Two recent rulings hark back to a key debate during the writing of the Indian Constitution about the incorporation of the American doctrine of substantive due process
In 1947, Justice Felix Frankfurter of the U.S. Supreme Court advised one of the chief architects of India’s Constitution, Sir Benegal Narsing Rau, to delete the words “due process of law” from the text of India’s draft Constitution. However, two recent cases, one decided by the Supreme Court and the other by the Bombay High Court, tell a very interesting, yet conflicted, story about the incorporation of the U.S. doctrine of substantive due process in Indian constitutional law.
The 5th and 14th amendments to the U.S. Constitution provide that a person cannot be deprived of “life, liberty or property, without due process of law”. Only a few decades before the meeting between Frankfurter and Rau took place, the U.S. Supreme Court had used the “due process clause” in the 14th amendment to invalidate social welfare legislation. This phase in American constitutional history is often described as the “Lochner era”, named after the dreaded case of Lochner v. New York (1905) in which the Supreme Court invalidated a New York law which prohibited confectionary establishments from employing workers for more than 60 hours per week. The Lochner era is said to have come to an end around 1937, starting with the decision of the U.S. Supreme Court in West Coast Hotel v. Parrish(1937), when President Franklin Delano Roosevelt threatened to “pack” the Supreme Court with favourable justices in order to ensure the survival of his ambitious “New Deal” legislation.
Rau and Ambedkar
Even though the Lochner era had come to an end around a decade prior to the meeting between Frankfurter and Rau, Frankfurter believed that the words “due process of law” imposed an “undue burden” on the judiciary and that they should be deleted from the draft Indian Constitution.
Even prior to his meeting with Frankfurter, Rau (who was the Constitutional Adviser to the Constituent Assembly) was having serious misgivings about the due process clause. His meeting with Frankfurter was the final nail in the due process coffin for the Indian Constitution. In March 1947, Dr. B.R. Ambedkar, a product of Columbia Law School himself, had drafted a provision for the Indian Constitution which was very similar, if not identical, to the due process clause of the 14th amendment. It read: “… Nor shall any State deprive any person of life, liberty and property without due process of law.” After Rau’s meeting with Frankfurter, Ambedkar’s clause was substantially altered. Property was altogether deleted from this clause, to make way for the extensive land reforms which were being contemplated in the Constituent Assembly. “Liberty” was qualified with the word “personal”, so as to limit its meaning. And the words “due process of law” were replaced with the words “procedure established by law”. Thus, Article 21 of the Indian Constitution now reads: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
In the early decades, the Supreme Court of India interpreted Article 21 faithfully to the intent of the framers of India’s Constitution. However, beginning in the 1970s, an activist Supreme Court started incorporating the U.S. constitutional doctrines of “procedural due process” and “substantive due process” in India. Though Article 21 formally provides that a person’s life and personal liberty can be deprived so long as there is merely a “procedure established by law” (that is, a validly enacted law), the doctrine of procedural due process mandates that this procedural law must be “fair, just and reasonable”. The doctrine of substantive due process enables a court to question not merely procedural laws, but the substantive value choices of the legislative branch of government as well.
In a recent case, Rajbala v. Haryana (2015), a two-judge bench of the Supreme Court of India strongly rejected the doctrine of substantive due process in India. In this case, the constitutional validity of the Haryana Panchayati Raj (Amendment) Act, 2015 was in question. Under the Act, five categories of persons were considered ineligible to contest elections for certain offices in panchayats in Haryana (for example, those against whom criminal charges of a certain kind were framed, those who had not paid their electricity dues, those who did not have specified educational qualifications, those who did not have a functional toilet in their homes, etc). The Act was challenged on the ground that it was “wholly unreasonable and arbitrary and therefore violative of Article 14 of the Constitution”. Though the Supreme Court rightly held that a statute cannot be invalidated merely because it is “arbitrary”, it also went on to reject the U.S. doctrine of substantive due process by holding that Indian courts “do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution”, as “to undertake such an examination would amount to virtually importing the doctrine of ‘substantive due process’ employed by the American Supreme Court”, and under the Indian Constitution “the test of due process of law cannot be applied to statutes enacted by Parliament or the State Legislatures”.
The Rajbala decision is particularly interesting because earlier Benches of the Supreme Court, in cases like Ramlila Maidan Incident (2012) and Selvi v. State of Karnataka (2010), have repeatedly held that substantive due process and due process generally are a part of Indian constitutional law under Article 21 of the Constitution.
Beef in Maharashtra
Thereafter, in Shaikh Zahid Mukhtar v. State of Maharashtra, decided on May 6, 2016, a Division Bench of the Bombay High Court was dealing with the constitutional validity of the Maharashtra Animal Preservation Act, 1976, as amended by the Maharashtra Animal Preservation (Amendment) Act, 1995, which received the assent of the President of India on March 4, 2015 (hereinafter, the “Beef Act”). Among other provisions which were challenged, Section 5-D of the Beef Act made it a criminal offence to have in one’s possession, in the state of Maharashtra, the flesh of a cow, bull or bullock slaughtered outside the State of Maharashtra. The question was whether this provision violated the right to privacy under Article 21 of the Constitution. Section 5-D was struck down by the court. It was held that the right to privacy is a part of the right to life under Article 21 of the Constitution, and that the right to eat the food of one’s choice, if the food itself is not injurious to health, is a part of the right to privacy. By declaring that the right to life under Article 21 of the Constitution includes the right to privacy, the Bombay High Court was, in essence, circumventing the intent of the framers of India’s Constitution (who had deliberately qualified the broad word “liberty” with the word “personal”). Recognising an unenumerated right like privacy is an example of substantive due process.
Section 9-B of the Beef Act cast the burden of proof on the accused in some cases. The court was examining its constitutional validity. This was a procedural due process inquiry, as the provision reversed a well-known procedural rule of evidence in criminal trials, that is, the burden of proof is on the prosecution. Section 9-B was also struck down by the court. It was held that the “right of life and liberty under Article 21… clearly covers the [substantive] due process aspect envisaged in the American jurisprudence.”
Thus, interestingly, while the Supreme Court of India in the Rajbala case has strongly rejected the doctrine of substantive due process, the Bombay High Court has, following earlier Supreme Court pronouncements, applied and reiterated the doctrine in Indian constitutional law.
Abhinav Chandrachud is an advocate at the Bombay High Court.
