Of constitutional ‘due process' - The Hindu 24/01/19, 12)55 AM

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COMMENT

Of constitutional ‘due process'

Abhinav Chandrachud MAY 24, 2010 00:02 IST
UPDATED: MAY 24, 2010 00:02 IST

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Two recent judgments of the Supreme Court of India highlight a
paradigm shift in its approach to original constitutional norms.

Two decisions announced by the Supreme Court of India in May strikingly

indicated that the American doctrine of “due process” has firmly become a part
of Indian constitutional law, despite the Constitution-framers' contrary
intentions. In the first of the two cases, decided on May 5, Selvi v. Karnataka, the
court considered the constitutionality of the investigative narco-analysis
technique, holding it permissible only when the subject consents to its use. In
the second case, decided on May 11, Union of India v. R. Gandhi, a Constitution
Bench unanimously held that certain provisions of the Company (Second
Amendment) Act, 2002, establishing the National Company Law Tribunal and
Appellate Tribunal, suffered from unconstitutional “defects.”

These decisions have been analysed and re-analysed for their immediate policy
implications. However, the philosophy underlying these decisions, namely,
constitutional “due process,” highlights the paradigm shift in the court's
approach to original constitutional norms, and deserves analysis.

The American doctrine of “due process” had been rejected by the framers of the
Indian Constitution at the time of its enactment. The fifth and fourteenth
amendments to the American Constitution provide that life, liberty and
property cannot be deprived without “due process of law.” This seemingly ROLLOVER TO EXPLORE

innocuous phrase, borrowed, oddly, from per legem terre in the Magna Carta,
acquired a nuanced meaning in the American constitutional context,
consequent to years of judicial exposition.

Over time, the phrase acquired “substantive” and “procedural” meanings, each
of which enhanced the powers of the judiciary. For example, in exercise of
powers conferred by the “due process” clause of the Constitution, American
courts would create “new” or unenumerated rights. Most notably, these were
the rights to abortion, marriage, homosexuality, the use of contraceptives, child-
rearing, and so on. The “due process” clause mandated harmonious
constitutional interpretation, and enabled American courts to apply federal
constitutional standards against the States on principles of “fairness” or
“ordered liberty.” Interestingly, in the Magna Carta the phrase “due process of

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Of constitutional ‘due process' - The Hindu 24/01/19, 12)55 AM

law” was meant to curb the powers of the royal judiciary in favour of the feudal
baronage, quite contrary to the spirit of judicial activism that is now attributed
to the clause.

One of the leading members of the committee constituted to draft the Indian
Constitution, B.N. Rau, travelled to the United States, where he met Justice Felix
Frankfurter, a Judge on the Supreme Court. At the time, Justice Frankfurter was
involved in a judicial tussle with Justice Black over the meaning of the phrase
“due process of law.” Justice Black hoped that it would be interpreted to strictly
incorporate rights traditionally available against the federal government, and
made available against the States. By contrast, Justice Frankfurter advocated a
less stringent approach, arguing that the due process clause merely required the
courts to apply the principles of “fairness” or “ordered liberty” against the
States. Justice Frankfurter advised B.N. Rau to avoid the due process clause in
the Indian Constitution because it imposed an “undue burden” on the judiciary.
Consequently, in 1949, the phrase “due process of law” was dropped from the
text of what was to become Article 21 of the Indian Constitution, despite what
appeared to be strong support for the clause on the sub-committee on
fundamental rights.

However, despite the express textual choices of the framers of India's

Constitution, the “due process” clause found a backdoor entry into Indian
constitutional analysis in the late 1970s through the right to equality, which has
ever since become a conduit for activist constitutional interpretation. In Justice
P.N. Bhagwati's classic opinion in the Maneka Gandhi case, it was held that the
Constitution mandates “fair” procedure when rights are deprived. Although the
court would repeatedly hold in subsequent cases that the American standard of
“due process” did not apply to the Indian Constitution, in reality the court
would apply nothing less than due process standards to administrative and
legislative authorities in its emphasis on “fair, just and reasonable” procedure.

The two latest decisions of the Supreme Court are striking for their express
rejection of the framers' textual value choices. While previous Supreme Court
opinions would at least theoretically reject American “due process,” in the
narco-analysis case Chief Justice K.G. Balakrishnan held that “substantive due
process” is now a “guarantee” under the Constitution. This declaration is a
remarkable rejection of the framers' decision to delete the due process clause.
In its narco-analysis opinion, the court upheld a right to mental privacy,
recognising an “unenumerated” right as American courts would in exercise of
the due process clause.

The right to privacy has been around in Indian constitutional law for decades,
and the court's opinion in Selvi merely adds to the existing body of law on
constitutional privacy. However, in expressly articulating the “guarantee” of due
process, the court has on one of only a few occasions in its history recognised
that India follows the due process doctrine, expressly rejecting the framers'
intentions.

In R. Gandhi, decided on May 11, the court held that certain provisions of the law
regarding the appointment and qualifications of the members of the National
Company Law Tribunal, suffered from unconstitutional defects. However, the
Indian Constitution does not strictly or textually permit courts to strike down a
piece of legislation merely because its provisions are “unfair” or “arbitrary,” in
the absence of a violation of one of its enumerated provisions. To overcome this
difficulty, the court in this case held that principles such as “independence of
the judiciary” are part of the “essence” of the right to equality, and consequently

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Of constitutional ‘due process' - The Hindu 24/01/19, 12)55 AM

must be enforced. Formerly, principles such as “independence of the judiciary,”

“rule of law” and “separation of powers” would usually be applied using the
basic structure theory only to constitutional amendments. In its R. Gandhi
opinion, the court has remarkably applied loose constitutional principles
rooted in its understanding of “fairness” or constitutional “basic structure” to
ordinary law, much in the same way as Justice Frankfurter would have done in
the American due process cases.

The theory of “original intent,” whose most vociferous proponent, Justice

Antonin Scalia, now sits on the American Supreme Court, demands that courts
interpret constitutional provisions according to the intention of the framers of
the Constitution. In Indian constitutional law, the theory was followed strictly
by the court until after its decision in the habeas corpus case, where the Supreme
Court followed the framers' intentions and permitted civil liberties to be
suspended during the Emergency. The illegitimacy of the court's opinion in the
habeas corpus case subsequently offered a sufficient moral basis for the
rejection of the theory of original intent. The Supreme Court's latest opinions
strike a lethal blow to the theory of original intent, and firmly recognise that
constitutional “due process” is here to stay.

(The writer, a graduate of the Harvard Law School, is an associate attorney with a law
firm in the United States.)

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