal citizen ship " . To overcome this inter pr eta tion, the Amer ican Supr eme Cour t wou ld hav e to devise a new w ay to app ly righ ts con tained in the Bill of Rights ag ainst the State Governmen ts.

Stran gely eno ugh, it was the result of this seem ingly inno cuou s opini on involving the butche rs of Ne w Orlean s, that attem pts by Congre ss to "enforce " the reconstru ction ame n dment s by the enactme nt of statute s were thwarte d by the Supreme Court.73 Rights typically an smg ou t of State citizens hip were uns u ccessfully enfor ced in thi s per iod . For examp le, provis ions of the Civil Rights Act, 1883 whi ch sough t to make racial discrimination illegal were declared unco nstitut ional,74 as we re attem pts by the US Cong ress to outlaw racially motiva ted crime s,75 or ra cially motivated attempt s to deprive per sons of constitutio nal rights.76 Similarly, Sta te law s th at bu rd ene d vo tin g by racia l mino rities were upheld .77 These cases tu rned on the holding that Sta te citizenship wa s distin ct from Uni on citizen ship , and that Sta tes were not prohib ited by lill 20 the "pr ivilege s an d immuni ties" clau se of the 14th Amendmen t from infring ing right s typically associated wit h State citizens hip as distingu ishe d from Uni on citizen ship . The Slaughte r-H ou se Cases certainly had civil rights imp lication s. H owever , besides its civil rights

impl ications, it also had broader due pro cess" impl ications con cernin g no t just minority group s. For examp le, the American Supreme Court soon found th at the prohib ition agains t cruel and unusua l puni shment in the 8th Amendme nt,78 the right to jury tri al in civil cases guaranteed by the 7th Amendme nt,79 an d to jury tri al in criminal cases an d requiremen t of indi ctment for cap ital or inf amou s crime s guar ant eed by the 5th an d 6th Amendment s,80 did not app ly to the ''privileges and imm un ities" clau se of the 14th Ame n dmen t. In Twining II

v. New Jersey81, the accused was denied the privilege against self-incriminat ion, notwith stan ding the 5th Amendmen t. Similarly, in Snyder v. Massachusetts82, the accu sed was denied an opportunity to view the scene of the crime along with the jury de spite the 6th Amendmen t.83 In thi s manne r, several "due proce ss" right s availab le aga inst the feder al Government were held inappli cable to the States. 2. 1.2. Early incorporation : the Cardozo- Frankfurter approach

The do ctrine seemed to show signs of change somew here around 1925, in a case th at could hardly be de scribed as a conventiona l criminal due proce ss case. In Gitlow v. New Yorl!.34, the Amer ican Supreme Cour t considered the const itutional valid ity of a New York stat ute which rendered illegal any speech th at advoca ted the over thr ow of organi sed governmen t by force. The 1st Ame ndment 's protection of the freedom of spee ch applie d only against the federa l Government. The law challenged in the case was a New York State law, an d the 1st Amendment did not apply to the State of New York. Sanfo rd J, who delivered the opinion of the court, found tha t the freedom of spee ch was a part of the right to "libe rty" pro te cte d by the due pro cess clau se of the 14th Ame n dment . Similarly , in his dissent, H olme s J found the general pr inciple of free speech " included wi thin the 14th Amendme nt. 85 In thi s manner , the 1st llJ 21 Amendment's right to free spee ch became available aga inst the State Government s un der the due proce ss" clau se. The que stion that occup ied the court in this phase of its jurisprudence was: if the Bill of Right s doe s app ly to the II

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States, to wh at exten t must it app ly? A decad e later, in Palko v. Connecticut86 (Palko), the Ameri can Supreme Court considered w hethe r the double jeopa rdy proh ibition cont ained in the 5th Ame ndm ent appl ied again st the States un der the 14th Ame ndm ent. Whi le an sw ering this que stion in the negative,87 Cardozo J recognised that certain provisions of the Bill of Rights, mo st notab ly the rights to speech and religion contained in th e 1st Amend me nt, an d of an accused to counsel , had become implicit in the concept of "orde red liberty" and were conseque ntly enfor ceable again st the States.88 In recogni sing this except ion, Cardozo J em phasised th at th e 14th Amen dment would prot ect only rights of the very essence of a scheme of ordered liberty" the violation of wh ich wou ld strike again st a "pr inciple of justice so rooted in the trad itions and conscience of [the] peo ple as to be ranke d fundame nt al" .89 In articula tin g this idea, Cardozo J spoke of absorption" i.e. that fede ral right s were abso rbed " int o the reconstru ction ame ndm ents but not in th eir entirety, holding th at "the pr ocess of absorption [must have] its sour ce in the belief that neithe r liberty II

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no r justice wou ld exist if [th e rights to be absorbed] were sacrificed " .90 Accordingly, Car dozo believed that not all rights in the Bill of Rights could be incorp orated w holesale into the 14th Amen dment. Instead, only those rights wou ld app ly which were pivot al to "orde red liberty". It is impo rtan t to consider th at th e right involve d in the case i.e. doub le jeopar dy, was proc edu ral, but the question was, could it substanti vely be rea d into the 14th Ame ndm ent? Althoug h the court answered the ques tion in th e negative, its absorption" language left open the possibility of court s substantive ly rea ding federal value s into the 14th Ame nd men t. H owever , not everyo ne in th e court accep ted thi s ap pr oach to du e proc ess. In 1942, the Supreme Cou rt considered th e que stion of whe ther a State w as man datorily required to provide State coun sel to th e accused in a trial , as the 6th Ame ndm ent require d the federal Governme nt to do . In Betts v. Brady91, the court answered th e que stion in th e negative , llJ 22 while holding that any denial of "fun dam ental fairness, shocking to th e univ ersal sense of ju stice" 92 may be u sed to hold the States to extra constitu tional stan dar ds. II

In a vociferou s dissent, Black Jfoun d that the discussion of the 14th Amen dme nt by its sponsors demonstrated their pur po se to "make secu re again st invasion by th e states th e fun damental liberties and safeguar ds set out in the Bill of Rights" .93 Accord ingly, Black Jadvocate d a wholes ale in corpo ration of rights into the "due process" clause of the 14th Amen dm ent. A decade after th e cou rt's opinion in the Palko case94, in 1947, in A damson v . California95, Frankfurte r J resumed whe re Car dozo J had left off, an d found that the du e pro cess clauses in the 5th an d 14th Ame nd ment s were cap able of meanin g different th ings, and that the 14th Ame ndm ent emph asised can ons of de cen cy an d fairne ss which express the notio ns of justice" but divorced of the "idiosyncrasies of a me rely personal judgme nt" .96 In this case, the court considered the constitu tionality of a Californi a State law which ena bled cou rts to presume that the accused in a crimin al trial was guilty if he refused to take the stand. The case centre d aroun d the question of whet her the selfincrimin ation clause of the 5th Amendment app lied to the State s. The court held that the Californi a State law

w hich perm itted admissions of guilt when the accused did not take the stand was constitut ional.97 Frankfurte r J advoca ted a mea sured app roach to due pro cess incorpo ration, focu sing once more on ''not ions of justice" . H owever, in a strong dissenting opinion which retra ced the drafting of th e 14th Amen dme nt, Black J he ld th at the pro visions of the Bill of Right s were mea nt to be m ade applicable to the States by the en actme nt of the 14th Ame nd ment.98 The "ant agonism" betw een Frankfu rter an d Black JJ became well know n .99 Ho w ever, Black J's view neve r seemed to gain wi despr ead accep tance.

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2.1.3. Selective incorporation

The War ren Era,lOO name d after Earl Warr en CJ, seemed to bring with it a greate r tole ran ce of th eories that soug ht to incorporate the Bill of W 23 Right s into the 14th Ame nd ment. In 1960, the cou rt foun d itself divided on the question of w hethe r a judgment of the Ohio Supreme Cou rt ought to be affirmed or reve rsed on ap peal. Stewa rt J did not p articipate in the court' s decision in Ohio v . Price101 an d consequently , the court' s

decision split evenly (i.e. 4 : 4). Accord ingly, the judgm ent wa s affirmed ex necessitate. Th e Ohio Supre m e Court ha d held th at inspe ctors had the right to ent er pr ivate dw ellings without probable cause. The 4th Amen dment shielded citizen s from any unr eason able search and seizure carried out by the federal Gove rnme nt, bu t m ade no me ntion of the State Gove rnme nts. Whi le dep artin g from th e no rm that in equally div ided courts (whose decisions shall not constitut e precede nt ), no op inion should be expressed, Brenn an J spoke for fou r ju stices in hold ing th at th e lovver court's order deserved to be rever sed. In his opini on, Brenn an J highligh ted the two extremes_in the manne r in whi ch th e Bill of Rights int eracted wi th the 14th Ame ndmen t. H e highlighted Frankfurte r J's posit ion on the one han d th at found that the 14th Ame ndm ent incorpo rated nothi ng, but wa s foun ded on pr incipl es of "or dered liberty" an d "fairne ss", requir~ g States to be fair. Nex t, he hi ghlight ed Black J's empha sis on wholes ale or general incorpo ration of th e Bill of Righ ts into the 14th Ame n dme nt. In his opin ion, Brenn an J advocated a compr omise betwee n th e two appr oaches, an " ad-hoc" app roach, one of "selective

incorpo ration", where Bill of Rights que stions ag ainst the Sta tes were to be solved by jud ges on an ad hoc basis, accor ding to their overall reaction to pa rticular cases",1°2 citing Cardozo' s J opinion in th e Palko case with its em pha sis on absorptio n" as pr ecedent . It was only du ring the Warren Era that Black J's dissent wou ld resonate with a pa rt of the majority. In Duncan v. Louisiana103, the Supreme Court was concern ed wi th th e qu estion of whet her the accu sed in a criminal case cou ld dem and a jury trial in a State, us ing th e 6th Amen dment (whi ch app lied to the federal Gove rnmen t) to suppo rt the claim . Speaking for the Supreme Court, Wh ite J acknowledged th at the Bill of Rights had on several occasions been held app licable against the States: the te st to determine wheth er a right availab le aga inst th e federal Gove rnmen t were also available aga inst a State unde r the 14th Amen dment wa s to determine w hethe r the right wa s amo ng "fundame ntal pr incipl es of liber ty and ju stice which lie at the ba se of all our civil and po litical institu tion s" .104 In a concu rring opin ion, Black J W 24 reiterated his view i.e. th at "the Fou rteent h 11

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Ame ndm ent, as a whole , m akes th e Bill of Rights appli cable to the Sta tes" .105 Accor dingly, du ring the Warr en Era,106 the incorp oration of the Bill of Right s int o the 14th Ame ndm ent began to gain a greater foothold . Right s such as those again st unr easonable search an d seizure,107 self-incrimin ation,108 an d rights to counsel, 109 an d jury trial, 110 we re held incorporate d within th e 14th Ame ndme nt again st th e Sta tes. H oweve r, besides typi cal criminal du e pr ocess right s, the du e pr ocess clau se was also used to pr otect rights of speech 111 an d religion 112 again st the State Gove rnm ents. 2. 1.4. Conclu sion

According ly, the fede ral state due pr ocess cases were con cern ed wit h wheth er an d to w hat extent rights available again st the fede ral Government would be available against th e Sta tes. Yale Law scholar, Akhil Reed Ama r 113 iden tifies that thr ee schools of th oug ht eme rged: i) The first, advo cated by Frankfu rter J (and

po ssibly Cardozo J),114 emphasised that th e Bill of Right s was never incorporat ed int o the 14th Ame nd ment, and th at instead, the 14th Ame ndment only requ ired th e States to act according to pr inciples of "fun da mental fairness" or ordered liberty" whe re neith er liberty nor justice woul d exist if the rights we re sacrificed. In Frank furter J's own wo rds in an article that ap peared in the H arvard Law Review several yea rs later, due process of law en compas ses funda me ntal princi ples of fairn ess and not spe cific pr otections" .115 ii) The second, advo cate d by Black J, emp h asised th e w holesale incorporation of th e entire Bill of Rights w ithin the 14th W 25 Ame ndment ;116 iii) Th e thir d, advo cated by Brenn an J, em ph asised the p artial or "selective " incorp orati on of th e Bill of Rights within the 14th Amen dment on an ad hoc ba sis. 11

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2.2. The doctrine of reverse inco1poration

Ironically, th e most vociferous pr opo nent s of the incorpo ration doctri ne, whi ch contem pla ted the intera ction between the Bill of Rights an d the 14th Ame nd ment, retract ed their stance when the stake s

were reverse d . The Bill of Righ ts did not con tain any "right to equality" provi sion cap able of app lication again st the federal Government . Whil e the 14th Ame ndmen t guaran teed the equal pr otection of the law s" against the State Government s, no comparable right could be claimed ag ainst th e fede ral Government. Thi s position became embarra ssingly appar ent du ring the Second Worl d War, when the comman ding general of a section of th e US army issued Civili an Exclusion Orde r No. 34, ba sed on Executive Orde r No. 9066. The orde r requ ired all per sons of Jap anese an cestry to be seque stered vvithin internmen t camp s, the Japa n ese attack on Pearl Harbor being only of recent memory. Toyo sabu ro Korem atsu, an America n citizen of Japane se des cent, was convicted in a Federal Cour t for rema inin g in San Lean dro, California , in viol ation of the orde r. In Korematsu v. United States117 (Korematsu), he challenged the orde r. Ironi cally, a majority which included both Black and Frankfurter JJ u pheld the execut ive orde r. Neither accepte d the pr opo sition that the right to equalit y available aga inst the State Governme nts was incorpo rate d or absorbed into the 5th Amendme nt II

aga inst th e federal Government . It was accordingly held that the due proce ss" clau se of the 5th Amendmen t did not incorp orate the 14th Amendme nt' s "equa l prote ction of the law s" gu arantee. In a dissenting opin ion, Murphy J held th at the or der deprived Jap an ese Ameri cans of the right to "equal pr otection of the law s" under th e 5th Amendme nt,118 alth ough the textua l pro visions of th e 5th Amendment ha d no such language . In a sense, Mu rp hy J had advo cated th e "reverse incorporat ion" of the 14th Amen dment right to equa l protection of the law s into th e 5th Amendment. lil 26 Murphy J's dissenting opin ion in the Kore·matsu case119 seemed to resona te almost a de cade later in Warr en's CJ opinion in Bolling v . Sharpe120 . The case challenged th e validity of segregation in the public schools of th e Distri ct of Columbia . The 14th Amendmen t with its equal protection guara ntee s did not apply to the District of Colum bia . Handing down the opin ion on the same day as the histori c lan dmar k, Brown v. Board of Education121 (Brown), Warren CJ was manife stly awa re of the problem be fore the court. II

The Fifth Amendment , w hich is applic able in the District of Colu n1bi a, does not cont ain an equal protect ion clau se as do es the Fou rteenth An1endmen t which app lies on ly to the sta tes. Bu t the concepts of eq ual protectio n and due process , bo th stemm ing from our American idea of fairness, are not mutua lly exclusive . The equ al pro tection of the laws is a more exp licit safeg uard of prohibited unfairness than du e process of law and , the re fore, we do not imply that the two are always int erch an geable phrases . But, as th is Cou rt has recogn ised, discrimin atio n may be so unj u stifia ble as to be viola tive of due process. 122 (emphasis supp lied ) I

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Th e opinion seemed to be long to the Frank furter school of thought in its reliance on the 'idea of fairn ess" as oppose d to the rigid incorpo ratio n of spe cific rights. Going furthe r, Warren CJ attempte d to define "liberty " un der the 5th Amendme nt as: 1

[Liberty] is not confined to mere freedom from bodi ly restraint . Liberty un der law extends to the full range of conduct which the ind ividu al is free to pu rsue , and it cannot be restrict ed except for a proper governn1ental objective . Segregat ion in pub lic ed u cation is no t

re asonab ly rela ted to any proper governn1enta l objective, an d thu s it imposes on Negro children of the Di strict of Columbia a burde n th at consti t utes an arb itrary depr ivat ion of the ir liberty in vio lation of the Due Proce ss Clau se.123

2.3. Funda1nental"unenunierated"rights

2.3 .1. The Lochner Era Decades before the cour t's incorporation versus "absorption" debate began, in 1905, th e US Supreme Court decide d a case that wo uld occu py th e "definin g" 124 space of the Amer ican consti tut ion al spectrum for roug hly the next thr ee deca de s. If not the first, thi s was certainly the mo st visible "sub stantive du e proce ss" case. Th e case was Lochner v. New York125 (Lochner), whi ch involve d a New York statut e that pro hibited lill 27 emp loyers from wor king emp loyee s in biscui t, bread, cake, bakery or confectio nary estab lishme nt s for more th an 60 hours per week or more th an 10 hours in a day. Th e defenda nt, Joseph Lochner , was convicted by the Oneida coun ty court in the State of New York of a misdeme ano r on an in dictme nt un der 11

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the statute 1 for overwo rking his employees in the city of Utica. The conviction was affirmed on appeal before two of New York's appe llate cou rts1 the Supreme Court (which is interestin gly no t New York's fin al ap pellate forum ) an d Cou rt of App eals. Agg rieved 1 Josep h Lochner broug ht hi s case before the Ame rican Sup reme Cou rt. Using Allgeyer v. State of Louisiana126 as a reference point 1 the Amer ican Supreme Cou rt in the Lochner case127 inva lid ated the N ew York minimum hou r law on the touchs tone of the 14th Ame n dme nt's "due proce ss" clause . Peckam J d elivered th e opinio n of the court an d held : The statute necessarily interferes with the right of contract between the employe r and employees ... . The general right to rnake a contract in relation to his business is part of the liberhJ of the individual protec ted by the 14th Amendment of the Federal Cons titution ... . The right to

purchase or to sell labor is part of the liberty protected by this amendme nt unless there are circums tances wh ich exclude the right. 128 (emphasis supplie d) 1

Art iculat in g a mean s-end test to scrutin ise th e infr ingement tha t legislative enactme n ts make u pon due proces s righ ts the cou rt went on to devi se a test th at wou ld appear to resonate in decision s of th e In dian Su preme Court sever al decades later. In every case that comes before thi s court 1 therefore1 where legislation of this character is concerned 1 and where the protection of the Federal Constitution is sought the quest ion necessar ily arises: Is this a fair, 1

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reasonable and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary , and arbitrary

interferencewith the right of the individual to his personal liberty ... " 129

(en1phasis supp lied) H olding th at the right of contr act was an ingred ient of the right to "liberty" pro tected by the due pr ocess clau se of the 14th Amendme nt, in the Lochner case1 the Amer ican Su preme Cou rt foun d1 by a 5 : 4 majo rity1 th at the maximum hour legis lation w as uncons titut ional. Going a step fur ther, th e cou rt held th at the State was un able to demon strate any nexu s bet ween the max im um hou r law and the gove rnment's state d objective of pr otectin g he alth, an d that th e statu te w as

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designed to serve illegit ima te motives whi ch the cou rt did not spec ify .130 The lill28 court also fou n d that the legislative end must itself be app ropria te an d legitima te 131 Dissent ing, H arlan J found th at it was no t the provin ce of the court to inquire into the wisdom of legislation 1 132 and the fact th at there was roo m for debate and for hone st differen ce of opin ion was enough for the determina tion of the case.133 In one of the most famous dissents in Ame rican constitu tional hi story H olmes J articulated what was wrong with the Supreme Court's majority opi ni on 7.7 iz. rea ding the ind ividua l ju stices' person al value choices into the Constitut ion:

con stitut ion is not intended to embody a particular economic theor y 1 whether of paternalism and the organic relation of the citize n to the State or of laissez faire ... . General propositions do not create concrete cases .... I think th at the wor d liberty in the 14th Amendn1ent is perverted when it is held to prevent the natura l outcon1e of a dominant opinion 1 un less it can be sai d th at a rationa l and fair man necessari ly wou ld admi t that the statu te p ropo sed wo u ld infringe fun dame nt al principles as they have been un der stood by the tr adi tion s of our peop le and our law .134 (en1phasis supp lied)

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This case is decided upon an economic theor y which a large part of the country doe s not entertain . If it were a question w he ther I agreed with th at theory 1 I sho u ld de sire to stud y it further and long before making up my mind . But I do not conceive th at to be my dut y 1 bec ause I stro ngly be lieve th at my agreen 1ent or di sagreen 1ent has noth ing to do with the right of a majority to embody their opinions in law ... . The 14th Am endment does not enact M r. Herbert Spencer's Social Statisti cs . . . . [A ]

In sub sequent de cisions of the pe riod commonly referr ed to as the Lochner Era, the Supreme Cour t invalida ted approxi m ately 200 social we lfare laws 1 135 mak ing a sust aine d1 yet subseque ntly deprecated incursion into sub stanti ve limits on the po we r of gove rnment 1 in the con text of econom ic legislation . The substantive incu rsion was also said to ha ve begun earlier in the deci sion in the Dred Scott case136 where the due proce ss clause of the 5th Ame ndment was interpre te d to substantively res trict the powe r of 11

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Congress to protect slaves1 form er slaves an d their descenda nts1 as citizens.137 Th e court' s decision in th e Lochner case138 was criticised for severa l reasons1 including for its means-en d scrutiny 1 an d everybo dy agree s that the Lochner case was de cided w rongly although liJ 29 there is no consensus on why it wa s wro ng. 139 H owev er1 p erhaps its most striking featu re w as the creation of the freedom of contract as part of the right to "libe rty" un der the 14th Am end me nt i.e. th e creation of a new right w here none had pr eviou sly existed . The court' s Lochner esque inva lid ations of legislative enactme nts contin ued for the next few de cades. H ow ever1 with the adv ent of th e Great Depres sion in 1929, m atters began to get desperat e. In N ovem ber 1933 the President1 Frank lin Delano Roosev elt1 promised at the Dem ocratic Nationa l Conve ntion in Chicago to give to the natio n a "New Deal" .140 In the hi storic first 100 days of his pr esidency 1 he sugge sted 15 legislative pro posals to Congress1 and 13 oth er laws 1 many of whic h were en acted after "token " debate. 141 1

On 7 January 19351 the Am erican Supr eme Court conside red the constitut ionality of a N ew Deal law for the first tim e. In Pana-ma Refining Co. v. Ryan142 th e cour t invali da ted prov1s1ons of th e Na tional Industry Recovery Act that outlawed trad e in petroleum goods pro duc ed in excess of Stat e quot as. Th e cou rt's interfer ence with des perately requ ired Ne w Deal legislation did not end there. Soon 1 the cour t found the Railway Pension Act un constituti ona l.143 In a series of opin ions thereafter1 th e Am erican Suprem e Cou rt invali dat ed New Deal legislation. 144 President Roosevelt prepa red for th e worst. Bolstered by his overwhelming win in th e 1936 election 1 he ann ounced in 1937 a "court-packi ng" plan 1 by which he pro po sed to increase the streng th of the Ame rican Supr eme Cou rt by an add ition al six justices and by wh ich th e court would hav e fifteen justices1 of whom nine would pr esumably favo u r New Deal legislation. Until th en, liberal Justices Louis D . Brand eis H arlan Fiske Stone and Benjamin N. Car dozo had ru led in favour of Ne w Deal legislation w hile fou r conservat ive ju stices w ere against (Devant er Reynolds1 Suth erland and Butler ).145 Th e sw ing vot ers, 1

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Hughes CJ an d Rob erts J ha d un til the n sided with th e con serva tive ju sti ces . Almo st in stan taneo u sly, th e Su preme Cou rt's opin ion s tilte d in favo u r of New De al legislation , in a p h enome non that is commo nly refer red to llJ 30 as th e "swi tch in time that save d nine ",146 as th e cou rt's ch ange in stan ce seeme d to mo bilise p ublic opinio n again st Roosevelt 's cour t-pa ckin g p lan . Mir aculo u sly, in West Coast Hotel Co. v. Parrish147 (West Coast Hotel) th e swing vote rs sid ed wit h th e thr ee liberal ju stices to u p hol d a mini m u m wage law, 32 years after th e Su pr eme Court's first in cursions into legislative economic value choice s in th e Lochner case148 .149 In thi s case, th e cou rt con side red th e con stitu tion ality of a Washin gton State law tha t autho rised th e fixing of m inimum wages for women an d mi n or s . Elsie Pa rrish w as em ployed at the West Coa st Hotel as a ch am b ermai d, w h ere sh e was p aid an amo unt less th an th at fixed by law. Sh e b roug h t suit to recover the differe n ce. The Supr eme Cou rt of th e Sta te foun d in he r favo u r . On appeal , th e pr op rieto r of th e hotel relied on prev iou s deci sions of the Amer ican Su preme Cou rt

w h ere a minim um wage law h ad bee n inval ida ted. 150 Thi s time , Hug h es CJ spo ke of the freedom of con tra ct with some he sita tion : Wha t is this freedom ? The Cons titut ion doe s not spe ak of freedom of contract . It speaks of liberty and prohi bits the depriv ation of property without due proce ss of law . In prohibitin g th at depriv ation, the Cons titution doe s not recognise an absolu te an d uncontrolla ble liberty. Liberty in each of its ph ases h as its history and connota tion . But the liberty safeguar ded is liberty in a social org anisation which requ ires the prote ction of law against the evils which men ace the health , safety, n1oral s, an d welf are of the peop le. Liberty under the Constitu tion is thus nece ssarily subject to the restraints of due pro cess, and reg ulation wh ich is reason able in rela tion to its subject an d ado pt ed in the interes ts of the comn1unity is due pro cess.151 Thi s dec ision h eral d ed the en d of th e Lochne r Era and of it s invalida tion of econ om ic legis lation . H oweve r, in so do ing, it is n ot certain if th e do ctrine of subst an tive du e pro cess wa s rejecte d . Even in the West Coast Hotel case, the court su bstan tively exa m in ed the po licy

animati ng the ch allenged statute , an d foun d the legislative en d of protecting the health of women reasonable: Wh at can be closer to the pu bli c intere st than the health of women and thei r protection from uns crupu lous and overre aching en1ployer s? And if the p rotect ion of women is a legitimate end of the exerci se of state power , lll 31 how can it be said that the requiremen t of the payn1ent of a minimun1 wage fairl y fixed in order to meet the very necessitie s of existence is not an adn1issible means to th at end ?152

It is impo rtant to note, howeve r, th at Frankfu rter's theory of du e process" absorptio n base d on principles of "fun dam ental fairnes s" an d "orde red liber ty" as oppo sed to the incorporatio n of specific right s with textua l origi ns, was very similar to the Lochne r Era right s creation. 11

2.3.2. Sub sequent due proce ss: the substantive right to pn vacy 2.3 .2.1. Lo chner Era p rivacy

Despite the end of the Lochner Era, the court did not stop "creating " right s using the "due pro cess" clause. With the end of the cou rt's Lochn er Era transg ressions, du e proce ss doctrine largely took the form of "incorporation " or "absorption " cases (referr ed to he rein as federal state du e proc ess), especia lly du ring the Warren Era. H owever , the fede ral state due pro cess do ctrine was more or less a direct em an ation of textua l provis ions of the Bill of Rights, which had to be read into th e 14th Amen dm ent to be made app licable to the States. While Black J's, view of whole sale, general or tota l incorporation may not have gained wide spread accept ance, there appea red to be some conse nsus that some pa rts of th e Bill of Right s were enfor ceable against the States, whether "incorporate d" or "absorbed " into the 14th Ame nd ment. The fede ral state due pro cess cases could be distin guished from the court 's Lochne r Era transgr essions pr ima rily on the ground th at most of the fede ral state due proces s cases dealt with rights that were firm ly rooted or capable of being pers ua sively linked with some specific prov ision in the Bill of Right s, while the Lochne r Era free dom of contract" was viewed with greater suspicion . Th e distinctio n between II

the two developme nts may also have had muc h to do wi th the manne r in w hich the two sets of cases we re receive d by the legal comm un ity, the Lochner case153 invok ing gre ater oppo sition than the federal state due proc ess cases. Howeve r, it w as near the en d of the Warr en Era that the Ame ri can Supr eme Cou rt began to read rights into the Amer ican Constitutio n in a manne r striking ly simil ar to the cou rt' s prev iou s Lochner Era tran sgressions. Thi s time, thoug h, the War ren Cou rt' s creation of "new " right s arguably did not mee t wi th the same oppo sition with whi ch Lochne r Era cases we re receive d, althoug h subsequent decisions dur ing Warren E. Burger' s term as Chief Ju stice have defined the constituti onal deba te wit hin Ame rican society ever since, centri ng arou n d liJ 32 abo rtion .154 However , the "false start " 155 th at subs tantive due pr ocess doctrine w as said to have made dur ing the Lochner Era seemed to have resolved itse lf du ring the Warren Era an d thereafter . Two decisions of the Amer ican Sup reme Court during the Lochner Era, how ever, deserve an alysis. The first

was Meyer v. Nebraska156 (Meyer), a case in whi ch a teacher at a pa rochi al school was convicted unde r a statute in th e State of Ne braska for teachi ng in the German language. The challenged statut e pro hib ite d all instru ction from being car ried out in any languag e except the English lang uage . McReynolds J attempte d to define the term "liber ty" foun d in the 14th Ame n dment : Withou t doubt, it denote s not merely freedom fron1 bodily restraint bu t also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowle dge, to n1arry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and genera lly to enjoy those privileges long recognised at con1n1on law as essential to the orderly pu rsuit of happine ss by free men . . . . It is the natur al duty of the pare nt to give his children education suitable to their situation in life ... 157 While holding that the right of the tea cher to tea ch an d of pa rents to engag e Rober t Meyer to inst ru ct their children in Germa n wa s wi thin the "liberty" of the 14th Ame nd ment, the court articu lated a te st for the protectio n of su ch rights:

The established doctrine is that liberty may not be interfered with ... by legislative action whi ch is arbitr ary or without reasonable relation to some purpose within the competency of the state to effect ... 158 Th e Supreme Cou rt in the Meyer case accord ing ly asserted an d recogni sed the valuable paren tal right to determine the language of instruction for their childre n. Th e cour t's emph asis on "arbit rarine ss" or "reaso nablene ss" wa s not iceably Lochne resque in its formu lation. The next Lochner Era decision whi ch de serve s analysis in this section wa s delivered by the American Supre me Cou rt in Piercev. Society of Sisters159 . Th e case dealt with the ch allenge of a statute whi ch made it compul sory for child ren between the age s of 8 and 16 to atte nd publi c school. The Society of Sisters in the State of Oregon con du cted private school s an d colleges, and imp arte d religious instruct ion and moral training accord ing to the tenet s of the Roman Catho lic Churc h . The challenged statu te would make it illegal for childre n to atte nd W33 the pr ivate schoo ls conducted by the Society of Sisters in the State of Orego n . McReynold s J aut hored the court 's

opin ion on ce more , and held the stat ute unco nst itut ional "unde r the doc trine of i\1.eyer v. Nebraska.. .".16 For the second time, du ring the Lochne r Era, the Supreme Cour t asserted and recogn ised paren tal righ ts associated with the intimate decision of where to educate child ren. H owever , the histor ical context of these two deci sions i.e. their pronou n ceme nt du ring the depre cate d Lochner Era, wa s hard to ignore.

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2.3.2.2. Post-Lochner pr ivacy

Several decades later , in 1961, Estelle Griswold wa s arrested by the State of Connect icut for giving informatio n, ins tru ction an d med ical advice to ma rr ied pe rsons as to the mean s of preve nting con ceptio n. The State statute made it illegal to use any drug , article or instru ment to preven t concep tion . Estelle Griswold challenged the statute an d in Griswold v . State of Connecticut161 (Griswold), the American Supreme Court was asked to consider the constitu tional ity of the anticontracept ives statute . Foremo st among st the issue s raised wa s the que stion of whether the right to use

contracep tives was a part of the right to "liber ty" unde r the 14th Ame ndm ent. With this argume nt, tra ces of Lochner Era transgressions came to the court's mind : Overtones of some argume nt s sugges t tha t Lochner v . State of New York ... should be our guide . But we decline that invita tion as we did in West Coast Hotel v . Pa-n-ish... . We do not sit as a super -legislatu re to determ ine the wisdom , need , and proprie ty of laws tha t touc h econon 1ic p roblen 1s, bus iness affairs, or social con dit ions. This law , however , opera tes dire ctly on an intimate relatio n of husb an d an d wife ... 162

Afte r examining its previou s decisions, the court came to the conclusion that m any provisions in the Bill of Rights ha d "penum bra!" or "peripheral " extensio ns or rights with out the existence of whic h the pr incipa l right would be meaningless. Rather than rooting each new or per iphe ral right in the term "liberty" un de r the 5th or 14th Amen dm ent like the Lochner Era cases seemed to do, this time aroun d, the court began to rea d "penumbra! " zones of substantive "priv acy" within several amendme nts in the Bill of Rights. Douglas J spoke for the court:

[S]pecific guarantees in the Bill of Righ ts have penumbras , formed by emanations fron1 those guarantees tha t he lp give them life an d su bstance .... Various guara nt ees create zones of privacy . The rig ht of assoc iation [is] con tained in the pen u n1br a of the First Amendment ... . W 34 The Fifth An1en dmen t ... enables citizen s to crea te a zone of privacy w hich gover nmen t n1ay not force him to su rre n der to his de trimen t. 163

The court articulate d its holding in term s of the right to "privacy ", an d Doug las J identified the consti tu tional principle in thi s famo us stateme nt: Would we allow the police to sea rch the sacre d prec incts of mari tal bedroom s for tellta le signs of the use of con traceptives? The very ide a is repu lsive to th e no tions of pr ivacy sur round ing the marriage rel ationship .164

In a concu rring opinio n, in which Warren CJ an d Brenna n J joined Goldberg J, relie d on the 9th Ame nd men t 165 to bolster the hold ing that the right to "ma rital privacy " was a part of the term "liberty" wit hin the 14th Ame ndmen t, while rejectin g the total or w holesale incorpo ration of the first eigh t amendment s

in to the 14th Amen dme nt remini scen t of Black J166 views in earlie r op inion s: The language an d history of the Ninth An1endmen t reveal th at the Framers of the Consti tu tion believe d tha t there are ad ditional fun damen tal rights, prote cted fron1 gove rnn1ental infringemen t, w hich exist alongside those fun damen tal righ ts spe cifically menti one d in the first eight constitu tion al ame ndment s .... In sum , the N inth An1endment simp ly lends strong su pport to the view that the liber ty pro tected by the Fifth and Fou rteenth An1endment s from infringeme nt by the Federa l Governn 1ent or States is not restricte d to right s speci fically n1entioned in the first eigh t amend n1ents .167 H ow wo u ld judges be able to d eterm in e whether an un enum er ated righ t w ere fund ame n tal ? In determin ing which rights are 1 fundamen tal11 judges are not left at large to decide cases in light of their personal and p rivate notions . Rather, they n1us t look to the tradi tions an d (collective) conscience of our peo ple to determ ine whet her a principle is so roo ted (there )*** as to be ranked as fun damenta r . . . . The inqu iry is w hether a righ t invo lved is of such a ch aracter' that it 1

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canno t be denie d wi thou t violating tho se fun damenta l principles of liberty an d ju stice which lie at the base of all our civil an d po litical institution s.168 Mos t impor tan tly, Goldberg J id en tified th at whe re fund ame n tal per son al libe rties were invo lved, the stat ut e wo uld be he ld to a stricte r W 35 stand ar d of scru tiny , and the State wo ul d h av e to d emon strate compelling in tere st1 in orde r to ju stify the statu te .169 While th e di ssenting ju stice s assoc iated th e m ajor ity opinio n w ith cases whi ch [th e m ajor ity ] do no t bother to n ame i.e. the Lochner case170 an d it s proge ny 171, 172 the War ren Court1s legitim acy, espec ially afte r its opinio n in Brown v . Board of Education 173, which form ally en ded seg reg ation in public schoo ls, m ay h av e h ad a larg e rol e to pl ay in th e relative ly less vo ciferous opposition to thi s new variety of subs tan tive du e proce ss doctr in e. A ccord ingly , w hile th e court.1s h olding s in the so call ed Lochne r Er a were condemne d by th e Su pr eme Cou rt in sub sequ en t d ecision s b eginning with th e West Coast Hotel case174, and de sp ite the n oto riou s and illegi tim ate false start.1' of su b stan tive due proc ess in Ame rican 1

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con stitu tion al law, th e su b stan tive aspect of th e due pr ocess clau se h as remained .175 In 1967, th e Supr eme Cou rt relied on the d ue p roce ss clau se to recogn ise th e right of in terracial ma rr iage , 176 while in 1971, the Griswold case177 h old in g wa s exten ded by the Supreme Cou rt to unm arried couples .178 2.3.2.3 . Controversy resurfaces : abortion/ sexual orienta tion

In Jan u ary 1973, th e cou rt seemed on ce mo re to cross ove r into con trove rsial que stion s of subs tan tive due pr ocess. An unn ame d preg n an t sing le woma n b rou ght a class action challen gin g th e con stituti on ality of lill 36 Texas crim in al abort ion law s, whi ch pr oscrib ed pr ocur in g or attem pting an ab ortion excep t on me dical advi ce for the p ur po se of sav in g th e m oth er's life . Th e Dall as Cou nt y Distr ict Attorney, H enr y Wad e, was n amed th e de fen d ant . In Roe v. Wade179 (Roe), th e Ame rican Su p reme Cou rt by a m ajority of 7 : 2 h eld th at a State crimi n al abor tion statute that did not recognise th e right of a wo m an to termin ate h er pr egn an cy violate d th e "du e pr ocess" clau se of th e 14th Ame n d me n t. Blackmun J id en tified th e issu e invo lved .

The p rin cipal thru st of appellan t's attack on the Texas statu tes is that they in1pro perly invade a right, said to be possessed by the pregn ant won1an, to choose to term in ate her pregnancy . Appella nt would discover this right in the concept of personal 'liber ty' en1bodied in the Fourteenth An1endmen t' s Due Process Clause ; or in person al mari tal, fan1ilial, and sexu al privacy said to be pro tected by the Bill of Rights or its penumb ras ... or among those rights reserved to the peop le by the Ninth Amendmen t. 180 After discu ssin g the hi story of abortion, Blackmu n J

identified the right agitated. The Constitution doe s not explicitly menti on any right of privacy . In a line of decisions , however ... the Cour t has recognize d th at a righ t of person al privacy, or a guarantee of certain areas or zones of priv acy, does exist un der the Constitu tion ... . [I]t is on ly personal rights that can be deemed fundamental' or 'implicit in the concept of ordered liberty' ... are included in this guaran tee of personal privacy. 181

(en1pha sis supp lied)

H aving ide ntifie d that the right to pr ivacy wa s fun da mental" or foun ded on Cardozo ' s idea l of "ordered liberty ", Blackmun J foun d tha t the right of pr ivacy (roo ted in the 14th, rath er tha n the 9th Ame ndment), was bro ad enoug h to encom pass a wom an's de cision of w hethe r or no t to terminate her pregn an cy.182 H owever , it was recognised that where "fun da mental rights" are invo lved, the State may abridge th ose rights upon a showi ng of "compelling State inte rest" .183 Accord ingly, the court held that the State' s compelling inte rest in pro hibiting abortion would arise at the end of the first trime ster, 184 w here it could regulate abor tion in a manner reason ably related to ma tern al heal th .185 In th e sta ge subsequent to viability, the State w as held entitled to regu late an d even pros cribe abor tion except where necessary for the preserv ation of the life of the mo ther.186 In a rathe r controversial holding , th e court also wen t on to find that the word "pe rson" as use d in the 14th Ame ndm ent, did liJ 37 not include the unbo rn, 187 while no ting the wide diverg ence of opinion on the subject . 11

In a con cu rring op1n1on, Stewar t J accepte d the do ctrine of subs tantive due process.188 While Rehn qu ist J in his dissent, agreed wit h Stew art J's statement th at the wo rd "liberty" un der the 14th Amen dme nt embra ced more than rights enumerate d in the Bill of Right s, he did not agree with the heightene d "compelling intere st" standar d of scru tiny, preferring a rational ity test instead , and he ld th at the Texas abortion law satisfied stan dard s of ratio nality .189 Rehn qu ist J fu rthe r foun d that w hile the major ity had quote d from the dissenting opinio n of H olme s Jin the Lochnercase190, the de cision more closely resemb led the majority opinio n in the Lochner case. N early two decades after the Roe case, followi ng intense deba te, the Ame rican Supreme Court wa s asked to recon sider its opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey191 . At issue was an abortion law in the Sta te of Penn sylvania , which requi red a woma n seeking an abortion to give her info rme d con sent to the proc edu re (the consent of one pa rent for a mino r, wit h a "judi cial bypa ss op tion "), that she be prov ided certain inform ation at least 24 hours

be for e th e abortion is pe rformed , and th at sh e sign s a stateme n t in d icating th at she h as noti fied h er husb an d of th e decis ion (with certain except ion s) . Un de r the statu te, the se requireme n ts need not have been per for m ed in the eve n t of a m edic al eme rgen cy" . While asse rtin g th eir inte n tion to up h old th e "essential h oldin g" 192 of th e Roe case, O'Conno r, Kennedy and Sou ter JJ co-au th ore d the opinion of the cou rt, w hi ch began wi th the follow ing wor d s, re cogni sing th e in ten sity of th e ab or tion deba te : Liberty finds no refuge in a juri sprudence of doub t. Yet 19 years after our holding tha t the Cons titution protects a woman's righ t to termi nate her p regna n cy in its early stag es ... th at definition of liberty is still ques tione d .193 Th e p lu rality quote d from H arlan J's dissen tin g opini on 194 in a p revious de cision, n otin g the in flu en ce of the Magna Car ta on the 5th liJ 38 Amen d me n t, be fore distin gu ishin g th e American exper ienc e from that of th e Mag n a Car ta : [T]he guaranties of due p rocess, tho u gh h aving the ir roots in Magn a Carta ' s 'per legem terrae ' an d considere d as procedural safeguar ds ' against execut ive usurpation 11

an d tyra nn y,' have in this country 'become bulwarks also agai nst arb itrary legisla tion' .195 Nex t, th e pl u rality pla ced th e do ctr ine of in corpo ratio n in to pe rspe ctive , identifying th e fu n damental right s" version of sub sta n tive du e pr ocess doctri n e. We h ave he ld th at the Due Process Clause of the Four teenth An1endmen t inco rpo rates mos t of the Bill of Right s against the States .... It is tempt ing, as a means of curbing the discretion of federa l jud ges, to suppose tha t liberty encompasses no more than those rights already guaranteed to the individual against federa l interference by the express provisions of the first eigh t Amendn1ents to the Constitu tion ... . But of course this Cour t h as never accep ted that view .196 Articula ting th e fun dame n tal righ ts th eory wi th in a pr iva cy fra m ework , th e pl u ral ity an alysed its sub sta n tive due p rocess case his to ry th at we n t beyond in corporatio n . These matters, involving the mos t int ima te and person al choices a person may make in a lifetime , choices cent ral to personal dignit y and au tonomy , are central to the liberty protected by the 14th Amendment. At the hear t of 11

liberty is the right to define one' s own concept of existence1 of meaning 1 or the universe , and of the mystery of hum an life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.197 Controver sially1 rat h er th an applyi n g th e well-known rationa lity or re asonablene ss standa rd s in th e form of "ra tion al ba sis" or "strict scruti n y111 the plurality dev ised a n ew stan dar d to b e applied : th e "un due burden " test by which a State regulation would b e inv alid at ed if it im pose d an "undue bu rden 11198 on or a "substa n tial obstacle" 199 in the way of a woma n 's abi lity to decide wh ethe r or not to ter minate h er pr egnan cy . App lying thi s stan d ard to th e statute under ch allen ge th e cou rt upheld every provi sion except th e spous al not ification requirement . In 20031 th e H ou ston police received a complaint regarding a weapon s di stu rba n ce in a p riva te resid ence. Pu rsuing th e com pla int 1 th ey en ter ed th e ap artment of John Law ren ce1 and saw hi m with anothe r lll 39 ma n 1 Tyron Garner engaging in a con sensua l sexual act. Both we re arr ested 1 cha rg ed and convicted by the State of 1

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Texas unde r a statute that prohibited devi ate sexual in tercou rse1 name ly1 anal sex wit h a membe r of the same sex" . Law ren ce an d Gar n er cha lleng ed their convictions in Lawrence v. Texas200 (Lawrence). The Amer ican Sup reme Cou rt by a major ity of 6: 3 reverse d the lower court' s judgment an d ove rruled its prev iou s d ecision in Bowers v. Hardwick201 . Kennedy L wh o d elive red th e opinion of the cou rt1 pr efaced the opinio n by recogn ising th e in tima te righ t of pr ivacy or autonomy withi n th e term "libe rty " : Liberty protects the person fron1 unwarranted government intr usions into a dw elling or other priv ate places. In our tr adition the State is not on1nipresent in the home . And there are other spheres of our lives and existence, outside the home 1 where the State should not be a don1inant presence . Freedom extends beyond spatial bounds . Liberty presumes an autonomy of self that includes freedom of thought 1 belief, expression , and certain intimate conduct . The instant case invo lves liberty of the person both in its sp atial and in its more transcendent dimensions .202

In th e cen tral ho lding , Kennedy Jju stified his po sition in rever sing th e decision of the lowe r cou rt: The petitioners are entit led to respect for their private lives. The State cannot den1ean their existence or cont rol thei r destiny by making their priva te sexual cond u ct a crime . Their right to liberty under the Due Process Clause gives them the full right to engage in thei r conduct without int ervention of the gove rnn1ent .... The Texas statu te further s no legitima te state int erest which can ju stify its intrus ion into the personal an d p rivate life of the individu al.203 O'Connor J' s con cu rr ing op inion emp h asised the equal prote ction clau se of the 14th Amendment as opposed to th e due process clau se an d su rp rising ly he ld th at th e law did n ot mee t "rational b asis" scru tiny , un de r wh ich cou rts wou ld typic ally up h old sta tut es. Kennedy J h oweve r, attem pte d to ju stify the d octrine of sub stantive du e process of the d u e p rocess clause , an d the court ' s con sequ ent inte rpre tive exercise as: Had those who d rew and ratified the Due Pro cess Clauses of the Fifth Amen dn1ent or the Fourteent h An1endme nt known the componen ts of liberty in its

n1anifold possibilities, they might have been more spe cific. They did not p resume to have this insight . . . . As the Constitu tion endures , persons in every generation can invoke its principle s in their own search for greater freedom. 204 llJ 40 Scalia J' s d issenting op inion did not app ear to challenge the do ctrine of sub stan tive due pro cess, but only ch allenged the major ity' s fin ding s, h olding that the m ajority h ad not iden tified homo sexua l sodomy as a "fundamen tal righ t" . Thom as J ap pe ar ed to b e the only member of th e cou rt who refused to recognise a general righ t of pr ivacy, 205 an appare nt rejectio n of "une n u me rate d" fun da mental rig ht s b ase d on sub stan tive d ue p rocess . 3. Definin g "substantive due process": three types of substantive due process

Su bstanti ve d ue p ro cess in Amer ican con stitut ion al law , a ' vague " con cep t whi ch is difficult to d efine, is a facet of Marbun; v . Madison 206 type jud icial rev iew. H oweve r, the n otion of sub stantive due pro cess" doe s not app ly to scrut iny of legislative en actments alone . Based on the 1

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case hi story of the Am erican Supreme Cou rt examined in the pr evious section, substantive du e process can be defined to me an thr ee thing s: i) any form of subst antive scrut iny int o life, liberty an d proper ty depr ivations; ii) scrut iny th at enta ils th e creation of rights an d the imposit ion of strong er bu rdens i.e. "fun da men tal rights" based substantive du e pr ocess; an d iii) incorporatio n or absorption. 3.1. Substantive scrutiny

Strictly speaking, any substan tive inqu iries int o life, liberty and pr operty depr ivations w ould be termed an exercise of "substantive due process" review. Th e difference betw een th e doct rines of subst antive and proc edu ral du e process is the refore a fun ction of th e interpl ay betwe en th e qu estions of "w hy" and "how " an autho rity dec ides the way it does. In quiries th at seek answ ers as to "w hy" an au thority decided the way it did, an d examine th e justice or injustice of the decision, are substantive. Inquiries that examin e "how " an autho rity pro cedu rally arrived at a decision constitu te an exercise of pro cedu ral du e pr ocess.

For example, assume th at person X is arrested by officer Y. An arrest wo uld constitut e a de privatio n of pe rson X's liberty understood as freedom from physica l restraint, and accordin gly, any substantive inqu iry into "why " officer Y arre sted person X wou ld be termed "substantive du e process" . Since the du e pr ocess clause foun d in th e 5th an d 14th Am end men ts appli es to depr ivations of life, liberty an d proper ty, sub stan tive inquiries into depr ivations invo lving othe r rights wo uld not be considered "substan tive du e process" (unle ss they involve some W41 eleme nt of "in corporation") . For exampl e, if person X wa s denied the right to spea k by the federal Governm ent, any sub stantive inqu iry int o w hy she w as deni ed the right to spe ak wou ld be considered an exercise of review un der the 1st Am end men t, an d not an emanatio n of "substan tive du e pr ocess" doctrine. Converse ly, any inqu iry into th e pro cedu re followed in carrying ou t the life, liberty or property de privatio n, wou ld be considered an exercise of "procedu ral du e pr ocess" review . For example, any inqu iry int o "how " pe rson X is deni ed liberty by officer Y in the hy poth etical case abov e, an d w heth er fair procedu res

exist for pers on X to challenge he r arrest, wou ld constitut e a ''proc edur al due proc ess" inquiry. Often, "subst antive du e pr ocess" an d "procedu ral du e proc ess" are hard to distingu ish, some time s we assume that an investig ation into processes entails substan tive review, that an unb iase d dec ision maker wo uld not reach subst anti vely arb itrary resu lts if she follow ed fair proc edu res" .207 Both doctrines can app ly to jud icial review of legislative, execu tive or jud icial actions. Further, defining "du e" process i.e. wh at elem ents of proc edu re are "fair" is in itself a substan tive task. In India's familiar administrative law settin g, substan tive and procedu ral du e proc ess are relatively simple to distingu ish, although th e two doct rines wor k togethe r. Assume that a teach er is dismi ssed from the service of a gove rnmen t school for engaging in a homo sexua l act.208 In dian law today wo uld require th e school's ad ministration to follow certain pro cesses - to give notice, to offer reasons, to potenti ally offer a hearing. Fu rther, th e teacher wou ld be free to challeng e the school's actions before a court. An inquiry into these proc edu ral requirem ents wou ld constitut e "procedu ral II

du e pr ocess" review . On the oth er hand, any investigat ion into th e reasons why the teacher was dismissed from serv ice wo uld constitu te substanti ve du e pr ocess review . If the reasons offered for termination do not appea r to be rational or reason able, the dec ision m ay be over tu rned by a court for be ing arbitrary " . This form of sub stantive due pr ocess is neith er striking uniq ue nor extraord in ary. Courts have hi storically attempted to shield indiv idu als an d gro ups from th e substantive unf airn ess or arbitrariness of State action . H ow ever, substan tive scru tiny, w hen applied again st legislation, creates difficult problems of political theo ry and coun ter-majo ritarianism, an d the subst antive review of legislation involving th e du e pro cess clau se ha s developed in a striking fashion in the US. 11

3.2. lil 42 Unenu,n erated "funda1nenta l rights" based s ubstantive due proce ss

One p articular form of substan tive du e process review carried ou t by Am erican cou rts h as been deeply troubling. Typica lly, asking "why " the legislatu re enacted law can dang erously result in a cou rt

substituti ng the value choices of popularly electe d rep resentative s with its own . H owever , the doctrine of "subst antive due pr ocess" in American constituti on al law as app lied to legislative review has evolved in a p articu lar way - a substantive due proce ss case would typ ically involve two distin guishing featu res: i) th e creation of a new or "unenumera ted" right, in a manne r that could not be per sua sively or tra ditionally linked to constituti onal text; and ii) the enforcemen t of the new right so created by the imposit ion of a stricter bu rden or stan dard . Wh ile thi s type of scrut iny may apply to execu tive or judi cial action as well, its most famou s and visible appear an ces have occurred whe n cour ts un dertook judi cial review of legislative enactme nts. Accord ingly, wh ile testing w hethe r liberty dep rivatio ns carr ied out by legislative en actmen ts h ad been valid , Ame rican court s wo uld typ ically ask two que stions: i) whet her the right deprived was "fun da mental"; and ii) whet her the depr ivation met the requ isite standa rd or bu rden of rationality or reason ablene ss? For example, assume th at law X en ables police officers to arr est citizen s for drun ken driv ing. Arre st involve s a liberty depriv ation. Any inqu iry into "w hy" law X wa s

ena cted, and whe ther it is ration al or rea sonable, would be an exercise of substantive review , whi ch may be ter med "substa ntive du e proce ss" . Now assume th at law X enables docto rs to pe rform abort ions. The right of wome n to term inate their pregn an cies doe s not typi cally or n atu rally follow from a strict interpre tation of the "right to liberty" . Coke, for exam ple, would have shu ddered at the thought of making the an alogy. H owever , whe re a court read s right s th at cannot pe rsuasive ly be strictly link ed wit h constitut ional text, into the right to life, liber ty or pr oper ty, an d then exam ines the deprivatio n of these newly crea ted or "unen ume rate d" right s again st typi cally stricter bu rdens of review , it is said to un dertake "substantive du e proce ss" scrut iny. Whi le thi s type of review has been termed the "tip of the iceberg" of sub stan tive due proce ss review ,209 the se type s of cases are most freq uently associated with the phra se "substantive due proce ss", an d have evoked the stronge st criticism of the jud icial fun ction in American constitu tion al and polit ical debate s. lill43 Accordingly , thi s variety of the doctrine of sub stantive due process must be an alysed in terms of

wha t I believe are its two limbs or compone nts1 the "rights-creating" and "burden-imposing" limb s. The right s-creating component of substantive due pr ocess assume s th at "life and liberty" can be depr ived in way s other th an by impr isonme nt or physical restraint 1 an d involves the creation or constitu tion alisation" of new or "unenu merated " right s thr ough perm issive interpretations of the word "liberty" in the 14th Amen dment . Strictly speak in& the right s-creatin g compo nent has less to do with the due pr ocess" eleme nt of th e clau se and more to do w ith the word ''liberty" . Although nearly all adjudication invo lves an inte rpr etive or "right s-creat ing" eleme nt 1 the term "rights-creatin g" in th is work is used to denote perfectionist interpre tation i.e. interpretat ion w hich wo uld not strictly follow from the language of the text. When a per son claims a right wh ich canno t pe rsua sively be linke d to any textua l provi sion of the Con stitution, he is said to bring a "substantive du e proce ss" case. For example in the Lochner case210 th e Ame rican Supr eme Cou rt held that the gene ral right to make a contr act in relation to [one's ] bu siness is p art of the liberty of the 11

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individu al protecte d by the 14th Ame nd ment of the Fede ral Constitutio n" .211 The rights-creating comp onent of the due process clause may have either an in dire ct textua l origin or a non-textu al origin . For example , de claring th at free spee ch right s are available aga inst the States has an indirect origin in the Constitutio n's text1 since the 1st Ame nd ment recognises the right to free spee ch althoug h the textua l righ t is only available against th e federal Government . On the othe r han d, the de claration of pr ivacy as a fun damental right did no t strictly have a textua l orig in (althou gh the cou rts treate d it as a . o f certain · textu a1prov1s1ons · · ).212 "penumbra! " exten sion In sub stanti ve due pro cess cases1 the court is usually seen to declare "fun dament al right s" i.e. rights hierarchically superior to ord inary constitu tional right s or rights "so roote d in the tra ditions an d conscien ce of [the] peop le as to be ranked as fun dament a1"} 13 a phr ase used by Cardozo J with in a "proce dur al due proce ss" conte xt. The notio n of "fundamen tal rights" in substantive due proce ss un derscores the idea lil 44 of a righ ts hierarchy i.e. th at some rights are superior to 1

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others. Beside s Black J, who advoca ted a who lesale incorp or ation of the Bill of Right s into the 14th Am endm ent, Cardozo and Frankfu rter JJ (and to some extent, Brenn an J) advo cated a mor e caut iou s appro ach, and sough t to roo t absorption in rights fun da mental to civilised society. Following the Griswold case214, thi s "fund am ental right s" ideal was used to create rights not foun d w ithin the Bill of Righ ts. Accordingly , in Skinner v. Oklahoma215, the right to ''procre ation" was considered to be one of the basic civil righ ts of m an" wh ich was fun da mental to the very existence an d surviva l of the race". H ow ever, the "fund amental rights" cases rep resent only the tip of the substant ive du e pro cess icebe rg216 an d claimant s are not precluded from claiming an ord inary right, oth er than a "fund amenta l" or "pre ferr ed" right, in a substantiv e due pro cess claim . Claim ant s in non-fun da menta l right s cases, however , may be less likely to succ eed .217 The wo rds "nor sh all any Sta te deprive any person of life, liberty ... wit hout due pro cess of law, 11218 facially seem to me an only th at a person who is imprisoned for II

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w hatever rea son cannot be imprisoned without fair proc edu re. Howev er, the rights-creating compone nt of substantive du e proc ess imp lies that mere impri sonm ent may not constitut e a depr ivation of life, but that "life" an d "liberty" deprivatio ns may occur in oth er ways. In Munn v . People of the State of Illinois219, an op inion whi ch has been influential in In dia,22 Field J (in his dissent) held th at the word "life" in the 14th Am end men t me ant somethin g more th an "anima l existen ce" . Ther eafter, the right to priv acy was conside red to be a "penumbral extension" of the 14th Am end men t to the Amer ican Consti tut ion by Douglas J in the Griswold case221 (wh ile Goldberg J in his concu rr ing opin ion considered it to be an extension of the 9th Amen dme nt, th e lill45 so called "ink blot" on the Con stitu tion 's text) .222 Similarly, the right to free speech was he ld to be available again st the Sta tes in Gitlow v. New York.223 . Th e essence of the rights-creating component of substantive due pro cess is that "life and liberty" depriv ations can ta ke place in way s oth er th an by impr isonment or physical restrain t.

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The bu rden-imposing com ponent of subst antive due proce ss involves scrutiny of legislative mea ns and ends .224 The stan dar d articu lated in the Lochner case225 w as: Is this a fair, reasonable and appropri ate exercise of the police power of the state, or is it an unre asonable, unnecessary, and arbitr ary interference with the right of the individual to his per sonal liberty ... 226 Th e "reasona bleness" test of the Lochner case227 ha s evo lve d into "strict scrutiny " rev iew since th e Roe case228 . "Fundamental right " or "pr eferr ed rig ht" 229 dep rivations trigger "strict scrut iny " 230 rev iew where the challenged law is exam ine d to dete rmine prima rily whe ther it is narrowly tai lored to achieve a legiti m ate gove rnme nt objective . The str ict scrutiny te st is app lied by courts in circu mstan ces where the court has to adop t an inherently suspicious stan ce again st gove rnme nt action . For example , conte nt or viewpo int ba sed restr ictions trigge r strict scru tiny un de r the 1st Amendme nt, as oppose d to content ne ut ral regu lations lill46 whic h trigger an inter me diate level of scru tiny. 231

H oweve r, some fund amen tal rights claims may tr igge r less th an rigorous scrutiny .232 As distingu ished from mild "ratio nal basis" review, w hich gently exami ne s the rationa lity of the nexus between legislative me an s and en ds, the strict scrutiny te st may exam ine the legitim acy of the me an s an d ends themselves . Accordingly , a statute can be invalida ted for pur suing eithe r an illegitima te legislative end, or for pu rsuing the end in an unde rinclu sive or over inclusive manner. For examp le, while the ant i-abort ion legislation invo lve d in Planned Parenthood of Southeastern 233 (Casey), pu rsued a legitima te Pennsylvania v. Casei1 an d compell ing Gove rnm ent inte rest i.e. the inte rest of protecting "potentia l life", the me an s emp loye d by the statute we re held to impo se an "undue bu rd en" on the woman . On the other hand , in the Lawrence case234, the cou rt fou nd th at the sta tut e did not pursue a legitima te government pu rp ose at all, sin ce government could be said to have no legitima te interest in preve ntin g two consent ing adu lts from engaging in a "homo sexu al lifestyle " .235

3.3. Incorporation/Absorption In thi s fin al form of sub stan tive due pro cess scru tiny 1 court s typically u se certain parts of a constitution to interpre t or give meaning to others 1 on account of the inappli cability of some provi sions to eithe r the federal or State Govemment s1 in cases that have bee n de scribed in this chapter as federal state due process cases. In Ame rican constitu tional jurispru dence1 thi s has been do ne using the du e pro cess" clau se. The an alysis un dertaken in thi s chapter reveals that fede ral stat e due pro cess itself has the idea of a rights hi erar chy embedded withi n it i.e. the id ea of "fund ame ntal right s" gave birth to thi s theo ry . The app roach advo cated by Cardozo an d Frank furter JJ(and to some extent Brenna n J) un derscores the belief that some right s are "fun dam ental" and oug ht to be protected by the due pro cess clau se - rights whi ch these justices W 47 typ ically also foun d in some form in the first eight am endm ents of the Bill of Rights. Howeve r a case in whi ch a pe rson claims free speech right s aga inst a State will mo re likely be termed a free speech case rath er than a "substantive du e pro cess" case. Th e claim in a sub stant ive du e proce ss case is 11

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ordinarily predi cated on only th e due proce ss clau se1 an d on no other textual provi sion of the constitution. 4. Procedural due process

On the other han d1 th e do ctrine of "pro cedu ral due proce ss" operate s to ensure that life1 liberty and pro perty deprivatio ns can only occu r upon "due " or fair proce ss1 en cap sul ating the "Ame rican abhorrence of arbitrary Governme nt action" .236 Pro cedu ral due proce ss doct rine concern s itself with the fairne ss of the proce du re by which dep rivations occur. Professor Richard Fallon would identify thr ee subsets of proce du ral du e pro cess do ctrine : i) fair pre-deprivatio n proce du res; ii) judicial access; and iii) judicial remedie s.237 Similarly1 Niki Ku ckes emp hasises four me anings of proce dural due pro cess: i) p articipatory proce du res; ii) unbia sed adjudi cators; iii) pr ior proce ss; an d iv) contin uity. 238 Procedural du e proce ss doctrine ordinarily focuses intr insically on the manner in whic h a decision depriving rights was reached . In setting out certain p aram eter s for admini strat ive decision-m akin& it also instru mentally enables the decision to be

challenged in an exercise of jud icial review. Accord ingly, proc edu ral du e proc ess ha s intrinsic an d instrumen tal fun ctions. Howev er, the inst rum ental func tion s of proc edura l du e pr ocess wo uld be redun dant if th e avenu e of jud icial review w ere not open to a deprived claimant. Consequ ently, while proc edu ral du e proc ess pri marily focuse s on pro ced ural norm s by wh ich administrativ e decisions may be arr ived at, it also seeks to prot ect judi cial access and th e ability of cou rts to exercise jud icial review, in vindi cating the instrume ntal functions of those nor ms. Howev er, pr ocedu re do es not operate in a subst antive vacuum. Procedu ral due process is often difficult to distin gu ish from substa nti ve du e proc ess for at least thr ee reaso ns. First, proc edu ral norms seldom op erat e in the absen ce of subst antive value s. Procedura l due proc ess stan dar ds wou ld app ly to "life, libe rty an d pro pe rty" de pr ivat ions . Thi s often entailed an an alysis of values sufficiently inhe rent in lil 48 the America n culture that th ey would be deserving of pro ced ural due proc ess protections. For exampl e, the cou rt often held that the deprivation of welf are bene fits required proc edu ral due pro cess. Similarly , it w ill be seen that in

on e case, the inability of indigent p ersons to access matrimo nial cou rts for not fu rnishing cou rt fees, was he ld un constitut ional as app lied, on accoun t of the hierar chical sta tu s of marriage in Ameri can society. In ap plying pr ocedu ral due pr ocess norm s to non -typical or non -trad ition al "life, liberty and proper ty" interests, such as welfare bene fits or access to court s in divorc e proc eedings, th e zones betw een substant ive an d proc edu ral du e pr ocess seeme d to diminish . Second, in defining norm s th at constitut e "du e" pr ocess, courts substantively set stan dar ds for ad minis trat ive adjudi cation. Alth oug h procedura l in character, th ese standa rds or norms were by th emselves substant ively creat ed and read into constitu tional analysi s. Third, in safeguard ing jud icial access whe re jud icial review wa s specifically exclud ed by statut e, courts subst an tively creat ed th e right to jud icial access. In this sense, the right to jud icial access, althoug h proce du ral in its function, wa s intrinsically sub stantiv e in its chara cter. Pro ced ural due proc ess is often believ ed to be less concern ed w ith the sub stan tive values w hich are being deprived , an d more concerned with th e manner in w hich the deprivatio n is being brought about. H owev er,

the zone s of pro cedu ral an d sub stantive due process are hard to distingui sh. 239 For example , the manner in w hich the decision is made afford s fodder to challenge the sub stan ce of the decision later on. The ability of claiman ts to make repre sentation s after noti ce, and the rea son s offered for the depr ivati on of rights i .e. traditional fair pr ocess requi rement s, often pro vide the basis for claima nts to challenge the de cision-make r's rea soning . 4.1. H earing/Notice i.e. natural ju stice

At the mo st fun da mental level, the pro cedur al due pr ocess doctrine embod ies the importance of fair pre -(or post-)depr ivat ion pr ocedur es. In othe r w or ds, before (or sometime s after ) life, liberty and pr operty depr ivation s are broug ht about, cou rts often foun d it impo rtan t to con sider whether th e procedu re established for the depr ivation wa s fair" . Thi s fair pro cess" un derstan ding of the "due pr ocess" clause typically pr odu ced notice an d hear ing requi remen ts in cases spanning "low -level agen cy hearing s to full-scale civil trials" .240 Admini strative au tho rities w ould typically be 11

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requi red to pr ovid e no tice, an d hear W49 claima nts1 before de priving life1 liberty or property . In the w ord s of White L the Ame rican Supreme Court: consistently held that some kin d of hearing [was] required at some time before a person is depr ived of his prope rty interests.241 (en1phasis supplie d) In a seminal paper whi ch ap peared in th e Uni versity of Penn sylvani a Law Review1 H enr y Friend ly J of the US Cou rt of Appe als for the Second Circuit articulated 11 compone nts or element s of the "fair hearing ", whi ch w ere held requi red in varying deg rees depen ding upon the natur e of the governm ent action invo lved : i) un biased tribun al; ii) notice of propo sed action and groun ds asserted for it; iii) op port un ity to pr esent rea sons why the propo sed action should not be taken; iv) calling witne sses; v) kno wing eviden ce against you ; vi) having the de cision ba sed only on eviden ce and not on extraneou s ground s; vii ) coun sel; viii) the making of a recor d; ix) stateme nt of rea son s i.e. w ritten deci sion; x) public atten dan ce; an d xi) jud icial revie w .242 Of these item s vi) and xi ) embodied the instrumen tal fun ction s of 1

proc edu ral du e proc ess as opposed to the intr insic func tions embo died by the other criter ia, since these could be used to challe nge th e adm ini strative dec ision . Th e stan dard th at gover nm ent autho rities would be held to often depen ded on whether the claimant had lost wh at he alre ady ha d, or was deni ed getting somethi ng that he wanted , and a h arsher standard typ ically applied to the forme r as oppo sed to the latt er cat egory of cases.243 Althoug h Lord Diplo ck criticise d the Ame rican Supreme Court 's procedu ral due pro cess forays as an "over-judicialization of ad ministr ative procedure s", 244 H enr y Frien dly J wa s quick to po int out that the English doctrine of audi alt eram par tem roote d in "n atu ral justice " wa s very similar .245 In fact1 He nry Frien dly J compa red the adjective s u sed in Amer ican cases describing the hearing requirement of proc edur al du e proces s (e.g. "inf ormal " "flexible" "effective " "meaningful ") to Lord Lorebu rn's classical pa ssage enu nciating the dutie s of a schoo l bo ard : [T]hey must act in good faith and fairly listen to both sides for that is a duty lying upon everyone who decides I

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anything. But I do not think they are bound to tr eat such a question as thou gh it were a tri al. They have no pow er to adm inister an oath, and need not examine witne sses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudici al to their view .246 llJ 50 The American Supre me Court h ad declared that "the oppo rtunity to be hear d" wa s the "fun dament al requi site of the due proces s of law "} 47 and that a hear ing must take place "at a mea ningful time and in a me aning ful manne r" 248. Despite the fact th at deprivatio ns may take place in civil and not crimi nal cases, the court ha d held that the "right to be heard before being con demne d to su ffer grievou s loss of any kind , even thoug h it m ay not involve the stigma and hardship s of a crimi n al conv iction, [wa s] a pr inciple ba sic to [Amer ican ] society " .249 The "central me aning " of procedural due pro cess was id entified as right to not ice and an opportunity to be heard .250 In th e wo rds of Frank furt er J, "no better instrum ent [had] been devised for arr iving at tru th than to give a person in

jeop ardy of serious loss notice of the case aga inst him and oppo rtun ity to meet it" .251 In the wo rds of H enry Frien dly, the doct rine simpl y required "s ome kind of hearing" .252 Howev er, pr ior to th e 1970s, proc edu ral du e pro cess requi rements did no t apply to deprivatio ns of gover nm ent ben efits, on th e argum ent tha t these were not righ ts inher ent in "life, liberty and proper ty" but gover nm ent "pr ivileges " . Procedura l due process prior to the 1970s applied to deprivations of "life, liberty and pro pe rty" as traditionally un derstood. It wa s only in the 1970s, conseque nt to the constitut ional lan dmar k of Goldberg v . Kelly 253 (Goldberg), th at the Sup reme Cou rt started app lying pro ced ural due process requiremen ts to the State' s dep rivation of w elfare benefits, effectively dissolving the "right -pr ivilege distin ction" in Amer ican constitutio nal jurisprud ence. This decision is often said to have created a du e process "explo sion" 254 or "revolutio n" 255 con sequen t to which fair process challenges included gove rnment contra cts, zoning right s, bu siness/prof essional licences, drivers' licences, publi c employm ent, studen t admi ssion s, w elfare

ben efits and foster p arenthood. 256 In the Goldberg case, some residents of New York claime d th at they ha d been deprived of welf are paym ents un der the Aid to Families with Depe n dent Children (AFDC) program without a hear ing beforehan d . Th e court refused to find th at w elfare llJ 51 p ayment s could be depr ived wi thou t fair proc ess. Instead, speaking for th e majority, Brenn an J not ed the importa n ce th at welfare pay men ts ha d assum ed in Am erican society: Welfare, by meeti ng the bas ic demands of sub sisten ce, can he lp b ring wi thi n the rea ch of the poor the san1e opportun ities th at are ava ilable to other s to par ticip ate n1eanin gfully in the life of the con1n1unity . At the same time , welfare gu ard s against the societ al n1alaise th at n1ay flow from a wi despread sense of unjus tified frus tra tion and insecurity . Pub lic assistance, then , is not a mere char ity, but a mean s to ' p romo te the general Welfare, an d secur e the Blessing s of Liber ty to ou rselve s an d our Poster ity' ... . [P]re -te rn1in ation evidentiary hear ing s are in di spensab le to tha t en d .257

Accordingly, the court seem ed to arti cu late four tests, inhe rent in proc edu ral due process, wh ich would be

requi red even be fore wi th drawing gove rnme nt benefits: i) timely and adequ ate notice detailing the reason s for a pr opo sed term in ation ;258 ii) an effective oppo rtunity to de fen d by confr onting any adv erse wi tne sses an d by prese nti ng [one' s] own argumen ts an d evid ence orally";259 iii) the righ t to appea r "per sonally wit h or wi th ou t cou nsel ;260 an d iv) the right to an "impa rtial decision maker 11261 . In the next con stitu tional pro ced ural du e pr ocess lan dmark, th e Supreme Cou rt articulate d its famous thre e pa rt test in Mathews v. Eldridge262 to inform its proc edu ral du e process an alysis. Like the Goldberg case263, this case deal t with the de pr ivat ion of governme nt welfare benefit s. The responde nt, Eldridg e1 claime d th at he ha d been depr ived of his disability insurance benefit s without a pre -termin ation hearing. Th e court concluded th at an evi den tiary hearing was not require d pr ior to th e ter mination of disability benefits. From th at point on, the court woul d look to thre e distin ct factors" in deter mini ng the standar d that governme nt action would be he ld to : 11

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[F]irst 1 the private int erest that will be affected by the official action j secon d the risk of an erroneous depr ivation of su ch int eres t through the proced ur es used , an d the p robable value , if any , of additi on al or subs titute proce dur al safeg uar dsi an d final ly, the Governmen t's inte res t, including the fu n ction involved an d the fiscal an d administrative bur dens tha t the addi tion al or subs titu te proce dural requiren 1ent wo u ld ent ail. 264

is a well-known pr inciple of constitu tional law that the rule s of natur al justice do not app ly to the enactment of sta tut es. Howeve r, the value s encap sulated in th e heari ng and notice requi reme nts of proce du ral due pr ocess transcen d into the sta tut ory sphere in terms of the void-for-vague ness" do ctrin e. The American Supr eme Cour t h as over sever al decade s he ld that statute s may be voi d for being 11 un constituti onally uncertain 11.265 Wh ile thi s do ctrine is ba sed parti ally on the equal protectio n fear th at vague law will be appl ied 11unequ ally 11 or arbi trarily 11 i.e. in an indefinite manne r incapable of assuaging 11welldefined class interests elaborat ed in th e next chap ter lill52 It

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the doctri ne also adv ances the pr oposition that sta tut es must create pred icable ou tcome s and guide in dividua ls in plann ing their actions.266 While thi s test h as typ ically app lied in the criminal law sphe re to "wo rds and phra ses . . . so vagu e and indefinite that any penal ty pres cribed for their violation constitu tes a denial of due pr ocess of law ", 267 it has on spa ring occasions bee n app lied to civil statut es.268 A statu te is he ld to be vague if "men of common intelligen ce mu st ne cessarily gues s at its meani ng an d differ as to its applica tion" .269 4.2. Judicial access

Piggy backing on the instru ment al fun ctions of pr ocedu ral du e pr ocess, Ame rican courts soug ht to preser ve judi cial access into qu estions of "life, liberty and proper ty" dep rivatio ns. The court 's concern to preser ve jud icial access typically took the form of "nonstatu tory review " . Accordingly, sta tut es that exclu ded judi cial review were often held by court s to invo lve some form of judi cial review , in a bid to pr eserve judi cial access. Ordi narily, the "weight ier" th e inte rest deprived , the greate r the chances that cour ts wou ld read

jud icial access into the statu te . The qu estion th at Fallon believes courts asked in this form of proce du ral du e proce ss review was: does du e process requi re access to jud icial pr ocess, and if so how sear ching must the inquiry be?" 270 The court' s legendary holdings in i\1arbury v. Madison271 deserve no spe cial analysis, bu t its holding s are chann elled here thr oug h a llJ 53 procedu ral due proce ss pr ism. In 1800, Tho mas Jefferso n was elected the first Republi can Presiden t. Th e lame -duck Federal ist Cong ress create d several new jud geship s wh ich were intended to be pe ople d by Federali st jud ges. William Marbu ry was one of th ese jud ges, ap pointed to the Distr ict of Colum bia. H owever , the new Secretary of Sta te, James Madi son, who took over from the new John Marshall CJ, refused to de liver the judge s' commi ssions of app ointme nt.272 Along with othe rs, William Marbury moved the court unde r Section 13 of the Judi ciary Act of 1789 for a rule to Secretary of State, James Madi son, to show cau se why a mandamu s should not be issue d to him . H owever , Marbury ' s app lication w as denie d by the cou rt on the ground that the cou rt had the power to 11

deny th e enforce m ent of a statu te con trary to th e Con stitutio n . It wa s h eld th at the authority given to th e Su pr eme Court by th e law to issue wri ts of m and am u s to pu blic officers wa s n ot "w arr an ted " by th e Con stitutio n . Inte restin gly, Marbu ry did not ch allen ge th e law, but sou ght to enforce it. Ins tead, th e court he ld gra tu ito u sly (since Marbu ry' s applica tion wa s non adver sary273) th at the law wa s contr ary to the Con stitutio n . In ar riving at thi s conclu sion, Marsh all CJ ar ticulated the b asis for what would in the futu re be ter me d "jud icial revie w" : It is empha tically the prov ince and duty of the jud icial dep artme nt to say wh at the law is. Those who app ly the rule to particular cases, mus t of necessity expound and interpre t that rule . If two law s conflict with each other, the cou rts n1ust decide on oper ation of each . So if a law be in opposition to the constitu tion; if both the law and the constitu tion apply to a par ticular case, so th at the court mu st either decide th at case conform ably to the law, disregarding the constitu tion; or conform ably to the constitution , disregard the law; the cou rt n1ust detern1ine wh ich of these conflicting rule s govern s the case.274

Althoug h the cou rt d eni ed Marbu ry' s appli cation for m an dam u s, even tua lly, thi s case is cited as th e fou n tain hea d of mo d em judi cial review. In d eclarin g that it wa s "emphatically the provin ce an d duty of th e ju d icial d epar tme n t" to d eter mine th e con stitutio n ality of statute s, th e cou rt seemed imp lied ly to secu re its ow n access to p roblem s of con stitutional significance. In Boddie v . Connecticut275, the appe llan ts b efore the Amer ican Suprem e Cou rt compl ain ed th at the cou rt fee s involved in commencing d ivorce litiga tion in the Sta te of Conne cticut precl uded the ir access to the jud icial rem edy , "by re ason of th eir in d igen cy" . The ap p ellan ts llJ 54 conte n d ed that requ irin g payme n t of court fees an d expe ns es as a con dition prec ed en t to obta ining court relief wa s un constitutio n al as applied to them and to all othe r me mb er s of the class which th ey repr esente d . The court he ld th at "given the ba sic po sitio n of the m ar riag e relation ship in [Ame rican] society' s hierarchy of val u es and the con comita n t sta te mo n op olization of the me an s for lega lly dissolvin g this relation ship " 276 d u e proc ess p rohibit ed deny ing access to cou rts on account of a p er son' s in ability to pay court

fees . Th e court n oted th at it ha d seldom bee n asked to view access to th e cou rts as an eleme n t of du e process . Speak ing for th e cou rt, H arlan J equated the appellants , would-be plai n tiffs as they were, to th e de fendants in typi cal due proce ss cas es, argui n g that they too were entitled to be h ea rd on account of the exclu sivity of the forum .277 [W]e conclude that the State's refusal to admit these appe llant s to its courts , the sole means in Connecticut for obtaining a divorce , must be reg arded as the equiva lent of denying them an opportunity to be heard upo n their claime d righ t to a dissolution of their marriages , and , in the absence of a sufficient countervailing justification for the State ' s action, a denial of due process .278 H owever , th e cou rt was quick to qua lify it s observations to the pe cu liar circumstances of the case . Th e court refused to read a general right of jud icial access int o the Constitution , ho ldin g inste ad tha t whe re judi cia l access is the exclusive precondition to th e adjust m ent of a fundame ntal huma n rela tio n ship , th e right is equitable with d ue proces s .

We do not decide that access for all individua ls to the courts is a right th at is, in all circumstances , guaranteed by the Due Process Clause of the Fourteenth Amendmen t so tha t its exercise may not be placed beyond the reach of an individua l, for, as we have already not ed, in the case befor e u s this righ t is the exclusive precondition to the adju stme nt of a fundan1ent al hun1an relationship . The requ iren1ent th at these appellants resort to the jud icial process is entirely a state created matter. Thu s we hold only that a State may not , consistent with the obligations in1po sed on it by the Due Proce ss Clau se of the Fou rteent h Ame nd n1ent, pre empt the righ t to W 55 dissolve thi s legal rel ation ship without affording all citizens access to the n1eans it h as pre scribe d for doing so .279 H owever , concu rr ing p art ly in th e resu lt, Brenna n J could n ot bri n g hi m self to ag ree with the court ' s qua lificat ion . I see no constitutional distinct ion between appell ants' attempt to enforce this state stat utory right and an attempt to vindicate any other right arising under feder al or statutory law . If fee requireme nt s close the cou rts to an indigent he can no mor e invoke the aid of the courts

for other forms of relief than he can escape the lega l incidents of a n1arriage . The right to be heard in some way at son1e time extends to all proceedings entertained by courts. The possible dist inctions sugg ested by the Court tod ay wi ll not withstand ana lysis. 280 Addi tion ally, Amer ican courts have safeg uar ded a broad right of judicial access , when legis latures attempted to preclude judicial review. Accord ing ly, An1erican courts have soug ht to ensure both th at the procedures followed by adn 1inistr ative au thorities are fair,281 and some time s that substan tive constitutional claim s are correc tly decided .282 1. It see 1ns that the spe lling "Car ta" was nrnde official in England following wh ich "Carta " is used in p lace of the 1nore app ropria te " Charta " . See, Max Radin , "Tlte Myth of Magna Carta " (1947) 60 Harv L Rev 1060. 2. Bu t see, C.H . Mcilwa in, " Due Pr ocess of Law in Magna Carta " (1914) 14 Co lu m. L Rev 27. 3. Nullus liber hom o capia tu r, vel imp risonetur, a.ut disseisia.t ur, aut u tlagetur, a11t ex11letu r, a.11 t aliquot m odo destr 11atur, nee s11per ewn ibimus nee super ewn miftemus , nisi per Zega.le iudicium pa.rium su orum vel per legem terre. 4. Trus tees of Da.rtmo11th College v . Woodwa rd, 4 L Ed 629: 17 US (4 Wheat ) 518 (1819). See fur ther, Isaac Ru sse ll, " Due Process of

Law " (1905) 14 Yale LJ 322, 326. 5. Lowell Howe , "Tlte Meaning of 'Due Process of Law ' Prior to the Adoption of the Fourteen th Am.endn1ent " (1930) 18 Califonlia L Rev 583, 584. 6. Frank H . Easte rbr ook, "Subs tan ce and Due Process " (1982) TI1e Supre 1ne Court Review 85, 96. 7. 2 Co. h1st. 50- 51. See further , M11rra.y v . Hoboken Land and Impr ovemen t Co., 15 L Ed 372: 59 US (18 H ow ) 272 (1855); Issaac Russell , " Due Process of Law " (1905) 14 Yale LJ. 8. Wall ace Mendelson , "Forei gn Reactions to An1erican Experience w ith 'Due Pr ocess of Law '" (1955) 41 Vhginia L Rev 493. 9. See, Willian1 A. Stewart , "TI1e Constitutional Clauses of M agna Carta " (1915) 2 Virgillia L Rev 565 . 10. Sidney Painter , " Magna Carta " (1947) 53 TI1e An1er ican Histor ical Review 42. 11. Issac Russel , " Due Pr ocess of Law " (1905) 14 Yale LJ. 12. Sidney Pail1ter, " Magna Carta " (1947) 53 TI1e An1er ican Histor ical Review 42, 44. 13. Willian1 A . Stewart , "The Constitutional Clauses of Ma gna Carta " (1915) 2 Vhgiilia L Rev 565, 569 . 14. Ibid, L Rev 572. 15. Max Radin , "TI1e Myth of M agna Carta " (1947) 60 Harv L Rev 1060, 1072. 16. Sidney Pail1ter, " Magna Carta " (1947) 53 TI1e An1er ican Histor ical Review 42. 17. Jolliffe , The Cons titutional H istory of M edieva.l Eng land (1937) 493 . See also, Max Radi11, "The My th of Magna Carta " (1947) 60 H arv

L Rev 1060, 1091. 18. Wins ton O 1u r chill , History of the English Speaking Peoples, 199. 19. 1ltis para Stlllm,ai ·ises an ilhuninating speec h b y V.H . Gal b raith , re cord ed at "Penrose Men,orial Lechu-e: Runn y1nede Revisted " (1966) 110 Pro ceedings of th e Aineri can Philo sophical Socie ty 307 . 20. Willian, A. Stew art, "The Constih 1tional Clauses of Magna Carta " (1915) 2 Virgini a L Rev 565, 572 . 21. Ibid, 576. 22. Criin inal Justice Act, 1948. See fiirther, Colli , Rhys Love ll, "The Trial of Peers ii, Grea t Britain " (1949) 55 An1ericai 1 Histori cal Review 69. 23. Pollo ck and Maitlai,d , Hist . of Eng. Com. Law, Vol. 1, 173. See, Isaa c Russe ll, "Due Process of Law" (1905) 14 Yale LJ 327 . 24. Willian, A. Stew ar t, "11,e Constih1tional Clauses of Magna Carta " (1915) 2 Virgini a L Rev 565, 582. 25. See, Hamus Taylor, "Due Process of Law" (1915) 24 Yale LJ 353. 26. Isaa c Russe ll, "Due Proce ss of Law" (1905) 14 Yale LJ 322, 323 . 27. For a discuss ion of th e nahu-e of British par lia1nentar y sovere ign ty, see, T.R.S. Allai1, "Parlian,entar y Sove r eignt y : Lord De1uili1g' s Dexterous Revolution " (1983) 3 Ox J Leg St 22. 28. Wedge H ey til,g , The A nglo -A merican Conception of Due Process of Law, 18 (Trans actions of the Grotius Societ y 1932) 175. 29. Parliain ent cited tl,e Magna Carta ii, the Petition of Right and to ab olish th e Star Chan, b er . Willian, A . Stew ar t, "11,e Constih1tional Clauses of Magna Carta " (1915) 2 Vhgilua L Rev 565, 582 .

30. Arthtu- Ly on Cross , "Ai, Unpopular Seventeenth -Cenhu y View of Magna Carta " (1923) 29 Aineri can Hi stori cal Review 74, 75 . 31. See, M .R. Coh en, Law and the Socia.I Order (1933). Seefiirther, Max Radii, , "The Myth of Magna Cart a" (1947) 60 Har v L Rev 1060. 32 . Max Radin , "11, e Myth of Magna Cai-ta" (1947) 60 Har v L Rev 1060, 1090. 33. Coke , Ins titutes (4th Edn. , 1671). 34. (1610) 8 Co Rep 114a : 77 ER 646. 35. Black stone , Commentaries on the Law of England (1st Edn ., 1769) 417. 36. Mai·til1 Redish et al., "Ad ju di cator y Independence and th e Values of Pro cedu r al Due Pr o cess " (1986) 3 Yale LJ 455. 37. Frai1k H . Easterbrook , "Substance and Due Pr o cess " (1982) The Supre 1ne Court Revie w 85, 96. 38. Ibid, Review 97. 39. See e .g ., R. v . Secy . of State for the Home Department , Ex p. Phansopkar, 1976 QB 606, 621: (1975) 3 WLR 322 : (1975) 3 All ER 497 (CA) (per De1uung ). 40. (1920) 1 KB 829. 41. Ibid, KB 832. 42 . See e.g., H .D. H azeltil,e , "The Influen ce of Magna Carta on Aineri can Constih1tional Develop 1nent " (1917) 17 Cohun L Rev 1. 43. Ibid. 44. For ai1 a ccotu , t of the makil , g of the An1ericai1 Constih1tion see, Richai ·d Beenrnn , Plain, H onest Men : The Making of the A merican Constitu tion (2009); see further, Qii, ghua Wai1g, "Phil adelphia

Con vention and Popular Sovereign ty : A TI1eor y of Legiti.in acy" (2003) LL M Thes is, Harvard Law School. 45. Twelve an1end m ents had originall y been proposed , but onl y th e last 10 were ratified . 46. Bu t see, Akhil Reed Ainar , "TI1e Bill of Right s as a Consti tu tion " (1991) 5 Yale LJ 1131 (arguing th at th e Bill of Rights was des igned to protect not m erely minoritie s from the m ajority , but also people aga inst self -interested govenm1en t). 47. The full text of th e 5th Ainendn1ent: "No person shall be he ld to ans wer for an y capital , or other w ise infainous criln e, unless on a p resen tn1ent or i11dichnent of a Grai1d Jtu·y, except i11 cases arising i11 the lai1d or naval for ces, or in th e Militia , w he n i11 actual service i11 tin1e of War or public dai 1ge r; nor shall an y person be subjec t for th e sain e offen ce to be tw ice pu t i11jeopa rd y of life or funb ; nor shall be compe ll ed in ai1y crilni11al case to be a w itness agai11St hin1se lf, nor be de p rived of life, libert y, or p ropert y, without due pro cess of law; nor shall pr iva te propert y be taken for publi c use , without ju st compensation " . 48. Fr ailk H . Easterbrook , "Substai1ce ai1d Due Pro cess " (1982) TI1e Sup r eme Cou rt Review 85, 99. 49. Ken t, Commentaries in A merican Law (1st Ed.n. 1827) 13. 50 . Josep h Stor y, Commentaries on the Cons titution (1833) 652. 5 1. Tili s seen1s to be the i11terp retation place d upon the "due p rocess " clause ear ly on. See e.g ., R oller v. H olly, 44 L Ed 520 : 176 US 398 (1900) (notice ); H ovey v . Elliot, 42 L Ed 215: 167 US 409 (1897) (he ,u-il1g); Powell v. Sta te of A labama, 77 L Ed 158: 287 US 45 (1932) (State cotmsel ); See fiir ther, th e op illion of Rehnqu ist J, i11

Parratt v . Taylor, 68 L Ed 2d 420: 451 US 527, 537 (1981) (holdi11g, whil e interp reti.i1g the 14th Ainendn1ent , lib erty ai1d propert y can be deprived b y due pro cess of law) . 52 . H urtado v . People of California, 28 L Ed 232 : 110 US 516 (1884). See further, Dav id Curr ie, "The Constitution i11 th e Sup r eme Cou rt: Civil Rights ai1d Liberties , 1930- 1941" (1987) 5 Duke LJ 800, 801 . 53. 15 L Ed 372: 59 US (18 How) 272, 276 (1855). 54. Munn v . Illinois, 24 L Ed 77: 94 US 113, 142 (1876). 55. 31 L Ed 205: 123 US 623 (1887). See ftuther , Planne d Parenthood of Southeas tern Pennsylvania v . Casey, 120 L Ed 2d 674: 505 US 833 (1992). 56. See, Daniels v. Williams, 88 L Ed 2d 662 : 474 US 327, 331 (1986). 57. 8 L Ed 672: 32 US (7 Pet) 243 (1833). 58. 15 L Ed 691: 60 US 393 (1857). 59. Ibid. 60. Ibid, 403 . 61. Ibid, 405 . 62 . Ibid, 405, 407. 63. Ibid. 64. See, Jolu1 Harr ison , "The Lawfttlness of th e Reconsh ·u ction Ainendn1ents " (2001) 2 U Clli L Rev 375; Eric Forner , "TI1e Strange Cai·eer of th e Reconsh ·uction Amend m ents " (1999) 8 Yale LJ 2003. 65. TI1e ft1ll text of S. 1 of th e 14th Ainendn1ent is : "All persons bon1 or nahu-alized i11 the U1lited States , ai1d sub ject to the jurisdiction the reof , are citizens of the U1lited Sta tes ai1d of the State w herei11 the y reside. No Sta te shall make or enfo r ce an y law whicl.1 shall

abr idge the privileges or mm1tmities of citizens of th e United States ; no r shall any Sta te deprive any pe rson of life, liberty , or proper ty, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws " . 66. See, Korematsu v . Uni ted St ates, 89 L Ed 194: 323 US 214 (1944) (Murphy dissenting , that equal protection guarantees are ava ilable agains t the federal Goverrunent tmde r the 5th An1endment ); Bolling v . Sharpe, 98 L Ed 884: 347 US 497 (1953) (holding that equal protection guarantees are available agains t the fede r al Govenm1ent tmder the 5th An1endment). 67. 15 L Ed 691: 60 US 393 (1857). 68. See, Lau rence Tribe, A merican Cons titu tional Law (3rd Edn. Fotmdation Press 2000) 1334. 69. See, John N . Seanrnn, "Fourteenth An1endment: Privileges and Inmumities Clause: Civil Liberties: The Hague Case " (1939) 38 Mich L Rev 57, 58; Howard Graluu n , "The 'Conspi r acy Theor y' of the Fou rteenth An1endment " (1937- 1938) 47 Yale LJ 371. 70. 21 L Ed 394: 83 US 36 (1873). 71. Ibid, 56. 72. Kevin Newsom , "Setting Incorpo r ationism Straight: A Rein terpre tation of the Slaughter -House Cases " (2000) 109 Yale LJ 643. 73. See, Donald Donovan , "Toward Liini ts on Congressional Enforcemen t Powe r tu 1der the Civil War An1endinents " (1982) 34 Stan L Rev 453. 74. Civil Rights ca.ses, 27 L Ed 835: 109 US 3 (1883). 75. Uni ted St ates v . H arris, 27 L Ed 290: 106 US 629 (1883).

76. Uni ted St ates v. Cruikshank , 23 L Ed 588: 92 US 542 (1875). 77. Uni ted St ates v. Reese, 23 L Ed 563: 92 US 214 (1876). 78. Kemmle r, re, 34 L Ed 519: 136 US 436 (1890). 79. Wa.lk.erv. Saiwine t, 23 L Ed 678: 92 US 90 (1875). 80. 1\1 axwell v . Dow, 44 L Ed 597: 176 US 581 (1900). 81. 53 L Ed 97: 211 US 78 (1908). 82. 78 L Ed 674: 291 US 97 (1934). 83. TI1e ho ldil1g has si11cebeen overn1 led i11 Malloy v. Hogan, 12 L Ed 2d 653: 378 US 1 (1964). 84. 69 L Ed 1138: 268 US 652 (1925). 85. See further , Dejonge v . Oreg on, 81 L Ed 278: 299 US 353 (1936); H erndon v. Lowry, 81 L Ed 1066: 301 US 242 (1936); Grosjean v . A merican Press Co., 80 L Ed 660: 297 US 233 (1936); Near v. Minnes ota, 75 L Ed 1357: 283 US 697 (1931); H amilton v . R egents of Unive rsity of Cal~fornia, 79 L Ed 343: 293 US 245 (1934); Pierce v. Society of Sis ters, 69 L Ed 1070: 268 US 510 (1925). 86. 82 L Ed 288: 302 US 319 (1937). 87. Illis ho ldmg was late r overn1 led, and the 5th An1endment doub le jeopard y held to appl y agai11st the States . See, Benton v. M aryl and, 23 L Ed 2d 707: 395 US 784 (1969). 88. Pa.lkov. Connecticut, 82 L Ed 288: 302 US 319 (1937). 89. Ibid. 90. Ibid, 326. 91. 86 L Ed 1595: 316 US 455 (1941). 92. Ibid, 462. 93. Ibid, 475. 94. 82 L Ed 288: 302 US 319 (1937).

95. 91 L Ed 1903: 332 US 46 (1947). 96. Ibid, 68. 97. Tl te ho lding was overn:tled , and the 5th Ainendi n ent priv ilege against self-incrinunation was held to app ly to th e States . See, Malloy v. Hogan, 12 L Ed 2d 653: 378 US 1 (1964). 98. A damson v. California, 91 L Ed 1903: 332 US 46 (1947). 99. See, Jrunes Sim.on, The A n tagonis ts: Hug o Black, Felix Frankfu rter and Civil Liberties in M odern A merica (1989). 100. Willi.run Bre1u1ru1 , "l11e Bill of Rights ru1d the States: l1 1e Revival of State Constitutions as Guardians of Indiv idual Rights " (1986) 61 NYU L Rev 535. 101. 4 L Ed 2d 1708: 364 US 263 (1960). 102. Ibid, 275. 103. 20 L Ed 2d 491: 391 US 145 (1968). 104. Ibid, 148- 149. Quoting Powell v. St ate of'A la.bama,77 L Ed 158: 287 us 45 (1932). . 105. Ibid, 166 n . 1. 106. Willi.run Bre1u1ru1 , "l11e Bill of Rights ru1d the States: l1 1e Revival of State Constitutions as Guardiru 1s of II Rights " (1986) 61 NYU L Rev 535. 107. Mapp v. Ohio, 6 L Ed 2d 1081: 367 US 643 (1961). 108. Miranda v . Ar izona, 16 L Ed 2d 694: 384 US 436 (1966). 109. Gideon v. Wainwri ght, 9 L Ed 2d 799: 372 US 335 (1963). 110. Duncan v . Louisiana, 20 L Ed 2d 491: 391 US 145 (1968). 111. New York Times Co. v. Sullivan, 11 L Ed 2d 686: 376 US 254 (1964). 112. School Distr ict of Ab ingto n Township v. Schempp, 10 L Ed 2d 844: 374 us 203 (1963).

113. Akhil Reed Anrnr , "l11e Bill of Rights ru1d the Four teenth Ainendn1ent " (1992) 101 Yale LJ 1193, 1197. 114. Frankftu-te r J, see1ned co1nfor table with the use of the w ord "absorption " wh ich he be lieved was a gradua l process , as opposed to "incorporation " whid1 was sinu:tltaneous. See, Felix Frru1kfttrter , "Me1norand1m1 on ' Incorpo r ation ' of the Bill of Rights into the Due Process clause of the Fourteen th Ainendn1ent " (1965) 87 Harv L Rev 746, 747- 748. 115. Felix Frrutl 276) and 192 in the Counci l of States (i.e. since 2/3 * 192 = 128 > 126), a litt le over ¾th th e me mbe rship of each House. Accordingl y, if there are 417 1ne111bers or more

present and voti ng on a constih 1tional ain endmen t in th e House of Peop le, or 192 1ne111bers or n10re voting in th e Cotu 1cil of States , th e ruling ntm1ber requi r ed will be 2/3rd of those present and voting. Conve r sely, if any ntm1ber of n1e1nbers belo w 417 or 192 ai·e voti ng in th e H ouses respe ctivel y, th en th e ntm1ber of affinn ative votes required is 276 and 126 respective ly . According ly, at no po in t can a constih 1tional amend 1nent pass with a 1na jority of less thai 1 2/3rd the n1e1nbers p resent and voti ng. Art. 368 acco rd ingly stai1ds for two p r opositions - first, that at leas t 276 or 126 votes are requ ir ed for a constih1t ional amend m ent to pass in th e House of People ai1d Cotu 1cil of States respe ctively , if less thai 1 ¾th of th e 1ne111bership of th e H ouse is present and voting. Typically , if less thai1 ¾th of th e 1nen1bership of the H ouse is p resent and voting , th en th e nu 1nbers 276 ai1d 126 will be equal to or grea ter than 213rd the nu 1nber of n1e111bers present ai1d voting in any case. Second, th at if ¾th or more of the 1nen1ber shi p of the House is present ai1d voting, th en the amend ment cai1 only be passed by the vo tes of 213rd the 1nen1ber shi p of the H ouse or 1nore , a n tm1ber which will be hi gh er th an 276 or 126. Express in g these two propos ition s as a 1nathe 1natical equation , let " x" be the total me mbe rsh ip of a House , ai1d "y " be the total nu 1nber of n1e111berspresent and voti ng. Where th e value of y is greate r thai 1 ¾x, then 2/3y is gr eate r th ai1 ½x ai1d vice versa. According ly, wh ere the value of y is greater thai1 ¾x, then ½x2/3y .

Ftuther , under Art. 368 (2) certain prov1s10ns of th e Constitution can only be an1ended after r atification of one half of th e States . ln1portantly , Part III of th e Constitution does not r equ ire r atification of one -hal f of th e States . 33 . (1973) 4 sec 225: AIR 1973 SC 1461. 34 . TI1ese two p r ovisions state tl1at tl1e following are ain ongst th e directive principles to which the State shall direct its policy : i) tl1e ownership ai1d contro l of the material resources of the co111111 tuuty are so dis trib u ted as best to subserve the co111111on good ; ai1d ii) the operation of the econo mi c syste 1n does not r esult in th e concentration of weal th ai1d 1neai1s of production to th e conunon detrin1ent. 35 . See, Sank.ariPrasad Singh Deo v . Union of India, AIR 1951 SC 458; Sajjan Singh v. State of Rajastha.n, AIR 1965 SC 845; Gola.kNa.th v. State of Punjab, AIR 1967 SC 1643 . 36 . Gola.kNa.th v . State of Punjab, AIR 1967 SC 1643. For ai1 ai·gu 1nent th at the constih 1tion of special Benches of larger st r ength is a 1neaiungless p r actice , see, Chin tai1 Chai1drachud , "TI1e Supre111e Cotut 's Pr actice of Referring Cases to Larger Benches " (2010) 1 sec J-37 . 37 . (1973) 4 sec 225: AIR 1973 SC 1461. 38 . Kesava.na.ndaBha.ra. ti v. State of Kerala.,(1973) 4 SCC 225: AIR 1973 SC 1461, pa r a 14. 39 . Ibid, para 577. 40. Ibid. 41. Ibid, para 909. 42. Ibid, para 1285.

43. Ibid, para 1695. 44. Ibid. 45. But see , I.R. Coelho v . State of T.N., (2007) 2 SCC 1: AIR 2007 SC 861. 46. AIR 1967 SC 1643 . 47. (1973) 4 sec 225 : AIR 1973 SC 1461 . 48. See, Wa.ma.nRao v. Union of Union, (1981) 2 SCC 362. 49. (1973) 4 sec 225 : AIR 1973 SC 1461 . 50. Waman Rao V. Union of Union, (1981) 2 sec 362 . 51. Kesava.nanda Bha.rati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461. 52 . Ibid, para 1034. 53. Ibid, pai ·a 1329. 54. Ibid, pai·a 1778. 55. Ibid, pai ·a 1980. 56. Ibid, para 2133. 57. (1973) 4 sec 225 : AIR 1973 SC 1461 . 58. Ibid. 59. AIR 1950 SC 27 . 60. (1978) 1 sec 248 . 61. (1973) 4 sec 225 : AIR 1973 SC 1461 . 62 . Kihota.Hollohon v. Za.chilhu,(1992) 1 SCC 309. 63. AIR 1954 SC 520 (ho ld ing that Art. 329 (b) of th e Constih1tion did not exclude the Sup re111e Court's powe r to "interfere " with decisions of election tr ibunals b y w ay of special leave ). 64. AIR 1965 SC 1892 . 65. (1971) 1 sec 396 : (1971) 1 LLJ 256 .

66. (1973) 4 sec 225: AIR 1973 SC 1461. 67. (1980) 3 sec 625: AIR 1980 SC 1789. 68. (2004) 4 sec 311: AIR 2004 SC 2371 . 69. See, Gr anville Austin , Working a Democratic Consti tu tion (Oxford 1999) 293- 313 . 70. 1975 Supp SCC 1: AIR 1975 SC 2299 . 71. (1973) 4 sec 225: AIR 1973 SC 1461. 72. Ibid, para 206. 73. lbid, pa r a 19. On th e othe r han d, 01andrachud J rejected the idea that judicial r eview was a par t of th e basic stn 1ctu re of the Constitution , ho lding tha t the p remise was too broadly stated , given th at seve r al p r ovisions of the Constih 1tion pe rmi tted judicia l review to be excluded. However , h e invalidated clause (4) of Ar t. 329-A on the theory of separat ion of powe r s, ho lding that th e idea of an alllending body being all an1algan1 of all powers of th e Sta te was conh ·al·y to the bas ic tenets of the Constih1tion . His opinion hu-ned on the fact that Pal-lian1ent h ad exer cised the judicial hu1etion in enacting clause (4) of Art. 329 A. 74. Art. 359 (1). TI1e clause was subsequently an1ended by the Constih1tion (44tl1 An1endment ) Act, 1978 to provide that Arts. 20 and 21 cou ld not be suspended dur ing all emergency . 75. (1976) 2 sec 521: AIR 1976 SC 1207. 76. Ibid, para 459. 77. Ibid, para 450. 78. Ibid, paras 485-487. 79. (1973) 4 sec 225: AIR 1973 SC 1461.

80. Ibid, para 530. 81. Ibid, pal ·a 560. 82 . (1978) 1 sec 248 . 83. (1976) 2 sec 521 : AIR 1976 SC 1207. 84. (1973) 4 sec 225 : AIR 1973 SC 1461. 85. (1976) 2 sec 521 : AIR 1976 SC 1207. 86. (1987) 1 sec 124. 87. (1987) 1 sec 124. 88. (1976) 2 sec 521 : AIR 1976 SC 1207. 89. Ibid, para 3. 90. Ibid. 91. (1987) 1 sec 124. 92 . See infra, 2.3 alld accompal 1ying text. 93. (1997) 3 sec 261 . 94. S .P. Sampath Kuma r v. Union of India, (1987) 1 SCC 124. 95. (1987) 1 sec 124 para 99. 96. (1997) 3 sec 261 . 97. (1987) 1 sec 124. 98. (1997) 3 sec 261 . 99. (2010) 11 SCC 1. Civil Appeal N o . 3067 of 2004 decided on 11-52010. 100 . Ibid, para 41. 101. Union of India v. 1\1adras Bar A ssn., (2010) 11 SCC 1. Civ il Appeal No . 3067 of 2004 decided on 11-5 -2010. 102 . Hal-lal1' s J dissent in Poe v . Ullman, 6 L Ed 2d 989 : 367 US 497 (1961). 103 . (1976) 2 sec 521 : AIR 1976 SC 1207.

104. Arts. 122 and 212, Constitution of India . 105. Satwan t Singh Sawhney v . Passport Officer, AIR 1967 SC 1836. 106. Kharak Sin gh v . Sta te of UP ., AIR 1963 SC 1295. 107. (1974) 4 sec 3: A IR 1974 SC 555. 108. See, T.R. Andh yantjina , "TI1e Evolution of Due Process of Law b y th e Sup r en1e Court " in Supreme But Not Infalli ble: Essays in H onour of the Supreme Cour t of India (Oxford 2000) 193- 213 . 109. E.P. R oyappa v . State of T.N ., (1974) 4 SCC 3 : AIR 1974 SC 555. 110. TI1e w ord s seen1 to be bo rr owed fron1 Shakespeare ' s Mac beth, A ct III, Scene 4. 111. A IR 1951 SC 41. 112. (1976) 2 sec 521: AIR 1976 SC 1207. 113. S. Krishnan v . Sta te of Madras , A IR 1951 SC 301. 114. A IR 1952 SC 75. 115. See supra 1u 1. 79- 81 and acco1npan ying text. 116. E.P. R oyappa v . State of T.N ., (1974) 4 SCC 3 : AIR 1974 SC 555. 117. See, H .M . Seer v ai, Consti tu tional Law of India , Vol. 1 (4th Edn . 2006) 439-440 . 118. See e.g ., Sardar Ind.er Singh v . Sta te of R ajasthan , A IR 1957 SC 510 (up h olding a law wh ich ilnposed resh ·iction s on landlo r ds wh o had tenants on 1-4-1948, as distingu ished fron1 others ). 119. (1974) 4 sec 3: A IR 1974 SC 555. 120. Furthe r, by classif yil1g non -arb itr ariness as a su b set of equalit y, r ather than as a superset , did the court fun it the scope of cl1allenge 1u1der Art. 14? For exa1np le, lookil 1g back to the afor esta ted h ypothetic al of an arbitrar y i11cr ea se in taxe s, if it is estab lished tha t th e tax i11crease applie s agai11st all citizens

equall y (and assunili 1g for th e sake of argume n t th at the act of raisil 1g taxes is justici able), w ould th e fact that the tax rise is equall y applied fore close th e clain1 that the act was arbitr ary ? h1stead of ph r asing the relation bet w een arbitrariness and equalit y i11 ter111sof a log ical syllogis 1n , it wou ld pe rh aps have b een p refer able to State as a 1n atter of legal p rinciple that arb itr aril1ess w ou ld entail revie w u n de r Art. 14. 121. (1974) 4 sec 3: AIR 1974 SC 555 . 122 . See e.g ., Iron and Me tal Traders (P) Lt d. v . 1\1.S. H askiel, (1984) 1 sec 304: AIR 1984 SC 629 . 123 . AIR 1953 SC 91 . 124 . See, Ram Krishna Da.lmia. v . Jus tice S.R . Tendolkar, AIR 1958 SC 538; Lachhman D ass v . State of Punja b, A IR 1963 SC 222; Tilkaya t Shri Govindlalji v . State of Rajasthan,AIR 1963 SC 1638; Bira Kishore Deb v . State of Orissa, AIR 1964 SC1501; State of J&K v . Ba.kshi G11lamMohammad, A IR 1967 SC 122; S.P . Mi ttal ..;, Union of India, (1983) 1 sec 51 : AIR 1983 SC 1. . 125 . (1974) 4 sec 3: AIR 1974 SC 555 . 126 . (1976) 2 sec 521 : AIR 1976 SC 1207. 127 . (1974) 4 sec 3: AIR 1974 SC 555 . 128 . (1978) 1 sec 248. To be SlU-e, whil e this case can be said to be the progen itor of su b stantive due pro cess i11 In dia (although its "arbitrar il1ess" level of scn 1fu1y did n ot en1erge 1u1til th e Supre 1ne Cou rt' s op illion i11 Mar dia Chemicals), the Sup r en1e Cou rt had , as far ba ck a s i11 1962, decl ared that the ri ght to life il1cluded the right to priva cy [Kharak Singh v . State of UP ., AIR 1963 SC 1295 (Kharak Singh) ]. How ever, in Khara.k Singh, th e

court's declaration di d not involve the testing of legislation , but questioned an adm inistrative regulation . See infra , "Substantive ve rsus Process in A dminis trative Law" in text. 129. "Sonia Forced Me Ou t of Indi r a' s Ho m e: Maneka ", TI1e Tunes of India , 21-8-2002,

last accessed 27-10-2008. 130. (1978) 1 sec 248. 131. Even w ithi11 the 14th Ainendinent , the due pro cess clause onl y applies to the right to life, libert y and proper ty, but not the right to the equal prote ction of the law s. While interp reti11g the 5th An1endment , the US Supreme Cotut had , in Bolling v. Sharpe, 98 L Ed 884 : 347 US 497 (1953). See, Korematsu v . Uni ted St ates, 89 L Ed 194: 323 US 214 (1944)] he ld that the due pro cess clause i11cludes th e guarantee of equal prote ction i11 federa l cases ilwo lving discr ilni11ation, i11 order to appl y pril1eiples of r acial equalit y to th e federal Govermnent. However , the due pro cess clause i11 the 14th Ain endi n ent app li es pri m aril y to th e right to "life, libert y and propert y" . 132. "Nahu-al justice " ordi11arily includes tw o pr il1eiples - audi alteran1 partem i.e. no m an can be conde m ned tmheard ; and nemo debet esse ju dex i11 propria sua causa i.e. no m an can be a judge i11 his own cause . In conunon parlan ce, the "nahu-al justice " requirement is used alrn.ost synon ymousl y with the requ irement of giving a hearing befo re takil1g a decision . For an analogous case i11 An1erican constihttional law , see, Goldberg v. Kelly, 25 L Ed 2d 287: 397 US 254 (1970) (holdi11g that the due process clause requires a hearing before deprivi1 1g citizens of

welfare benefi ts). TI1e ter m "nah1ra l ju stice ", as used i11 h1dia, does not refer to "higher " or "bas ic" legal nonns , or to an y "nah1ra l righ ts" theor y . 133 . Tilis had been established i11a previous decision of the Sup reme Court i11 Satwan t Singh Sawhney v . Passport Office r, AIR 1967 SC 1836. 134 . (1978) 1 SCC 248; pa r as 39-48 (per Chandrachud J). 135 . AIR 1950 SC 27. 136 . (1974) 4 sec 3: AIR 1974 SC 555 . 137 . (1976) 2 sec 521 : AIR 1976 SC 1207. 138 . (1970) 1 sec 248: AIR 1970 SC 564 . 139 . (1973) 4 sec 225: AIR 1973 SC 1461. 140 . AIR 1950 SC 27: 1950 SCR 88.

141. (1978) 1 sec 248. 142 . AIR 1950 SC 27: 1950 SCR 88. 143 . Bu t see, Laurence Tribe , Constitution Choices (H ai·vai·d 1985) 11 (arguing that procedural norms themse lves have a substantive component requ iril1g ai1 "ai1alysis not onl y of the efficac y of alternative pro cesses but also of the cl1aracter ai1d ilnportai1ce of the i11terests at stake ") . 144 . lbid, pai ·a 54. 145 . P.N. Kaushal v . Union of India, (1978) 3 SCC 558 : AIR 1978 SC 1484. 146 . 49 L Ed 937 : 198 US 45 (1905). 147 . See e.g ., 1.R. Coelho v . State of T.N., (2007) 2 SCC 1: AIR 2007 SC 861. 148 . (1978) 1 sec 248.

149. (1970) 1 sec 248: AIR 1970 SC 564. 150. AIR 1950 SC 27: 1950 SCR 88. 151. (1974) 4 sec 3: AIR 1974 SC 555. 1s2 . (1978) 1 sec 248. 153. (1978) 1 sec 248. 154. For criticis1ns of the decision , see, Madhav Khosla , "Addressing Judicia l A ctivism . in th e h1dian Sup ren1e Cotut: Tow ards an Evolved Debate" (2009) 32 H asting s h1t1 & Con1p L Rev 55, 84. 155. (1974) 4 sec 3: AIR 1974 SC 555. 156. P.N. Kaushal v . Union of India, (1978) 3 SCC 558: AIR 1978 SC 1484. 157. See supra, Ch ap. 2. 158. 49 L Ed 937: 198 US 45 (1905) . 159. Sinillar doc trinal develop1nen ts have taken place in American consti tuti ona l law . See, Frederic k Schauer , (2003- 2004) 117 Har v L Rev 1765, 1793 (argu ing th at equal pro tection claims in An1erican law are often clothed as 1st Ainendm .ent claim.s). 160. (1978) 1 sec 248. 161. (1974) 4 sec 3: AIR 1974 SC 555. 162. Ivor Jennings , The Law and the Constitution (5th Edn . 1949) 149. 163. F.A. Ha yek , The Road to Serfdom (Unive rsity of Chicago Press , Chicago 1945) 92. 164. Ibid, 81. 165. See, Lon Fuller, The Moral ity of Law (New H aven and London : Yale Univers ity Press 1964) (arguing th at "rule of law" argttn1en ts are pr ocedural ). See further, Rich ard Fallon , " 'The Rule of Law '

as a Con cept in Consti tutiona l Discourse " (1997) 97 Cohu n L Rev 1. 166. R.F.V. Heus ton, Essays in Constitutional Law (Uni versal Law 1999). 167. A .V. Dicey, The Law of the Constitu tion (Lib erty 1982). 168. (1974) 4 sec 3: AIR 1974 SC 555. 169. (1978) 1 sec 248. 170. (1975) 1 sec 421: (1975) 1 LLJ 399. 171. (1979) 3 sec 489: AIR 1979 SC 1628. 172. Ibid, para 10. 173. See e.g., Pannalal Binjraj v . Union of India, AIR 1957 SC 397; Kathi Raning Rawat v. State of Saura.shtra, AIR 1952 SC 123; Rohtas Industr ies Ltd. v . S .D . A garwal, (1969) 1 SCC 325: AIR 1969 SC 707. 174. Ibid, para 21. 175. (1981) 1 sec 722. 176. Ibid, para 16. 177. See e.g., Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295; Rohtas Industries Ltd . v. S.D. Agarwal, (1969) 1 SCC 325: AIR 1969 SC 707. 178. (1978) 1 sec 248. 179. Ma thews v. Eldridge, 47 L Ed 2d 18: 424 US 319 (1976); Seefurther, Patrick J. Borcl1ers, "Jones v. Flowers: An Essa y on a Uni fied Theor y of Proced tu-al Due Pr ocess " (2007) 40 Creigh ton L Rev 343; Sou m.ya Panda , "Th e Pro cedu r al Due Process Requi ren1ents for N o-Fly Lists" (2005) 4 Pier ce L Rev 121; Ma tth ew R. Schreck , "Pre venting 'You' ve Go t Mail ' fron1 Mean in g 'You' ve Been Served ' : Ho w Service of Process b y En1ail Does No t Mee t

Constitutional Due Pro cess Requiren1ents " (2005) 38 J. Marshall L Rev 21. 180. It is be y ond th e scope of thi s w ork to ana ly se decision s that invo lved challenges to administrative rules , alth ough a fair sh are of these were invalidated tu1der th e ne w doctrine . See e .g., K.M. Prasad (Dr.) v . State of Bihar, (1997) 1 BLJR 673 (invalidating an order of the Central Btu-eau of Investigation in India ); CM . Pandey v . State of UP ., (1999) 4 All WC 3415 (in vali dating an adm inistrative ord er of ternlination of service ); Kalu Ram v. Sta te of l.1.P., (2000) 1 All WC 509 (invalidating an order of temlination of serv ice). See further , Sham La.l v. Union of India, AIR 1995 P&H 147 (finding th at the doctr ine of " ai·bitrar iness " w as first app lied against adnlinistrative action , and " eventuall y extended " to legis lation ). See ftuther , Ajay Hasia v . Kha.lid Muji b Sehravardi, (1981) 1 sec 722. 181. See e.g., S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427; Kholamuhana Primary Fisherman Coop. Society v . S tate of Orissa, AIR 1994 Ori 191 (invo lving a d 1allenge of goverru n ent poli cy on " fisher y rights " around the Cllilka lake in Ori ssa, h1dia). 182. See e.g ., Shrilekha Vidyarthi v. State of U.P ., (1991) 1 SCC 212; Eng lish Medium Studen ts Parents A ssn . v. Sta te of Karnataka, (1994) 1 sec 550: AIR 1994 SC 1702. 183. See, R amana Dayaram Shetty v. International A irports Au thority of India, (1979) 3 SCC 489: AIR 1979 SC 1628. 184. 1his assu 1nes sig1lificai1ce because one w ou ld think that courts w ou ld ac cord greate r respect to legis lation enacted b y a representative bod y as distingu ished from . a colonial bod y,

although th e treatm .ent n1eted out to pre -Constitution statutes was the sa1ne as that n1eted out to post. 185 . (1978) 1 sec 248 . 186 . Phusu Koiri v . Sta te of A ssam, 1986 Cri LJ 1057 (in terpreting Ss. 3 and 5 of th e Lim.itation Act, 1963, in a n1ai1ner that wou ld ensure that a cotu-t w ou ld take into acco tu1t a prisone r' s incarceration as reason for condoning a dela y in bringing ai1 action ). 187 . See further , T.1\1.A partmen ts v. DDA , (1990) 41 DLT 139 (reading into S. 31-A of the Delhi Developn1ent Act , 1957 the right to a h earing ). 188 . It does not have the sain e n1ean ing attr ibuted to it by Black Jin Griswol d v. S tate of Connecticu t, 14 L Ed 2d 510: 381 US 479 (1965). 189 . See e.g ., Olga Tellis v . Bombay Municipa.l Corpn ., (1985) 3 SCC 545: AIR 1986 SC 180. TI1e Supre 1ne Co tu·t of Israe l has sinillar ly read "hearing " rights into sta tu tes , despite the ab sen ce of expres s statutor y p rov isions . See, A ltager v. Ramal Gan, (1966) 20 PD 29 (Israe l). See f11rther, Melville Ni11m1er, "TI1e Uses of Judicial Revie w i11 Israel's Quest for a Constitution " 70 Cohllll L Rev 1217, n. 51 (1970). 190 . (1978) 4 sec 494 : AIR 1978 SC 1675. 191. "TI1e Bikilli Killer Liilk ed to Mu rd ers TI1roughout Asia " 12-82004 BBC Ne w s,

last accessed 12-8-2008. 192 . Ftuther , Batra w as not "tu1der senten ce of death " since lli s petition for den1en cy was pen di11g. 193 . (1978) 1 sec 248 .

194. Advisor y opinions can be sought by the Pres ident of India under Art. 143. 195. See e.g., O lga Tellis v. Bom bay Nlunicipal Corpn ., (1985) 3 SCC 545: AIR 1986 SC 180. 196. (1994) 3 SCC 569. See further , Gajanana Ag encies v . St ate of Kera/a, (2002) 3 KLT 242 (regarding the definition of "sn111gglin g" under S. 30-C of th e Kerala General Sales Tax Act, 1963). 197. See, De1Tick Moore , "' Crin1es Invo lving Moral Turp ih1de' : Wh y the Void -For -Vagueness Arg 1lll1ent is Still Available and Meritorious " (2008) 41 Con 1ell lnt1 LJ 813. 198. O lga Tellis v . Bombay Municipal Corpn ., (1985) 3 SCC 545: AIR 1986 SC 180. 199. (1980) 4 sec 379. 200. Ibid, 92. 201. (2000) 7 SCC 529. See further , Gurjeewan Garewal (Dr .) v. Dr . Sumitra D ash, (2004) 5 SCC 263. 202. See f11rther, Lawrence Alexander , "The Relationship Betw een Proced 1u-al Due Pro ces s and Substantive Constitutional Rights " (1987) 39 U Fla L Rev 323. 203. (1994) 6 sec 651: AIR 1996 SC 11. 204. Ibid, para 93. 205. Ibid, para 94. 206. Tata Cellular v . Union of India, (1994) 6 SCC 651: AIR 1996 SC 11.

lill 163

VI . Sub stanti v e Due Proce ss

THE BASIC STRUCTURE CASE :MAR.KHDMARKIN court' s attempt to secu re its own ju risdiction an d access to matt ers of constitut ional significan ce. Con sequent to the Basic Structure case1, th e Supreme Court sub stan tively created the pro cedura l right to judicial access. Subsequently , spurr ed by the cou rt's illegitimacy du ring the Emerge ncy where jud icial access was denie d to claimant s that had been detaine d "arb itrarily", the Maneka Era stan dard of "arbitrarine ss" w as galvani sed into proced ural due proce ss or "natu ral justice" _ Although pro cedura l in ch aracter thi s new " no rm wa s itself an emanation of sub stantive due process doctrine - it was a procedura l right which was substant ively 11

creat ed . H owev er, whi le reading proced ural du e proc ess into the Indian Con stitut ion in the 70s, Indian courts cou ched th eir an alysis in broad term s, articul ating a broad right to or standard of "no narbitr arine ss" . Thi s rig ht to "non -arb itrarine ss", constitu tionalised by an emphasi s on equa l protectio n do ctrine, has stood out as one of the defin ing featu res of In dian constitu tional due pro cess.2 In sub sequent years, the "arbitrariness" test wa s used quite indiscriminate ly THRo describe variou s form s of illeg alities that were unconne cted w ith pro cedural or substantive due proc ess, m atching th e u se of term s su ch as "arbitrary ", "unrea sonable " and ' irrational" in the first two de cades of lill 164 Ind ia' s constitutional ju risprudenc e. Simultaneou sly, the cou rt was redefining its unde rstanding of the "right to life" under Article 21. This p art examine s three sour ces or spheres of substantive due pro cess do ctrine in India: i) cases arising un de r the cour t's basic struc tu re" test wh ich w ent beyon d jud icial access (although the ju dicial access cases examine d in the prev ious chap ter canno t entirely be rule d out as proce du ral due pro cess cases); ii) cases arising un de r the court 's arbitrarine ss" do ctrine, whic h 1

11

11

seem ed to derive from the core of Article 14; an d iii) cases arising un der the court' s righ t to life" jurisprudenc e. The thesi s of th is part is that substan tive due pro cess doctrine in India is visible in these thr ee separa te sources or spheres of constitu tional law . First, thi s pa rt analyses the cou rt' s use of the ba sic struc tu re" test to prot ect values beyon d judi cial access. Thi s sphere is link ed to the Basic Structure case3, an d de rives from the cou rt' s un derstan ding of the Con stitu tion' s "essential" featu res. Second, this pa rt an alyses th e appli cation of an "arbitrarine ss" test to qu estion (and in one case, inv alidat e) legislation (althoug h the ''arbitrarines s" cases parti cu larly tend to confu se substan tive concerns w ith pro ced ural and equal prot ection concerns). Thi s spher e link s with th e articulat ion of th e "arbit rariness" test in the Manek,aGandhi case4 and its prog eny . Finally, this pa rt analy ses the creation of "new" or un enum erated rights, link ed with the court's expansive un derstan ding of Article 21. The "rigid" ph ase of constituti onal analy sis wa s prevalent in the 50s, althoug h it began to gradually erode in th e 60s. With the 11

11

11

adv ent of the "harmoni ous " phase of con stitutional an alysis in In dia, procedu ral du e pro cess was bo rn in the 70s an d continued well into the 80s. The three sub stantive pha ses of th e cou rt' s jurisprud ence are identifiable in cases ba sed prim arily betwee n the late 80s an d pr esent tim e.

11

1. "Basic Structure": beyond judi cial access

The fine distin ction between substant ive an d procedural du e process is often difficult to draw . In Indian constitu tional law, th e Supr eme Cou rt' s proc edu ral du e proc ess concern with judi cial access em an ated from substantive du e proc ess do ctrine. In protecting the court's jurisdiction, and ensuring that cou rts could investigat e questions of constitut ional amend ment, the court sub stant ively articulated a ba sic structu re" theo ry, but app lied thi s theory bo th in the Basic Structure case and in the Indira Gandhi case5 to safegua rd jud icial access. In the Basic liJ 165 Structure case6, the 24th Am end men t w as up held on th e un de rst anding th at courts could still determi ne whet her the "ba sic struc tu re" of the Constituti on ha d been violated by a 11

constitu tional ame nd me nt, and in this sense the 24th Ame ndm ent did not preclude judicia l access. The second po rtion of the 25th Ame nd ment was invalidated in the Basic Structure case on the strengt h of the ho lding that it did not permit courts to determine whether law actu ally serv ed th e purpo se speci fied in Article 39(b) and (c), an d ju dicia l access was consequently pre cluded by th at clause. Accord ing ly, although the Basic Structure case subs tantive ly de rived fluid constituti onal pr inciple s or "ba sic" or "essential " feature s from the written constitu tion, it app lied these pr inciples in a procedural due proc ess cont ext. Similarly , in the Indira Gandhi case7, th e Supre me Cou rt inv alid ated the insertion of Article 329-A into th e Constitut ion beca use an aggrieved candida te no longe r had access to a reme dy to challenge an election . Althoug h th e Supre me Cou rt's dec ision in this case prot ected judicia l access, it did so by substant ively id entifying the valu es of "demo cracy" an d the "ru le of law " as values protected by the Constitution 's "ba sic structu re". It is therefore har d to draw brigh t lines betwee n substa nti ve an d proce dur al due pro cess in these case s. Th e basic structu re th eory was sub stant ive,

but its app lication ha d been procedural. In a sense, the Basic Structure case an d the Indira Gandhi case stood for the propo sition that judicial review an d judicia l access were a part of the Constitution 's "bas ic structu re", a uniq ue mix of substance an d proc edu re. The identification of the value was substan tive, bu t the value itself was procedur al. Th e cour t's concern for jud icial access continued well into th e 90s. For example , in Kihata Hallahan v . Zachillhu 8, the Suprem e Cou rt held that paragrap h 6(1) of th e Xth Sch edule to the Constitution inser ted by the 52nd Amen dment, insofar as it confer red final ity upon the decision of the Speaker or Ch airm an on the que stion of the disqualifi cation of a member of the House , di d not preclude judicia l review . Furt her, paragrap h 7 of the Xth Schedule , which sough t to exclude th e ju risdiction of th e court, was held severable from th e rest of the amendmen t and inva lidated for the reason th at th e ap propr iate State majority h ad not been obtained in its ena ctment . H owever , judicia l access still chara cterised the sub-text of the inv alida tion. Jud icial access in the 80s an d 90s remaine d a key concern for the courts. Althoug h the cou rts' ability to

un dertake an exercise of jud icial review involving decisions made by admini strative and qua si-jud icial lill 166 authorit ies h ad been establi shed earlie r on, the Supr eme Court in the se yea rs asserted its powe r to examine the constitut ionality of actions pur su ed by the almi ghty execut ive power i.e. the Pre sident of India gui ded by the council of mini sters. For examp le, in thi s phase, the Supre me Court asserted its powe r to review the constitut ionality of pre sid ential ordi nanc es un der Article 1239 and th e dispo sal of clemency pe titions un der Article 72.10 Althoug h the se cases did not deal with law ena cted by Parliament , they none theless enca psulated the court's con cerns for ju dicial access. Howeve r, in the cases that are examine d in thi s section, the court seemed to take a step beyond judi cial access. In the cases th at follow , the substantive "ba sic structu re" test was not app lied merely within a pr ocedu ral du e pr ocess context as it ha d bee n in th e Basic Structure case11 and the Indira Gandhi case12 . Instead , the se cases applie d the basic structu re test to substan tively iden tify value s beyo nd judicial access, and substan tively assimil ated th ese values within Indian

constitu tional law. In the Minerva 1\11.illscase13, the Supreme Cou rt foun d that th e h armo ny be twee n fundamental rights and directive prin ciples was a pa rt of the Const itution ' s ''basic stru cture " . In the Bommai case14, the Supreme Cou rt iden tified the value of secula rism, a pa rt of the Constitutio n's ba sic structu re, an d seemed to hold that constitut ional ideals such as secula rism could valid ly be considered by the executive to ju stify their decisions. Although the Supreme Cou rt ha d previous ly in the Basic Structure case an d its progeny identified values that forme d pa rt of the Constitu tion's "ba sic structu re", su ch values were u sed in tho se cases to safeguar d ju dicial access. In the cases that follow, on the other han d, the court went beyon d jud icial access. The se cases are identified as sub stant ive du e process cases because the cour t applied the ba sic structu re test not me rely to jud icial access problem s, bu t to sub stantive pr oblem s. In the Minerva M ills case, the imp ugne d constitu tional ame ndment was stru ck down not becau se it pr eclud ed judi cial access, bu t because it upset the harmo ny be twee n the fun dame ntal right s and

directive pr incipl es. Similarly, in the Bomn-zai case, after establi shing that courts could investigate qu estions invo lving the subjective satisfaction of th e President, the cou rt identified the values th at th e President could employ in arriving at "satisfaction", W167 de riving th ese values from th e "essence" or basic struc tu re of th e Constitution. It is import ant in this section to un derstan d that th e distinction betwee n substan tive an d pr ocedu ral du e pr ocess doctrine in Indian constituti on al law is difficult to make, an d conseque ntl y, there are broad areas of simil arity betwee n th e pr ocedu ral du e pr ocess cases an d the cases falling un der this section . The br oa dest simil arity lies in th e articu lation of the "basic stru ctu re" test. The narr ow dissimil arity lies in the app lication of the ba sic stru ctu re test to eith er procedu ral or substan tive probl ems. H oweve r, th e und erly ing th eme of the app roach adopt ed by Frankfur ter an d Cardozo JJ in th e feder al state due proc ess cases i.e. the sear ch for constituti onal ''principles", ena bles these cases to be catego rised wit hin the broad umbrella doctri ne of du e pr ocess". II

1.1. "Minerva Mills": the "golden triangle" and the search

for "balance"

Into that Heaven of Freedom my father, Let my country Awake -

RAB IN DRANATH T AGOR E

1.1.1. The decision

In 1980, a Constitution Bench of th e Supr eme Cou rt w as asked to consider the constituti onal vali dity of Sections 4 an d 55 of the 42nd Ame ndment to th e Constitution p assed in 1976. Section 55 sought to overrid e the pre mise of the Basic Structure case15 and esta blish the unre stricted powe r of Parliament to ame nd the Constitu tion . Section 4 amended Article 31-C to enable laws w hich declared th emselves to be in furt heran ce of "all or any" of the Directive Principles of State Policy und er Part IV of the Constitu tion to be immu ne from investigat ions into the effectiveness of th e law, as oppo sed to its pr edecessor wh ich stated that laws could survive scru tiny if they were in fur theran ce of only Article 39(b) an d (c). The case concerned the nationali satio n of a textile un dertaking which went by

the n ame of Mine rva Mills. The 42nd Amen dment barred any challenge to the law of national isation. In Minerva Mills case16, the petit ioners repr esented by noted couns el, Nani Palkhiv ala, challenged Sections 4 and 55 of the 42nd Ame ndm ent, on th e tou chstone of the basic stru ctu re theory. The court invali da ted both provisions. However , in inv alid ating Section 4, the court wen t beyon d its prev iou s ho lding s in the Basic lill 168 Structure case17, and advo cated not me rely a pro ced ural du e pr ocess stan dard to judi cial access and jud icial review whi ch was advoc ated by a majorit y in the Basic Structure case whi le dealin g with Section 3 of th e 25th Ame n dme nt, bu t a substant ive due pr ocess standard whi ch emp h asised that the golden triang le" of fund amental right s enjoy ed a certain inal ienab le position in the Constitut ion an d could not be imbalan ced by directive pr inciples. It will be remem bered th at in the Basic Structure case the court wa s seve rely splin tered on the qu estion of Section 3 of the 25th Ame n dme nt w hich inserted Article 31-C into th e Const itution . Five ju stices viz. Sikr i, Shelat, II

I

Grover , H egde and Muk herjea he ld th at th e entire provi sion was inva lid . Sikri CJ found th at the law deleg ated powe r to the State Legislature s, whic h was impe rmi ssible . The rem aining fou r ju stices found th at Article 31-C de stroyed fund am ental rights. On the other han d, six ju stices viz . Ray, Palekar, Beg, Mat hew, Dw ivedi an d Chan dr achud upheld Article 31-C on th e ground th at it perm itted courts to unde rtake an investigat ion int o whe ther the law enacted actu ally fu rthe red Article 39(b) an d (c). Th ese justice s believe d that the imm unity that the clause conferred on laws i.e. from inv estigations into whether the law gave effect to the po licy" un derly ing Article 39(b) and (c), made no difference at all sin ce courts seldo m tested the "effectiveness" of law in th e first pl ace. Finally, two justices viz . Khanna an d Reddy , found tha t the second po rtion 18 of Article 31-C w as invalid because it did not p ermi t cou rts to unde rtake an inve stigation into th e nexu s betwee n th e law and Article 39(b) and (c). Accor dingly , although the second po rti on even tu ally lived an "italicize d existence " consequ ent to th e Basic Structure case, a majority of eight justices believe d that cour ts should be able to dete rm ine whet her the law II

passed under Article 31-C bore any relation to Art icle 39(b) an d (c). In thi s manne r1 a m ajority of judge s had sought to ensure jud icial access an d jud icial review in the Basic Structure case,on the poin t of Article 31-C. In Minerva 1\11.ills case191 the Chief Justice found th at the jurisdiction of the court wa s not pre cluded by Section 4 of the 42nd Amen dment . This case wa s consequen tly not abou t ju dicial access - th e imp ugne d con stitut ion al amendme nt exp anded the scope of Article 31-C but did not con tract th e scope of th e judi cial inquiry th at court s w ere perm itted to unde rtake. Incidentally 1 the Chief Ju stice in the Minerva Mills case wa s a mem ber of the gro up of six justices in the Basic Structure case w ho had held tha t the second portion of Article 31-C pe rmitted cou rts to inveslill169 tig ate the nexus between the law and Art icles 39(b) and (c). H ow ever1 it will be seen th at the court in Minerva Mills case2° struck do w n Section 4 of the 42nd Ame ndme nt not becau se it precluded judi cial access or the juri sdiction of th e court, bu t beca use it underm ined the constitu tional value s enca psulated in the "golden trian gle" of fun damen tal right s viz. Articles 141 19 an d 21.

Th e court first took up the "comp arative ly easier qu estion " involv ing the constitu tionality of Section 55 of the 42nd Ame ndmen t. Section 55 ame nded Article 368 of the Constitut ion an d perm itted Parli ame nt to amend by way of add ition , variation or repeal, any pro vision in the constituti on. Th e court qu ickly foun d th at the powe r to amend did not include the pow er to destroy. In wh at ap peared to be an emp hasis on the counter -m ajoritari an natu re of the Con stituti on, the court decl are d th at Parli ame nt wa s the donee of a limited power un de r the Con stitu tion, an d consequen tly its po we rs of ame ndmen t were limited and cou ld no t be used to make its own pow er unlimite d . In do ing so, the court seeme d to reiterate its previo u s conce rns for pr otectin g jud icial access in the Basic Structure case. The confern1ent of the right to destroy the identity of the Constitution coupled with the provision that no Court of law shall pronou nce upon the validity of such destruction seems to us a tran sparent case of transgression of the lin1itations on the amending power ... . If it be true, as stated in [the amendmen t], that the Parliament has un liniited power to aniend the Constitution ,

courts can have no juris diction to strike down

any

cons titu tional amendmen t as uncons titu tional. 21

(emph asis supplie d) H oweve r, the cou rt nex t took up the mo re vexed que stion po sed by Section 4 of the 42nd Amen dme nt. Section 4 essentially establi shed the "primacy" of Dire ctive Principle s of State Poli cy ove r fundame ntal right s. Any law which woul d henceforth be said to have been p assed in fu rthe rance of any of the Directive Principles of State Policy would be shiel ded from judi cial scru tiny . H owever , Section 4 did not preve nt a cou rt from investiga tin g whethe r a law actua lly had any relatio n wi th th e Directive Principles of State Policy. In other wo r ds, Article 31-C enabled courts to undertake wh at constitutional scholars would term deferential "rational ity " review , but no t potent "reasonableness" review . Chan dr achud CJ who w rote the cou rt' s op inion, was a membe r of the six justices in the Basic Structure case22 who had articu lated in that case that Section 3 of the 25th Amen dment had not pr eclude d the cou rts from inv estigating w hethe r the law bore a " direct and reasonable W 170 nexu s" with Article 39(b) and (c).

Likewi se, in the Minerva Mills case23, the court foun d that Section 4 of th e 42nd Ame ndmen t did not preclu de courts from inve stigating whet her th ere wa s a direct an d reason able nexu s between the law an d Directive Pr inciple s of State Policy . Like Section 3 of th e 25th Ame nd ment, Section 4 of the 42nd Ame ndm ent pe rmitte d court s to engag e in mild me ans-end scrutiny . Judi cial access and the jurisdiction of the cou rts we re not preclud ed : We are disposed to accept the sub n1ission of the learned Solicitor General ... that it is po ssible to conceive of law s which will not attract Article 31-C since thetJ may not bear direct and reasonable nexus wi th the provisions of Part IV.24

(en1phasis supp lied) Howeve r, thi s time around , the court inv alidate d Section 4 of the 42nd Ame ndm ent. It di d so on the theo ry that fun dament al rights could not be ove rridd en by Directive Principle s of State Policy. Rathe r th an advoca ting a procedu ral du e pro cess em phasis on jud icial access, thi s time arou nd th e court seemed to be advoca ting an em phasis on the substantive impo rtan ce of fundame nta l rights. It wa s held that directive

p rinci ples and fundame n tal righ ts were pa rt of an equal balance , but by givi n g one primacy over the other , Section 4 de stroyed th e ba lan ce between th e two , a balance or ha rmo ny which wa s a pa rt of the "bas ic structu re" of th e Con stitutio n . The cou rt's opinion resembled th e opinion of Sh elat an d Grove r JJ in th e Basic Structure case25, who ha d advocated a simila r ap proa ch. Th e cou rt de rive d this "bas ic structu re" un d erstand ing by looki ng to th e "sch eme ", "core" or conscience " of th e con stitutio n . It was he ld that giving pr ima cy to d irective pr incip les ove r fun da me n tal righ ts would upset th e h armo n y of the constitution. Parts III and IV together constitute the core of commitmen t to social revolu tion and they, togethe r, are the conscience of the Constitution . . . . [T]he Indian Constitution is f ounded on the bedrock of the balance between Parts III and I V. To give absolute prin1acy to one over the other is to disturb the harmony of the Constitu tion. This harmony and balance between fundamen tal rights and directive principles is an essential fea ture of the basic structure of the Constitution .26 (emphasis supplied ) 11

Th e Supre m e Court accepted th at courts would be en titled to un d ertake scru tiny under Section 4 of th e 42nd Am endment much in the sam e way as courts could do pu rsuant to Section 3 of th e 25th Ame n dmen t. Acco rdingly , judi cial acces s an d th e ju risdictio n of courts ha d not b een ou sted en tirely . Howeve r, th e court re cogni sed that th e scru tiny which th e cou rts were pe rmitte d to unde rtak e consequ en t to Section 3 of th e llJ 171 25th Ame nd me n t wa s a ratio n ality standard , whe re the law could b e easily ju stified as having satisfied the test: A large maj ority of laws, the bulk of them, can at any rate be easily jus tified as having been passed for the purp ose of giving effect to the policy of the State towards securing sonie principle or the other laid down in Part IV . In respect of all such laws,

which will cover an extensive gamut of the relevant legislative activity, the protection of Articles 14 and 19 will stand wholly withdrawn . It is then no answer to say, while determining whether the bas ic structure of the Constitutio n is altered , tha t at least some laws will fall outside the scope of Article 31-C.27 (en1phasis supplied )

Accord ing ly, wh at the cour t seemed to assert in this case, un like the Basic Structure case28, wa s not th e proc edu ral right to jud icial access or to jud icial rev iew, bu t inste ad a sub stantive unde rst an ding of constitu tional norms. Th e ration ality test would not suffice whe n "all or any " directive pr inciple s were sought to be enforced . The "balance " or "har mo ny " betwee n fundame nta l right s and directive pr inciple s requi red a rea sonableness te st. Section 4 of the 42nd Amen dme nt did not pr event cou rts from looking int o the nexus be twee n the law an d the directive prin cipl e. H oweve r, the court seemed to be emphasi sing the substan tive value of fun da ment al righ ts. Recognis ing that means -end scrut iny unde r Article 31-C ha d resulted in a deferential rationa lity test, the cour t believed that fundame ntal rights could not be subor dinat ed to directive prin ciple s altogethe r . Doing so, in the opinion of the cou rt, would have up set wh at the cou rt substan tively determined was th e h armo ny inherent in the basic stru ctu re of the Constitut ion. It wa s held that giving pr imacy to all directive pr inciples over fundamenta l righ ts would destroy the "golden trian gle" of Articles 14, 19 and 21. Jud icial

access by itself w as not sufficient to satisfy the test of constitu tionali ty . Rathe r, the substa nti ve scheme of the Con stitu tion requ ired th at fundame ntal righ ts enjoy a certain ba lance in the Constituti on. Three Ar ticles of our Consti tu tion, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake ... . They are Ar ticles 14, 19 and 21 . Article 31-C has removed two sides of that golden triangle which

affords to the people of this country an assurance that the pron1ise held forth by the pre amble will be perforn1ed by ushering an egalitarian era through the discipline of fundan1ental rights, th at is, without emasculation of the right s to liberty and equality which alone can help pre serve the dignity of the individu al.29 (en1phasis supp lied)

Wa·man Rao v. Union of Union30 (Wa·man Rao), it was clarified th at Article 31-C had been uphe ld by the major ity in the Basic Structure case31,bu t for its second po rtion w hich h ad sub sequen tly lived an "ita licize d existen ce" . Th e Wan-zanRao case asserte d the right of jud icial access, in its hold ing that law s placed int o the IXth Schedule after the dat e of the Basic Structure lil 172 In

decision viz . 24 Apr il 1973, would have to satisfy the basic struc tu re test, an d were not immu ne from challenge . In other wor ds, a pe rson deprived of his righ t or inte rest by a prov ision of law inser ted into the IXth Sche du le could vin dicate her po sition by accessing a constituti onal forum an d challenging the depr ivatio n . H oweve r, the Minerva i\1.ills case32 stood out for the value judgme nt th at it made , w hich w as substantive rathe r th an pro cedu ral in character. The Minerva Mills case move from pro ced ure to substan ce appe ared to strike the cou rt as odd subsequ ently in Sanjeev Coke Mfg . Co. v . Bharat Coking Coal Ltd.33 (Sanjeev Coke), whe re the court found th at if Article 31-C was up held in its un amen ded form, there w as little rea son to strike down Section 4 of the 42nd Amen dm ent on the ground that it exten ded its app lication to all Directive Principles of State Policy. In its holding in the Sanjeev Coke case, the court 's substan tive value choices in the Minerva Mills case beca me appa rent . The cou rt recog ni sed th at if Section 3 of the 25th Ame nd ment ha d been held valid in 1973, ther e wa s no reason why Section 4 of the 42nd

Ame nd ment cou ld not have bee n held valid in the Minerva i\1.ills case: The dialectics, the logic and the rationale involved in uph olding the validity of Article 31-C when it confined its protection to laws enacted to further Article 39(b) or Article 39(c) should , uncon1promisingly lead to the san1e resolute conclusion that Article 31-C with its extende d protection is also constitutional ly valid.34 Furthe r, in uphold ing th e Coking Coal Mines (N ational isation) Act, 1972 for giving effect to the principle spe cified in Article 39(b) of the Constitut ion, the Sanjeev Coke case35 pr ove d the po int made by the Minerva 1\t1.illscase36 abou t the deferentia l nature of the standa rd a cou rt would ap ply in mea sur ing whe ther a law wa s ration ally relate d to Article 39(b) and (c). 1.1.2. llJ 173 Analy sing "Minerva Mills" 3 7

From a due pr ocess stan dpo int, the Sup rem e Court's decision in the 1\t1.ine rva Mills case w as signifi cant for three rea sons. First, by looking to the "s cheme ", "core" or "conscience" of the Constitut ion, muc h in the same way

as h ad bee n don e by a m ajority of seven justices in the Basic Structure case381 the Chief Justice who him self had dissented from the view previously 1 accepte d and reiterated the ba sic stru ctu re th eory 1 whi ch bore striking resemblanc e to the ap proa ch adop ted by Frank fu rter and Cardozo JJin the fede ral state du e process cases. Second1 in invalidating Section 55 of the 42nd Ame ndm ent, the court reiterated its concern for judi cial access1 ensuri ng th at jud icial review could not be ousted even on the que stion of constitu tional amendment s. Thi s was1 in essence, a proce du ral due pro cess hold ing. But third1 and most significantly 1 the court w ent beyond its opinion in the Basic Structure case1 an d asserte d not merely the right of judicial access1 bu t of a fine ba lanc e betw een constitut ional provi sions. By inv alidati ng Section 4 of the 42nd Amendment , the court seemed to state that fun dam ental right s could not be subord inated to directive prin ciples. The ability to appro ach a forum is an eleme nt of pro cedu ral du e pro cess. Howeve r, what one says before the foru m is sub stan tive . By protecting what pro spective pe titioners could say before the courts as mu ch as the ability of pe titioners to move the court s, th e 1\1.inerva 1\1.ills case

seemed to be adv an cing a theo ry of sub stantive due proce ss. By advoc ating that fundame ntal right s had a certain po sition in the Indian Constitutio n1 an d could not be subor dinated to directive principle s1 the court prote cted certain sub stantive values as opposed to proce du ral ones. Th e effect of the opinio n in the Minerva Mills case can be illu strat ed using an example . Assume th at Parliament ena cts law X whic h seeks to give effect to Article 39(d) of the Constitu tion i.e. equ al pay for equal wor k. H ad it not been for the opinion in the Minerva Mills case1 aggrieved pe titioners could ch allenge the law on the grou nd that law X actua lly deal s with a different subject-ma tter1 an d doe s not bear any direct an d reason able nexu s with Article 39(d). However 1 follow ing th e court' s opinion in the Minerva Mil ls case1 agg rieved petitione rs can chall eng e the law on a second ground i.e. th at the law infr inge s Article 14 or 191 whic h are supe rior to (or in any even t comparable with ) th e intere sts pre served by Article 39(d). The Minerva 1\1.ills case did not merely hold that access to judi cial remedie s could not be foreclosed by constitu tion al amendment . Rath er1 it m ade a substantive value judgme nt regar ding lill 174 the

hierarchi cal pos ition of fun da men tal rights in th e Constitut ion, an d held th at directive principles could not overr ide fundame nta l right s. 1.2. "Bonunai ',39 : absorbing the "Basic St ructure "

1.2.1. The decision

In the Sup reme Court's decision in the Bomn-zaicase, th e cou rt una nimo usly he ld th at th e Presidential Proclamation un der Article 356 of th e Constitut ion dissolving a Sta te Legisla tive Assembly wa s subject to jud icial review, alth oug h signifi cant area s of disagreement eme rged regard ing the scope of judi cial review .40 The un derlying premise of th e dec ision in the Bommai case decision 1.Jiz . th at the jurisdiction of the cou rts to und ertake inv estigation s into Presidential Proclamation s could not be ou sted, furthered the court s prev iou s procedu ral due pr ocess interests in pr eserving jud icial access, an d reiterated th e court's stan ce since the Basic Structure case41 . H ow ever, in answ ering the que stions th at arose in th e case, th e majority on th e cou rt went a step furt her, appl ied a methodology compa rable to that of ''incorpo ration" or " absorption"

u sed in the Am erican federa l state du e pro cess cases. For what app eared to be one of only a few such occasions in Ind ia' s constitutional history , th e Sup reme Court applied the "ba sic structur e" doctrine, which had prev ious ly been limit ed to qu estion s of constitut iona l amendment, ou tsid e th e sphe re of the constitu ent function, in this case to th e qu estion of th e President' s satisfaction unde r Article 356. In doing so, the court shrugg ed off its pr evious concerns that app lying the ba sic structu re doctrine to anyth ing besides constitu tional amen dments wo uld constitute "rewr iting the Constitu tion" .42 In id entifying or incorp or ating principle s de rivable from some po rtions of the Constitu tion, to qu estions arising un der different po rtions of the Constitu tion' s text, the court sub stantively app lied du e pr ocess type standard s in its rea sonmg. Th e cou rt was min dful of the fact that th e pr esid ential powe r un der Article 356 had been used over 90 tim es, an d that the proc ess was exp ensive and wo uld take its toll on the Indian taxp ayer. The cou rt un anim ously agreed that the President' s Proclamation un der Article 356 wa s subject to ju dicial review. H owev er, the cour t

wa s divided on the que stion of how inten se the cou rt's scrut iny cou ld be. P.B. Sawant and Kul dip Singh JJpe rhaps advoc ated the strongest test, an d app lied th e fam iliar "reasonablene ss" test, ho ldin g that it would lill 175 hav e to be seen whe ther the Pre sident h ad m at erial su ch as would "induc e a rea sonable man to come to th e conclusion in que stion." 43 Th ey also illustrated situat ions in wh ich it would not be constitutio n al for th e President to exercise hi s powe r un der Article 356. One of th ese illustrations wa s remini scent of the court 's "natura l justice" ho ldings in the Maneka Era, emp h asising wh at ap pear ed almo st to be a no tice and hearing requirement: The use of the power under Article 356 will be improper if ... the Presiden t gives no prior warning or opportuni ty to the State Go1. Jernmen t to correct itself. Such a warning can be dispen sed with only in cases of extreme urgency ... . Where in respon se to the prior warning or notice ... the State Government either app lies the corrective and thu s complies with the direction, or satisfies the Union Executive th at the warning or dire ction was based on

incorre ct facts, it shall not be proper for the President to hold that "a situ ation has arisen ... 44 (en1phasis suppl ied) On th e other han d, Jeev an Red dy and Agraw al JJ seemed to advoca te a less string ent test for scrut ini sing the Pre sident 's sub jective sati sfaction . It wa s clari fied that pr inciples of n atural justice would not be applied aga inst th e Pre sident , given th e na tu re of th e office: Since it is a case of subjective satisfaction, que stion of observing the principle s of natur al justice doe s not and cannot arise. Having regard to the nature of the power and the situation in which it is suppo sed to be exercised, principle s of natur al justice cannot be in1ported into the clause.45 What was in ter esting in thi s case wa s th at the court used the "ba sic struc ture " test to inform its analy sis an d ju stify its power s of jud icial review . P.B. Sawan t and Kuldip Singh JJ held that the bas ic struc ture of th e Con stitu tion forme d ad equa te ju stification for judi cial review. In thi s holding, th e court seemed to be safeguard ing ju dicial access conce rns identifiable as procedural du e proces s doct rin e. Th e "ba sic struc ture "

test was invoke d despite the fact that no constitu tional am endm ent was involved in th e case. [T]he federal pri n cip le, social plu rali sm and pluralist democ racy which form the basic str ucture of our Constitution demand that the judicial review of the Procl amatio n issued under Article 356(1) is not on ly an imperative nece ssity but is a stri ngen t du ty .. _46

Most impo rtantly, the court used the "ba sic structu re" test to me asure the constitu tionality of the Presiden t' s actions un der Article 356. It canno t be overemp hasise d that th e "ba sic structu re" test had, un til then, overwhe lming ly applied only to const itutio nal am endm ents llJ 176 an d largely to ques tions of jud icial access. Here, after securing its own access to ques tions arising under Article 356, the court use d the "bas ic structu re" test as a substantive value to meas ure the actions of th e President. Th e court identified "secularism " as being a pa rt of the bas ic structu re of the Constitutio n . It was held that since the President had dissolved the Rajasthan Assembly based on concerns of the secular ch aracte r of Ind ia, it could not be said th at the President did not hav e any mate rial before him .

Secu lari sm is thu s more than a pa ssive attitude of reli gious tolerance. It is a po sitive concep t of equal treatment of all religion s. This attitude is desc ribed by son1e as one of neutra lity tow ard s religion or as one of be nevole nt neu tr ality . This may be a concept evolved by wes tern liberal though t or it may be, as some say, an ab iding faith with the Indian peop le at all points of tin1e. That is not materi al. Wh at is material is that it is a constitu tional goal and a basicfea ture of the Constitu tion ... . A ny step inconsis tent with this constitu tional policy is, in plain words, uncons titu tional.47

(en1phasis supp lied) 1.2.2. Analysing "B011 1mai"48

The Supreme Court's de cision in the Bomn-zaicase was signi ficant for at least two reasons, w hen viewed thro ugh th e pr ism of subst anti ve du e proc ess. First, in u sing the "ba sic stru cture " theory to bolster the sanc tion of jud icial review , P.B. Sawant and Kuldip Singh JJ echoed the court 's pr evious proce du ral du e proce ss concerns regard ing judicial access, w hich ha d been resonatin g since th e time of the Basic Structure case49_ Howeve r, second, in measuri ng the "satisfactio n" of the

Presiden t throug h the lens of the "basic stru ctu re" theo ry, the court seemed to advo cate the propo sition that government authoritie s cou ld justify and order their actions by applying constitutional "pr incip les" attributab le to the Con stitutio n's ba sic stru ctu re . The second rea son, accord ing ly, was sub stantive , as it went beyo nd the court' s concern for proce du ral due proce ss as jud icial access. The Bom·mai caseap plied a substantive value other th an judi cial access in reaching its conclu sion . While several judge s in the Basic Structure casean d Indira Gandhi case50 had identified sever al featu res of the Con stitution 's "ba sic structure ", the court' s reasoning in the se cases wa s app lied to safegua rd jud icial access an d the jurisdiction of court s to enter into que stions of con stitutio na l significan ce. In Bon-zmaicase, lill 177 similar to the Minerva Mi lls case51, the court iden tified "seculari sm" as a value an d used it to de fine what criteria wo uld justify a Presidenti al Proclama tion un de r Article 356. Like the Basic Structure case52 an d its proge ny , the court in this case substant ively identifie d the "ba sic stru cture " of the Con stitutio n. However ,

unlike the Basic Structure case and its progeny , the "ba sic stru cture " test in thi s case w as app lied not in a proce du ral sense to safegu ard judi cial access, but in a substantive sense to determi ne th e legality of Presidenti al Proclam ations. Although thi s case dea lt w ith executive action, which has bee n stated as being beyon d the scope of th is work , the salien t featu res of thi s case have bee n discu ssed in thi s section to hig hlight the cou rt's empha sis w hich went beyo nd jud icial access. 2. Legislative "arbitrarine ss"

In the po st-Maneka Era, the Supreme Court's arbitrarine ss" do ctrine beg an to assume vast propo rtion s. The old " arbitrarine ss te st in the 50s an d 60s was used synonymou sly with "rea sona blene ss" unde r Article 19 and "classification " under Art icle 14. The "ne w " arbitrarine ss test acknow ledged the synerg istic relationship between Article s 14 and 21, w ith the radiating pre sen ce of Article 19 in the ba ckdrop . Together , th ese three constitut ional pro visions forme d a golden triang le" which her alded " arb itr arine ss" revie w, although courts some times left out the values enfor ced by the se pro visions from the ir analy sis. The 11

II

11

textua l "reasonab leness" test unde r Article 19 had been used in the early years of the Supr eme Cour t' s history un der Art icle 14 analy sis as well, either as "rea sonablene ss" or ''arbitrar iness", although the se terms w ere used interch angeably. In the Mane ka Gandhi case53, the court seeme d to apply the te st of arbitrariness" to Article 21 for the first time. H owever , the "arbitrar iness" te st involved significant drawbacks. Its gre atest flaw wa s its indefinite ness - wou ld it apply to equ al pr otection prob lems, to depr ivations of life and person al liberty, to both, or neither? Wou ld the term "arbitrary" be used synonymou sly with "fair, ju st an d reasonable"? Would th e "ba sic struc ture " test give meaning to the wor d arbitrary "? In this section, cases in the post-Maneka Era dea ling with statu tory challenge s in whi ch the te st of arb itrarine ss" w as used are analysed to assess the after effects of the Maneka Gandhi case court 's reasoning. 11

II

II

2.J. liJ 178 The doctrinal looseness of"arbitrariness"

Althoug h the arbitrar iness" te st w as formulate d broadly in the Maneka Gandhi case54, confer ring upon II

constitu tional courts the enh an ced pow er of "reasonab leness" review, it wa s used overwhe lmingly to safeguard "natur al justice" or "proce dur al du e proce ss" . The form of review was mild as it involve d a signi ficant degree of deferen ce to legislation. Viewed thr ough thi s pr ism, the court's "arbitrarine ss" stan dard in the Maneka Gandhi case collapsed into an inte rpretive du ty, by which the court s took it upon them selves to interpre t all law s constitutio nally, thereby defe rring to and signi ficantl y pr eserving the statuto ry constru ct. In othe r wo rds, th e court w ould avoid facially invalid ating law th at could be viewed as constitutio nal in applied factua l situ ations. The over w helming majority of statu tes ch allenged before the High Cou rts in the period following the Maneka Gandhi case were declared not arb itrary. 55 Furthe r, in ma ny of the cases in whi ch statute s were liJ 179 stru ck dow n on the pur porte d groun d of being "arbitrary", the use of th e term "arbitrarine ss" w as a ter minological misfit, jur ispr u dentially unconne cted w ith the "new " stan dard articulate d in the Maneka Gandhi case, or with p rocedur al due pr ocess. By thi s time, the term arbitr ariness" had be come a talisma ni c II

catchphr ase in In dian constituti onal law . Accordingly, beside s its u se in term s of pr ocedural due process, w hen a court said that a sta tut ory provi sion wa s "arbitrary ", it llJ 180 could me an one of four things, non e of whi ch was akin to Bhagw ati CJ's "new" appr oach in the Manek,a Gandhi case56 - firs tly, that the law creat ed an unr easonable classification and violate d equal prot ection gua ran tees; secondly, th at it wa s enacted by a legislative autho rity that lacked th e constitutio nal compete nce to enact th e law; an d thirdly, the law wa s a "validating act" that soug ht to overru le a judg me nt of a cou rt; or fou rthly, it was a sta tut e that created excessive delegat ion . The pr imary reason th at these categorisatio ns do not fit wi thin the term "subst antive due pr ocess" or for that matte r, "du e pro cess", is that th ey h ave little to do wit h the deletion of the wor ds du e proc ess of law" from the text of the Indian Constituti on, or with the "du e proc ess" clauses of th e 5th and 14th Ame ndm ents to the Ameri can Constitu tion . Whil e it may be interesting to exam ine these categories of cases throug h th e lens of jud icial review gene rally, it would be an error to catego rise th ese cases as due pro cess" cases. It would II

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also be an err or to term th ese cases emanation s of Bhagw ati CJ's "new" app roach in the 1\1.anekaGandhi case, since the re wa s nothing "new " about th ese cases they each app lied doctri ne th at pre -dat ed the Maneka Gandhi case. Each of these catego risations is add ressed below . 2.1.1. Equal protection and unreasonable classification

Statu tes violatin g equal pr otection guar antees of th e In dian Constitut ion hav e been ter me d arbitrary " in m any cases.57 Th ere was nothing "new" about thi s phenome non, since th e Supreme Cour t wou ld often term law s that did not satisfy its classification test before the Manelca Gandhi case arbitrary ". The se were legitima te equal prot ection cases involving some form of discrimination. The cou rt accor dingly used the term arbitrar iness" syno nymously with discrim ination in these cases. H ere, the term arb itrar ines s" could not be considered an em an ation of substantive du e proc ess do ctrine for each of thr ee reasons, ba sed on th e definition of substantive du e pr ocess in Chap ter 2 First, these cases involved no substantive scrut iny unde r the righ t to "pe rson al liberty" unde r Article 21, but II

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scrutiny un de r th e right to equal pro te ction un der Article 14, wh ich is no t "due process" . In other words, the " arbitra rine ss" pr inciple of the rig ht to equality di d not spill over into Art icle 21 analy sis, an d consequently these cases involved no " absorp tion" or "in corpo ration". Second, here the cour ts ne ither create d rig ht s, no r impo sed W181 stricter bu rden s. Third, the se cases invo lved no substan tive scrutiny un de r Article 21. Substa ntive revie w in equ al prote ction cases is con cep tu ally easier to de fen d in terms of a court's "representa tion reinfo rcing " fun ction,58 althoug h nearly every depriva tion create d by law is cap able of being articulated as an equal prote ction violation . Fu rthe r, the framer s of the India n Constitu tion had knowing ly inserted the wo rd s "equal prote ction" into Article 14. They w ere awa re th at thi s was a phr ase borrowed from the America n Constitu tion an d they could reasonably be said to have expecte d some form of substantive rev iew to follow . 2.1.2. Legislative co1npetence

Statu tes enacte d ul tra vires, or beyond the scope of the authority of the legislative bo dy were some times termed

"arbitrary" .59 There was nothi ng new" about a court 's holding whi ch iden tified th at a law was unco nstitut ional because the legislative authority did not have the compe ten ce unde r th e VIIth Schedu le to enact it. H ere, th e term "arbitrariness" was used synonymo usly w ith law enacted withou t constitut ional compete nce. Th e VIIth Schedu le to the In dian Constitu tion cont ains three lists viz . the Union List, the Sta te List and the Con curren t List. Each of these lists define s the sphere of legislative compete nce of the In dian Parliament an d State Legislative Assemblies. Law enacted by Parliament or a Sta te Legislative Assembly outs ide the sphere of its legislative compete nce could be declared un constitut ional. Indi an courts have somet ime s termed su ch law s " arbitrary" . The court's arbitrarine ss" catego risation in these cases is do ctrinally unrel ated to substant ive due pr ocess for each of the three reasons me ntioned above. Fur ther, the sphere of legislative compe tence is no t an "un wr itten", "ba sic" or "invisible" 60 po rtion of the Indian Constitu tion bu t is enshr ined in the Constitu tion's text. 11

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2.1.3. W 182 Statute s that sought to ovemlle judgn1ents

In D. Srinivas Rao v. Govt. of A.P. 61, Section 5 of the A .P. Coopera tive Societies (Ame nd me nt) Act, 1990 was inv alid ated on the gro un d th at it wa s "un constituti on al .. . arbitrary an d there fore violat ive of Article 14 of th e Constitut ion of In dia ..." 62 because it overruled a jud gmen t of a Division Bench of the High Court. Again, the ter m arb itrary " her e does not refer to sub stantive due pro cess in the three form s in which it is commonly un derstood . The court in the se cases asserted that an un constitutional law can be made constitut ional by curing th e un constitu tion ality of th e law, bu t not by overruling the jud gment which declared it un constitu tional. In such cases, the court merely reaffirms its pr ior holding. For example , assume th at the India n Parliamen t enac ts a law establishing a po lice force for th e whole of India. Assume further th at since only State Legislative Assemblie s have the legislative compete nce to enac t law s establishing po lice forces, the Supr eme Court inv alid ates the law in Xv. Union. If the Indian Parliam ent ena cts a law ent itled : "The Xv. Union Overruling A ct" w hich overru les th e judgmen t of th e Supr eme Court, the incompetence of the Indian II

Parliame nt to legislate on poli ce matt ers still remains . Such law s have been term ed arb itrary " by Indian cour ts in some cases . Parliame nt wou ld accor dingly have to am end th e Con stitu tion to extend its legislative sphere to po lice matt ers, and then reenact the law . It wou ld be no answer in such cases for Parliam ent to arb itrar ily" overr ule the judgmen t. H owever , "valid ating acts" were invalida ted by courts even pr ior to the 1\.1.aneka Gandhi case63. This category also included cases in w hich statut es soug ht to implie dly overru le pr ior judicial dec isions w hethe r deliberately or du e to over sight.64 II

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2.1.4. Excessive delegation

Statutes that delegate d the "essential legislative function" to adm ini strative agencies h ave been terme d arb itrary " .65 Ag ain, the rule aga inst lill 183 excessive deleg ation was pr evalent in Indian constitu tional law mu ch before the Maneka Gandhi case66 . H ere, the term arb itrar iness" is used syno nymously wi th the deleg ation of unf ettered powe r to administra tive autho rities, an d follows from the admini strative law 11

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pr incipl e th at a con stitu tionally created legislative authority canno t abandon th e legislative functio n ent ru sted to it by the Constitut ion . This category of cases can be distingui shed from th e exercise of arbitrary pow ers by the Passport aut hority in Maneka Gandhi case. In thi s catego ry of cases1 legislative bo dies have been held to be pro hibite d from deleg ating substantial chunks of th eir own power s to admi ni strative authorit ies1 since adm inistrative au th oritie s cannot function as de facto legislatu res. Manek,a Gandhi case que stioned the procedure s used by th e statu tory delegate in the exercise of its valid powe rs1 but did not que stion th e deleg ation of powe rs to th e authority. Conversely1 if these cases are to be considered tru e du e proc ess cases conside ring th at they derive from an un derstan ding of th e "legislative function in the Constitut ion, it mu st be state d that the law emerg ing from this category is neither novel no r uniq ue, and has been around since at least 1951.67 H oweve r, the reason that this catego ry of cases is exclud ed from substanti ve du e pro cess cases is because such cases have also been found an d are prim arily derived from English Law1 68 11

w here there is no writte n constitut ion1 let alone a piq u ant du e proc ess" clau se. Accordingly, when the framer s of the In dian Const itu tion deleted the word s due pr ocess from the Con stitu tion they could ha rd ly hav e wi shed to exclud e Eng lish jur isprude nce as oppo sed to Ame rican from th e develop ment of Indian constitu tional law. Con sider two scenarios. In scenario A 1 the In dian Parli ame nt pe rmi ts the Election Commi ssion of Ind ia to enact all election related law s, ru les an d regula tions In scenario B1 the Indian Parliame nt reserves the power to legislate on elector al m atte rs to itself, but perm its th e Election Commi ssion of In dia to disqua lify electoral can dida tes from cont esting election s with ou t giving them a righ t to be hear d . In scen ario A , a cou rt is likely to fin d th at the delega tion of powe r to the Election Commi ssion was excessive . In scen ario B, the cou rt wou ld probably app ly th e Maneka Gandhi case pr inciples to find that alth oug h th e delegatio n of powe r wa s not excessive1 th e Election Commi ssion canno t arbitrarily" deprive can didate s of th eir right to be hear d before disqualification . Accor ding ly, catego rising the law in II

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scenar io A as L!!..1 184 "arbit rary " understood as Bhagwa ti CJ' s, "new " app roach would be a terminological mi sfit. Mo st impo rta ntly , these cases seemed to belong to the same family of cases tha t th e Supre me Cou rt had be en addressing since the 1950s involving what ha s been termed in thi s wo rk as "vvell-defined class" concerns. Excessive delegation leaves open the po ssibility th at law will be unpredic tably app lied. 2.1.5. Executive action

The "arb itr ariness" test, however, w as applied with frequency to invalidate actions of admini strative authorities. 69 For example , in Francis CoralieMullin v. UT of Delhi7°, the Suprem e Court of Indi a invalidated a "conditions of detention order " under whic h a detained pri soner wa s not entitled to meet his lawyer without t~e prior permi ssion of a District Magistra te. In this significant case, the court seemed to artic ul ate a broade r te st of "arbitrarine ss": it was held that no procedure establis hed by law could ever fit the framewo rk of the "reasonableness" or "arbitrariness" if it provided for a syste m of "cruel , inhuman and degrading treatment " by

State officials .71 H owever , it is important to under stand that this finding was formulated in the cont ext of an admini strative order. Similarly, in Air India v. Nergesh 1\lfeerza72, the Supreme Court found a service rule to be a "mo st unrea sonable and arbitr ary provi sion which shocks the conscience of the Court ", de spite the fact that it did not involv e any discri1nination or inequ ality un der Article 14. H ere, again, the test was applied to invalid ate secondary or delegated legislatio n, but not prim ary legislation. The "arbitr ariness" test as applied ou tside the context of legi slation is not within the scope of this work .73 H oweve r, it is ne cessary at this w 185 stage to distinguish legislation fro1n adminis trative or executive action on the ground of its inherent uniquene ss - First, legislation is enacted by democrati cally elected members of the legislative bran ch of government . In In diaI federal law is enacted when both hou ses of Parliament vote in favour of a proposed bill .74 Member s of the Lower House of the Indian Parliament i.e. the H ou se of Peop le or the "Lok Sabha", are cho sen by direct election from territorial constituenci es in the

States,75 while member s of th e Upper H ou se of the Ind ian Parliament , the Coun cil of State s or the "Rajya Sabha" are elected in directly by the represe ntatives of the States.76 State Legislative Assemblie s fun ction on similar democratic procedu res.77 The member s of the India n Parliament and State Legislative Assemb lies acc~rdin gly ha ve ~ direct mand ate from the people of !nd1a. Se~ond, parli amen tary pr ocess, at least in theo ry, 1s a de liberative proce ss an d an attempt to achi eve consensu s, 78 deserving of far mo re deferen ce than execu tive action . The fact of coalit ion governme nts stre ngthe ns thi s argument , considerin g that it wo ul d theoretically be that mu ch more difficult to achi eve consensus. Third, the re is really no executiv e br anch of gove rrun ent in India independent of the legislative branch. Cons equ ently , the re is no President in Indi a who can claim to hav e a direct mand ate from th e entire n ation as oppo sed to indivi dual constituen cies. For the se three reason s it is po ssible to mak e the claim that the legislati ve br an ch of govern me nt in India deserve s grea ter deference, w hich is why the analysi s of the

"arb itrarine ss" test h as bee n isolat ed to the prism of legisl ation. 2.2. W 186 "McD owell ": "arbitrar iness" discip lined

2.2.l. The decision

In March 1996, the doctr ina l looseness of the "arbi trarine ss" test was mos t visibly highlig hted by th e Supreme Court of Indi a in State of A.P. v. McDowell & Co.79 (McDowell). The case was decided by a thr ee-Jud ge Ben ch of the Supreme Court. The court considered th e constituti on al valid ity of the Andhra Prades h Prohibiti on Act, 1995. Th e law pro hibited the sale an d consum ption of intoxicating liquo rs in the State of Andhr a Prad esh, but estab lished an elaborat e system of excep tions throug h penn its and licen ces. It wa s conte nd ed th at the system of exceptio ns rendered the law "arbitra ry". The court depreca ted the indiscrimin ate use of the term "arbitr arin ess" to surmnarily strike down legisla tion with out deep er an alysis. It was he ld that an en actmen t cou ld be challenged only on one of two grou nd s: i) lack of legislative competenc e; an d ii)

violation of any fun damenta l right gu arant eed by Part III of the Indian Constitu tion, or of any other constituti onal provision . The cou rt distingu ished its pr evio u s opin ion in State of T.N . v. A nan thi A mmaz 80 and foun d th at the cou rt had u sed the term "arbitrary" in that case to mea n discriminatory . Accordingly, the court seem ed to emp hasise th at an "arbitrariness" test should be ap plied to depr ivations of valu es which could be persuas ively linked to cons titutional pr ovisions. The cou rt em phasised the need to inject a degree of objective analysis in the invali dation of statu tes for "arbitrariness". We do not w ish to ent er into a discu ssion of the conc epts of proc edural unre asonab leness an d substan tive unreason ab leness conc epts [sic] insp ired by the decisions of th e Uni ted States Supr eme Cou rt .... N o enactment can be struck down by jus t saying that it is arbitrary or unreasonable. Sonie or other [sic] constitu tional infirniity has to befoun d before invalidating an A ct. An enactment canno t be str u ck down on the ground that Court [sic] thi nks it unjus tified . . . . It is one thi ng to say that a restric tion impose d upo n a fun d amen tal righ t can be struck down if it is dispropo rtionate , excess ive or unre asonab le and

qu ite ano the r thi ng to say that the court can stri ke down enactn 1ent [sic] if it thinks it unreaso n able, unnecessary or unwarran ted . (en1phasis supp lied )

2.2.2. Analysing "McDowell" Accordingly , the cou rt in this case app eared to discipline the use of the "arb itrariness" test without ren dering it inappli cable. Two observatio ns in this cont ext mus t be made. First, th e cou rt hi ghlighte d the liJ 1~7 ~oct~in~l l~oseness of the "arbi trariness" test by d1st1ngu1sh1ng 1t from cases involving equal protection or discrimination issu es (th e interming ling of the "arb itrariness" test w ith equa l pr otection analys is has been hi ghlight ed in the pr evious ch apters). Second, it sou ght to root th e " arbitrariness" test in values derivable from th e India n Con stitu tion . Whi le this wou ld certainly not pr eclud e the appli cation of the "~rbitrariness" test to un enum erat ed "new " rights (since even unenume rated right s can be held derivab le fro m th e Constituti on), it wo uld discipline an d limi t the test to libe rty or other values identifi ed w ithin constitu tion al text.

For exam ple, assum e th at Parliam ent en acts law X. A cou rt wo uld be justifi ed in striking it dow n if it finds that law X vio lates Articles 14, 19 or 21, or any oth er constituti onally derivab le right. A court would also be justified in striking law X down on th e ground that it vio lates, for exam ple, the "righ t to go abro ad", since the cou rt has foun d that such a right derives from Articles 19 an d 21 of th e Con stitu tion. H owev er, a cou rt would not be ju stified in str iking it down for the mer e rea son that it is "arb itrary ", despite the fact that "non arb itr arine ss" wa s equated in th e Maneka Gandhi case81 w ith equa lity . Wh at the court in Mc Dowell case82 accord ingly app eared to be doing wa s disciplinin g judi cial review , by requ iring courts to articulate the right s invo lved mo re specifically . In other wo rds, law could not be found '' arb itrary " un less th ere wa s an equal pr otection, liberty or freedom de privat ion . 2.3. "Malpe Vishwanath": "arbitrarine ss " restated

2.3.1. The decision

In Ma lpe Vishwanath A chan;a v. State of Maharash tra83 (Malpe Vishwanath), the Supreme Court of India wa s

faced with a case that pr esent ed, in essence, an equa l prot ection pr oblem . Howev er, its reasoning w ent far beyo nd the para meters of equal protection analy sis. The case invo lved a constitu tional chall enge of cert ain provis ions of th e Bom bay Rent s, H otel and Lodging H ou se Rates Contro l Act, 1947 (in short, th e "Rent Act"), wh ich "pegg ed down " the rent that tenan ts wou ld have to pay to their landlord s. The land lords chall eng ed th e constitut iona lity of th is law on the principle "lex injus ta non est lex" i.e. unju st law s are not laws ,84 contend ing that th e law had, w ith the "pas sage of time" become "arbi trary and unr easonab le with th e chan ge in circu mstan ces" .85 Like llJ 188 its previou s decision in the i\1.cDowell case86, th e case wa s dec ided by a thr ee-Judg e Bench of the Suprem e Cou rt. Relying on several autho rities to bol ster the proposit ion that the law had become "arbi trary" with the pa ssage of time, Kirpal J foun d th at th e law had become "arb itrary ": [A] statute wh ich [when] enacted wa s justified may, with the passage of tin1e, becon1e arbitrary and unre asonable . . . . In so far as social legislation, like the Rent Control Act is concerne d, the law mu st strike a balance betwee n

rival interests and it shoul d try to be ju st to all . The law ought not to be unjust to one and give a disp roportion ate benefit or protection to another section of the society ... . When enacting socially progre ssive legislation the need is greater to ap p roach the prob lem from a holistic persp ective and not to have n ar row or shor t sighte d parochia l ap p roach. Giving a greater than due emphasis to a vocal section of soci ety results not merely in the miscarriage of ju stice but in the ab di cation of responsibi lity of the legislative autho rity. Socia l Legislation is tre ate d with def erenc e by the Courts not merely because the Legislature represents the peop le but also because in representing then1 the entire spectrum of views is expected to be taken into accoun t .87

Interesting ly, the court in Malpe Vishwanath case88 chose not to inva lidate the law since th e law was going to expire very soon. Instea d, it war ned the legislatu re tha t if it extended the applic ation of the law without p aying heed to its advice, the law would be unco nstitut ional. H owever , in articu lating its stan dard of "arbitrariness" or unfai rne ss the court did not consider its previou s holding in the McDowell case.

2.3 .2. Analy sing "Malpe Vishwanath "

If the i\1alpe Vishwanath case were an alyse d thr ough the pri sm of the Maneka Gandhi case89, then it is clear that the court app lied the 1\11.anekaGandhi case court' s first propo sition, bu t not the second. In other words , the Supreme Cour t in thi s case used the Maneka Gandhi case court' s "arbitrar iness" test and invalidated the law for subs tantive arbitrarine ss". H owever, the 1\11.alpe Vishwanath case court did not exam ine the case through the Maneka Gandhi case court's second propo sition i.e. that the procedure establi shed by law must be "fair, just an d reasonable " . If it h ad done so, it wou ld have reali sed at the outset th at the landlord's right to receive just rent from ten ants could not be a part of the righ t to "personal liberty " or "life", and conseque ntly the que stion of procedu re being "fair, just and reason able" did not arise. The right to receive ren t (i.e. money ) could more easily be said to have arisen out of the right to liJ 189 proper ty, whi ch was deleted in 1978 from the Chap ter on Funda mental Right s. The Malpe Vishwanath case90 essentially po sed an equal pro tection pro blem. As a result of the law, tenants in II

1997 were paying ren t at rates which were prev alent in 1940. Thi s resulted in dispro po rtionate bene fit for tenants to th e detrime nt of lan dlord s. The court wou ld according ly h ave been justified in framing its an alysis in equal prote ction term s. For exam pl e, the cou rt could have found that the law trea ted the se two classes of ind ividua ls viz. lan dlord s an d tenan ts, differently and conferred an undue benefit upon tenants at the cost of the landlor ds, a benefit or me ans wh ich bore no rea sonable nexus to the objective of ten ant prote ction. Th e court seemed to rea ch thi s conclu sion when it said : The Legislature is not shackled by the same constraints as the court s of law. But it' s power is coupled with a respon sibility . It is also the re spon sibili ty of the court s to look at legi slation from the altar of Article 14 of the Con stitution. Thi s Article is in ten ded , as is obviou s from its word s, to check thi s tendenc y; giving undue preference to some over others. (emph asis supp lied )

H owever , rathe r than inva lidating the law on th e simple touch stone of equal protec tion an alysis, the cour t dev ised a broa de r construct - it aske d itself whe ther legislation could, with the ''pa ssage of time " become

arbitrary an d un rea sonable " in changing circum stan ces. The court answered thi s que stion in the affirmative . H owever , it may perh ap s have been simpler for the court to hold that the "pa ssage of time " m ay make an otherwi se constitu tional law discrimin atory " . If not, then what prin ciples will the court use in the future to identify whether the "pa ssage of time " has ma de a law arbitrary "? Thi s form of arbitrarine ss" review evoke s Patanjali Sastri CJ' s warning in State of Madras v. VG . Row 91 (V G. R ow) of the "social philosophy" and "value s" of judge s overwhelming outcome s. Ther efore, iden tifying the case as involving an equal protection problem m ay have been more pruden t. For example , imagine a State law th at grant s women the right to abo rtion. Can the courts declare after sever al years th at the pr inciple upon wh ich the law was ba sed is no longe r w idely held by society an d that the law mu st the refore be inv alida ted,92 despite the absence of an lill 190 equal protec tion violation ?93 Fur th er, affirmative action in Ind ian constitut ion al law was inten ded to be a temporary mea sure . H owever, it ha s 11

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been w idely cont inued in India due to politi cal pr essure s and social reali ties. Can a cou rt ignore the specific equ al pr ote ction benefit to historically oppre ssed minor ities and fin d that the continu an ce of affirmative action in India has become unr easonable and arbitrary"? In support of the propo sition th at the passage of time can result in arbitr ariness, th e Supreme Court relied on pr ior authoritie s which did no t appear to bolster the broad arb itrar iness" pr opo sition . For exam pl e, the cour t relied on State of M.P. v. Bhapal Sugar Industries Ltd.94, whe re an alleged ly discrimin atory tax law was in qu estion . India n States were reorganised by the States Reorga nisation Act, 1956, un der whi ch terr itories of th e forme r Bhop al State were incorp ora ted into the State of Mad hya Prade sh . For the sake of expe diency, the laws in force in the forme r State of Bhop al were continue d in that regio n, wi th the effect that th e Bhopal State Agricultu ral In come Tax Act, 1953, whic h impo sed tax on agr icultural income, was contin ue d in the ter ritories of the former State of Bhop al. H owever , in th e rema inin g pa rt of the State of Madhya Pradesh, agricultu ral income was not taxable. 11

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This w as challenged as discrimina tory. The cou rt applied the ratio nal ba sis test an d held th at a law inten ded to be temporary coul d not assume pe rman ency unless the discrimin ation was founded on a ratio nal basi s. In this case, there w as no reaso n why agricultur al income shou ld have been taxed differentl y in different pa rts of the State, except for the reaso n of expedien cy. The cour t in this case h ad therefore essentially held th at th e reaso nable nexus between a classificatio n an d its object may dissipate after the "passage of time " . It is impo rtant to note th at this case involved discrimination which was challenged i.e. thi s w as an equ al pro tection case. Applying similar reaso ning, the Malpe Vishanath case95 cou rt coul d h ave held that the classification create d by the Rent Act at its inceptio n was justified in relation to its object, bu t th at the "pa ssage of time " had destroye d the foun dations of the reasonab le nexu s. H owever , in articula ting a broad stand ard of "arbitrarines s", the cou rt left the door ope n for fu ture courts to app ly loose stan dards based on their pe rson al pr edilections.

Nex t, the cour t relied on Narottam Kishore Deb Varman v. Union of India96 , in w hich the pe titioners ha d challenged Section 87-B CPC, 1908. Section 87-B, whi ch pres cribed a different pr ocedu re in suits involving W191 ru lers of form er pr incely States, was challeng ed on an equ ality grou nd viz. that it discriminated betw een ru lers of form er princely States and ordinary citiz ens. Th e cou rt upheld the pr ovision, but said that in the futu re there w as a chan ce that it would be open to "s erious challenge" du e to the ''w earing out " of "hi storical consideratio ns" .97 The cou rt made a similar observa tion in an oth er equal prot ection case relied upo n by the Supr eme Cou rt in the Malpe Vishwanath case98 viz . H.H. Shri Swan1ijiof Shri A-mar Mu tt v. Con1mr,, Hindu Religious and Charitable Endow-ments Deptt,99 , in wh ich the cou rt upheld the law in qu estion. Again, these cases invo lved discriminatio n be twee n two classes of individu als and bolster ed the pr opo sition th at the "nexus " prong of the classification test may be foun d w antin g after the "passage of time " . Nex t, th e cou rt relied on two landlord -ten ant cases which did not po se "pas sage of time " problems at all,

but simp ly invo lved equal prote ction dilemm as. First, the court relied on 1\t1.o tor General Traders v. State of A ,P.100, whi ch involve d a challeng e of Section 32-B of the Andhra Pr ad esh Bui ldings (Lease, Rent and Eviction ) Con trol Act, 1960, which exempte d bu ildings bu ilt after a certain date 101 from the provision s of th e law. The court foun d tha t th e provi sion in the Act violated the equal prot ection clau se of th e Con stitut ion since it wou ld create a pr ivileged class of landlords witho ut a ratio nal ba sis. Thi s case, howev er, involved a bright line test that w as inh erentl y sus cep tible to being "arb itrary " . Second, th e court relied on Rattan Arya v . State of T.N ,102, wh ich exem pted tenants th at paid more th an Rs 400 as rent from the purv iew of the law. Both of these cases w ere equal protection cases invo lving discrimination. Finally, th e court relied on Synthetics and Che-micals Ltd. v. State of U,P. 103, in whi ch provision s of several pro hibition law s in India wh ich sought to impose limits on "in du strial alcohol" w ere challenged as unco nstitut ional. Th e m ain que stion was whe th er State Governments had legislative competence to im pose a

"vend fee" on ind ustrial alcoho l. The cou rt examin ed Entry 8, List II of the Vll th Schedu le104 to the Ind ian Constitut ion, whi ch permitted Stat e Governme nts to legislate on the top ic of "int oxicating liquo rs". In interpr eting th e entr y, the cour t examin ed Article 47 of the Indian Constituti on, a non-justiciable llJ 192 ''Directive Principle of Stat e Policy",1°5 whi ch man da ted that the State must "endeavou r to bring abou t proh ibition of th e consump tion excep t for me dicinal pu rp oses of intoxicatin g dr ink s and of drug s which are inju rious to health". Th e court found th at th e restrictions w hich were app licable to alcoho l for human consumption could not be he ld to apply to industri al alcohol. H owev er, in a prev ious decision viz . State of Bombay v . F.N . Balsara106, the Bombay High Court had held tha t the wor ds "intoxicatin g liquor " were not confined to "po table liquor " alone. In this con text, the cou rt held - "restriction [sic] vali d un der one circum stan ce may become invalid in changing circum stan ces" .107 Th e cou rt u sed these wo rds not to imply that legislation had become ou tda ted, bu t th at a form er jud icial interp retation of law had become

un ten able. Th ese words were relied upon in Malpe Vishwanath case108 to justify declari ng formerly constitu tional law inv alid . Further, the cour t in thi s case did not invalidate law w hich w as constitu tional at its inception becau se a change of circu mstances had ren dered it un constituti onal. Inste ad, th e cour t fou n d that the law which impo sed dutie s on in du strial alcohol was unco nstitut ional. This wa s therefore effectively an au tho rity for the propo sition th at one jud icial pr ecedent can be overru led or distingu ished by ano ther . According ly, most of the au tho rities cited by the cour t in suppo rt of its propo sition revealed a situ ation in w hich legislation w hich at its incep tion did not discriminate between two classes, had after several years become discrimin atory owing to th e dissip ation of the nexu s betw een the law an d the object in th e ligh t of chan ged circumstan ces.109 In othe r wo rds, th e law in most of th e cases above violated equal prot ection und er Article 14. Th e i\1alpe Vishwanath case wou ld ther efore hav e been justified in articulat ing its finding of unco nstitut ionality in ter ms of the classification test. Instead, in finding th e law un constitut ional on th e

bro ad groun d of ''arbitrarines s", it left ope n the pos sibility that jud ges wou ld use the ir own pred ilections to de termine const itut ional ity . Incidentally, th e fact that the law was not invalida ted raises questions of whether the court should have ignored w hat it considered was, in principle, constitu tional invalidity, for the purp oses of liJ 193 pra cticality. 110 Most imp ortan tly, it is significant to un derstan d that the Malpe Vishwanath case111 did not involve a right to life and pe rsonal liberty - for thi s reason, its "arbitrariness" articulation wa s an equal prot ection one, not entirely ma de in a context similar to the "right to go abroad" articulate d in the 1\1.aneka Gandhi case112 . 2.4. Ma rdia Cheniicals

The 1\1.ardia Chemicals case113 sits unh app ily at the intersection of the "ba sic stru ctu re" form of substantive du e process and the "arbitrar iness" version of substan tive du e process. H owev er, the case involve s proc edu ral du e process concerns. Like the Basic Structure case114 an d its pr ogeny, it substantively

invoke s a right an d applie s it to pr ocedu re. H owev er, it doe s so using the "arbitrariness" test unde r Article 14. 2.4.1. The decision

The tests devised in the Maneka Gandhi case attained fruition in 2004, in the Mardia Chen1ica ls case, wh ere a the thr ee-Judg e Ben ch on the Suprem e Cou rt of India invalida ted Section 17(2) of the Securitisation an d Reconst ructi on of Finan cial Assets an d Enforcemen t of Security Int erest Act, 2002 (Securitisation Act), p opu larly referred to as "SARFAESI", on the groun d that it wa s arbitrary" . Th e case involved a constitu tional ch allenge of Sections 13, 15, 17 an d 34 of the Secu ritisatio n Act. The Securiti sation Act gave banks an d fin an cial institut ions wi de pow ers to recover their due s from bo rrow ers. Section 17 in p articular pro hibited borr ow ers from "appeal ing" against the actions of cred itors, before the Debt Recovery Tribunal , w ithou t the pr ior depo sit of 75 pe r cent of the claime d amo unt . The statutory langu age unde r Section 17 wrongly ter me d the remedy pr ovided to the debtor as an "appeal " - the sta tut ory rem edy was essentially a challenge before a cou rt of first II

instance , an d not an app ellat e cour t. 115 lill 194 Th e pe titio n ers ch allen ged Section 17 of th e Securit isation A ct on th e ground of arb itr arin ess " . It stru ck the cour t as unreaso nab le that a bor row er would h ave to de posit up to 75 p er cent of th e du es w ith th e Deb t Recov ery Tribunal b efore being ab le to access a judic ia l rem edy , n otw ith stan ding th e d iscretion ary pow ers of th e tribuna l to waive this requ ireme n t. Brijesh M ishr a J spoke for th e cou rt: The amou nt of deposit of 75°/o of the den1and, at the initial proceed ing itself sou n ds unreasonable and appressive more particu larly when the secure d assets /the managemen t thereo f along wit h the right to transfer such interest has been taken over by the secured credi tor or in some cases p roper ty is also sold . Requ ireme nt of deposi t of su ch a heavy amount on basis of one sided claim alone, cannot be said to be a reasonable cond ition at the first instance itself before start of adju dica tion of the dispu te. Mere ly giving power to the Tribu n al to waive or red u ce the amou nt, does not cure the inherent infirmity leaning one -sided ly in favour of the party , who , so far h as alone bee n the party to decide the amount and the fact of defaul t and classifying the du es as N PAs wi tho u t 11

participa tion/association of the borrower in the process . Such an onerous and oppressive condition shou ld not be left opera tive in expectation of reasonable exercise of discretion by the concerned authority . Placed in a situa tion as ind icated above , where it may not be possib le for the borrower to raise any amou nt to make the deposit , his secu red asse ts havi ng already been taken possessio n of or sold, such a rider to approac h the Tribunal at the first inst an ce of proceedi ngs, captioned as appea l, renders the remedy illusory and nuga ton;. 116

(en1phasis supp lied ) A ccordingly , th e cou rt articu late d its re ason in g in fin d in g the law arb itrary " : The condit ion of pre -deposi t in the prese nt case is bad ren dering the remedy illusory on the grounds th at i) it is imposed whi le ap p roachi ng the adjudicati ng authori ty of the first instance , not in appea l, ii)there is no detern1in ation of the amou nt due as yet iii) the secured asse ts or its n1an agement wi th transferab le inte rest is already taken over and un der cont rol of the secured credi tor iv) no special reason for doub le security in respec t of an amoun t yet to be determined and settled v) 75% of the amoun t clain1ed by no means wo u ld be a II

meager amoun t vi) it will leave the borrower in a position where it would not be possible for hin1 to raise any funds to n1ake depo sit of 75% of the undetermined demand . Such conditions are not alone onerous and oppressive but also unre asonable and arbitr ary . Therefore, in our view, sub-section (2) of Section 17 of the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution .117

(emph asis supplie d) 2.4.2. W195 Analysing "Mardia Chen1icals" 118 Again, it is important to an alyse thi s case th roug h the pri sm of the Maneka Gandhi case119 propo sitions. It is app arent th at the 1\1.ardiaChemicals case120 dealt with the fairne ss of pro cedu ral law . The court in its key holding wa s no t concerned with whether it wa s fair to allow lende rs to recover due s from bo rrowe rs. It was con cerned, however , with whether the procedure which had been established by law enabling lender s to deprive borrower s of the ir due s, wa s "fair, just and reasonable " . H owever , h ad the court app lied the Manek,a Gandhi case121 cou rt' s second propo sition, and te sted the law

thro ugh the lens of Article 21, it wou ld have realised very qu ickly th at the borrower's right to not be deprived of money is a proper ty intere st, not a life interest . Money falls mo re happily into the right to property than it doe s wi thin the righ t to life an d per son al liberty . According ly, by hold ing th at the proce du re establ ishe d by law was not "fair, just an d reasonable ", the cou rt wou ld have impliedly been read ing the righ t to property into the Chapter on Fundamenta l Rights from wh ich the right w as con sciou sly deleted in 1978. Alternat ively , however , the court could have held th at the righ t to judi cial access or a reme dy w as a part of the righ t to life an d per sonal liberty , wh ich was unfairly deprived de spite the fact that it was dep rived within a property contex t. Instead, by u sing the Maneka Gandhi case Court 's "arbitr arine ss" language to inva lidate the law, th e cou rt demonstrated th at the first propo sition of the Maneka Gandhi case h as swallowed or enveloped the second. The u se of the term "arbitrarine ss" by the 1\1.ardia Chemicals case cour t mu st again be qualified wit h a few observat ions.

First, this decision app ears to be striking be cause th e cou rt seems to have ap plied its pr ocedu ral due process judi cial access conce rns to ord inary law . Previou sly, the cou rt' s concerns for judi cial access, de rive d from the "ba sic structure " test, h ad bee n applie d against constituti ona l amendment s to safeguar d the court's powe r of jud icial review . For exam ple, the cou rt's opinion s in the Basic Structure case122 , Indira Gandhi case123 Minerva Mills case124 an d Wa·man Rao case125 ha d app lied the "ba sic structu re" te st to constitut ional amendmen ts. In almo st no case besides Bon-zmaicase126 had the "ba sic struc tu re" test bee n used aga inst ordinary llJ 196 legislation. In fact, Ray J h ad caut ioned again st its ap plication to ordin ary law in the Indira Gandhi case. The court 's first deviations from this phenomenon occurred in the Bon-zmaicase127, where the cou rt seemed to articulate its judi cial access concerns in the context of executive action . Accordingly, in th e Bommai case, the court used the basic stru cture test to mea su re th e constitu tional ity of Presiden tial Proclamation s un de r Article 356 and not aga inst constituti ona l amendment s. I

In Mardia Che·micals case128, the court took a step in the

Bommai case direction, and emph asised what appea red to be judi cial access concerns aga inst ord inary law . In highl ighting th e importa nce of a remedy for borrowers aga inst banks, the cou rt seemed to echo the judi cial access concern s it h ad pa insta kingly prote cted in the Basic Structure case129 and its proge ny . Alth ough the court in Mardia Chemicals case did not sta te that it was ap plying the "basic stru ctu re" test formally , it appe ared to be articula tin g th e same con cern s that it had emphasi sed in th e Basic Structure case. The Mardia Chen-zica ls case court seemed mo st concerned with the fact th at a depo sit of 75 per cent of the due s wo uld ren de r the reme dy available to th e borrowe r "illu sory". On the oth er hand , rath er th an the ba sic stru ctu re te st, if thi s case we re reformulated using th e test ap plied in the Maneka Gandhi case130 , th en the cou rt's reasoning wou ld perhap s run as follow s - Article 21 require s that "life and pe rsonal libe rty" can only be deprived according to "fair, just an d reason able" pr ocedu re howeve r, jud icial access is incap able of "fairly , justly or rea sonably " being depr ived .131 Like the Basic Structure

case1 th e n orm articulat ed wa s sub stan tive but its app lication wa s p rocedur al. H oweve r th e fact th at th e cou rt d id n o m ore th an emph asise th e law' s "arbitrarine ss" th eo retically left op en th e po ssibility for cou rts to app ly th e "arbitrarine ss" test against all law ev en law whi ch evo kes n o jud icial access con cern s. The cont ext of th e case viz . th e court's conc erns of proc edu ral du e proc ess as jud icial access mu st th erefor e b e kep t in min d wh ile thi s case is rea d . Second1 it is entir ely pos sible to vi ew th is case thr oug h th e pr ism of excessive d elegation or "ungu id ed" or "un fett ered " p ow er be in g conferr ed on a statut ory body 1 a do ctr in e which th e Supr em e Cou rt ha d W197 be en ap plyin g nearly sinc e its in cep tio n . Th e Deb t Recovery Tribun al could in its d iscretion h ave wa ived th e d eposit of 75 per cen t of th e du es. H owev er1 th e exe rcise of its d iscretion was unr egula ted . Th e cou rt seem ed to be ho ld ing in th e Mardia Cheniicals case132 th at by n ot pr escribin g an y gu id elin es for wh en th e Deb t Recovery Tribun al wou ld be justifi ed in wa ivin g th e depo sit1 th e law h ad "arbitrarily" conferred p ow ers that enab led th e trib unal to di scrim inat e betw een p ersons. View ed thro u gh thi s lens th e court wa s m erely 1

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ar ticulati n g its conc ern s u n der th e first p rong of th e classificatio n test i.e. its "w ell-defin ed class" con cern s. By n ot defini ng the ma nn er in w hi ch th e discretion wou ld be exerci sed1 th e law h ad not made certain how it wou ld be app lied an d w as con seque ntl y su sceptibl e of discrim in ation: As in dicated earlier1 the position of the appeal un der Section 17 of the Act is like th at of a suit in the court of the first instance un der the Code of Civil Procedur e. No doubt in suits also it is perm issible1 in given facts an d circumstan ces an d un der the p rovisions of the law to attach the property before a decree is p assed or to appoint a receiver and to make a prov ision by way of interim measur e in respect of the pro perty in suit. Bu t for 1

obtaining such orders a casefor the same is to be made out in accordance wi th the relevant provisions under the law. There is no such provision un der the A ct.133

(en1phasis supp lied) Third1 an d at a d eep er lev el of abstr action h ow ever th e court's use of Ar ticle 14 seem s to in dicate its wi llingne ss to vi ew eve ry pr oblem as an equa l prot ectio n p roble m . At a fun dament al levet every law dep riving righ ts an d en titlem ent s can be viewed thr ough th e p rism of equa l 1

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protection an alysis, an d the court's rea soning in the Mardia Che·micals case, applying Manek,a Gandhi case134, only demon strates th e court' s accept ance of this proposit ion. Howev er, such reasonin g aga in doe s not tak e into accoun t th at bo dy of law which is arguably "arbitrary, yet equal " . For exam ple, im agine that Parliament enac ts law X which requires the winn ing side in a sui t to deposit 75 pe r cent of its winning s with the cour t following the decree . In other wo rds, irrespe ctive of the pa rty th at wins the dispu te, th e party mu st deposit 75 per cent of its decretal amoun t with th e cou rt as a form of "litigation tax" conseque nt to obtain ing and execu ting th e dec ree. Althoug h this law may w ell be "unr easonab le" and "arbitrary ", it appl ies equally to both p arties in a disput e, assum ing that both side s are equally pla ced finan cially. Since either pa rty could theo retically "win " the case. Even the "separate bu t equal " 135 theory could perhap s have been inv alid at ed on the gro un d lill 198 th at equality and arbitr arines s are not the same. The Mardia Chemicals case136 analy sis of "arb itrar iness" wo uld enab le court s to ren der such a law un constitu tional, despite the fact that

it is not "unequal " . Howev er, th e Mardia Che·micals case did invo lve inequal ities at two levels - firs t, betwe en banks an d bor row ers, as banks w ere favour ed to borrowe rs; an d second, th e ungu ided discretion of the Debt Recovery Tribuna l ren dered the app lication of th e law un certain . Fourth, like th e Basic Structure case137, this case ap peared to involve both subst anti ve and pr ocedu ral du e process. It wa s substant ive becau se it substa ntively defined th e value of "arbitrarine ss" as eman ating from the Constituti on, in the absence of id entified equa l prot ection or liberty depriv ations. It wa s procedu ral becau se the substantive test was appl ied to judi cial access pr oblems . Accordingly, th e cou rt in Mardia Cheniicals case seeme d to be holding (but did not expr essly hold ) the follow ing thr ee proposit ions: i) judi cial review is a part of the ba sic struc tu re of the Constitu tion, an d the ba sic struc tu re theory app lies to ordina ry legislation; ii) jud icial review is a "right " included within th e right to "life an d pe rsonal liber ty" und er Article 21, an d cannot be deprived at all; an d iii) th e Securit isation Act is discriminatory an d violates th e classification test for

discriminating betw een bor rower s and bank s on the one han d, and not guid ing the discretion of the Debt Recovery Tribun al on the oth er. H owever, in hold ing merely that th e law wa s "arb itrary", the court esch ewe d criti cal an alysis, an d the opin ion leaves open the po ssibility th at the arb itrariness" te st will be appl ied wi thin cont exts outside of th e Mardia Chemicals case. Conside r, for exam ple, a law whi ch arbit rarily decl ares that Indian citizens canno t drink tea in the afternoo n . Assume that th e gove rnme nt justifies its law on the gro un d that drink ing tea redu ces produ ctivity, and that there is da ta to sub stant iate this claim . Assume for a mome nt that the right to drink tea is not hi era rchically su fficient to '' discover" it as an "une numerated " right . Following the Mardia Cheniicals case constru ct, th e court would be able to declare the hy pothe tical tea law un constitu tional. It could do so by ignoring the wo rd s "equal prote ction" un der Article 14 - alth ough the tea law wo uld ap ply to all citizens equally ; and th e wo r ds "life an d personal liber ty" under Article 21 - althoug h the tea law would not viol ate "life" or "pe rsona l liberty" . It cou ld also do so de spit e the fact th at drink ing te a is not an "essential featu re" of the In dian II

Con stitu tion . The inva lidat ion of th e tea drinking law is the dang erou s po ssibility th at the Supr eme Court's loose arbi trariness" te st in the Mardia Cheniicals case leaves ope n. II

2. 5. llJ 199 "Sukhpal Singh": a gaze into the future

The doctrinal loo sene ss of the Maneka Gandhi case138, Malpe Vishwanath case139 and Mardia Cheniicals case140 threa tens to exponen tially expa n d the po we rs of constitu tional cou rts in Indi a in the years to come. In Sukhpal Singh Bal v. State of U.P. 141, decid ed before the Mardia Cheniicals case, th e Allahaba d High Cou rt wa s faced wi th the que stion of the constitut ionality of a taxing sta tut e, which impo sed tax on "transport vehicl es" and a penalty of 10 time s the tax p ayab le in the event of default. Th e penalty was challenged as being dispr oportion ate to the offen ce, an d the refore as arb itrary" . It is impor tant to note th at the right to pro perty, th oug h on ce a fundamen tal right under Article 19(1)(/), wa s dele ted in 1978.142 Accor ding ly, besides proper ty deprivatio n, the payment of excessive tax did not invo lve th e dep rivation of a fundame ntal 11

right 1 much less of "life or persona l liberty " under Article 21. The tax penalty wou ld app ly to all "transport vehi cles" in the event of default 1 and the prov ision accordingly did not entail equa l prot ection an alysis. H ow ever, the cou rt found that the pe na lty was "highly excessive and arbitrary", read ing into th e Indian Constitut ion a gen eral requir ement of proportionality in legislation. According ly, the court inva lidated the prov ision, holding th at the "pu ni shme nt should be pro po rtiona te to th e offenc e" .143 In support of this holdin& the court relied on the M anelcaGandhi case and on two oth er cases. Th e firs t of these was Ranjit Thakur v. Union of India14\ a case in wh ich an individua l had been senten ced to "rigorou s" impr isonment for one year an obviou s depr ivation of persona l liberty, whi ch th e court ha d found disproportionate and un fair in relation to th e offence. The second was U.P. SRT C v . Mahesh Kumar Mishra145, in which the petitioners challeng ed an adm ini strative order , not a stat utory prov1s1on. Accordingly , without a "life and persona l liberty" depr ivation, and without an equa l prot ection violation, the Allahaba d High Court relied on the M aneka Gandhi

case and the two cases cited above to invalida te Section 10(3) of the U .P. Motor Vehicles Act, 1988 on the "arbitra rines s" touchsto ne . Th e loose enunciat ion of the "arbitra rines s" doct rine in In dian constitu tional law thr eatens to develop into a lethal "fairne ss" test. Ironically in the pas sive absence of a du e proc ess clause and in the face of an affirmative, conscious deletio n of the due pro cess clause from th e lill 200 Indian Constitut ion, Indian constitut iona l courts hav e now arguably begun to exercise more powe r th an they wou ld hav e h ad even und er a due proc ess clause. Article 14, couch ed as an equa l protection clause, ha s become an overarching ''fairn ess" provision, und er wh ich constitutio n al court s test legislative proc edu re and de termine wh ether it is fair. "Arbitrarine ss" has become a talism anic catchp hr ase in Indi an constitutional law. H ow ever, the analysis un der Article 14 of essentially due pro cess doctrine divor ces the words "life and pe rsonal liber ty" from the analysis. The cour t is not concerne d with wheth er the pro cedu re it analyse s actually deprives a substa ntive valu e or right wh ich is hiera rchically super ior and therefor e deserving of constitutional prote ction.

Had the framers of th e Indian Constitut ion inserted a "du e pr ocess" clause into the India n Constitut ion, Indian constituti on al courts wou ld pote nti ally analy se challenged legislation in thr ee stage s - in the firs t stage, the cou rt wou ld determine whet her th e statut e violated "personal liberty", as subst antively un derstood ? In this stage, th e court would determi n e the meaning of "personal liberty" and in so doing , form ulat e a series of hierarchi cally supe rior right s, for example th e right s to privacy , foreign trav el, a clean environm ent, food , clothing and shelter. In the second stage, the court wo uld deter min e w hethe r any of these rights wou ld be depr ived by th e pr ocedu re established by the statu te. Finally, in th e event the law deprived a person of the right to "person al liberty ", th en in the thi rd stag e, the cou rt wou ld ascertain w hethe r the deprivation was "reasonable, just and fair" . H ow ever, the development of Ind ian sub stant ive due pro cess doctri ne, from the Maneka Gandhi case146 to the 1\1.ardia Che·micals case147 indi cates th at a const itu tional cou rt m ay ignore the word s "person al liberty" while testin g the "fairn ess" of statu tes.

Consider two hypo thetical statut es. Statu te A allows po lice officers to tap telephone s with out magisterial orde rs an d without recordi ng any official reasons for their actions. Sta tut e B tells gov ernm ent employees that they mu st report th eir time s of entry an d exit to a recording officer, failing whi ch their services can be terminated after comp lying with pr ocedura l du e proc ess requiremen ts. Under a legiti m ate int erpr etatio n of a due process clau se, a constitut ional court in India could invali da te statut e A , bu t not statut e B. Statu te A violates due process an alysis becau se in first stag e the wo rds "pe rsonal liberty" includ e the right to priv acy; in second stage th e right to priv acy is violated by a statut e that permits the Sta te to tap telephones; and in third stage the proc edu re for th e depr ivation of th e right to pr ivacy is not "reasonable, ju st and fair" i.e. it is "arb itrary " becau se it does not requ ire m agisteria l W201 sup ervision, and doe s not requ ire a police officer to record his reasons in wri tin g in accord an ce with th e provis ions of natural justice. Statute B, on the other han d, would be constitu tionally valid und er du e proc ess analysi s becau se in first stag e itself, th e cour t wou ld determine that th e wo rds "personal liberty" do

not give a governmen t employee the right not to have her timings do cumente d.148 However , following the Supr eme Cou rt' s de cision in the 1\1.ardiaChe·micals case149 , sta tut e B can pot entially be invalid ated by an Indian constitut ional cou rt on the gro un d th at th e pro cedure is ''arbitr ary" or "unfa ir", even in th e absen ce of a "per sonal libe rty" deprivation. Now consider statu te C, whi ch tells gove rnmen t employee s that they mu st wo rk for an add itional hou r each day i.e. from 5 p .m . to 6 p.m . Sta tut e C accordingly does not stipul ate pr ocedu res, but substan tively deprive s gove rnmen t em ployee s of an add itional hou r of free time each work ing day . It can be argued that "personal libe rty" doe s not include the right to work for a limited number of hour s each day . H owever, can an Indian constitu tional cou rt invalidate statute C as "arbitrary " follow ing the Suprem e Court' s opin ion in the 1\1.ardia Che·micals case? The dange r of the Mardia Che·micals case decision lies in th e fact th at a constituti onal cou rt could, while te stin g th e constituti onality of statute C, use the "arbit rarines s"

te st, an d hold that the act of ra1s1ng the nu mb er of wo rking hou rs is "arbitr ary" an d "unr easonable ". According ly, th e court's arbi trariness" test in the Mardia Cheniicals case threate ns to dev elop into a test w here the court can not mere ly invali date proc edu re it rega rds unfa ir, but sub stance it consider s "arbitr ary". The court m ay, for examp le, de clare law s whi ch impo se he avier tax bur den s on alcoho l or toba cco corp orations arb itrary" despite the real absen ce of a fund amental right violation.150 Publi c policy choices, reflected in legislation , and not invo lving any form of funda me ntal rights depriva tion, stan d the likelihood of being invali da ted on "fairn ess" grou n ds. II

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2. 6. liJ 202 Conclusion

Do ctrinally, whe re do es one place "arbitr arine ss" in th e sch eme of constitu tional jurisprud ence? The Supre me Court' s arbitr arine ss" test me ans many thing s to many p eople. It ha s been invo ked in various contexts. Vagu ely roote d in "rea sonablene ss" review un der Article 19, an d deriving suste nan ce from a rejected "du e pro cess" clause under Article 21, its emergen ce in Article 14 of the Indian Constitu tion ensure s that it can be applie d to II

a va st varie ty of cases, invo lving discrimin ation, or disproport ionate or unre asonable , execu tive or legislative action. The do ctrin al loosenes s of the "arbitrariness" standard in Indi an constitu tional law is app aren t. First, when the court says that a law is "arbitrary ", one is not exactly sure what the term "arbitrary " me an s as it h as been used in variou s context s. The term '' arbitr arine ss" h as become a talismanic catchphr ase in invalid ating legislation . Second, de spite sour cing the "arbitrariness" test from Article s 14 an d 21 of the Ind ian Constitu tion the test may theoreti cally be applied to cases wh ich 1nay not involve equal protectio n an d liberty at all. For example , in A ir India v. Nergesh Meerza 151 (A ir India), the Supreme Court acknowledged that even if a law we re not unequal or discriminatory , it could still be found un constitu tional if it were "entirely unre asonable an d absolutely arbitrary" . Third, while the court seems to employ an intui tionist 152 appro ach in determin ing the arbitrariness" or otherwi se of legislation, it doe s not set ou t its me thodo logy in any rel atively objective test or ana lysis. 11

The Supreme Court 's "arbitrarine ss" doctrine h as resulted in two striking consequence s: firs t, it has resulted in an abstrac t pro po rtional ity standard. According ly, Indi an court s can invoke Article 14 or Art icle 21 to test the "fairne ss" or "proport ionality " of statute s in cases where there is neither any discrim inatio n no r any libe rty de pr ivation. Second, it has collapsed the constitutio n- statute divide by constitut ionali sing" ordinary statu tory rig ht s. Ordinary rights create d by ordinary statute s can now dem and a hig her level of scrutiny. It is important to note that equal prote ction analy sis usually ha s the effect of constitut ionali sing sta tut ory rights. For examp le, althoug h there is no fundamen tal right to social welfare rights like pension, where a statute discrimina tes between per sons of differen t colour or caste in dete rmining whi ch of the se is to get the bene fit of social welfare, the statute can be decla red W203 unco nstitut ional. 153 H owever , the test devised by the Supreme Court in the Mardia Chemicals case154 dev iates from thi s constru ct by divo rcing equal prote ction analy sis from its arbitrarine ss" an alysis. According ly, 11

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follow ing th e court's holding in th e Mardia Chemicals case, a citizen may be able to ma ke a constitu tional claim that statu tory welfa re right s are unf airly inade qua te, although no group is being given any spe cial pr ivileges.155 Fu rther, not all statu tes in Indi a create rights. Statute s in Ind ia may pr edomina ntl y do the following : (i) create rights (e.g. the right to inf orma tion, 156 or the right to mainten an ce,157 or rights created by th e incorpo ration of international treati es into dome stic law 158); (ii) create pro cedu res (e.g. for pro cessing special claims,159or ordinary claims 160); (iii) declare penal nor m s (e.g. defining wo rds 161 or symb ols162 w hose utte ran ce, u se or misuse is illegal); (iv) set standard s of observan ce or regu late private industry (e.g. enviro nm ent al statu tes whi ch define stan dards th at in du stries are requi red to meet, 163 or stan dards required to be ma intained by banks,164 cable television netwo rks 165or pr ofession als166);

(v) deprive right s in certain extraord inary situa tions (e.g. depr ivation s of fair trial procedure s in ter rorism cases,167 prev entive deten tion in cases of nation al secu rity 168); W204(vi) govern commer cial or pr ivate relations (e.g. contr act law,169compa ny law,170prop erty law 171); (vii) establish regu latory agen cies (e.g. the Reserve Bank of Ind ia, 172 Securitie s and Exchange Board of India173), ad ministrative tribun als,174 gover nm ent corp orations,175 universities an d educa tion al inst itutions , 176 or sp ecial arm ed forces,177 or otherw ise regula te the form ation , framewor k or func tioning of gove rnmen t or limbs of governme nt;178 (viii) en able gove rnmen t plannin g (e.g. State tow n pl ann ing law, 179 federal lan d acqui sition law, 180 bank nation alisation law,181or law setting u p spe cial economic zones 182); (ix) confer extraor dinary or emergency pow ers on law enforcemen t agencies (e.g. law s conferring powers on

the armed forces 183) or governmen ts (e.g. powe rs to regula te the entry of foreigner s 184 in In dia); (x) prov ide the framework for generating revenue (e.g. income tax 1851 or prop erty tax 186) or managing revenue (e.g. foreign exchange management 1 187 or prevent ion of money laun dering 188); (xi) provide the framework for the pre serv ation of government pro perty (e.g. monument s189); (xii) alter or reorg ani se State bo un daries 190 or create new State s; (xiii) amen d or repeal statute s; (xi7.7 ) amend the Constitut ion; or liJ 205 (xv) provide the framewor k for the acqui sition/ determ inatio n of statu s such as citizen ship .191 None of the se categorie s is strictly indep endent of the other . Beside s statutory law 1 Indian common law large ly governs priv ate relationship s throug h the law of torts1 whi ch creates an inter connected web of rights an d dut ies. Viewed throug h the pri sm of intera ction betwee n priv ate and State actors1 Indi an stat ute s can be of three

kind s - vertical stat ute s whi ch de al with citizen-S tate interaction s; horizo nt al stat ute s which deal with inter citizen intera ctions an d govern pr ivate rel ations ; an d constitu tive sta tu tes which establ ish State framewor ks1 and set ou t State function s. Vertical statute s may create or deprive right s which are typically con side red constitut ional. For examp le1 land acqui sition law de pr ives a per son of proper ty while special terrori sm law s de pr ive fair pro cess rights. The right to vote in India is a statu tory rig ht1 although no bo dy would deny th at it cannot be repea led. Similarly the statuto ry righ t to inform ation is considered a part of the freedom of spee ch in Indian law . H owever many verti cal an d ho rizonta l statute s do not dea l with constitutional or fundamen tal values 1 wh ile con stitutive statute s often do not crea te or deprive rights at all. The ho rizonta l statutory right to an easement can hardly be called constitut ional or fundamen tal1 the verti cal statu tory right to social welfare is traditionally not conside red constitu tional or fundamen tal1 and a framework statu te w hich establi shes a bu reau cracy or corporat ion doe s not confer any ordinary right s at all. Con stitu tive statute s may 1

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confer rights on gove rnment emp loyee s, or on States as against each other an d/or aga inst the Union , 192 but rarely if ever do they confer right s on ord in ary citizen s. How will the arb itrariness stan dard int era ct with these thr ee cat egories of sta tut es? The court's relaxed stan ding ru les an d its abstra ct form of review thr eaten to exa cerba te this difficulty, by giving ordinary citizen s stan ding to m ake "arbitrari ness" claims in cases invol ving constitutive statu tes. For exam ple, can ordi n ary citizens claim th at the statu tory constitut ive pro cess of an adm inistrative agen cy is arbit rary and disproport ionate becau se th e appo inting commi ttee doe s not include the leade r of th e oppo sition p arty? Can a citizen claim th at the creatio n of a governmen t life insurance corp ora tion is un constitutio nal because it is "arbitrary " for th e gove rnme nt to ent er the field of insurance ? Add itionally , how will th e court' s arbitr arine ss stan dard int eract with sta tut es which create or dep rive ord in ary rights? For example, can W 206 a citizen claim th at he has a constitutio n al right against the arbitrary deprivatio n of an easement , or can negligence claim s aga inst th e governmen t be enfor ced throug h constitutio n al pro ceeding s? Can a per son claim

that th e constru ction of a sky scrape r in fron t of his ho me arbitrar ily deprive s his right to a great sea view? Th e "arbitra riness" doctri ne in Indian constitu tional law is a po w erful instru ment for con stitu tional har mony, but a poten t weapo n for demo cratic selfdestruc tion . Applie d in the context of con stitu tional value s, superio r no rm s, or statu tory rights which resemble constitu tional libertie s, the arbitra riness standar d ha s the po tenti al to form a vibrant check aga inst the gover nm ent. H owever , powerfu l "arb itrariness" review, in the absence of significant do ctrinal an alysis, an d in the cont ext of the court's democ ratic an d po liti cal insul ation, obscu res th e cour t's own po sition in a "ru le of law " democ racy as a creatu re of the Con stitu tion, an d threatens to prec ipito u sly expand th e powe rs of constitu tional court s in India. 3. "Right to Life" jurisprudence

The "public int erest" revolution of th e Supreme Cou rt of India follow ing the Emerg ency is a well -docum ented fact of Indian legal history, and the court' s "right to life" jurisprud ence193 h as been identified an d assessed in num erou s accou nts, over several yea rs, in a manner that

canno t be bested in a discussion on substanti ve due proc ess. Similarly1 the idea that Ind ian jud ges became increasing ly activi st followi ng the Emerg ency is neither novel nor uni que,194and the court's activism in this era has been termed "atonement" 195, "selflegitimi sation"196 or "repu tational redem ption " 197. No ted constitu tional scholars1 S.P. Sathe 198 an d 200 Up endra Baxi 199, sep ara tely ven tu red "conjectur es11 that the era of "po st-Emerg ency activism" was founded in an attemp t to refu rbish lil207the court' s own image , 201 following the an act of "judicial populism 11 Emerg ency. H owever 1 it w as the the sis of the previous p arts that the pos t-Emergen cy Era witnessed not mer ely "ju dicial pop ulism"1 but also an expa nsion of judi cial pow ers of constituti on al scru tiny. Jud icial activism follow ing the Emerg ency took two form s1 as opp osed to the one wh ich it is ordin arily attribu ted : i) a tende ncy for the court to expand constitu tion al do ctrin e1 as was seen in the Maneka Gandhi case2°2 an d its prog eny; an d ii) th e creation of rights w hich typ ically sough t to prot ect the "socially an d economically disadv antaged "

classes. Thi s pa rt examine s th e second of these categorie s1 whi ch is mo re commo nly attribu te d to the court's po st-Emergen cy atonemen t phase. Howeve r1 the an alysis in thi s part is condu cted ent irely thr ough a du e proc ess lens. Unde r wh at ha s bee n termed th e Supr eme Court's right to life" jurisprude n ce,203 the follow ing un enume rated right s have at some point been recogni sed1 crea ted or discovered by the court betw een 1960 and 2006: (i) the right to pr ivacy,204 the right aga inst solitary confinement I205 (ii) th e right ag ainst the use of bar fetter s,206 the right to a speedy triat 2°7 th e right to free legal aid;2°8 (iii) the right aga inst han dcu ffing,209 a limited right again st de layed executio n;210 (i7.J ) the right against custodial violence ;211 (7.J ) th e right to better work ing conditio ns;212 (7.J i) the right to livelihoo d;213 (7.J ii) the right aga inst pub lic han ging;214 11

(viii) the righ t to a clean env ironmen t;215 liJ 208 (ix) th e right to th e assistan ce of docto rs in a

med ical emergency ;216 (x) the righ t to food (inclu ding a right aga inst m alnutrition 217, clothing an d shelter;218 (xi) the right to ed u cation,219 th e right aga inst arbitr ary arrest;220 (xii) the right aga inst sexual ha rassme nt at th e wo rkp lace;221 an d (xiii) the right to be tter po lice administration .222 Althoug h the re may well be instan ces of other rights having been created " du ring an Article 21 inv estigation , an d an exhaustive laundry list of right s has more elegantly been provided by an other au thor elsewhere,223 this p art u ses the right s ident ified in thi s p ara gr aph as a samp le set to study the methodology of "fun da men tal righ ts" type subst antive due pro cess doctrine in Ind ian constituti onal law . From a du e process stan dpoint, most of these cases fall wi thin the second category of Ame rican substan tive due proc ess doctr ine i.e. they created rights whi ch in many 11

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cases cou ld not be persua sively linked to the textu al directions of Article 21 of the Constitut ion. Int erestin gly, w hile "creati ng" these "un enum erat ed" rights, the Supre me Court did not impo se stricter bu rden s as ha d been done by th e Ameri can Supreme Court in the substantive due process War ren Era privacy cases. Howeve r, these cases were striking for any one of the following thr ee, often overlapp ing, reason s. First, these cases were extra ord inary on account of th e court's discard ing of traditio nal stan ding rules. Stan ding ru les were relaxed either by pe rmitt ing citizens to represe nt "di sadvantaged " group s, or by allowing citizen s to repr esent "diffu sed " 224 intere sts. On occasion, the formal pro ced ural constrain ts of constitu tional law were discarded altog ethe r, an d letter s w ritte n to judg es were "conve rted " into petit ions in exercise of "epi stolary ju risdi ction" . In the mo st striking circum stan ces, courts would discard stan ding ru les altoget her, an d take up cases by th emselves i.e. suo mot u" . Second, these cases were striking on accoun t of the na tu re of th e obligation th at the remedy or direction impo sed upon th e State. Depend ing upon th e natu re of 11

the right involved i.e. po sitive or nega tive1 the State wo uld be man da ted to un dertake either a positive or nega tive action to W 209 remedy the injustice before the court . Positive right s would entail po sitive obligations for th e State1 oblig ations w hich woul d in tu rn either involve recu rr ing or continuou s single or numerou s actions. A distin ction is sought to be drawn here betw een "recurr ing" and contin uou s" obligation s. A "recu rr ing" obligation repeats itself across differen t cases1 for different people an d in differen t circum stan ces. Howeve r1 a continu ous" obligation involves the performance of a contin uou s duty for the same case, peo pl e or circum stance. For exam pl e1 the Maneka Gandhi case225 hold ing may have resulted in a "recu rr ing" obligation1 as aut horitie s w ere require d therea fter to offer noti ce and he aring to a w id e variety of claima nts w hose rights w ere to be depr ived . The oblig ation "recurred " from one instan ce to the next. H ow ever1 be sid es notice an d hear ing, the authorities did not have a continuou s obligation with respe ct to the same claim ant. Beside s hearing Maneka Gandhi herself the au thoritie s did not have to contin uou sly provide any furt her relief to her. In oth er wo rd s1 when a court 1

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creates a pre cedent , it sets up a "recu rr ing" oblig ation for autho rities an d perso ns to order their actions according to law . By contr ast1 in th e malnut rition cases w hich are examined in this part1 the court requ ired authoritie s to perform a continu ous duty in the same case1 and repeatedly super vised th e perfo rman ce of the continuou s obligation . In this section 1 court directions involving such continu ous" obligation s are referred to as "positive continuou s" orde rs. This has often bee n referred to in In dian juri spr ude n ce as the continu ing mand amus " althoug h it must at the outset be distingui shed from th e "recu rring" natu re of the manda mus. For exam ple1 if the State police are directed to refrain from handcuffing its prisoners1 the directions wou ld certainly requi re poli ce officers to refrain in all futu re cases from requi ring its prisoner s from being handcuffe d . In this sense the ma ndam u s "recu rs" . H owever in the "positive continuou s" cases1 the cou rt would requi re the pe rform an ce of a continuou s duty in the same case or group of cases. "Positive contin uou s" oblig ations are not me rely distingui shable from "recu rring" obligation s be cau se 11

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they are specific to a certain category of persons eithe r before the cou rt or represe nted befo re the court 1 but also because the natu re of the obligatio n often change s. It will be seen that D.K. Basu v. State of W.B.226 (D.K. Basu) can be distin gui she d from the ma lnut rition cases for thi s reason . In th e D.K. Basu case the Supreme Court issued gui delines for the po lice to follow in every general act of arrest . The gu id elines also requi red th e police to per form certain specific and dete rminat e action s. This would not have liJ 21 obeen different from an or der in for exam ple the Maneka Gandhi case227 w here "hearing" and "not ice" were held indispens able value s according to whi ch futu re authoritie s woul d hav e to comply with hearing an d notice requi rement s. Every precedent requi res pe rsons to orde r their activities accord ing to wh at was held in the case. The D.K. Basu case2281 it will be seen was no different. The ma lnut rition cases involve d "positive continuou s" obligatio ns beca use the cou rt issued direction s requiring the orde ring of activity regarding a spe cific group of pe rson s i.e. mal nouri she d person s in a certain geog rap hic regio n. But additionally 1 in the maln ut rition cases cou rts kept mo difying their 1

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orde rs requ1nng authorities to pe rform different obligation s. Rathe r tha n the same obliga tion "recu rring" th ese cases invo lved obligation s that "continuo usly" chan ged or were "contin uou sly" modi fied . The D.K. Basu case requ ired "recurring" action . The m alnutritio n cases requi red "continuou s" action . It wi ll also be seen th at the "legislative void " cases su ch as Vishaka v . State of Rajasthan229 (Vishaka) and the D.K. Basu case were striking not becau se the cou rt orde red actions tha t would h ave to be followe d in th e futu re1 or "recu rring" obligatio ns1 but becau se of their relaxed stan ding ru les1 and becau se th ey con sequently wen t beyond what was ''necessary" to de cide in th e case1 pre cisely since the re wa s no dispute to resolve . Third1 these cases were striking for the nature of the interest invo lved . It is for thi s reason th at th e "right to life" cases stood out from Ame rican substan tive due proce ss cases involving "fund ame ntal rights" . The Amer ican "fundame ntal right s" cases involve d the "substantive right to privacy" i.e. rights th at Gary Bostwick 230 in his seminal pa pe r would categorise as involving "intimate de cisions"1 or auto nomy of the 1

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pers on. By contr ast, n ot m er ely d id Indi an d ecision s cen tre arou n d th e sub stan tive righ t to pr ivacy, bu t th ey also dealt w ith a cat egory of righ ts that Gary Bostw ick would id en tify as "repo se" or "s an ctua ry " cases, an d w ith cases oth erw ise fallin g within a broad righ t to d ignit y" category typica lly conc ernin g Directive Pr in cipl es of Stat e Policy . While th e Su pr eme Cou rt would , even in th e early years of its ju risp rud en ce, id en tify th e Dir ective Pr in cip les of Sta te Policy as offerin g justi fication s for the ''reason ablen ess" of restrictions on fun da me n tal righ ts, in thi s ph ase th e cou rt affirm atively enforc ed Directive Prin ciples of Sta te Policy thro u gh th e win dow created by th e "right to life" un d er Article 21. Thi s m ar ke d th e final ph ase of th e expa ns ion of Article 21, W 211 despite th e d eletion of th e du e proc ess clau se fro m th e Con stitu tion 's text. Table 1 id en tifies th e cases th at create d the righ ts m en tion ed above , an d in dicates w h ere su ch cases can b e categorised . Before examin ing th e Su p rem e Cou rt' s ju rispr u d en ce from th ese thr ee stan d po in ts, it is im po rtant to hi ghli gh t th e influe n ce of on e p articular opinio n of the Am er ican Su pr em e Cou rt in th e lan guag e of th e "Righ t to life" 11

cases. The Ind ian Suprem e Cou rt ha s on sever al occasion s quo ted w ith app rova l a p assage of Field J in Munn v. Illinois 231 . In hi s dissen tin g op ini on in th e case, Field J appe ar ed to h ave ar ticulated a very lib eral unde rstan d in g of the m ean in g of "life" an d "liber ty " : By the term 'life' ... smnething more is meant than niere animal existence. The inhibition against its depr ivation extends to all those limbs and faculties by whic h life is enjoyed . . . . The depr ivation not only of life, bu t of wh atever God h as given to every one with life, for its growt h and enjoyment, is prohibited by the provision in que stion, if its efficacy be not frittered away by ju dicial decision . . . . By the term 'libe rty' as u sed in the provisio n, something mor e is meant th an mere freedom fron1 phy sical restr aint or the bounds of a prison . It n1eans freedom to go where one may choose, an d to act in su ch manner , not incon sistent with the equ al rights of others, as his jud gment n1ay dictate for the p ron1otion of his happiness ... 232 (en1ph asis supp lied) These word s h ave b een cited with appr oval by th e Su p reme Cour t of In d ia in severa l cases sp annin g

seve ral d ecades .233 H oweve r, it is im po rt ant to un d erstan d th e cont ext wit hin wh ich Field J's statemen ts were made . The case b efore th e Ame rican Supr eme Cou rt de alt wi th th e question of wh ethe r th e Gen eral Assembly of Illino is coul d fix th e maximum fees th at cou ld be ch arg ed by th e ow n ers of warehouses for th e storage of grain in Chi cago . Spe ak ing for th e m ajority, th e Chi ef Ju stice up h eld th e law . Howeve r, in a d issen tin g op 1n 1on redo len t wit h whiffs of Lochneresque lang u ag e, Field J h eld th at a law whi ch fixed ceilin gs on ch arg es b roug h t about a depriv ation of pro pe rty, an d th e righ t to p rope rty m u st be as liberally in terpr eted as th e righ t to life W 212 an d lib erty . To take th e wo rd s of d issentin g Field J who advo cated th e liberty of contract an d ag itated aga in st the socialist po licies of th e State an d app ly th em wit hin a hu m an rights con tex t, may accord ing ly not b e as p lausible as is oth erw ise m ad e ou t to b e. It is str ang e th at Field J's dissen tin g p ass age which is en scon ced within a pow erful cap itali st opini on h as been quo ted by judges wi th a socialist philo sophy. Althoug h th is opinio n h as n ot been as infl u ent ial in Ame rican con stitu tional

ju risprud en ce, its words h ave pe rsu asively b een u sed time an d ag ain in th e In d ian constitu tion al con text. The same liberal constr uction wh ich is required for the protection of life an d liberty . . . should be applie d to priv ate p rope rty . If the legislature of a State, under the pretence of prov iding for the publi c good . . . can detern1ine, against the consent of the owner ... the pr ices which the owner shall receive for its u ses, it can depr ive him of the pro perty ... 234 3. 1. Standing

From a locu s stan di view p oint 1 th e "right to life" cases were strik in g for th e m anne r in wh ich th ey perm itted p ersons to bri n g suit s on b eh alf of othe rs, wi th whom su ch p erson s h ad n o real or tan gible conn ection . The "pu blic int erest" cases are attribu ted mo st famo u sly to a ho ld ing of the cou rt in th e first "tr an sfer of jud ges case" 235 in whi ch 12 w rit pe tition s filed across va rious Hig h Cou rts soug ht to ch allenge th e p reva lent "tra n sfer of judges p olicy " . All of th e p etition s in th e case w ere filed by advo cates, an d eve ry pe tition ag itat ed th e righ ts of judges , mem bers of society who cou ld h ard ly b e

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ter me d socia lly an d e con omica lly unde rp riv ilege d", tran sfer s notwit h stan d ing . Howeve r, in the se u ni qu e circumstances , Bh agwati CJ identified w h y it was poss ible for advocates to file cases on behalf of judges. It may therefore now be taken as well established th at where a leg al wrong or a legal injury is caused to a person or to a determin ate class of persons by re ason of viol ation of any consti t ution al or legal righ t or any bu rden is impose d in contravention of any constitu tion al or leg al provision or withou t au thor ity of law or any su ch lega l wrong or legal injury or illeg al burde n is thre atened and su ch person or detern 1in ate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvan taged position, unab le to approach the Cour t fo r relief, any n1en1ber of the public can maint ain an applic ation for an appropria te directio n, order or wr it in the H igh Court un der Ar ticle 226 an d in case of breac h of any fun damenta l right of su ch pe rso n or de terminate class of pe rso ns, in this Cour t under Ar ticle 32 seeking ju dici al redress for the legal wrong or injury cau sed to such person or determin ate class of persons . . . . [I]t mus t W 213 no t be forgotten th at procedure is bu t a h andma ide n of ju stice an d the cau se

of ju stice can never be allowed to be thwar ted by any proced u ral technicali ties ... . The Court has to innovate new methods and devise new str ategies for the pu rpose of provid ing access to ju stice to large n-iassesof people who are denied their basic human rights and to whom freedom and liberty have no meanin g . The only w ay in which this can be done is by en tertaining wri t pe titions and even letters fron1 pu blic spir ited individua ls seeki ng judic ial redress for the benefi t of perso ns who h ave su ffered a legal wrong or a lega l inju ry or whose constitu tion al or leg al right has been vio lated bu t who by reason of their pover ty or socially or economically disa dvant aged position are un able to approac h the Cour t for relief.236 (en1phasis supp lied ) In thi s ca se in volving th e pr ivilege d, Bh agwati CJ emp has ised that th e "publ ic in tere st" pe tit io n sho u ld not be agitate d for th e w rong rea son s : [W]e n1ust h asten to make it clear that the in dividual w ho moves th e Cour t for ju dicial redress in cases of this kind mu st be act ing bona fi de wi th a view to vindica ting the cause of jus tice and if he is acting for personal gain or priva te profit or out of political m otivation or other oblique cons ideration , the Court should not allow itself to be

activised at the instance of such person and mu st reject his appli cation at the thre shold, whether it be in the form of a letter addre ssed to the Court or even in the form of a regul ar writ petition filed in Court. We may also poin t out th at as a m atter of pru dence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases, where legal wron g or legal injury is caused to a determinate class or group of persons or the constitu tion al or legal right of such determinate class or group of persons is violated an d as far as possible, not entert ain eases of individu al wron g or injury at the instance of a thi rd party, where there is an effective legal aid organisation whi ch can take care of such cases.237 (emph asis supplied ) According ly, in Sheela Barse v. State of Maharashtra238 (Sheela Barse), in whi ch the Sup reme Cou rt seem ed to ar ticulate a broa d stand ard aga inst cu sto d ial violen ce an d for legal aid, a jour n alist compla in ed of custo dial violen ce aga inst w omen pr isoner s. Unl ike the do ctorp atient relationsh ip which ju stifies doctor s bringing sui ts on beh alf of p atient s,239 the jou m alist-un dertrial relat ion ship is harder to establish. De spi te th e fact that

th e jour nalist had no real int erest in the case, ap art th e fact that sh e was actua ted by bona fide int ent ion s to ameliora te the pligh t of the langui shing unde rtrial, the cou rt admitted the petitione r's letter as a w rit p etition . Sim ilarly , in Olga Tellis v. Bombay Municipal Corpn.240 (Olga lll 214 Tellis), the Supreme Court per mi tte d a jour nalist to agitate the righ ts of pavement dwelle rs, where the court articula ted a broad right to livelihoo d, wh ich cou ld be depr ived by follow ing th e rules of natu ral ju stice. In th ese cases, the pe titio n ers typ ically agitated the righ ts of a spe cific group of persons e.g. bon ded worke rs, paveme nt dwellers or pr ison er s. The class who se righ ts w ere bein g agitated m ay not necessarily have consiste d of socially and economica lly "ba ckw ard " per sons w ho w ere for that rea son "un able " to approach the cou rt, e.g. homo sexu als or wome n . Very rare ly, if ever , ho wever, w as th e per son agitatin g th e group's rights identi fied as a part of the grou p whose righ t she was agitating . By contrast, there w ere tho se cases where citize ns agitated right s for an in deter m in ate group or people , and th e pe titioner s them selves mo st likely belonged to th e in determ in ate group whose rights w ere being

agita ted . Unli ke th e previous set of cases, the pe titione rs typ ically would stand to suffer ha rm" . H oweve r, the right s being agita ted were broad, and th e remedy would seek to ame liorate the plig ht of an indete rminate class or grou p of persons. For example , in M.C. 1\t1.eh ta v . Union of India241 (M.C. Mehta), whe re the court seemed to em pha sise a broad right to a clean env ironment , a noted envi ronmental lawyer pe titioned the court for remedial action consequ ent to the oleum gas leak in Delhi . In Parmanand Katara v. Union of India242 (Parmanand Katara), w here th e Suprem e Court create d a right to the assistan ce of doctor s du ring emerge n cies, the petitio ner agitated the rights of critically injured person s gene rally, and by the n ature of thing s anybody can fall within the category of "injured person " . More recentl y, in Prak.ash Singh v. Union of India243 (Prakash Singh), a noted retired poli ce officer an d recipient of the Padma Shri agitated the citizen' s right to a better organised and in depen dent police force - a remedy which stood to benefit all persons equally .244 Letters were often accepte d as petitio ns, as wa s done in the Sheela Barse case245 and th e D.K. Basu case246 _ 11

Interesting ly, A.P . Shah J of the Bombay H igh Court, the judge wo uld go on as Chief Justice of the Delhi High Court to write a semin al opini on involv ing the rights of homosexua ls, took up the cause W 215 again st malnutrition by him self (i.e. without a pe titioner ) in the Sta te of Maha rashtra as a Bombay High Court judge , upon rea ding new sp ap er repor ts.247 3.2. Obligation

In term s of th e obligatio n impo sed by the constitu tional remedy , cases could fall eith er un der the "po sitive recurring", "po sitive continuou s" or nega tive catego ries. Positive recu rring cases we re those th at required aut horities to orde r their actions in all futu re cases. They were ' posit ive" beca use they required officials to do somet hing as oppo sed to refrain from doing somet hin g. For example , follow ing the Parmanand Katara case248, do ctors at government hospitals wo uld arguably hav e to conside r preserving life" in every futu re inst an ce that a wounded victim came to the hospital 's doo rstep. "Negative " cases involve recu rring" obligation s too. For example , follow ing Charles Sobraj v . Central Jail249 1

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(Charles Sobraj), po lice officers wo uld have to refrain from using bar fetters both for Cha rles Sobraj himself and for all oth er pr isoners. Similarly, following th e cou rt' s opinion in Sunil Batra v . Delhi Admn .250 (Sunil Batra), poli ce officers could no longer use solitary confinement either for the petit ioner or anybody else. In m any ' posit ive recu rring cases, courts would lay dow n guide lines" in the absenc e of legislation . For examp le, in the Vishaka case251 the court articulated gu idelines to preve nt sexual har assme nt at the workplac e. Similarly , in the D.K. Basu case252, the court specified guide lines for the poli ce to follow wh ile making an arre st. It is impor tant to distingui sh these cases from the guide lines" inherent in pr ecedent generally . Every decid ed case carr ies with it certain embedd ed ' guid eline s" . For exampl e, th e Sup reme Court's opinio n in one case253 invo lving parties that h ad regu lar stand ing, regarding the enforc eability of transfer restrictions in agree ments betw een sh arehold ers in th e cont ext of pr ivate limite d comp ani es, ha d imp lication s for nume rous commercial transactions in the futu re. H ow ever, cases such as th e Vishaka case an d the D.K. 1

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Basu case were not striking for the fact that gu ide lines" w ere laid dow n, as much as they wer e striking for the fact that gu idelines w ere laid dow n in the abstract. Th e fact th at there was no concrete case or controve rsy before the cour t wa s the real lll 216 reason th at th ese legislative void " cases w ere peculiar. H ow ever, it must be un derstood th at almost each of th ese ' legislative void " cases had a societal context within whi ch they w ere bro ught up. For exampl e, the Vishaka case254 came up on account of an alleged bruta l gang rap e of a social wo rker in th e village of Rajasth an . Similarly, the D.K. Basu case255 involv ed new spaper repo rts regarding deaths in police lock-ups. Prakash Singh ha d about it the context of alleged police in action du ring the Godhra riots. The Naz Foundation v . State (Go7.7 t. of NC T of Delhi)256 (Naz Foundation), before the Delhi High Cou rt did not involv e the issua n ce of "guidel ines", as much as it invo lved a que stion of constitut iona l int erpreta tion . H ow ever, th e case had as its backd rop an incident of po lice abuse report ed as th e "Lucknow incident" .257 Of course , the "legislative void " cases w ere also striking for their deviation s from th e otherwise Burkean 11

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natu re of commo n law transit ion. Whi le the "law mak ing" fun ction of th e common law oper ates slowly and over the years , th e "legislative void" cases we re strikin g for the extensive law that th ey laid dow n in a single stroke . For exam pl e, in Manager, ICICI Bank Ltd. v. Prakash Kaur258, th e Supr eme Court dealt with a case where a loan recovery agent had been used by a bank. While disposing of th e case, Kabir J me rely observed in the pa ssing th at the court did not "ap pr eciate the proce du re adop ted by the Bank in remov ing the vehicle from the possession of the writ petitioner", de pr ecating the hiring of "musclemen" . H oweve r, Lakshman an J went beyon d this observat ion, an d seemed to issue "guide lines" and "sugge stions" about how the pra ctice could be curbed or regulated. Lakshma nan J's opinion accord ingly went beyond th e Burkean tradition s of common -law development , whe re ho lding s focu s only to remedy th e plig ht of the claiman t before the court, bu t not of all futu re claiman ts th at may have similar problem s. In this case, Lakshma n an J seeme d to be eng aging in "dialogue " with the Reserve Bank of India , sugge sting solut ions to th e problem of loan recovery

agen ts, an d th e binding value of his opin ion was accor dingly que stionab le. H owever , the "legislative void" cases seemed to follow the judicial traditio ns of the early dec isions of In dian Hig h Courts, wh ich applied pr in cipl es of "justice, equity an d goo d conscien ce" in th e even t of a legislative va cuu m . Th e case development of th e early chartered Hig h Cou rts of Ind ia is an im portan t historical contex t within w hich the W 217 "legislative void " cases of the Supreme Cour t of In dia during the 80s, 90s and beyo nd must accordingly be und erstood. In the "positive continuo us" cases, on the oth er h and, the obligation prescribed by the reme dy wou ld continu e" in two senses - firs t, su ch cases wo uld involve the performa nc e of a series of obligations rega rding the same group of persons; and second, the cour t woul d constantly re-shape or re-enfor ce the n ature of th e obligat ion by taking cases up for hea ring p eriodically. In almo st a superv isory cap acity, court s wou ld admin ister the impl ementation of their orde rs, break ing aw ay from the tradit ional rul e th at cour ts do not issu e injunc tions in cases involv ing the pe rforma n ce of continuou s dut ies. For this reason , these opinions of 11

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court s wou ld seem an exercise of dialogic jud icial activism" 259 where courts engaged in a ba ck an d forth with regu latory an d other aut horities , both engaging in and serving as a forum to engag e in dialogu e with the governme nt. Th e pe riodic and superv isory fun ction disch arged by the court in these cases wa s the h allmark of "po sitive continuou s" cases. For exam ple, the Bombay High Cour t in the ma lnut rition cases first issue d the following orde rs on 8 July 2004:260 (i) A nodal committee wa s required to be establi shed within a period of two week s. (ii) Simil ar nodal agen cies were required to be estab lished at the district level. (iii) Budgetary allocatio ns were required to be increa sed in five district s. (iv) Th e District Manag er and th e Chief Executive Officer were to be respon sible for the impleme nta tion of scheme s. (v) NGO s conn ecte d with food scar city and health issue s were to be nomin ated. (vi) Th e State Committee wa s to prepa re a comprehe nsive Nav Sanjivani Yojana app licable to all 1

15 trib al districts for the next five yea rs and pla ce it before th e cour t withi n the next thr ee mon ths . (v ii) All de partme nts, inclu ding mobile health units , were to be prov ided with vehicle s and adequ ate fund s. (v iii) In add ition, it was the du ty of th e Sta te Committee to ensure th at (a) bleaching pow der (for water disinfection) was m ad e availab le to gram pa nch ayats; (b) the food grain supp ly wa s adequ ate; (c) ad equa te supp lement ary nutritio n was availab le to all beneficiarie s; lil 218 (d) health che ck-ups would be held pe riodically for child ren between the age s of zero- six; (e) the stock of vital , essential an d emergency drug s was available; (f) pos ts of specialised cad res (gynae cologi sts etc.) were filled in; (g) each village had a trained dai; (h) health institu tions were san ctioned as per the area no rm; (i) th e employment gua ran tee scheme wa s imp lem ented;

(j) 100 per cent appointme nts were made of Pad a

volunteers an d mobile units ; (k) the system developed by Dr. Bang would be impl emente d. (ix) In addition, th e State Government was called upon to conside r the implementa tion of certain long term mea sure s, and take steps to ensure that: (a) trib al area s were given nine per cent of budge t allocation; (b) healt h institut ions an d ashram s were const ru cted in the next five years ; (c) road s conne cting all tribal tow ns to villages were construct ed; (d) spe cial attempt s were made for in creasing the liter acy rate an d the age of ma rriage; (e) the process of electrification of all village s was taken ; and (f) lan ds were allocated to adivasis as per State po licy . Several week s later, while heari ng the State' s progre ss in the impleme ntation of its orde rs, the Bombay H igh Court on 21 Octobe r 2004 issued the follow ing or ders:

(i) The District Committee s ap pointed were requ ired to inde pendently grade child ren wit hin the age s of zero - six within a pe riod of six mon ths. (ii) Th e State Government was called u pon to impl emen t a gove rnm ent resolution in thi s regar d. (iii) In tribal district s, 2300 anganwadis, which were still to be establishe d, we re required to be made func tional within a pe riod of thr ee months. (iv ) The medical officer from primary health care was to pe riodically hold camps at the se anganwadis . (v) In or der to ensure attendan ce in the camps ment ione d above, a program of publici ty was to be put into action. (vi) The gove rnm ent w as to bear the expe nses of trave lling an d allow ance in exceptio nal cases. (vii) Mobile unit s were to verify this da ta . (viii) The home -ba sed neo -nata l care schem e was to be impl emen ted . W 219 In this manner , the nature of th e obligation kept chang ing with every fresh orde r of the cour t. These cases differed from the positive recu rr ing cases in th at they not merely created preceden t, bu t also redefined the nature of the obligation with every su ccessive orde r.

3.3. Interest

From the viewpoi nt of the natu re of the intere st involved , cases could eithe r concern the right to intimate decision or auto nomy , the right to repo se or sanctuar y, or a general right to " dignity " . The first two categor ies belo ng to the general "right to pr iva cy". It is importan t at th is point to distin guish between due pr ocess cases and the sub stantive right to pr iva cy cases. In American constitutio nal law, not all pr ivacy cases may have involved the 5th an d 14th Ame nd ments to the Ame rican Consti tut ion. The subs tantive right to privacy w as often said to lie embe dde d in the 1st, 3rd, 5th or even 9th Amen dments 261 to the American Constitu tion. For th is rea son, many pr iva cy cases may have origi nate d un der pr ovisions wh ich did not have mu ch to do w ith the "due proce ss" clause , while other s fit more hap pily within the '' du e pr ocess" clause in the 5th and 14th Amendments to the Ame rican Cons titution. For exam pl e, the Ame rican Supreme Court' s de cisions in Skinner v. Oklahoma262 in its concern for the right of pr ocreation , and Loving v. Virginia263 in its concern for interracia l ma rriage, m ay have pr otected a realm of

liber ty wh ich fit more happily withi n the mean ing of "liberty " in the due process clause . By contrast, the Amer ican Supreme Cou rt's concern in StanletJ v. Georgia264 (Stanley) for the ability of a person to read po rn ographic m ater ial within the confines of his home could more pe rsu asively be linked with the search an d seizur e intere sts of the 4th Amen dment, or the spee ch interests of the 1st Ame nd ment. From this view point, it is impo rtant to emp has ize th at not all pr ivacy cases are necessarily linke d w ith the "due proce ss" clau se in Amer ican constitut ion al juris pr ude n ce. H owever , sub stan tive right to pr ivacy cases that are capable of being more persua sively linked to pr ovisions of the American Constitut ion besides th e due process clause still resemb le "sub stan tive due proce ss" cases in their me thodology . The sub stan tive right to pr iva cy has been terme d a "sub stitu te" for sub stanti ve due proce ss doctrine .265 It cannot be strongly contested tha t in invok ing "penumbra! " principles attachin g to different amendme nt s of the Ame rican Constitutio n, the Amer ican lil 220 Supreme Cou rt was in su ch cases invok ing doct rine which strongly resemb led the

sub stanti ve due proc ess absorptio n cases. For thi s reason, de spit e the fact th at some privacy cases did not derive from th e "liberty" value of the Ame rican Constitut ion, they can still be term ed "sub stan tive due proc ess" cases. In the following an alysis it is impor tant to note th at cases falling with in th e "repo se" or "s an ctuary " cat egory of pr iva cy cases as distingu ished from tho se falling within th e "intim ate de cision" category seem more per sua sively derivable from provi sions of the Indian Constituti on beside s th e "person al liberty" value s of Article 21. On the other han d, intimate de cision cases, which de al with defini ng an individua l and her or his selfhoo d" or auto nomy ", seem more pers ua sively to atta ch to "personal liberty" value s. Thi s distinc tion, how ever, does not take away from the fact that both catego ries of cases resemble "fund am ental right s" type sub stan tive du e proc ess doctrine. II

II

3.3.1. The right to "privacy"266

Ameri can court s wou ld often recogni se rights th at were hierarchi cally fundame nt al or sup erior to othe r rights . Traditionally, these "un enum erat ed" rights would

involve cert ain fundam ental and intima te p ersonal decisions, wh ich could bro adly be catego rised un der the "right to privacy ", 267 e.g. abort ion,268 m arriage,269 contrac eption,270 proc reation ,271 child rear ing,272 an d homosexu al sodo my273 . A law infr inging a fundam ental right would th en be reviewed under the "strict scru tiny" te st or the "compelling int erest" test whi ch requ ired th at th e law be "narrowly tailored to serve a compelling state lnterest ."274 H oweve r, not all privacy rights are fundame ntal. Priv acy can be sub stant ive or informatio nal, inti mat e or ordinary . The catego ries "pr ivacy W 221 of repose " and "pr iva cy of intim ate decision", identi fied by Bostw ick 275, are instruct ive and will be u sed in this pa rt to an alyse th e dev elopment of In dian constitu tional priva cy law . Broa dly, substantive du e proc ess cases involv ing intim ate freedom s would fall within the "pr ivacy of inti mat e de cision" catego ry, wh ile privacy as it is typically un derstood in tort s cases i.e. in an inf ormatio n al sense or as involving freedom from phy sical intrusio n, would fall within the "pr iva cy of repose " category . However , the repo se or san ctua ry

cases typi cally de rive d the ir consti tut ional stand ing from pr ovisions beside s the due process clau se. In India n constituti on al law 1 the priv acies of repo se/sanc tuary and intim ate decision have not really been distingu ished . Often1 "intima te decision" cases are cited in cases invo lving the pr iva cy of repo se. In fact it will be seen th at the strict scrutiny test h as also bee n articulated though not app lied in its pure st form in a priv acy of repose case. Signifi cantly the privacy of repo se is somet ime s termed a fund ame ntal right unde r substanti ve due pro cess doctrine even un der Ame rican constitu tional law . The de cision most often cited in thi s context is th e Stanley case276. In thi s case1 while searching a man's home for some unr elated evi dence 1 th e po lice un expe ctedly stu mbled u pon the man 's collection of obscene films. They trie d to convi ct him ba sed on this evi dence1 alth ough the Supreme Court hel d th at thi s w as imperm issible. Whi le it is true th at the American Supreme Court in that case did rely on the right to priv acy from State intr u sion in hold ing that a per son has a right to view obscene m aterial in the pr ivacy of his 1

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home 277 it did so to bolster its ho lding un der the 1st Amendmen t. In othe r words 1 while the cou rt emphasi sed the "right to be free, except in very limited circum stan ces from un wa rr ante d gove rnmen t intru sions into one' s priv acy" it did so while holding that the "right to receive informat ion an d idea s, regardle ss of their social wor th 1 [is] fundame ntal to our free society ", and that "if the first amendmen t me an s anythi ng it mean s th at a Sta te h as no bu sine ss telling a m an 1 sittin g alone in his house1 w hat book s he may read or what film s he m ay w atch". Accor ding ly, priv acy of repo se cases that fall w ithin the category of constitu tional do ctrine resembling substantive due proce ss1 are typi cally bolstere d by a textu al provi sion of the American Constitu tion be sides the due pro cess clause usu ally the 1st1 3r d 4th or 9th Amen dment s. Similar argumen ts can be made in the contex t of the In dian Constituti on 1 whe re th e pr iva cy of repose lill222 is typically bolstered by textual safegu ard s ag ainst self incrimin ation un der Article 20(3)1 or preve ntive detention un de r Article 22.278 1

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It is significan t to not e that it is th e privacy of "intim ate" decision which is a part of du e pr ocess doctrine, an d not the pr ivacy of ord inary " decision . A State w hich inform s its citizen s th at they cannot m arry or use contr aceptives violates liber ty values unde r substan tive due pro cess do ctrine an d viol ate s the 5th or 14th Amendme nt s of th e Ame rican Const itutio n depen ding on the Sta te action invo lved . Similarly , a State which inform s its citizen s that their licence pla tes must displ ay th e slogan "live free or die" violates a privacy right emanating from the 1st Amen dment .279 The rig ht to priva cy has also been know n to em anate from the 3rd an d 4th Amend ment s.280 Howeve r, the inab ility of being able to consume alcohol on a '' dry day" in a restauran t in In dia may no t typ ically be conside red a violat ion of an intim ate decision . Similarly, man da tor ily disclosing informat ion on a tax retu rn or even du ring a census, may not be conside red a depriva tion of th e fun da men tal right to pr iva cy even un der pr ivacy of repo se do ctrine. No t all priv acy viol ations are fun da mental. II

3 .3. l . l . Privacies of repose and sanctuary

The priv acies of repo se an d san ctua ry seek to kee p th ings out of a phy sical zone or sphere. For exam ple, Kharak Singh v. State of U.P.281 (Kharak Singh), invo lved keeping the gaze of police officers away from th e p etitioner's home at night. The Olga Tellis case282 invo lve d ensuri ng th at pavement dwellers were not evicted from th eir p avemen ts, even th ough the zone of the p avemen t may not hav e been "intima te" in the conventional sense. The M.C. Mehta case283 con cerned keeping pollu tants aw ay from cities, much in the same way that a nuisan ce action can be foun ded on smoke that comes into one's home. 3.3 .1.2. Surveillance

In Kharak Singh case th e Suprem e Cou rt tested the constitu tional ity of police regu lations th at perm itted th e po lice to keep a close watch on suspe cted "h abitua l criminal s" . The petitione r, a person suspected by the po lice of being "likely to become [a] habitua l criminal ", claimed th at liJ 223 th e police wou ld m ake "domiciliary visits" at night, th ereby depriving him of his rig ht to pr ivacy. To be su re, thi s case did not invo lve pr ivacy

rights , un de rstoo d as typically deriving from th e due pr ocess clause of th e Ame rican Consti tu tion i.e. p riva cy as 11an au ton omy or con trol over the intimac ies of p erson al identity 11284; rather , it invo lve d the p rivacy of 11 rep ose " or "sanc tu ar y" instead of the p riva cy of "in tim ate d ecision" 285 or 11self de finitio n " .286 Wh ile th e secon dary legislation in qu estio n was decla re d un con sti tuti on al, A yy an ga r J, speak in g for the m ajority, observe d : the right of privacy is no t a guaran teed right under ou r Cons titution and therefore the attemp t to ascertain the movemen ts of an individual wh ich is n1erely a manner in wh ich p rivacy is invaded is not an infri ngen1ent of a fun damen tal right guaran teed by Part III.287 H oweve r, Su bba Rao J, w hil e p artly conc u rrin g wi th the m ajority, fou n d : it is true our Constit ution does not express ly declare a right to privacy as a fundamen tal right , but the said right is an essential ingredien t of personal liber ty ... . Inde ed, nothing is more deleteriou s to a n1an' s physical h appiness and health th an a calculated interference wit h his p rivacy .288

Th ereafter, in Gobind v . State of M .P. 289 (Gobind), th e aggr ieved com pl ain ed th at "h is repu tation had sun k low in th e estim ation of h is n eighbour s" 290 due to sim ilar po lice activity . Math ew J he ld : Any right to pr ivacy mus t encomp ass and protect the personal intimacies of the hon-ie, the family, marriage, motherhood, procreation and child rearing. This catalogue approac h to the qu estion is obviously not as instructive as it do es no t give analytical pictu re [sic] of the distinctiv e characte ristics of th e right of privacy. Perh aps, the on ly sugges tion that can be offered as unifying principle [sic] unde rlying the concept h as be en the assertion tha t a claimed right mu st be a fundamen tal right implicit in the concept of ordered liberhj- 291 (en1phasis supp lied) Ma the w J seem ed to be articulatin g a broad "intim ate d ecision " righ t to p rivacy , but th e h olding wa s made w ith in a rep ose/san ctua ry con text. The referen ce to "or dered libe rty" was p ar ticu larly intere sting . W 224 Howeve r, th e cou rt eve ntually foun d th at th e righ t to pr ivacy w as subjec t to com pe llin g state in terest ", 292 an d u phe ld the regul atio n s. Th e u se of th e II

phra se "compelling state interest " is extr aordina rily pe culiar in this cont ext, for at least two rea sons. First, the phra se "compelling state int erest" would or dinarily be associated with strict scru tiny in Am erican du e proc ess doctrine, and us uall y ent ails a signifi cantly lower degree of ju dicial toleran ce. Law s subject to compelling state interest are usua lly if not almost alway s invalida ted in Ameri can due process cases. H ow ever, th e law in thi s case survived strict scrutiny , ind icating either that the law was enormou sly compelling , or th at th e strict scruti ny test was not really app lied . Add itiona lly, the court did not find th at the law mu st be ''narrowly ta ilored" to achieve th e compelling stat e int erest and so the test as articu lated fell sho rt of strict scru tiny in its pu rest form . Second, the strict scrutiny test is typically app lied in "pr ivacy of intimat e decision" cases, but not priv acy of repose cases, as discussed above. Thi s w as a priva cy of repo se case. It must be remembe red that the Am erican Supreme Cour t w as concern ed in Griswold v. State of Connecticut (Griswold)293, not with police intr u sions of the home as much as it was concern ed with th e poli ce intruding the marita l homes for signs of contraceptives.

H owev er, it is certain ly arguable th at the police action involve d in th e Gobind case294 imp licate d a 4th Am end men t type search an d seizure " interest in the form of poli ce intrusion, and therefore invited strict scru tiny, since pr ivacy of repo se cases are typ ically bolstered by other textua l provisions of the Constitut ion for th e app lication of strict scru tiny , as discussed abov e. H ow ever, the cou rt' s hold ing in dicates th at while the cour t articu lated a "strict scrut iny" typ e standard in Gobind, it actu ally m ay hav e app lied a less string ent test in upholding the constitu tion ality of th e law. Subsequ ent decisions of the Supr eme Cou rt in this era unde rstood pr iva cy in th is limited sense of "repose" or "s an ctua ry",295 or freedom from nos ines s, rat her than the right to "au tono my" or "selfhood " 296 . For example, in People's Union for Civil Liberties v. Union of India297, the constitu tionali ty of telephone tapp ing was un der consideration. Wh ile W225 finding th at conversation s on the telephone w ere of an intimate and confi dential character, th e court held th at tapping into conve rsations wou ld be constituti onal if san ction ed by the pr ocedur e established by law . Th e court also found the concept of II

pr ivacy "too broad and m oralistic" for serious jud icial conside ration. 298 It mu st be reiterated th at search and seizure related pr iva cy cases are textuall y linked with a constituti onal pr ovision besides "due proc ess" (i.e. besid es Article 21 or th e 5th or 14th Am endmen t) viz . w ith the right again st self-incriminatio n wh ich is foun d in Article 20(3) of the In dian Constitu tion and the 4th Am endm ent to the Am erican Constituti on, an d for tha t reason trigger constitu tional scrut iny. Whi le pr ivacy of repo se cases involving po lice search an d seizur e typi cally trigger higher constitut ional scru tiny, thi s is more on account of th e right against self incrim ination than the due pr ocess clau se. Similarly, the Sup reme Court has he ld th at police search an d seizure requir es "pr obable cau se" or ''reasonable cause" as a safegua rd .299 3.3.1.3. Disclosure of information LIC300 (Neera Ma thur ),

In Neera Ma thur v . th e cour t found th at requi ring mar ried female cand ida tes to disclose in a form, info rm ation regar ding menstrua l cycles, conceptions and pregnancies, was pr eclud ed by

their ''mod esty and self respe ct". Althoug h the court did not refer to the "right to privacy" in the case, th e issues w hich arose evoke d "pr ivacy of repo se" an alysis, bolstered by the "right not to speak " inhe rent in constitu tional freedom of sp eech . It can be also argu ed that man da torily disclosing inform ation of such an intim ate n atu re on an em ploymen t form would interfere with the "pr ivacy of intimate decision" . Again , it is impor tant to factor into an analy sis of this case the fact that th e petitioner had ch allenged the termin ation of her employme nt, and not legislation. In Selvi v . State of Karnataka301 (Selvi), th e Sup reme Court of In dia considered the constitu tional validity of the forcible use of three scientific techni que s by the po lice in con du cting investigat ions: narcoa naly sis, th e po lygra ph test and the brai n electrical activation profile test. The cou rt's opini on spanning nearly a hundred pag es stood at the unhappy lill226 int ersection of both the "privacy" and dignity" limbs of th e court's right to life jur isprud ence. It w as held that an involun tary ad minist ration of the impug ned techniqu es violated both the right to pr ivacy an d th e right again st cru el, inh um an and degrading tr eatm ent. It wa s also held th at II

the involun tary ad ministration of the impugne d te chniques would violate principles of a fair trial" . However , an an alysis of th e court' s opinion in the Sel7.7 i case302 must be prefaced by examining two posture s adopted by the court which unde rscore the pa radigm shift in Indian constitut ional analy sis discussed in prev iou s ch apters. First, one of th e issues framed by the cou rt in the case w as whet her the involunt ary adm ini stratio n of the impugned techniq u es was a "reasonable restriction" on "pe rsonal liberty" unde r Article 21 of the Constitu tion. Rem arkably, the wo rds "reason able restrictio n", though foun d in Article 19 of the Constitutio n, were app lied to assess the dep rivation of liberty value s under Article 21, a telling remin der of the fluid ity of prin ciples in Indian constitutional doctrine . Second, in answering thi s que stion, K .G. Balakrishn an CJ asked him self w hethe r "th e involun tary ad minis trat ion of [the tests was] compa tible with the constitutional guar antee of 's ubstantive du e proc ess' " . For argua bly the first time since the deletion of the "du e pro cess" clause, th e Supreme Cou rt declared "substantive du e process" to be a guara n tee or a "standard" by which law s would be assessed . Un til 11

the n, courts wo uld apply du e process type solution s to leg al pro blem s without invoking du e pro cess nomencl atu re. But in this case the court was rema rkably can did in its expre ss rejection of the framer s' intentio ns to dele te constitutio nal du e process from the In dian Constitution . Th e court iden tified three unen ume rated rights which ha d been created consequent to its jurisprud ence un der Article 21: the right to priva cy; the right against cruel , inh um an and deg rading treatme nt ; an d the right to a fair trial. The invol un tary admini stration of the imp ugne d techni qu es was me asu red aga inst each of these right s and found w anting. It w as held th at the te sts could , however , be volu nta rily adm inistered given app ropriate proc edura l safeguards. From a priva cy stand poin t, the court he ld th at being forced to un dergo investigatio n unde r the imp u gned techni ques violate d the right to rema in silent or the right to "me ntal privacy " whi ch the court equa ted with pe ~sonal au tonomy , distingu ished from phy sical pnv acy. We must recognise the in1portance of person al autonomy in aspects such as the choice between remaining silent

and speaking . A n individual's decision to make a statement is the product of a private choice and there should be no scope f or any other individual to interfere with such auton omy,

especially in circumstances whe re the person faces exposu re to criminal charges or pen alties. (emph asis supplied )

Selvi case303 were similar to th e pr oblem pre sented in the Neera Mathur case304, w here the claimant was force d to disclose pe rsonal informatio n abou t her menstrua l cycle s, a case in w hich the claim ant asserted the right no t to be forced to spe ak. Claimant s in the Selvi case were simil arly asserting th e right not to be forced to spe ak conseque nt to the imp u gne d investigative techniques . Like the proto typi c pr iva cy of repo se/sanctua ry cases, these cases saw attempt s to keep the gaze of the State away from an inti mate per sona l dom ain. Thi s was pr iva cy in an infor mational sense con cernin g the pr eservation of informa tion . At the same time, these cases con cern ed the "right to remain silent" whic h the court in the Sel'vicaseid entified as an inti mate de cision of funda mental significance. llJ 227 At a simpler level, the issue s in the

Stran gely, under the substan tive due pr ocess umbre lla, the court also examine d whether certain statutory provis ions of the CrPC, 1973 could be read in an expansive manner to include the impugned techniques being considered . In other wo rds, the State argued th at Section s 53, 53-A an d 54 CrPC, 1973 (concerning the exam ination of an accused by a medi cal practitio ner) could be read expansively in orde r to incorpo rate the imp ugned technique s wi thin the ir amb it. The court's exam ination of this que stion un der the "sub stantive due proce ss" umb rella wa s strange for the following rea sons: First, the court seemed to have un de rstood "substan tive due pr ocess" as requi ring h armo nious constructio n, perh ap s of the kind used by Frankfurter J (whose opinio n 305 was cited in the Sel'vi case) and Cardozo J. H oweve r, the pr inciple of harmoniou s constructio n whi ch is commonly associated with sub stantive due pro cess doe s not typica lly exten d to statutory constructio n . Accordingly , while a court may interpre t statuto ry provis ion s expan sively or harmonio u sly using th e inter pretive tools at its dispo sal (e.g. the "golden rule", the "mis chief rule " in the

Hei;don's case306 etc.), this would not or dinarily be ter me d "substantive du e pro cess" doctri ne since it has nothing to do with constitu tion al due pro cess. Substa nti ve du e pro cess do ctr ine con cerns interpre ting the constituti on, not interpr eting ordin ary statu tes. Second, subs tantive du e proce ss claims are typ ically made by citizens who ask th at cou rts crea te une num erate d right s. For example, a citizen aggrieve d by Section 377 IPC wo uld ask a cour t to rea d the right to sexual choice wi thin Article 21 of the Constitut ion. Accord ing ly, in su ch cases, the court wo uld typically create an "une num erate d right" and read it into th e Constitut ion . On the other han d, sub stan tive du e proc ess do ctrine is rare ly invoke d by the Sta te. But in the Sel7. ,i case, the court seemed to suggest that the State w as asking for the creatio n of W 228 an "unen ume rate d restriction" 1.Jiz.that th e citizen's right to "liberty " be restricted by reading the impug ned techn ique s as "une numerated restrict ions" on the right to pe rson al liberty. Th is wa s a pu zzling use of substanti ve due proc ess nome nclatu re. 3.3.1.4. Privacy of intimate decisi on

Procreation. - In A ir India case307 , the Sup rem e Cour t was asked to con sider the constitu tionality of Regula tions 46 and 47 of the Air India Emp loy ees Service Regulations and Regula tion 12 of the Indian Airline s (Flying Crew ) Regulations, wh ich pe rmitte d Sta te run airline s to terminate the servi ces of air ho stesses if the y be came pregnant . The cour t acknowledged that it wou ld app ly the " arbit rarines s" te st despite the fact th at there w as no equal prote ction violation or discriminatio n, altho ugh the test wa s ap plied in the contex t of secon dary an d not prima ry legislatio n : We n1ight n1ention here th at even thou gh the con dition s n1entioned above n1ay not be violative of Article 14 on the ground of discrimin ation bu t if it is proved to our satisfaction that the condit ion s laid dow n are entire ly un re ason ab le and abs olu tely arbitr ary, then the provi sion s w ill have to be str uck dow n .308

Speak ing for th e court , Mu rtaza Fazl Ali J articu lated a concern that the rule wo uld pre vent wome n from giving birth, and int erfere wi th the "or dinary cou rse of human na tu re" . Althoug h this hold ing did not mentio n the

word ''pr ivacy it was one of the court 's first hold ings that recognised an intimate decision pr iva cy intere st viz. the right to procreate . The cou rt also butt ressed its reasoning by invoking pr inciples it foun d essential to a civilised society reminiscent of Cardozo J's ap pr oach in the federal state due pr ocess cases. 11

(en1phasis supp lied)

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H avin g take n the AH in service and after h aving utilised her services for four ye ars, to tern1inate he r serv ice by the Managemen t if she becomes p regnan t amoun ts to compelling the poor AH not to have any children and thus in terfere wi th and divert the ordinary course of hun-ian nature. It seems to us that the te1'mination of the servi ces of an AH under su ch circums tances is not only a callou s an d crue l act but an open insul t to Indian womanhood ... . We are constr ained to observe th at su ch a course of a~t~~n is ext·:emely detestable and abhorrent to the notions of a czvzlzsed society . Apart from being grossly unethical , it sma cks of a deep rooted sense of utter selfish ne ss at the cost of all human va lues . Su ch a provision , the refore , is not only manifes tly unreasonable and arbitrary but contains the q~ality of W 229 unfairness and exhibits naked despotism and zs, therefore, clearly violative of A rticle 14 of the Cons titu tion. 309

M arriage. - Th e Supreme Cou rt seemed to reach into the zone of intim ate decision in M r X v. Hospital Z (Cases 1310 an d 11311). Int erestin gly, rathe r th an recogni sing a right to marriage, Case I unrecog nised the right to ma rr iage, w hile Case II reversed thi s trajectory by holding that the observatio ns made in the earlier case we re obiter dicta. Both cases involved the same facts. The petitioner, an HIV po sitive individual , claimed th at his me dical informatio n wa s illegally shared by a hos pital with his fian cee' s family as a result of which hi s m arriage had been called off. In seeking damage s from the hospital, the pet itioner claimed th at hi s const itutional right to pr ivacy unde r Article 21 of the Indian Constitutio n h ad been infringed . In Case I, the court found th at an HIV po sitive individual' s right to marr iage wa s suspended It w as held that the right to privacy was not absolute and th at it could be restricted for the preve ntion of crime, disorder, the protectio n of he alth or moral s, or the protection of th e rights and freedom s of othe rs. 11

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So long as [a] person is not cured of [a] communicab le venere al disease or in1potency, the right to n1arry cannot be enforced through a court of law and shall be treated to be a suspended right. 312 H ow ever, the cou rt in Case II overruled the observations concerning the "susp ended right to ma rriage". It wa s held th at the fian cee h ad a "right to know " the medical history of her propo sed hu sban d, and that a do ctor wa s entitled to revea l su ch infor mation . Th e observa tions of the cour t concerning pr ivacy an d ma rri age w ere ther efore over ru led and declar ed "observation s" . Sexual intercourse. - On 2 July 2009, the Delhi High Court pr onoun ced a jud gment in perh ap s its most anticipat ed and visible case in several year s, th e Naz Foundation case313 . Th e case invo lved the qu estion of the con stitu tiona l vali dity of Section 377 IPC, a provi sion whic h de signated "carnal intercou rse again st th e orde r of natu re" an "unn atu ral offence " . The petition ers claime d th at th e right to privacy invo lved an "intim ate person al sph ere" and wa s "w ithin th e ambit" of the right to life an d pe rson al libe rty unde r Article 21 of th e

In dian Con stitu tion . In an op inion heavily punct ua ted w ith prece dent , dom estic and intern ational, A .P. Shah CJ fou nd th at "pr ivate will" and "freedom of choice an d action " we re essential element s of hum an digni ty, an d the right liJ 230 to life un der Article 21. The cou rt referred to several substantive due proc ess cases of th e Am erican Supr eme Cou rt includ ing the Griswold case314, Eisenstadt v. Baird315, Roe case316 an d Lawrence v. Texas317, an d found that Section 377 "denie s a pe rson's dignity an d th e right of pr ivacy and crimin alises his or her core identity solely on account of his or her sexuality an d th us vio lates Article 21 of th e Constitu tion" . Using the observat ions of Mathew J, cited abov e, w hich w ere mad e in a different cont ext (i.e. the pr ivacy of repose as opp osed to th e privacy of intim ate decision ), the cour t th en w ent on to consider whether the depr ivation of the right to privacy satisfied "com pelling state interest" . The cou rt foun d th at "po pular morali ty", the State inter est sugg ested by coun sel for the State, wa s not sufficiently comp elling to justify a depr ivat ion of the right to sexu al identity.

Int erestingly, th e court also foun d that th e provi sion violated Article 14 of the Indian Constituti on be cause the classification bore no "rational nexu s" to the objective sough t to be achiev ed . Again , althoug h thi s was term ed a ''rationality" test, it app eared to h ave be en cast in th e form of a stricter reaso nab leness test. This was appar ent whe n the cour t found that "a me asu re that disadvantag es a vuln erabl e group defined on the basis of a ch ara cteristic that relates to personal auto nomy mu st be subject to strict scrutiny " . App lying strict scrutiny " to a sta tut e would , by no means, constitut e a de ferential and lenient "rationality " test. The use of the words "rationa l nexus" indicate once mor e the fluidity of doctrine an d the loose app lication of tests and term s in In dian constitut ional law . Furth er, the "strict scrut iny" test wou ld not hav e been applied to a law whi ch discriminated on the ba sis of sexual orientation by the Ameri can Supreme Court , from whose doctrinal law the test h as be en bor row ed . Howev er, the Delh i High Court's opinion in the Naz Foundation case318 is perhap s one of th e few decisions of an Ind ian constitut ional cou rt w hich interp retively recogn ised a right tra ditionally consid ered 11

"fun da men tal" under Ameri can du e pro cess do ctrin e, an d simulta n eously im posed a strict er burden for its deprivatio n. At th e same time , the court str angely ap plied th e strict scrutiny test both un der sub stantiv e du e process doctrine, and unde r equa l pr otection do ctrine. In requi ring th e State to show a "compelling justification" for dep riving th e right to life un der Article 21, the court essentially app lied strict scru tiny alth oug h it is un clear wh eth er the compelling justification" or strict scrutiny test will be appli ed in fu tu re only to pr ivacy of intima te lil 231 decision type cases, or also to privacy of repose cases in wh ich the test was origin ally articu lated though not appli ed in its pure st form . Of course , as discussed above, the fact that th e law ne ed not be "narrowly tailored" to achieve a compe lling Sta te justification p erhaps in dicates that the test app lied in pr ivacy cases is less stringent th an strict scrutiny in its pure st form. Eith er way, th e app lication of the compe lling state interest" test to bot h priv acy of repose an d privacy of inti mate decision cases without distinction, whe re the right to privacy of intimate decision could plausibly be argued to be hiera rchica lly II

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supe rior to the former 1 in the absen ce of othe r constitutio nal foun dations for the repose cases demonstrates a lack of serious sub stan tive an alysis. The appli cation of strict scrutiny in equa l pr ote ction cases to gen der1 age an d sexua l orientation cases1 in In dian constitutio nal law deviate s from its app lication in Ame rican constitutio n al law 1 but none theless ent ails analysis whi ch is becoming of a constitutional cou rt1 since su spect classes" are society spe cific1 and an India n court could plausibly find that discrimin ation on the ba sis of gende r, age or sexu al orientation deserve s stricter scru tiny .319 Most significantly however the Delhi High Court' s opini on in th e Naz Foundation ease320 seemed to ap ply the first propo sition in the Supreme Cou rt' s constru ct in the 1\1.anekaGandhi ease321 . In the Maneka Gandhi ease1 the Supr eme Court h ad held tha t: i) arbitrarine ss is antith etic to equa lity; and ii) the right to life and person al liberty could be depr ived if the procedu re established by law were "fair just an d rea sonable". In the Naz Foundation ease1 it wa s argu able that th e pr ocedu re estab lishe d by the CrPC to deprive 1

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homo sexu als of their right to sexu ality wa s "fair1 just and rea sonable" as the same proce dure applie s for all offences un der IPC. H owever 1 th e cour t did not app ear to be articula ting a liJ 232 concern about the pr ocedu ral law involve d, but it seemed to be making a value jud gme nt about the sub stan tive law embodied by Section 377 IPC 1 throug h the lens of the classification te st un der Article 14. Thi s case demon strat es that even fair pro cedure s may not su rvive constitu tional scru tiny if the substantive law is "unfair" or arbit rary" . Right to die. - In 1994, the Supre me Court wa s asked to consid er the constitu tionality of Section 309 IPC wh ich made an attempt to commit suicid e1 an offence . The peti tioner in the case prayed that the proceed ings brou ght aga inst him be qua shed . After elabora tely conside ring the mor at religious an d pub lic policy imp licatio ns of constitut ionalising the right to die1 the Supreme Court in P. Rathina·m v. Union of India322 (Rathinam) appeared to create the right to die and consequ ently invalida ted Section 309 on the groun d that it wa s a crue l an d irr ational" provi sion, holding that an act of attem pt ed suicide had no bane ful effect on II

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society. It was held th at a person could not be for ced to live life to his '' detriment , disadvantage or disliking" . Howeve r, only a few years later, a Constitutio n Bench of the Supreme Court over ruled this view in Gian Kaur v. State of Punjab323 (Gian Kaur). Th is time aroun d, the pe titioners ch allenged the constituti onality of Section 306 IPC which made abetting an attem pt to commit suicide punisha ble. Th e court held th at the desirability of deleting a provision from the statute book w as a matte r distin ct from the constitu tion ality of th e prov ision itself. The court' s op inion w as pate rnalistic, and subjecte d the ind ividu al' s right to self definitio n to the overarching Sta te du ty of pr eserv ing life. Ar ticle 21 is a provis ion guaran teeing pro tection of life and per sonal liber ty an d by no stret ch of imagin ation can ' extinct ion of life' be re ad to be in cluded in 'protect ion of life' . Whatever may be the philo sophy of perm itting a per son to extinguis h hi s life by comn 1itting su icide , we fin d it difficu lt to constr u e Ar ticle 21 to include w ithin it the ' right to die' as a par t of the fun dament al rig ht guaranteed therein . ' Righ t to life' is a natural right en1bodi ed in Article 21 bu t suic id e 1s an unn atur al te rn1in ation or extin ction of life, an d therefore ,

inc on1patible and inc onsisten t wi th the concept of ' righ t to life' . With respect an d in all humi lity, we fin d no sin1ilari ty in the nature of the oth er right s, such as the right to 'freedom of speech ' etc. to provide a con1para bl e basis to ho ld that the ' righ t to life' also in clud es the ' rig ht to die'. 324

One wonder s if thi s case is distin gui shable from th e Rathinam case on the grou n d that the priv acy of "intima te dec ision" belong s only to an individual for he rself, but not for others. In othe r wo rds, in Rathinam case, the court he ld th at attem pting to take one' s ow n life w as constituti onal, W 233 vvhile in the Gian Kaur case325, it w as held that assisting somebo dy else to take he r life wa s uncon stitu tion al. This cont rast seem s to indicate that a court may pr otect "intimate decisions" that one exercises for oneself, but not those that one exercises for others. H owever , thi s distin ction seem s to dissipate qui ckly w hen one conside rs th e many "intima te decisions" th at persons exer cise on behalf of others, most commo nly p arents for th eir childre n . Child rearing. - The right to decide how to raise one's children is one of the foremo st "intima te decisions" th at

the substantive right to pr ivacy operate s to protect. In India n constitu tional law, th e pa rental right to th e upb ringing of child ren finds refuge in right s relate d to lingui stic an d religiou s au tonomie s. The religion clau ses of the In dian Constitut ion operate to pr ohibit the establi shm ent of religion and seek to ensu re th at child ren may not be influen ced by the State's sponsorship of religion before the y develop the calculu s to exercise their own free do m of conscience. Parent al lingui stic righ ts, how ever, have been mo re contr oversial. The qu estion of w hich lang u ages will be taught to stude nts in Sta te school s has almost alw ays been couched as a que stion con cerning lingu istic mino rities. In one insta nce before the Karnata ka High Court , howeve r, the que stion was couched not merely as a right of mino rities to preserve the ir lingu istic identities, bu t also as one of pa rent s to deter mine the upb ringing of their child ren. In an swe ring que stion s concerning which language s studen ts mus t learn in State scho ols, the Sup rem e Court appea rs to have adopted a balancing appr oach . Th e prev alent body of law seems to po int to the con clusion that while the Sta te can tam per with a

tertia ry lingu istic zone , it cannot affect a more prim ary or fun dam ental zone of lin gui stic and deci siona l au tono my. This conclu sion is broug ht out most aptly by the distinction betwee n the "me dium of instruc tion " cases an d the "first language " cases. In D.A.V College v. State of Punjab 326, a Con stitu tion Bench of the Supre me Cour t conside red the constitu tionali ty of a circular issued by the Punjab i University unde r whi ch Punjab i would be the sole med ium of inst ructio n, as a consequence of whi ch all affiliate d college s would have to teach subjects, includ ing the sciences, in Punjab i, and stu dent s would hav e to write examin ations in the Gu rumuk hi script. While inv alid ating the circula r as being ultra vire s of the powe rs vested in the Punjab i University unde r the pr imary legislation, th e Supreme Court couched its concern with the Univer sity's tam per ing with the med ium of instruc tion in terms of protectin g th e freedom of choice availa ble to mino rities: lil 234 The right of the minorities to establish and administer edu cational institutions of their choice wou ld include the righ t to have a choice of the medium of instruc tion also which would be the result of readin g

Article 30(1) with Article 29(1) ... . While the Unive rsi ty can pre scribe Punj abi as a n1edium of in str uction it cannot prescribe it as the exclusive rnediurn nor con1pel affiliated College s establi shed and administered by linguistic or religious n1inorities or by a Section of the citizens who wi sh to con serve the ir lang uage script and culture , to teac h in Punjabi or take examination in tha t language with Gurmukhi script. 327 (emph asis supplied )

A few yea rs later, the Supreme Court in English Medium 328 was asked Students Parents' A ssn. v. State of Karnatak,a, to conside r the constitutio n al validity of a gove rnme nt order which made the stu dy of Kannada mandatory for stude nts in standard s one throug h four . H owever , un like the previou s case, the gove rnme nt order h ad no t made Kanna da the exclu sive me dium of instru ction . Instead , it h ad imposed the study of Kannad a on stude nts within the State as a first language Th e pe titioners' pr ima ry argument wa s not that their intim ate decisional zone or sphere had been violated , but that their children would hav e to bear the ''undue burden " of studying an add itional lan guage . Th e 11

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gove rnment order survived scru tiny . It wa s recogni sed that by me rely requ iring stu dents to stu dy an additional lan guage , mino rities would no t thereby be deprived of their linguistic rights. Th e arguments of the pe titioner proceed on a wrong ba sis as though mino rities are depriv ed of its rights to pre serve its lan guage or culture. That is no t so. Th ere is no violation of either Article 29 or 30 no r even Article 14 of the Con stitu tion. 329 Similarly , in Usha Mehta v. State of Maharashtra330 , the Supreme Court wa s aske d to conside r the constitu tionality of a po licy decision of the Maharashtr a Governme nt by which the stu dy of the Mara thi lan guage wa s mad e compul sory thro ug hout the school s in the State . On ce mo re, the petitione rs seeme d to challenge thi s po licy from the standpoi nt of the onerou s natu re of th e obligation s impo sed by State's deviation from the "thr ee language formul a Upholding the poli cy, howeve r, the cou rt found th at the right of mino rities to exerci se choi ce" in retainin g th eir cultural integr ity was subject to reasonable regul ations impo sed by the State. Using what appeare d to be a ba lanc ing test, 11

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the Supreme Court found that the poli cy was valid conside ring that it was desi gn ed to equ ip stu den ts to su rvive in the State of Maha rashtr a, where knowledge of the Marat hi lang uag e was essentia l. Th e po licy was also designe d, in the opinion of th e cou rt, to bridge "cultu ral bar riers" an d lill 235 promo te cultu ral in tegr ation . It was held th at a State could validly m ake a po licy decision to compulsorily teach its regio nal lang uage , an d th e Maharas htra Government 's po licy was "reasonable" an d "con ducive to the large r in terests of the State ": The issue for resolutio n here is to find whether th is action is reason able or not . The in1pugned policy decision was taken by keeping the larger interest of the State, because the official and common bu siness is carried on in th at state in Marathi langu age. A proper unde rstan ding of Marath i language is necessary for easily carrying out the day -to-day affairs of daily adn1inistration. Hence, the regu lation in1posed by the State of Maharashtra upon the lingu istic minorities to teach its regional langu age is only a reasonable one .331 By contrast, the State Gove rnme nt' s lingu istic po licies w ere invalidated by the Karnata ka H igh Cou rt in

Associated Management v . State of Karnataka332 . In thi s case, unlike the pr eviou s two decisions of the Supreme Court, the Karn ataka Gove rnment had m ad e Kanna da the m and atory medium of in stru ction in State schoo ls. This time around , the court did not couch its constitu tio nal an aly sis by add ressing the case me rely from th e viewpoi nt of m ino rities. Instead, the cou rt also aske d itself whether th e right to choo se the me diu m of in stru ction w as a fun dam en tal right which accrue d to p arents. The cou rt no ted th at clau ses confini ng the me diu m of instruct ion to a certain lang uag e were "conspicuously missing " in the prev ious government orde rs. Holding that th e State could n ot tam pe r with this primary zone of fun dam ental "intimate decisions", the cou rt fou nd that th e choic e of the medium of in stru ction was a fund am ental righ t, whic h was p ar t of Article 19(1)(a) of the Constitution i.e. inh erent in th e right to info rma tion imp licit in the freedom of spee ch : The n1edium of acquiring know ledge or inforn1ation shou ld be the choice of the person acquiring the knowledge . In what langu age the instr uctions are to be taken or in1parted shou ld be the choice of the student or the person imparting education . There cannot be any

compu lsion regarding the medi un1 of instruct ion . If the re is compulsion , then it would amount to the violation of a human right apar t fron1 the fundamental right to freedon 1 of speec h and expression. Medi u n1 of instruction is a species of right to inforn1 ation . There fore, the righ t to medi u n1 of instructio n of the ir choice is implici t in th is fre edom of speech and expressio n ... . As this right is conferred on all citize ns under Article 19(1) (a), the said right is also th at of the pare nts of the child ... 333

lill 236 H owev er, going

a step fur th er, th e cou rt also foun d that th e righ t to ch oo se th e me diu m of in structio n wa s a right inher en t in th e "par en tal right " of u pb rin ging . Mos t impo rtan tly , th e cou rt recog n ised th e right of pa ren ts to b e "left alon e" by th e Stat e, termino logy w hi ch wa s striking ly sim ila r to th e pr iva cy ca ses. Mathr u Devo Bh ava; Pithru Devo Bhava is the unde rlining princ iple wh ich represe nts the eth os and the cultur e of this country . . . . The care an d time spent on the ir child ren, in their upbringing , education and health is unb elievable. It is to be seen to be believed . May be the parents hav e the ir own dreams an d aspir ations in life for

their children . They are prepared to make any sacri fice to achieve that object . In fact virtually they mortg age the ir w hole life interes t for the welfare of their childre n . It may be an Indian phenomenon . May be some times their children are not able to cope up wi th the expectatio ns of their p aren ts. But to state th at p arents are craz y and they do not know w h at is in the interest of the ir childre n is ridicu lous . . . . They wou ld like to have freedon1 or cho ice of educ ating their children , in a manner which is n1ost su ited to their childre n . In those circums tances , it is unfair on the part of the go1.Jernrnent to imp ose its wi ll on the parents and children in selecting the medium of ins truc tions at the primary level. If the g01.Jernmen t has n o power and competence to impose mother tongue as the rnedium of ins truc tions on the stu dents at higher level, equally it has n o power to impose its wi ll even in respect of prirnary education, merely because the experts opine that the m other tongue is best sui ted f or child's education at prima-n; levez.334 (en1phasis supp lied ) A dd iti onally , th e cou rt also see me d to exp an d th e con stitut ional ba sis of th e par en tal righ t to d etermin e th e me diu m in w hi ch th eir child ren wo uld b e

instructed , holding th at it wa s a "fun damental postulat e of pers onal liberty " . [I]t is fairly we ll sett led th at it is univer sally recog ni sed that it is the paren ta l right to h ave pr im ary educ ation of thei r children in the schoo l and lan gua ge of the ir choice . The p arental righ t in educ ation is the very pivot al poin t of a democr atic system . It is the tou ch-stone of difference between democr atic educ ation and n1onolithic sys tem of cultur al to talitar iani sm . The fundaniental postulate of personal liberty excludes any power of the State to standardize and socializeits children.335 (emph asis supplied )

Th e Karn ataka High Court 's opin ion doe s tend to demon stra te th at "fun da ment al right s" ba sed sub stan tive due proc ess doctri ne in India can have textua l origins beside s Article 21. Consequently , th e deletio n of the due proc ess clause had no imp act on this de cision, conside ring that th e court found th at th e right of parents and children to control the me dium of instruct ion in educa tion was an em anat ion of th e right to freedo m of speech and expre ssion. lil 237 What these cases do deter min e at a mor e fundame nt al level however , is the distinc tions that

courts have ten ded to draw betwee n the State's levels of interference in the lingu istic auto nomy of its resident s. The se cases seem to sugge st that the State may certainly interfere w ith the parental right to br ing up the ir children at a tertiary lingu istic level, by impo sing add itional obligations upon child ren, e.g. by making them manda torily learn the official State langu age. Such po licies may involve opportunity costs for studen ts, in that studen ts may not be able to study an add itional language in the face of such policy considering the he avy schola stic bu rden . H owever, when the State seeks to alter th e fund amental charac ter of the education a child receives by requiring her to study in a mandatori ly pre scribed langu age, courts h ave been quick to inv alidat e the action. According ly, in the zon e of "intim ate dec isions" insofar as it relates to lingu istic auto nomy , the State can impose add itiona l burd ens on studen ts, but it cannot fundame nt ally alter the linguistic lens throug h whi ch stu dent s receive edu cational instru ction . In th e man datory pr escription of a m ediu m of instru ction, courts seem to have assume d that the State toys with the manner in wh ich stud ents see the

world 1 an d su ch infringement s with the parenta l right to bring up their child ren are uncon stitutional. 3.3.2. Dignity

From the viewpo int of the na tu re of the inter est involve d cases not falling within any pr ivacy category typ ically relied either expre ssly or imp liedly on the inherent ''dignity " of hum an being s. Table 1 (at the end of th e chapter) demonstrates that the majority of cases examined in th e sample set fall within this category. Accord ingly1 solitary confine ment in the Sunil Batra case336 bar fetters in the Charles Sobraj case337 , han dcuffing in the Prem Shanker Shukla case338 , and delayed executio n in the T. Vatheeswaran case339 were each invalid ated on some expre ss or implied theory of the dignity inherent in hum an being s. Many of the "dignity" rights seemed roo ted in Directive Principles of State Policy. Accordingly 1 the right to livelihoo d 340 and health 341 the right to a decen t enviro nm ent 342 the right to legal aid} 43 have all been incorporated into Article 21 whereas the se are recogn ised as Directive Principl es 1

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of State Policy unde r Articles 39(a) (livelihood )1 39(e) (health) 39-A (legal lll 238 aid) 48-A (environme nt ). The rights to food 344 an d shelter ,345 both socio-economic rights1 have been held to be a pa rt of the right to life unde r Article 21. The right to edu cation was simil arly elevated to the statu s of a fundamental right by the Supreme Court ,346 conside ring that the right to educa tion was a directive pr inciple unde r Article 41, and subsequen tly1 edu cation wa s introduced into the Chap ter on Fundame nt al Right s.347 1

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4. Form versus substance: mala fides

It ha s been the Indi an experie n ce th at tests typi cally ap plied in adm inistrative law spheres have evolved into constitu tional doctri ne.348 Th e "arbitrariness", 3 49 "reasonablenes s" or "pro portio nality " te sts app lied in the zone of admi ni strative law 1 but soon metamorp hosed into const itutional jurispruden ce. Howe ver, one su ch administrati ve law pro ng of chall eng e1 "mala fides" 350 i.e. a challenge based on th e "obliquene ss" of the admini strati ve autho rity's motives 1 the antithe sis of que stions of "substance"1 has had a

limited impac t in the sphere of jud icial review of legislative action . It may be relevan t du ring an investigation, the cou rt' s forays into substan ce to exam ine wh at has resulted in its dista ste for form or motive s. The "arbitrariness" test, like most other means-en d analysis in constitu tional law, fun ctions on th e pr emise that th e ost ensible reason propose d by the legislative aut hority eith er at the time of enactme nt (in the form of the stateme nt of objects an d reasons or otherw ise) or even thereafter in the form of an affidav it in court, is true . Accordingly, un der the "arb itrariness" test, u sing the ostensible purpose of a statu te as a referenc e point, a constitu tional cou rt ventu res an inqui ry into the constituti onality of the statu te typ ically applying som e form of means-en d review with varying degrees of deferen ce ba sed idea lly on th e value of the interests involved . Howev er, the "m ala £ides" test in adm inistr ative law (or in exercise of th e function of jud icial review of adm ini strative/executive action) fun ctions on the pr emise th at the reasons offered by the State authority, W239 agen t or inst rum entality are un tru e an d that the

actu al reasons suffer from an infirmi ty whi ch nega tes the pu rp ose of an d nullifies th e action in qu estion. Assume th at a legislativ e au th ority en acts law X, an d offers reason X in supp ort of the law . The "Statemen t of Objects and Reasons" accordingly declares th at "law X was enacted for th e pu rpose of reason X" . For a claima nt to succ eed in an application seeking a declarato ry invalida tion of law X, th e claim ant wou ld have to do two things: first, pr ove as a matt er of fact, that reason X was not the real reason whic h motivated the enactm ent of law X (whereas, in fact, reason Y wa s the actu al purpose beh ind law X) - in other wo rds that reaso n Y nega tes reason X; and second,demo nst rate, as a matter of law, th at there is a constitu tional infirmity in reaso n X w hich pr eclu des its u se as just ification for law an d nullifies law X entirely. Wh ile the first of these is a question of fact exceed ingly difficu lt to estab lish, the Supreme Cou rt of India has su ggeste d, in a different context, that th e second of th ese m ay be established if the pu rp ose of th e law itself violates a constitu tional principle su ch as equa lity .351 H owev er, it is important at this stage to distingui sh the u se of the "m ala fide" test in different areas of

constitu tional law. Its use while testing the constituti onality or leg ality of adm ini strative actions is well established .352 It has been sugge sted that its u se to test the decision of the President or the Gove rno rs of Indi a, in the proclamation of an eme rgen cy, a fun ctio n which falls signifi cantly sho rt of being classified as a pure adm ini strative decision, 1s not entirely unju stified .353 H owever, the Pre sident and the Gove rno rs of India also disch ar ge legis lative 354 func tions un der their ordin ance ma king powe rs.355 Th e use of the "mala fide " test, while deter m ining th e constitu tional validity of an exer cise of legislative pow er, inclu ding the ordinan ce maki ng pow er, is un commo n, if im perm issible. It is in teresting that different tests seem to ap ply to th e President an d Gove rno rs based on the different hat s they do n at different times . A presi dential or gube rn atorial ordin ance woul d almo st inhe ren tly lack the deliber ative m eri ts of law ena cte d by W240 a dem ocr atic legis latu re, and the refore, according de ference to su ch ordin ances equivale nt to the deferen ce me te d ou t to p arlia m ent ar y law seems an ino rd inate prefe rence for form over

sub stance. An exer cise of the ordina n ce m aking functio n re ceive s greate r deference (although the or dinan ce m ay itse lf enact em ergency provi sion s) w hile an exercise of em ergency p owe rs inv ites stricte r356 scrutin y . In K. Nagaraj v . Union of India357, th e court w as asked to consider whet her obliqu e mo tives coul d bolster an argu m ent to invalid ate the ena ctme nt of an ordin ance. The court seem ed to answer the que stion in the nega tive : The burden to establish mala fides is a heavy bur den to discharge. Vague and casual allegations sugges ting that a certain act was done with an ulterior n1otive cannot be accepted withou t proper pleadings and adequate proof, both of which are conspicuously absent in these writ petitions . Besides, the ordinance-n1aking power being a legislative power , the argume nt of mala fides is n1isconceived. The legislature, as a body, cannot be accusedof having passed a law for an extraneous purpose. Its reason s for passing a law are those that are stated in the Objects and Reasons and if no reasons are so stated, as appear fron1 the provisions enacted by it. Even assuming that the executive, in a given case, h as an ulterior n1otive in n1oving a legislation, that motive cann ot render the

passing of the law mala fide. This kind of 'trans ferred malice' is unknown in the field of legislation .358 (emph asis supplied ) Th erea fter , in T. Venkata Reddy v. State of A.P. 359, a Constitution Ben ch of the Supre m e Cou rt of In dia ha d occa sion to consid er th e ques tion of whethe r a statute could be in va lida ted for th e reason that the legis lative aut ho rity ha d not "ap pl ied its mind " in its en actment. Th e cou rt an swered th e ques tio n in the neg ative : While the courts can decla re a statute unconstitution al when it transg resses constitution al limits, they are precluded fron1 inquiring into the propriety of th e exercise of th e legisla tive power ... . It has to be assumed that legislative discr etion is p roperly exercised. The motives of the legisl ature in passing a statute is [sic] beyon d the scrutiny of courts . No r can th e courts exan1ine wh ethe r the legislatu re h ad applied its n1ind to the provisions of a statute before passing it. The propriety , expediency liJ 241 and necessity of a legislative act are for the dete rmi nation of the legislative authority and are not for determin ation [sic] by the courts .360

H owever , the court vacillated from its p rev ious staunc hl y an ti-m ala fides po sitio n in D.C. Wadhwa v . State of Bihar361, an oth er Con stitu tio n Ben ch 's deci sion, where th e court conside red the con stitutio n ality of reprom ulg at ed ord ina nc es. Th e Gove rno r of a State ha d repeate dly pro m ulg ated an ordinance after its lapse , ab sent legis lation . Withou t seriou sly examini n g any eviden ce which in dicated th at the ordi n anc e was pa ssed with u lter ior motive s in min d, th e court fou n d that the pr actice of repro m u lg atin g an ord in anc e wa s an abu se of con stitutional aut h ority . In its b road langu age , th e court seemed to sugge st that even power s typi cally considered legi slative 362 are capa ble of abu se, an d are, unde r su ch cir cum stan ces, su sceptible to ju di cial in validation : It is settled law th at a constitutional authority cannot do ind irectly what it is not permitted to do di rectly. If there is a constitutional provision inhibiting the constitutional authority fron1 doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge .363 In C. Narayanaswamy v. State of Karnatak.a364, the High Court of Karn ataka h eld th at th e "mala fid es" test could

n ot b e su ccessfully app lied to legis lative fun ction s beca u se pr oving legisl ative mala fides wa s a difficu lt task . This holding does, of cou rse, b eg th e que stio n of whet h er the test will be applied to legislatio n if factu al evi d en ce we re obtained. Con sid erin g th at eleven legislators we re caug ht on camera in a "stin g operation " in 2006 accepting mo n ey in order to ask que stion s in the H ou se, 365 factual evi den ce m ay be more pro bab le today th an eve r befo re. While mala fides vitiate an executive or a judicial order (because it is poss ible to allege an d prove mala fides against the authority who makes these orders ), no ma la fides can be attribu ted to the legislat ion; therefore , ques tion [sic] of alleging or prov ing existence of n1ala fides as lead ing to a particular legislation is in1possible, (here , word ' legislatu re' does not cover any subord ina te legislat ion) .... It is tr ue, Art. 245 does not say tha t the legislature or Parliament n1ay enact a law if it is satisfied that W242 circumsta n ces exist for en acting a particular law . But existence of such a circumstance is pres u n1ed to exist always .366

In Pata Ra·m Bheel v . State of Rajasthan367 , while ackn owledging th at an ordina n ce could n ot be in vali d ated using th e "m ala fid e" test, the cou rt issu ed in teresting d irective s reg ardin g the enactmen t of an ordinance gene rally: In the instant case know ing ou r lin1itations, we reject the contention attribu ting malafide to the State Governn1ent [sic] in p romulg ating the impug ned Ordi n ance. Howeve r, we are of the view tha t the manner in which the Ordi n ance has been brou ght in, it appea rs to be illtin-ied and ill-advised. The Ordinance making power shou ld be exercised not lightly but only when it is absolutely necessary to do so and the situation cannot otherwise be met effectively.368 (en1phasis supp lied) In ter m s of pos tu re, it is strange that a con stitut ion al court m u st b egin an d conclude with th e p remi se th at a statute is enacted in good faith, despite th e fact that its provis ions m ay sub seque n tly be foun d to hav e blatantly violated the Con stitution .369 But th ere are at least two reaso n s why th e application of th e "mala fid es" test to statute s m ay be unne cessary or imp r actical. First,

disp arate impa ct" 370 an alysis is not unknow n to constitu tiona l law . Often 1 sta tut es m ay be invalida ted on the streng th of th e fact th at althou gh statutes may h ave been en acted with some ostensible (constitut ionally vali d) pu rpose in min d1 its effect (intended or otherw ise) is to achiev e ano ther purpose a pu rpo se whic h violates the Constitu tion . In such circum stan ces1 either the sta tut e may be inva lidat ed " as app lied" or the unconstitutio nal app lication of a statu te by an adm ini strative au tho rity may be invalida ted when it occu rs. The refore1 a constituti ona l challenge ba sed on legislative mot ives seem s inh erently to be prema tu re since a statute motivated by an oblique purpo se wo uld be likely to have a dispar ate impa ct1 and ente rtaining a pe tition at that stage would seem more feasible. Second in or der to pr ove legislative "m ala fides" 1 a claimant must discharge a heavy factua l bu rden of llJ 243 proot and factu al proof doe s not mix happi ly with the constituti ona l remedy.371 Howev er there is at least one reason why th e "ma la £ides" test may be appo site in th e Indian context - the Indian Constitut ion do es no t contain a "bill of 11

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attainder" provision un like th e Am erican Constituti on w hich does.372 In Indira Nehru Gandhi v. R aj Narain 373 Mat hew J found :

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[w]her eas in th e United States of Amer ica an d in Au str alia, the judi cial pow er is ves ted exclus ive ly in Court s, there is no such exclu sive ves ting of jud icial power in the Supreme Cour t of Indi a an d the Courts subordi n ate to it. An d if the amendin g body exer cised judi cial pow er in adjud ging the val idit y of the election 1 it cannot be said th at by th at act1 it h as damaged a b asic struc ture of the Cons titution en1bodi ed in the doctrine of separ ation of power s.

In deed 1 wh ile expou nding the classification doctri ne, the Supreme Cour t of India has sugge sted that th e legislature can create a class of one.374 Bills of attaind er ar e1 by their natu re, suscept ible to "arbitr ariness" an d deserve stricter scrut iny, and the "mala fide" test of ad minist rat ive law might be an app ropriate scale to measure the constituti on ality of bills of atta inder. H owev er1 wh ile In dian constitu tional cou rts h ave seem ed most comfort able to app ly tra ditional ad minist rat ive law tests hin ged on "rea sonablene ss" to

statute s, a wide variety of admi ni strat ive law mea sure s of condu ct are still not app lied to legi slative action s in India n constitut ional law . According ly, an In dian court would not ordinarily look into whether a legislatu re app lied its mind" in enact ing the law (i.e. whether it considere d relevant inform ation an d ignored irrelev ant info rmatio n), or wha t its m otive s were in enac tin g the law. Wh ile thi s position appear s to be justi fied in circum stan ces where certain motives are constitutio na lly irrelev ant (e.g. whether a legislator, on an inter pre tation of a ho ly bo ok, vo tes to abolish the deat h penalty), it may not be entirely appo site in oth er circum stan ces (e.g. whether a law was enacted be cau se money exchanged han ds; beca use the law would per son ally bene fit the legislator; or be cau se un constitu tional discrimin ation wa s intended ). It doe s seem a strange result th at wh ile the procedural adm ini strative law prong s of challenge , mo stly objective tests, are ironi cally no t lil 244 app lied to statu tes on separation of powe rs grounds , the most poten t adm ini strative law test 7.liz. "arbitrarine ss", which is both substantive an d subjective, is app lied to measure 11

the constitut ionality of statute s by Indian constitut ional courts. 4.1. Conclusion

Judi cial review has forever involved inve stigation s into the arbitrary exercise of power by the State. H owever , constitu tional doct rine tend s to confine jud icial review within rigi d enumerated boundarie s. The story of In dia's constitu tiona l due pro cess has been one of loosen ing bo un daries, whe re courts wou ld increa singly disreg ard the rigidi ty of barr iers between constitu tiona l pro visions and ap ply abstract yet constitu tionally de rivab le prin ciple s of "fairne ss", "reasonab lenes s" or arbitrarine ss" aga inst legislative enactment s. The constitu tional pr in ciple of "rea sonablene ss", textua lly enumerated and found un de r Article 19 of the Con stitu tion, h ad beg un to make its way into Article 14 analy sis unde r the classification doctrine . Soon, the principle s of "reasonab lene ss" or "fairne ss" we re ap plied to Article 21 as well as an "arbitrar ine ss" standard. 11

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