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:,

•
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 To
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AAJU & PRABHA , N ANI & BAB A,
THE C H ITALE S, T HE C HANDR AC HUD S
andC HINTAN

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lil v 11Foreword
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
wri ting a text on a trad itional subje ct. Mr _~ bhinav
Ch andra chud has atte mpted to cap ture th e sp1nt of due
proc ess1 as it develop ed in Ame rican jurisprudenc e/ and
explain s how it has inevitably but discreetly entered
Indian constitut ional law in a mu tated form even
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
Con stitu tion of Ind ia .
II
Due proc ess1 as initially und erstood , referred to a
course of legal proc eedings according to those rules and
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/
ambit of du e process also exp an ded fro m me rely
proceduraldu e proc ess (relatin g to fairness in t~ial, right
to be hear d before being condemned or sub Jected to
adv erse decision) to substantive du e proc ess (referring to
right to counse t right to legal aid 1 right to remain silent/
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

lill x1 Acknowledgment
I AM GRATEFUL TO PROFESSOR NOAH FELDMAN, ~ ~r;
p ape r supe rvisor at Harv ard Law School, for his
guida nce duri ng th e acade mic year 2008- 09. I am also
dee ply gra teful to Professor s Richard Fallon, Mark
Tushnet an d John Mansfield . I thank Ni ck Robinson,
N amita Wahi, Jan e Bestor and the w riting progr am at
H arvar d Law School, H eathe r Wallick, and the library
staff at Langdell. I am deeply grateful to Mr Arvin d
Datar for his guida nce when this boo k wa s only a pape r. Sept ember 2006 whe n I serve d as H is Lordship's train ee
I th ank Professor Upendra Baxi, Abh a Gan dh i, Roopsi
N arula an d Ben Owe n. I espe cially thank Bharat
Kapad ia for his research assistance. Thi s boo k began as
a discussion with Rohan Rajadh yaksha, benefiting along
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,
an d for th e bird' s eye insight into the discipline of the
law on the 23rd floor of Expr ess Tow ers. I am deep ly
oblig ed to H on'ble Mr Justice S.J. Vazifdar for traini ng
me as a studen t over three weeks in Janua ry 2005. I am
also deeply gratefu l to H on'ble Mr Ju stice Y.K.
Sabharwal, former Chief Justice of India, for th e
invaluable guidan ce in the months of Au gu st and
law clerk. I am deep ly grateful to Mr Jai Pathak for his
continue d gu id an ce, support and encourageme nt. I
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
B.S. Yad av u. Cen tral Bank of India, (1987) 3 SCC 120: AIR 1987 SC 1706 »
90, 101
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 . D.C. Wadhwa v. State of Bihar , (1987) 1 SCC 378: AIR 1987 SC 579 241
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
Brundaban Kayak u. Election Commi ssio n of India, AIR 1965 SC 1892 »
12-1
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
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 .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
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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
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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 principle in our Constitut ion1 albeit thr ough the jud icial
gover nm ent on w hom the legislatu re dominated by a rout e requires the demarcatio n of the limits of jud icial
1

single party could not act as an effective check. In su ch a powe r of bot h the Sup reme Court an d H igh Courts. In
situation 1 satisfying the requirem ents of proc edur al du e thi s turbulent ba ckground 1 th is book on du e proc ess by
proc ess become s rath er easy. Institu tions 1 like children 1 Abhinav Chan drachu d is as tim ely as it is well -writt en .
alway s tend to be forbidden . So it was with our judg es.
2. Constituent Assembly debates
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 The Constituent Assembly appoin ted a drafting
comm ittee pre sided over by Dr. B.R. Am bed kar. A
in M aneka Gandhi v. Union of India12 (Maneka Gandhit the
controve rsial issu e was wheth er the "du e pr ocess"
cou rt ha d travell ed a great jud icial distanc e in a
clause should be includ ed in one of th e articles in the
relatively short time. Th e importation of subst anti ve and
Cha pter on ''Fun da mental Rights " . Dr. B.N . Rau an ICS
1
proc edu ral due proc ess was made WXXX po ssible by an
officer1 play ed a leading rol e in the drafting commi ttee.
activist judic iary an d legislative an d executive decisions
H e visited the US1 the UK1 Canada and Irelan d to
mad e in h aste with out though t and import antly with
1 1 1
discuss various prov isions of different constituti ons
an increasing ebbing of their m oral au th ority and
with emin ent constituti on al scholars and jud ges. In a
integrity.
historic an d oft-quo ted meetin& Dr. Rau met Felix
The flexibility an d limits of th e pow er of the Supr eme
Frankfu rter J of the US Supr eme Court in 1947. In the
Court will greatly depen d on the manner in w hich the
US, he also me t Hug hes form er CL Bu rton L Mu rphy J
Supr eme Court interp rets Articles 14 and 21 of th e
an d Learn ed H and the legen dary J. Frank furter L
Constitut ion .13 Th e intr oductio n of the due pr ocess
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
II
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 .
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
W XXXIII Only 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
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;
) the verification of movements and absen ces by
(7.7
mean s of inqu iry slip s; and
i) th e collection and record on a history sheet of all
(7.7
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
1 1
infringe bo th the rights; 4) the expressio n law in Art icle
1
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
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
Gopalan case28 an d h eld th at various fun dame n tal righ ts
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
I 1
the phrase due proc ess of law the re can be no do ub t
1
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
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 wafer-
th 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
11
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.
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
11
calls it as an "isosceles trian gle" but I do not unde rstand
why it cannot be called an "equilateral triangle ".
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
11
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.
 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 put-
up 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 solitary confinement and bar llJ XLIV fett ers,57 and the
Supr eme Court or any H igh Cou rt wo uld strike it
right to a hyg ienic enviro nment,58 have bee n rightly
down . Felix Frank fu rter J w as again st th e introd uction
read into Article 21.
of the du e pr ocess clau se because it wou ld enable the
~ou rts to strike down legislation. Paradoxically , th e 15. Conclusion
intro du ction of the due pro cess clause by the Supreme
Chan dr achud h as admir ably performe d the difficult
Court ha s resulted in the exact opposit e - extreme
ta sk of summ arising the pr inciples laid dow n in severa l
deferen ce to the legislatu re an d conseque nt reluc tanc e
impo rtant cases. Every prac tition er who is to argu e a
to strike down a law .
cas~ chall eng ing the valid ity of a legislation un der
14. Expanding the scope of Article 21 Art~cles_14, 19 or 21 or fighting against executive
arb1tran ness cannot afford to ignore thi s book. Speaking
Substa nti ve du e process has been the ba sis for
for myself, I hav e benefited enormously as no oth er
expa n ding the scope of Article 21. Variou s rights,
comme ntary in th e Con stitu tion con tains a detailed
perh ap s n~ver contemplated by the foun ding fathers ,
exp lanat ion and an alysis of this branch of law .
have been int rod u ced by "read ing" th em into Article 21.
This historical narrative an alysis of all the judg men ts
Several of these judgm ents are inde ed welcome as the
relating to due pr ocess, an d the Suprem e Court 's
juridicial process was th e only way to give relief in
certain extrao rdina ry cases. For instance, prote ction jou rney from the Gopalan case59 to the Royappa case6o,
again st sexua l harassment at the work place,55 relief to an d the Maneka Gandhi case61 and beyond are instructiv e
of how the court fun ctions and has adapted itself to
bonded labou rers,56 an d relief to pr isoners ag ainst
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 9-7-
1868.
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 : 32. (1970) 1 sec 248: AIR 1970 SC 564.
N o pe rson shall b e depr ive d of hi s life or pe rsonal liber ty 33. In a sp eed 1 in Madras in 1971, Palkhivala tem 1ed Articl e 31-C as
excep t according to proced ur e es tabli sh ed by law . th e "ultiin ate in utt er contem p t for th e Constituti on" .
14. CAD, Vol. VII, 1000- 1001. 34. C. Rajagopalad 1ari, the first Goven10r General of Ind ia and
15. See, CAD, Vol. VII, 853. form er O lief Mhli ster of Mach as.
16. AIR 1950 SC 27: 1950 SCR 88. 35. (1973) 4 sec 225: AIR 1973 SC 1461.
17. Ibid, pa r a 27. 36. Ibid.
18. Ibid, pa r a 285. 37. (1976) 2 sec 521: AIR 1976 SC 1207.
19. Ibid, pa r as 73 an d 74. 38. New York Times qu ote.
20. AIR 1950 SC 27: 1950 SCR 88. 39. (1978) 1 sec 248: AIR 1978 SC 597.
21. K.K. Kochunni v. Sta.le of Ma.dra.sand Kera.la, AIR 1960 SC 1080: 40. Ibid.
(1960) 3 SCR 887. 41. (1974) 4 sec 3: AIR 1974 SC 555.
22. AIR 1950 SC 27: 1950 SCR 88. 42. (1978) 1 sec 248: AIR 1978 SC 597.
23. AIR 1963 SC 1295: (1964) 1 SCR 332. 43. Ibid.
24. A nucha A nta.ra.ngaa t (Inside the Atom) in Mar athi . 44. Ibid.
25. Sta.le of 1'1.aharashtra.v . Prabhakar Pandura.ng Sa.nzgiri, AIR 1966 SC 45. Ibid.
424, para 7: (1966) 1 SCR 702. 46. (1973) 4 sec 225: AIR 1973 SC 1461.
26. Kesava.na.ndaBha.ra.tiv. Sta.le of Kera.la.,(1973) 4 SCC 225: AIR 1973 47. Ibid.
SC 1461. 48. T.R. An dhyan tjina , "TI1e Untold Story of H ow Kesa.va.na.nda
27. (1970) 1 sec 248: AIR 1970 SC 564. Bha.rati and th e Basic Stn1ch1r e Doctri11e Su rvived an Attem p t to
28. AIR 1966 SC 816: (1966) 2 SCR 427. Rever se th em by th e Supr em e Court " (2009) 9 SCC-J 33.
29. (1978) 1 sec 248: AIR 1978 SC 597. 49. (1994) 3 sec 1: AIR 1994 SC 1918.
30. Fra.nkv. Mangum, 59 L Ed 969: 237 US 309, 347 (1915). 50. (1978) 1 sec 248: AIR 1978 SC 597.
31. AIR 1967 SC 1643: (1967) 2 SCR 672.
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 .

w1I. Introduction
SUBSTANTIVE DUE PROCESS IS A PIQUANT AND Nff A~~
doctrine wh ich has bee n attribu te d many meaning s. At
its best, it is a constituti on al oxym oron . At its wor st, it is hav e w ith Black J. Howev er, in his em pha sis on
a historical hi ccup. Its nomencla tu re uncomfor tably
11
invoke s "subst an ce" and ''proc ess" within th e same
phra se. Its an alysis doe s not begin an d en d with
substan tive scrutiny . It ha s often been confu sed with
any form of jud icial review of legislative action,
although it involves much more and far less.
Substa ntive due pro cess doctrine in Am erican
constituti onal law had thr ee specific meanings: i) when
cou rts created right s wh ich could not pe rsu asively be
link ed with any textual provi sion of th e Constitut ion
(typically the Bill of Rights); ii) wh en cour ts app lied
federal constitu tional standard s aga inst th e States; an d
iii) wh en courts engag ed in any form of substantiv e
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
14th Am endm ent in th e jud icial tu ssle whi ch he would
fairnes s", ordered liberty" and idea s fun da men tal to a
11
"civilised society", Frankfurter J contribu ted to the
constitu tion alisation of "fairne ss" as a gov ern an ce
aspi ratio n . "Fairn ess" as constitut ionalism is p erhaps
one of the most striking develo pments of subst antive
du e proc ess doctrin e, comparabl e with "non-
arbitrari ness" in India' s constituti on al jurisprud ence.
llJ 2 The purpo se of this book is to identi fy the
boundar ies of subst antive due pr ocess doctrine in the
constitu tion al jurisprudenc e of the US, and more
impor tantly to define its contou rs with in the realm of
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",
1
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
1
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
"essence" of equa lity un de r Article 14 articulated as an
11
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
11
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
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 ,
II
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
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"
II
or core" of constitution al pr inciple wa s de rived from
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
11
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 .
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 2010.
a Den1oc1·atic Society " 46 Wayn e L Rev 1305, 1318. 19. 49 L Ed 937: 198 US 45 (1905).
12. Cases th at do n ot in volve "hu1dan1ent al right s" tri gger a 1nilder 20. AIR 1950 SC 27.
fom 1 of "ration al b asis " rev iew. See, Roe v. Wade, 35 L Ed 2d 147: 21. (1976) 2 sec 521: AIR 1976 SC 1207.
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-

W9ll. Meaning of Sub stantive Due
Proce ss
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
11
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
"un scru pulou s and opp ortuni stic1110 King. 11 It was a
reiteration of feudal custom, 12 and marked me rely th e
11
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
II
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,
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
11
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
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
11
·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
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
11
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
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 rty11
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 11
.
Darling J refuse d to accept th e argume nt, hold ing that
the Magn a Cart a was not immune to ch ange .
 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
11
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 .
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
II
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
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:
II
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
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
II
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
 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
II
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
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 hter-
H 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"
II
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
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 "
II
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
II
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
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
II
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
II
abso rbed " int o the reconstru ction ame ndm ents but not
11
in th eir entirety, holding th at "the pr ocess of absorption
[must have] its sour ce in the belief that neithe r liberty
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"
II
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.
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
II
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 self-
incrimin 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.
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 incorpo ration", where Bill of Rights que stions ag ainst
judgm ent wa s affirmed ex necessitate. Th e Ohio Supre m e the Sta tes were to be solved by jud ges on an ad hoc
Court ha d held th at inspe ctors had the right to ent er basis, accor ding to their overall reaction to pa rticular
11

pr ivate dw ellings without probable cause. The 4th cases",1°2 citing Cardozo' s J opinion in th e Palko case
Amen dment shielded citizen s from any unr eason able II
with its em pha sis on absorptio n" as pr ecedent .
search and seizure carried out by the federal It was only du ring the Warren Era that Black J's dissent
Gove rnme nt, bu t m ade no me ntion of the State wou ld resonate with a pa rt of the majority. In Duncan v.
Gove rnme nts. Whi le dep artin g from th e no rm that in
Louisiana103, the Supreme Court was concern ed wi th th e
equally div ided courts (whose decisions shall not
qu estion of whet her the accu sed in a criminal case cou ld
constitut e precede nt ), no op inion should be expressed,
dem and a jury trial in a State, us ing th e 6th Amen dment
Brenn an J spoke for fou r ju stices in hold ing th at th e
(whi ch app lied to the federal Gove rnmen t) to suppo rt
lovver court's order deserved to be rever sed. In his
the claim . Speaking for the Supreme Court, Wh ite J
opini on, Brenn an J highligh ted the two extremes_in the
acknowledged th at the Bill of Rights had on several
manne r in whi ch th e Bill of Rights int eracted wi th the
occasions been held app licable against the States: the
14th Ame ndmen t. H e highlighted Frankfurte r J's
te st to determine wheth er a right availab le aga inst th e
posit ion on the one han d th at found that the 14th
federal Gove rnmen t were also available aga inst a State
Ame ndm ent incorpo rated nothi ng, but wa s foun ded on
unde r the 14th Amen dment wa s to determine w hethe r
pr incipl es of "or dered liberty" an d "fairne ss", requir~ g
the right wa s amo ng "fundame ntal pr incipl es of liber ty
States to be fair. Nex t, he hi ghlight ed Black J's empha sis
and ju stice which lie at the ba se of all our civil and
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, po litical institu tion s" .104 In a concu rring opin ion, Black
Brenn an J advocated a compr omise betwee n th e two J W 24 reiterated his view i.e. th at "the Fou rteent h
appr oaches, an " ad-hoc" app roach, one of "selective
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
11
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
11
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.
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
II
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
aga inst th e federal Government . It was accordingly held
that the due proce ss" clau se of the 5th Amendmen t did
II
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.
 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
I
fairness, are not mutua lly exclusive . The equ al pro tection
1
of the laws is a more exp licit safeg uard of prohibited
I 1
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 )
Th e opinion seemed to be long to the Frank furter school
of thought in its reliance on the 'idea of fairn ess" as
1 first, thi s was certainly the mo st visible "sub stantive du e
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:
[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 11
incorporation versus
11
"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
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
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
1
wh ich exclude the right. 128
(emphasis supplie d)
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
1
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
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
 . - -
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 11
must itself be app ropria te an d
legitima te 131
11
.
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
11
11
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
1
articulated what was wrong with the Supreme Court's
majority opi ni on 7.7iz. rea ding the ind ividua l ju stices'
person al value choices into the Constitut ion:
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 ]
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)
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
11 11
due proce ss clause of the 5th Ame ndment was
interpre te d to substantively res trict the powe r of
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 1
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
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
1
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
1
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.
1
Car dozo had ru led in favour of Ne w Deal legislation 1
w hile fou r conservat ive ju stices w ere against (Devant er
1
Reynolds1 Suth erland and Butler ).145 Th e sw ing vot ers,
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
11
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.
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
II
viewed with greater suspicion . Th e distinctio n between
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.
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 anti-
contracept 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
1 1
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
11
un enum er ated righ t w ere fund ame n tal ? 11
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
1 1
the tradi tions an d (collective) conscience of our peo ple
to determ ine whet her a principle is so roo ted (there )***
1 Lochne r Er a were condemne d by th e Su pr eme Cou rt in
as to be ranked as fun damenta r . . . . The inqu iry is
1
w hether a righ t invo lved is of such a ch aracter' that it
1
canno t be denie d wi thou t violating tho se fun damenta l
1
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
11
compelling in tere st1 in orde r to ju stify the statu te .169
1
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
11
to n ame i.e. the Lochner case170 an d it s proge ny 171, 172
11
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
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
11
false start.1' of su b stan tive due proc ess in Ame rican
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
11
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 .
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
11
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
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
11
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
 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
1 autonomy withi n th e term "libe rty " :
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 1
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
1
we re arr ested 1 cha rg ed and convicted by the State of
Texas unde r a statute that prohibited II
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
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 ,
1
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,
11
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
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
II
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
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 " .
11
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.
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 individu al protecte d by the 14th Ame nd ment of the
"rights-creating" and "burden-imposing" limb s. Fede ral Constitutio n" .211
The right s-creating component of substantive due The rights-creating comp onent of the due process
pr ocess assume s th at "life and liberty" can be depr ived clause may have either an in dire ct textua l origin or a
in way s other th an by impr isonme nt or physical non-textu al origin . For example , de claring th at free
restraint 1 an d involves the creation or spee ch right s are available aga inst the States has an
constitu tion alisation" of new or "unenu merated "
11
indirect origin in the Constitutio n's text1 since the 1st
right s thr ough perm issive interpretations of the word
1 Ame nd ment recognises the right to free spee ch 1
"liberty" in the 14th Amen dment . Strictly speak in& the althoug h the textua l righ t is only available against th e
right s-creatin g compo nent has less to do with the due
II
federal Government . On the othe r han d, the de claration
pr ocess" eleme nt of th e clau se and more to do w ith the
1 of pr ivacy as a fun damental right did no t strictly have a
word ''liberty" . Although nearly all adjudication textua l orig in (althou gh the cou rts treate d it as a
invo lves an inte rpr etive or "right s-creat ing" eleme nt 1 . o f certain
· textu a1prov1s1ons
· · ).212
"penumbra! " exten sion
the term "rights-creatin g" in th is work is used to denote
In sub stanti ve due pro cess cases1 the court is usually
perfectionist interpre tation i.e. interpretat ion w hich
seen to declare "fun dament al right s" i.e. rights
wo uld not strictly follow from the language of the text.
hierarchically superior to ord inary constitu tional right s
1
When a per son claims a right wh ich canno t pe rsua sively
or rights "so roote d in the tra ditions an d conscien ce of
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 [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
example in the Lochner case210 th e Ame rican Supr eme
1
proce ss" conte xt. The notio n of "fundamen tal rights" in
Cou rt held that the gene ral right to make a contr act in
II

substantive due proce ss un derscores the idea lil 44 of a

relation to [one's ] bu siness is p art of the liberty of the
righ ts hierarchy i.e. th at some rights are superior to
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
II
11
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
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.
 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
Pennsylvania v. Casei1 233 (Casey), pu rsued a legitima te
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
11
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
1 remedie s.237 Similarly1 Niki Ku ckes emp hasises four
"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
1
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
-
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
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
11
fair
11
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
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 1
item s vi) and xi ) embodied the instrumen tal fun ction s of
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
I I I ba sic to [Amer ican ] society " .249 The "central me aning "
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
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
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
11
a pr opo sed term in ation ;258 ii) an effective oppo rtunity
11 II
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
11
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
II
governme nt action would be he ld to :
[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
lill52 It
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.
11
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
II
an indefinite manne r incapable of assuaging 11well-
defined class interests elaborat ed in th e next chap ter
11
1
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 "non-
statu 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
11
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
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). . See further , District of Columbia v . Heller, 171 L Ed 2d 637: 128 S Ct
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<fttrter, "Men10rru1d1un on ' In corpo r ation ' of the Bill
of Rights into the Due Process clause of the Fourteen th
Ainendn1ent " (1965) 87 Harv L Rev 746, 751- 752.
116. Iltis view has not gained w idespread recognition . l1 1e 2nd
Ainendn1ent , for examp le, has been held onl y to app ly to the
fede ral Govenu n ent. See, Presser v. Illinois, 29 L Ed 615: 116 US
252 (1886); Miller v . St ate of Texas, 38 L Ed 812: 153 US 535 (1893).
2783: 554 US 570 (2008). But see, Michae l Lawrence , "Second
Ainendn1ent Incorpo r ation l11rough the Fourteenth An1end 1nent
Privileges or Inun1uuties ru1d Due Process Clauses ", (2007) 70 Mo
L Rev 1.
117. 89 L Ed 194: 323 US 214 (1944).
118. Ibid, 235.
119. Korematsu v. Uni ted St ates, 89 L Ed 194: 323 US 214 (1944).
120. 98 L Ed 884: 347 US 497 (1953).
121. 98 L Ed 873: 347 US 483 (1954).
122. Ibid, 488- 489.
123. Ibid, 499- 500.
124. Cass Suns tein , "Lochne r' s Legac y" (1987) 87 Cohllll L Rev 873. 142. 79 L Ed 446: 293 US 388 (1934).
125. 49 L Ed 937: 198 US 45 (1905). 143. R ailroad R etirement Board v. A lton Railroad Co., 79 L Ed 1468: 295
126. 41 L Ed 832: 165 US 578 (1896). us 330 (1935).
127. 49 L Ed 937: 198 US 45 (1905). 144. For an accotmt of New Deal legis lation before tl1e Ainerican
128. Ibid. Supre 1ne Court , see, Willi.an1 E. Leuchtenbe rg, "The Origins of
129. Ibid. Franklin D . Roosevelt ' s ' Cou rt-Packing ' Plan " (1966) The
130. Cass Stu1stein, "Loclu1er's Legac y" (1987) 87 Coltllll L Rev 873, Supre 1ne Court Revie w 347.
877. 145. Barry Cusl unan , "Rethinking th e New Deal " (1994) 80 Virgnua
131. Lochner v . New York, 49 L Ed 937: 198 US 45 (1905). L Rev 201.
132. Ibid. 146. See e.g., Carson and Kleinern1an , "A Sw itch h1 Tun e Saves Nil1e:
133. Ibid. h1sti tutions , Strateg ic Acto r s, and FDR' s Cou rt -Packil1g Plan "
134. Ibid. (2002) 113 Public Choice 301.
135. David A. Str auss , "Wh y Was Lochner Wrong ?" (2003) 70 U O u L 147. 81 L Ed 703: 300 US 379 (1937). The decis ion overruled A dkins v.
Rev 373. Child ren 's H ospital, 67 L Ed 785: 261 US 525 (1923).
136. 15 L Ed 691: 60 US 393 (1857). 148. 15 L Ed 691: 60 US 393 (1857).
137. See, Latu-ence Tribe , A merican Constitutional Law (3r d Edn. 149. See further , Gregor y Caldei r a, "Pub lic Opil u on and th e U.S.
Fotmdation Press 2000) 1334. Supre 1ne Cou rt: FDR' s Cou rt-Packil1g Plan" (1987) 81 An1 Pol Sc
138. 49 L Ed 937: 198 US 45 (1905). Rev 1139.
139. David A. Str auss , "Wh y Was Lochner Wrong ?" (2003) 70 U O u L 150. A dkins v . Child ren 's H ospital, 67 L Ed 785: 261 US 525 (1923);
Rev 373, 374 (lu ghlighting tlus proble 1n and argu ing tl1at the Mo rehead v. New York Ex Rel Tipaldo, 80 L Ed 1347: 298 US 587
court's decision was wrong because it "treated freedo1n of (1935).
conh ·act as the corne rstone of tl1e cons titutional or der") . 151. West Coast H otel Co. v. Parrish, 81 L Ed 703: 300 US 379 (1937).
140. Br adfo r d A. Lee, "The Ne w Deal Recons idered " (Jtu1e 1982) The 152. Ibid, 398.
Wilson Quarterl y 62. 153. 15 L Ed 691: 60 US 393 (1857).
141. Ibid. For an argiu n ent that tl1e New Deal sigiu fied a 154. See e.g ., Roe v . Wade, 35 L Ed 2d 147: 410 US 113 (1973).
consti tutiona l "1no1nent", see, Bru ce Ackennan , We the People: 155. Rosalie Burger Levinson , "Reillil1g h1 Abuses of Executive
Transformations (Harvard 1998). Power Throug h Substantive Due Process " (2008) 60 Fla L Rev
 519. 172. See, La1u-en ce Trib e, "From Libert y of Con tr act to Self-
156. 67 L Ed 1042: 262 US 390 (1923). Gove rrun ent" in The Invisi ble Cons titu tion (Oxford 2008) 128- 131
157. Ibid, 399. (arguing th at th e bas is of th e de cision vi z . a sphe re of private self-
158. Ibid, 400. gove rn an ce, was legitiin ate).
159. 69 L Ed 1070: 268 US 510 (1925). 173. 98 L Ed 873: 347 US 483 (1954).
160. Ibid, 534- 535. 174. 81 L Ed 703: 300 US 379 (1937).
161. 14 L Ed 2d 510: 381 US 479 (1965). See f11rther, th e disse ntin g 175. See, Griswold v. St ate of Conne cticu t, 14 L Ed 2d 510: 381 US 479
opini on of Harlan J, in Poe v . Ullman, 6 L Ed 2d 989: 367 US 497 (1965) (h old in g th at th e use of cont r acep tives by m arri ed couples
(1961). caiu10t be prohibite d by th e State ); Eisens tadt v . Baird, 31 L Ed 2d
162. Ibid, 481-4 82. 349: 405 US 438 (1972) (apply in g th e Griswold stand ar d against
163. Ibid, 484. urun arried cou ples ); Roe v. Wade, 35 L Ed 2d 147: 410 US 113
164. Ibid, 485-4 86. (1973) (findin g th at a wo mai l's ri ght to ab or tion is a p ar t of
165. TI1e 9th An 1en dn1ent r eads: "TI1e enu n1er ation in th e "libert y" unde r the 14th Ain endrn .ent ai1d caim ot be c1u-tailed,
Consti tuti on, of cert ain right s, shall not be constn1ed to deny or and dev ising a triln este r framewo rk); Planned Parenthood of
di spa r age othe rs r etaine d by th e p eopl e" . Sou theastern Pennsylvani a v . Casey, 120 L Ed 2d 674: 505 US 833
166. Gol dbe r g J, sp ecifically states, "I do n ot take th e pos ition of m y (1992) (upho ldil1g th e "core h oldil1g" of Roe v. Wade, 35 L Ed 2d
b roth er Black in hi s disse nt in A dams on v. California, 91 L Ed 1903: 147: 410 US 113 (1973), w hil e abando ning its h·imeste r
332 US 46 (1947) ..."; Griswold v. State of Conn ecticut, 14 L Ed 2d frain ewo rk); Lawrenc e v . Texas, 156 L Ed 2d 508: 539 US 558 (2003)
510: 381 us 479 (1965). [ackn owledg il1g a right to h om osexual relationship s, and
overn1liI1g Bowers v. H ardwick, 92 L Ed 2d 140: 478 US 186 (1986)].
167. Ibid, 488-4 93.
168. Ibid, 493. 176. Loving v . Virg inia, 18 L Ed 2d 1010: 388 US 1 (1967).
169. Ibid, 497. 177. 14 L Ed 2d 510: 381 US 479 (1965).
170. 15 L Ed 691: 60 US 393 (1857). 178. Eisenstadt v . Baird, 31 L Ed 2d 349: 405 US 438 (1972).
171. Bun ting v . Oregon, 61 L Ed 830: 243 US 426 (1917); A dkins v. 179. 35 L Ed 2d 147: 410 US 113 (1973).
Child ren's H ospi ta.l, 67 L Ed 785: 261 US 525 (1923); West Coast 180. Ibid, 129.
H otel Co. v. Parrish, 81 L Ed 703: 300 US 379 (1937). 181. Ibid, 152.
182. Ibid, 153.
183. Ibid, 155. 200. 156 L Ed 2d 508: 539 US 558 (2003).
184. Ibid, 163. 201. 92 L Ed 2d 140: 478 US 186 (1986).
185. Ibid, 164. 202. Ibid, 562.
186. Ibid, 164- 165. 203. Ibid, 578.
187. Ibid, 158. 204. Ibid, 578- 579.
188. Ibid, 168. 205. Ibid, 605- 606.
189. Ibid, 173. 206. 2 L Ed 60: 5 US (1 Cr ai1d 1) 137 (1803).
190. 49 L Ed 937: 198 US 45 (1905). 207. See, Ridrnrd Fallon , "So1ne Con fus ions About Due Process ,
191. 120 L Ed 2d 674: 505 US 833 (1992). Judicial Review, ai1d Constitutional Re1nedies " (1993) 93 Cohu n
192. Ibid, 846. In R oe v. Wa.de, "essential holding " was said to have L Rev 309, 343.
tlu-ee parts: i) the ri gh t of tl1e woman to choose to have an 208. The facts of tllis h ypot h etical illustration nlildl y r esen1ble
abortion befo re viabilit y witl1out tu1due in terfe rence fro1n tl1e A ligarh Muslim University v. Mansoor A li Khan, (2000) 7 SCC 529,
State ; ii) tl1e Sta te' s p ower to r estri ct abortions after foetal wh ere tl1e Supre 1ne Court applied th e "use less fonnali ty " theo ry
viabilit y; and iii) th e State ' s legitinrnte interest in p rotect ing the and held that procedural due process was not requi red to be
healtl 1 of th e won1an and the life of th e foe tu s th at n1ay be come a obse rved.
dlild. 209. Richard Fallon , "So1ne Confus ions About Due Process , Ju dicial
193. Ibid, 844. Revie w, and Consti tutio n al Re1ned ies" (1993) 93 Coh un L Rev
194. Poe v. Ullman, 6 L Ed 2d 989: 367 US 497 (1961). Th e opinion 309.
quoted fro1n H urta.do v. People of California, 28 L Ed 232: 110 US 210. 49 L Ed 937: 198 US 45 (1905).
516 (1884). 211. See e.g ., Lochner v. New York, 49 L Ed 937: 198 US 45 (1905)
195. Planned Parenthood of Southeastern Pennsylvania v . Casey, 120 L Ed (holding th at th e "gene r al rig ht to 1nake a contract in re latio n to
2d 674: 505 US 833 (1992). lli s business is part of th e libe rt y of tl1e indiv idual p rote cted by
196. Ibid, 847. tl1e 14tl1 Ainendment of th e Fede ral Cons titution ") relying on
197. Ibid, 851. A llgeyer v . S tate of Louisiana, 41 L Ed 832: 165 US 578 (1896).
198. Ibid, 874. The ''tmdue burden " test supp lanted tl1e rigid 212. Griswol d v. S tate of Connecticu t, 14 L Ed 2d 510: 381 US 479
h·in1este r fr ain ew ork of th e R oe v. Wade. (1965).
199. Ibid, 878.
213. Reno v . Flores, 123 L Ed 2d 1: 507 US 292, 303 (1993). See further ,
Konm1er s, "Gemrn n Con stitutionalis1n: A Prolegomenon " (1991)
40 Einor y LJ 837, 843 (discussing the concep t of an "objective
ord er of values " in Gern1an consti tutional law) .
214. 14 L Ed 2d 510 : 381 US 479 (1965).
215. 86 L Ed 1655: 316 US 535 (1942). See fur th er, Washington v.
Glucksberg, 138 L Ed 2d 772 : 521 US 702, 720- 22 (1997); Richard
H . Fallon Jr ., "Strict Judicial Scrutiny " (2007) 54 UCL A L Rev
1267, 1282.
216. Rich ard Fallon , "So1ne Confusions About Due Pro cess, Judicial
Revie w, and Constitutional Re1nedies " (1993) 93 Colttnl L Rev
309, 310 (arguing th at the cou rt s ado pt an "inh 1itionist " ap pr oach
in de tennin ing whic h in terests are more "fundainen tal" th ai1
oth ers, in whi d 1 ju dicial p receden ts ai1d wide ly shared n1oral
p rinciples are used as starting points ).
217. See e.g ., County of Sacramento v . Lewis, 140 L Ed 2d 1043: 523 US
833 (1998) (h olding th at a clailn tha t a police pu rsuit tu1dertaken
wit h deliberate i11difference to a motorcycle passengers survival
was i11suffi.cient).
218. TI1e wo rd "propert y" h as been left out in this ai1alys is because
Art. 21 of the lndiai 1 Constih1tion only pro tects "life" ai1d
"personal liberty " .
219. 24 L Ed 77: 94 US 113, 142 (1876).
220. See, Khara.kSingh v . State of UP ., AIR 1963 SC 1295.
221. 14 L Ed 2d 510 : 381 US 479 (1965).
222. It was so tenned b y Judge Rober t Bork i11his testil n ony before
the US Cong ress . See, Robert H . Bork, The Tempting of A merica:
The Political Seduction of the Law (1990) 166; Rai1dy E. Barnett , "A
Ni11th Ainendinent for Toda y's Constihttion " (1991- 92) 26 Val U
L Rev 419, 419 .
223 . 69 L Ed 1138: 268 US 652 (1925).
224 . See, David M. Beatty, The Ultimate R ule of Law (Oxfo rd 2004)
(exp loril1g a near globa l 1noven1ent towar ds p roportionality ai1d
towai ·ds s01n e forn1 of 1neai1s-end rev iew) .
225 . 49 L Ed 937 : 198 US 45 (1905).
226 . Ibid.
227 . Ibid.
228 . 35 L Ed 2d 147: 410 US 113 (1973). See, Ridrnrd H . Fallon Jr .,
"Strict Jud icial Scrutil 1y" (2007) 54 UC LA L Rev 1267, 1283.
Ho wever , the cour t app lied ai1 "undue burden " standard in
Planned Parenthood of Southeastern Pennsylvania v . Casey, 505 US
833 (1992). Further , Fallon has identified ai1on1alies w h ere a less -
th ai1-strict -scrutil 1y standa rd is app lied i11 son1e ftu1dainen tal
rights cases. See, Ridrnrd Fallon , "So1ne Conft1sions About Due
Pro cess, Judicial Review , ai1d Constihttiona l Re1nedies " (1993) 93
Colttnl L Rev 309, 315.
229 . See, Rid1ard H. Fallon Jr ., "Sh·ict Judicial Scrutil 1y" (2007) 54
UCLA L Rev 1285 .
230 . Roe v . Wade, 35 L Ed 2d 147: 410 US 113 (1973) (app lyil1g the
strict scn1tiny tes t); Griswold v . State of Connecticut , 14 L Ed 2d
510: 381 US 479 (1965) (per Goldbe rg J). See fur ther, Rid1ard H .
Fallon Jr ., "Strict Judicial Scn1til1y'' (2007) 54 UCLA L Rev 1285 .
Strict scrutil 1y re view is also triggered when the r egu lation is
i11heren tly suspec t. TI1e test n1ay not be i11voked wh ere th e
 b tu-den is "in cide nt al" as opposed to "dir ect" . See, Mich ael C.
Dorf, "In cide nt al Burdens on Ftu1d an1en tal Right s" (1996) 109
H arv L Rev 1175. TI1ere is also an "int erme diate " leve l of
scruti n y . See e.g., Uni ted St ates v. O 'Brien, 20 L Ed 2d 672: 39 1 US
367 (1968).
231. See, Geoffre y Stone , "Con ten t Regula tion and th e First
An1end me n t" (1983) 25 Wm . & Mar y L Rev 189 .
232. See, Z ablocki v. R edhail, 54 L Ed 2d 618: 434 US 374, 386 (1978);
Rich ard Fallon , "Som e Conf u sion s About Due Pr ocess, Ju dicial
Review , and Con stituti on al Rem ed ies" (1993) 93 Coltm1 L Rev
309, 3 15.
233. 120 L Ed 2d 674: 505 US 833 (1992). It is im po rt an t to n ote that
th e "tu1due b tu-den " stand ard in Casey case was a devia tion from
th e strict scn ttin y test, but th e case is cited h ere as an exan1ple for
cases in w hi ch th e cotut find s the sta tut ory mea n s
un con stitu tion al .
234. 156 L Ed 2d 508 : 539 US 558 (2003).
235. See fu rth er, Katherine Varnum et a.I. v. Timothy Brien, (Sup reme
Cotut of Iowa ) 3-4-2009 available at
<h ttp: //www .judicial .state .ia.u s/wtD ata/filesNar num /07>-
1499.p df> last accesse d 4-4-2009.
236. Niki Ku ckes, "Civil Due Pr ocess , Criin in al Du e Process " (2006)
25 Yale L & Pol Rev 1, 13.
237. Rich ar d Fallon , "Som e Con fu sion s Abo u t Due Pr ocess , Ju dicial
Review , and Con stituti on al Rem ed ies" (1993) 93 Coltm1 L Rev
309 .
238 . Nik i Ku ckes , "Civil Due Pr ocess , Crinili1a l Due Pr ocess " (2006)
25 Yale L & Pol Rev 1.
239 . See e.g., Law rence Alexa n de r, "TI1e Relation ship Betwee n
Pr ocedu r al Due Process and Substan tive Con stitu tion al Righ ts"
(1987) 39 U Fla L Rev 323 .
240 . Nik i Ku ckes , "Civil Due Pr ocess , Crinili1al Due Pr ocess " (2006)
25 Yale L & Pol Rev 1.
241. W oljf v . M cDonnell, 41 L Ed 2d 935: 418 US 539, 557 (1974).
242 . Henry Friend ly, "Som e Ki11d of Heari11g" (1974-75) 123 U Pa L
Rev 1267.
243 . Ibid, 1296.
244 . See, Henry Friend ly, "Some Kind of Hear il1g" (1974- 75) 123 U
Pa L Rev 1267.
245 . Ibid, 1269.
246 . Board of Education v . R ice, 1911 AC 179 (H L), 182.
247 . Grannis v . Ordean, 234 US 385 (1914).
248 . A rms trong v. M anz o, 14 L Ed 2d 62: 380 US 545 (1965).
249 . Joint A n ti-Fascist R efugee Commi ttee v. M cGrath, 95 L Ed 817 : 341
us 123 (1951).
250 . Fuentes v . Shevin, 32 L Ed 2d 556 : 407 US 67 (1972). See ftu-the r,
M ullane v . Central Hanover Bank & Trus t Co., 94 L Ed 865 : 339 US
306 (1950).
251. Joint A n ti-Fascist Refug ee Commi ttee v. M cGrath, 95 L Ed 817 : 341
us 123 (1951).
252 . Henry Friend ly, "Som e Ki11d of Heari11g" (1974- 75) 123 U Pa L
Rev 1267 .
253 . 25 L Ed 2d 287: 397 US 254 (1970).
254. See, Mashaw , Due Process in the Ad minis trative St ate (1985).
255. See, Jerry Mash aw , "The Su p reme Cou rt's Due Process Calcu lu s
for Ad minish ·ati ve Ad judica ti on in Mathews v. Eldr idge: Thr ee
Facto r s in Search of a Th eory of Valu e" (1976) 44 U Chi L Rev 28.
256. See, Tin1 Searc hin ger, "l11e Proce dtu-al Du e Process Ap p roach to
Adrn.ini str ative Di scretion : The Cotuts' Inve rte d An alys is" (1986)
5 Yale LJ 1017.
257. Ibid.
258. Ibid, 267 .
259. Ibid, 268 .
260. Ibid, 268 .
261. Ibid, 271 . See fu rther, Alb ert Meye rhoff et al., "Ap plica ti on of
Goldberg v. Kelly Hearing Require m ents to Termin atio n of Social
Sectu-ity Bene fits" (1974) 26 Stan L Rev 549, 550 .
262. 47 L Ed 2d 18: 424 US 319 (1976).
263. 25 L Ed 2d 287 : 397 US 254 (1970).
264. Ibid, 335 .
265. See, "l1 1e Void -For -Vagueness Doctrine in the Su pre m e Cotu-t"
(1960) 109 U Pa L Rev 67.
266. See, "Du e Process Requ ire m ents of Defini teness in Sta tut es"
(1948-49 ) 62 Harv L Rev 77.
267. Champlin R ejlning Co. v . Corpn. Commission of Oklahoma, 76 L Ed
262: 286 us 210, 243 (1932).
268. See e.g., M iller v . Strahl, 60 L Ed 364 : 239 US 426 (1915).
269. Connally v. General Construction Co., 70 L Ed 322 : 269 US 385, 391
(1926).
270 . Rich ard Fallo n, "Som e Confu sion s Abo u t Due Process , Ju dicial
Rev iew , and Con stituti on al Rem edies" (1993) 93 Cohun L Rev
309, 333 .
271. 2 L Ed 60: 5 US (1 Cr an ch) 137 (1803).
272 . See, Jon athan O' Neill , "Review Marbury v. Madison at 200:
Rev ision ist Sch olarsh ip and the Legitin rncy of An 1erican Jud icial
Rev iew " (2002) 65 Moder n L Rev 792.
273 . See, Lou is H. Poll ak, "M arbury v. M adison : Wh at Did Jolu 1
Marshal l Decide and Wh y?" (2004) 148 Proceedings of the
Arn.erican Ph il osoph ical Socie ty 1.
274 . M arbury v . M adison, 2 L Ed 60: 5 US (1 Cranc h ) 137 (1803).
275 . 28 L Ed 2d 113: 401 US 371 (1971).
276 . Ibid, 374 .
277 . But see, United States v. Kras, 34 L Ed 2d 626 : 409 US 434 (1973)
(ho ldin g that the stat ut ory re qu ire m en t of pay in g filing fees p rior
to filin g ba n kn 1ptcy p roceedings h as a ra ti on al bas is); Ortwein v.
Schwab, 35 L Ed 2d 572: 410 US 656 (1973) (hold in g that the
Orego n appe llate filin g fee did n ot violate the due p rocess
clau se). See also , Gideon v . Wainwrigh t, 9 L Ed 2d 799: 372 US 335
(1963) (h oldin g th at an indi gent d efenda n t in a crinlinal
p rosecution h as the right to h ave coun sel app oin ted for hirn .). I
was led to these d ecisions by a lect u re de live red b y Professor
Law ren ce Tribe at H arva rd Law Sch ool on 5-3-2009 .
278 . Gideon v . Wainw right, 9 L Ed 2d 799: 372 US 335 (1963).
279 . Ibid, 382- 383.
280 . Ibid, 387 .
281. See, 1\tfcNary v. H aitian Refugee Center, 112 L Ed 2d 1005: 498 US
479 : 111 S Ct 888 (1991); Walters v. Nationa.l Assn. of Radiation
Survivors, 87 L Ed 2d 220: 473 US 305 (1985); Estep v. United States,
90 L Ed 567: 327 US 114 (1946).
282. See, Johnson v. Robison, 39 L Ed 2d 389: 415 US 361 (1974);
Webster v. Doe, 100 L Ed 2d 632: 486 US 592 (1988).

III. " Due Proce ss of Law " and the
W 57
Con stituent A ss embly of India
1. Circumscribing the "seven sages" of the Supreme Court
[M]y pr ayer is tha t the Consti t ution that yo u are going to
pl an may ... be rea red for ' in1n1ort ality' 1 if the work of
man may ju stly aspire to suc h a title1 an d it may be a
str ucture of ' ad amantine streng th ' 1 which wi ll ou tlast
an d overcome all present an d future destr u ctive for ces.1
Two wee ks after Ind ian Inde penden ce on 15 Augu st
1947, the Constituent Assemb ly of Ind ia2 appoin ted a
"Drafting Committee " pr esided over by Dr. B.R.
Ambed kar, a pr oduct of Columbi a Law School familiar
with Ame rican constitut iona l law, to carry out the task
of prepa ring a draft of a constitution for free Ind ia .
Many of th e mem bers of the Draftin g Committee ha d
already carried out substantial wor k in drafting
po rtions of the In dian Constitu tion. Dr. B.N . Rau 1 one of
the leading mem bers of the Dra fting Commi ttee, h ad
tr avelled to the US, Cana da, Irelan d an d Englan d to
discuss India' s draft constitution with constitut ional
scho lars.3 During B.N . Rau's visit to the US, Rau me t
with Felix Frank furter L who advi sed him to drop the
11
due process" clause from th e draft constitut ion because
it was "undemo cratic" an d it impo sed lill 58 an "unfair
bu rden" on the jud iciary .4 The meet ing th at took pl ace
between Frankfur ter J an d B.N . Rau 1 some time between
October and Decem ber 1947, took pla ce only a few
months after Frankfur ter J had delivered his opinion in
Ada·mson v. California51 whe re he empha sised that the
11
due process" clause ought not to be interp reted as
specifically "incorpo rating " or tr anspo sing prov isions of
the Bill of Rights against the States - rat he r that the
clause stood for pr incipl es of "fun da mental fairn ess"
an d '' ordered liberty" . Only a deca de before then, the
Ameri can Supreme Court 's thr ee-d ecade-long Lochner
Er a tran sgre ssion s ha d come to an end .6
However , B.N. Rau ' s do ubt s with respe ct to the
Ameri can "du e proce ss" clause seemed to h ave show n
sign s eve n befo re his mee tings wit h Amer ican justice s.
On 2 Septe mber 1946, B.N. Rau issue d two no tes on th e
su bject of fun d amental rights for th e b en efit of th e
m em b ers of the Con stitue n t Assembly of In dia ? In one
of h is n ote s, Rau an aly sed the due proce ss clau se of the
14th Ame nd men t to the Ame rican Con stitu tion I 8
finding th at the clause app lie d to matter s of both
proc edu re an d sub stan ce. Referenc ing th e Lochner case9
and it s proge ny 10, Rau not ed tha t the p hrase "without
du e p rocess of law " ha d beco m e syno n ymou s with
"without ju st cause " and tha t the court wa s the "ju dge
of wh at is 'ju st cau se' " .11 Fin ally, he identifie d three
pr oblem s wit h enun ciatin g fun d amen tal rights in
"gen er al term s":
1) The Legislature s not being in a position to know wh at
view the court s wi ll take of a particular enactn1ent, the
proce ss of legislation will become difficult, 2) There will
be a vast ma ss of litigation abou t the validity of laws and
the same law that was held valid at one time may be held
invalid at anot her or vice ver sa; the law wi ll therefore
become uncert ain, 3) The Court s, manned by an
irremova ble ju diciary no t so sensitive to publi c need s in
the social or econon1ic sphere as the repre sent ative s of a
period ically elected legislative body, will, in effect, h ave
a veto on legislation exer cisable at any time an d at the
instance of any litigant. 12
An Adv isory Committee of the Constituent Assembly
was establi sh ed on 24 Janu ary 1947 an d a Sub -
committee on Fun dame ntal Righ ts on lill 59 27 Feb ruary
1947 to assist in the drafting of po rtions of the
Con stitution . The Sub -committee on Fun dament al
Right s con sisted of Achary a J.B. Kri pa lani , Mr M.R.
Ma san i, Profe ssor K.T. Sh ah, Rajkumari Amrit Kau r,
Shr i All ad i Krishna swarni Ayyar , Mr K.M . Mu n sh i,
Sardar H arnam Sing h, Ma u lan a Abu l Kalam Aza d, Dr.
B.R. Ambe d kar an d Mr Jairamda s Daulat ram. A d raft
containi n g the right s of State s and min orities circulated
by Dr . B.R. Am b edk ar on 24 Ma r ch 1947 cont aine d
unde r Ar ticl e II, Section 1, clau se 2, a du e proc ess clau se
id en tical to th e 5th an d 14th Amendmen ts to th e
Ame rican Constitution .13 In fact, th e p ro po sed
preamb le to thi s d raft sought to establish a coun try
styled th e "Unite d Stat es of In dia" . Two day s later, on
26 March 1947, th e Sub -committee on Fun da me n tal
II
Right s discu ssed an d voted to retain the du e pro cess"
clause . Du ring thi s meeting, th e Sub -committee on
Fun d am en tal Righ ts wa s conside ring a d raft p rep ared
by B.N . Rau , in th e light of discu ssion s of the p reviou s
day . Clau se (4) of the d raft contained the du e p roce ss
clause : "No pe rson sh all b e dep rive d of hi s life, lib erty
or p roperty without du e proce ss of law " .14
During the discussio n of [the due p rocess clause], it was
pointed out to the committee tha t the expression "due
process of law" h as been judicially interp reted to cover
not merely pro cedure but also substantive righ ts . If [the
due p rocess clause] were include d as a fundame ntal
righ t, ten ancy legislation which takes away certain right s
from lan dlo rds and transfers then1 to ten ants without
payn1ent of compens ation may become inv alid except on
payn1ent of compens ation which the court reg ards as
just . To this extent the ena ctment of this clause n1ight go
further th an the Governn1ent of India Act, 1935. After
discuss ion it was de cided , by a n1ajority of 5 to 2, th at
this clause would be retained .15
On 3 Ap ril 1947, the d raft pr ep are d by th e Sub -
committee on Fun d ame n tal Righ ts wa s submitted to the
Chairman of th e Adv iso ry Committee on Mino ritie s,
Fun da me nt al Right s, etc . The d ue p ro cess clau se wa s
cont aine d in clau se 11, an d wa s d es crib ed as "typi cal" of
ju sticiab le fu n d ame n tal righ ts .16
On 8 Apr il 1947, B.N. Rau pr ep are d note s on the d raft
repo rt prepa red by the Sub -committee on Fun dam en tal
Right s,17 whi ch ind icat ed his ave rsion tow ar d s th e du e
proce ss clause . He p ro po sed a prov ision which would
en ab le th e State to curb righ ts if the "exigen cies of the
commo n good so (required )" .18 Th e meeti n g b etw een
B.N . Rau an d Frank fu rter J h ad no t yet taken pl ace.
lll 60 Forty per cent of the litigation in the Supreme Court
of the USA du ring the last half century ha s centred
II
roun d the due p rocess" clause, of which it has been said
that , in the last analy sis, it mean s ju st what the court s say
it n1eans. No other definition is po ssible. Our draft not
only borrow s this clause (see clause 11) but also gives it
retr ospe ctive effect (see clause 2, which make s it
 app licable even to pre -constitution laws ). The result is
likely to be a vast flood of litiga tion in1mediate ly
following upon the new constitut ion . Tenancy laws , laws
to regu late money -lending , laws to relieve debt, laws to
prescribe minin1um wages , laws to prescribe maximum
ho urs of work , etc., wi ll all be liable to be challenged ... .
It n1ust be adn1itted that the clauses are a safeguard
aga ins t predato ry legisl ation; bu t they may also stand in
the way of benefi cient social legisl ation .19
Yet, in its mee tin g on 14 April 1947, the due proce ss
clause of the d ra ft prepared by the Sub -committee on
Fun dam en ta l Righ ts was con side red an d accepted by
th e Sub-committee .20 Therea fter, clau se 12 of a d raft
submitted to th e Chairman of th e A dv isory Committee
on Minor it ies, Fun dam en ta l Right s, etc . con ta ined a due
proc ess clau se and read :
No person shall be dep rived of his life, liberty or
property without due process of law nor shall any
person be denied the equal treatme nt of the laws within
the territo ries of the Union.
The Advi sory Committee to th e Constituent As sembly
11
of In d ia de ba te d the du e pro cess" clause on 21-22
A pr il 1947, 21 where All ad i Kr ishna swamy Ayy ar no te d
that ther e wa s a " da nge r" that th e due pro cess clau se
wou ld in terfer e with "expropriatory le gislation " .22
These words ' without due process of law ' are taken fron1
the American Constitution ... . If you have got a set of
ju dges who are more inclined to property , then they
n1ight pu t a wide construction u pon the words so as to
hamper what may be called socia l legislation and if you
have another set of judges who are imbue d with modern
ideas , they might put a n1ore liberal inte rpre ta tion . There
is that danger inheren t in ' due process ' whatever
provisio n of law may be n1ade in the different provinces
of Ind ia . . . . Person ally I am for the retention of the
clause . I an1 not aga ins t that clause . I am willing to take
th at chance , but the re is that danger. 23
De sp ite not ing "oscilla tions " in th e op inion s of the
Amer ican Supreme Cour t interp reting th e d ue proces s
clau se, Alla d i Krishna swamy A yyar voted to reta in th e
clau se in the proposed Ind ian Constitution :
The decis ions ... of the U .S. Supreme Court have not
been uniform on the inte rp ret ation of the due proce ss
clause . The re have been frequent oscillations and
 adju stm ent s, some time s the sw ing be ing to the liJ 61
conservative and son1etime s to a more liber al
interpretation . Durin g the previous discussion , I drew
the atten tion of the comm ittee to the course of deci sions
in Ameri ca and the comn1ittee arrived at the deci sion
after their atten tion was d rawn by Sir B.N . Rau and
myself . Let us maintain the decision w ith full knowledge
of the in1plications. I am for reten tion of the clause. 24
Th e stro ng est opposition to the du e p roce ss clau se came
from Govind Ballab h Pant , who oppo sed the du e
proc ess clau se be cau se it sub jected legi slation , especially
legi slation deal ing w ith lan d re form, to the "fiats of
tho se elevate d to the judiciary " :25
In our province we are contemp latin g the abo lition of
zamindaries and it is just po ssible th at the re may be a
law to the effect that the bigger zan1indaries may be p aid
com pen sation at the rate of ten tim es their annual value
and the sma ller ones at forty time s. These zamindaries
may go to the court and say th at payme nt n1ust be on the
basis of the market rate and the law may hand on for
seven years for the Supreme Court to give a de cision . We
do not want such a thing to happen .... To allow the
cour t to sit in judgn1en t over the legislatu re or to control
the legi slatu re itself and to say th at a law w ill not be
valid unless it is declared to be so by a single indiv idu al
sittin g in the Supreme Court is extremely risky and I
canno t subscribe to th at propo sition .26
The de bate ended with a deci sion to d elete the word
"property " from the clau se, an d to d eal w ith it
sep arately. An in te rim repo rt submitted to the President
of th e Con stitue nt A sse mbly of In d ia by the A dviso ry
Committee on 23 April 1947 con ta ine d the due p roce ss
clau se unde r clau se 9.27 Th is clau se was car rie d
unch ang ed into Ar ticle 13 of the pre lim in ary d raft
prepa re d by the Dra fting Committee subm itte d to an d
de bat ed by the Constituent Assemb ly of In dia :
No person sh all be de prive d of his life, or liberty , withou t
due process of law, nor shall any person be denied the
equal treatmen t of the laws w ithin the te rritories of the
Union :
Prov ide d th at noth ing herein cont aine d sh all det ract
fron1 the powers of the Union Legislature in respect of
foreigne rs.28
(en1phasis supp lied)
H oweve r, the final draft wh ich was tabled before the
Constitue nt Assemb ly of India cont ain ed two key
amen dments to Article 13 - amendme nts wh ich
generate d vociferous debate. The first of these w as th at
the words "due process of law " h ad been sub stitute d for
"pro cedu re establishe d by law", wo rds that were
derived from the Japan ese W 62 Constitutio n. 29 Second,
the wo rd "liberty " was qua lified by the wor d
"personal" . Perha ps B.N. Rau's meetings wit h
Frankfurte r J, an d other Ame rican ju stices had pro vided
the nail for the du e pro cess coffin in India. Article 15 of
the final draft constitu tion (whi ch repre sented Article 13
of the pr eliminary draft) read:
No per son sh all be de p rive d of his life or perso nal liber ty
excep t accor di ng to procedureestablished VIJlaw.
(emph asis supp lied)
Th e draft const itu tion pr epared by th e Dr afting
Committee cont ain ed 315 articles an d 8 sche du les.30 It
w as place d before the Constituen t Assembly of India on
4 Novembe r 1948.31 Wh at followe d was an exhaustive
series of debate s, first gene rally on the draft
constituti on, and second on each article in particula r.
While each prov1s1on of the draft constitu tion was
discussed serially, the discussion on Article 15 of the
draft was postpone d as the prov ision w as being
"examine d" .32 The debate on Article 15 of the final draft
constitu tion w as taken up by the Constitu ent Assemb ly
of India on 6 December 1948.33 Several amendments
were propo sed to thi s pr ovision . The most notable of
these was an amendment introduce d by Pan dit Thaku r
Das Bhargava to substitut e the phr ase "pro ced ure
establi shed by law " with "due proc ess of law ", as the
provis ion had origin ally been draf ted . Wh at followe d
was an extensive debate on the me rits an d demerits of
the du e process" clau se.
II
Kazi Syed Karimu dd in, a mem ber of the Constituent
Assemb ly from the prov in ce of C.P. and Berar, argue d
in favo ur of sub stant ive due pro cess by referring to the
Amer ican experie nce:
Sir, there is an in stance in the [sic] American
Constitu tional law ... w here an act was ch allenge d in a
court of law on the ground th at the law was not sound
an d that it was cap ricious an d unjus t. Therefo re, my
subm ission is th at if the wor ds ' accord ing to procedure
 estab lished by law ' are kep t then it w ill not be open to
the courts to look int o the injustice of a law or int o a
capric iou s p rovision in a law . As soon as the procedu re
is comp lied wi th , there w ill be an end to everyt hing and
the judges wi ll be on ly spect ators . Therefore , my
subn1ission is, first, th at the words , 'except according to
procedure established by law ' be deleted , and then th at
the words ' withou t due process of law' b e inserted .34
Pan dit Thak u r D as Bh argava , a m embe r of th e
Con stitu en t A ssem bly fro m East Pun jab , cite d th e
exa m p le of H ou se Act XIV of 1908, lll 63 no tor iou sly
referred to as th e "Black Law ", un d er w hi ch
gove rnm ent wa s giv en th e au th ority to d eclare an y
organi sati on ille gal. Th e colo n ial gov ern m ent h ad u sed
this pr ov ision to sen d "hu n d red s of th ou san d s of
Con gre ssme n " to pr ison :
By us ing these wo rds 'w ithou t due process of law' we
want tha t the courts n1ay be aut horised to go into the
ques tion of the substantive law as well as p rocedura l
law . Whe n an en actme nt is en acted, according to the
ame n dn1ent now proposed to be passed by this House ,
the courts will have the right to go into the qu estio n
whe ther a particu lar law ena cted by p arli ament is ju st or
no t, whe ther it is good or not , whet her as a n1atter of fact
it p rotects the liberties of the peop le or not. If the
Supreme Cou rt con1es to the conclusio n that it is
unconsti tution al, that the law is un reason able or unju st,
then in th at case the cou rts will hold the law to be such
an d that law wi ll not have any further effect ... 35
Pan dit Thaku r D as Bh ar gava also ar ticula ted an
in terestin g vision for th e In dian judi ciary - that it
wou ld d isch arge a role akin to tha t of th e seven ho ly
sage s in In dian H in du myt h ology , th e "Sap tar shi",
kn ow n m ost fam ous ly for th eir po ten t ab ility to cu rse
kin gs for th eir mi sdeed s :
In the old days we h ave heard of seven or eigh t Rishis,
all very pious and intelligent peop le, ho lding real power
in the land . To then 1, well versed in the Shastras , the
n1iniste rs and the ancient kings wen t for adv ice. Those
Rishis cont rolled the whole field of adminis tratio n . This
old ideal wi ll practical ly be achieved if the Full Bench of
the Sup reme Cou rt Judg es we ll versed in law and
proced u re and possessing con centrated wisdon 1 had the
final say in reg ard to peo ples' rights .36
Shri Chimanlal Ch akkubh ai Sh ah, a me mber of th e
Constituent Assembly from th e US of Kathi awa r
(Saura shtra), vaguely referr ed to the do ctrine of
sub stan tive due proc ess in justifyi ng th e propose d
am endm ent:
Sir, the words 'without due p rocess of law ' have been
take n fron1 the An1erican Constitution and they have
come to acqu ire a p arti cula r connotation . Th at
connotation is that in reviewing legislation , the cou rt will
have the power to see no t only that the procedure is
followed , namely , that the warrant is in accordance with
law or that the signature and the seal are there, but it has
also the powe r to see th at the subs tantive provisions of law
are fair and jus t and n ot unreasonab le or oppressive or
capricious or arbitrary .37
(emph asis supplied )
lill 64 K.M . Mun shi, another mem ber of the Constitue nt
Assembly, used proce dural due process doctrine to
argue in favour of du e proces s, both sub stanti ve and
proc edu ral:
Now , the que stion we have to con sider , I submit , is only
this. What are the in1plications of th is ' due proce ss'? This
clause would en able the courts to examine not onl y the
pro cedu ral part , the jurisdiction of the court , the
juri sdiction of the legi slature , but also the sub stantive
law .... [I] rea d the other day th at there is going to be a
legislat ion , or the re is alre ady a legislation , in one
provi nce in Indi a which de nies to the accu sed the
assistance of [sic] lawyer. How is th at going to be
checked ?38
Shr i Alla di Krishna swami Ayyar , a me mb er of the
Constituent Assembly from Mad ras, who had also
forme d pa rt of the Sub -committee on Fun da mental
Right s, wa s th e sole voi ce repre senting the contrary
view. This time, he argued against th e Ame rican
Lochnere sque interpreta tions of the due process clause,
althoug h he ha d voted as a me mber of the Sub-
committee on Funda mental Right s and the Advisory
Committee to retain the due pro cess language:
I hope th at if th is amendment is carrie d, in the
inte rpre ta tion of thi s clau se our Supreme Court will not
follow Amer ican p recedents especi ally in the earlier
stage s but will mould the in terpre tation to su it the
conditions of India and the pro gress and well-being of
the country . Thi s clause n1ay serve as a great hand icap
for all social legisl ation , for the ultim ate rel ationsh ip
 between en1ployer and labour , for the protection of
children , and for the protection of women . It may p rove
fairly alright if only the Judges move wi th the times and
bring to bear their wisdom on particular issues ... . The
support whi ch the amen dment h as received reveal s the
grea t faith wh ich the Legislature and constitu tion makers
h ave in the Judici ary of the land . The Dr afting
Committee in su gges tin g ' p rocedure ' for ' due p rocess of
law ' was possibly gui lty of being app rehen sive of
judicial vagaries in the moulding of law .39
(emph asis supplie d)
The deba te car ried over to the nex t day, w hen the
Chairman of the Drafting Committee , Dr . B.R.
Ambedkar , reque ste d the Chairman of the Constituent
A ssemb ly to "allow [the ] matter to stan d for a while 40 11
•
The di scussion w as re sumed on 13 De cember 1948,
when Dr. B.R. Ambedkar made a concluding speech ,
confessing that he was uncer tain over the question of
Article 15:
We are the refore placed in two difficult positions . One is
to give the judic iary the au thorit y to sit in jud gn1ent over
the wi ll of the legislature and to ques tion the law made
by the legisl atu re on the groun d th at it is not goo d law,
- -
in conso nan ce wi th fundan1ent al p rinciple s . . . . For
n1yself I cannot altogether omit the po ssibility of a
Legisl atu re p acked by party men llJ 65 n1aking laws
w hich n1ay abro gate or vio late wha t we regard as certain
fundan1ent al princip les affecting the life and liberty of an
individu al. At the same time , I do not see how five or six
gen tlen1en sittin g in the Federal or Supreme Court
examining laws made by the Legisl atu re and by dint of
their own individua l conscience or their bias or their
prejudices be tr usted to determine wh ich law is good
an d which law is bad . It is rather a case where a man has
to sail between Ch aryb dis and Scylla and I there£ ore
woul d not say anything . I would leave it to the House to
decide in any w ay it like s.41
The amen dmen ts were put to vote on Monday , 13
December 1948 - the H ouse de cided in favour of the
Drafting Committee and defeated the motion s to amen d
the provi sion . Article 15 of the draft con stitution was
carrie d un amen ded in to Article 21 of the Indi an
Constitution . The intent seemed clear enough - the
Constituent A ssemb ly of India was unmoved by the
II
vo ciferou s plea made on behalf of the due pro ces s"
clause, and did not wa nt cou rt s to wie ld
"unde mo cratic " authority . The clause1 as it stoo d in the
Indian Constitutio n requi red a significantly mil d form
1
of defere ntial review w ith a high threshold of judicial
1
toleran ce for legislative enactme nt s. So long as the
statute whic h create d a deprivatio n of life or perso nal
liberty satisfied the thre shold of having been duly
enacted i.e. en acted in accordanc e w ith ''pr ocedu re
establi shed by law ", the legislative enactment was
constitu tionally valid . The bare clause did not permit
constitu tional courts to even question the rationality of
the sta tut e i.e. to question whethe r th e mea ns actu ally
bore a rational nexus wi th1 or attaine d the object
pursued by the statut e. The textu al preference app eared
to be in favo ur of weak British style ju dicial rev iew
wi thin the framework of a Bill of Rights 1 almo st a
fun da mental right "only agai nst executive action" .42
Frank furter J, writing for the H arvar d Law Review a
few years later1 spoke of how oth er cou ntries had
rejected th e due process clau se, an d cred ited B.N . Rau
wi th the absen ce of a du e pr ocess clause from the India n
Constitution :43
Much as the constitutio n n1akers of other countr ies have
drawn upo n our experience1 it is precisely because they
have drawn upon it that they have one and alt 1
abstained from including a 'due process' clause . They
have rejected it in conspicuous instances after thorough
consideration of our jud icial history of 'due process' .44 It
is particu larly noteworthy that such was the course of events
in framing the constitu tion of In dia. Sir B.N . Rau, one of the
m ost penetrating legal niin ds of our time, had a major share in
its drafting, and W 66f or the purpose he made a deep study of
the workings of the D ue Process Clause during an extensive
stay here.
(en1phasis supp lied)
A no ted jurist and erstwhi le Atto rn ey Gene ral of India1
M .C. Setalvad 1 while deliver ing the H amly n Lectur e in
1960 remarke d that the phr ase "due process of law "
would establish th e supr em acy of courts and no t the
sup rem acy of the Constitut ion. 45 H e believed that un der
Article 21 of the In dian Constitution, the frame rs had
chosen "English principles " 46 an d had expres sly
rejected the Ameri can un derstandi ng of "due process of
law " .
 Signifi cantly, the frame rs of the Indian Con stitu tion
did not insert into its text a clau se equivale nt to the 9th
Ame ndm ent of the Ame rican Constituti on. We know
that the frame rs of the In dian Constituti on ha d stud ied
the Ame rican Const itution , and were there fore awa re of
the formu lation of a 9th Ame ndm ent-like clau se.
Ironi cally, by leav ing a 9th Ame ndment-li ke clause out
of the In dian Constitut ion's text, th e fram ers may have
allowed the doctri ne "inclu sio unius est exclusion
alterius1147 to app ly to Indian constituti onal law.
II
Accord ing ly, th e consciou s de letion of the phrase due
proc ess of law " from the text of the Indian Constituti on,
and the purpo seful use of the words "pr ocedu re
establi shed by law " in its plac e, bol stered by the absence
in the Indian Constituti on of a 9th Ame ndment-li ke
clause ,48 would point strongly towards th e exclu sion of
Ame rican du e proce ss jurispruden ce.
2. A theory of original intent in Indian constitutional law
[W]e mu st never forget th at it is a constitution we are
expoundi ng49
A piece of paper calling itself a constitution can be
n1any things ... so
lil 67 Would an Indian constituti onal court be justifie d in
ignoring the intent of the frame ~s of the Con ~ti_tu tion' s
text ? Th eoretically, it is often said to be su rpn s1ng th at
constitu tions are obse rved at all. A Constituti on th at
calls itself "suprem e" do es not the reby magi cally
become "suprem e" .51 It is pro po sed in thi s par t that the
mo ral authority an d public stan ding of the frame rs of
the Indi an Constitut ion susta ined its continued
observ ance. The argumen t in favo ur of origin al intent in
In dia is made in thr ee stage s:
(i) It is sugge sted th at the absence of upstrea m or
downstream constrain ts52 on the constitu ent proc ess
solidified th e framer s' autho rity as the sole archit ects
of India 's future .
(ii) It is sugge sted that the refu sal of Indian
constituti onal court s to inv alida te original
constituti onal text as distingu ished from sub sequent
constituti onal am endment s afford s an indication that
the frame rs of th e Indian Constitut ion are accor ded
grea ter deferen ce. It is propo sed that acknowledging
 original inten t in constitu tional interpre tation would
para llel the deferen ce accorded to original
constitu tional text .
(iii) It is sugge ste d that the relative pro cedu ral ease of
constitu tional amendme nt in India afford s a
phi losoph ical rea son for the court s to avoid engag ing
in constitu tional inter pre tive per fectionism, when
relatively easy demo cratic and majoritarian avenue s
exist for con stitutio n al amendmen t.
The writ ing of a con stitu tion wo uld ord ina rily invite
three primary consequence s which are significant for
the pur po ses of thi s work:
(i) A constitut ion is usually inten ded to be super ior to
ord inary legislation, consequently enabling the
judiciary to invalidate law that is inconsistent with
its provi sions.53
(ii) The pa rticul ar phr ases an d wo rd s u sed in a
constitu tion can be interpreted by looking out side
the country to the world 's different constitut ional
court s,54 and Indi an cou rts h ave frequen tly referred
to Amer ican constitut ional doct rine to interpret
provi sions of the Indian Constitut ion.
llJ 68 (iii) Con stitu tional no rm s can more easily be
entrenched throug h a pro cess of arduou s
amen dmen t, often requ iring the sanc tion of super
major ities of federal an d State legislative autho rities,
whic h canno t easily be obta ine d .55
Entren chment of institutional structu res and sub stantive
no rm s is an impo rtant factor w hich unde rlies the
drafting of a con stitut ion . But why should fu ture
majoritie s adhere to the entrenched constitu tional
institu tion s an d no rm s at all? Doe s constitut ional text
have an intrinsic, inviolable value inheren t in its subject-
matter , or de rived from its de signat ion as
"constitut ion "? Documen ts that resemb le constitut ions
do no t mag ically become con stitutio ns. Severa l
"constitut ions " had been drafted pr ior to In dian' s
indepe n den ce.56 Many of the se resembled the
chara cteristics of constitut ions generally viz . they
decl ared idea ls, created rig hts and establ ishe d
framework s for the government. Why is it th at the se
constitu tions did no t ha ve constitu tional autho rity
intrinsi cally? The answe r seems to be obvious - not
every pie ce of paper that declares itself a "supreme "
con stitution actu ally gains recogni tion an d legitima cy .57
The Ind ian Con stitution wa s draf ted by a Con stituent
Assembly compo sed of per sons of high publi c stan ding,
and the fact of indepen dence un der their leader ship
gave them an aur a of mor al authori ty. Prior to
Independence , the dem an d for a Con stitu ent Assembly
compo sed of "freely chosen represe nt ative s" h ad been
made by Mah atm a Gan dh i, an d was officially ad opted
by the In dian Nat ion al Congre ss party. 58 Stan ding
before the Assembly, Pand it Jawah arlal Nehru , who
wo uld go on to become the first Prime Mini ster of In dia,
had de clared :
Most of us here durin g the past man y ye ars, for a
generati on or more have often taken pa rt in the stru gg le
for Indi a's freedom . We have gone thr ou gh th e valley of
the shado w . We are u sed to it an d if ne cessity arises w e
sh all go th rou gh it aga in. Ne verthe less, throu gh all thi s
lon g perio d, w e hav e llJ 69 thou ght of the time w hen w e
sh all h ave an oppor tun ity, not merel y to destro y, but to
con struct and create .59
The Con stitu ent Assembly of Indi a was a un ique
expe rience in con stitutiona l con stru ction in the
subcontinent. Many of its mem bers were distin gu ishe d
leader s in India's freedom struggle . A spirit of "uni ty,
idealism and n ation al purpo se" 60 ran th roug h the
Assemb ly' s deba tes. Althoug h criticised for having
repre sented only the Hind u community , and for being
over whelm ingly dom in ated by the Indi an Nat ion al
Congre ss party, it repre sente d a ne w experiment in
fashioning the future of a country by consensu s. The
Con stitu tion ena cted by this bo dy wa s not merely a
"hierar chically superior statute ", bu t it w as a "s acred
symbol " 61, a "coven ant " an d " aspirati on" 62 of the ne w
inf ant nation.
Furt her, in the first Indi an genera l election , the Indi an
Nat ion al Congre ss party, w hich dom inated the
Con stitu tion 's drafting process, wa s elected to office.
The subsequent election of the framer s to office afford s
an indicatio n of their hig h public stan ding . Although
the mere fact tha t they were elected to office doe s not
distingui sh them from sub sequent majorities, the fact
that in depen den ce was achieved un der their leadership
imb ued th em w ith a sense of mor al auth ority . Further ,
after coming ba ck into office, th e Indian N ation al
II
Congress party chose to adhe re to its own original "
11
intent and its origin al" convict ions, rathe r than lap sing
into a regime of autho ritarian dictator ship s or
tran sformi ng into a presidentia l system.
The Constitu ent Assemb ly w as duly constitu te d in
accordance with the propo sals of the Cabine t Mission
Plan in 1946.63 Significantly , it was ne ithe r limited in its
proce sses or substan tive delibe ratio ns by upstre am
constraint s64 i .e. constr aint s impo sed by th e crown or by
the pr ovincial legislature s tha t elected repr esentatives
for th e Constituen t Assembly; nor were th ey
constrained by th e down stream 65 requireme nt of
rat ification by th e Sta tes.66 According ly, the
constituti on-making proce ss in W 70 India
acknow ledge d the overar ching suprema cy of only one
body - the Constitu ent Assembly of In dia .
Furt her, one of the pr ima ry distin ctions be tween
constituti ons an d constitut ional amen dme nts in the
India n context is th at statute s can be inv alidate d in
exercise of jud icial review whi le original constitut ional
text cannot ,67 which bolster s the original intent
argu ment . Th e In dian Supr eme Cour t, in contra st to the
powe rs of the Ame rican Supr eme Court,68 ha s th e
powe r to invalidate constitu tional amen dme nts th at
violate the "basic structu re" of th e Constitut ion .
However , original constitu tional text cannot be
inv alidated in India, unl ike in Germ any 69 where th e
framer s themselves are said to be bound by a "higher "
or "n atu ral" W 71 law. In South Africa,7° the
constitu tional cou rt established un de r the interim
constitu tion had to determine for itself whe th er th e new
constitu tion comp lied with th e "ba sic pr inciple s" of th e
interim constitut ion, demon strat ing the signifi can ce of
uname nd able original inten t. Thi s highl ights the
pr im ary differen ce be tween the impo rtan ce attached to
the intent of th e original framer s an d the intent of the
framer s of subsequent const itutional amendme nts in
In dia . While origina l constitu tional text cannot be
inv alidated at all, suggesting that origin al inte nt is often
considered by Indian court s to be inviolable, subseque nt
amen dme nts can be inv alida ted - ind icating the intent
of sub sequen t framer s.71 Thi s dichotomy of trea tment
seem s to sugg est greater de ference tow ards the intent of
the framers of the original Indian Con stitu tion.
Acknowledging original intent whi le interpre tin g the
Constitut ion wo uld th erefore logically follow from , and
parall el the cour ts' deference to original constituti onal
text.
Finally, th e Indian Constitut ion can be amend ed with
relative ease. It has been de scribed as "pa rtly rigid an d
partly flexible", meaning that certain provisions
(described in Article 368) can be amended by a two -
third majority of the me mbers prese nt an d vo tin g so
long as it exceeds the total mem bership of the H ou se
(i.e. more th an one h alf of the membe rsh ip of th e
H ouse), wh ile others addit ionally requi re rati fication by
not less th an one half of the State Legislative
Assemb lies-72 The Indian Consti tut ion ha s been
amended 94 tim es in 56 years .73 Significantly, the
original74 Indian Const itutio n p ermitted the In dian
Parlia ment by a simp le m ajority to amen d the
fundame ntal right s con tained in Part III, th e part of the
India n Con stitu tion from w hich the du e pro cess clau se
w as deleted . Th e easy ame ndab ility of th e Constituti on
an d espec ially of the fun da mental right s can be said to
indica te th at the framers' inlill72 tent w as not supp osed
to bind futur e majorities. H ow ever, the existence of
relatively simple avenu es for constituti onal chan ge by
democrati c meth od s can be said to h ave for eclosed
jud icial attempts to tr ansgress con stitu tional limits an d
origin al intent.
3. Analysing Frankfurter 's fears
If Felix Frankfu rter Jadv ised B.N. Rau aga inst the use of
the words "du e process" in the Indian Const itutio n, it
wou ld be instru ctive to sugge st reasons wh ich he would
hav e attr ibut ed to his ave rsion to the "du e pr ocess"
clau se in the 5th an d 14th Ame ndment s to the Ameri can
Con stitu tion . Whil e the discussion in the pr evious
chapter affords an ind ication of w hat ingredi ents of du e
proc ess doct rine m ay have been pa rticu larly repulsive
to Frank fu rter J, w e know th at he wou ld not have be en
averse to some form of substan tive scrutiny of
legislation. Indeed, since Mar bun; v. M adison75, it has
"emphatically " been the "provin ce and duty of th e
jud icial bran ch to say wh at th e law is", an d judi cial
review of legislativ e action, even on substantive
gro un ds, is evidenc ed, for example, by the ena ctme nt of
prov isions such as the 1st and 14th Am endment s. The
1st Am endment and equa l prot ection jurispr uden ce
demon str ates tha t cour ts had long been recogni sed as
having powe rs of inva lida ting legislation if these right s
w ere infringed .
Howev er, thr ee featu res of substant ive due pr ocess
doctrine stood out from an ordinary exercise of jud icial
review of legislative action: i) Frankfu rter J was awa re of
the court' s Lochne r Era trans gressions, involv ing m ost
impo rtan tly th e court's interference with social welfare
legislation ; ii) fede ral sta te due pr ocess do ctrine in th e
form of abso rp tion or incorpo ration tended to infr ing e
the rights of Stat es, a po sition w hich wou ld have been
p articu larly piqua nt if Black J's, view that the entire Bill
of Right s appl ies to the States became th e prevale nt
view, as opp osed to Frankfurte r' s empha sis on only
those righ ts fun da mental to the idea of civilised society;
and iii) in exercise of its int erpretive fun ctions, cou rts
create d rights against the Sta tes althoug h these w ere
textu ally available only ag ainst the federal Governme nt.
The selective creatio n of rights may hav e rep elled
Frankfurte r. H owev er, th e theo ry of "un enumerated "
rights ha d not become wide ly pr evalent whe n Rau met
with Frankfu rter, an d only gained grou n d follow ing the
Griswold case76 in th e Warr en Era, although the Me1;er
case77 an d th e Pierce case78 in the Lochn er Era were its
forerunn ers. Accordingly, Frankfu rter J was llJ 73 not
the n awar e of the more piqua n t creation of the
sub stantive righ t to priv acy.
Th e history of Ind ian constitut ional doctrine ten ds to
assuage at least two of Frankf u rter' s pr esumed fear s.
First, althoug h the initial history of the India n Supr eme
Court demonstrated a tren d aga inst social welfare
legislation , most noticeably in th e form of zamindari
(lan dlord ) abolition law, substan tive scrutiny was often
pre mised on "social welfare" w here the Supr eme Cou rt
wou ld often find law "reason able", if it serv ed a
"greater social interest" ?9 Furth er, the Directive
Principles of State Policy w ere also used by th e cou rt to
an alyse the sub stantive fairne ss of sta tut es.80 Thi s
history ten ds to assuag e the fear th at cou rts would
exercise subst antive du e process scrutiny to thwart
ben eficial social w elfar e legislation.
 Second, the appli cability of the "Bill of Righ ts" of the
Indian Con stitutio n i.e. Part III, was spe cifically define d
un der Article 12 as being directe d aga inst th e "State"
whic h in cluded the Central and State Governments .
India 's founding fathe rs had adopted a con stitu tional
scheme w hich confer red strong powe rs on the Central
Gove rnm ent, an d States were no t free to define the ir
ow n citizen ship or to have the ir own con stitutio ns.
Accord ingly, the fear that state au tonomy would be
tram pl ed upo n by a Federal Court' s subst antive due
pr ocess doctrine tend ed to be irratio nal in India ,
con sidering that state au tono my here was never wh at it
was in the US.
The third of Frankfu rter's pre sume d fears is perhaps
the mo st po tent sou rce of objection to the wo rds " due
pr ocess" . In the chap ters herea fter the creation of new
"unenumerated " rights by the Supr eme Court of India
will be mea sured in the conte xt of sub stantive due
pr ocess doctrine . The mo st unwieldy of the se rights
created by the Supr eme Court app ear s to be a right to
"non -arbitrariness", where "fairne ss" in government
action has almost been elev ated to the statu s of a right.
Unlike typi cal rights, th e right of "fairness" or "non-
arbitrarine ss" is particularly difficult to define .
1. Dr . Sachi danand Sinha , Chainnan , Co n stitu en t Asse m.b ly of h1di a,
CAD , Vol. I, 5.
2. CAD , Vol. VII, 31.
3. Between October-Decem .ber 1947, Dr . B.N . Rau met with the Chief
Ju stice of the US Su p ren 1e Court , Hu ghe s, the forn1er CJ,
Frankfu rter, Burt on and Mu rphy JJ, and Lean1ed H and J of the
Federal Cir cu it Court of Ap p eals. Sir Sene ga l Rau , India's
Constit u tion in the Making (1963) 328. See, Vijayashr i Sripati ,
" Cons titutio nali s1n in h1di a and South Afri ca: A Comparative
Stud y fron1 a Hmn an Rights Per sp ective " (2007) 16 Tul J Int 1 &
Co n1p L 49, 88.
4. Sir Sene gal Rau , India's Cons titu tion in the 1\tfaking (1963) 329.
5. 91 L Ed 1903: 332 US 46 (1947).
6. See infra, 2.3.l.
7. B. Shiva Rao, The Framing of India's Constitu tion: Select Documents,
Vol. 2 (Universal 1967) 20- 36.
8. Ibid, 29- 32.
9. 49 L Ed 937: 198 US 45 (1905).
10. Bun ting v. Oregon, 61 L Ed 830 : 243 US 426 (1917); Ad kins v.
Children 's Hospital, 67 L Ed 785: 261 US 525 (1923); West Coast
Hotel Co. v . Parrish, 81 L Ed 703: 300 US 379 (1937).
11. B. Shiva Rao, The Framing of India's Constitu tion: Select Documents,
Vol. 2 (Universal 1967) 20- 36, 29.
12 . Ibid, 20- 36, 30- 31 .
13. Ibid, 86 .
14. Ibid, 124 . in corp ora te the wo rds "du e p rocess of law " with in th e p rov ision .
15. Ibid, 122. CAD , Vol. VII, 846- 848.
16. Ibid, 137 . 37. CAD , Vol . VII, 848- 850.
17. Ibid, 147- 153. 38. Ibid, 851- 853.
18. Ibid, 152. 39. Ibid, 853- 855.
19. lbid, 151. 40. Ibid, 859 .
20. Ibid, 164. 41. Ibid, 1000- 1001.
21. Ibid, 213, 240- 247 . 42 . M.C. Seta lvad , The Indian Cons tituti on: 1950- 1965 (Uni ve rsity of
22. Ibid, 241. Bon1bay 1967) 81.
23. Ibid, 240- 241. 43. Felix Fr ai1kfu rt er, "John Mai·shal l ai1d the Judi cial Fu nc tion "
24. Ibid, 242. (1955) 69 H ai·v L Rev 217, 232 .
25. Ibid, 243 . 44. See, Mend elson, "Fore ign Reac tion s to Ain ericai1 Exper ien ce With
26. Ibid, 245 . 'Du e Process of Law '" (1955) 41 Va L Rev 493.
27. Ibid, 297 . 45. M.C. Seta lvad , The comm on law in India, (H an1lyn Lech ue Series,
28. CAD, Vol. III, 426. Steve n s & Son s 1960) 209.
29. Ar t. 31, Japa n ese Con stitu tion (1946) [Niho nk ok u Kenpo (1946)]. 46. Ibid, 210 .
30 . H old en Ftube r, "Con stit u tion -Making in Ind ia" (1949) 18 Fai· 47. See, Lawre n ce Tribe , The Invisi ble Cons titu tion (Oxfo rd 2008) 146.
Eas tern Survey 86. H owever , th e fotu, dational cases th at u sed the 9th An 1endn1ent
3 1. lbid. to bols ter subs tai1tive due pr ocess argu n1ent s, su ch as Griswold v .
32 . CAD, Vol. VII, 797 . St ate of Connecticu t, 14 L Ed 2d 510: 381 US 479 (1965) ai1d Planned
33 . Ibid, 842. Parenthood of' Sou theastern Pennsylvania v. Casey, 120 L Ed 2d 674 :
505 US 833 (1992), h ad n ot ye t b een de cided at the tim e of th e
34 . CAD, Vol. VII, 842- 844.
en actn1en t of the Ind ian Con stitu tion .
35 . Ibid, 846- 848.
48. Howeve r, there is no evid en ce to su gges t that th e frain er s of the
36 . Pai1d it TI1aktu Das Bha rgava , in pr oposi n g ai1 ain endn1e nt to Alt .
h1diai1 Con stit u tion wai 1te d to enac t ai1 exh aus tive or
15 of the draf t Con stituti on of In dia (wh ich wo u ld go on to
co1nprehens ive Bill of Right s. For exan1ple , it seen1s count er -
beco 1ne Ar t. 21 of th e Con stituti on of In dia ), soug ht to
intuiti ve to b elieve th at since the Indi ai1 Constih 1tion did n ot
 contain an 8th Ainendrn .ent like ban on crue l or unusual
punislunent , the frruners intended cn1el ru1d unusual p1ulishn1ent
to be meted out in India . Additionall y, the Grisw old ca.se, whe re
the 9th An1end 1nent arg,.rn1ent was rn.ost vis ib ly used , had not yet
been decided in the US at that tiln e. TI1erefore , this arg,.unent is
onl y used for additional corr oborative value , to bolster the
conscious exclus ion of th e due pro cess clause fr on1 Art. 21 of the
Indiru1 Consti tution .
49. Marshall CJ in McCulloch v. Sta.le of Marylan , 4 L Ed 579 : 17 US
316, 407 (1819).
50 . Bn1ce Ackerrn .ru1, "l11e Fuhu-e of Liberal Revolution (1992)" i11
Jackson ru1d Tuslu 1et, Compara.t ive Constitu tiona.l Law (2nd Edn .
2006 ) 303, 304 .
51 . Unlike Alt. VI of th e Ainerican Constitut ion , no pa rt of th e
Indiru1 Consti tution contail 1s a supre rn.acy clause.
52 . See, Jolu1 Elste r, "Forces and Mecl 1ruli sn1s i11 the Constitution -
Making Process " (1995) 45 Duke LJ 364, 373 .
53 . llis po w er 1na y either be " centralised " i11 one constih1tional
court , " decentralised " or " diffused " i11 all the cou rts , or s01n e
h ybr id between the tw o . See, Jackson and Tuslu1et , Compa.ra.tive
Cons titu tiona.l Law (2nd Edn. 2006 ) 465-467 .
54 . See, Diru·n11rid F. O 'Scruutl ail1, " Is a Wr itten Constih1tion
Ne cessru·y" 32 Pepp L Rev 793, 794.
55 . To be sure , however , the fact tha t a constitution is obse rved at all
is nothing short of a nliracle. In order to eas ily an1end entrencl 1ed
nom1s , all a legis latu r e wou ld have to do is an1end the ver y
a1nendn1ent provision i11 orde r to silnplif y the a1nendn1ent
pro cess , or disregard the an1endinent provision alt oget h er ru1d
enact a new constitution. l11e an1endn1ent provision legitiln ises
the i11ter-generationa l nature of constih1tions.
56. One such exan1ple was a consti tu tion d r afted b y Motilal N el1n1 i11
1928. See, Soli Sor abjee, " Equalit y i11 India ru1d the U1lited States "
i11 Cons titu tionalism and R ights, 94; Vijayashri Sri.pa.ti, "Toward
Fifty Years of Constitutionalis 1n and F1u1drunenta l Right s i11
h1dia : Lookil1g Back to See Ahead (1950- 2000 )" 14 An1 U h1t1 L
Rev 413 .
57. See, La1u-ence Tribe , The Invisi ble Constitu tion (Oxfo rd 2008)
(arg1ring that even a " supre 1nacy" clause does not meru 1
anythil 1g).
58. "Chaim1ru 1' s h1aug 1u-al Addi-ess " i11 CA D, Vol. 1, 5; Gr ru1ville
Austin , The Indian Cons titu tion: Cornerstone of a N a,tion (Oxford
2000) 1.
59. CAD , Vol . 1, 61.
60. Grru1ville Austin , The India.n Cons titu tion : Corners tone of a Na.lion
(Oxfoi-d 2000) 313 .
61. Grey , "l11e Consti tution as Scriphu-e " (1984) 37 Stru1 L Rev 1, 2.
62 . Walte r F. Mu rph y, " Constih1tions , Constih1tionalis 1n ru1d
Den1oc1·acy " i11 Douglas Gi-eenbei-g (Ed. ), Cons titu tionalism and
Dem ocra.cy: Transiti ons in the Contemp ora.ry World (1993).
63. See, H olden Furber , " Constih1tion -Makil 1g i11 h1dia" (1949) 18 Far
Easten1 Su rvey 86; staten1ent by Prune Millister Atlee on the
"Trru1sfer of Power- in India " on 20-2-1947, (1947) 1 Middle East
Journa l 210.
64. See, Jolut Elster , "Forces and Mechanis m.s in the Constitution -
Making Pr ocess " (1995) 45 Duke LJ 364, 373 .
65. lbid.
66. h1dia consisted prilnar il y of British h1dian provi1 1ces, and
pril1cely States. TI1e provinces the1nselves had no option of
su rr ender il1g to the centra l body or constitution , and
consequently did not hold the bargailling wherewitlrn l to exert
upsh ·ean1 or downstrean1 pressures . TI1e prince ly Sta tes, 560 in
ntunber , had the option of acceding to th e cenh'e , bu t stood the
risk of i11curril 1g adve rse 1nilitary consequences i11th e event of an
atten1pt to secede. h1dia 's H on1e Minis ter, Sardar Vallabhai Patel
was insh ·un1ental i11 achievi11g the accession of tl1e pril 1cely
States . TI1e only const r ai11t tlrnt the pril1cely Sta tes ilnp osed was
that tl1ey wou ld be given a stipend to 111ai11tainthen1se lves , a
stipend which was even tuall y revoked . See, H arnai n Singh , "The
h1diai1 States: A Study of TI1eh Constitutional Pos ition " (1949) 64
Pol Sc Q 95; Benjanlin Lindsay , " lndiai1 States i11th e Federation "
(1938) 20 J. Co 1np. Leg . & h1t1 L. 91; V.P . Menon , The Transfer of
Power in India (Princeton 1957); Rus tom Cavasjee Cooper v . Union of
India, (1970) 1 SCC 248: AIR 1970 SC 564 (holding tlrn t tl1e
abolition of tl1e "privy purses " was just ified ).
Today , lndiai1 States are divided on fu1gtli.stic fu1es. H owever ,
th e centre wie lds far reaching powers to divide or an1algainate
terr it ories of lndiai1 States . Tilis is why tl1e lndiai1 systen1 of
goven un ent is s01n et ilne s described as " quasi federal " . See, M .P .
Singh , "Towards a Mo r e Federalized Parli ainen tary Syste 1n in
India " (2001) 74 Pacific Affairs 553. India has a str ong cent re th at
cai1 ilnp ose en1er gency and usurp tl1e adrn illi stration of th e
States . There ai·e no State Constitutions or separate State
constitutional cotuts , ai1d even State sta tu tes are interpreted by
fede ral cir ali.t cou rts. There is no dual citizenship .
67. N otab le an1ongs t th e otl1er differences ai·e tl1e following : i)
Statutes do not usually declare th eir frainers ' ideals in th eh
substantive text , r athe r they set ou t a frainewo rk for tl1e
ilnp len1entation of tl1e ideal. ii) While statutes provide the
frainework for specific po rti ons of govenlll1ent , constitutions
1nay be all encon1passil 1g. iii) Rights declared by constitutions are
1nore " fundan1en tal" tl1ai1 tl1ose created by statutes . Howeve r,
s01n e statutes may seek to create a 1noderately entrenched Bill of
Rights e.g . tl1e Ht m1an Rights Act, 1998 in tl1e Uruted Kingdo 1n.
See, Stephen Gardbatllll , "TI1e New Co nlll 1onwealth Model of
Constitutionalis 1n " (2001) 49 An1 J Comp L 707, 737 (statiI1g th at
tl1e Ht m1an Rights Act in th e U1lited Kin gdo 1n weak ly enh'encl 1es
tl1e Bill of Rights tlu-ough the "i11terpretive du ty") .
68. Bu t see, Jeff Rosen , "Was tl1e Flag Bunling An1endrnent
Unconstitutional ?" (1991) 100 Yale LJ 1073 (ai·gtling tlrn t the so
called "Hag bunling an1endmen t", if proposed by Congress and
ratified by the States , would be tu1constitutional ); Latu-ence Trib e,
The Invisi ble Cons titu tion (Oxford 2008) 33 (ai·gtling tlrn t son1e
proper ly adop ted an1endn1ents cou ld be tu1consti tuti ona l
because of their radical departure fron1 deeply en1bedded
pril1eip les).
69. See e.g., ju dg 1nent of tl1e Bavariai1 Constitutional Co tu-t, 4-4-1950.
See, Gottfried Dietze , "Unconsti tu tiona l Constitutional Nonns?
Constitutional Deve lop 1nent in Postwar · Ger111ai1y" (1956) 42 Va L
 Rev 1, 16; Note , " Natural Law for Today's Lawyer " (1957) 9 Stan 78. 69 L Ed 1070: 268 US 510 (1925).
L Rev 455 n . 41. 79. H ari Khemu Ga.wa.liv . Dy. Comm r. of Police, AIR 1956 SC 559, 565.
70. See, Certification of the Constitution of th e R.S.A., 1996, (4) S.A. 80. See e.g ., St ate of Bombay v. F.N . Balsara, AIR 1951 SC 318 : (1951) 53
744 (Constitutional Court 6-9-1996). Bon1 LR 982; Bijay Cotton Mills Ltd. v . Sta te of Ajme r, AIR 1955 SC
71. It nrny be argued that the ve ry arn.enabilit y of a constitution to 33; Mo hd. H an~f Quareshi v. St ate of Bihar, AIR 1958 SC 731;
a1nendn1ent n1eans that original intent was not intended to be Palakdhari Singh v . St ate of l..l.P., AIR 1962 SC 1145; Pathwnma . v .
irn.po rtant. See, Stephen Holm .es and Cass Sunstein , "The Politics St ate of Kera.la, (1978) 2 SCC 1: AIR 1978 SC 771; Fatehchand
of Constitutional Revision in Eastern Europe " in Levinson (Ed. ) H immatlal v. State of Maharash tra, (1977) 2 SCC 670: AIR 1977 SC
R espondin g to Imperfection: The Theory and Practice of Cons titu tion 1825.
A men dmen t in Jackson and Tuslu1et , Comparative Constitu tiona.l
Law (2nd Edn. 2006) 338 (arguing that a consti tu tion 's
a1nendab ility n1akes it legitimate ). It is not disputed that orig inal
intent was not 1neant to be perpetually conclusive. H owever , it is
suggested in this wo rk that the original intent of the fran1ers of
the Indian Constitution h old s a greater relative weig ht than that
of any subsequent fr arn.ers , and deserves signi fican t
consideration.
72. Art. 368 (2), Constitution of India.
73. All constitutional an1endn1ents can be fotu1d at
<http :// indiacode.nic.in/ coi web / coi files/ an1endn1ent .htrn > last
accessed 6-4-2009.
74. The tenn "original " when appended to the Indian Constitution in
thi s work in1plies the tex t of the Constitution before ainendn1ent ,
ai1d befo re the "basic stn1cture " theor y discussed hereafter.
75. 2 L Ed 60: 5 US (1 Crai1eh) 137 (1803).
76. 14 L Ed 2d 510: 381 US 479 (1965).
77 . 67 T .cl 042: 262 1 rs :190 r192:1).

lil 75 IV. The Early Year s
1. Rigid constituti onal bound aries
Th e Indian Con stitution was adopted by the Constituen t
Assembly of India on 26 Novemb er 1949, but for
historical rea sons1, it came into force on 26 Janu ary
1950. With it, "a huge land w ith the second largest
pop ulation in the world ", econom ically h andi capped
and cultu rally diver se,2 be came the large st democr acy
in the wo rl d. With 90,000 word s cover ing 251 pages, the
new India n Con stitu tion cont ained 395 articles an d 8
schedu les,3 an d laid ou t a deta iled bluep rint for
gove rn ance in the "Sovere ign, Democr atic, Repu blic" of
lndia. 4 In Part III, Articles 12- 35 contained
11
fun da mental righ ts" . The mo st significant of the se
were the righ t to equa lity unde r Article 145, the right to
freedom un der llJ 76 Article 196, and the righ t to life an d
pe rson al liberty un der Article 217 .
In one of the first cons titution al landma rks, A.K.
Gopalan v. State of Madras8 (Gopalan), de spite
"bewi ld ering conflict " 9 amo ngst six jus tices, the
Supreme Cou rt of In dia confirme d that constitutional
cou rts in India had the power of judi cial review . The
case con cern ed an orde r of preve ntive dete nti on un der
Section 3(1) of the Prevent ive Dete ntion Act, 1950. The
In dian Constitutio n confer red the right to libert y but
simultaneously pe rmitted the right to be abridge d by
the State upon the ob servance of procedur al safegu ard s
un der Art icles 21 an d 22. H oweve r, the freedom s
safeguarded under Art icle 19 could be substant ively
pro tected by Indian cou rts on enumer ated grou n ds.
According ly, the pe titioner soug ht to challenge his
order of detention no t merely on the grou n d th at it wa s
proce du rally unf air un de r Arti cles 21 and 22, bu t that it
w as substant ively unfa ir or unreaso n able unde r Article
19(1)(d) i.e. it unf airly deprived him the right of
locomotio n .
The m ajority refused to ap ply overlapp ing
constitutio nal doct rine s to the case, ho lding that a law
that dealt with pu nitive de tentio n could only be
measured under const itutional provis ions that deal t
with punit ive detention . In other words , the court found
that the constitutionality of law would h ave to be
measured by the object of the law itself, an d not by the
incident al effect that the law may have h ad on other
fun damental freedoms . Patanjali Sastr i J (as he then
was), elabora ted this distinction, articu lating that Article
19 could no t be confu sed w ith an alysis un de r Articles 21
and 22:
[A]rticle 19 gua rantee s to the citizens the enjoyment of
certain civil liberties whi le they are free , while Articles
20- 22 secure to all persons . . . certain constitu tional
guarantees in regard to punishment and p reven tion of
crime . D ifferent criteria are provided by which to measure
legislative judgmen ts in the two fields, an d a construction
which would bri ng within Article 19 in1prisonn1ent in
punishment of a crime committed or in preven tion of a liJ
77 crime th reatened would , as it seems to me , make a
· · .10
reduction ad absur d um o f t h at prov1s1on
(en1phasis supp lied)
H owever , one dissenting judge , Fazl Ali sugge ste d that
certain textual componen ts of Part III of the Indi an
Const itu tion , the part de aling with fund ament al rights ,
were not isolated fragments of constitu tional text, but
were de serving of harmonious constru ction . The theme
of the following words would resona te in subseque nt
de cision s which read Articles 14, 19 and 21 of the Ind ian
Const itu tion as pa rt of a '' golden triang le" or ration al
continuum , whi ch formed the fou n datio n for
subs tantive due process in India:
There is nothing in Ar ticle 19 to suggest that it applies only to
those cases which do not fall under Articles 20, 21 and 22 ... .
To n1y mind , the scheme of the Ch ap ter de aling with the
fundan1enta l rights doe s not contemplate what is
attrib u ted to it, nan1ely , th at each ar ticle is a code by
itself and is independent of the others . In my opinion, it
cannot be said that Articles 19, 20, 21 and 22 do not to some
extent overlap each other .... Preven tive detention , which
is dealt with in Article 22, also amounts to deprivation of
personal liberty which is referred to in Article 21, and is

a violation of the right of freedom of n1oven1ent dealt
with in Article 19(1)(d).
(emphasis supp lied)
Patanjali Sastri CL Mah ajan and Da s JJhe ld that Article
21 conferred no t merely a procedural righ t but also a
substantive right to life. They acknowle dged that the
substan tive right to life wa s not an absolute right 1 bu t
that it could be de prived by law pa ssed by a competen t
authority. H oweve r1 the court note d vehemen tly that
the frame rs of the In dian Con stituti on had omitte d the
wo rds II
due pro cess of law " from the In dian
Constitut ion . It wa s also em pha sised th at by qualifying
the righ t to "liberty " wit h the wor d "personal" un de r
Article 21 1 the provi sion confe rred rights mo re limited
11 11
than the wo rd libe rty wo uld confe r un der the
Amer ican Constitut ion . By way of exam ple the cour t
1
stated that wh ile the right to locomo tion may have been
a part of the right to 'pe rsonal libe rty", the freedom of
1
speech wou ld not have been inclu ded wit h in its
me aning . Significantly 1 w hile interpret ing Article 21 of
the Indian Con stituti on, the court in the Gopalan case11
held:
1 1
[I]t is difficult to accept the sugges tion that law in
article 21 stands for the jus naturale of the civil law, and
I
that the phr ase according to procedure established by
1
law is equ ivalent to due process of law in its procedural
aspect, for that wou ld have the effect of introducing in to our
I I
Cons titu tion those sub tle and elusive criteria imp lied in that
phrase which it was the deliberate purpose of the framers of our
Cons titu tion to avoid.12
(en1phasis supp lied)
lill 78 In the years th at follo we d1 four jud icially crafte d
framewo rk pr inciples emerged to gu ide the exercise of
jud icial revie w : i) the re wa s to be an initial, pr ima facie
pre sumptio n in favo ur of the constitutionality of a
statute ;13 ii) while testing th e constitut ionality of
statute s, cou rts wo uld no t look out side the text of the
11 11
Con stitution to its amor phou s, suppo sed spiri t unle ss
1 11
the 'spirit were foun d w ithin the expres s wor ds of the
Con stitution ; iii) w hile exer cising the power s of jud icial
review over legislation1 a court wou ld not cons ider the
"wisdom or unwi sdom , the justice or injustice" of the
statute 1 14 i.e. it wo uld not look to th e policy
consideration s of the statute ; and iv) the court wou ld
not sta rt wit h an assumption that th e law woul d be
misused , and th e me re pos sibility of the misuse of law
would not rende r it sufficiently liable for inv alida tion 15
- rather th e "insidiou s discriminatio n compl ain ed of
[wou ld have to be] incorpo rat ed in the [statute ] itself" .16
Accordi ng ly, sin ce the Gopalan case17, fun dame ntal
right s und er th e In dian Constitut ion h ad rigid
bounda ries, and statu tes wou ld be teste d on the
touch stone of the court' s "object" test . The re appea red
to be no room in thi s jurisprud ence for evok ing fluid
"prin ciple s" fro m the Const itut ion' s text, as Frankfur ter
and Cardozo h ad do ne in the federal state due process
cases. H oweve r, ove r a pe riod of two decades , this
initi al po sition concerning the immut ability of
constituti onal bar riers grad ua lly erode d, culmin ating in
the cou rt' s fluid understa n ding of fun da ment al rights in
the 1970s whe re it fashioned th e me taphor of
fundame nt al right s as tributa ries whose "wa ters must
mix " at the raging river of constitu tional an alysis. In the
me an while , th e interplay be tween Arti cles 14 and 19,
and th e pro ced ural due pro cess origins of Article 22,
became app arent.
2. "Reasonablene ss" under Article 19
2.1. Int roduction
The Ind ian Cons titut ion, mo st noti ceably un der Articles
14 and 19, pe rmitted courts to und ertake inqu iries into
the substant ive fairne ss of legislation , whic h courts
unde rtoo k under "classification " and "rea sonablene ss"
te sts respec tively. Althoug h "substan tive due W 79
proce ss" doc trine is often equate d with any form of
substantive scru tiny of legislation, it is me rely a subse t
of sub stantive scrutiny . Although the court 's an alysis
unde r "rea sonablene ss" and " classificatio n" rev iew w as
substantive, it wa s not "du e pr ocess", since it did not
involve th e right to "life, liberty and proper ty" .
H owever , it will be seen th at the boun dar ies betwee n
Articles 14 an d 19 bega n to dissolve as courts rea d
"reason ableness" into the classification test. It wa s th e
court' s an alysis und er Article 14 wh ich pr odu ced the
substantive due process ' arbitrari ness" te st later on .
1
H owever , it wi ll be seen in thi s chap ter th at the
' arb itrar iness" te st wa s first form ulate d in term s of
1
' reason ableness" in a holding th at went on to heral d th e
1
onset of procedural du e pr ocess in Indi an consti tut ional
law . Accor dingly , any discussion of substantive du e
pro cess in In dia mu st be pref aced by an an alysis of the
cou rt' s forays into "rea sonableness" review un der
Article 19.
Despite deny ing court s due pro cess review involving
the rights to life an d personal liberty un de r Article 21 of
the Indi an Constitution , the Constituen t Assembly of
Indi a, strangely , permi tted courts to un dertake
substan tive review in othe r sphere s of constitu tional
law, most strikingly un de r Article 19(2)- (6) i.e.
"reasona ble restri ctions" to the freedom s enumerated in
Article 19(1). Un der the se provisions, court s coul d test
the "reasonablene ss" of law s whi ch soug ht to infr inge
fundame nt al freedom s un de r Article 19(1).
Historically , abu se of discretionary powe r had bee n
the subject of signifi cant jud icial expo sition at the
common law .18 The tautology of "Wedne sbu ry
un reasonablene ss", which tran sfixed a de cision "so
un reasonable that no reasonable authority could ever
have come to it",19 h ad been inve nted in 1947 by the
British Court of Appe al in A ssociated Provincial Picture
Houses v . Wednesbun; Corpn.20 (Wednesbury) . Within only
a yea r of thi s de cision, the Constituen t Assembly of
In dia wou ld debate the pro visions of what wa s to
become Article 19 of the Indian Constitution. The "Bill
of Right s" of the In dian Constitution itself wou ld be
de scribe d in later year s by M.C. Setalva d as having a
"common law ba ckgroun d an d .. . [a] British ...
origin. " 21 The commo n-law principle of
"reason ablene ss" wa s constitutio nalised mo st
prominently in Article 19 of the Indian Constitution
w hich permi tted the "seven lam ps of free dom "to be
doused by "reason able restrictions", there by lll 80
permi tting courts to venture into th e substan tive
fairne ss or "rea sonablene ss" of restrictions imposed by
law . Its prede cessor, Article 13 of the draft constitut ion,
did not initially contain the wo rd "reason able" w hile
limi tin g fun dament al freedom s enume rated the rein.
Pan dit Th akur Dass Bharg ava, a membe r of the
Constituen t Assembly who wo uld go on to move the
amendmen t to insert "due pro cess of law " into the right
to life an d per sonal liberty pr ovision, moved an
amendmen t on 1 Decem ber 1948 to introduce the wor d
"reason able" be fore "restri ctions", in or der to bring a
"soul " to the pr ovision' s text.
 The question has been asked, if the Legislature enacts a
particular Act, is that the final wo rd? If you conside r [the
relevan t clauses ] you will come to the con clusion that , as
soon as you find th at in the Statement of Objects and
Reasons an enactment says th at its object is to serve the
interests of the public or to p rotect pub lic order, then the
courts wo u ld be help less to come to the rescue of the
n ation als of this count ry in respect of the restrictions ... .
My subm ission is that the Sup reme Cour t shou ld
u ltimately be the arbiter and shou ld have the final say in
regard to the de stinies of our national s. Therefore, if you
1 1
put the word reaso nable here, the quest ion will be
solved and all the dou bt s will be resolved . Sir, one
speake r was asking where the sou l in the lifeless Article
13 was? I am pu tting the sou l the re ... . I un ders tand that
Dr. Ambe dkar is agreeable to the wo rd reasonable 22
1 1
•
At first b lu sh, it does ap pe ar strange th at the same
Con stitu en t Assem bly which later dele ted the " du e
proc ess" langu age from the text of wh at was to become
Ar ticle 21 of th e Indian Constitution , would confer su ch
po ten t powers of review to cou rts th roug h
11
reason ab len ess" rev iew. At least two reaso n s may be
suggest ed for why thi s may h ave h ap pe ne d . First, whil e
"substantive du e proc ess" doctrine was alien to Indi an
jud icial adjudi cation, wit h n eg ative Lochne resque
consequences in its jur isd iction of origin, In di an cou rts
seeme d to h ave wo rke d within th e p ar ame ters of som e
form of "rea son ab lene ss" review , an d ther e m ay h ave
bee n fewe r rea son s for the fr am ers to be su spicio u s of a
"reason ablen ess" test, one wit h which they were mo re
fami liar . Second, it is impo rt ant to unde rstan d th at th e
11
po tent reason ablen ess" test unde r Article 19 was to be
ap p lied to law w hi ch violated freedoms spec ifically
ide n tified and en ume rated with in th e Constitution .
Su bst antive due p rocess was consi dered
11
un democratic " because it p ermitt ed courts to recog ni se
value s ou tside of con stitutio n al text . The
11
reason ablen ess" test created un d er Article 19 p ermitt ed
courts to app ly potent review to spe cifically identifie d
11
or enum erated " values , bu t did n ot cast upo n a
11
cons titu tio n al cou rt the un d emo cra tic bu rd en " of
looki ng outsi de of con stitu tion al text.
11
W 81 Reason ab lene ss" rev iew was recogni sed very
early on as im pos ing bo th subs tan tive 23 an d
proce du ral24 limit s on legi slation .25 Howeve r, th e cou rt
wo uld fre quently equat e "reason ableness" with
11
arbitrariness", me asured as a me ans-end stan dard i.e.
whe ther the restriction impo sed by law was reasonable
in relation to the object soug ht to be achieved .26 Wh ile
the emphasis here betwee n ''unr easonableness" an d
11
arbitrariness" may ap pear to be a me re exercise in
lingui stics, it will be seen in the next ch apter th at the
II
cou rt frequ entl y used the arbitrar iness" stan dard in th e
initial yea rs in its an alysis und er Article 14 as well.
Unde r Article 14 analysis, cour ts wo uld often mea sure
whe ther statutes were "arbitrary " in that they carr ied
ou t "unrea sonable " or "irration al" classification, 27 or
were otherw ise unconstitu tional for conferring
11
arbitrary " power s on administrative auth orities.28 In
fact, cases often involved ch allenges un der bot h Articles
14 and 19, an d th e court's doctrinal an alysis for both
pr ovisions often seeme d indistingui shable. The
11
arbitrariness" test in sub seque nt yea rs wo uld spill over
into Article 21 an alysis. Wh at th e court seeme d to be
doing in later year s wa s to be app lying
"reasonableness" review with which it w as familiar
un der Article 19 an d simil ar substan tive scru tiny und er
Article 14, to quest ions arising un der Article 21. Thi s
numb ing of doctrinal boun dar ies betwee n different
provis ions of the Indi an "Bill of Rights" has been th e
hallma rk of Indi an subst antive due process.
2.2. Substantive doctrine
Even very early on, th e cour t woul d unde rtake
substantive inqu iries into th e "reasonableness" of the
restrictions imposed by law on the fund am ental right to
freedom un der Article 19.29
W 82 In one of the earliest land marks of India's
constitu tional history, a Constituti on Ben ch of the
Supreme Cou rt w as asked to conside r th e
constitu tional ity of the Centr al Provin ces and Berar
Regul atio n of Manu factu re of Bid is Act, 1948 which
pro hibited the m anufacture of bidis du ring the
agricultu ral season . In Chintaman Rao v. State of i\1.P.30
(Chintaman Rao), the cou rt unanimo usly inva lidate d the
statute as an unr easonable restriction on the right of
occup atio n un der Article 19(1)(g) of the Constitu tion .
Speak ing for the cou rt1 Mah ajan J advoca ted a balancing
II
act, wit h arbitr ariness" being its fulcrum . The analogy
between "reason ablen ess" an d "a rbit rarine ss" would
continue to punc tua te the cou rt' s subseq ue n t
op inio ns .31
The phr ase ' reason able restriction' connotes that the
limitation impose d on a person in enjoyment of the right
should not be arbitrary or of an excessive nature, beyon d
w hat is requ ire d in the inte rests of the public. The wo rd
' reaso n able' implie s int elligent care and deliberation,
that is, the choice of a cou rse which reason dictates .
Legisla tion which arbitrarily or excessively invades the right
cannot be said to contain the qua lity of reasonableness
and unless it str ikes a proper balance betwee n the
freedon 1 gu arant eed in Article 19(1)(g) an d the social
control pern1itte d by clause 6 of Article 19, it mu st be
held to be wa nting in tha t qua lity .32
(emphasis supplie d)
Similarly , the Su preme Cou rt asser ted its ba lan cing te st
of re aso n ab lene ss in State of Madras v. V .G. Row 33, w here
it inva lida ted Section 15(2)(b) of the In dian Crimina l
Law Amendment (Madra s) Act 1 1950 for conferring
powe rs on the pro vin cial Gove rnmen t to declare an
associ ation unl awful. Acknowle dg in g th e "extensive
po we r" of th e Americ an Su preme Co u rt un de r th e
"w idely in ter pr ete d" due pro cess clau se of th e 5th and
14th Amendme n ts1 Patanjali Sastri CJ emphasised a
ba lan cing te st, taking acco un t of th e n atu re of the righ t
infringe d 1 the underlying pu rpo se of the re strictio n
impo sed 1 th e exten t an d u rgen cy of the evil sou ght to be
remedie d 1 the d ispr oportion 34 of the impo sition 1 an d the
prev ailin g conditio ns at th e time . H owever , Sast ri CJ
also ackno w le d ged th e d eep ly subjective n atu re of th e
11
re aso n ablene ss" inqu iry.
In evalua ting su ch elus ive facto rs an d forming their own
conception of wh at is reasonable, in all the circums tances
of a given case, it is inevitable that the social philosophy and
the scale of values of the judges participating in lill 83 the
decision should play an important part, and the limit to the ir
int erfere nce wi th legisla tive ju dgme nt in su ch cases can
only be dictated by their sense of res pon sibili ty an d self-
restrict [sic] an d the soberin g reflectio n tha t the
Constitu tion is mean t not only for people of the ir way of
think ing but for alt an d that the n1ajority of the elected
repre sent atives of the people h ave1 in au thorizing the
impo sition of the restriction s, consi dered then1 to be
reasonab le.35
 (emph asis supplie d)
In A runachala N adar v. State of Madras 36, the ap pellants
challenged th e Madra s Com mercial Crop s Markets Act,
1933 and the subsequen t ru les which required pe rsons
who di d bu siness in cotton and gro un dn ut to obtain
licences from the Colle ctor . The appellant s em pha sised
that the restriction on Article 19(1)(g) wa s unr easona ble
beca use it did not achieve the object of the law ,
restricting an d "cripp ling " the right s of small tra ders.
Th e cou rt accepte d the propo sition that "in order to be
reasonable, a restriction must have a ratio nal relation to
the object which the legislature seeks to achieve an d
must not go in excess of that object", 37 de riving this
pr inciple from its pr evio us opinion in the Chin taman R ao
case38 . Altho ugh the statute w as event ua lly found
constituti onal, the court seeme d to ado pt a te st which
coin cid ed with th e second prong of the classificatio n test
used un der Article 14 an alysis whi ch is discussed in the
next section .
In Bhau Ram v . Baij Na th Singh 39 , a Constitu tion Bench
of th e Supreme Cou rt wa s asked to consid er the
constitu tionality of the Rewa State Preem ptio n Act, 1946
w hich confer red preem ptive rights to co-sh arers an d
ne ighbo urs. In a dissenting opi nion, Sarkar J ado pted a
balan cing app roach while de termining if something
were reasonable, empha sising that this w as an objective
proce ss, remove d of the per sonal pred ilections of the
jud ge .
In considering the question of reasonableness, we do not
conceive it any par t of our duty as a Court to go into
que stions of policy, or to ask whet her if it was for us to
n1ake the law how we would have n1ade it. Once we find
that the restriction impo sed by the law is reasonable, we
think, we are bound to uphol d it.40
2.3. Procedural scrutiny
In sever al early decision s involvi ng "reasonable
restrictions " un der Article 19 of the Cons titution , the
court ma de inro ads into pr oced ur al lil 84 du e proce ss
do ctrine, which would gain more wi despread
prev alen ce in the era follow ing the decisions of the late
70s. In the se cases, the Supreme Cou rt he ld th at the
"reason ableness" requirement un der Article 19
militate d against unfettered discretion in gove rnme nt.
 For exam p le, in R.1\t1 . Seshadri v . District Magistrate,
Tanjore41, the Supreme Cou rt h eld that th e con d itions
im p osed by th e licen ce gran ted by the District
Magi strate u n de r Section 8 of th e Cinematog rap h Act,
1918 we re u n con stitutio n al for confer ring unf ette red
discretio n in th e autho rity . Un de r con dition 4(a) of the
licen ce, th e gove rnme n t wa s vested wit h an u nregu lated
discretio n to com pe l a licen see to exh ibit a film of any
lengt h at its di scretion . Th e court seem ed to emp ha sise
the vaguene ss su rro un din g the m anne r in whi ch the law
wa s to be ap plied .
As the condition stand s, there can be no doubt tha t there
is no principle to guide the licensing authority and a
condition such as the above may lead to the loss or total
extinction of the bu siness itself. A condition couched in
such wide language is bound to operate ha rshly upon
the cinen1a business and cannot be regarded as a
reasonable restriction .42
bay43, th e Sup reme
In Ebrahim Vazir Mavat v . State of Bon-z
Cou rt wa s asked to conside r the con stitutio n ality of
Section 7 of th e Paki stan (Control ) Act, 1949 whic h
aut h orised the Cen tral Gove rnme n t to order th e
rem ova l of a per son from India eith er upon convictio n
for h avin g vio lated th e ru les of entry or u pon a
"reasonab le su spicio n ". In the tu ssle for control ove r th e
me an ing of "reaso n ablen ess", th e cour t's op inion
prev ailed over the gove rn me n t' s, an d the cou rt
d ep recated th e ab senc e of criteria whi ch could defin e or
pred ict th e application of the law . Thi s was also p erhaps
one of th e earliest cases of th e Supre m e Cou rt wh ere
"n atu ra l ju stice" righ ts i.e. no tice and h earing, were
emp has ised .
The question whe ther an offence ha s been committed is
left entir ely to the subjective determin ation of the
Government. The inference of a reasonable suspicion
rests upon the arbitran; and unres trained discretion of the
Go1.Jemmen t, and before a citizen is condemned , all that
the Government has to do is to issue an order tha t a
reasonable su spicion exists in their mind that an offence
under Section 5 ha s been committed . The section does
not provide for the issue of a no tice to the person concerned
to show cause again st the order nor is he afforde d any
opportuni ty to clear his conduc t of the suspicion
entertained again st him . This is nothi ng short of a
trave sty of the right of citizen ship .44
 (emph asis supp lied)
W 85 In a strikin g op ini on in K.T. Moopil Nair v . State of
Kerala45, the Supreme Court w as asked to cons ider the
constituti onality of the Travan core-Cochin Lan d Tax
Act, 1955, in essen ce a tax ing statut e. Seemingly not ing
the uncer tain ty in the m anner in whi ch the law wou ld
be ap pli ed, th e cou rt struck down the law as
arbitrary " :
11
The Act does not lay down any provision calling for a
retur n from the assessee, for any enqu iry or investigation
of facts befor e the provision al assessme nt is made or for
any right of appeal to any highe r autho rity from the
order of prov isional assessment ; in fact, there is no
provision for hea ring the assessee at any stage. The A ct is
of an arbitrary character and is thus wholly repugnan t to the
guaran teed rights of the petitioners. [The law] gives
uncana lised, unlimi ted and arbitrary power to the Governmen t
to pi ck and choose in the matter of grant of total or
partial exen1ption from the provisions of the Act. It also
suffers fron1 the vice of discrin1ination.46
(emph asis supp lied)
De spi te th e subse qu ent repe al of Ar ticle 19(1)(j) from
the Constituti on, it is impo rtant to consider th at even
several decades before the court articulated its "n ew "
arbitr arin ess stan da rd, th e cou rt wou ld invalidat e law if
it did not m eet wh at app ear ed to resemb le pro ced ural 47
du e pr ocess requ iremen ts, a phenom eno n wh ich d id not
ap pear to be bo un d to ''right to property " cases alon e. It
is interestin g to note th at the right to prope rty is one of
II
the thr ee rights prot ected by the du e pro cess" clau se of
the 5th an d 14th Am endm ents to th e Am eri can
Con stitu tion . Accordin gly, Indian cases th at dealt with
the righ t to proper ty un d er Article 19(1)(/), ap ply in g
"reasonab leness" scru tin y, we re essentiall y app lying
pr ocedu ral d ue pro cess stan da rds.
In Jyoti Pershad v . UT of Delhi48, the Su preme Cou rt
consid er ed the constituti on ality of Section 19 of the
Slu m Ar eas (Im prov emen t an d Clear an ce) Act, 1956
w hich provid ed that a p erson w ho had obtained a
d ecree for th e eviction of a ten ant from any buildin g in a
slum area wo uld n ot be able to execute the de cree
witho u t the pr ior consent of the com pe tent au th ority .
Besid es a ch allenge u n der Arti cle 14, the pe titioner also
challenged the pr ovision un der Article 19 claiming that
the law was un reasonable becau se it conferred
un fettered po we r to the compe tent autho rity. Noting
that this argument overlapped w ith Article 191 the court
held:
A considera ble part of learned Counse l's argument on
the reasonableness of the restriction was devoted to
showing that the vesting of an unfettered or unguided
power in the competent authority to perm it or not to
permi t llJ 86 eviction rendere d the restriction
unreason able. This, as wou ld be seen is really a different
1 inve stigation was con tem plate d into the que stion that
form of pre senting the case of the objection under Article
14 ___49
H oweve r1 despite no tin g the overl ap between the
argu ment s unde r Articles 14 an d 191 th e court held that
the law had a "rea sonable an d rational connectio n with
the object sought to be achie ved" 50, mea ns -end scru tiny
which resemb led the second pro ng of the court 's
classification test unde r Arti cle 14.
In State of M.P. v . Baldeo Prasad5 \ the Supreme Court
con side red the con stitu tion ality of the Central Provinces
and Berar Goon das Act, 1946 which permitted the
externment of "goon das" if a person's activitie s we re
suspe cted of be ing prejud icial to the interests of the
gener al public. The cou rt held that the restri ction placed
by the law upo n Article 19(1)(d) of the Constitution w as
unrea son able for w hat appeared to be because of three
II
pr im ary reasons: i) the definition of the wo rd goonda "
afforded the Magistr ate no assistan ce in dete rmining
w ho would fall w ithin its me aning i.e. th at it was vagu e;
ii) no op portunity was inten ded to be given to the
II
pe rson to show that he w as not a goonda "; an d iii) no
w hethe r a pe rson w as a "goon da " or not . The court
inva lida ted the law on the tou chstone of what ap peared
to resemble pro ced ural due process do ctrine 7.Jiz . that the
law was vague an d did not adequa tely define its
ap plicability.
According ly, although the court did no t app ear to be
ap plying no tice an d hearing requiremen ts to Arti cle 21
in its early jurispruden ce i.e. pro cedu ral du e pr ocess in
the tru e sense of the phr ase1 it had not ru led ou t
do ctrine w hich resemb led due proce ss un de r Article 19
an alysis. The only reason th at "proce du ral due proce ss"
type doctrine un de r Arti cle 19 may not strictly be said to
have been tru e "pro cedu ral due pro cess" is th at th e law
did not , in the court' s opin ion1 interfere with th e right s
of "life, liberty and property " i.e. right s pr otected by the
"du e pr ocess" clau se of the 14th Am endm ent.
In Joseph Kuruvi lla Vellukunne l v. RBI 52, th e Supr eme
Court was aske d to consider th e constituti onality of
Section 38 of th e Banking Companie s Act, 1949, wh ich
mad e it man datory for th e High Court to w ind up a
banking company if an appl ication were made by the
Reserve Bank of India. Speakin g for th e majority,
Hidayatu lla J foun d th at th e provision satisfied th e
reasonableness test. Howev er, in a dissent ing opinion 1
Kapu r J foun d that it was a "negat ion of the ru le of law "
if the citizen W87 were denied rights to jud icial access.
Kapu r J's concern for ju dicial access resembled
proc edu ral due process doctri ne.
In H ari Chand Sarda v. Mizo District Council 531 th e
Supr eme Court invalidated Section 3 of the Lush ai Hills
District (trading by non -tribal s) Regulat ion1 1953 for
vio lating Article 19(1)(g) of the Constituti on wh ich
authori sed an executive comm ittee of the district coun cil
of the Mizo District to issue licences for trading by non-
tribals. The cou rt found that the law did not provi de
any prin ciple or stan da rd on which the executive
cornrnittee was to gran t or refuse licences. It is
impor tant to not e that thi s wa s a case involving
subo rdinate and not primary legislation. H owev er,
She lat J articula ted the test that the court wou ld employ :
[R]estri ctions shoul d not be arbitrary or excessive or
beyond wh at is required in the intere st of the gener al
pub lic . . . an d an uncontrolled and uncana lized power
con ferred on the author ity wou ld be an unre ason able
re strictio n on [the fun d amen tal right] . Though a
legislative policy ma y be expressed in a statu te, it n1ust
provide a suitable mach inery for im pleme nti ng th at
policy in such a n1ann er th at such im pleme nt ation does
not result 1n un due or excessive hardship and
arbitrariness .54
(en1ph asis supp lied )
In Maneklal Chhotalal v. i\1.G. Makwana 55, the Sup reme
Court up held th e constitutio nal valid ity of the Bom bay
Town Planning Act, 1954, finding that th e restrictions
impo sed on the right to pr ope rty unde r Article 19(1) (j)
w ere reason able on account of the "elaborate
pr ovi sion s" whi ch existed for th e au th or ity to p rep ar e
an d fin alise a tow n p lanning sche m e. Spe akin g for th e
cou rt, Vaidyal in gam J ar ticulate d th e test to be app lied :
[R]estrictions on the exer cise of a fund ament al righ t shall
not be arbitrary, or excessive, or beyo nd wh at is require d in
the interest of the genera l public . The reason ableness of a
restriction shall be teste d both fron1 subs tantive and
procedura l aspects. If an unc on trolled or unguided power is
confer red, withou t any reasonable and proper standards or
limits being laid down in the en actmen t, the statu te may
be challenged as discrim in atory .56
(emph asis supplie d)
In 1974, onl y a few ye ar s before th e cou rt would be
credited with a "n ew " ap pr oach to equ al p rotection
an aly sis, the Supr eme Cou rt in Nawabkhan A bbaskhan v .
State of Gujarat57, equa ted a stat u to ry h earing
requi reme nt wi th a "con stitutio n al requi rem ent "
emp h asising th e "b asic link-u p betwee n
con stituti on ali ty and deviat ion from the aud i alteram
p artem rul e" . Spe akin g for th e cou rt, Krishna Iye r J
referred to W 88 th e Magna Car ta wit h ou t refere n cin g
th e d eletio n of the d u e pr ocess clau se from th e In di an
Con stitutio n :
In Indian Cons titutional law, nat u ral justice does no t
exist as an absolu te ju ral valu e but is hu n1anistically read
by cour ts into those gre at rights ensh rined in Part III as
the qui nt essence of reasonab leness . We are no t
unn1in dful that from ... the Magna Carta an d Lord Coke
... it is a deeply rooted principle th at the body of no free
n1an shall be ... imp risoned [etc.] withou t opport unity
for defence an d one of the first principles of this sense of
justice is th at you mus t not permi t one side to use means
of influe n cing a decision which means are not known to
the other side .58
2.4. Conclusion
An an aly sis of th e early d ecisions d ealin g with
"reason ablen ess" review un d er Article 19 evoke th e
following th ree pro p ositio n s:
First, arbi trarin ess" wa s at time s equate d w ith
11
"un reason able n ess" . For exam p le, in th e Chintaman Rao
case59, th e cou rt use d th e term "arbitrary "
in terch an geably w ith "un rea son able " . Acco rd in gly,
w h en the cou rt said that a law wa s arbitrary it meant
that the restnctlo n impo sed by law was not
"reaso nable" unde r Article 19(2) - (6). Impo rtantly , thi s
11
arbitr ariness" formula tion ha d textual origins in
Article 19.
Second, court s sometimes said th at law whi ch
conf err ed un controlled powe r on aut horities to deprive
right s un der Article 19 was "arb itrary " . Again, the
textu al ''reasonableness" test was indi stingui shab le
from the "arbitr arines s" te st. Howeve r, the se cases also
fit more happil y within th e first pr ong of the court's
classification test unde r Article 14, involving "well -
defined class" intere sts i.e. th e court w as con cerned in
the se cases with how predi ctable the appli cation of the
law would be. In thi s sense, it resembled proc edura l due
proc ess, an d Article 14 analy sis.
Third, "reasonablenes s" review also produc ed notice
and he aring requi rement s which resemb led pro cedu ral
du e proc ess do ctrine. The only rea son th at this could
not strictly be called "pr ocedu ral due pr ocess" is that
right s to life, liberty an d proper ty prote cted by the due
proc ess clause, were not involve d, "person al liberty "
may hav e been involve d .
The "reasonableness" test whi ch w as ap plied un der
jud icial review in cases comp en diously des cribed as
adminis trat ive law cases, and th ereafter right to
freedom cases un der Article 19, qui ckly meta morp hosed
into a test app lied to statute s un der Article 14 as well, in
the form of "reasonable classification", alth ough the
ter m "reasonable" wa s often u sed inter changeab ly with
"ration al", and degrees of deferen ce were less likely to
hav e been indicated by ter minology and more by the
court's approac h in different scena rios. Ideas of
Wednesb ury lill 89 unr easonablenes s are traceab le in
several decisions of the Supre me Court of India .60 Used
mos t famou sly as a "reasonable man " 61 test in torts
cases, "rea sonable ness" soon became th e cornersto ne of
In dian constitut ion al adjud ication . In the field of jud icial
review of adm inistrative action, Indi an courts have
pe riodi cally used "rea sonablene ss" 62, arb itrar iness1163
11
or "pro po rtional ity " 64 standards while te sting the
constitu tionali ty of admi nistrative dec isions.
3. The "old" equal protection doctrine
3.1. Classific ation
Within the framework of the prin ciples evo lved in the
Gopalan case65 and its proge ny, the Supre me Court of
India dev ised a means-end standard whi le dealing with
equal protection cases un der Article 14, a provi sion
which was inspired in part by the 14th Amen dm ent to
the US Con stitutio n . Un der the stan dar d, a law would
be constitutionally valid if two prongs of th e
classification w ere satisfied - first, there ha d to be an
"intelligibl e differ entia " which distin gu ished pe rsons or
thing s that were grouped tog ether from oth ers left out
of the group i.e. the classification h ad to be "read ily
intelligible" 66; and second, the differenti a ha d to bear a
rationa l (or rea sonable ) relatio n with the object sought
to be achi eved by the law. 67 Howev er, it will be seen
that sometime s the court was satisfied with th e first
prong upon a showing of th e second prong i.e. even
thoug h ther e may not have been a rational ba sis or
"intell igible differentia" to distin gu ish betwee n p ersons
or group s, the cou rt wa s sati sfied if the distin ction bore
an adequate nexus with the object pursue d by the law .
Wh ile th e terms ''rational " and "reaso n able" are
un derstood as constituting different standard s of
scru tiny in Ame rican con stitutional jurispruden ce, no
such distin ction app eared to exist 1n Indian
constitut ional law, and the word s "rat iona l",
"reasonabl e" and "arbitrary " wer e frequen tly used to
test the constitut iona lity of statu tes.
lill 90 Broad ly, two classes of cases em erged un der this
jurispru dence. First, ther e w ere those cases wh ich did
not invo lve statutory challenge s at all. In this class of
cases, court s tested the exercise of pow er by qu asi-
jud icial or executiv e autho rities.68 For example, in T.
Devadasan v . Union of India69 , the Supr eme Court
II
inva lida ted th e carry forward " rul e adopt ed by the
Union Pub lic Serv ice Comm ission . Th e exercise of
quas i-ju dicial or executive powe r in que stion could take
the form of either adju dication 70 or delegated
legislation .71
On the oth er han d, ther e w ere cases wh ich invo lved
stat utory challenge . These w ere of again of two kinds:72
i) statut es that conferr ed discretion on authoritie s; an d
ii) statute s that created distinctions by the mselves.
The se cases w ill be analysed throug h the pr ism of the
two prong s of the court' s classification test.
3.l. l . The first prong: intelligible differentia
Several cases in the early years of the cou rt's equal
pr ote ction analys is focu sed on the first prong of the
classification test i.e. whet her an "intelligi ble differentia"
forme d the ba sis of the discrimin ation .73 In some cases,
the cou rt foun d th at neither prong of the classification
test wa s sati sfied, but the an alysis un der the first prong
appeared to have been mo re forceful.74 Un der the
"inte lligible differentia" pr ong of the W 91 classification
test, the cou rt wo uld often vent u re int o two quest ions: i)
Is it possible to read ily ascertain whom th e law will
app ly to? ii) Even if it is possible to ascertain whom the
law will ap ply to, is there any reason able an d
ascertainab le ba sis to group persons toget her into a class
as th e legislatu re h as sought to do?
3. l .1.1. Well-defined class: i.e. whom (,'esem bling p rocedural
due p rocess)
In some cases, the court's an alysis un de r the first pr ong
of the classification test addressed whether the subjects
of the class created could be readily identi fied i.e.
whet her there was a "well-defined class", 75 or whether
the manne r in whic h the discrimination pr opose d to be
carried out by law wa s defined by pred ictable criteri a.76
The cou rt in the se cases was concern ed wit h wh at
ap pe ared to be the vagu ene ss of the sta tut e' s
ap plicability, and th e consequ ent "arbit rarine ss" of its
ap plication . For example , statu tes which conferr ed
discretionary powe r on gove rnme nt to create
classifications were typi cally analysed from th e
view point of whom the law was to app ly to. These
statutes were challenged on the groun d th at they could
be arb itrar ily abused . The sta tut es did not create
classifications by themse lves, but ena bled statuto ry
deleg ates to do so. In a sense, these cases form ed the
court's first forays into doctr ine that resemb led
proce du ral du e proce ss, as hint s of "vo id-for-
vague ness" doctrine pun ctua ted the cour t's hold ings.
H oweve r, at a more fun dament al level, the se cases
articulated the cour t's equal protect ion an alysis 1n
ascertaining whethe r law could "equa lly" or
"un arbitra rily" be app lied on a pla in read ing of its
wo rds and phra ses.
The inquiry in this first category of cases began wi th a
series of "spee dy trial" cases th at inun da ted the
Su pr em e Cou rt of In d ia in th e early SOs.77 Several States
in In d ia h ad en act ed "sp eedy tr ial" statute s wh ich
11
con stitut ed sp ecial court s" to tr y crimin al cases on an
exp ed ited ba sis. These statu tes did not by th em selve s
sp ecify cases th at we re to b e tried by th e sp ecial pr ocess,
leav in g th is to b e de termin ed by th e gove rnm en t. In
Sta te of W.B. v . A nwar A li Sark.ar78 (A nwar A li Sarkar), th e
Su pr em e Cou rt of In dia tested th e con stituti on al
va lid ity of th e We st Ben ga l Sp ecial Cou rts Act, 1950
whic h p rovid ed th at a "spe cial cou rt" lil 92 cou ld "try
suc h offen ces or classes of offen ces or cases or classes of
cases, as th e State Gove rnmen t m ay by gen eral or
sp ecial ord er in w ritin g, direct" . The sta tut e w as struck
dow n by a m ajority of 6 : 1-79 Fazl Ali J said th at w hil e
II
th ere wa s n othing sacred or sacros an ct" abo ut th e test
of classification, it h ad "pr oved to be a use ful ba sis" for
testin g th e con stitu tion al v alid ity of statu tes th at w ere
ch allen ged for violatin g th e right to equ ality . Muk h erjea
J id en tified th e p roblem with th e statu te 1.Jiz.th at th e
class itself was n ot cap able of d efinition an d ready
ascertainm en t.
[T]he necessity of a speedie r trial is too vague, un certain
an d elu sive a criterion to form a rational bas is for the
discrin1in ation made . . . . [T]he selection is left to the
absolu te and un fettered di scretion of the executive
governmen t with nothing in the law to guide or contr ol
its action. This is not a reasona ble classification at all bu t
an arb itra ry selection. 80
Das J w hile p artially con curr in g w ith th e m ajority,
enu n ciated an arbitr arin ess" 81 stan d ard within th e
II
fra me wo rk of rea son ab le classification an alysis:
The classification mu st not be arbitrary but mus t be rational,
th at is to say, it mus t not only be ba sed on some qualities
or characteristics which are to be found in all the persons
grouped together an d not in others who are left out bu t
those qualities or characteristics n1ust h ave a reasonable
relation to the object of the legislation .82
(en1ph asis supp lied)
In a sepa rat e op ini on th at p otenti ally laid th e
foun d atio n s of p erfectioni st n on-int erp retiv ism in Ind ia,
Vivian Bose J made an in tere stin g ob servat ion :
wh at if a state legislatu re en acted a statute th at provided
th at all accused persons whose skull me asu rement s were
 below a certa in stan dard 1 or who coul d not pa ss a series
of intelligence tests1 could be trie d summa rily for their
offence - wi th the object of expediting criminal
proce dure . Altho u gh the classification wou ld be
scientific1 no ju dge wou ld fin d it 'f air and proper ' .
In th is ar ticulation 1 Bose J seemed to reject th e "well-
defined cla ss" con cern s of th e classificatio n te st.83 In hi s
view 1 even if the class were scientifica lly and p recise ly
defined 1 it m ay still h ave bee n unr eason able.
However much the real grou n d of decision n1ay be
hid den behi n d a screen of word s like 'reason able' 1
' substantia l' 1 ' rat ional' and ' arbitr ary' the fact wou ld
remain th at ju dges are subs titu ting their own judgn 1ent
of what is W93 right an d proper an d reason able an d jus t
for th at of the legislature ; and u p to a poin t that 1 I think 1
is inevi table w hen a judge is called upon to crys tallize a
vague gener ality like article 14 int o a concrete concept. 84
Bose J resolve d th e qu estio n by fin ding that judges
alway s su bstitute th eir own ju dgme n t of w h at is "righ t
an d pro pe r an d rea son able an d ju st" for th at of th e
leg islature 1 wi thin limits . In doing so1 how eve r 1 he
con ceded that a cou rt could no t d eter mine w h ethe r the
law wa s for the benefit of th e peo ple or n ot. In tes ting
the con stituti on ality of th e sta tut e1 h e refu sed to apply
the classification te st1 an d said instea d :
Wha t I have to detern1ine is w hether the differen tiation
n1ade offends wh at I may call the social conscience of a
sovereign democratic republic ... . The qu estion w ith which
I ch arge myself is, can fair -minded 1 reasonable unbiased
an d resolu te men 1 who are not swayed by en1otion or
prejudice 1 reg ard thi s with equanin1i ty and call it
reasonable, just and fair1 reg ard it as th at equ al trea tment
an d protectio n in the defence of libert ies w hich is
expe cted of a sovere ign democr atic repub lic1 in the
condi tions which obtain in India today ?85
(en1phasis supp lied)
Th e comb in ation of three words u sed by Bose J in hi s
dissen t 1.Jiz."rea son able " 1 "ju st" an d "fair" seemed to
hav e been bor rowed con sciou sly su b con sciou sly or
1 1
unw ittin gly 1 from the Lochner case86 . Th ese ve ry wor ds
would go on to de fine proc edura l due p ro cess in In dian
con stitu tio n al law in th e 1970s .
In Kathi Raning Rawat v . State of Saurashtra87 (Kathi
Raning Rawat)1 th e Su preme Cou rt of In dia upheld a
spee dy trial stat ut e for the reason th at th e classification
test w as me t. Patanjali Sastri CJ w as satisfied by the
affidavit filed on behalf of the State whi ch cited f act 11
and figure s" supporting the justification for differenti al
treat ment .88 Fazl Ali J believed th at the clear recital of a
II
defin ite objective (fu rnished ) a tangible an d rational
basis of classification" .89 Mukherjea J reiterat ed that a
statu te could be foun d ''arb itr ary" and
"unconstitutional " no t me rely if it discrimin ated by
itself but also if it vested autho rity in "certain officers or
adm ini strative bo dies" to act arbitrarily;90 but foun d
that a "clear an d definite " legislative policy would
pro vide guidi ng prin ciples for the app lication of the
law, an d if an adm inistrative body subsequ ently
arbi tr arily ap plied th e law , the actions of the
adm ini strative body could liJ 94 be invalidated , without
an "as applied " inv alid ation of the statute .91 Th e
classification test (usually prefixed wit h the wo rds
"rational " or rea sonable", words th at were often used
11
almo st int erchangeably 92 ) therefore appe ared in thi s
case to have evolved into a rational , more de ferentia l
classification test. Clearly defining the objective s of th e
law ap peared to be sufficient in order to survive
classificat ion scru tiny . "As applied " ch allenge s seeme d
to have been rul ed out in the Kathi Raning Rawat case93.
If admini strative au thoritie s acted arb itr ary the n the
arbitr ary de cisions of adm inistr ative autho rities could
be invalidate d, wit hout a concomitant invalidation of
the statute. This case once agai n seemed to emp hasise
the cou rt's concern that th e pred ictability of a statut e' s
ap plication, in the guidance that the stat ut e would offer
for th e manne r in which an d conseque ntl y the class to
w hich the law would apply , wa s the foremo st
requi rem ent of equa lity before the law .
3.1.1.2. Reasonable/Rational bas is: i.e. why
The next element of the first prong of th e classification
test is inextricably inte rtw ine d wit h the secon d pro ng of
the test. In the se cases, the law created a well-defined
11
class" i.e. the membe rs of th e class we re readi ly
ascertainable. H owever , the law did no t distin gu ish
between groups or create the class ba sed on an inhe rent
featu re or prop erty of membe rs of that group . The
defining featu re of th ese case s w as th at th e law did not
hav e any rationat inherent or generally app licable basis
for distinguishing between mem bers in different classes.
H oweve r, the cou rt may still h ave found such
classification justified if it bore a ratio nal relation with
the object sough t to be achieved by th e law .
The "intelligible differenti a" pro ng of the classification
test often focused on w hy the classification was carried
ou t by th e gove rnmen t. H ere, w hile the de finition of the
class was rea dily ascertain able, an d one could fath om
w hom the law wo uld app ly to or the member s of th e
class create d, th e cour t often foun d th at the class was
not create d on the basis of some acceptable or
reasonable standard of gene ral appli cability based on
the inhe rent pro pe rties or characteristics of th e class
create d. In such cases, the court looke d for some
reasonable, ascertainable or inherent ba sis of general
app licability on the streng th of which the discrim ination
was soug ht to be carried out . For example , llJ 95
classification on the basis of geogra phy,94 history ,95
natu re of persons/ 6 natu re of busine ss, 97 or time 98 we re
sust aine d .99 If the law could not mee t some comparable
gener ally appli cable criteria of distin ction, then even
though the member s of the class were well de fine d an d
capable of ascertainmen t, it wo uld still be invalid ate d
unle ss the law' s object could save the statu te . The cou rt
has accep ted th e following criteria as form ing
intelligible differentiae - th e natu re of litigation
broug ht by a litigant , l OO the age of an offende r, l Ol and
the size of taxis.102
The se cases tend to overl ap wit h th e second pr ong of
the classification test i.e. the ne xus requ ireme nt.
Ho weve r, cases examine d under thi s section are
distingu ishable from th ose examine d in the next section
ba sed on the criteria used by the law to create classes.
Typically , laws that ba sed classification on inherent
proper ties of mem bers of the class survi ved scrutiny .
On th e other han d, law s whic h classified w ithout
invoking any inhe rent differences be tween the classes
create d were me asured against th e object th at the law
soug ht to achieve . For exam ple, if a law distin guishe d
between two pe rsons ba sed on their geog raphic
residen ce, or on the basis of general featu res such as
age, language , etc. th en it could argu ably survive
scru tiny unde r this prong. However , if a law
distingu ished be tween two pe rsons an d there w as no
inherent or gene ral ba sis for the distin ction in the
opinion of the court , it wo uld be invalida ted unl ess the
distin ction could be justified in the ligh t of the object of
the statut e. The next section deal s wi th cases whe re the
law was ba sed on some genera l criteria of distin ction,
e.g. geogr aphy , bu t wh ere courts still held th at th e
distin ction wa s not rationally related to the object of the
law .
It wo uld be instruct ive un der thi s section to examine
those cases in wh ich statut es themselves created
classifications, an d where court s w ere con sequently
requi red to test the constitu tionali ty of th e sta tut ory
construct . For examp le, Section 133 CPC, 1908,
exempt ed form er rul ers of In dian pr incely Sta tes from
person al att end an ce du ring court hearings, w hile all
other persons w ere requ ired to persona lly attend court
hearings. This pr ovision was challenge d befor e the Hi gh
Court of Punjab as creating a classification be twee n
ordin ary citizens and the liJ 96 former rul ers of the
erstw hile Indian prin cely States.103 Th e law was up held.
In Charanjit Lal Chowdhun; v. Union of India 104
(Charanjit Lal), the Supre me Cour t dismissed a p etition
by the shareho lde r of a comp any chall eng ing the
Sho lapu r Spinni ng an d Weaving Comp any (Emergency
Provi sions) Act, 1950 whi ch authorised the Central
Government to no minate dir ectors on the company for
ta king over its m an agement an d ad ministration . The
subject of th e classification i.e. the company, had clearly
been identi fied an d wa s conseque ntly a "well-de fined
class". Th e law was pa ssed conseque nt to the closur e of
company mills by the directors of th e com pany . In a
separate opinion , Fazl Ali J held th at facts pl aced before
the legislature (whi ch w ere publicly availab le) of an
"astoun ding " natur e clearly justified the company being
tre ated as a class by itself. Althoug h there was no
gen erally app licable, inher ent or ration al ba sis on whi ch
the Sholapur Spinn ing and Weav ing Compa ny could be
singled ou t, it wa s held valid ba sed on the object of the
law, whi ch th e court gath ered from the "astoun ding"
facts before the legislatu re. It was he ld that the facts
referr ed to by th e legislature in enacting th e law,
available in a public docum ent, furnish ed pr im a facie
ground s holding the law constitut ion al. In arriving at
th is holding, Fazl Ali J soun ded a note of cauti on, whi ch
wou ld resou n d in the cou rt' s opini ons severa l decade s
 II
later. H e cautioned against a doctri naire" appro ach, a
wor d u sed by Bhagwa ti CJ in the late 1970s to reject the
classification test altoget her.
Article 14 of the Con stitution ... lays dow n an importan t
fun damenta l right ... but, in con str uing it, we should not
adopt a doctrinaire approach w hich m igh t choke all
benefici al legi slation .105
(emph asis supplie d)
Thi s case must be contrasted with A n-zeerunnissa Begum
v. Mah boob Begum 106 (A meerunnissa Begum), decided by
the Sup rem e Court in Decembe r 1952. In thi s case, th e
cou rt found th at the opinion of a Sta te legal advi sor
could not h ave been used to justify the discriminatio n
sought to be create d by the law . Read toget her, the
Charanjit Lal an d A meerunnissa Beguni cases seemed to
sugge st th at the court would inv estigate the
reasonableness an d ju stifications of divid ing pe rsons
into different groups , and look to see if ther e were
compelling reasons to distin gui sh betwee n two classes.
lil 97 In the A nieerunnissa Begum case107 , two wive s of
Nawab Waliuddowla , a wealt hy noblema n an d high
dignit ary of H yde rabad , challenged the Waliuddowla
Succ ession Act, 1950 whi ch dismi ssed the ir claims of
succession to the Nawab 's persona l esta te. According ly,
the person s to whom the law would apply we re rea dily
ascertainable an d capa ble of meas uremen t i.e. the
Nawa b's two wives.
Muk herjea J articulate d the "intelligible differentia "
standa rd wh ile using the wor ds "rea sonable ",
"arbitrary ", an d "ration al" wit hin the same sentence:
To attr act the oper ation of the clause it is necessary to
show th at th e selection or differ enti ation is unreasonable
or arbitrary; that it doe s not rest on an y rational basis
having regard to the object which the legislative [sic] has
in view .108
(en1phasis supplied )
The cou rt noted th at the object of the law wa s to end
pr ivate dispute s an d not to secure some advantage to
the cornrnu nit y as a whole , an d it was held that this
object could not fu rnish ground s for the discriminat ion
soug ht to be br oug ht abou t. In other wo rds, ther e was
no ratio nal or gene ral ba sis upon which the different
wives of the Nawab could be inheren tly distingui she d
from one an other. Since this was so, the cour t looke d to
see the object of th e law , and foun d th at th e
classification bor e n o n exu s w ith the object. Alth ou gh
th e wo rd "ratio nal " int u itively invok es a low er
thr esh old than '' rea sonable ", th e cour t stru ck down the
law for not h av in g an y "ration al ba sis" for th e
discriminatio n . Th e fact that the " differentia " wa s b ased
onl y on th e repo rt of a State lega l adv isor w as
de preca ted , an d th e court 's hold ing seem ed to re ly on
th e fact th at the ba sis on wh ich th e adv iser ha d draw n
th e d istin ction w as n ot in telligib le or read ily
ascer tainable .
As appears from the pre amble of the Act, the only
ground for depr iving the two ladies and their children of
the bene fits of the ordinary law is the fact that there was
an adverse report against them n1ade by the State Legal
Adviser. This ground is itself arbitrary and unreasonable ....
[L]egislation based upon the report of a non -judi~i~l
authority an d make [sic] app licable to specific
indiv idua ls, who are depr ived thereby of valu able righ ts
wh ich are enjoyed by all other person s occupying the
same position as themse lves, doe s, in our opinion,
plainly come within the constitutional inhibi tion of
Article 14.109
(en1phasis supp lied)
Thi s case seem ed to addre ss Vivia n Bose J' s fears
ar ticulat ed in th e A nwar Al i Sarkar case110 . Bose J h ad
stat ed th at a law which d iscrimi n ated on th e ba sis of
"skull me asu reme nt s" may have been ju stified if th e lill
98 empha sis lay on the classification test. H owev er, th e
court's op ini on in thi s case wou ld ten d to d emon stra te
that con side ratio n s of expedi ency wou ld not satisfy or
bear a reason able n exu s with oth erwi se scien tific or
in telligible d iffer en tia. Accord in gly, Bose J's "skull
m easu rem en ts" law would n ot have sati sfied th e
classificatio n test, as con sid eratio ns of expedien cy could
not be u sed to ju stify statut es.
It is true th at the quarrel between the two rival p arties
regard ing succession to the estate of the dece ased Naw ab
was going on since 1938 .... That may be the reason for
pa ssing this legislation but it wou ld not furnish any
rationa l basi s for the discrimin ation that it n1ade.111
Sim ilarly, in Karimbil Kunhikoman v. St ate of Kerala112,
the Su pre me Court wa s asked to con side r the
constitu tio nali ty of th e Kera la Agrarian Relations Act,
1961 wh ich exem pted pl an tation s of tea1 coffee1 ru bber
and card amom from certain prov1s1ons (dealing with
acquisition of land and compe nsation), but did not
exempt plant ations of areca an d pe pper which the
petitioners owned . Th e court examine d the reasons
w hich impelled the legislatu re to treat different
pl antation s as falling un der different categor ies. Whi le
the classification wa s read ily ascerta inab le, since the law
clearly exempte d tea , coffee and rubber plantation s, the
court struck the law dow n as bringing abou t
unrea sonable classification :
[I]t has not been shown that there is any appreciable
difference between the economics of tea, coffee and rubber
plantations and areca and pepper plantations. It is true
that plantations in areca and pepper are not so
wide spre ad as tea, coffee and rubber plan tations but it is
equally true that in thi s particular area from which these
petitions come areca and pepper plantations are very
comn1on. The fact however that areca and pepper planta tions
are very common only in this area of the State of Kerala is no
reason for treating them differently from tea, coffee and
rubber plantations which are app arent ly more evenly
distribute d throughout the state .113
(emph asis supplied )
This pas sage reveal s that there we re at least two
differentiae which distingui shed areca and pe pp er
plantation s from tea, coffee an d rubber plant ations viz .
first, that th ey were no t as wide sprea d as tea, coffee and
rubber ; an d second, th at they were very commo n .
Howeve r, the cour t could find 11
no rea son for
differentiat ing be twee n the se two sets of plantatio ns" . In
this manner , the court tested the reason ablene ss of the
differentia soug ht to be adopted by the legislatu re in
discriminating be twee n classes. While there was some
intelligible different ia, the different ia did not appea r to
be convincing enoug h, or reasonable. For W99 this
rea son, this case would appear to fit mo re hap pily
within the second pr ong of the court's classification test.
Howeve r, the court seemed to emp h asise with greate r
strength the abse nce of any differenti a bet ween the
classes crea ted, whi ch is why this case is analyse d un de r
this section .
Similarly, in D.S. Reddy v. Osnzania Uni'versity 114, the
ap pellan t ch allenged Section 5 of the Osma ni a
Uni ver sity (2nd Ame n dment ) Act, 1966 whi ch
ter minated his ter m as Vice Chan cellor of the univer sity
within 90 day s of the ena ctment of the law . Th e court
looked into w hethe r there was a reasonable basis to
gro up the app ellant as a class by himself eithe r in the
statu te or in surround ing circumstance s. Again , the
definition of the class w as readi ly intelligible, and
consisted of the appell ant alone. The State argue d that
the "different ia" wh ich set the appe llant ap art from the
other classes, was the fact th at a different set of law s or
"specia l featu res" wou ld apply to him. Howeve r, the
cou rt could not find any intelligible differentia on the
basis of whi ch the classification could be ju stified, an
ind ication th at it did not think the differenti a
reasonable, espe cially whe n contraste d with the court's
prev iou s opinion s in the Charanjit Lal case115 whe re the
classification of one wa s held justified.
Con cep tu ally, cases falling unde r thi s category ten d to
overl ap with th e secon d pr ong of the classification te st.
H oweve r, cases an alysed as falling un der the second
prong of the court's classification scrutiny importantly
me t two criteria : first, the class was well defined; an d
second, the creation of the class was based on pri n ciples
of general ap plicability.
3.1.2. The second prong: rational nexu s
The defining featu re of cases exami ned in this section is
that while the law challenged had a rational basis or
intelligible differentia w hich distingui shed betwee n the
group s, the differe ntia or classification di d not bear a
ratio nal or rea sonable nexu s wit h the object sought to be
achi eved by the law .
Often, the cou rt woul d find that a sta tu te sati sfied
ne ithe r pro ngs of the classification test. 116 Very rarely,
how ever, in a case involving a statut ory challenge ,
wou ld the cour t find that the first prong of th e
classification test wa s satisfied, wherea s the secon d w as
not . In most cases, the satisfaction of the first pro ng
u sually resulted in th e sati sfaction of the secon d prong
of the classification test.117
W100 In State of Bombay v. F.N . Balsara118, for examp le,
the petitione rs chall enged Section 39 of the Bombay
Prohibition Act 1 1949 whi ch au thorised the gover nment
to pe rm it the u se or cons umptio n of foreign liquor on
cargo boat s, warships, etc. in milit ary and n aval me sses
an d canteen s, while the use of liquor was othe rwi se
prohibi ted in the State . The court framed the question in
the follow ing term s:
 The que stion is whether in relaxing the ru le in favor of
warship s [etc.] ... the legislature has acted arbitrarily and
capriciously or it has proceeded here also on the basis of
reasonable classification.119
(emph asis supplied )
Wh ile the cou rt appe ared to find th at the first pro ng of
the classification test had been satisfied i.e. tha t armed
force s could be trea ted as a class for cert ain pu rpo ses, it
examine d the case throug h the lens of the second prong
of the classification test in greate r de tail i.e. whether
armed for ces cou ld be treate d as a class for the purpo se
of enfor cing prohibition. Speaking for the cour t, Fazl Ali
J held that Section 39 survived const itution al scrutiny
and was valid .
Similarly , in D.P. Joshi v. State of M .B.120, the Supreme
Cou rt was aske d to consider the const itution ality of a
rule at a State run med ical education al institution whi ch
imposed a discrimin atory cap itation fee on non-
residen ts, bu t not on resident s of the State . H old ing the
discrimin ation cons titutio nal, the cour t found th at a
classification made on a geogr aphi c ba sis wa s
reason able, an d it bore a rea son able relation to the
"laud able" State objective of promo ting medi cal
edu cation in the State. Terr itori al classifications were
similarly upheld by the Supreme Court in severa l
decision s.121
On the other han d, in Jai Lal v. Delhi Ad·mn.122, the
Supreme Court wa s asked to consider the validity of
Section 29 of the Indian Arm s Act, 1878 whic h require d
the prev iou s sanc tion of the Magistra te or Police
Commi ssioner before prosecuting offen ces in some
areas, but not in other s. The law created thi s bifur cation
on account of historica l circumsta nces which did not
exist whe n the case was being dete rmined by the cour t.
While the section was decl ared un constitutio n al, the
cour t recognised the validity of the "intelligi ble
differentia " whil e not ing th at it did no t bear a ration al
nexu s with the object soug ht to be achieved , framing the
que stion thu s:
There can be a valid classification based on a
geogr aphic al differenti a, but even then , that differenti a
n1ust be pertinent to the object of the legislation . lill 101
The sho rt que stion for decision therefo re is whether the
 differentiation ... h as any relevance to the object of the
legislation .123
Similarly, in P. Rajendran v. State of Madras124, the
pe titioners ch allen ged Rule 8 of th e rules fra med by th e
State of Madra s for admission to the MBBS program ,
which provid ed th at the reserved seats would be
allocated amo ngst the various districts on the ba sis of
the ratio of the pop ulation of each district to the total
po pulation of th e State . It is impo rtant to not e th at thi s
w as not a sta tut ory ch allenge, but a challen ge of
subordinat e legislation. Wan choo CJ empha sised that
although terri torial classifications may be readily
ascertainab le an d int elligible, in this case, the differentia
did not bea r a ration al nexu s with th e object pu rsu ed by
the law :
It is tr ue th at Article 14 doe s not forb id classificatio n, bu t
the class ification h as to be ju stified on the b asis of the
nexu s be tween the class ification an d th e object to be
achieved , even assum ing th at territori al classification
m ay be a reas on able class ification . The fact howeve r th at
the class ification by itself is re ason able is not enoug h to
su ppor t it unle ss the re is nexu s between the classification
an d the object to be achi eved . . . . [W] e do not n1ean to
say that ter rito rial classificatio n is alway s bad unde r all
circums tanc es.125
Int eresting ly, ''bright line" rules i.e. ru les which drew
almost arbitrary tim e related distinctions ba sed
typica lly on consideratio ns of expediency, wer e
ord inarily upheld on th e ba sis of the object achieved by
the law. 126 It must be emp ha sised th at bright line m ay
sometimes be inherently arbitrary, but th ey have been
he ld to have borne a ratio nal relation to the object
soug ht to be achieved by the law .
For example, in B.S. Yadav v. Central Bank of India127 , a
case w hich arose in 1987, the Supr eme Cou rt of India
tested the con stitu tional ity of an executive rule w hich
requ ired bank officers appo inted after 19 July, 1969 to
reti re at the age of 58, as distingui shed from their
colleague s ap pointed befor e the said date , whose
reti rement age w as 60. Th e rule was found to satisfy th e
classification test, since the bright line distinction (the
ap pointm ent date ) bo re a rational nexus w ith th e object
soug ht to be achie ved by the law (i.e. bank
natio nalisation). On 19 Ju ly 1969, 14 bank s in Ind ia w ere
nation alised . The object soug ht to be achieved by liJ 102
the law was bank nation alisati on. In or der to achieve
this objective, the law wo uld have ha d to secure th e
cooperati on of bank emp loyees, who were therefore
given more favou rab le ter ms th an officers ap po inted
after the date.
Bright line rule s may create classes th at are "well
define d" . H owever , they may not have or dinarily
satisfied scrutiny unde r the "why " limb of the
"intelligible differen tia" pro ng, in that they are
sometimes unr easonab le or arbitrary . H oweve r,
considerations of expe dien cy h ave been held to justify
such discrimin ation .
3.2. Evaluating the early classification doctrine
Thu s, in the context of th e nascent ph ases of
constitutio nal development in India, three observations
merit analysis: first, the court adop ted a "me ans-end "
stan dar d in its classification test.128 Significantly , in
challenging the mea ns emp loyed by the statute , the
court examined not merely whethe r the mean s bore a
ration al or rea sonable nexu s w ith th e object of the act,
but also if the mean s were ju stifiable or "reasonab le" . In
other wo rds, the court often determ ined whether the
differentia identi fied by the legislatu re was reason able
by itself, and if not, if it bore a rea sonable relation with
the object of th e law. The emph asis was also on a "well-
defined class", 129 wh ich need no t have been
11
scientifically per fect" or "logically comp lete" .130
Second, the term II
arbit rar ine ss" was u sed
synonymou sly w ith the classificatio n test,131 an d w as
limi ted to an alysis bound wi thin the confine s of equ al
pro tection un der Article 14. From a "repre sentation
reinfor ceme nt " 132 stan dpoin t, th e "arbit rarine ss" or
"classification" doctrine in the context of equ al
pro tection, was potentially legitim ate doctrinal
consequ ences of the phra se equa l pro tection" .133
11
Furthe r, "arbitrar iness" un derstoo d as classification had
textua l origins. As W 103 stated earlier , this test of
"arbitrar ine ss" or "reason ableness" seeme d related to
Art icle 19 an alysis.
Third, with in the me ans-end framewor k devised for
equa l protectio n anal ysis, the cou rt only asked whether
the ba sis of discrimin ation bore a ratio nal relation with
the object sought to be achieve d by the act, leaving
beyond the que stion of sub stantive rea sonab lenes s of
the object purs ued by the act. Th e object of the law
could , however, bolster the rea sonab lenes s of the
differenti a iden tified by the statute .
Howeve r, the opinions of two dissenting justice s viz.
Fazl Ali J (dissent in the Gopalan case134 ) an d Vivian
Bose J (in A nwar Ali Sarkar case135 ) would stand out an d
resona te with the idea s of a fu ture cour t.
Intere stingly, it is significant to unde rstand th at the
primary thru st of arbitrar ine ss" invoked in the A nwar
II
A li Sarkar case involved Article 14 of the Ind ian
Constitut ion. The observatio ns concerning
"arbitrarine ss" an d espe cially Vivian Bose J's
"reaso nable, just and fair" or "social conscience"
appro ach, were adop ted ent irely within a right to
equal ity const ruc t, with almost no empha sis on Art icle
21. Textua lly, this seems to sugge st that even if Art icle
21 were absent from the India n Constitu tion, its absence
may not have pre cluded the eventua l expansion of
Article 14 by itself .
Howeve r, at the same the time, the essential n ature of
the case invo lved in the A nwar A li Sarkar case canno t be
ignored either - this was an equal pro tection case, the
compla int wa s th at the statute wa s discriminatory an d
there fore II
arbitrary " and uncon stitutional. The
ap plicat ion of "arb itrarine ss" do ctrine to cases not
involving the right to equa lity or "equa l protection of
the laws " i.e. to cases invo lving some form of
discrimination, was not an issue before the court. Th e
factua l mat rix of the Anwar A li Sarkar case is therefore
significant to keep in mind wh ile distingui shing later
decision s which sought to app ly the "arb itrarine ss"
standard withou t equa l protect ion analysis. A pos sible
textua l ''expansio n" of Article 14, even in the absence of
an Article 21 type provi sion, wou ld have to involve an
ap plicat ion of the "arbitrariness" stan da rd to non -equal
pro tection cases.
4. Article 22 and procedural scrutiny in the Indian
Constitution
The prev ious section dwell s on how the framer s of the
In dian Constitutio n chose to inject a cert ain level of
sub stantive scru tiny into the realm of an alysis un der
Art icles 14 an d 19, and how the court s subsequently
unde rtoo k both sub stantive an d procedural review
un der Articles 14 an d 19. This part focu ses on the
court ' s analy sis of the lill 104 inclu sion by th e framer s of
the Con stitution of proce dur al rights un der Article 22 of
the Constitutio n . Despite dele ting th e lang ua ge of "due
pr ocess" from the text of Article 21 of the Constitutio n,
the framers conf err ed procedu ral righ ts against
arbit rary arr est and de tention un der Article 22. In doing
so, they appe ared to be retaini ng the "due pr ocess of
law ", stripped of its Amer ican nu an ces. Decisions in the
nascent phases of India 's constitution al develo pm ent
wo uld reveal th at the Supr eme Cour t applied hin ts of
pr ocedu ral scrutiny in cases arising un der Article 22 of
the Con stitution w ithout invo king du e proce ss
nome n clature .
In State of Bo-mbayv . At-ma Ram Shridhar Vaidya136, for
example, the Supr eme Court tested the constitutionality
of "vague " detention groun ds un der the Prevent ive
Detentio n Act, 1950 thr ough the lens of Art icle 22. In
January 1950, there was a move for a total strike on the
railways in In dia, in whi ch the respo n den t was said to
have played a prominent part. After having been
detained and released on ce before, the respo n dent wa s
detained un der the Preventive Detention Act, 1950 on
the ground that he wa s likely to be engaged in
"promot ing acts of sabotage on railway and railway
proper ty in Grea ter Bombay " . The responden t
challenged his detentio n on the pr inciple that the
groun ds offered to him were ''vague " . Article 22(5)
pro vided that a deta inee was to be given groun ds for his
detention and the earliest opportun ity to make a
repr esent ation again st the order.
Kania CJ held that the two right s provided by Art icle
22(5) i.e. commun ication of grou n ds an d oppo rtunity to
make a repr esent ation, were interrelate d, and that in
order for a representation to be able to mee t th e charge s
cont ained in the groun ds, the inf ormation conveyed had
to have been su fficient to attain th at object. Whi le the
cou rt refu sed to investigate the subjective satisfaction of
the de taining aut hority an d the sufficien cy of groun ds
for that purpo se, Kania CJ held that the grou nds were
nonetheless requi red to be "sufficient" to en able the
respon dent to make a repre sent atio n against the ord er.
In other wo rds, a distinctio n was dr awn betwee n
"vague " grou nds an d ' irrelevant" grou nds, the form er
1
apply ing w ithin the context of the ability of th e detainee
to rep resent him self, the latte r app lying to the basis
upon wh ich the autho rity reached its decision .137 It was
held th at the right to be fu rnished lill 105 groun ds on
whic h an or der of detentio n had bee n ma de w as an II
element ary right in a free democr atic state" . While
even tu ally reversing the High Cou rt' s opinion for its
emph asis on the illeg ality of the po st deprivation
rea sons offered by the de tain ing autho rity, Kania CJ
elabora ted his idea of prohi bited "vag uene ss" :
The contention that the groun ds are vague requ ires some
clarification. What is meant by vague ? Vague can be
considered as the antonym of definite' . If the ground
I
which is supplied is incapable of being understood or defined
with sufficient certainty it can be called vague .... The only
argumen t which could be urged is that the language used
in specift;ingthe ground is so general that it does not perm.it
the detainedperson to legitimately rneet the chargeagainst hirn
because the only answer which he can n1ake is to say that
he did not act as generally suggested .138
(emph asis supp lied)
Further , ever since th e court 's opinion in the Gopalan
case139 where Articles 21 and 22 we re he ld to form a
11
comp lete code " by them selves, the line s between
Articles 21 and 22 we re somew hat blurred in th e
na scent pha ses of In dia' s constitutio nal history. For
example, in Ram, Krishan Bhardwaj v . State of Delhi140
(Ram Krishan Bhardwaj), th e Sup reme Court held th at the
statement of ground s offered by an authority were no t
11
in accordan ce w ith th e procedure esta blished by law "
un de r Article 21, whe n they did no t meet the
constitu tional standa rd ag ainst vaguene ss w hich
emana te d from Article 22. Patanjali Sastri CJ in this case
he ld that the constitutio nal requ iremen t aga inst the
vag uene ss of ground s mu st apply to every groun d
offered in support of the or der of de tentio n .
On the other han d, a conflict of view s emerged in the
variou s opinion s in the Ram, Krishan Bhardwaj case,
w here the Supr eme Cou rt conside red the
constitu tionality of Section 63 of the Madhya bh arat
Pan chayat Act 1 1949. The law pr ovided th at no leg al
pr actitione r may plead for or defend any pa rty in any
disput e, case or pro ceed ing before the Nyaya Pan chay at.
The Nyaya Pan chay at, however , wa s not auth orised to
issue a sentence of imprisonmen t and thereby deprive
"per sonal libe rty", althoug h the po lice had arre ste d the
respondent un der the law . Th e question wa s w hethe r
this pr ov1s1on was constitu tionally invalid
notwi thst anding that the law did not de pr ive "person al
liberty" . In a dissentin g opinion, Sarkar CJ held that the
pr ovision was not voi d becau se the Ny aya Pan chayat
was not em powered to depr ive ''pe rsonal libe rty", and
that the rights conf err ed by Article 22 had to be read
kee ping Article 21 in mind .
Bachawat J held th at th e fact that the Nyaya Pan chaya t
coul d not issue a sentence of imp risonme nt was
irrelevant. The learn ed judg e held that th e fact that the
police had the authority to m ake arrests llJ 106 und er
their gener al powers un der th e CrPC w as sufficient to
make the claim that any arr ested pe rson has the
constituti onal right to be defended by counsel at the
trial. The law was accordingly held violat ive of Article
22(1) of the Constitu tion to the extent it denied any
person who w as arr este d, the right to be de fended by a
legal pr actitioner of hi s choice in any trial of the crime
for w hich he was arrested, notw ithstand ing the inability
of the forum be fore whi ch the trial takes pl ace to
depr ive his "person al liberty" .
Howeve r, in a separate opinion, H iday atu llah J held
that Articles 21 and 22 coul d not be considered
interrelated or interdepe n dent, an d th at Article 22(1)
ope rated irr espec tive of depr ivatio ns of "pe rsonal
liberty".
In Harildsan v . State of Maharashtra141, the Sup reme
Cou rt seemed to say that groun ds may not be va gue,
but they may be imp ermissibly incomp rehensible to the
accused . The app ellant was detai ned und er the
Preventive Detention Act, 1950, and he w as supplied th e
groun ds for his detention. Howeve r, the grou n ds were
supplied in the English langua ge, with whic h the
ap pellant wa s not conversant. The court held that th e
requ irement of commun ication coul d be satisfied only
by imp artin g to the detainee sufficient knowledge of all
the groun ds on which the or der of deten tion wa s ba sed .
It was held that the detainee oug ht to have been given
effective knowledge of the facts and circumstan ces on
w hich th e order of deten tion was based.
Similarly, th e right to be informe d of the groun ds of
arrest wa s held by the Supreme Cou rt in 1968 to be
"vital an d funda mental for safeguar ding personal
liberty in all legal system s w here the rule of law
prevai ls" . In Madhu Lin-zaye , re142 th e Supreme Cou rt
or dered the release of Madh u Limaye and other
arreste d persons for violating the pr ovisions of Article
22(1) of the Constitu tion . While highl ighting the
importance of Article 22, the court did no t u se the
wo rd s du e process
11 11
• according to p ro cedu r e establi shed b y law. "
1. On 26-1-1930 at the historic Laho re sess ion of the Indian National
Congi ·es s, the nation al flag was hoisted for the fir st tin 1e,
follo wing the declaration of " compl ete ind ependen ce" or "pun1a
sw ara j" on 31-12-1929 . See, Albert E. Kane , "TI1e De velop m ent of
Indian Politi cs" (1944) Ac ad Pol Sci 49, 61.
2. Gr anv ill e Austin , The Indian Constitution: Cornerstone of a Nation
(OUP 1999) 308 (Austin ).
3 . See, D.D. Wall ace, "TI1e Indian Consti tu tion of 1949" (1951) J Pol
269 .
4. Pre amble , Constitution of India . TI1e w ord s "s ocialist " and
" secular " were inserted in to th e Pr ean1ble to the Constitution by
the 42nd Ainendi n ent , 1976.
5 . "TI1e st ate shall not den y to an y person equa lit y befo re the law or
the equal p rotection of th e law s w ithin the territor y of Indi a."
6. "All citizens shall have th e right:
to freedom of speech and exp ression ;
to assemble pea ceably and w ithout arm s;
to form associations or ·muon s;
to move freel y throughout the territor y of India ;
to reside and sett le in an y par t of the terr it ory of India ;
to acquhe , ho ld and di spose of propert y (subsequen tly de leted
by the 44th Ainendi n ent , 1978);
to practi se an y profession , or to can y on an y occupation , trade
or bu sin ess ."
7. " No person shall be deprived of llis life or personal libert y ex cept
8. A IR 1950 SC 27.
9. M .C. Setalvad , The Indian Constitution : 1950- 1965 (U11iversity of
Bomba y 1967) 51.
10. A.K. Gopalan v . State of Madras, A IR 1950 SC 27, para 131. See
fur th er, Ram Singh v . State of Delhi, AI R 1951 SC 270 .
11. AI R 1950 SC 27 .
12 . A.K. Gopalan v . State of Madras, A IR 1950 SC 27.
13. R am Krishna. Dalmia v . Justice S .R . Tendolkar, AI R 1958 SC 538.
14. F.N. Ba.lsarav . State of Bombay, AIR 1951 SC 318. See f1trther, H.M .
Seer v ai, Cons-tutional Law of India, Vol. 1 (4th Edn . 2006) 262 .
15. N .B. Khare (Dr.) v . State of Delhi, AIR 1950 SC 211; Sta te of
R ajasthan v. Union of India, (1977) 3 SCC 592 : AIR 1977 SC 1361;
Ajit Kumar Nag v . Indian Oil Corpn. Ltd., (2005) 7 SCC 764 : AIR
2005 SC 4217; Raja R am Pa.Iv . Hon' ble Speaker, Lok Sabha, (2007 ) 3
SCC 184; A hmed Noormohmed Bhatti v . State of Gujarat, (2005) 3
SCC 647 (regar din g S. 151 of tl1e Crinlinal Pr o cedure Code , 1973).
16. S tate ofW. B. v . A nwar A li Sarkar, AI R 1952 SC 75 (per Fazl Ali J).
17. AI R 1950 SC 27 .
18. For a br ief accotmt of " abuse of discretion " in common -law
adjudic ation see, H .W.R. Wade , Ad ministra tive Law (7th Edn . 1994)
379-459 . For an acco tm t of tl1e rise of conu n on law in India , see,
 M.C. Setalvad, The common law in India (Harnlyn Lecture Series,
Stevens & Sons 1960).
19. Associated Provincial Picture H ouses v . Wednesbury Corpn ., (1948) 1
KB 223: (1947) 2 All ER 680, 683 (CA) (per Lord Greene , M.R.) .
20. (1948) 1 KB 223: (1947) 2 All ER 680 (CA).
21. M.C. Setalvad, The common law in India (Hrunlyn Lecture Serie s,
Stevens & Sons 1960) 206.
22. CAD , Vol . VII, 1-12-1948. A vailable at
<h ttp://par lirun en tofindi a.nic.in/ls/debates /vol7p 17b .htn1> last
accesse d 11-8-2009.
23. See e.g., State ofM .P. v. Baldeo Prasad, AIR 1961 SC 293; K.A. Abbas
v . Union of India, (1970) 2 SCC 780: AIR 1971 SC 481; Fa.tehchand
H imma.tlal v . State of Maharashtra, (1977) 2 SCC 6: AIR 1977 SC
1825.
24. See e.g., Raghubir Singh v. Court of Wards , Ajmer , AIR 1953 SC 373;
Virendra v. State of Punjab, AIR 1957 SC 896; P.V. Shiva.rajan v .
Union of India, AIR 1959 SC 556; State of Maharashtra. v .
H imma.tbha.i Narbhera.m Ra.a,AIR 1970 SC 1157; A.P. Crain and Seed
Merchants Assn. v . Union of India., (1970) 2 SCC 71: AIR 1971 SC
2346; Nawabkha.n Abbask han v. State of Gujarat, (1974) 2 SCC 121:
AIR 1974 SC 1471.
25. See, N .B. Kha.re (D r.) v . State of Delhi, AIR 1950 SC 211; State of
Madras v . V.G. Row, AIR 1952 SC 196; Kishan Chand Ai·ora v.
Commr . of Police, AIR 1961 SC 705.
26. See e.g ., K.K. Kochuni v . States of Madras and Kera/a, AIR 1960 SC
1080: (1960) 3 SCR 887.
27. See e.g ., Saghir Ahmad v. State of l.1.P., AIR 1954 SC 728 (per
Mukherjea J holding tha t the classification shou ld not be
ru·bi tr ary bu t m ust bear a re asonable relation to the object sough t
to be ad tieved ).
28. See e.g., All India Bank Employees ' Assn . v. National Industrial
Tr ibunal, AIR 1962 SC 171 (regarding w hether S. 34-A of the
Bruu<lng Cornpruues A ct, 1949 confe rr ed arbit r ary powers on
bank s).
29. See fur ther , / . Y. Kanda/a R a.av . A.P. SRT C, AIR 1961 SC 82.
30. 1950 SCR 759.
31. See further , D warka. Prasad La.xmi Na.rain v . State of 1.1.P., AIR 1954
SC 224; Lord Krishna. Sugar Mills Ltd. v. Union of Ind ia, AIR 1959
SC 1124; K.K. Kochun i v. States of Madras and Kera/a, AIR 1960 SC
1080: (1960) 3 SCR 887; Manekla.l Chhotalal v . M.G. Ma.kwa.na, AIR
1967 SC 1373; State of Maharashtra v . H imma.tbhai Narbheram Ra.a,
AIR 1970 SC 1157; State of Biha.r v. Ka.mla Kant Misra, (1969) 3 SCC
337: AIR 1971 SC 1667.
32. State of Bihar v. Kamla. Kant Misra., (1969) 3 SCC 337: AIR 1971 SC
1667, p ara 8.
33. AIR 1952 SC 196.
34. Tius state me nt ma y have been one of the Indiru1 Supre m e Cotut ' s
earliest expressions of "proportionalit y" ru1alysis .
35. Ibid, pai ·a 16.
36. AIR 1959 SC 300.
37. Ibid, pai ·a 5.
38. 1950 SCR 759.
39. AIR 1962 SC 1476.
40. Ibid, para 28. 62 . See e.g ., State of Maharashtra v. Chandrabhan Tale, (1983) 3 SCC 387 :
41. AIR 1954 SC 747. AIR 1983 SC 803; Port of 1\tfadras v. Am inchand Pyarelal, (1976) 3
42. Ibid, para 4. sec 167: AIR 1975 SC 1935 .
43. AIR 1954 SC 229. 63. See e .g ., Air India v. Nergesh Meerza, (1981) 4 SCC 335 : AIR 1981
44. Ibid, para 6. SC 1829; Indian Council of Legal Aid and Ad vice v . Bar Co11ncil of
45. AIR 1961 SC 552. Ind ia, (1995) 1 SCC 732 : AIR 1995 SC 691.
46. Ibid, para 8. 64. For an accotu 1t of the rise of "proportionalit y" in India , see,
47. See furth er, Rai Ramkr ishna v . State of Bihar, AIR 1963 SC 1667 Ashish Chugh, " Is the Sup re1ne Court Disp r oportionate ly
(en1phas ising the in1portance of "p r ocedural machinery" for App lying the Pr oportionality Princip le" (2004) 8 SCC (J) 33 .
assess 1nent and levy of tax ). 65. AIR 1950 SC 27 : 1950 SCR 88.
48. AIR 1961 SC 1602. 66. See, B11dhan Cho11dhry v. State of Bihar, AIR 1955 SC 191: 1955 Cri
49. Ibid, para 27. LJ 374; Kedar Nath Bajoria v. State of W.B ., AIR 1953 SC 404.
50 . Ibid, para 28. 67. Ram Krishna Dalmia v. J11sticeS .R. Tendolkar, AIR 1958 SC 538 .
5 1. AIR 1961 SC 293. 68. See fu1ther , B.S. Yadav v . Central Bank of India, (1987) 3 SCC 120:
52 . AIR 1962 SC 1371. AIR 1987 SC 1706, wh ere the Supre 1ne Court of India tested the
53 . AIR 1967 SC 829. constitutionality of an executive rule whic h r equ ir ed bank
54 . Ibid, para 11. officers appo in ted after 19-7-1969 to r etire at th e age of 58, as
distinguis h ed fro 1n the ir colleag ues appointed befo re th e said
55 . AIR 1967 SC 1373.
date , whose r etire 1nent age was 60. TI1e ru le was fotu 1d to satisfy
56 . Ibid, para 52.
the class ification test , since th e intelligible differentia (th e
57 . (1974) 2 sec 121: AIR 1974 SC 1471.
appoinh n ent date ), bore a rational nexus w ith the object soug ht
58 . Ibid, para 7.
to be achieved by the law (i.e. b ank n atio nalis ation). 19-7-1969
59 . 1950 SCR 759 . was the date on whicl1 14 ban k s in India we re nationalised . TI1e
60. See e.g., Rohtas Indust ries Ltd. v . S.D. Agarwal , (1969) 1 SCC 325 : object sought to be achi eved by th e law was bank nation ali sation.
AIR 1969 SC 707; Barium Chemica.ls Lt d. v . Company Law Board, h1 order to achieve thi s objective , the law wo uld h ave h ad to
AIR 1967 SC 295 . secu re the cooperatio n of bank e1np loyees , wh o we re th er efore
61. See, Jacob Mathew v. State of Punja b, (2005) 6 SCC 1: AIR 2005 SC given 1nor e favo r able tern1s th an office rs appointed after the da te .
3180 .
69. AIR 1964 SC 179. State ofW.B ., AIR 1953 SC 404.
70. See e.g., Dhakeshwari Cotton Niills Ltd. v . CIT, AIR 1955 SC 65 78. AIR 1952 SC 75.
(classifying tax proceedings as quas i-jud icial). See further, M.P . 79. 1l te Olief Justi ce of India, Patanjal i Sastr i CJ dissented . Da s J
Jain et al., Adm inistrative Law (4th Ecin. 1986) 179- 218. partia lly dissented.
71. See e.g ., Dwarka Prasad Laxmi Narain v. State of' U.P ., AIR 1954 SC 80. Ibid, p ,ua 53.
224; See further, M.P . Jain et a.I.,Ad ministra tive Law (4th Edn . 1986) 81. See ftuther , Madhubhai Amathalal Gandhi v . Union of Indi a, AIR
26- 59. 1961 SC 21.
72. This distinction ha s bee n briefi y discussed by Patanjali Sash·i CJ 82. State of'W. B. v . A nwar Al i Sarkar, AIR 1952 SC 75.
in Kedar Nath Bajoria v. State ofW .B., AIR 1953 SC 404, 407. 83. See fur ther , Bidi Supply Co. v . Union of India, AIR 1956 SC 479
73. See further , Lachmanda.s Kewalra.m Ah uja v. State of Bom bay, AIR (partl y concurr ing opillion of Bose J).
1952 SC 235; Suraj Mall Mohta & Co. v. A.V. Visvanath Sastri, AIR 84. State of'W. B. v . A nwar Al i Sarkar, AIR 1952 SC 75.
1954 SC 545; Kangshari H aldar v . State of W. B., AIR 1960 SC 457; 85. Ibid.
Karimbil Kunhikoman v . State of Kerala, AIR 1962 SC 723; Karim bil 86. 49 L Ed 937: 198 US 45 (1905).
Ku nhikoman v. State of Kera/a, AIR 1962 SC 723; P. Vajravelu 87. AIR 1952 SC 123. See further , Gopal Narain v. State of U.P ., AIR
Mudaliar v. Collector (L.A .), AIR 1965 SC 1017. 1964 SC 370 (holdh tg that "the Uttai· Pradesh M"Lulicipalities Act,
74. See e.g., D.S. Reddy v. Osman ia University, AIR 1967 SC 1305; 1916, affords an indication of th e 'person or clas s of pe rsons'
Lachmanda.s Kewalra.m Ah uja v . State of' Bombay, AIR 1952 SC 235; liable to pay tl1e tax ") .
Kangshari H aldar v. State of W.B ., AIR 1960 SC 457; Karim bil 88. Ibid, 126.
Ku nhikoman v . State of Kera/a, AIR 1962 SC 723. 89. Ibid, 128.
75. See e.g ., State of Punjab v. Aja ib Singh, AIR 1953 SC 10; Mohd. 90. Ibid, 131.
H an~f'Quareshi v . State of Bihar, AIR 1958 SC 731. 91. Ibid, 132.
76. See e.g ., Jyoti Pershad v. UT of' Delhi, AIR 1961 SC 1602; Joseph 92. Ho weve r, i11tuitively , tl1e wo r d "rational " implies greater
Kuru villa Vellulwnnel v. RBI , AIR 1962 SC 1371; A.P. Grain and
defe rence to the legislahu-e , while "rea sonable" conveys a
Seed Merchants Ass n. v. Union of India, (1970) 2 SCC 71: AIR 1971 sh'onger judicial exanlination.
SC2346 . 93. AIR 1952 SC 123.
77. State of W .B. v. A nwar Al i Sarkar, AIR 1952 SC 75; Kathi Raning 94. See e.g ., State of Punja b v . A jaib Singh, AIR 1953 SC 10.
R awat v. State of Saura.shtra, AIR 1952 SC 123; Kedar Na th Bajoria v.
95. See e.g ., Lachhman Dass v . State of Punja b, AIR 1963 SC 222.
96. See e.g., 1\tfatajog Dobey v . H .C. Bhari, AIR 1956 SC 44. Tius 115. AIR 1951 SC 41.
catego ry would also include distinctions based on whe ther the 116. See e.g., D .S . Reddy v . Osmania Universi ty, AIR 1967 SC 1305;
Sta te or private parties are involved. See e.g., M anna Lal v. Lachmandas Kewalram A huja v. State of Bom bay, AIR 1952 SC 235;
Collector of Jha.lawar, AIR 1961 SC 828. Kangshari H aldar v. St ate of W .B., AIR 1960 SC 457; Karimbil
97. See e.g., Gul amahamed Tarasah eb v. St ate of Bom bay, AIR 1962 Born. Kunhikoman v . St ate of Kerala, AIR 1962 SC 723.
97. 117. See e.g ., Mo han/a.IJain v . Sa.wai M an Singhfi, AIR 1962 SC 73.
98. See e.g., Sikand er Jehan Begum v . A.P . St ate Gov t., AIR 1962 SC 996. 118. AIR 1951 SC 318: (1951) 53 Born. LR 982.
99. M.P . Singh , V N . Shu kla's Cons titu tion of India (8th Ed.n. Eastern 119. Ibid, para 41.
Book Com pany ). 120. AIR 1955 SC 334.
100. Prabhakar R ao H . M awle v . St ate of A .P., AIR 1965 SC 1827. 121. See e.g., Kishan Singh v . State of Rajas than, AIR 1955 SC 795;
101. A n thony , re, AIR 1960 Mad 308. Purshottam Gouind H alai v. B.M . D esai, AIR 1956 SC 20; Ram
102. H arman Singh v. RTA , Calcutta R egion, AIR 1954 SC 190. Chand ra Palai v. St ate of O rissa, AIR 1956 SC 298.
103. Tite sta tutory provision survived means -end analysis . Bashisha t 122. AIR 1962 SC 1781.
Chand R ai v. R adhika Devi, ILR 1951 Ptmj 470. See, H.M . Seervai , 123. Ibid, para 8.
Consti tu tion a.l Law of India, Vol. 1 (4th Ecin. 2006) 499. See ftuther , 124. AIR 1968 SC 1012.
M ohan/al Jain v. Sawai M an Singhji, AIR 1962 SC 73. 125. Ibid, paras 11- 13.
104. AIR 1951 SC 41. 126. See e.g., Ramjil a.l v . !TO , AIR 1951 SC 97; Sardar lnder Singh v.
105. Ibid, para 20. St ate of Rajas than, AIR 1957 SC 510 (upholding a law wlucl t
106. AIR 1953 SC 91. ilnposed restr ictions on land lor ds who had tenants on 1-4-1948,
107. Ibid. as distilt guished from others ); 1\tfohd . Saheb M ahboob M edico (Dr .)
108. Ibid, para 11. v. Cus todian Genera.I, AIR 1961 SC 1657; Sikander Jehan Begum v.
109. Ibid, para 14. A.P . St ate Gov t., AIR 1962 SC 996; Roshan Lal Me hra v. lshwar Dass,
110. AIR 1952 SC 75. AIR 1962 SC 646; D alip Singh v. R akha Ram, AIR 1960 Ptmj 176.
111. Ibid. But see, D .S . Nakara v . Union of India, (1983) 1 SCC 305; B.
112. AIR 1962 SC 723. Prabhakar R ao v. State ofA.P ., 1985 Supp SCC 432.
113. Ibid, para 24. 127. (1987) 3 sec 120: AIR 1987 SC 1706.
114. AIR 1967 SC 1305.
128. While the court would som.eti m.es use th e w ord " reasonable " rep r esen tation , not with standing th at th ey we r e not as precise or
in ter drnngeab ly wit h r atio n al, th e app li ed standard n one the less definite as desired . See, R am Singh v . State of Delhi, AIR 1951 SC
r ese mbl ed a rationali ty standard . 270; Lawrence Joachim Joseph D 'Souja v . Bombay, AIR 1956 SC 531;
129. See e.g ., Sakhawat A li v . State of O rissa, AIR 1955 SC 166. Shamrao Vishn u Pamlekar v . D istrict 1\tfagistrate , Thana, AIR 1957
130. Kedar Na th Bajoria v . Sta te ofW. B., AIR 1953 SC 404. SC 23; Puranlal Lakhanpal v . Union of Ind ia, AIR 1958 SC 163;
131. See fur th er, S tate of M .P. v . Bhopal Sugar Indus tries Ltd ., AIR 1964 Naresh Chandra Ganguli v . State of W .B., AIR 1959 SC 1335.
SC 1179 (holding th at " differential treatn1en t beco 1ne s unla w fu l 138. Ibid, para 16.
onl y w hen it is arbitrar y or not supported b y a r ational relation 139. AIR 1950 SC 27: 1950 SCR 88.
w ith the objec t of th e sta tu te"). 140. AIR 1953 SC 318.
132. See, Jolu 1 H art Ely, D emocracy and D istrus t (Harva rd Universit y 141. AIR 1962 SC 911.
Press 1980) 18 (arguing th at a court w hid 1 p rotect s "d isc1·ete and 142. (1969) 1 sec 292.
in sular nunorities " which are definitionall y unable to participate
in the political process to the san1e extent as ma jorities ,
legitiin atel y exe r cises po wer ); See fu rthe r, Un ited States v .
Carolene Produc ts Co., 82 L Ed 1234: 304 US 144, (1938) n . 4 (per
Stone J en1phasising th e import ance of prote ctii1g " disc r ete and
in sular nunor ities ") .
133. See, Joseph Tuss 1n an and Ja cobus tenB r oek , "The Equal
Prote ction of th e Law s", (1949) 37 Cal L Rev 341; Polyvios G .
Polyv iou , The Equal Protection of the Laws (Du ckw orth 1980) 35-
57.
134. AIR 1950 SC 27.
135. AIR 1952 SC 75.
136. AIR 1951 SC 157.
137. See ftuther , Tarapada De v . Sta te of W. B., AIR 1951 SC 174;
Shibban La.ISaksena v . State of U.P ., AIR 1954 SC 179. The gr ou nd s
funli sh ed w ere s01n etin1es held to have been sufficient to 1nake a

V. The Birth of Procedural
lil 107 Due
Proce ss
THIS CHAPTER CHART$ llfHE OFPROCEDURAL
proc ess" doctrine in Indi a. Contr ary to popular beliet
cases in the 1970s did more for "pro cedu ral du e
proc ess" th an they did for "substantive due pr ocess"
doctrine. It is given in the thesi s of thi s section that thr ee
histor ical circum stan ces spu rred the court's du e pr ocess
doctrine in the 1970s. First, spurr ed by Subba Rao J's
doub ts about th e rigidity of the A.K . Gopalan v. State of
Madras1 (Gopalan), in th e int erpr eta tion of fun dame nta l
rights, th e Supr eme Court discar ded the rigid ba rr iers
betwee n fun da men tal rights in Rustom Ca'VasjeeCooperv.
Union of India2 (Cooper), a phen omenon that culmin ated
in Kesavananda Bharati v . State of Kerala3 (Kesa'Vananda
Bharati commonly know n as Basic Structure case), whe re
the court derived the ''essen ce" of the Indian
Con stitu tion, much in th e same way that Frankfu rter
and Cardozo IThad advo cate d in th e federal sta te due
pr ocess cases. The Basic Structure casema rked th e court' s
increasing efforts to secu re its own juri sdiction and
jud icial access. For this reason, it safeguarded
pr ocedu ral due pr ocess int erests. Second, du ring the
Emergency , the Supr eme Cour t wa s unab le to fulfil its
DUE jud icial access aspir ation s of th e Basic Structure case and
conseque~ tly w~s-unab le to_secur e its ow n jurisdiction .
The cou rt ~ 11leg1t~macy dun ng the E~~rge n cy offered a
moral ba sis for 1t to adop t an achv1st stan ce. Third,
spu rred by Khann a J' s dissentin g opini on in AD M,
Jabalpur v. Shivak,ant Shukla4 (Habeas Corpus case), an d its
own illegitim acy du ring lll 108 the Emerg ency, the
Supreme Cou rt adop ted a "new" app roach to equal
pr otection analysis, which derived the pr inciple of
"arb itrar ine~s'~as the core or essence of "equa lity" in a
ma nne r rem1n1scent once mo re of the app roach adopted
by Frank furter an d Cardozo IT- Th e cou rt' s pr oced ural
du e proc ess opinions secure d two prin cipl es - judi cial deprivations and not ' due" or fair pr ocess. Therefore,
1

access and natur al justic e. by reading th e value of ' pr ocedu ral due proc ess" into
1

The Sup reme Court's opinio ns in thi s era articu lated a
bro ad arb itrar iness" stan da rd . In th e early years of th e
II
11
cou rt' s history, the ter m arbitrary " was used
synony m ously with ' unr easonable" under Article 19
1
w ith the classification test un der Article 14 analysis. In
the late 1970s, th e Suprem e Court advoca ted a new
11
arbitrarine ss" test whi ch was substa ntive in chara cter
since it would also app ly to Article 21. H ow ever, this
stan dard was app lied only to safegua rd proc edu ral du e
proc ess interests again st gov ernm ent authorities.
Procedur al du e pr ocess doctrine in Indian constitu tional
law h as culminate d in two pro ced ural rights - the right
of jud icial access, an d th e right of ' natura l ju stice" i.e. of
1
the Indian Constitu tion, an d de fining the content of
proc edu ral fairnes s, Indian courts wou ld substant ively
creat e a right or constitu tional valu e w here none had
existed, even going aga inst the original intent of th e
fra me rs of th e In dian Constitu tion . Th is ch apter
examines how th e pr inciple of ''arbitrar ines s" evolved
in Indian constituti on al jurisprud ence in the pe riod
lead ing u p to th e 1980s an d how it did little more than
safeguard pro ced ural due process right s again st
legislativ e enac tme nts, while reiterating comm only
ap plied administrativ e law standard s aga inst executi ve
au thorities.

1. Harmonious construction
notice and hear ing . H ow ever, ' proc edu ral due proc ess"
1

doctrine in Indian constituti onal law w as ironi cally itself Almost a decade after the Gopalan case6, in K.K. Kochuni
an eman ation of sub stantiv e du e pr ocess doctri ne.5 This v. States of Madras and Kerala7 (Kochuni), the Supre me
is becau se the du e process" clau se ha d sp ecifically
II
Court whi le interpr eting the liJ 109 pr operty prov isions
been delete d by the framers of the Indian Constituti on of the Indian Constitu tion, doub ted th e int erpr etatio n
from th e text of the right to life and person al liberty
pla ced by the Gopalan case8 court u pon Articles 19 and
un der Article 21. Article 21 consequently requi red mere
21 of th e Indian Constitut ion. Subba Rao J speak ing for
' pr ocedu re established by law" to facilitate liberty
1
th e m ajori ty, in dica ted that if th e issu e ha d b een "res
11
in tegr a", some of u s wo uld have b een in cline d to ag ree
wi th the d issen ting view exp ressed by Fazl Ali J"9 but
n oted th at the opinio n in the Gopalan case wa s bindi n g
on th e cou rt. The cou rt wa s called upon to con side r
whet h er th e word "law " in th e erstw hi le Article 31 of
th e Ind ian Con stitution incl ud ed th e oth er fun d amen tal
right s provi d ed unde r Part III of the In d ian
Con stitutio n, an d in pa rticu lar, w h ethe r it inclu ded the
er stw hile Article 19(1)(/) i.e. th e right to " acqu ire, hol d
an d dispo se of p ro p erty ". Subb a Rao J spea king for the
ma jority, b elieve d that it d id .
Fun dan1ent al rights have a tran scendental po sition in the
Constitution . . . every attempt sho u ld be made to
h armon ize the two article s so as to make them coexist,
and only if it is not possible to do so, one can be ma de to
yiel d to the other .... It follows that the law depriv ing a
per son of his p rop erty will be an inv alid law if it
infringe s either Article 19(1)(t) or any other Article of
Par t III.10
Only a few yea rs later, in Kharak Singh v. State of U.P. 11
(Kharak Singh), the Suprem e Cou rt wa s aske d to
con side r the con stitutio nal ity of Regu lation 236 of the
Utta r Prade sh Poli ce Regu lations which pe rmitte d the
poli ce to m ake nigh tly domicili ary visits to the
pe tit ion er. While ho ld in g th at th e law viol ated Article s
19(1)(d) an d 21 of the Con stitutio n, Subba Rao J re-
exam ined th e scop e of the overlap be tween Articles 19
an d 21. In terestingly , th e Bench in thi s case con sisted of
six m em b ers, an identical n um ber to the Gopalan case.
[Articles 19(1)(d) an d 21] are distin ct fun damenta l right s.
No doub t the exp ression "person al liberty" is a
comp rehen sive one an d the right to move freely is an
attri bu te of person al liberty . It is said th at the freedom to
n1ove freely is carved out of per son al liberty an d,
therefore , the expre ssion "person al liberty" in Article 21
exclud es that attribute . In our view, this is not a correct
approach. Both are independent fun dan1enta l right s,
thoug h there is overlapp ing . There is no question of one
being carved ou t of another. The fun dan1ental righ t of life
an d person al liberty h as many attributes and some of
them are foun d in Article 19.12
(en1pha sis supp lied)
Going a step fu rthe r, Subba Rao J id en tified th at a righ t
implica ting two fu n da me n tal right s would have to
satisfy the textu al p rerequi sites of bot h righ ts. In othe r
word s, it wa s he ld tha t the law wou ld n ot mere ly h ave
to satisfy the "pr ocedu re establi sh ed by law "
requirement , bu t llJ 110 also th e "re ason ablen ess"
requirement if it concerne d a righ t affectin g bot h the
right to free d om u n de r Article 19 an d perso n al libe rty
un d er Art icle 21:
If a person' s fun damental right under Article 21 is
infringe d, the State can rely upon a law to sustain the
actionj but th at cannot be a comp lete answer un less the
said law satisfies the test laid down in Article 19(2) ... . In
other words, the State m:ust satisfv that both the fun damental
rights are n ot infringed by showing that there is a law and that
it does amoun t to a reasonable restriction with in the
meaning of Article 19(2) of the Constitu tion .13
(emph asis supplie d)
A few years later, Subba Rao J wo u ld sub stan tiate his
doubt s ove r th e view expres sed by Da s J" an d his
11
belie f th at it was not the last wor d on th e subject " once
11
m ore in State of Maharash tra v . Prabhakar Panduran g
Sanzgir i 14 . Th e case dea lt with a m an wh o wa s deta in ed
by th e Gove rnmen t of Mah ara shtr a un de r th e Defen ce
of India Rule s, 1962, who w an ted to h ave his
ma n u script on quant u m theo ry p ubli sh ed du ring
d eten tion . Th e gove rnm en t concede d th at th e
ma n u script wa s n ot prejud icial to the objects of the law ,
but th at it wa s n ot requi red by the law to pe rmit the
d etainee to pub lish book s whi le in de ten tion. H olding
th at th e d etainee was en titled to h ave his ma n u script
p ub lishe d, Subba Rao J articu lated the "five distinc t
line s of th oug h t" for reconciling Ar ticle 21 with Article
19:
(1) if one loses his freedom by deten tion, he loses all the
other attr ibu tes of freedom enshrined in Art icle l9 i (2)
person al liberty in Article 21 is the residue of personal
liberty after excluding the attributes of tha t liberty
embodied in Art icle l 9i (3) the personal liberty included in
A rticle 21 is wide enough to include some or all of the
free don-zsmen tioned in A rticle 19, but they are two distinc t
fundamen tal rights-a law to be valid shall n ot infringe both the
1 1
rights; (4) the expression ' law in A rticle 21 means a valid
'
law and, therefore, even if a person 's liberty is deprived by law
of detention, the said law shall n ot infrin ge Article 19 and (5)
Article 21 ap plies to procedu ral law, whereas Article 19
to substantive law relatin g to personal liberty . We do not
 propo se to pur sue the n1atter further or to expre ss our
opinion one way or other. We have only mentioned the
said view s to show that the view expressed by Das, J., as
he then was, in A.K . Gopalan's case15 ... is not the last
wor d on the subject.16
(emph asis supplied )
Subba Rao J's view s in these cases cast con siderabl e
dou bt on the Gopalan case17 "object" app roach to
constitu tional an alysis, where laws W 111 wo uld be
tested solely on the ba sis of wh ich rights th ey we re
inten ded to infr inge .
On 19 July 1969, th e Gove rnme nt of In dia centralised
the comme rcial banki ng system by passing of the
Banking Compa ni es (Acquisition an d ~r ansfer of
Unde rtakin gs) Ord inan ce, 1969. The ordin ance was
soon replaced by the Banking Compani es (Acquisition
and Transfer of Un dertaking s) Act, 1969. Fourteen
major bank s were natio nal ised in th e hop e th at the
Reserve Bank of In dia would gain greater control over
bank ing activity. Prime Minister Indira Gan dhi declared
that the Sta te's objective wa s to "accelera te
develop ment ", add ress "problems of pover ty an d
un employ ment", and to progressively redu ce "regio nal
disp arities" .18
Agg rieved by these State action s, the Di~ector of the
Centr al Bank of In dia, Rustom CavasJee Coope r,
broug ht an action to challenge the constitu tionali ty of
the statute. While inv alida ting 19 the law , in the Cooper
case20, th e Supreme Court of India took the observat ions
of Subba Rao J observe d in the cases of Kochuni21 an d
Kharak Singh22 a step furt he r and foun d itself unab le to
agree wit h its form er po sition in th e Gopalan case
rega rding the mutu ally exclusive na tu re of fun da ment al
rights. The Ben ch in this case w as compo sed ~f- 11
jud ges, nearly do ubling the Gopalan case com r ~s1t1on .
While interpreting the erstw hile pr ope rty prov1s1ons of
the In dian Constituti on once mo re, the court found that
referen ces to "law" in Article 31 had to be un de rstoo d
keeping the fund am ental rights of Part III in mind . Th e
stage h ad bee n set for a fluid un derstan ding of
funda me ntal rights, w hich gave rise to the
II
assimil ationi st approac h or th e golden triang le" in the
cases that followed. J.C. Shah J (as he then wa s)
articulate d this phi losophy:
 Par t III of the Constitution weaves a pattern of
guarantees on the text ure of bas ic human right s. Th e
guarantees delim it the pro tection of those righ ts in their
allotted fields: they do not attemp t to enunciate distinct
rights . . . . In our ju dgmen t, the assu n1ption in A .K.
Gopalan's case23 ... th at certa in ar ticles in the Cons titu tion
exclusively deal wit h specific n1atters . . . cannot be
accepted as correct .24
W 112 In the Gopalan case251 it ha d been held that th e
constituti onality of an action would be me asured
accord ing to the object of the law. For example , if a law
had preventive de tentio n as its object1 it would be
assessed from the po int of view of Article 221 but not
Articles 14 or 19. H owever , the "object" test wa s
repla ced in the Coopercase26 by the "effects" test, under
which a law woul d be meas ured by whic hever
constitu tional prov ision s it inherently invo ked - not by
its object1 but by its effect. The "effect" app roach
mirr ored Subba Rao J' s conce rns articulate d in cases
thr oug hout the 60s.
[Preceden t den 1onstra tes th at] it is not the object of the
authori ty making the law im pairing the righ t of a citizen 1
n or the form of action that determines the pro tection he
can claim : it is the effect of the law and of the action upon the
right which attract the jurisdic tion of the Court to gran t relief.
If this be the true view , an d we think it is1 in de termin ing
the impact of State action u pon Consti tu tion al
guarantees w hich are fun dame ntat it follows th at the
exten t of pro tection agai nst impairment of a
fundan1ent al right is de termined not by the object of the
Legisl ature nor by the form of the action , but by its direct
operation upon the individual's righ ts. We are of the view
th at the theory that the object and forn1 of the State
actio n de termine the exte nt of pro tection which the
aggrieved p arty n1ay claim is not cons istent wi th th e
Constit u tional scheme .27
(en1phasis supp lied)
H owever , the ter minology of th e "effects te st" doe s tend
to create some confusio n . In articulating the "effects
te st" the court did not seem to be distin gui shing
between "facial" an d "as applied " cha llenges. In other
wo rds, the court did not seem to be saying in the Cooper
case that a law whi ch was "facially" valid would
never the less be invali dated if it we re un con stitutional
11
as app lied" or according to its factu al effect. Rather1 the
cou rt seemed to hold that the constitut ional "test" to be
invoke d would dep end on the righ t that th e law
effectively infringed (whethe r facially or otherwise), not
the right whi ch th e law' s object dealt wit h. For example ,
assume th at Parli am ent enact s law X wh ich is entitled
"Prev ent Detent ion Act" . Assume furth er th at law X is
facially valid, but th at the law is used more against men
than it is ag ainst wo men in its appli cation . Th e Sup reme
Court in the Coopercase did not fur nish gro un ds for a
cou rt to invali da te law X as app lied. Rath er, by the
Coopercase reasonin g, desp ite the fact th at law X dealt
wi th prev entive detention, Article 14 cou ld be used in
addi tion to Article 22 to deter mine its constitut ional ity .
In othe r wo rds, th e "effect" of th e law would be u sed to
dete rmin e which const itutio nal provision appli es to the
case, not how constitut ional or un constituti onal the
action is. In fact, Ind ian courts hav e period ically held
that a law will not be inva lid if it is abuse d as lill 113
app lied. Rather, an un constitu tional exercise of
statu tory power s will be invalidat ed . In th e Coopercase,
the cou rt adv an ced a fluid un derstan ding of
constituti onal rights, articulating its willin gnes s to
invoke overlapping constitut ional prov ision s.
2. Birth : judicial access
The do ubts expr essed by Subba Rao J aga inst the
Gopalan case28 cour t's rigid view of fun da mental right s
ha d culmin ated in the court 's opin ion in 1970 in the
Cooper case29, wh ere funda mental rights w ere
acknowledg ed as having a mall eable existence. The
stage h ad bee n set for a fluid un derstan ding of
funda me ntal righ ts, as cou rts in the early 70s wou ld
invoke th e "ba sic" pr inciples, featu res or de rivabl e
"stru ctu re" of the Cons titut ion, to att empt to prot ect it
fro m con stitu tional overha ul. Howev er, alth oug h
constitu tional doctri ne in the early 70s w as articulated
upo n a br oa d premise, rather th an creat ing sub stantiv e
no rm s, it heralded the birth of pro ced ural du e pr ocess,
as cour ts atte mpted vigilantly in this p eriod to
safeguard the right of judi cial access. Up til th e cou rt' s
opin ion in the Habeas Corpus case30 thi s empha sis on
jud icial access punctu at ed the court' s reasoning .
2.1. The "Basic Structure case"
A few years after the court' s opin ion in the Coopercase,
in 1973, the Supre me Cou rt w as asked to consid er the
valid ity of constitutional amen dmen ts th at tampered
with the fundamental right to prope rt y. Provision s of
the Con stitution could be amended by Parliament unde r
Article 368 of the Constitutio n, a power included in the
Constitut ion's text to overcome the II
coun ter-
major itarian "31 pro blem of constitution s generally.
Some provi sion s of the Indian Con stitu tion were
entrenched and subje cted to amendmen t with greate r
difficulty. Accordingly su ch provi sions, largely dea ling
with federal State issue s, could only be amended by
ratification of one-half of the States.32 Significantly, Part
III lill 114 of the Con stitu tion i.e. the Chapter on
"Fundamental Righ ts", coul d be amended without
ratification of the States, and consequently its
amendme nt wa s relat ively str aightforward. In the Basic
Structure case33 , the petit ioner , repre sented by an
advo cate who would sub sequently atta in near
legen dary stand ing, Na ni Palkhivala , reque sted that the
Supreme Cour t entrench the Chapter on "Fundamental
Right s" in the Ind ian Constitut ion and ho ld that the
right to proper ty wa s a part of its unamendable "ba sic
structure ".
The case deal t with the constitutio n ality of the 24th,
25th an d 29th Amendmen ts to the In dian Con stitut ion,
an d cent red aro un d the fundamental right to property
an d amendment s to the Kerala Land Reform s Act, 1963.
The 24th Amendme nt permitted Parli amen t to ad d to,
vary or repe al any prov ision of the Con stitut ion, while
prohibiting cou rts from que stioning the
constitu tion ality of constitu tional amendment s un der
Art icle 13. The two operative sections of the 25th
Amendme nt dealt with differen t prov isions of the
Con stitu tion . Section 2 of the 25th Amendment enabled
the compul sory acqu isition of proper ty "for an amoun t
wh ich may be fixed " by law , the adequacy of which
could not be que stioned by any court. Section 3 of the
25th Amendment pre sented a lill 115 more puzzl ing
que stion - it insert ed Art icle 31-C into the Con stitu tion ,
wh ich provided that no law containin g a de clarat ion
that it wa s meant to give effect to the po licy of the State
specified in Article 39(b) and (c)34 of the Constitutio n
could be challenged on the ground that it di d not give
effect to such po licy. The 29th Amendment inserted the
1969 and 1971 ame ndmen ts to the Kerala Lan d Reform s
Act, 1963 into the IXth Sche du le to the Constitut ion.
 In a serie s of op inion s35 spanning two de cade s1 the
Supreme Cour t had de alt wi th the que stion of whe ther
con stitutio na l ame ndme nts could be tested by courts. In
order to reconsider its pre viou s op inio ns on the
con stitutio na lity of constitut ional ame ndment s/ a spe cial
Bench of 13 justice s wa s con stitu ted to hear the case1 in
order to beat the strength of the previou s case36 on
point which wa s de cided by 11 judge s. Although the 11
opinion s delivered after a 66 day heari ng in the
Kesavananda Bharati case37 appe ared to have de cided
que stions of sub stantive review of const itutional
amendme nts by a slim 7 : 6 majority1 it is the the sis of
this section that the theory un derlying the cour t's
de cision v iz. th at of pro cedura l due pro cess1 gained the
acceptan ce of the majority on the court.
The pet itioner argued th at the Constitut ion had a
"ba sic stru cture " or certain un alterable basic feature s
which cou ld no t be ame nded altered or de stroyed by
1 confer red upon the In dian Con stitutio n .
con stitutio na l ame ndment. It wa s sugge sted that the
rig ht to property wa s a part of the ba sic stru ctu re of the
Constitut ion. On the other hand 1 the Advo cate General
of the State of Mahara shtra and no te d constitutional
scholar 1 H.M . Seervai , argued that the "b asic stru ctu re"
argume nt requ ired courts to look to a nebu lou s "spirit "
of the Constitut ion, a po sition ominously close to the
"due proce ss" clau se of the American Con stitution/
w hich the framer s of India 's Con stitu tion ha d expre ssly
deleted.
By a slim 7 : 6 majority 1 the court accepte d the
argume nt that the Constitution had an "uname n dab le"
or entren che d "ba sic stru ctu re" . In articula tin g th at
there were "essenti al" or "ba sic" featu res of the
Con stitu tion whi ch were not specifically enumera ted as
1
being W 116 unamendable but whi ch cou ld be de rived
1
by looking to the Preamble of the Con stitut ion1 the court
seemed to echo the approa ch adopte d by Frankfurter
and Cardozo JJ in the federal state due pro cess cases.
Strikingly , the "ba sic stru ctu re" approach rejected the
flexible ame n dment provi sion s of Article 268 of the
Con stitu tion whi ch the framer s the mselves h ad
Sikri CJ foun d th at pro vision s de aling with the
supremacy of the Con stitut ion 1 repub lican and
democ ratic form of government 1 secular character,
separation of powe rs and federal character of the
1

Con stitut ion wer e pa rt of th e Constitutio n' s "b asic
structu re". Addr essing Mr Seerva i' s argu me n t d ealin g
w ith due proc ess, Sikr i CJ foun d th at th ere we re oth er
prov ision s of th e In d ian Con stitu tion whi ch we re as
un d efin ab le as the "du e pr ocess" clau se in the Am erican
Con stitut ion viz . "reason ablen ess" un d er Article 19:
It is ur ged by Mr . Seervai th at we would be laying down
a very un satisfactory test which it wou ld be difficult for
the Parliament to con1prehen d an d follow . He said that the
1
Constitu tion-makers had discarded the concept of due process
in order to have soniething certain, an d they sub stituted the
1
wor ds by authority of law' in Article 21. I an1 una ble to
see wh at bearing the d ropp ing of the wo rds ' due
proc ess' h as on this qu estion . The Cons titu tion itself has
1 1
used words like reasonable restric tions in A rticle 19 which do
not bear an exact 1tieaning, and which cannot be defined wi th
precision to fi t in all cases that may come before the courts; it
would depend upon the fac ts of each case whether the
restrictions imp osed by the Legislature are reasonable or not.38
(emph asis supp lied)
Add ing to Sikr i CJ' s, laun dry list of ba sic featu res of th e
In d ian Const itu tion , Shelat an d Grov er JJ h eld th at th e
dignit y of th e in d ividual an d the un ity and in teg rity of
11
the natio n w ere a p ar t of th e Const itution ' s essen tial "
featu res. H egd e an d Grov er JJ ag reed that ind ividu al
fr eedoms w ere a p ar t of th e essent ial featu res of the
Con stitu tion . Sh elat and Grov er JJ foun d th at th e
11
d elib erat e exclu sion of th e due pr ocess" clau se of th e
Con stitu tion repelled th e argu m ent th at jud icial review
was un d em ocratic in In d ia, bu t nearly ove rlooked th e
fact th at th eir ow n hold in gs w ere very sim ilar to due
proc ess scru tiny , on accoun t of th eir id en tificatio n of
11 11
1
flu id pr in cipl es" or featu res " whi ch cou ld be d erived
by looking thr oug h th e Con stitut ion r athe r tha n at its
prov1s 1ons :
The Advoca te Genera l of Mah arasthra h as characterised
judi cial review as un democra tic. Th at cannot, howeve r,
be so in ou r Const itution becau se of the p rovisions
relating to the appo intmen t of jud ges, the sp ecific
restrictio n to which the fun dament al rights are made
subject, the deliberate exclusion of the due process clause in
A rticle 21 and the affirma tion in Article 141 th at jud ges
declare but not make law. To this may be added the none
two liJ 117 rigid amendatory p rocess whic h au tho rises
amendment by means oft 2/3 majority and the add itional
requirement of ratification .39
 (emph asis supp lied)
Khanna J quo ted the wo rds of Felix Frankfu rter J in his
tribute to H olmes J, and on how constitu tion s must be
II
interpr eted by looking to on e' s conceptio n of on e's
cou ntry, its develop ment, its ne eds, its pl ace in a
civilized society". H e rejecte d the idea th at fun dam ental
rights had an unenumerate d "essence" or "core" . This
op ini on wo uld be relevant in later yea rs, when cour ts
would declar e '' equ ality" and arbit rariness" swor n
II 11
ene mi es", ba sed almo st on a core" un dersta nding of
II
th e right to equa lity:
In my opinion , this different iation between fun dament al
right and the essence or core of that fundame ntal right is
an ove r-refinement whic h is not permi ssible and cannot
stan d jud icial scrutiny. If there is a power to ab ridge or
take away a fund amenta l right, the said power cannot be
curtailed by invoki ng the theory th at though a
fundamen ta l right can be abr idged or taken away , the
essence or core of that fundament al right cannot be
ab ridged or take n away . The esse nce or core of a
fundamen ta l right mu st in the natu re of thi ngs be its
integ ral p art and cannot clain1 a sta tu s or p rotection
diffe rent from and higher than of the funda n1ental right
of wh ich it is su pposed to be the essence or core . There is
also no objective stand ard to dete rmine as to what is the
cor e of a fundament al right and w hat di sting u ishe s it
fron1 the pe rip hery.
On the oth er hand, the dissenting jud ges relied on the
II
evils of the du e proc ess" clause of the Ame rican
Con stitu tion to bo lster their ho ldings. A.N . Ray J, who
wou ld be appoin ted Chief Ju stice only two day s after
the opinion in Kesavananda Bharati case40 was de livered
(i.e. 24 Apr il 1973), equated th e majority's ' ba sic 1
struc tur e" test to substantive du e proces s doctrine in
Am erican constitut ion al law :
The Arnerican Courts evolved a test of reasonableness by the
doctrine of substantive due process which means n ot that the
law is unreasonable but that on political, social and economic
grounds the majorihJ of Judges consider that the law ought not
be permi tted to be made. The crucial point is that in
contrad istinctio n to the Ame rican Const itution whe re
right s are couched in w ide gener al tern1s leaving it to the
Cou rts to evo lve necessa ry limitatio ns our Const itution
limited it by precise wo rds of limitatio n as for exa n1ple
in Articles 19 and 21. In Art icle 21 the Constitution -
n1akers sub stituted "procedu re est ablished by law " for
 II
the words du e process of law " . The reason for the
change was that the p roced u re established by law was
speci fic. The framers of the Constitu tion negatived the vague
in definite reasonableness of laws on political, social and
econ omic grounds. In Gopalan case due process w as
rejected, by clearly lin1iting the rights acqui red and by
eliminati ng the W 118 in definite due process . The
Cons titution-makers freed judic ial review of subjective
determination . D ue process as a test of invalidi ty of law was
deliberately wi thheld or denied. Cour ts are not concerned wi th
the wis don-ior policy of legislation . The Courts are equally not
concerned wi th the wisd om, and policy of amendn-ients to the
Cons titu tion. 41
(emph asis supplie d)
Sim ilarly , w hi le n oting th at th e d octr in e of sub stantive
du e pr oce ss was rejecte d by th e Su p reme Cou rt seve ral
yea rs ago, Palek ar J equ ate d the argu ed theo ry of
"im plied limi tatio n s" on Parli ame n t's ame n d in g p owe r
wi th the d octr in e of su b stan tive due pr oce ss. Pale k ar J
also recog ni sed th at th e p etitio n er in th e case wa s
essentia lly askin g th e cou rt to ove rr ide th e expr ess
textu al ch oices of th e fra m ers of th e Con stituti on:
It may ap pear as very od d that wh ile the framers of the
Constitution did no t think it necessary to expressly
exclud e even one prov ision of the Constitu tion from
being amende d, they still intended tha t this Cour t, as the
guardi an of the Cons titu tion, sho u ld n1ake par ts of it
unamen dable by im plying lin1itations on the Ame n ding
power. In deed this Cou rt is a guardian of the
Constitution in the sense th at will no t perm it its
contravention by any of its inst rument alities, but it
canno t consti tute itself a guardi an agains t change
Constitu tionally effected .42
Ma th ew J expre ssly ackn owle d ge d th at th e cour t' s form
of review un d er A rticle 19 of th e Con stitutio n mi rro red
"due pr ocess" review . Quoting Fran kfu rter J, Ma th ew J
dis agreed wi th th e cou rt's previous opini on s in w hich
th e "due pr ocess" doct rin e of "voi d -for-vagu en ess" h ad
been rejecte d :
The lin-iitations in A rticle 19 of the Cons titu tion open the
doors to judicia l review of legislation in India in muc h the
same manner as the doctrine of police power and its
compani on, the due process clause, have done in the Uni ted
States. The restr ictions th at n1ight be in1posed by the
legislature to ensure the publi c interest mus t be
 reasonable and , therefo re, the Court will have to appl y Hegde (with X X X X
the Yardstick of reason in adju d ging the reasona blene ss. Mukherjea)
If you examine the cases relating to the imposition of Mukherjea (with X X X X
reasona ble restrictions by a law, it will be found th at, all Hegde)
of them, adapt a standard which the American Supreme Court Ray X X X X
has adapted in adjudging reasonableness of a legislation under Reddy X X X * X
the due process clause.43 Palekar X X X X
(emphasis supp lied) Khanna X X X * X
On accoun t of th e nu me rou s opinion s in th e case, th e Mathew X X X X
de cision in the Kesavananda Bharati case44 is an alysed in Beg X X X X
th e tab le below. A judge 's agreement with th e validity Dwivedi X X X X
of a constitutional am en dme nt or pre m ise is m arked by Chandrachud X X X X
11
xo_
Majority 7- 6 13 13 (5+2)-6 12
W 119
* Holding that the second part of Art icle 31-C was invalid
De sp ite th e majority 's po we rful assertio ns of th e court 's
Chief Justice Sikri X X X No
ability to me asu re wh ether th e "ba sic stru cture " of the
opinion Con stitution h ad been altered or de stroyed by
Shelat (with X X X X constitutional amen dment , 12 members of the court
Grover) he ld that the 29th Amendment was valid 45 (Sikri CJ did
Grover (with X X X X not app ear to h ave exp re ssed any opinion on th e point ,
Shelat)
whi le ho lding th at the 29th Ame n dm ent would be
ineffective if it violated fundamental right s).
Similarly, the cou rt unan imou sly held that the 24th
Ame ndm ent and Section 2 of the 25th Amen dmen t we re
vali d, indica tin g th at the righ t to prop erty wa s not a
part of the Con stitu tion 's essent ial featu res for tho se
that believed in the ba sic struc tu re theory . The 24th
Ame ndm ent wa s held valid by seven justices on the
theory th at th ey wo uld reserve to th emselves the powe r
to dete rmin e whet her a con stituti on al amendment
viol ated th e Con stitu tion's essent ial features . Th e 24th
Ame ndm ent ha d essentially sought to insulate the
proc ess of con stituti ona l ame ndmen t fro m jud icial
scrut iny. Although the cour t held that Parliament had a
wide latitud e to amend the Con stitu tion unlike its
prev iou s holding in Golak Nath v. State of Punjab46 (Golak
Nath), the cou rt reserve d to itself the powe r to scrutini se
con stituti ona l ame ndmen ts on the touch stone of th e
basic stru ctu re theory. In doing so, seven justices of the
KesavanandaBharati case47 cour t safeguar ded the right of
judi cial access.
lill 120 However , th e rema ining six justices did not
ap pear to have expre ssed any intent ion of abandon ing
jud icial review of constitut ional amendme nts. Rath er
th an hold ing that it wa s beyond their power to
scru tini se con stitu tional amen dment s, each of th em
justified th e con stitu tional ity of Section 3 of the 25th
Ame nd men t by stating th at it did not preclude jud icial
rev iew an d con sequ ently jud icial access. Indeed, the six
justices who dissented from the court's "ba sic structu re"
theory , uph eld Section 3 of the 25th Ame n dme nt on the
ground that cour ts would be able to review law s de spit e
the 25th Ame nd ment . Thi s is discussed in grea ter detail
below.
Viewed throug h th e lens of what the cou rt actually
he ld in the facts and circum stances of th e case, it is clear
that the cou rt' s opin ion wa s actu ally deferent ial. The
cour t un anim ou sly u phel d the amendment s wh ich we re
challenged before th em, excep t for Section 3 of th e 25th
Ame nd men t. Section 3 of th e 25th Ame ndm ent
fra ctu red the court's deci sion by the greate st extent.
The re were three different group s on th e qu estion of th e
validity of Section 3 of the 25th Ame nd me nt, whi ch ha d
inserte d Article 31-C into th e Con stituti on. On the one
han d1 five justices viz . Sikri 1 Shela t1 Grover1 Heg de an d tru ly be said to have "dissented" on the que stion of th e
Muk herjea believe d th at th e insertio n of Article 31-C validity of Article 31-C 1 conside ring th at th e validity of
into the Constitu tion wa s entirely voi d and Article 31-C of the Con stitut ion has subsequently 50 bee n
un constitu tional eith er on the th eory that it delegated uph eld ba sed on the fact th at th ese six jus tices vote d
pow er to the legislature s or it upset the harmo ny with Khann a J in up hold ing the first po rtion of Article
betwee n fun da ment al rights and directive pr incipl es. 31-C.
On the other hand 1 six jus tices viz . Ray 1 Palekar 1 Reddy J inco rpo rated the reasoning of Khann a J in his
Math ew 1 Be& Dw ivedi an d Chandra chud 1 foun d th at opin ion (alth oug h he believe d th at some add itional
Article 31-C wa s vali d. Th e dec iding vote s we nt to two provis ions in Article 31-C liJ 121 may have been requi red
justices viz. Kh anna an d Reddy 1 who he ld that the to be severed). Khanna J held th at the secon d po rtion of
second portion of Article 31-C viz . the p art whi ch Article 31-C wa s unco nstitut ional because it did not
exclud ed jud icial review 1 was invalid an d consequently p ermit courts to enter into even limi ted ju dicial rev iew
severab le. Accordingly th e two vo tes of Khann a an d
1 investigat ions of whet her the me ans of th e law were
Reddy were comb ined with th e vo tes of the five jus tices ratio nally or reasonably related to th e end soug ht to be
and the second po rtion of Article 31-C thereafte r lived achi eved by the law .
an "italicized existence " .48 Howeve r the opinio ns of the
1 The vice of second part of Article 31-C lies in the fact that
six "dissentin g" judge s along wit h Khanna an d Reddy
1 even if the law enacted is not for the object mentioned in
J!t demonstrate th at a majority of the judge s on the Article 31-C the declaration made by the Legislature
1

KesavanandaBharati case49 court reasserted a belief in the
doctrine of proc edur al du e process understoo d as
jud icial access. Th e word "dissentin g" is plac ed in
quot ations since it is do ubtful if the six justices could
precludes a party from showing that the law is not for
that object and preven ts a court from going into the
question as to whether the law enacted is really for that
object. The exclusion by the Legislature includi ng a State
1

Legislatu re of even that limi ted judicia l review strikes at the

1
 basic structure of the Constit u tion . The second part of
Ar ticle 31-C goes beyond the permissible lim it of wha t
consti tut es amendme nt under Article 368.51
(emphasis supp lied )
Ray J drew a d istin ction be twee n cou rts qu estio n in g
11
w he th er a law gives effect " to th e p olicy it decl ares1
an d whet h er cou rts could examine th e n exu s betwee n
th e law an d th e objective s set ou t in Arti cle 39(b) an d (c):
The decla ration n1entione d in Article 31-C is for giving
effect to the poli cy of the State towards securing the
pr inciples in Arti cle 39(b) or (c). Such a declara tion in a
law shall no t be called in qu estion on the ground th at it
does no t give effect to su ch policy . The laws w hich
receive protection under Ar ticle 31-C are laws for
secur ing the Directive Principles of Articles 39(b) and (c).
The nexu s or connectio n between the law an d the
objectives set ou t in Arti cle 39(b) and (c) is a cond ition
precedent for the appli cability of Ar ticle 31-C.52
Sim ilarly, Paleka r J foun d th at th e pro v ision d id no t
pr ohi b it th e court s from exami nin g w h eth er th e law h ad
an y n exu s w ith its pu rp ose1 or from u sing fam iliar
me an s-en d scru tin y:
If the cou rt comes to the con clusion th at the above object
of the legisl ation was n1erely a pre ten ce and the real
object was discrimination or some thing other than the
object specified in Ar ticle (b) and (c)t Article 31-C would
no t be attr acted and the validity of the Statute wo uld
have to be tested in depe n dently of Article 31-C.53
H avi n g expr essed hi s v iews on th e simila rities betwee n
du e p rocess scru tin y an d consti tut ion al an alys is u n de r
A rticle 191 M ath ew J simil arly foun d Section 3 of the
25th Am en dme nt of the Con stituti on to be vali d on the
groun d th at cou rts cou ld un d erta ke me an s-en d
scrutiny :
Whe never a ques tion is raised tha t the Parliamen t or
State Legisla tu res have abused thei r power and inserted
a declara tion in a law no t for lill 122 giving effect to the
State policy towards secu ring the Directive Principles
spe cified in Article 39(b) or (c)t the cou rt mus t ne cessarily
go int o th at ques tion an d decide it.54
M .H . Beg J reco rded th e con cession made by th e
Atto rn ey Gen er al an d Solicitor Gene ral th at th e
relevan cy or ne xu s be twee n law and p olicy wo u ld be
subject to jud icial scrutiny 1 an d on th e streng th of the
con cession up h eld th e law . Dw ive di J d rew th e sam e
distinc tion th at h is fellow '' dissen ting " justice s h ad
dr awn be tw een court s me asu ring th e efficacy of th e law
an d court s m easuri n g th e relation sh ip of th e mea n s
u sed by the law to th e en d p u rsue d by it:
So the law cannot be challenge d on the ground that the
mean s adopted by the law are not sufficient to sub serve
the con1mon good and prevent common detr imen t. In
other word s, the sufficiency of the law 's efficacy alone is
made non -ju sticiable. The Court still retains power to
dete rmi ne whether the law has relevancy to the
distribution of the owner ship and control of the materia l
resource s of the community and to the operation of the
econon1ic system and concentration of wea lth and mean s
of produ ction . If the Court find s th at the law has no such
relevan cy, it will de clare the law void if it offend s the
provi sion s of Articles 14, 19 and 31.55
Ch an d ra chu d J emp ha sise d th e ne ed for a di rect an d
II
reasonable nexu s" b etwee n th e law and th e d irective
pr inci ples of State po licy u n de r Article 39(b) an d (c), in
what seemed to be a rejectio n of Lochnere sque forays
in to th e object sought to be p u rsue d by the law :
Laws p assed under Article 31-C, can, in n1y opinion , be
upheld only, and only if, the re is a direct and reasonable
nexus between the law and the Directive Policy of the State
expressedin Ar ticle 39(b) or (c). The law cannot be called in
que stion on the ground tha t it doe s not give effect to
such policy bu t I suppose no court can ever take upon itself
the task of finding out whether a Jaw in fact gives effect to its
true policy. If such a latitude were open to the Judges, laws of
Prohibition and Gambling should have lost their place on the
statute book long since.56
(en1phasis supp lied)
Acco rd ing ly, althoug h the se con d po rtion of Article 31-
C live d an "italicize d existence " follow ing the Basic
Structure case57, a m ajor ity of eigh t ju stices viz . Ray ,
Palekar, Beg, Mathe w, Dw ive di, Chandrachud , joined
by Kh ann a an d Reddy , h ad h eld th at wh en a law
d eclar es th at it seek s to furt h er Article 39(b) an d (c), the
court s sho u ld in the mi nim um be entit led to in ve stigat e
whether th e law actually h as any di rect and reasonable
nexu s wit h Article 39(b) an d (c). For exam p le, if
Parl iame n t enacted a law seek ing to en su re that Prime
Mini ster ial electio n s could n eve r be called int o que stion
be fore a court , and the law d eclar ed th at W 123 it
fu rthered Article 39(b) of th e Constitutio n1 the court
could still investiga te whet her it bore any relation with
the pu rpo se spe cified in Article 39(b). Howeve r1 if the
cou rt was satisfied th at it bore some rational nexus with
Article 39(b)1 the inv estiga tion woul d en d th ere . In th e
Basic Structure case1 the majority of judge s on the
que stion of Section 3 of the 25th Ame ndmen t advo cated
a ration ality stan dard on matte rs of Article 31-C.
2.1.1. The effect of the "Basic Structure case"
The court seemed to be articulating two pre mises in the
Basic Structure case58. Both hinged on th e ability of
cou rts to engage in judi cial review 1 and conseque ntly on
the que stion of judicial access. The first premi se was that
Parliament' s ame nding powe r wa s wide but subject to a
1
basic struc tu re const ruct 1 an d cou rts coul d examine
whet her the basic stru ctu re of the Constituti on had been
destroyed by constitutio nal ame ndm ent. Second1 even
inde pendently of the theory of the ba sic stru ctu re of the
Constitutio n, constitutional amen dment s whi ch
precl uded jud icial access by pr ohibiting cou rts from
eng aging in farniliar means-end scrut iny woul d be
inv alid . The dissenting six who u phe ld Section 3 of the
25th Amen dment did not believ e in th e basic structu re
theo ry . Th ey nonethe less uphe ld th e pr ovision on the
streng th of the fact that jud icial access had not been
precl uded . Thi s does tend to point to an un derlyi ng
thread of proc edu ral due proc ess whi ch ch aracterised
the court 's opinion in the Basic Structure case.
This case w as significant from a du e pro cess viewpoint
for the follow ing six reasons:
First1 by entrenching the "ba sic featu res" of the
Constitution a majority of seven judge s of the Supr eme
1
Court over rode the expre ss value choices articulate d by
the framer s of the Constituti on in th e Constitu tion's
text. Althoug h Article 368 perm itted "fun dam ental
rights" to be amen ded by two -thir ds m ajority of those
pre sent and voting subject to a minimum of half of th e
mem bership of the Ho u se at least two justices (i.e.
1
Heg de an d Grover) foun d that funda me ntal right s were
a pa rt of th e ba sic unam endab le structu re of th e
Constitution .
Second1 by articulati ng a nebu lous ' ba sic stru ctu re" of
1
the Constitutio n, the court seeme d imp liedly to overrule
its previous disinclination in the Gopalan case59 to look
to the Constituti on's spirit" in invali dating law.
11
Although thi s case dealt with the inv alid atio n of
constitutio nal amendme nt s, a few yea rs later , th e cou rt
in Manelca Gandhi v. Union of India 60 (Maneka Gandhi)
would look to the "spirit " or "core" liJ 124 of Article 14 in
articulating a "new" constitutio nal stan dar d, in what
would be th e final pha se of over ru ling the disinclin ation
of the Gopalan court disinclin ation toward s the
Constitutio n's "spirit" . Th e "ba sic structure " test was
strikingly similar to the appro ach of Frankfu rter an d
Cardozo JJ in the federal state due process cases whe re
the se judge s looked to the fun da ment al value s of
civilised society in appl ying federal constitutio nal
stan dard s against the State s.
Third, by emp ha sising that the second po rtion of
Section 3 wa s eith er valid or inv alid beca use it pe rmitted
cou rts to unde rtake mea ns-end scrutiny i.e.
II
inv estiga tions int o whether the law bore a direct and
reasonable nexu s" with Article 39(b) an d (c), the
majority asserted a belief of w hat appea red to be
proc edu ral due proce ss do ctrine . Wh at th e court
seemed to be doing in this case was ensuring that
judi cial access could not be foreclosed by a me re
declaration th at law achieve d its pu rpo se. It is
impo rtant to not e that the ba sic structu re test in thi s case
was not u sed by the major ity to invalidate law besides
the last portion of Section 3 of the 25th Ame nd ment.
Instead , Section 3 of the 25th Ame nd ment was up held
on notion s simila r to procedur al due proces s as jud icial
access, despite the fact that ma ny justices did not u se
du e pr ocess nom en clatu re . H owever , the "procedural
du e pro cess" development s of thi s case were th emselves
emanat ions of substa ntive du e pr ocess doctrine. Thi s is
becau se the "du e process" clause had expres sly been
delete d by the framer s of the Ind ian Constitu tion .
Accordingly , Indian cou rts were not pe rmitted to de rive
fundamental values or pri nciple s from a Constitution 's
text. While the "ba sic structure " compone nt of thi s case
resembled fede ral state du e pr ocess, the emphasis on
jud icial access substa ntively created the right of
proce du ral due pro cess scrut iny.
H owever , it mu st be emph asised th at the court's
concerns for jud icial access did not arise for the first
time in the Basic Struc ture case61 . Even before thi s
decision, the Sup reme Court ha d safeguar ded its
jurisdiction again st provi sions th at confer red "finality "
upon other au tho rities. As the court woul d point out
later on,62 in Durga Shank,arMehta v. Raghuraj Singh63, was n~t geared towar ds achieving a pu rp ose pre scribed
by Article 39(b) an d (c). Thi s stan dar d wo uld evolve into
Brundaban Nayak v. Election Con1mission of India64 and
a reasonablene ss standard in the next decade beginn ing
Union of In_dia ~-. Jyoti Prakash 1\t1.itter65, the Supr eme
with Minerva Mil ls v. Union of India67 (Minerva Mil ls).
Court had implicitly safeguar ded its ow n jurisdiction
Fifth, in arti cula tin g a "ba sic stru ctu re" test which
despite "finality " clau ses. H owev er, the Basic Structure
wou ld prot ect th e court's ability to access que stions of
case e~ p~at ~c~lly m~rked th e fact of th e court's ability to
constitu tional significan ce, the court seem ed to be
exercise Judicial review de spit e exclusionary pr ovisions.
prot ecting a broad right of jud icial review , or right of a
Th e liJ 125 num erical strength of the Bench an d the
p erson to access cou rts to reme dy an injustic e. Thi s
gravity of the subject-matt er (i.e. constitu tional
resembl~d th e "fundame nta l right s" ap pr oach to
~m~1:dm en~s) ~ ade this an everlasting symbo l of
sub stantive due process in American constitut ional law
Judi cial review in In dia.
an d ~oul~ _be ~articularly relev ant in analysing the
Fourth, the Basic Structure case66 advo cated a ratio nali ty cour t s op inion in Mardia Che·micals Ltd. v . Union of
stan dard for law s whi ch declared themselves to be
In~ia68 (Mardia Chemicals)discussed in th e nex t chap ter.
serving ~he_purpose prescribed by Article 39(b) and (c).
Szxth, the cou rt's "ba sic struc tu re" articu lation
Th e ma1on ty composed of th e '' dissentin g" justices
i~entifie~ or gav e courts the pow er to id entify a
join~d by Khanna J and argu ably Reddy J held that
hierar chically sup erior set of constituti ona l valu es
Section 3 of th e 25th Am endment was valid because it
mu ch in the same manne r as Am erican courts would
perm itted cour ts to investigat e whether th e law w as
~de1:tify "fun dament al right s" in the pos t-Warren Era. It
actua lly gea red towar ds achieving the end, but not how
1s im portan t to un derstand th at, terminologically ,
effectively it w ent abou t th is task. This articulation wa s
"fun da mental right s" are und erstood differently un der
a ratio nal ity stan dard i.e. it was de ferential since it
the In dian an d Am erican Con stitu tion s. In In dia, Part III
would be difficult to find that socio-economic legislation
of th e Indian Const itution create s and sp ecifically
enumera tes "Fund amental rights" an d it is a sort of Bill
of Right s Chapter in the In dian Constitutio n. Under
Ameri can substantive due proc ess doct rine, howeve r, a
"fun dam ental right" is a right not necessarily
specifically enume rated in the Constitutio n, but
recognised by th e court as ''fundame ntal" (i.e. wh at
Indian cou rts would perh ap s term "ba sic") typically
using either the spi rit of the Const itutio n or "libe rty "
value s as a reference point. Indian "fund amental rights"
are equivale nt to th e right s found in the Bill of Right s of
the Ame rican Const itution. Ame rican "fun dam ental
right s" are comp arable with the Indian "basic stru ctu re"
in terms of hierarchical statu s.
2.2. W 126 Oceans churned: the E,nergency
Whil e a historical account of the 1975 Emergency is
beyo nd the scope of this wor k an d has impressively
been made by another au thor elsew here,69 it is
necessary at this stag e only to restate key events which
sh ap ed the Supre me Cour t's sub seque nt jurispru dence.
On 12 June 1975, Jagmohan Lal Sinha J in the Allah abad
High Court invalida ted the election of the Prime
Ministe r of Ind ia, Mrs Indira Gand hi, on th e groun d
that she had committed corru pt pr actices by obtaini ng
the assistanc e of gazetted officers to furt her her
aspi rations in the elections. Th e de cision was
imme diately ap pealed . On app eal before th e Supr eme
Cou rt of Ind ia, V.R . Krishna Iyer J temp orarily stayed
the orde r of the Hig h Cour t bu t held that Mrs In dira
Gan dhi wo uld neither be able to p articipat e or vote in
p arliamentary debates nor draw remun eration as a
Membe r of Parliament unt il the issue was finally
resolved. On 26 Jun e 1975, general emerge ncy was
declared by the President of India.
Mrs Indi ra Gan dhi's ap peal came up for final hearing a
few mont hs later, an d in Indira Nehru Gandhi v . R aj
Narain 70 (Indira Gandhi), a Consti tution Bench of the
Supreme Cou rt set aside the judg ment of the Allahaba d
Hig h Cou rt un animou sly. H owever , while arriving at
this conclusion, th e court was asked to conside r the
constitu tional validity of clause (4) of Article 329-A of
the Constitutio n, inserted by the 39th Amen dment to
the Constitu tion, passed on 10 August 1975. Clau se (4)
of Article 329-A essentially prov ided that the election of
the Prime Ministe r of India could not be challenged on
any ground ordinarily ava ilable for the challeng e of an
election. One of the ground s raised to challenge this
prov ision was that it violated the ba sic structure of th e
Constitution. The court invalidated thi s clause, holding
that it violated th e basic stru ctu re of the Constitution ,
althoug h each of the judges who reached thi s conclusion
offered different rea sons for their conclusion s. Thr ee of
these ju dge s i.e. Ray, Khann a an d Mathew JJ, couched
their opinion s in terms of jud icial access i.e. th e
inst ru me nt al value of an election petition in serving
id eals of "free and fair" elections an d th e '' concept of
democracy " . Their opinions ha d hin ts of pro cedu ral due
proc ess embedded beneath the surface, as th e right
which th ey were prote cting was essentia lly a right of
judi cial access. The decision cam e only a few year s after
the Supreme Court' s historic opinion in th e Basic
Structure case7\ an d wa s delivered du ring the early
phases of the poli tical Emergency.
Ray J acknowledged that the amendment had de pr ived
the right to raise a disput e about th e validity of the
election by not prov iding a liJ 127 forum . H e held th at
while the forum for determini ng th e fate of an election
p etition could have been changed , it could not be don e
away with altog ethe r.
Khanna J empha sised the impo rtan ce of the remedy of
being able to ch allenge an election, in furthering the
ideal of "free an d fair elections" . Althoug h hi s hold ing
was pr emi sed in the broa d pro pos ition that "free an d
fair elections" formed a p art of th e ba sic structu re of the
Constitution , the emp hasis in his opinion on the remedy
availab le to an aggrieved pe rson and on th e vital
u sefulne ss of the remedy in serving the id eal of "free
an d fair elections", carried und erton es of proc edu ral
du e process with it, under stood as jud icial access. In
essence, Khann a J seemed to be prot ecting an d asserting
the right of an agg rieved can did ate to access court s.
Wh at seemed to strike Khanna J as unju st or
unco nstitut ional wa s th at pat ently illeg al elections could
go un challeng ed :
The effect of impugned clau se (4) is to take away both the
right and the remedy to challenge the election of the
appellant. Such extingui shment of the right and ren1edy
to challenge the validity of the election , in my opinion , is
inc on1patible with the p rocess of free and fair elections
... . To extinguish the righ t an d the reme dy to challenge
 the validi ty of an election would necessarily be
tant amou nt to laying down that even if the election of a
candidate is vitiated by the fact that it was secured by
flagrant violation of the principles of free and fair
election, the same wou ld still enjoy immu nity from
challenge and wou ld be nonetheless valid. Clause (4) of
Article 329-A can, therefore, be held to strike at the basis
of free and fair elections .72
(emphasis supp lied)
Similarly, in invalida tin g clause (4) of Article 329-A,
Math ew J relied on the "concept of democ racy " . It w as
not merely the princip le of fair electio ns which required
the courts to be able to inve stigate th e legality of
elections , he seeme d to hold , bu t the idea of democracy
itself. Accord ing to him, the concep t of democracy had
thr ee prerequis ite s attached to it, one of which was th at
there should be a jud icial tribun al to deal wit h dispute s
arising ou t of or in connectio n wi th electio ns.
Dispensing wit h the ability to file an electio n pe tition,
according to Mathew J, wou ld damage an ''esse nti al
featu re of democ racy" .73
Int erestin gly, one of the contentions before the court
was th at the "ba sic stru ctu re" theo ry app lied not merely
to consti tu tional amendment s, llJ 128 bu t also to ordin ary
law . If thi s pro po sition were accep ted, then the "bas ic
struc tu re" appr oach whic h implicitly resemble d the
ap pr oach adopte d by Frank fu rter and Cardozo JJin the
federal state du e pr ocess cases wou ld explicitly have
become a part of Indian law . H oweve r, while Ray CJ
vehe mently rejected this argu me nt, Khann a J refused to
enter into the ques tion, having dealt wi th the case on a
different poin t. The id ea of app lying a hig her
un enume rated no rm to ord ina1y law, however , would
resoun d in Khann a J' s opinion only a few mont hs later,
in argu ably th e mo st pow erful dissent in In dia's
cons titu tional histo ry.
On 27 Jun e 1975, the President had orde red that th e
right of any person to move a court for th e enforcement
of righ ts conferred by Articles 14, 21 and 22 would
remain suspended . Dur ing the Eme rgen cy, several
hun dred of Mrs Gandhi 's po litical oppone nt s were said
to h ave been detai ned arb itrarily. The Indian
Const itu tion pr ovided that "th e right s conferr ed by Part
III", includ ing the righ t to life and personal liberty
gua ranteed by Article 21 of th e Indi an Constitu tion,
could be suspend ed during an emergency.74 This was
an expre ss constituti onal requirement, carrying w ith it
the sanction of the fra me rs of th e Constitution
them selves. Deferenc e to orde rs of de tenti on
suspend ing fun da ment al right s unde r Articles 14, 21
and 22 would accor dingly have constitu ted deference to
the original int ent of the framers of th e Constitut ion. In
other words, respecting constituti onal choices which
op erat ed du ring an emer gency wou ld have constitu ted
judi cial restra int.
The deta inees ch allenged their detention ord ers. The
High Cour ts of Allahaba d, Bombay , Delhi, Kamataka ,
Madhya Pradesh, Punjab an d Rajasthan held th at
despit e th e suspens ion of the fund am ental right s
conferred by Articles 21 and 22 of the Const itution , they
could still ent er into que stions of wheth er the arr ests
w ere made in accorda n ce with statutory provis ions. The
State Governments filed app eals before the Supr eme
Court wh ich cam e up for hearing in the Habeas Corpus
case75 . Th e qu estion before th e Supr eme Court was
wheth er, in view of the pr esidentia l orde r, any pe tition
unde r Article 226 before a High Court for th e writ of
habea s corpu s to enforce th e right of person al liberty of
a person detained und er the Maint enanc e of Intern al
Security Act, 1971 was m aint ain able. This que stion
turn ed on wh ether th e right to life under Article 21 of
the Constitut ion could be suspe nded duri ng an
emerg ency . Whil e four jud ges held that it could , the sole
dissenting judg e, Khanna J held th at th e right to life was
a natu ral right which was incap able of suspensio n .
Khann a J's dissent resembled Lord Coke's view of "per
legem terr e" de riving from un alterab le "natu ral law ",
an approa ch W129 arguab ly accepted by th e framers of
the Am erican Constitut ion an d rejected by the fram ers
of the India n Constitution .
One of th e mem bers of the majority, Bhagw ati CJ,
ap peared defer ential in his attitude toward s the framer s'
constitu tional choices. Recognising that the "ru le of
law" was encapsulated by th e In dian Constitut ion,
Bhagwati CJ appr eciated th at the framers' int ent ions
had to be accord ed de ference.
When the Consti tu tion n1akers have clearly intended that
this righ t shou ld be subject to the limitation impo sed by
Article 359, clause (1) and (1-A), it would be contrary to all
 canons of cons truc tion to hold
that the san1e right
continues to exist indep endently, but free from the
limitation in1posed by Article 359, clauses (1) and (1-A).
Such a cons truction would defeat the object of the
Constitu tion makers in imposing the limitation under
Article 359, clauses (1) and (1-A) and make a m ockery of
that limi tation.76
(emphasis supplied )
In hi s approac h, Bh agwa ti CJ appeared to hav e acce p te d
th e tex tua l requ ire men ts of A rticle 21 of the
Constitution vi z. that the righ t to life wa s a qu alified
rig ht/ capable of deprivation in th e event of valid law ,
an d valid p ro cedu re.
It is clear on plai n natural constr uction of its language
that Arti cle 21 im por ts two require me nts - first, there
must be a law authorising deprivation of personal
liberty , and secondly , such law must presc ribe a
procedure .77
When it wa s suggeste d th at the powe rs of arre st du ring
time s of emergency could h ave been susceptible of
11 11
being u sed arbitrari ly Bhagw ati CJ appeared to h ave
, do, as a Judge unde r the Constitution , I cannot ign ore the
re conc iled hi m self to th at fact, ba sed on the wisdom of
the Con stitutio n 's fram ers . Arbitrarine ss" d id no t
11
significantly bother Bhagwa ti CJ du ring this case, an d
pe rha ps this wa s ju stifiab le considering that his view
constituted defe renc e to original int en t.
It is po ssible that when vast powe rs are vested in the
executive , the exercise of which is im n1une from judicial
scrutiny , they may sometimes be abused and innocent
perso ns n1ay be consigned to tempora ry detention. But
n1erely beca use pow er may sometin1es be abused , it is no
ground for denying the existence of the power ... . I am
not unaware of the prime im por tance of the ru le of law
... . But at the san1e time it cannot be overlooked that , in
the u ltimate analysis , the protectio n of personal libe rty
and the supremacy of law which sustains it must be
governed by the Constitution itse lf. The Constitution is
the paramount and supreme law of the land and if it
says tha t even if a person is detained otherwise th an in
accordance with the law, he shall not be entitled to
enforce his right of personal libe rty, whilst a Presiden tial
Orde r under Arti cle 359, clause (1) liJ 130 specifying
Article 21 is in force I have to give effect to it . Sitting as I
plain and emphatic con-imand of the Constitu tion for what I
 may consider to b e ne cessary to meet the ends of
justice.78
(emph asis supp lied)
Sim ilarly , consi sten tly with hi s ho ld in gs in the Basic
Structure case79, Ray J h eld th at the cou rts could n ot
in crease or curtail th e freedo m of ind ividua ls con trary
to the pr ov ision s of th e Constitu tion . Rejecti n g due
pr ocess doc trine , Beg J he ld th at Art icle 21 p rotecte d
"procedure estab lishe d by law ", a pr ov ision whi ch
could n ot be in ten ded to opera te as a restriction upon
legislat ive power. Mind ful of th e grave na ture ?f the
court' s ho ldin g, de spite h aving defe rred to th e wi sdom
of th e Con stitutio n' s framer s, Chandrac h ud Jarticulated
a "diamo n d-b righ t, diamo nd -ha rd h ope " th at
emergency powe rs wo u ld not be abu sed.
On th e contr ary , Khanna J' s dissen ting opin ion wa s
rema rkably activist in its rejection of th e val ue choi ces of
the fra m ers of In d ia's Const itu tion. Khanna J h eld th at
fun da m ental righ ts u n de r the Constit u tion we re not th e
sou rce of the righ ts, th at Art icle 21 could no t be
con sidere d th e sole rep ository of th e righ t to life and
p erson al liber ty . Instea d, Khanna J he ld th at the rig h t
belo n ged to th e real m of na tural law. In thi s manner , h e
almo st relega ted con stitut ional text to secon dary statu s
an d w ith it th e aspi ration s an d value choice s of th e
framer s of th e Con stitutio n . Rese mbl ing hi s opinion in
th e Basic Structure case,Khanna Jcons idered the histo ry
of th e rejectio n by th e frame rs of th e "du e pr ocess"
clau se. In a rema rkable statement , wh ich would ech o
on ly a few year s later in th e cou rt's majo rity compo sed
n early of th e m ajor ity judge s of th is case, Khanna J
d ecla red: "Rule of law is th e an tithe sis of arbitrarine ss".
Even in the absence of Article 21 in the Constitution , the
State h as got no power to deprive a person of his life or
liberty wi thou t the au thor ity of law . This is the essen tial
postu late an d bas ic assump tion of the rule of law a:"1 d
no t of men in all civilised n ations . Without such sanctit y
of life and liberty , the distinction between a lawless
society an d one gover ned by laws would cease to h ave
any meaning . The principle tha t no one shall be depri ved
of his life or liberty wi thou t the author ity of law is rooted
in, the consider ation th at life, and liberty are p riceless
possessions wh ich canno t be made the playt~ing of
ind ividu al whim and capri ce and th at any act wh ich has
 the effect of tampering with life and liberty must receive
sustenance from and sanction of the laws of the Iand .80
In hi s famous dissent, Khanna J identifie d the sour ce of
his ho lding s i.e. the absence of "arb itrariness" in
governme nt action :
liJ 131 A bsence of arbitrariness and the need of the
authori ty of law for official acts affecting prejudicially
rights of individua ls is one of those aspects . The power
of the courts to grant relief against arbitrariness or absence
of authori ty of law in the n1atter of the liberty of the
subject n1ay now well be taken to be a normalfeature of the
rule of law.81
(emphasis supplied )
2.2. 1. Analysing Khanna J' s dissent
Thr ee observ ations in the context of Khanna J's dissent
deserves to be made.
First, in find ing that the source of the right to life an d
person al liberty was a "natu ral" or highe r norm ,
Khann a J sough t to overco me the prob lem caused by th e
11
deletion of the due proces s" clause from the text of the
Indi an Cons titu tion . In app lying the higher or "natur al"
norm to ordinary law, as oppose d to const itu tion al
amendme nt s, Khanna J's opinion , arguab ly for the first
time in India 's constitu tional history, conscious ly
applied extra-constituti on al or unenumer ated stan dard s
or norms aga inst ordinary law, although they may have
been roote d in notions of "reaso nablene ss" which the
cour ts were familia r with un der Articles 14 an d 19 of the
Con stitu tion . It is impo rtant to be ar in mind th at thi s
case di d not concern constitut ional amendme nts.
According ly, Kh anna J's "natu ral law" stateme nt s were
made in the contex t of de tention order s, the ordin ary"
II
law of the lan d .
Second, in articu lating the ideal of the "ru le of law"
II
being the antithesis" of arb itrar iness, Khann a J's
opin ion would provide a mo ral bas is for the Supreme
Court 's language in the coming year s whi ch equ ated
"equality " an d "rule of law " as being the "antithesis" of
11
arb itrar iness" . Two of the dissentin g judges in this case
i.e. Bh agwa ti and Chan drachud JJ, wo uld form a part of
the majority in the court's hold ing in the 1\1.anek.aGandhi
case82, where the cour t would adop t a "new " approach ,
bol stered by the mo ral authorita tivenes s an d poli tical
legitim acy of Khanna J's eloque nt dissent. In essence,
Khanna J's opinion wo uld in later yea rs form a moral
comp ass which gui ded cou rts into adoptin g an activist
stan ce legitim ately, an d into pe rmi ssibly ignoring or
overlook ing the express textu al choices articu lated by
the frame rs of India's constitu tion .
Third, the Habeas Corpus case83 essentially involved
questions of judi cial access i.e. pr ocedu ral du e proc ess.
The majority de ferred to the expr ess value choices of the
framers of Ind ia' s Constitut ion and exclud ed procedu ral
du e pro cess from their constitut ional an alysis. On the
other han d, Khann a J substantively read procedu ral du e
proc ess as jud icial llJ 132 access into hi s constituti ona l
analysis, even though his opinio n may not have ha d
textu al foundatio ns. Th e majority opinion in this case
failed to secu re judi cial access for aggr ieve d de tain ees.
This was the court' s greatest failing du ring the
Emerg ency .
2.3. Post-E11iergenc
y "Basic Structure": the tribunal cases
The Suprem e Court of India had failed as an institut ion
to secure ju dicial access du ring th e Emergen cy, a valu e
it ha d p ainstakingly sought to pr eserve in the Basic
Structure case84 an d its proge ny. H ow ever, in th e
imme diate afterm ath of the Emer gency, th e cou rt
attempted to atone for its failu res by ado pting an
activist stan ce. H .R. Khanna J's eloquent dissent in the
Habeas Corpus case85 ha d now afforded legitimacy to
jud icial activism - an d Khanna J's opin ion wo uld form
a moral comp ass whi ch wo uld guide the court going
forwa rd. In the year s that followe d, the "ba sic structu re"
do ctrine was zealou sly applie d by th e Supr eme Cou rt to
pr eserve the valu e of jud icial access once more.
H ow ever, the ba sic struc tu re the ory w as som etim es also
ap plied ou tsid e of the sphere of constituti on al
amendm ents, often in innovat ive w ays, in order for the
court to secu re its own jurisdiction an d to prot ect
jud icial access. The extension of "ba sic stru ctu re"
pr inciples unde rstood as form ing a p art of the "core" or
"essence" of the Constitu tion, to a zone precar iou sly
close to ordinary law, is one of the most striking
featu res of the ap plication of th e ba sic stru ctu re theo ry
in the p ost-Em ergen cy ph ase. This phenom enon is m ost
visible in those cases w here courts contemplate d the
constitu tional validity of ad mini strative an d qua si-
judi cial tr ibunal s.
2.3.1. The "Sampath Ku1n ar case"
In S.P. Sampath Kun-zar v . Union of India86 (San-zpa th
Kumar), th e Supreme Cou rt wa s asked to conside r th e
constitu tional validi ty of the Administr ative Tribun als
Act, 1985, en acted consequen t to Article 323- A of the
Constitut ion [inserted into the Constituti on by the
Constitut ion (42nd Ame ndment ) Act, 1976]. The
impugned Act displaced the Hig h Court s' jurisdiction
un der Articles 226 an d 227 of the Constitut ion, and
establi shed adm inistrative tribuna ls. The court
conside red two que stions: i) whe ther th e exclusion by
Section 28 of the imp u gn ed Act of the jur isdiction of the
High Court s un der Articles 226 and 227 wa s valid; and
ii) w hethe r th e administr ative tribun als we re effective
substitute s W 133 or " alternat ive institut ion al
mech anisms or arra nge ment s" for th e H igh Cou rts in
which th e ''parti es could repose faith and tru st" _ The
issue s, as they we re contended by the p arties before th e
cou rt, seeme d to require prin cipl es inheren t in th e
Con stitu tion 's "basic struc tu re" to app ly to an or dinary
statute viz . the Adminis trat ive Tribun als Act, 1985.
Th e court answe red th e first que stion in the negative,
ho lding that judici al review by the Supreme Court ha d
been left "who lly un affected" by the statu te and th at
the re wa s still a "forum whe re matte rs of impo rtance
and grave inju stice [could ] be br ough t for determin ation
or rectification." It was held th at th e exclusion of the
jurisdiction of the Hig h Cou rt did not totally bar jud icial
rev iew . Again, the majority opinion did not articulate
w hat the constitut ional source of "jud icial review " was
aga inst wh ich Section 28 of the impugned Act was being
te sted - wa s Section 28 being examined against the
Con stitu tion 's ba sic struc tu re?
Th e cou rt answe red the second question in the
nega tive i.e. th at th e ad mini strative tr ibunals were not
effective alte rn ative institut ional mech ani sms to th e
Hig h Courts. It w as held that the adm ini strative
tri bun als would hav e to be "wo rthy succ essor [s]" to
Hig h Courts, an d th at "disciplined, indepe n dent and
tr ain ed jud ges" were essential to their func tioning . In
p articula r, the court foun d two defects in the impugned
Act : i) the Chairm an of the tr ibunal could be a servi ce
mem ber, whe reas the pos t of Chai rm an wa s compar able
wi th that of the Chief Justice of a High Court ; and ii) the
five year cap on the term of office would discourage
younger in dividua ls from taking u p office as membe rs
of the tribunal. However , the court did no t strike the
impugne d Act down, but merely expr essed a "hope an d
tru st" that the ame ndmen ts indicated would be en acted
wi thin a reason able period of time .
One of the mem bers of the Sampath Kumar case87 cou rt,
P.N . Bhagwat i CJ, had been a p art of the Habeas Corpus
case88 majority . In a sepa rate opinion whi ch he found
himself compelled to wri te becau se th e issu es invo lved
in the case were "of seminal impo rtan ce affecting . . _the
structu re of the judi cial system an d the pr inciple of
inde penden ce of the jud iciary ", he emp ha sised that
judi cial review wa s a par t of the ba sic structu re of the
Constitutio n :
It is also a ba sic pr incip le of the rule of law whi ch
perme ates every provi sion of the Con stitu tion and wh ich
form s its very core and essence th at the exerci se of power
by the execu tive or any other au thor ity mu st no t only be
con dit ioned by the Const itu tion but also be in
accor d ance w ith law an d it is the jud iciary wh ich h as to
en sure th at the law is observe d and there is con1pli anc e
wi th the req ui reme nts of law on the p art of the executive
an d other au thorit ies . Th is fu n ction is disch arged by the
ju di ciary by lill 134 exercise of the power of judicial
review whi ch is a mo st po tent we apon in the han ds of
the ju diciary for n1ain ten anc e of the rule of law . The
power of judi cial review is an integra l p art of ou r
con stitut ion al system an d w ithout it, there will be no
Governmen t of laws an d the rule of law wo u ld become a
teasing illusion and a promi se of un reality .89
(en1ph asis supp lied )
P.N. Bhagwat i CJ held th at a constitutio nal ame ndm ent
w hich took away jurisdiction from the High Courts
would have to vest that jur isdi ction in a "no less
effective" alternative institut ional mech anism or
autho rity . The sour ce of this powe r seemed to be the
Con stitution 's ba sic struc tu re:
[I]f any constitutional amen dment m ade by Par liament
take s aw ay from the H igh Cou rt the power of judi cial
review in any particul ar area and ve sts it in any other
institu tion al n1ech ani sn1 or authority , it wo u ld not be
violative of the ba sic struc t ure doctrine , so long as the
 essen tial cond ition is fulfilled , nan1ely that the
altern ative insti tutional n1echanisn1 or author ity set up
by the parliame nt ary amendment is no less effective tha n
the H igh Court. 90
Bhagwati CJ emph asised that a '' constitutional
amendment" wh ich vested the Hi gh Cour ts' jur isdiction
in anothe r authority wou ld have to ensure th at the
alternat ive mech anism was as effective as the H igh
Courts. Bu t in this case, it was the Adminis trative
Tribun als Act, 1985, whi ch wa s un der challenge an d not
a constituti ona l amendm ent. It wa s the Admini strative
Tribun als Act, 1985 w hich set u p the alt ern ative
inst itutional mechanism, an d not the Con stitu tion (42n d
Am endm ent) Act, 1976. For thi s reason, Bhagwati CJ
coul d not have app lied th e Constituti on's "ba sic
structu re" requirement of an efficacious altern ativ e
inst itution to th e Adm inistrative Tribunal s Act, 1985.
Awa re of this problem, Bhagwati CJ found a condu it by
which he coul d apply the Con stitu tion 's ba sic structu re
to ord inary law - he did so by hold ing th at law s whi ch
did not set up efficacious alte rnative s wou ld be "out side
the scope of th e pow er conferred on Parliament un der
Article 323-A" . It wa s held that Article 323-A w as the
sour ce of the powe r un der wh ich the impu gn ed law w as
enacted and th at in orde r for th e imp ugn ed law to be
cons titu tional or intra vire s, it wou ld have to abid e by
its constituti onal comma n ds, interpr ete d app lying the
Con stitu tion 's ba sic structu re do ctrine. In this manner ,
Bhagw ati CJ was able to ap ply th e ov erar ching scheme
of jud icial review inher ent in the Constituti on's basic
struc tu re to th e Administr ativ e Tribun als Act, 1985, by
ho lding th at Article 323-A wa s th e condu it by wh ich the
law wou ld be me asu red an d Article 323-A, a
constitu tional amend ment, would hav e to liJ 135 conform
to th e Con stitu tion' s ba sic structu re. After this case, it is
certain that the court's "ba sic struc tu re" theory app lies
at least indirectly to or dinary law.
2.3. l. l . Analy sing the "Sampa th Kumar case "
The Sampath Kumar case91 wa s significant for any one of
thr ee reasons - First, fro m a procedura l du e process
stand poin t the court arti culated jud icial access concerns
once mo re. By inq uiring into th e efficacy of the
altern ativ e me chanism established by law , the court
soug ht to ensure th at agg rieved pe rson s could still have
access to an adequ ate jud icial foru m, one wh ich wa s
not, in th e word s of th e cour t, "illu sory" . In ho lding th at
the ouster of High Cour ts' jurisdiction wou ld not
precl ude the availability of a forum , the court ensure d
that its ana lysis was informed by the all impo rtant
con cern for jud icial access. P.N . Bhagwa ti CJ, who had,
along wi th a majority on the court du ring the
Emerg ency, deni ed an app licant the righ t to approach
the cour t to claim liberty depr ivation s, wa s pa rticularly
con cerned with pr eserving jud icial review and ju dicial
access. Hi s opinio n equa ted jud icial review wit h the
basic stru ctu re of the Con stituti on.
Second, in no t invalidating th e law despite having
found con stitu tional defects in it, the court seemed to be
eng aging in dialogu e with the government , a solut ion
which would be appl ied to cons titut ional de fects again
in the fu tu re.92 In this manner , th e court fine ssed the
harshne ss of its invalidation by perm itting the
legislative autho rity itself to rectify the defect.
Third and mo st signifi cantly, the court in this case
seeme d, almo st for the first time in its history , to be
app lying the basic stru ctu re te st to ord inary law,
although the test had hithe rto been ap plicable only to
con stituti ona l amendmen ts. Ranga nat h Misra J's
m ajority opinion foun d cons titut ional defec ts with the
impugned Act, an or dinary statut e, but did not
articulate the sour ce of tho se constitut ional defects. On
the othe r han d, P.N . Bhagwa ti CJ's op inion affords an
indication as to why the imp ug ne d provisions were
defective - hi s opin ion de line ates th at the court tested
the im pu gn ed Act agains t the prin ciple of ju dicial
rev iew, a basic featu re of the Con stituti on radiatin g
from Article 323-A. Perhaps this is one of the rea sons
w hy th e law wa s not eventu ally struck down , as th e
court wa s aware th at the basic structu re test appli ed
only to const itutio nal ame nd me nts and not to ordina ry
law . After all, who wou ld determi ne wh at a "fair",
"adequate " or "effective" alternat ive w as? The cou rts
wou ld, info rming their an alysis by an W136
unde rstanding of the Con stitu tion 's ba sic struc tu re, by
principle s su ch as the indepen dence of the jud iciary,
and separat ion of power s.
2.3 .2. The "Chandra Kun1ar case"
In L. Chandra Ku-mar v. Union of India93 (Chandra Kunzar),
a seven -Judg e Ben ch of the Supr eme Cou rt had occasion
to recon sider its decision in the Sampa th Kumar case94 .
The case aro se out of a challenge to Section 5(6) of the
Administrative Tribuna ls Act/ 19851 whi ch permitted
the Ch airma n of the Tribun al to constitut e a Bench even
of a single member pre sum ably even if that membe r
1
was a non-judicial membe r. At issue in the Chandra
Kumar case we re th e two proposit ions mea sure d by th e
cou rt in the Sampath Kumar case an d a th ird viz . wheth er
1
the tri bun als constitut ed h ad the compe ten ce to test the
constituti onal validi ty of a sta tu tory provi sion/ru le.
Discarding its prev iou s "effective" alter nativ e
reasoning the cou rt thi s time around found itself un able
1
to agree even wi th its first hold ing in the Sampath Kumar
case an d held that even an ouster of th e High Cour ts'
jurisdiction under Articles 226 and 227 violated the
basic struc tu re of the Con stitu tion . Th e court in this case
consider ed th e const itutional validi ty of clau ses 2(d) and
3(d) of Articles 323-A an d 323-B respe ctive ly inser ted
1
into th e Con stituti on by the Constituti on (42nd
Ame ndm ent) Act 1976. It w as held that th e powe r of
the High Court s and Supreme Court to test th e
constituti onality of sta tu tes wa s an "integr al an d
essent ial featu re of th e Constituti on" an d pa rt of its
ba sic structur e. To this end the cou rt invali da ted clau se
1
2(d) of Article 323-A an d clau se 3(d) of Article 323-B 1
ap plying the ba sic structur e theory . H owever going a
1
step furth er1 the cou rt also found Section 28 of the
impugned Act an d all othe r "exclu sion of jur isdiction"
clau ses in ordinary sta tut es to be invalid .
Th e cou rt also considered the que stion of th e
constitu tional validi ty of Section 5(6) of th e
Adm ini strative Tribun als Act 1985 unde r wh ich
1 1
tri bun als cou ld be constituted by single mem bers. It was
cont ended that if tr ibunal s had the powe r to consider
the constituti on ality of statute s an d tribunal s ha d non-
1
jud icial members in th eir ranks who could decid e cases
alone/ th en there was the dange r that the
constitu tionali ty of sta tu tes wo uld be decid ed by non -
jud icial members hear ing cases alone1 with no pr ior
jud icial training . It w as held that th oug h administr ative
tri bun als had "su pp lem entary " powe rs to test the
constitu tionali ty of sta tut es1 su ch powe rs could not be
exercised by a non-jud icial lill 137 mem ber of th e tr ibun al
acting alone and that Section 5(6) wo uld have to be
1
interpr eted accor ding ly:
 We wish to n1ake it clear th at where a question involving
the interpre tation of a statutory provi sion or rule in
relation to the Constitution arises for the conside ration of
a single Member Bench of the Adn1inistr ative Tribun al,
the provi so to Section 5(6) will autom atically apply and
the Chairm an or the Member concerned sh all ref er the
matter to a Bench consistin g of at least two Member s,
one of whom n1ust be a Judicial Member. Thi s will
ensu re th at questions involv ing the vire s of a statu tory
provi sion or rule will never arise for adjudi cation before
a single Member Ben ch or a Bench whi ch does not
consist of a Judicial Member . So constr ued, Section 5(6)
will no longer be susceptible to ch arges of
un constitu tion ality.95
(emph asis supplied )
2.3.2 .1. Analysing the "Chandra Kumar case"
Th e court' s deci sion in the Chandra Kunzar case96 wa s
signifi can t for at least two reason s. First, from a
proc edu ral du e p rocess stan dpoi n t the Chandra Kumar
case court took its jud icial access concerns a step fu rth er,
an d he ld that eve n the High Courts ' con stitutional
ju risdictio n could no t be ou sted by the leg islatu re. In
thi s m anne r, th e cou rt' s zealou s preserv ation of the
value of judicial access was even mo re in ten se in this
case than it was in th e Sampath Kunzarcase97.
Second, th e cou rt facially seem ed to h av e applied the
ba sic stru ctu re test faithf u lly in this case i.e. it wa s
ap p lied only to a constitu tio n al ame n dm en t. Th e court
in validated clau ses 2(d) an d 3(d) of Articles 323-A an d
323-B respe ctively. The im pu gn ed prov isions h ad bee n
in serte d in to the In d ian Constitution by th e Cons titution
(42nd Ame n dm en t) Act, 1976. Con sequ en tly, th e bas ic
struc tu re test could b e app lied aga inst clau ses 2(d) an d
3(d). The cou rt foun d th at th e provi sion s violated th e
pr inc ip le of jud icial review, a p art of th e Con stitu tio n's
ba sic stru ctu re. Onc e clau ses 2(d) and 3(d) fell thr ough ,
Articles 226 and 227 ren d ered Section 28 of th e
imp ug ne d Act unco ns titut iona l. Thi s is be cau se Articles
226 an d 227 gua rant ee a constitu tio n al righ t to move th e
High Court s. Any ordina ry statut?ry prov ision _w~ic h
violates thi s right would b e ultra vire s th e Con shtu ho n .
Section 28 of the impug ned Act was , until th en, sav ed
fro m the wrath of Art icles 226 and 227 by clau ses 2(d)
an d 3(d) of Articles 323-A and 323-B, but it collap sed
when the clause s were inv alid ated . Accordingly , the
cou rt did not ap pear facially to be ap plying the ba sic
structu re test ou tsid e th e context of constitut ional
amendm ents.
W138 H ow ever, a deeper investig ation into th e court' s
decision reveals that it may, in fact, have app lied th e
basic struc tu re test to an ordinary statu te. Consider th e
interpr etation placed by the court upon Section 5(6) of
the impugn ed Act. The cou rt held th at non -judicial
me mbers cou ld not hear cases invo lving constitut ional
challenges by them selves or alone. Alth ough Ar ticles
226 an d 227 guar antee a right to mov e the H igh Courts,
these pr ovisions do not also gua rantee a blanket right to
"fair jud icial review" or "fair jud icial pr ocess" or,
simply speaking , a right to have constitu tional cases
decid ed by judg es with legal training . In holding th at a
constituti onal ch allenge could only be heard by a Ben ch
of at least two me mbers w ith at least one jud icial
me mber, the cou rt appea red to be app lying prin ciples
derivable from the ba sic structu re of th e Constitu tion i.e.
the fair exercise of jud icial review, to ordin ary law.
While the inva lid ation of clauses 2(d) and 3(d) wer e a
faithfu l exercise of th e ba sic structur e doctrine, the
interpr etation placed upon Section 5(6) may have been
an app lication of ba sic structu re pr inciple s to ord inary
law .
Of cour se, conse quent to a body of case law exam ined
he reafter, In dian courts have periodically held that
"procedu re established by law " unde r Article 21 mus t
be "fair, ju st an d reasonable." Accordingly, in the
Chandra Kumar case98, court could also hav e been
holding that the proc edu re established by Section 5(6)
was unr easonable, unf air an d unju st, unles s interpr eted
in th e ma nn er indicated . H ow ever, to this en d, it will be
seen th at the pr inciple that pr oced ur e established by
lavv must be fair is limited to circum stances where a
"life" or ''person al liberty" depr ivation takes place. It is
doubtful if an admini strative tribunal whose fun ction is
to hear civil service dispu tes can bring about "life" an d
"personal liberty" deprivatio ns.
Th e cou rt's decision in the Chandra Kumar case
accordingly highli ghts its in creasing willingnes s to
ap ply fluid constitu tional principles rooted in the
Constitu tion's ba sic struc tu re, core or essence, to
ord inary sta tut es. From a substan tive du e process
standpoin t thi s is signifi cant because it involves flu id
constitu tional constru ction in a m anne r not relatable to
constitu tional text, com parable with the "fede ral state"
du e pr ocess cases and the Frank fu rter-Car dozo
appr oach to constitut ion al constru ction.
2.3.3. The "R. Gandhi case"
In Union of India v. Madras Bar Assn.99 (R. Gandhi), the
Supr eme Cou rt of India conside red the constituti onal
validity of the Comp anies (2nd lill 139 Am endmen t) Act,
2002 which inserted Chapt ers 1-B an d 1-C into th e
Comp anies Act, 1956, and thereby constituted a
N ational Comp any Law Tribuna l an d App ellate
Tribun al. One of the issues in the case was whether the
impugned ame ndment was valid when measu red
again st the doctri ne of separation of pow ers an d the
II
ind ependen ce of th e ju diciary " w hich w ere p arts of th e
basic stru ctu re of the Constituti on.
The cou rt refused to ap ply th e "basic struc tu re" theory
to ord inary law . H owev er, taking note of this doctrinal
hin dra nce, th e cou rt devised an innovativ e me chanism
in or der to overcome the difficulty of th e basic stru ctu re
theory app lying only to constitutional amend me nts.
Instead of app lying the basic stru ctu re th eory to the
pr oblem, the court held th at the right to fair jud icial
access, or the right to adju dication by an inde pen dent
II
foru m" was a part of the right to equ ality un der Article
14:
The fundanien tal righ t to equality before law and equal
protection of laws guaran teed by A rticle 14 of the
Constitu tion, clearly includes a right to have the person's
rights adjudicated by af oruni which exercises judicia l power in
an irnpartial and independen t manner , consistent wi th the
recognized principles of adjudica tion. Therefore whe rever
access to courts to en force such righ ts is sough t to be
abr id ged, altered , mod ified or substitu ted by di recting
him to approach an alternative forum, such legislative
act is open to ch allenge if it violates the righ t to adjudica tion
by an independen t forum. Therefo re, though the challenge by
[the Madras Bar Assoc iation] is on the ground of violation
of principles forming part of the basic struc ture, they are
relatable to one or more of the express pro-visions of the
Constitu tion which gave rise to such principles. Though the
validity of the provisions of a legislative act cannot be
challenged on the groun d it violates the basic struc ture of the
constitu tion, it can be challenged as violative of cons titu tional
pro-visions which enshrine the princip les of Ru le of Law,
separation of power and independence of Ju diciary.100
 (emph asis supplie d)
Accord ingly, the court foun d several defects in the
framework established by the imp u gned amend ment,
and inv alidated sever al provi sions, pa rticularly
prov isions concerning the ba ckgro un d and composition
of its members.
2.3.3. 1. A nalysing the "R. Gandhi case "
In the R. Gandhi case10 1,th e court articula ted its judicial
access concerns as before. From a pr ocedu ral due
proc ess stan dpoint , the court was lill 140 particu larly
con cerned with the fairnes s of the compositio n of the
tribun al and wit h the right of access to an in depen dent
forum . H owever , more significantly , th e court foun d a
ba ckdoo r route for app lying its "judi cial review as basic
structu re" prin ciple to ordin ary law. Article 14 was the
con du it which pe rmitted a pri n ciple foun d in the
Constitutio n's basic structure to be ap plied to ordin ary
law . In this manne r, Article 14 almo st became a
repo sitory for the constitutional pr inciple of ju dicial
review or separation of powers inhe rent in the
Constitutio n's ba sic structu re.
In the body of cases that is examined in th e next
chapter it will be seen that Indian courts have expa n ded
the scope of Articles 14 and 21 to create two
pro positions of law : i) equality is anti th etic to
a: bitra riness~ an d that any thing that is "arbitrary"
violates Arh cle 14; an d ii) "proc edu re established by
law " un der Article 21 must be "fair, just and
reasonable ". However , it will be seen that th e first of
these pr opo sitions has a tendency to swallow or
envelope th e second . The R. Gandhi court could have
he ld that the "procedu re estab lishe d by law " was
unfa ir, unjust and unr eason able. H oweve r, it is doub tfu l
~f the com pany law tribunal establi shed by the
imp ugne d law was empowere d to deprive "life" or
"per sonal liberty" . Accordingly , the prin ciple that the
"procedure establishe d by law " mu st be "fair, ju st and
reasonable " would not app ly to thi s case. For this
reason, w hat the R. Gandhi court app eared to be hol ding
was that the procedure established by th e imp ugne d act
was '~arbitrary" an d consequently violate d the right to
equa lity un der Article 14 - an indication that the first
pro position h as envelope d the second . This is at least
one instan ce where a pr inciple inherent in the
constitu tion's ba sic stru ctu re has been used to inform
the court' s und erstand ing of "arbitrariness" und er
Article 14. Indeed, the me thodology employed in
ascertaining whethe r a constitu tion al amen dment
violate s the "ba sic stru ctu re" of th e Const itution an d in
assessing whethe r a law violate s th e pr inciple of
"arbitrariness" under Article 14 is strikingly similar.
Would a court be ju stified in app lying the basic
stru ctu re test to ordinary statute s? Consider th at right s
to move courts are often conferred by ordinary statut e
consequent to proc edu ral law . For example , Section 9
CPC, 1908, confer s jur isdiction upon cour ts to "try all
sui ts of a civil natu re" unle ss barred . Wou ld it mere ly
require a repeal of Section 9 CPC, 1908, in order to
pre clude all jud icial access? Analogou sly, would a
repeal of Section 62 of the Repre sentation of Peop le Act,
1951, which confer s the right to vote, preclude
democracy, a pa rt of the "ba sic stru ctu re" of the
Constitut ion?
3. llJ 141 Rebirth: natural justice
[L]iberty is not a serie s of isolated point s ... . It is a
ration al continuum .102
3.1. "Arbitrariness" through "Abso1ption"
In the early year s of India' s constitu tional history, the
Supreme Court' s mea ns-end ration ality standa rd wa s
bou nd within th e confines of equ al pro tection analy sis
unde r Article 14 and of "reasonab lene ss" an alysis unde r
Article 19 of th e Indian Constitu tion. Significan tly, th e
right to "life and per sonal liberty" un der Article 21 of
the Indian Constitu tion remained free from the
influen ce of har monio u s or perfectionist analy sis.
Accor dingly , depr ivat ions of "life and per son al liber ty"
were permi ssible in the simp le even t of "pro cedure
establi shed by law" . Read plainly, in order to deprive a
p erson of his life or per sonal liberty, all that the State
ha d to do was du ly enact law i.e. enac t law in
accordance with the pro cedu res pr escribed by th e
Constitu tion . Thi s appro ach had been advo cated by
Bhag w ati CJ him self in the HabeasCorpuscase103 .
Additio nally , the Ind ian Constitu tion pro hibit s courts
from que stioning the proc edu res u sed by Parliame nt or
a State Legislature. 104 Whi le the court ha d extended th e
me aning of "life an d pe rsonal liberty" un der Article 21,
to include , for example, the right to go abro ad 105 an d
the righ t to privacy, 106 th ese new rights had not been
used to invali date legislation. Furthe r, the court wou ld
neither que stion the fairne ss of the pr ocedu re wh ich
create d the de pr ivat ion, nor did it que stion the
substan tive de privat ion of the right involved. H oweve r,
this para dig m in Indian constituti ona l history
irreversibly changed in th e late 70s as two fun da mental
shif ts took place in constitut ional juri sprud ence: first,
bolstered by illegitim acy of judi cial restraint duri ng the
Emergen cy, the classification standa rd un der the equ al
prot ection clau se of the Con stitu tion was reformula ted
as a br oa der "arbitrar iness" standard . Here,
11
arbitrarine ss" was not used in the same sense that it
had been u sed in the early yea rs i.e. to mean
"unrea son able" restrict ions unde r Article 19 or illegal
classification un der Article 14. Th e "new" arbit rarine ss
test discar ded textual constitutio n al const rain ts and
app lied to de pr ivat ions of life an d person al liberty
un der Article 21. Second, thi s "rea sonablene ss" or
11
arbitrarine ss" stand ard un der the equal pr otection
clause was the n app lied to "life and liber ty" cases
derived from Article 21 of the Constitut ion, llJ 142
making the clause resemb le the pr ocedu ral eleme nts of
the American due process clause , notw ithstanding
contr ary origin al inte nt.
3.1.1. E.P. Royappa
In E.P. Royappa v. State of T.N.107 (Royappa), the Sta te
Government of Tamil Nadu transferr ed the pe titioner,
an officer of the Indian Adm inistrative Serv ice who had
previously held the po st of Chief Secretary, to a newly
created tem porary po st. The pe titioner claimed that he
was being " denigr ated" be cause he h ad "incurred the
disple asure and wrath " of the Chief Minister of the
State. The substa n ce of the pe titioner's equal ity claim
was that the po st to which he wa s transferred w as
"infer ior in rank and statu s" to the pre viou s po st that he
had held . Whi le holding that the two posts were equal
in status, an d the reby dismissing th e pe tition, Bhag wati
CJ articulate d wha t has bee n referred to as a
"fashionable " or "rhe torical11108 rend ition of the right to
equality , in arguably one of the most famou s
paragrap hs in Indian con stitu tional history , one whi ch
wou ld domin ate sta tut ory revie w and even tu ally link
the right to equal ity with the righ ts to freedom and life:
 Now , wh at is the cont ent and reach of this great 11
cou rf s lan guage revea ls th at by referr ing to tr aditi on al
equalising princip le? It is a founding faith, to use the words 11
an d doc trin aire limit s whi ch cribbe d, cab in ed an d
11

of Bose J, a way of life1, and it n1ust no t be subjected to a

1

confined tllO th e right to equ ality, th e cou rt shr u gge d off

1

n arrow pedantic or lexicogr aphic approach . We cannot
count enan ce any attempt to truncate its all-em.bracing
scope and meaning, for to do so would be to violate its
activis t magni tude. Equali ty is a dynamic concept with
many aspects an d dimens ions and it cannot be 'cribbed,
cabined and confined' wi thin traditional and doctrinaire
th e classification W 143 doctrin e, h olding th at it wa s op en
to u sin g oth er tests u n de r Article 14. Previo u sly, Fazl
Ali J h ad , in th e Charanjit Lal Chowdhury v . Union of
India111, sou n ded a n ote of cau tion ag ain st the
11
doctr in aire ten d en cies of th e classification test. In thi s
11

limi ts. From a positivistic point of view, equality is
antithe tic to arbitr ariness . In fact equality and
arbitrariness are sworn enemies; one belongs to the rule of
law in a republic whi le the other , to the whim and
caprice of an absolu te n1onarch . Wh ere an act is arbitrary it
opin ion, Bh agw ati CJ seemed to be ech oin g Kh anna J1s
view s in the Habeas Corpus case112 whe re hi s dissen t had
equate d the ru le of law with th e anti th esis of
arbitra rin ess . In creatin g the n ew stan da r d of
1
' arbi trarine ss 11
the cou rt cast off its tradition al
,

is implici t in it that it is unequa l both according to political classificatio n tesf s d octrinal con struct. Th e cou rt
logic and Constitu tional law and is therefore violative of seeme d to be say in g th at it would n ow test the
A rticle 14 .... Articles 14 and 16 str ike at arbitrarine ss in 1 11
' reason ablen ess of statu tes wi th ou t limitin g itself to
State action an d ensure fairness and equali ty of 11
mea n s-en d scru tin y p rescribe d by th e classification 11

tre atme nt. 109 1 11 11

d octrine . Wh ile th e ' reason ab len ess or arb itra rin ess 11

(emph asis supplied ) stan da rd ap p eared to h ave bee n de rived from Article 19
Piercin g thr oug h th e vei l of fashi on able catc h phr ases an aly sis, th e court pe rh ap s did not con sider th at Article
11 11
1
suc h as ' equali sin g pr inci ple 11 11
all-emb racing scope
,
11
, 19 reason able n ess review wa s itself subje ct to
11
activist mag n itude 11 1
an d ' dy n am ic con cep t the 11
, d octrin aire mean s-en d scrutiny in p ast de cision s.
 The court's langu age rad ically enhanced th e concept of
"equality " an d "equa l prot ection" unde r th e Indian
Constitut ion, hold ing that th e very existence of
arbitr arine ss, notw ithstand ing th at it may be even-
han ded (and there fore theoretically equ al) arbitrariness,
militated again st th e prot ections of Article 14.
Significantly , in his opin ion, Bhagwa ti CJ relied on an
opini on de livered by Bose J,113 who in a sep arate
opini on in the Anwar A li Sarkar case114, ha d rejected the
rational classification doctrine several decad es befo re.115
Dram atically, equa lity and arbitrariness were declar ed
"swo rn enemie s" and it was he ld th at an arbitrary act
would inheren tly fall foul of th e right to equality. Non -
arbitr arine ss was equated with the "rul e of law" .
3 . 1. 1. 1. Cn -tzczsms
- - ,l' "Royapp a " 116
o;
The court' s analy sis of the an tith esis between
arbitr arine ss an d equality ha s been criticised for
comm itting th e logical fallacy of th e un distributed
mi ddle .117 Consider a governmen t that "arbitrarily"
raises its taxes across all sections of society. Whil e th e
increase in the tax burd en affects all citizen s equa lly, it
does not milit ate aga inst th e claim that th e act was
arbitrary . At a pra ctical level, bright line s118 often
involve arbitrariness. Consider th at th e right to drive a
car, th e right to vote or lll 144 the right to consume
alcohol, all accrue variously in variou s jurisdictions
whether at the age of 18, 21 or 25. Intu itively, there
seems to be no ration ale for p ermi tting a citizen who ha s
just tu rne d 18 to vote in th e general election s, whi le
refu sing the right to a citizen who still ha s a week to
tum 18. The rational e for this type of bright line
"arbitrariness" seems to be the goal of achieving
certaint y. Wou ld arbitrari ne ss of the typ e involved in
affixing br ight line ru les violate th e "arbitrariness"
standar d creat ed in the Royappacase119 .120
Two significan t feature s of the case de serve
elaboration . First, th e Royappa case121 dea lt with equal
prot ection law . The "arbitrariness" stan dar d articulat ed
in the Royappa case dea lt with discrimin ation an d was
conceived as a prot ection aga inst violations of equal ity
unde r Article 14 of the Indian Constitutio n. Stripped of
fashion able legal argu ments , th e petitione r in the
Royappacasewa s in essen ce agg rieved by the fact th at he
had been unf airly " discriminate d again st or singled
11
out , and was transferred from th e po st of almi ght y
Chi ef Secretary to a me aningle ss shell po st. Wha t the
pe titioner would essentially hav e liked the court to do,
ther efore, was to claim that ther e was no ''intelligible"
differentia u sed, an d th at he wa s being discrimin ated
again st.122 In othe r words, like the N awab 's wives in th e
Anieerunnissacase123, the petitio ner ha d bee n singled out
wi th ou t int elligible differentia . Altho ugh the action
taken aga inst him was "well defined " in its app lication,
it was not ba sed on any stan dar d or pr inciple of gene ral
appli cability. Since the State can un der certain
circum stan ces argue that classification involving a
single indivi du al can possess an "intelligible "
differentia, 124 the petit ioner may hav e w anted the court
to exami ne the rea sonablene ss" of the "intelligi ble"
11
differentia used against him . In othe r wo rds, taking
after Vivian Bose's opinion several years ago, the
pe titioner would hav e W145 comp ared the differentia
used again st him to skull mea su rem ent s" i.e. pr ecise,
II
scienti fic an d cap able of mea surement , bu t not
"rea sonable". The court' s elaborate arti cula tions of the
arbitrar ine ss" standard , mu st the refore be un derstood
11
within the discriminatio n context of this case. Du e
proce ss, an d the right to life and pe rson al liberty were
not involve d in the case. Second,the Royappacase125 also
challenged the executive policy an d not a legislative
ena ctment .
H owever, in equati ng "equality " wit h arbitr arines s",
11
Bhagw ati CJ's opinion seemed to aspire to achieve the
ideal s espoused by Khann a J's dissent in Habeas Corpus
case126 .
3.1.2. "The waters 1nust n1ix": "Maneka Gandhi"
Several years later, the court's articulation in the
Royappacase127 resurfa ced in Maneka Gandhi case128 . As a
result of a series of po liti cal event s, the In dian Na tional
Cong ress pa rty, for the first time in Indi a' s poli tical
history, ha d lost the national election . The forme r
Cong ress Prime Mini ster, Indira Gan dhi, w as expelled
from Parliame nt. Her daug hter-i n-law , Maneka Gan dhi,
the not ed animal right s activist known more famou sly
for having been "forced ou t" of the Prime Ministerial
reside n ce after the dea th of her husb an d,129 received a
no tice from th e Ind ian Region al Passpor t Office
inform ing her that her passport had been impound ed,
and asking her to su rren der it within seven da ys. She
filed a petition before the Supreme Court of In dia,
making thr ee pr in cipal claim s: i) the righ t to go abr oad
wa s imp licit in the right to life and "per son al liberty"
gua ranteed unde r Article 21 of the India n Con stitution;
ii) she wa s being denied the right to go abro ad wi thou t a
he aring, or without affording any reasons the refore the
depr ivation of life an d liberty wa s pro cedur ally un fair;
and iii) Section 10(3)(c) of the Passport Act, 1967 whi ch
gave the passport autho rity the powe r to impoun d
p asspor ts "in the inte rests of the gene ral public" was
vague an d suffered from the "vice of overb readth" .
lill 146 Not ably, beside s an incident al challenge to the
statu te itself, the pr incipal right invoked in Maneka
Gandhi case130 w as not the right to equality un der Article
14, but the right to life an d ''person al liberty" unde r
Article 21. Unlike the 14th Amendme nt to the US
Con stitution, Article 14 of the In dian Constitutio n does
no t contain a du e pro cess clause.131 Article 21, the righ t
to life an d "personal liberty ", contained a "pr ocedu re
establi shed by law " clau se, which reflected th e intention
of the framer s of the Indian Con stitution to specifically
exclude the due process clau se.
The cou rt foun d th at by denying Maneka Gandh i a
hearing before impou nding her p asspo rt, the Passp ort
Autho rity of India had violated pr inciples of "na tu ral
justice" .132 Without referring to the deletion of the
II
phra se due process of law " from the draft consti tut ion,
althoug h at the same time acknow ledging that th e
In dian Con stitution did no t contain a due pro cess
clause, the court found tha t the right to life an d per son al
liberty inclu ded the right to go abro ad, 133 and the
"pro cedu re established by law " for the depr ivation of
the righ t to life an d personal liberty , should be "fair, just
and reason able" and not "fanciful, opp ressive or
arbitr ary" .134 Calling for a holistic, harmoniou s
interpre ta tion of constitu tional rights, in an opinion
strong ly reminiscent of Fazl Ali J's appro ach in the
Gopalan case135 , Beg CJ held :
Articles de alin g w ith different fundamen tal right s
con ta ined in Part III of the Constitution do not repre sen t
en tirely sep arate str ean1s of rights w hich do not m ingle
 at many points . They are all parts of an integrated W147
scheme in the Constitution . Their waters mus t niix to
cons titu te that grand flow of uninipe ded and inipartial Jus tice.
(emphasis supp lied)
Bhagwat i CJ build ing on hi s opinio n in Royappa case136
held :
The principle of reasonableness, whi ch legally as well as
philosophically , is an essential element of equality or
non -arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure con teniplated by A rticle 21
mus t answer the test of reasonableness in order to be in
conforn1ity with Article 14. It mus t be 'righ t and jus t and
fair' and not arbitrary, fancifu l or oppressive.
(emph asis supp lied)
For the first tim e in India's constitu tional history , a
majority on the Supr eme Cou rt h ad accepted that the
right to life an d per sonal liberty wa s subject to a high er
no rm ba sed on "fairn ess" and "rea sonablene ss", despite
the expli cit deletio n of the due process clau se from the
Constitut ion's text. H owever , th e "reasonab lene ss"
no rm did not come from "natu ral law" as Kh ann a J' s
dissent in the Habeas Corpus case137 had sugge sted.
Instead, it had an express textual origin - Article 14 of
the Constituti on . In this m ann er, bo lster ed by th e fluid
unde rstanding of fun da ment al right s and constitu tional
principle s in cases su ch as the Coopercase138 or the Basic
Structure case139, the cou rt employed an une num erat ed
or extra-constitut ional stan dar d of review, whi le
ap pearing to roo t thi s stand ard within the
Con stitu tion 's text.
In articulating this "new " app roach, Bhagwa ti CJ
shrugg ed off his hold ings in the Habeas Corpus case,
w here he refu sed to go aga inst the frame rs of the In dian
Con stitu tion . In reading w hat wa s essentially due II
proc ess" into the India n Constitution , Bhag wa ti CJ did
not seem to mind that he wa s adop ting an ap proa ch
"contrary to all canno ns of const ructio n", one whi ch
II
wou ld de feat the object of the Constitutio n m aker s" or
"make a mockery " of their textual choi ces, as he h ad
foun d in the Habeas Corpus case. H e refu sed to apply the
"plain and emphatic comma n d of the Constitutio n"
w hich he h ad done only a few years before then, an d
adopted Kh ann a J's dista ste for II
arbitr ariness" .
Bhag w ati CJ' s approach differed from the Habeas Corpus
case1 but thi s w as not hypo crisy - it was a telling just an d fair" procedu re. Interestingly, the justification
ind ication of the legitim acy of judi cial activism for reading proc edu ral fairne ss un der th e "procedu re
follow ing the HabeasCorpus case1 an d of the willing ness clause" of Article 21 came from a constituti on al clause
of court s to discard the constrain ts of original intent. that did not hav e a du e process clause at all - Article 14
Thi s case was also arguab ly the second ph ase in whi ch i.e. equ al prot ection. Perh ap s analogou sly to th e 14th
Gopalan case140 hold ing regar ding the ''spiri t" of the Ame nd men t to th e Ameri can Constitution that
Constitutio n was overruled. Previo u sly a majority of
1
"incor porates" or " absorb s" rights against the State s, the
seven jud ges ha d held th at the Constitution lill 148 ha d a court "incorporated " the "pe rsonal libe rty" of Article 21
"ba sic structu re", or essential featu res - a hol ding into th e equal prote ction clau se of the Indian
remar kably simila r to the "spi rit" argum ent. In Manek,a Constitution .
It is significant to note , howeve r1 th at the Maneka
Gandhi case14\ the court applie d the "spirit" of Article
Gandhi case did involve the dep rivatio n of a sub stantive
14 to Article 21. In so doin& the court implie dly
right whi ch could have been equated with a "personal
overruled its hol ding several decades ago in Gopalan
liberty" depriv ation. The court foun d that "no person
case142 th at a court could not look to the Constitut ion's can be depr ived of his right to go abroad unles s th ere is
"spirit" for guida n ce. a law ma de by the state pr escribing the pro cedu re for so
Ironi cally in this manne r, pro ced ural du e pr ocess
1 depr iving him an d th e dep rivation is effected strictly in
substan tively became a p art of Indian constitutional
accordance with such proce du re." 144 Accor dingly, the
law .143 However procedural right s ha d steadily been
1 court impliedly held that the "right to go abroad " was a
enfo rced by the Suprem e Cou rt under Articles 14 an d fund ame ntal value that deserv ed to be protecte d by fair
19. In thi s case the cou rt found th at the right to "life an d
1 proce ss. In thi s sense the court's opinion resembled
1
person al liberty " as inter pr etively unde rstood could
1 1 Amer ican "fun dam ental rights" due pro cess.
not be deprived without due proc ess or "reason able 1
 Signifi cantly, in articulatin g tha t the "proce dure
established by law " mu st be "fair, just and reason able",
the cour t u sed a familiar "reasonab leness" test. Th e
word "reason able" app eared in Article 19 of the Indian
Con stitution, bu t had been held to be "impli cit" in
Article 14 as well. 145 Follow ing the cou rt's op inion in
the 1\1.anekaGandhi case, the ''reason ablene ss" stand ard
w as finally app lied to "liberty " value s unde r Ar ticle 21
of the India n Con stitution . In articulating this "fairne ss"
or "rea sonablene ss" stan dard , the cou rt's op inion
soun ded very similar llJ 149 to the app roach adopt ed by
Frank fu rter and Cardozo in Amer ican federal state due
pr ocess cases. It is also difficult to ignore th at the wo rd s
"fair", "just" an d "reason able" w ere used similarly in a
sing le senten ce by the Ame rican Supre me Cou rt in the
Lochner case146 - the foun tainhea d of depre cated
sub stan tive due proce ss doctrine.
Sub sequ ent de cisions147 of the Supre me Cou rt would
refer to the golden triang le" of rights i.e. the right to
II
equa lity un der Article 14, freedom unde r Article 19, an d
life an d "personal liberty " unde r Article 21 whi ch were
held in the Maneka Gandhi case148, not to be mutually
exclusive. Hen ceforth, stan dar ds of review develope d
und er one clause could be u sed while interpre ting
ano ther . H ow ever, there is no escap ing of the fact that
the so calle d "triangle" in the Maneka Gandhi case may
have been isosceles - due proce ss had been consciou sly
excluded from the righ t to life un der Article 21 - bu t
equa l prote ction do ctrine un der Article 14 was used to
II
rea d due proce ss in th e form of arbitrarine ss" into
II
Art icle 21. Thu s, tw o key angle s in this golden"
isosceles tr iang le resembled the 14th Ame ndme nt, in
that equ ality an d the right to life shared the same sp ace
as they do in the 14th Amen dment of the Amer ican
Constitu tion, and each derived sustenance from the
othe r . The r adiatin g presence of Article 19 in this
isosceles golden triang le cast the luminous glow of
"reasonab leness" upon the an alysis of Articles 14 and
21, an d in tha t sense, the "rea son ablene ss" app roach of
Art icle 19 lent me anin g to the mu tually derived
und erstanding of Article s 14 and 21.
Chan drachu d J soun ded a no te of caution:
Brother Bhagwati has, on th is aspect considered at length
certain An1erican decisions ... illum inating thou gh his
analysis is, I am inclined to think that the pre sence of the
 due proce ss clause in the 5th and 14th An1endments of
the American Cons titution makes signifi cant difference
to the approach of American Judges to the defin ition and
evalu ation of cons titutional guarantees . The content
wh ich has been n1eaningfully and imagi n ative ly poured
into "due process of law " n1ay in n1y view cons titute an
1 1
importan t poin t of dis tinction between the American
Consti tution and our s wh ich stu di ous ly avoided the use
of th at expression .
While the court in Cooper case149 h ad held th at two or
more constitu tional provision s may ap ply to the
solut ion of one problem i.e. over rulin g the pr eviou s
Gopalan case150 view , the court in M aneka Gandhi case liJ
150 and Royappa case151 went a step furt he r and
interpr eted constituti on al provisions har moniou sly.
3.1.2.1. Analysing "Maneka " 152
Significantl y1 the two doctr inal themes of the M aneka
Gandhi case seemed to confli ct with one anothe r. The
cou rt in Maneka Gandhi case seemed to be articu latin g
two proposit ions : i) th at th e right to equality is
antith etic to arbit rarines s, and that Article 14 militates
aga inst "arbit rarine ss"; and ii) that the ''proc edu re
establi shed by law " for the depr ivation of the right to
life and person al liber ty mu st be "fair, ju st an d
rea sonable " . H owever 1 the first of th ese pro po sitions
seemed to swallow or envelope the second . Althoug h
the cour t could hereafte r measu re a law by the strength
of whethe r the law depr ived life an d pe rsonal liberty
"fairly1 justly an d reasonably ", a ho lding w hich seemed
to milita te only aga inst the proc edure of the law but not
its substan ce1 a court could alway s sub sequen tly
mea sure the substance of the law by deter mini ng
w hethe r it w as "arbitrary" . The "arbit rarine ss" analy sis
in a sense overwhelmed the "fair1 just an d rea sonable "
ho lding . The first of the two proposition s ap pe ared to be
"substant ive" and the secon d "proc edu ral". H oweve r, it
wou ld be a terminologi cal err or to term the second
propo sition a mere "pro ced ural due pro cess" hold ing1
since it substantively create d the value of fair pr ocess.
The Maneka Gandhi languag e1 however 1 theore tically
enabled a court to test both the pr ocedure an d the
substance of law . For examp le1 assume that Parliament
ena cts law X which deprive s the right to the easemen t of
light in the city of Mumbai. Assum e th at law X bring s
abou t thi s depr ivation by empowering local authoritie s
to grant builder s constru ction ap pr ovals and "no
objection certificate s" after hear ing the int erests o~
nearby resident s. Following th e 1\11.aneka Gandhi
construct, a constituti ona l court could test th is law in
two w ays. First, by determining w hethe r the right to the
easemen t of light violated Article 21. In this step, th e
fact that th e easement of light may not be a p art of th e
right to "personal liberty" wou ld be as relevant a;, t~e
fact that th e pro ced ure established by law may be fa1r1
just an d reasonable" . H oweve r1 in the second step/ a
cou rt could test th e constitut ionality of th e law by
determi ning whethe r it was "arb itrary " . Despite the fact
that th e law m ay not have involved dep rivations of life
or p ersonal liberty, th at it was "fair1 just . a~d
reasonable" in its proc edu ral compone nt1 and that 1t did
not discriminat e between person s similarly situa ted / a
cou rt could invalida te it by holding that the law was
"arbitrary " unde r Article 14. liJ 151 Accor dingly1 th e
Article 14 "arbit rariness" holding of the Maneka Gandhi
case153 seeme d to sw allow th e Article 21 pr oposition/
and constituti on al an alysis entirely .
Several qu estions arise regarding th e Maneka Gandhi
case. Th e first que stion w hich arises is - did th e court in
Maneka Gandhi case depart from the tra ditional rule/ or
mere ly recast its old w ine in a new doctrinal bottle ?154
The Maneka Gandhi case had th ree signifi cant
consequences .
First1 it m arked a par ad igm shift in the court's
standa rd of review in equal pr otection an alysis. It
reiterate d Royappa case155 wholesale shift from
"classification" rev iew to a more nuanced
"reason ableness" review of legislation 1 in the form of
"new " arbitrariness an alysis. H owever 1 besides stylistic
chan ges in the court's languag e1 it is doubtful if th e
ap pr oach ado pted by the court was any differe nt th an
that seen in cases arising und er Articles 14 and 19. Equal
prot ection an alysis in subseque nt yea rs wou ld continue
to invo lve element s of the classification test, even
thoug h the court may not h ave articula ted its concerns
in ter ms of the classification test. A few month s after
thi s decision 1 Krishn a Iyer J had sta ted that th e
constitu tional test of reasonableness alth oug h bu ilt into
Article 19, w as "imp licit in Article 14" .156
 Second, by articulatin g tha t the "procedu re estab lishe d
by law " must be ''reasonable, just and fair" (an
articulation which bore striking resembla nce to the
spee ch delivered by Chim anlal Chakkub hai Shah in
favou r of the due proces s" amen dmen t before the
II
Cons titu ent Assembly of India,157 and to Lochner case158
lan guage ) the court m ade w ay for pr ocedur al due
pr ocess doc trine in Indian constitu tional analysis. The
law until then requi red the existence of a validly
en acted law to susta in depr ivations of life an d pe rsonal
liberty. H owever , Maneka Gandhi case changed the
stan dard to include proce dur al elements of the due
pr ocess clause.
Third, an d at a more fund ament al level, the m ajority's
opin ion in the Maneka Gandhi case created a framework
within which claims th at were essentially based on
"personal liber ty" an d "due process" could be made in
equa l pr otection clothing. 159 By invok ing the talismanic
wor d " arbitrariness", a statute th at essenti ally violated
the right to life an d W 152 pe rsonal liberty un der Article
21 of the Indian Cons titution could be ch allenged for
creat ing unfa ir proce dure s for the deprivation of the
right, couch ed as an Article 14 argument .
Doctrinally, the cour t's use of Arti cle 14 of the Indian
Constitu tion, an d its virtu al in corpo ration of the due
proces s clause into Art icle 21 throug h the pr ism of equa l
pro tection analysis, ha d one signifi cant dange r - by
broadenin g th e scope of equa l prote ction an alysis un der
Art icle 14 the court opened the floodga tes of due
proces s challenge unde r Article 14 without "perso nal
liberty" as a limiting value . Theoret ically, the court's
broad langu age seemed to imp ly that even a m an
dep rived of his evening tea or a teen ager depr ived of
we aring baggy p ant s coul d make a constitutional
challenge on arb itrar iness groun ds, notwithstan ding
that the dep rivation of tea or ba ggy pa nt s woul d not
ordin arily consti tut e a "liberty " pro tected un der Art icle
21. After all, if all arbitrary " law is un constitu tional,
II
then should it ma tter wh at right the law seeks to
deprive? By uti lising Article 14 to read pr ocedu ral
fairne ss into Article 21, the court had also unw itting ly
enha nced th e scope of "equa lity" un der Art icle 14, and
thereby un dervalued an imp ortant constitu tional norm,
"per sonal liberty".
 Was 1\1.anekaGandhi case160 an overd eter min ed case th at
cou ld have been dec ided differently in order to reach
the same outc ome ? For starters, the court need not hav e
invoke d the due pr ocess doctrine at alt since M aneka
Gandhi case also ha d an equal pr otection dimension . By
11
perm itting the ad ministrative autho rity to arbitraril y"
discrimin ate be tween persons simil arly situate d, it
seem ed to violate the equal protection clause of the
India n Constitu tion . Fur ther , in term s of outcom e, the
decision in M aneka Gandhi case was actua lly mild - the
statu te w as saved from invalida tion, with the only
reservation tha t the ad ministrative auth ority wo uld
have to record reasons for its decision . Of course, tho se
reasons could the n be challeng ed before a court, bu t
signifi cantly, the Passp orts Act, 1967 w as not
inv alid at ed at all but int erpreted in a m ann er
harmo nious with the court's substa nti ve analy sis.
In Royappa case161 and sub sequ entl y in the 1\1.aneka
Gandhi case, arbitrar iness an d equ ality w ere declared
"swo rn ene mi es" on the pr em ise that arbitrar ine ss w as
contr ary to the "rul e of law " . But did the cou rt correctly
reject arbit rariness as antithetic to the ru le of law ?
Fun da ment ally, the phr ase "ru le of law " is not textua lly
a p art of the Indian Constitut ion . H ow ever, accord ing to
Ivo r Jenni ngs, the general pr inciple th at no rights
deprivation can take plac e absent du ly en acted law was
roote d in Article 21 of the Indi an Const itut ion at its very
inception .162 The "ru le of law " requ ires that "the
coercive power of the llJ 153 Stat e can be use d only in
cases defined in advan ce by th e law an d in su ch a way
that it can be foreseen how it will be used", 163 whi ch
distingu ishe s it from "rul e by law ". In its purest form, a
society gove rned by the rul e of law ensure s th at
gove rnm ent action is not ad hoc,164 bu t that citizens are
put to notice of law, so th at they know how to order
the ir lives. Simply stat ed, the "ru le of law" means th at
noth ing can be done w ith out the sanction of law .165
Ther e is, how ever, a mar ked differen ce betw een
arbitrariness which contr avenes the ru le of law, an d
arbitrariness wh ich falls within the framewo rk of the
ru le of law . Consider, for exampl e, the pr ov erbial law
w hich casts all red-haire d individual s to prison. 166
Assum ing for a mome nt th at the law wa s validly
enacted i.e. it was pa ssed by a requisite m ajority of th e
legislative autho rity, can it still be said that the enac ted
law violates the rul e of law ? Dicey spoke of the "rule of
law " an d the absence of arb itrary powe r, bu t at the
same time synthesi sed it wi th notio ns of parl iament ary
sovereign ty .167 To th at extent, "rule of law" argu ments
are process-driven. A law which was validly en acted
may none the less violate fundame nt al sub stant ive
pr inciples , or be pr ocedurally unf air . To use the
aforesta ted illustration , a law wh ich casts all red haired
indivi dua ls to prison woul d not surv ive ba sic mea ns-
end analy sis un der Article 14 of the India n Con stitu tion,
and its proc edura l fairnes s woul d be strongly
que stionable. Therefore, the court 's u se of the phra se
"rul e of law " to bolster its "arbitrari ness" an alysis doe s
not self-evide ntl y strengt hen the court's do ctrinal
found ations. The law in ques tion may have viola ted the
rule of law, how ever, by conferring arb itrary " powe rs
II
upon the pa sspo rt authority . In this sense, this case was
no differen t from the "well-defined class" cases of the
early years.
3.1.3. "Ramana Dayara1n Shetty" and "Aj ay Rasia"
Soon after th e Supr eme Court's decisions in the R oyappa
case168 an d Maneka Gandhi case169, the Suprem e Cou rt
elaborate d its "arbitrariness" stan dar d in two significan t
decisions. In each of these cases, the cou rt conside red
the constituti onality of execut ive (not legislative ) action .
The court used the same arbitrarines s" langua ge which
II
it ha d devi sed in liJ 154 its pre viou s cases. Bhagwati CJ's
opin ions in each of these cases wou ld shed some light
on the manne r in which the arbitrariness" test was
II
mea nt to be app lied . H owever , the cou rt' s conclusion s
were very similar to prev iou s decisions of the 50s an d
60s involving execut ive action, and invoke d the same
adminis trat ive law pr incip les with whi ch the cour t wa s
familiar. Th ese decisions became more well known ,
how ever, for br oa dening the ap plicability of
constitu tional an alysis un de r Article 12. The se cases
followe d Mathew J's con curring opin ion in Sukhde v
Sin gh v. Bhagatram Sardar Singh Raghu vanshi 170 and the
cour t found that the term "other authorities" un der
Article 12 of the Constitut ion again st whi ch
fundament al rights app ly an d who se actions con stitu te
"State action", included "agen cies" or
"instrume ntalities" of th e governme nt. While it would
earl ier have been difficult to bring these authorities
within the constitut ional net absent a law authorising
their "arb itrary" actions, it now be came possible to
subjec t a w id e variety of authorities to the constit utional
reme dy . For th is rea son, these cases deserve perh ap s
equa l or greater emp hasis in th e shift in the court's
doctrinal ap pr oach in the late 70s.
In R amana Dayaram Shetty v . International A irports
A uthority 171 (Ramana Dayara-m Shetty), the Supreme
Court seeme d to hold tha t any breach by an executive
aut hority of the doctr ine of legitima te expectations,
wo uld be consi dered an "arb itrary " exercise of powe r.
The Intern ational Airports Authority had invited
tenders for runni ng a restauran t an d two snack ba rs at
the international airpor t in Bombay . Six ten ders were
receive d, bu t only one of these wa s comp lete. The
tender was accor dingly awa rde d to the four th
respon dent, despite th e fact that the fou rth respo ndent
did not have the pre scribe d expe rience . The appe llant
challenged the award of the tender 1 claiming tha t he had
refrained from submitti ng a tender since he did not
have the requisite qu alifications prescribed by the notice
invitin g ten ders. Accord ingly1 the appe llant argue d that
the awa rd of the tende r to th e four th respondent wa s
arbitrary . Spea king for the court, Bhagwat i CJ held that
actions of the execu tive gove rn men t must not be
"arbitrary, irratio nal or irrelevant", or even
"unr easonable or discrimina tory "1 hol ding that where
the State chooses to enter into a relationsh ip w ith a
pe rson1 it mus t act in conform ity wit h some stan dard or
principle which me t the test of "reaso nablene ss" an d
"non-discrimination". The court equ ated the absence of
arbitrariness" with the "rule of law " .
11
It is indeed un thinkable that in a democracy gozJerned b1Jthe
rule of law the executive Governnien t or any of its officers
should possess arbitran; power over the interests of the
in dividual. Every act ion of the execu tive Government llJ
155 mus t be informed with reason an d shou ld be free
fron1 arb itrariness . That is the very essence of the ru le of
law and its bare minin1al requiren1en t. And to the
app licat ion of th is princ iple it makes no t difference
w hethe r the exercise of the power invo lves affection of
son1e right or den ial of some p rivilege ,172
(en1phasis supp lied )
Going a step further , the cou rt seeme d to apply
constitu tional stan dar ds to admin istrative law
pr inciples , de rived from the commo n law . H oweve r,
this w as neither novel nor uni que, and prin cipl es of
admini strative law derivab le from the commo n law h ad
been app lied as constitu tion al tests even in th e early
yea rs of India 's constitu tion al hi story .173 Th e court' s
"arbitrarine ss" stan dar d therefore appea red to be
innocuo us, a me re reiteratio n of th e constitut ional
cryst allisation of common-law principle s ?f
adm ini strative law . H oweve r, the bro ad lang u age 1n
which the test wa s cou ched left open th e da ng er that it
would be overu sed by a zealous court.
Article 14 strike s at arbitrarine ss in State action and
ensure s fairne ss an d equ ality of tre atmen t . It require s
that State action n1ust not be arbi tr ary but n1ust be ba sed
on some ra tion al an d relevant pr incipl e which is non -
di scriminator y: it mu st not be guid ed by any extr aneou s
or irrelevant con side ration s, becau se that w ould be
den ial of equality .174
Ironically , the court denied the appell ant relief, on the
claim that he appeared to h ave been motivated to file
proceedi ngs, and on account of delay .
In Ajay Hasia v . Khalid Mujib Sehravardi175 (Ajay Hasia),
the pe titione rs ch allenged the or al interview conduct ed
by the Regional Engineering College, Srinag~r, . as
having "arbitrar ily" deprived them adm 1ss1?n .
Bhagw ati CJ articulate d the "arbitrar ine ss" test, whi ch
was lying "latent and submerged " in the "simple but
preg n ant" text of Article 14. In its de cision, the Supre me
Court foun d th at the pro cedure s estab lishe d by the
college were prone to arbitrary exercise.
[T]he concep t of rea son ablene ss and non- arbitr arine ss
pe rv ade s the entire con stitu tion al schen1e an d is ~ golden
th read whi ch run s th rough the whole of the fabnc of the
Constitu tion .176
These cases did not involve nove l or strikingly un ique
conclu sions, since hint s of Wednesbu ry
"un reasonableness" w ere tra ceable to earlie r lill 156
decisions of the Supreme Cou rt.177 H owever, th ey were
nove l becau se the y broadene d the ne t of aut horities to
w hom constitu tional pr inciple would apply . The new
"arbitrar ine ss" test accordingly seeme d to do nothing
more than to app ly regu lar admin istrative law
pr incipl es and w ell-defin ed class" con cerns to
11
execu tive authorities, an d the mann er in whi ch
discretion was to be exercised, alth oug h th e cou rt' s
lang uage wa s more vehementl y wor ded. The only
un iqu eness of these cases, besid es th eir strong
articulation of "arbitrarine ss", w as in th eir wide nin g of
the ap plicability of constituti on al pr inciples un de r
Article 12.
4. Procedural due process after "Maneka "
4.1. Constitutionalis ed "natural ju stice "
The aftermath of th e Maneka Gandhi case178 witnessed
the rise of "pr ocedu ral due pr ocess" un derstood as
notice and hearing in In dia . In the years subsequent to
the 1\1.aneka Gandhi case, the court seeme d to rely m ore
strongly on the Article 21 compone nt or proposit ion of
the case, rather than the Article 14 pr opo sition. In oth er
wor ds, cou rts wou ld usua lly find law "arbitrary" if the
proc edu re estab lished by law to create deprivatio ns was
not "fair, just an d reason able" . When a cour t said that a
law w as " arbitrary ", it usua lly me ant that author ities
w ere empow ered by the law to arrive at de cisions
witho ut accoun tin g for the ru les of natu ral justic e. Most
of the cases in the afterm ath of the Man eka Era,
how ever, seemed to articulat e a stan dar d of "n atu ral
justice" in a statu tory vacuu m i.e. very rarely if ever did
a sta tut e sp ecifically exclude natu ral justice. Rath er,
statut es whi ch wer e silent abou t how au th oritie s were to
exercise their pow ers wer e int erpr eted as requi ring
au tho rities to observe "natu ral justic e" .
Equ ipp ed w ith a new stan dar d which enabled cour ts
to app ly the pr ocedu ral elem ents of Am erican due
proc ess do ctrine in Ind ia, or ' procedu ral due
1
proc ess", 179 constitut ional cour ts faced a series of cases
w hich invok ed the "reasonable, just an d fair" stan dar d
of non- arbitrari ness in gov ernme nt action . Depend ing
on th e n atu re of gove rnm ent action that w as challenged ,
the re were cases that llJ 157 qu estioned adm inistrative
ru les issu ed by sta tut ory de legate s,180 statutory
provis ions, execu tive po licy181, gover nm ent orders,182
or gov ernm ent contracts.183 Interestin gly, statu tory
challeng es involv ed bot h pre -Constitu tion and po st-
Constitu tion sta tut es.184 Significantly , in two decades
since Manek,aGandhi case1851 the Supr eme Cour t of Ind ia
very rare ly invali dated a sta tutory prov ision on ground s
that it w as arbitrary or unrea sonable. Instead statute s
1 intern ationally 1 191 comp lained of his confinement in bar
that appeared to be inconsisten t w ith subjective notions
of fairne ss or "non -arbitrar iness" were "read down" or
interpreted harmoniou sly with fairne ss notions .186 In
Maneka Gandhi case itself1 the impugned statu te wa s
"rea d down " to includ e principles of natu ral justice.187
The term "natur al ju stice" in Indian constitutiona l law
me an s the right of a person who stan ds potent ially to
1
be affected by an admin istr ative decision1 to receive a
he aring before (or some time s after ) the de cision .188
Various opin ions in the post-Maneka Era treated
"arbitrariness" as constitu tionalised ''natu ral
justice"' .189
lill158 For example , in Suni l Batra v . Delhi Ad-mn .1901
Sections 30 and 56 of th e Prisons Act1 18941 a law which
pr e-date d the Constitutio n were challenge d . Suni l
1
Batra a prisone r who was awaiting the deat h sente nce
1 exercise.192 Similarly1 the court found that the re w ere
for mur der1 compla ined of solitary confineme nt1
claiming that it violate d his right to life und er Article 21.
In the same case Cha rles Sobraj1 the no toriou s serial
1
kille r know n for having escaped from var iou s pr isons
fetter s an d said that it violated his right to "locomo tion"
un der Article 19. The Supr eme Cou rt of India note d th at
both prac tices were de plorab le1 bu t refu sed to invalidate
legislatio n notw ithstanding th at it w as ena cted by a pre-
In dependence legislatu re whi ch was arguably not truly
repr esent ative of the Indian peop le, choosing instead to
"pour into seemingly fossilized wor ds a freshne ss of
sense" . Accor dingly it was held tha t the wor ds
1
"confined in a cell apart from all other pri soner s" whi ch
appe ared in Section 30 of the Prisons Act1 1894 had a
different mea ning from solitary confinement which was
1
a separ ate pena lty only a court could impo se unde r
In dian criminal pro cedur al law . The court accor dingly
foun d that by inflicting what w as substantially solitary
confinemen t, the prison supe rinte nd ent had illegally
exercised jur isdiction th at only a ju dicial cour t could
inherent safeguard s built into Section 56 of the Prisons
Act, 1894 regard ing th e confinement of pr isoners in bar
fetter s, one of which was that th e pr ison supe rint endent
would have to seriously app ly his mind an d record
reasons wh ich could be challenged .
The scope of pro cedu ral fairness and procedural du e
proc ess seeme d to expand almo st imme diately . In
December 1978, less than 11 months after its de cision in
the 1\1.anek.aGandhi case193, the cou rt was asked for an
adv isory opinion 194 on the que stion of the
constitutio nality of the Spe cial Cour ts (Bill), 1978, whi ch
sought to establi sh special cou rts to speedily try pe rsons
"holding high poli tical and public offices" for offen ces
comm itted dur ing the 1975 Emergency. The cour t foun d
that the provisions of the sta tut e were "unf air" for three
reasons: i) there was no provisio n for the tra nsfer of
judges from one special cou rt to another in the event a
judge would have to recuse himself from the case; ii) the
special court was to be presided over by a retired judge
who did not hav e security of tenure; and iii) the
proc edu re for appointment of a judge requi red only
"consultation " with the Chief Justice of Indi a. W159
H owever , the proc edu ral trappings of the decision i.e.
the fact that thi s case was an abstract advisory opin ion,
m ay have emboldened the cou rt in reaching a finding of
"unf airness" or "arbitrar iness" .
It was perhap s hope d th at na tu ral justice wou ld
proce du rally serve as a check on the exercise of
discretion by admini strative autho rities, which could be
sub stantively reviewe d as a consequence of the
proce du ral safeguards . For example , if an
admin istrative autho rity exercised discretion to depr ive
pe rson X of some benefi t, th e admin istrative autho rity
wou ld ordina rily h ave to comp ly with pro cedu ral due
proce ss requirements i.e. not ice, hearing , reasons. If
pe rson X were aggrieved by the decision, she could
challenge it befo re a court of law, claiming substant ive
"arbitra riness" for non-app lication of min d, irrelevant
considerations etc. The proce dural safeguard s would
m ake it less comp lex for a court to analyse the decision,
given th at the admini strative autho rity would hav e to
articulate its reasonin g in the notice, and in its even tual
order . Thi s would also ensure that admini strative
au thorities would not make de cisions for rea sons that
they could not foresee as being defensible in a cour t of
law (assuming th at objective reasoning is not used to
justify subject ive de cisions). Natura l justice, howeve r,
has been held not merely to hav e instru mental
func tion s, but intrinsic fun ctions as well.195
In 1994, the Suprem e Court of India introdu ced
anothe r aspect of pro ced ural du e pro cess doctrine to
India n con stitu tional law . In Kartar Singh v. State of
Punjab196, the cou rt found th at a "vagu e" law cou ld be
declared uncon stitu tional. Th e "void -for-vagu ene ss"
doctrine stems fro m proc edur al due proc ess for two
reasons: first, a non-vagu e law con stitu tes notice,
resembl ing ''natu ral justic e" (althoug h legislative bo dies
are traditionally not th emselves requ ired to conform to
"natur al justice" norms); an d second, it ensu res that th e
law wi ll not be app lied in an arb itrary or discrimin atory
manne r .197 H ow ever, in its ch ara cteristically pe rmissive
w ay, th e court pe rmissively interpr eted th e sta tut e and
un did the va gu ene ss itse lf.
4.2. The "us eless fonnality " theo1y
At some po int s it seem ed rath er un clear wha t the
purpose of proc edura l du e proc ess wa s. Alth ough the
Supr eme Cour t wou ld in later lll 160 years emphasise the
impo rtan ce of bot h the "instru mental " an d "intrins ic"
functions of n atu ral justice 198 in S.L. Kapoor v.
Jagniohan199 , in 1980, the court seemed to articu late
merely the instrumenta l function s of natu ral justic e
w hile enun ciatin g what is popu larly refer red to as th e
"use less form ality" theory. In this case, supe rceded
members of the N ew Delhi Munici pal Comm itte e
chall eng ed th eir supe rcession on th e grou n d that they
ha d not been giv en an opp ortunity to be heard . On th e
merits of the case, the court found that the order of
sup ercession w as illegal for violatin g pr inciples of
na tu ral justic e. H owev er, whi le ad mitting th at th e
"natural justice" requ irement was subject to no
"exclu sion ary ru le" ba sed on th e po tential outco me of
the agg rieved , the court went on to articulat e an
interesting exception, in what can po ssibly be
conside red obiter dictum :
[w]here on the admi tted on indispu table facts only one
conclusion is possible and un der the law only one
penalty is pern1issible, the court may not issue its writ to
compel the observance of natural justice, not because it is
not necessary to observe natural justice but because
Court s do not issue futile writs.200
H oweve r, su b sequently in Al igarh Muslim University v .
Mansoor A li Khan20\ th e cou rt used thi s theo ry to
con don e aberra tion s of n atu ral ju stice. In thi s case, a
lab orato ry assistant at a u ni ve rsity h ad obta in ed leav e
from th e univer sity in orde r to visit Libya . H e reque sted
an exten sion whic h wa s deni ed . Th e uni ve rsity we n t on
to infor m the assistan t th at if h e di d not resum e hi s
du ties at th e un ive rsity by a certain da te, h e woul d be
deemed to h ave vacated the po st an d will th ereafte r
cea se to b e in th e u ni ve rsity's servi ce. The assistan t d id
n ot resu me his duties , but chall eng ed hi s ter min ation of
serv ice on the ground th at he h ad n ot been afford ed a
h ear in g . Rejectin g hi s submis sion the Supre me Cou rt of
In d ia fou n d that th e fact that p roc edu ral du e proc ess
requi reme nts we re not com p lied with was irrelevant
beca u se th e assistant w as info rmed of th e outco m e of
his con tin u ed absen ce in adv an ce. Th e cou rt went on to
find:
In deed , if the reasons could h ave been son1ewh at
different as may perh aps be disclosed or p roved in a
sub sequent wr it petition su ch as his own failing healt h,
one can un derstand . Bu t so far as leave for purposes of
job continuan ce in Libya is concerned, he h as been fully
pu t on advance notice tha t no further extensio n will be
given .
llJ 161 At first, it would seem that h av ing give n th e
assistant "adv an ce n oti ce" of the ou tcome of hi s
conti n ue d ab sen ce from servi ce, the un iv ersity h ad
fulfilled its p roc edu ral du e proc ess or "n atu ral ju stice "
requ irem en ts. H owever , the fact that th e employee wa s
not given a h earing , an oth er essential ing redien t to
na tu ral justice , wo uld still be a difficulty which would
not h av e bee n ove rcom e. Howeve r, on closer an alysis it
ap p ears th at th e cou rt in thi s case itself en gaged in
sub stan tive scrut iny . Th e pa ragr ap h reproduc ed above
rev eals th at h ad th e assistan t b een able to demo nstrate
to th e court that h e h ad ju st cau se for rem ainin g ab sen t,
the cou rt m ay h ave considered his pro ced u ral du e
proc ess claim . Acco rd ing ly, after engag ing in
sub stan tive review, th e court found th at th e proc edu ral
safe gua rd s th at en able good su bstan tiv e d ecision s we re
not requ ire d on th e facts of th at case . Thi s case doe s
tend to d emo nstra te th at su bstantive review m ay trump
proc edu ral rev iew un de r certain circum stances .202
4.3. Substance versus process in adniinistrative law
The Supre me Court's ap pro ach to administr ative law
has often advoca ted mixed empha ses on proc edu re an d
substan ce. In the court's classical opinion in Tata Cellular
v. Union of India 203 , the cou rt was asked to consider the
constitu tionality of the awar d of a tende r by the
Dep artme nt of Telecommunicatio ns to licence the
operatio n of cellular mobile telephone services in four
me trop olita n cities. The court empha sised th at it would
not be concerned wi th the substa nce of th e decision, bu t
only with the manne r in which deci sion had been made .
Speak ing for the cour t, S. Mohan J held that there we re
"inherent limitatio ns" in the governmen t's powe r to
award a ten der, an d that the right to choose could not
be "arbitrary" _ Formulating the bo un dar ies of judi cial
review , th e cou rt articulated th at only the following
criter ia ought to inform a court 's opinion :
1. Whether a decision mak ing author ity exceeded its
power s?
2. comn1itted an error of law,
3. comn1itted a breach of the rule s of natur al justice,
4. reached a decision which no reasonable tribunal
would have reached or,
5. abused its power s.204
(en1phasis supplied )
H owever , items 2 an d 4 of this laun dry list seem
ominou sly close to substa ntive review. After all,
investigat ions into whether the au thority liJ 162 app lied
the law corr ectly, and whet her its deci sion wa s
"reason able" in the ligh t of the facts, seem closer to
sub stantive scru tiny th an to an an alysis of whet her
proce du ral du e pr ocess interests, such as notice and
hear ing, had been comp lied with. Similarly , the court
also articulated three ground s u pon which an
admin istrative action cou ld be subjecte d to judicial
review:
(i) Illegality: This means the decision-maker mu st
understand correctly the law that regul ates his
decision-n1aking power and mus t give effect to it.
(ii) Irrationali ty, namely, Wedn esbury
unreasonableness.
(iii) Procedur al impropr iety.205
Again , w hile the third of th ese groun ds focu sed on
proce du ral du e pro cess or "natura l justice" con cerns,
the first two seemed substantive in their ap pr oach . It
appeared that in exercise of these two pron gs of inq uiry
the court was not merely concerne d w ith the manner in
whic h the decision w as arrived at, bu t also with the
de cision itself, an d w het he r it correctly app lied law to
facts, and whe ther it was "rational" or ''reasonable"
based on the facts an d law . The court acknowledged
that it wo uld be open for the court to rev iew the
de cision-make r's evalu ation of the facts, but seeme d to
articulate a tradit ional "rationali ty" test, in finding th at
so long as the facts bore a "logical" conne ction with the
con clusion, the decision wo uld be up held. It was he ld
that a decision wo uld be regarded as unreasonable if it
w as unequal in its operation as be tween different
classes . In articulati ng thi s holding, the court seeme d
once more to be emphasising its "we ll-define d class"
interests in the "arbitr arine ss" tes t th at had bee n
devised in the 50s start ing with the "spee dy trial"
cases .206
1. AIR 1950 SC 27.
2. (1970) 1 sec 248: AIR 1970 SC 564.
3 . (1973) 4 sec 225: AIR 1973 SC 1461.
4. (1976) 2 sec 521: AIR 1976 SC 1207.
5. See, Law ren ce Alexander , "Tlte Relationsh ip Betw een Pro cedural
Due Process and Sub stantive Due Pro ces s and Substan tive
Constitutional Rights " (1987) 39 U Fla L Rev 323 (arguing tha t a
realistic con cern for substance req u ires a concen1 for the
p ro cedures of enforce m.ent ).
6. AIR 1950 SC 27.
7. AIR 1960 SC 1080: (1960) 3 SCR 887.
8. AIR 1950 SC 27.
9. K.K. Kochuni v . States of Madras and Kera.la, AIR 1960 SC 1080:
(1960) 3 SCR 887 .
10. Ibid.
11. AI R 1963 SC 1295 .
12 . Ibid, pai ·a 34.
13. lbid.
14. AI R 1966 SC 424 .
15. AI R 1950 SC 27 .
16. S tate of Maharash tra v. Prabhakar Pandurang Sanzgir i, AI R 1966 SC
424.
17. AI R 1950 SC 27 .
18. " Prin1e Minis ter of h1dia, ' h1dira Gandhi 's Staten1ent ' ", July 1969
The Banker . See further , Kusu1n Ketkar and Suhas Ketkar , " Bank
Natio nalization , Finan cial Savings , and Econonlic Developn1ent:
A Case Stu d y of h1dia " (1992) 27 Jotu-nal of Developing Area 69.
19. The subsequent Bank Nati onalisation A ct, 1970 cu re d the defec ts
in th e law .
20. (1970) 1 sec 248 : AI R 1970 SC 564 .
21. AI R 1960 SC 1080 : (1960) 3 SCR 887.
22. AIR 1963 SC 1295 .
23. AIR 1950 SC 27.
24. R us tom Cavasjee Cooper v . Union of India, (1970) 1 SCC 248, 289 :
AIR 1970 SC 564, 597.
25. AIR 1950 SC 27.
26. (1970) 1 sec 248: AIR 1970 SC 564 .
27. Ibid, para 49.
28. AIR 1950 SC 27.
29. (1970) 1 sec 248: AIR 1970 SC 564 .
30 . (1976) 2 sec 521: AIR 1976 SC 1207 .
3 1. Cass Su n stein , "Should Cons titu tions Prote ct th e Right to
Secede? " (2001) 9 J Pol Phil 350.
32 . Alt . 368 provide s that provisions of the Constitu tion can be
a1nended by a 1najo1i.ty of th e total 1nember ship of the House and
by a ma jority of not less than two -thi rd s of the n1en1bers of the
House p r esent and voti ng. Th e House of People tu1der the Indian
Constitution has 550 n1en1bers, while th e Counci l of Sta tes 250
1nen1bers. Accordingl y, at a nU11llnu111 , a constih 1tional
a1nen dmen t r equ ires th e affir111ative votes of 276 1nen1bers in the
House of Peop le (i.e. 550/2+1) and 126 1nen1bers in th e Co tu1eil of
States (i.e. 250/2+1) to pass . Ho weve r, at s01n e po in t in thi s
process , 2/3rd of the to tal ntm1ber of me mbe rs present and voting
in th e House exceeds th e number s of 276 and 126 respe ctive ly .
These po ints occur at 417 1ne111bers in the House of People (i.e.
since 2/3 * 417 = 278 > 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
½x<2/3y, whil e w here the value of y is less th ai1 ¾ x, then
½x>2/3y .
 Ftuther , under Art. 368 (2) certain prov1s10ns of th e 43. Ibid, para 1695.
Constitution can only be an1ended after r atification of one half of 44. Ibid.
th e States . ln1portantly , Part III of th e Constitution does not 45. But see , I.R. Coelho v . State of T.N., (2007) 2 SCC 1: AIR 2007 SC
r equ ire r atification of one -hal f of th e States . 861.
33 . (1973) 4 sec 225: AIR 1973 SC 1461. 46. AIR 1967 SC 1643 .
34 . TI1ese two p r ovisions state tl1at tl1e following are ain ongst th e 47. (1973) 4 sec 225 : AIR 1973 SC 1461 .
directive principles to which the State shall direct its policy : i) tl1e 48. See, Wa.ma.nRao v. Union of Union, (1981) 2 SCC 362.
ownership ai1d contro l of the material resources of the 49. (1973) 4 sec 225 : AIR 1973 SC 1461 .
co111111tuuty are so dis trib u ted as best to subserve the co111111on 50. Waman Rao V. Union of Union, (1981) 2 sec 362 .
good ; ai1d ii) the operation of the econo mi c syste 1n does not 51. Kesava.nanda Bha.rati v. State of Kerala, (1973) 4 SCC 225: AIR 1973
r esult in th e concentration of weal th ai1d 1neai1s of production to SC 1461.
th e conunon detrin1ent. 52 . Ibid, para 1034.
35 . See, Sank.ariPrasad Singh Deo v . Union of India, AIR 1951 SC 458; 53. Ibid, pai ·a 1329.
Sajjan Singh v. State of Rajastha.n, AIR 1965 SC 845; Gola.kNa.th v. 54. Ibid, pai·a 1778.
State of Punjab, AIR 1967 SC 1643 .
55. Ibid, pai ·a 1980.
36 . Gola.kNa.th v . State of Punjab, AIR 1967 SC 1643. For ai1 ai·gu 1nent
56. Ibid, para 2133.
th at the constih 1tion of special Benches of larger st r ength is a
57. (1973) 4 sec 225 : AIR 1973 SC 1461 .
1neaiungless p r actice , see, Chin tai1 Chai1drachud , "TI1e Supre111e
58. Ibid.
Cotut 's Pr actice of Referring Cases to Larger Benches " (2010) 1
59. AIR 1950 SC 27 .
sec J-37 . 60. (1978) 1 sec 248 .
37 . (1973) 4 sec 225: AIR 1973 SC 1461.
61. (1973) 4 sec 225 : AIR 1973 SC 1461 .
38 . Kesava.na.ndaBha.ra. ti v. State of Kerala.,(1973) 4 SCC 225: AIR 1973
62 . Kihota.Hollohon v. Za.chilhu,(1992) 1 SCC 309.
SC 1461, pa r a 14.
39 . Ibid, para 577. 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
40. Ibid.
decisions of election tr ibunals b y w ay of special leave ).
41. Ibid, para 909.
64. AIR 1965 SC 1892 .
42. Ibid, para 1285.
65. (1971) 1 sec 396 : (1971) 1 LLJ 256 .
66. (1973) 4 sec 225: AIR 1973 SC 1461. 80. Ibid, para 530.
67. (1980) 3 sec 625: AIR 1980 SC 1789. 81. Ibid, pal ·a 560.
68. (2004) 4 sec 311: AIR 2004 SC 2371 . 82 . (1978) 1 sec 248 .
69. See, Gr anville Austin , Working a Democratic Consti tu tion (Oxford 83. (1976) 2 sec 521 : AIR 1976 SC 1207.
1999) 293- 313 . 84. (1973) 4 sec 225 : AIR 1973 SC 1461.
70. 1975 Supp SCC 1: AIR 1975 SC 2299 . 85. (1976) 2 sec 521 : AIR 1976 SC 1207.
71. (1973) 4 sec 225: AIR 1973 SC 1461. 86. (1987) 1 sec 124.
72. Ibid, para 206. 87. (1987) 1 sec 124.
73. lbid, pa r a 19. On th e othe r han d, 01andrachud J rejected the idea 88. (1976) 2 sec 521 : AIR 1976 SC 1207.
that judicial r eview was a par t of th e basic stn 1ctu re of the 89. Ibid, para 3.
Constitution , ho lding tha t the p remise was too broadly stated , 90. Ibid.
given th at seve r al p r ovisions of the Constih 1tion pe rmi tted 91. (1987) 1 sec 124.
judicia l review to be excluded. However , h e invalidated clause 92 . See infra, 2.3 alld accompal 1ying text.
(4) of Ar t. 329-A on the theory of separat ion of powe r s, ho lding 93. (1997) 3 sec 261 .
that th e idea of an alllending body being all an1algan1 of all 94. S .P. Sampath Kuma r v. Union of India, (1987) 1 SCC 124.
powers of th e Sta te was conh ·al·y to the bas ic tenets of the 95. (1987) 1 sec 124 para 99.
Constih1tion . His opinion hu-ned on the fact that Pal-lian1ent h ad
96. (1997) 3 sec 261 .
exer cised the judicial hu1etion in enacting clause (4) of Art. 329 -
97. (1987) 1 sec 124.
A.
98. (1997) 3 sec 261 .
74. Art. 359 (1). TI1e clause was subsequently an1ended by the
99. (2010) 11 SCC 1. Civil Appeal N o . 3067 of 2004 decided on 11-5-
Constih1tion (44tl1 An1endment ) Act, 1978 to provide that Arts.
2010.
20 and 21 cou ld not be suspended dur ing all emergency .
100 . Ibid, para 41.
75. (1976) 2 sec 521: AIR 1976 SC 1207.
101. Union of India v. 1\1adras Bar A ssn., (2010) 11 SCC 1. Civ il Appeal
76. Ibid, para 459.
No . 3067 of 2004 decided on 11-5 -2010.
77. Ibid, para 450.
102 . Hal-lal1' s J dissent in Poe v . Ullman, 6 L Ed 2d 989 : 367 US 497
78. Ibid, paras 485-487.
(1961).
79. (1973) 4 sec 225: AIR 1973 SC 1461.
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,
<h ttp: // tim esofi n dia.i11d iatin1es.com / ar ticleshow / 19748025. em s>
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 " 12-8-
2004 BBC Ne w s,
<http: // n ews.bbc.co .uk /2/hi /sout h _asia/3867791.s tm.> 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
11
itself an emanation of sub stantive due process doctrine
- it was a procedura l right which was substant ively
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 n-
arbitr 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 ",
1
"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
11
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
11
seem ed to derive from the core of Article 14; an d iii)
11 11
cases arising un der the court' s righ t to life"
11
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
11
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
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.
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"
11
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
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
II
catego rised wit hin the broad umbrella doctri ne of du e
pr ocess".
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
II
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,
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.
II
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
I
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
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.
case191 the Chief Justice found th at the
In Minerva 1\11.ills
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
11
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 )
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)
lil 172 InWa·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
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)
1mai"48
1.2.2. Analysing "B011
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
11
II
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"
11
revie w, although courts some times left out the values
enfor ced by the se pro visions from the ir analy sis. The
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
11
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
II
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
II
are analysed to assess the after effects of the Maneka
Gandhi case court 's reasoning.
2.J. liJ 178 The doctrinal looseness of"arbitrariness"
Althoug h the arbitrar iness" te st w as formulate d
II
broadly in the Maneka Gandhi case54, confer ring upon
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
II
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
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
II
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
II
legitima te equal prot ection cases involving some form
of discrimination. The cou rt accor dingly used the term
11
arbitrar iness" syno nymously with discrim ination in
these cases. H ere, the term arb itrar ines s" could not be
11
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
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
11
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
11
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.
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
II
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
Parliame nt to legislate on poli ce matt ers still remains .
Such law s have been term ed arb itrary " by Indian
II
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 ,
11
"valid ating acts" were invalida ted by courts even pr ior
Gandhi case63.
to the 1\.1.aneka
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
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
11
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
11
deleg ation of unf ettered powe r to administra tive
autho rities, an d follows from the admini strative law
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
11
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
w here there is no writte n constitut ion1 let alone a
piq u ant du e proc ess" clau se. Accordingly, when the
II
framer s of the In dian Const itu tion deleted the word s
11
11
due pr ocess from the Con stitu tion they could ha rd ly
1
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
II 11
.
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
11
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
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 II
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
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
11
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 " .
II
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"
II II
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
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"?
11
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
11
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.
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 Chen1icals 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" .
II
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
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
11
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
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
II
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
 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
I ap plying the "basic stru ctu re" test formally , it appe ared
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.
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
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
1 ar ticulati n g its conc ern s u n der th e first p rong of th e
app lication wa s p rocedur al. H oweve r th e fact th at th e
1
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 1 it wou ld be app lied an d w as con seque ntl y su sceptibl e
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 1 Section 17 of the Act is like th at of a suit in the court of
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
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
1
of discrim in ation:
As in dicated earlier1 the position of the appeal un der
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
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
1 1
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
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
II
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
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
II
leaves ope n.
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
11
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
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
II
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
11
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.
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
II
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
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
11
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.
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
11
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
II
analy sis from its arbitrarine ss" an alysis. According ly,
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
1
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
1
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
1
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
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 self-
destruc 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, "self-
legitimi sation"196 or "repu tational redem ption " 197.
No ted constitu tional scholars1 S.P. Sathe 198 an d
Up endra Baxi 199, sep ara tely ven tu red "conjectur es11 200
that the era of "po st-Emerg ency activism" was founded
in an attemp t to refu rbish lil207the court' s own image ,
an act of "judicial populism 11 201 following the
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
11
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
) the right against custodial violence ;211
(i7.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
(7.J
 (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
11
m alnutrition 217, clothing an d shelter;218
11
)
(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
II
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
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 11
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
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
1 1
actions. A distin ction is sought to be drawn here
betw een "recurr ing" and contin uou s" obligation s. A
11
"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
II
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
11
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 "
II
1

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.
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
1 1

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
"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
1
group of cases.
"Positive contin uou s" oblig ations are not me rely
distingui shable from "recu rring" obligation s be cau se
they are specific to a certain category of persons eithe r orde rs requ1nng authorities to pe rform different
1

before the cou rt or represe nted befo re the court 1 but also obligation s. Rathe r tha n the same obliga tion
because the natu re of the obligatio n often change s. It "recu rring" th ese cases invo lved obligation s that
1

will be seen that D.K. Basu v. State of W.B.226 (D.K. Basu) 1

"continuo usly" chan ged or were "contin uou sly"
can be distin gui she d from the ma lnut rition cases for thi s modi fied . The D.K. Basu case requ ired "recurring"
reason . In th e D.K. Basu case the Supreme Court issued
1
action . The m alnutritio n cases requi red "continuou s"
gui delines for the po lice to follow in every general act of action . It wi ll also be seen th at the "legislative void "
arrest . The gu id elines also requi red th e police to cases su ch as Vishaka v . State of Rajasthan229 (Vishaka) and
per form certain specific and dete rminat e action s. This the D.K. Basu case were striking not becau se the cou rt
would not have liJ 21 obeen different from an or der in 1 orde red actions tha t would h ave to be followe d in th e
for exam ple the Maneka Gandhi case227 w here "hearing"
1 1
futu re1 or "recu rring" obligatio ns1 but becau se of their
and "not ice" were held indispens able value s according
1
relaxed stan ding ru les1 and becau se th ey con sequently
to whi ch futu re authoritie s woul d hav e to comply with wen t beyond what was ''necessary" to de cide in th e
hearing an d notice requi rement s. Every precedent case1 pre cisely since the re wa s no dispute to resolve .
requi res pe rsons to orde r their activities accord ing to 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
wh at was held in the case. The D.K. Basu case2281 it will
life" cases stood out from Ame rican substan tive due
be seen was no different. The ma lnut rition cases
1
proce ss cases involving "fund ame ntal rights" . The
involve d "positive continuou s" obligatio ns beca use the
Amer ican "fundame ntal right s" cases involve d the
cou rt issued direction s requiring the orde ring of activity
"substantive right to privacy" i.e. rights th at Gary
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 Bostwick 230 in his seminal pa pe r would categorise as
in the maln ut rition cases cou rts kept mo difying their
1
involving "intimate de cisions"1 or auto nomy of the
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
11
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"
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
 11
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 ctor-
p 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
11
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 _
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
1
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
11
that a wounded victim came to the hospital 's doo rstep.
"Negative " cases involve recu rring" obligation s too.
11
For example , follow ing Charles Sobraj v . Central Jail249

(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
1 1
'
11
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
11
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
1
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.
11
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
11 1
'
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
1
be un derstood th at almost each of th ese ' legislative
1
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
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
11
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
court s wou ld seem an exercise of dialogic jud icial
activism" 259 where courts engaged in a ba ck an d forth
1
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
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
II II
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.
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
1 that the "right to receive informat ion an d idea s,
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
1 1
priv acy of repose case.
Signifi cantly the privacy of repo se is somet ime s
1 m an 1 sittin g alone in his house1 w hat book s he may read
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
home 277 it did so to bolster its ho lding un der the 1st
1
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 1 from un wa rr ante d gove rnmen t
intru sions into one' s priv acy" it did so while holding
1
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
1
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.
1 1
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
 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
II
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.
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
II
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
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
II
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
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
In Neera Ma thur v . LIC300 (Neera Ma thur ),
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
II
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
the involun tary ad ministration of the impugne d
te chniques would violate principles of a fair trial" .
11
However , an an alysis of th e court' s opinion in the Sel7.7
i nomencl atu re. But in this case the court was rema rkably
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
the n, courts wo uld apply du e process type solution s to
leg al pro blem s without invoking du e pro cess
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 )
llJ 227 At a simpler level, the issue s in the 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.
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
11
, (en1phasis supp lied)
that recognised an intimate decision pr iva cy intere st
11 11
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
11 11
,
in the federal state due pr ocess cases.
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
11 11 11 11
11
Z (Cases 1310 an d 11311). Int erestin gly, rathe r th an
11
recogni sing a right to marriage, Case I unrecog nised
11 11
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
11
suspended It w as held that the right to privacy was
11
•
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.
 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
11
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
"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 -
II
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
11
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
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
1 jud gme nt about the sub stan tive law embodied by
Ame rican constitutio n al law 1 but none theless ent ails
analysis whi ch is becoming of a constitutional cou rt1
11
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
1 1
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
1
the Naz Foundation ease1 it wa s argu able that th e
pr ocedu re estab lishe d by the CrPC to deprive
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
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" .
II
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
1
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
II
act of attem pt ed suicide had no bane ful effect on
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
11 11
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
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
11
from the "thr ee language formul a Upholding the
•
poli cy, howeve r, the cou rt found th at the right of
II
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,
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 of State Policy unde r Articles 39(a) (livelihood )1 39(e)
bring up their child ren are uncon stitutional. (health) 39-A (legal lll 238 aid) 48-A (environme nt ). The
1 1

3.3.2. Dignity 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
From the viewpo int of the na tu re of the inter est unde r Article 21. The right to edu cation was simil arly 1
involve d cases not falling within any pr ivacy category
1 elevated to the statu s of a fundamental right by the
typ ically relied either expre ssly or imp liedly on the
Supreme Court ,346 conside ring that the right to
inherent ''dignity " of hum an being s. Table 1 (at the end
educa tion was a directive pr inciple unde r Article 41,
of th e chapter) demonstrates that the majority of cases
and subsequen tly1 edu cation wa s introduced into the
examined in th e sample set fall within this category.
Accord ingly1 solitary confine ment in the Sunil Batra Chap ter on Fundame nt al Right s.347
case336 bar fetters in the Charles Sobraj case337 ,
1 4. Form versus substance: mala fides
han dcuffing in the Prem Shanker Shukla case338 , and It ha s been the Indi an experie n ce th at tests typi cally
delayed executio n in the T. Vatheeswaran case339 were ap plied in adm inistrative law spheres have evolved into
each invalid ated on some expre ss or implied theory of constitu tional doctri ne.348 Th e "arbitrariness", 3 49
the dignity inherent in hum an being s. Many of the "reasonablenes s" or "pro portio nality " te sts app lied in
"dignity" rights seemed roo ted in Directive Principles of the zone of admi ni strative law 1 but soon
State Policy. Accordingly 1 the right to livelihoo d 340 and metamorp hosed into const itutional jurispruden ce.
health 341 the right to a decen t enviro nm ent 342 the right
1 1
Howe ver, one su ch administrati ve law pro ng of
to legal aid} 43 have all been incorporated into Article chall eng e1 "mala fides" 350 i.e. a challenge based on th e
21 whereas the se are recogn ised as Directive Principl es
1
"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 ill-
tin-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
11 attainder" provision un like th e Am erican Constituti on
constitu tiona l law . Often 1 sta tut es m ay be invalida ted on w hich does.372 In Indira Nehru Gandhi v. R aj Narain 373 1

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
1 Court s, there is no such exclu sive ves ting of jud icial
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 1
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
1 H owev er1 wh ile In dian constitu tional cou rts h ave
£ides" test may be appo site in th e Indian context - the
Indian Constitut ion do es no t contain a "bill of
Mat hew J found :
[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
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
1
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
1 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.
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
11
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
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
11
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.
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"" >< 1. (1973) 4 sec 225: AIR 1973 SC 1461 .

2. For an arg tlll1ent that equal p rotection in the US constitutionalised
the ideal of "fain1ess ", see, Michae l Perr y, " Constitutional
><
' Fairness' : N otes on Equal Prote ction and Due Process " (1977) 63
Virginia L Rev 383.
3. (1973) 4 sec 225: AIR 1973 SC 1461 .
... 4. (1978) 1 sec 248.
5. 1975 Supp SCC 1: AIR 1975 SC 2299.
... 6. (1973) 4 sec 225: AIR 1973 SC 1461 .
7. 1975 Supp SCC 1: AIR 1975 SC 2299.
8. 1992 Supp (2) sec 651 . TI1e COlUt eventually held that it was
..."" >< ... unnecessar y for it to go into the question of w hether judicial
revie w was a part of th e Constitution's basic stn1cture.
... >< ><
9. See, R .K. Garg v. Union of In dia, (1981) 4 SCC 675 (Bearer Bonds);
A .K. Roy v. Union of India, (1982) 1 SCC 271: AIR 1982 SC 710 .
OJ
V 10. Kehar Singh v . Union of In dia, (1989) 1 SCC 204 (holding th at the
C:
Q)
"O area of the President's po we r under Art. 72 fell " square ly w ithin
:::,
~

a. the judicial domain and [cou ld) be exai nin ed b y the cotut by way
.la
~ of ju dicial revie w ") .
.
-.:::,
~
OJ
11. (1973) 4 sec 225 : AIR 1973 SC 1461 .
12. 1975 Supp SCC 1: AIR 1975 SC 2299 . 36. Ibid.
13. (1980) 3 sec 625: AIR 1980 SC 1789. 37. (1980) 3 sec 625 : AIR 1980 SC 1789.
14. (1994) 3 sec 1: AIR 1994 SC 1918. 38. (1973) 4 sec 225 : AIR 1973 SC 1461.
15. (1973) 4 sec 225: AIR 1973 SC 1461. 39. (1994) 3 sec 1: AIR 1994 SC 1918.
16. (1980) 3 sec 625: AIR 1980 SC 1789. 40. See, Soli J. Sorab jee, "Decis ion of the Supren1e Co1ut in S.R .
17. (1973) 4 sec 225: AIR 1973 SC 1461. Bommai v . Union of India : A Critique " (1994) 3 SCC J-1.
18. TI1e second po rtion read - "and no law containing a de clcu-ation 41. (1973) 4 sec 225 : AIR 1973 SC 1461.
that it is for giv ing effec t to such poli cy shall be called in question 42 . See, Indi ra Nehru Gandhi v . R aj Na rain, 1975 Supp SCC 1: AIR 1975
in an y cou rt on the gro1u1d that it does not give effect to such SC 2299.
po licy" . 43. S .R . Bommai v. Union of India, (1994) 3 SCC 1: AIR 1994 SC 1918.
19. (1980) 3 sec 625: AIR 1980 SC 1789. 44. Ibid, p ,u-a 82.
20. lb id. 45. Ibid, p ,u-a 280.
21. (1980) 3 SCC 625, paras 21- 23: AIR 1980 SC 1789, para 23. 46. Ibid, p ,u-a 106.
22. (1973) 4 sec 225: AIR 1973 SC 1461. 47. Ibid, p ,u-a 304.
23. (1980) 3 sec 625: AIR 1980 SC 1789. 48. (1994) 3 sec 1: AIR 1994 SC 1918.
24. Ibid, para 58 . 49. (1973) 4 sec 225 : AIR 1973 SC 1461.
25. (1973) 4 sec 225: AIR 1973 SC 1461. 50. 1975 Supp SCC 1: AIR 1975 SC 2299.
26. Ibid, para 56 . 51. (1980) 3 sec 625 : AIR 1980 SC 1789.
27. Ibid, para 58 . 52 . (1973) 4 sec 225 : AIR 1973 SC 1461.
28. lb id. 53. (1978) 1 sec 248 .
29. Ibid, para , 74. 54. Ibid.
30 . (1981) 2 sec 362. 55. h1 the following cases , h1dian consti tutional co1uts fo1u1d that
3 1. (1973) 4 sec 225: AIR 1973 SC 1461. single statutor y provisions , several statutor y provisions or whole
32 . (1980) 3 sec 625: AIR 1980 SC 1789. statutes , identified in pai ·enthesis , we re not arbitrary : Bhawani
33 . (1983) 1 sec 147: AIR 1983 SC 239 . Singh v . St ate, AIR 1956 Bhopal 4: 1956 Cri LJ 44 (regarding S.
34 . (1980) 3 SCC 625: AIR 1980 SC 1789 pa r a 13. 337 (3) Cr PC); l.lpendra Kumar Joshi v. Ne w Victoria Mills Co. Ltd .,
35 . lb id. (1986) 59 Comp Cas 798 (Pa t) (regar din g S. 155(4)(b) of the
Con1panies A ct, 1956); Subrahamanyan v . ITO , (1987) 167 ITR 409
(AP ) (reganling S. 10 of the Co1npu lso ry Depos it Sche 1ne (IT
Payers ) Act, 1974); Mohinder Kumar v . Sta te of Haryana, (1985) 4
SCC 221 (regard ing S. 1(3) of th e Har yana Urban (Con trol of Rent
and Eviction Act ), 1973); Ballarpur Indus tries Ltd. v. Director
General of Investiga tion and Registration, (1988) 64 Con1p Cas 884:
ILR (1988) 2 Del 10 (regarding S. 10(a)(4) of the Monopolies and
Restrictive Trade Pr actices Act, 1969); T.A .C.A . Assn . v. St ate of
Kerala, (1988) 71 STC 332 (Ker ) (regarding S. 19-B of th e Kerala
General Sales Tax Act ); Venkatramaiah v . Stat e of Karnata.ka, ILR
1989 Kant 1264 (regarding S. 14(2) of the Kan 1ataka Agricu ltura l
Produce Marketing (Regulation ) Act , 1966); Bharat Surfactan ts (P)
Ltd . v . Union of India, (1989) 4 SCC 21, (regarding S. 15 of the
Custon1s Act , 1952); Charan La.l Sahu v . Union of India, (1990) 1
SCC 613: AIR 1990 SC 1480 [regarding th e Bhopal Gas Leak
Disaster (Process ing of Clain1s) Act, 1985]; 1\tfohd. ll lyas v . Union of
India, ILR 1991 Kant 2804 (regarding S. 200 of the Motor Vehicles
Act , 1988); K.S . A n to v. Union of India, (1993) 76 Co1np Cas 105
(Ker ) (regarding S. 140 of th e N egotiab le Instnunents Act , 1881, a
law which pre-dated the Constitution ); Om Narain Ag arwal v.
Nag ar Pa.lika, Shahjahanpur, (1993) 2 SCC 242 (regarding S. 40 of
th e United Provinces Mtmicipalities Act , 1916, a law which pre-
dated th e Consti tu tion ); I.K. Gujral v. Election Commission of India,
(1993) 50 DLT 458 (regarding S. 58-A of th e Representation of
Peoples Act , 1951); M eman Aslam H ussain v. Director of
Municipali ties, (1994) 1 GLR 446 (regarding S. 260 of th e Gujara t
Mtulicipa lities Act , 1963); Sukwnar Mukherjee v . St ate of W.B.,
(1993) 3 SCC 723 (regard ing S. 4(3) of th e West Bengal State
Health Service Act, 1990); Lachhmandas Genwna.l v. St ate of M .P.,
1995 MPLJ 925 (regarding S. 38(3)(c) of th e MP Gene ral Sales Tax
Act, 1958); Bhim Singh v. Election Commr . of India, (1996) 4 SCC
188 (regard ing S. 30(d) of th e Rep resentation of People Act , 1951);
A ssociated Managemen ts of Primary and Secondary Schools v. St ate of
Karnataka, ILR 1996 Kant 3669 (regard ing various provisions of
the Karnatake Education Act, 1983); District Coop. Centra.l Bank v .
St ate of A .P., (1998) 2 ALD 535 (regarding the fhs t proviso to S.
48(3) of th e Andhra Pr adesh Shops and Establislunents Act , 1988,
wlu ch requhed pa y1nent of wages before filing an appeal ); Tapati
Sengup ta (Dr.) v . Enforcement Off icer, (1998) 60 ECC 48, (regarding
Ss . 33(2) and 40(1) of the erstw lul e Foreign Exchange Regu lation
Act, 1973 wluch conferred wide powers on th e adnunistrative
authority ); Freman v . Union of India, AIR 1999 Ker 93 (regarding S.
118 of th e Indian Succession Act, 1925, a law whlch pre -d ated the
Constitution ); Janey Joseph v. Union of India, AIR 1999 Ker 234
(regarding S. 27 of the Consu1n er Protection Act , 1986); B.
Noo rsingh v . Union of India, (2001) 249 ITR 378 (Mad ) (regarding
S. 139(1) of the Incon1e Tax Act , 1961); M angayamma v . Union of
India, (1999) 106 Tax1nan 339 (AP ) (regarding S. 40-A(3) of th e
h1co1ne Tax Act , 1961); Thin t Muru ga Finance v. Stat e of T.N ., AIR
2000 Mad 137 (regard ing various provisions of th e Tanlil Nadu
(Protection of Interest of Depositors (in Financial Establislu n ents )
Act, 1997; Raju v. Union of India, (2001) 5 MP HT 410 (regarding S.
323 CrP C, 1973); A vtar Singh v. St ate of H aryana, (2002) 3 SCC 18
(regarding S. 3(3) of the Har yana Good Conduct Prisoners
(Ten1porar y Release ) Act , 1988); Lexicon Finance v. Union of India,
ILR 2002 Kant 2050 (regarding S. 16(5) of the Arbih ·ation and
Conciliation Act, 1996); A .P. St ate Coop. Societies v . Govt., (2002) 4
ALD 527 (regard ing an arn.endn1ent to the Andlu ·a Pradesh
Cooperative Societies Act , 1964); Sawai Madhopur Oil and Pulse
Indus tr ies v. State of Rajasthan, (2001) 3 W LC 419 (regarding
various provisions of the Rajasthan Excise Act, 1950); M .R .
Utensils v. Union of India, (2003) 113 Co1np Cas 667 (Guj )
(regard ing various p rov isions of the Securitisation and
Reconstru ction of Financial Assets and Enforce1nent of Security
Interest (Second ) Ord inan ce, 2002 - the act was subsequentl y
invalidated in Ma rdia Chemicals Ltd. v. Union of India, (2004) 4
SCC 311 : AIR 2004 SC 2371 discussed be low ); Govindbhai H irabhai
Sura ti v. Sta te of Gujarat, AIR 2003 Guj 200 (regarding S. 48-A of
the Gujara t Town Plaiuling ai1d Urban Develop1nent Act, 1976);
State of W .B. v . E.I.T.A . India. Ltd., (2003) 5 SCC 239 (regarding
provis ions of the West Benga l Sales Tax Act, 1994); Vasulal
International v . A ddl. STO , (2004) 3 KLT 162 (regard ing S. 17(5A)
of the Kerala General Sales Tax Act, 1963); Erna.kulam Chamber of
Comme rce v. S tate of Kerala, (2004) 3 KLT 822 regai ·ding S. 45(B) of
the Kerala General Sales Tax Act , 1963); A hmed Noo rmohmed Bhatti
v . S tate of Gujarat, (2005) 3 SCC 647 (rega rdin g S. 151 Cr PC, 1973);
R .C. Tobacco (P) Ltd . v. Union of India, (2005) 7 SCC 725 (regai ·ding
S. 154 of th e Finai1ce Act, 2003); K11ldipNayar v. Union of India,
(2006) 7 SCC 1 (regarding S. 3 of the Represen tation of People ' s
Act , 1951); Om Pra.kash Mi tta.l v. Union of India, (2007) 138 Co1np
Cas 708 (Del ) (regard ing S. 19 of th e Foreign Exchange
Mai1age1nent Act); M. Chandr11 v. Chennai Metropolitan
Developmen t Au thority, (2009) 4 SCC 72 (regai ·ding provisions of
the Che1u1ai Metropolitai 1 Water Supp ly and Sewerage Act,
1978); Santosh A chcha v. Sta te of Karnataka, AIR 2007 Kant 77: ILR
2008 Kant 2413 (regarding Ss . 45-A ai1d 45-B of the Stainp Act,
1957); Nova rtis AG v . Union of India, (2007) 4 M LJ 1153 [regai ·ding
S. 3(d) of the Patents (Ainend1nent ) Act, 2005]; Shyams11nder
1\tfohota v. Union of India, (2008) 5 Mal1 LJ 27 (regarding S. 13-B of
the Hindu Mai-riage Act, 1955); Oma R am v. St ate of Rajasthan,
(2008) 5 SCC 502 (regarding vai·ious provisions of tl1e Rajasthan
Excise Ainend1nent Act, 2000). See also , Indian H andicrafts
Emporium v . Union of India, (2003) 7 SCC 589 : AIR 2003 SC 3240 .
56. (1978) 1 sec 248 .
57. See, St ate of T.N . v. A na.nthi A mmal , (1995) 1 SCC 519 : AIR 1995 SC
2114 (relied upon in St ate of A .P. v. Mc D owell & Co., (1996) 3 SCC
709 to illush ·ate the use of the ten n "arbitrariness " as signif ying
discrinlination ); Krishna Kumar Mish ra v. State of Bihar, AIR 1996
Pat 112; Va.santha R . v. Union of India, (2001) 2 LLJ 843 (Mad ).
58. See, John Hart Ely, Democracy and D istnis t (Harvard U11iversity
Press 1980) 18 (arguing that a cotut wlli.d 1 p r otects "discrete ai1d
insular 1ninorities " which are definitiona lly tu1able to participate
in th e political process to the sain e extent as 111ajorities,
legitin1atel y exer cises power ); See, ftu-ther , United States v.
Carolene Prod11cts Co., 82 L Ed 1234: 304 US 144, n. 4 (1938) (per
Stone J e1nph asising the in1portance of protecting "discre te ai1d
insular nlinorities ") .
59. Pata R am Bheel v . St ate of R ajasthan, (2005) 1 RLW 415: (2005) 1
WLC 322 (finding th at since S. 2 of th e Rajasthai1 Mtuli.cipalities
(An1endn1ent ) Ordinai1ee , 2004 was di r ectly cont r ary to a
constitutional p rov ision , it was "per se illegal , arbit r ary, tu1just
and tu1eonstitutional ") .
60. See, Law rence Tribe , The Invisi ble Constitu tion (Oxford Universit y
Pr ess 2008).
61. (1993) 1 ALT 86.
62. Ibid, para 29.
63. (1978) 1 sec 248.
64. See e .g., Krishna Kumar Mishra v . St ate of Bihar, AIR 1996 Pat 112
(find ing a provision in th e Bihfil· Pancha ya t Act, 1993 " fil·bitrfil ·y"
because it ignored the rule laid down by th e Supre 1ne Cour t of
India in Indra Sawhney v . Union of' India, 1992 Supp (3) SCC 217 :
AIR 1993 SC 477, filld ci·eated reserva ti ons beyond the 50% lin lit) ;
Swath i Traders v . CTO , ILR 1990 Kant 425 : (1990) 76 STC 393 .
65. For exfilnple , in V Kunha bdulla v. State of' Kerala, AIR 2000 Ker 376,
S. 10-A of the Keral.a Pfil1ehaya t Raj A ct, 1994 was cha llenged and
invalidated be cause it confened " arb itrar y" powers on the
Election Conmlission .
66. (1978) 1 sec 248.
67. Delhi Laws Act , 1912, re, AIR 1951 SC 332 .
68. See, S.A. de S1nith, " Delega te d Legislation in Englfil1d" (1949) 2
Western Poli tical. Qufil-terly 514; Cecil T. Carr , "Delegated
Legislation in En glfil1d as Seen from . Ab road " (1934) 16 J Co 1np
Leg & h1t1 L 96.
69. For a de scri ption of the actions of adnililist r ative authorities
invalidated using the "arbi h·fil·iness " test , see, Dtu-ga Das Basu ,
Shorter Constitution of India (13th Edn . Wadhwa 2001) 102- 109. It
is beyond the scope of tllis wo rk to analyse decisions that
invo lved d1all.enges to adnililistrative rules , al.tl.10ugh a fair share
of these we re invalidated tu1der tl.1enew doctrine . See e .g., K.M .
Prasad (Dr .) v . State of Bihar, (1997) 1 BLJR 673 (invalidating fill
order of the Central Bureau of h1vestig ation in India ); C.M .
Pandey v . State of U.P ., (1999) 4 All WC 3415 (invalidating fill
adnlinistrative order of temlination of service) ; Kalu R am v. State
of l.1.P., (2000) 1 All WC 509 (invalid ating an order of ternili 1ation
of servi ce). See ftu-ther , Sham Lal v. Union of India, AIR 1995 P &H
147 (finding th at tl.1e doctrine of " fil·bitrar iness "w as firs t app li ed
agains t adm .illistrati ve action , and "even tually ex tended " to
legislation ). See fur ther , Ajay H asia. v. Khalid Mujib Sehravardi,
(1981) 1 sec 722.
70. (1981) 1 sec 608 : AIR 1981 SC 746 .
71. Ibid, pfil·a 8.
72 . (1981) 4 sec 335 : AIR 1981 SC 1829.
73. For exan1ple , tl.1e question of whether tl.1e test of "a rbitraril1ess "
shou ld appl y to the decla r ation of e1nergen cy by the President of
h1dia is a co1np lex question wl ud1 is outside the scope of tllis
wo rk. Additionall y, th e question of whet her ordi11ances
promulga ted b y the President or Sta te Goven 1ors deserve equal
or lower deferen ce as con1pfil·ed to legislation , filld w hetl.1er th e
" fil·bitrar il1ess" test shou ld app ly to th e act of pro 1nu lgation , is an
iI1terestiI 1g question wlli d 1 is outside the scope of this wo rk.
Fur ther , tl.1e question of w hetl.1er actions of the Presiden t or
Cabi11et Miiliste rs deserve a greater deg ree of deference as
co1npfil ·ed to goverrunent entities sud 1 as electricity boards , filld
tl.1e ilnpa ct of thi s fil1al.ysis on tl.1e " arbitrar i11ess" tes t if al.so
outside the scope of tllis wo rk.
74. Art. 107, Constitution of India .
75. Art. 81, Constitution of India. 92 . Tilis argim1en t cu ts bot h ways . Consider S. 377 IPC th at
76. Art. 80, Constitution of India. H oweve r, 12 members are crilninalises homosexuality or " sexual intercourse agai11st the
nominated by the President of India. order of nahtre " . A court cou ld , as we ll, i11validate th e law today
77. See, Arts. 170, 171 and 196, Constih 1tion of h1dia . However , it is on the basis that it h as ceased to be constih1tional . However , the
significant to note that in the few Sta tes of India which h ave argim1ent agai11st S. 377 can also be couc h ed i11equal protection
b icam eral legislative cha m bers , th e members of the Upper House tern1s - i.e. th at it discril ni11ates be tween heterosexuals ai1d
are elected by persons who have certain qualifications , as h om osexuals withou t r ational bas is.
prescribed by the Constih1tion of India in Art. 171. 93. Tilis ai·giu nent presupposes th at the cour ts do not fu1d that there
78. However , it mu st be noted that anti -d efection law makes it is some form of dispropo rtionate discril ni11ation agai11St th e
irn.poss ib le for me mber s of par li ament to ignore or defy the foeh1s , and it does not fu1d that a foeh1s is a "person " enti tl ed to
official party whip . See, N ick Rob inson , " Expanding Judiciaries: "life and personal liberty " 1mder the Constih1tion.
h1dia and the Rise of the Good Goven1ai1ee Court " (2009) 8 Was h 94. AIR 1964 SC 1179.
U Global Sh1d L Rev 1. 95. (1998) 2 sec 1: AIR 1998 SC 602 .
79. (1996) 3 sec 709. 96. AIR 1964 SC 1590.
80. (1995) 1 sec 519: AIR 1995 SC 2114 . 97. Ibid, pai ·a 11.
81. (1978) 1 sec 248. 98. (1998) 2 sec 1: AIR 1998 SC 602 .
82. (1996) 3 sec 709. 99. (1979) 4 sec 642 : AIR 1980 SC 1.
83. (1998) 2 sec 1: A IR 1998 SC 602. 100 . (1984) 1 sec 222.
84. Ibid, para 1. 101. 26-8-1957.
85. Ibid, para 8. 102 . (1986) 3 sec 385 : AIR 1986 SC 1444.
86. (1996) 3 sec 709. 103 . (1990) 1 sec 109: AIR 1990 SC 1927.
87. Ibid, paras 15- 30 . 104 . TI1e Vllth Schedule demarcates the federa l-state div isions of
88. (1998) 2 sec 1: A IR 1998 SC 602. legislative power .
89. (1978) 1 sec 248. 105 . Part IV of th e Indiai1 Constih1tion contains "Directive Pri11eiple s
90. (1998) 2 sec 1: A IR 1998 SC 602. of State Policy " w lli d 1 were not meai1t to be justiciab le, although
91. AIR 1952 SC 196, pai ·a 16. many of th e pril1eiples ens hri11ed therei11 h ave become
enforceable right s.
106. AIR 1951 SC 318 : (1951) 53 Born. LR 982 .
107. Ibid, para 81.
108. (1998) 2 sec 1: AIR 1998 SC 602.
109. See further , A nuj Garg v . H otel Ass n. of Ind ia, (2008) 3 SCC 1: AIR
2008 SC 663 (find ing uncons ti tutional in th e li ght of changed
cirau n stances a law th at prohibited a nrnn tu1der the age of 25, or
a won1fil1, from . be ing en1ployed in any Pfilt of prem .ises in which
liquor or intox icating drugs fil·e constu n ed by the pub li c).
110. See, Abhinav Chancha chud , " Ho w Legitim .ate is Non -
Arbih ·fil·iness? Constitutional Invalidation in th e Light of Mardia
Chemicals v. Union of Ind ia" (2008) 2 lndifil1J Const L 179, 187.
111. (1998) 2 sec 1: AIR 1998 SC 602.
112. (1978) 1 sec 248.
113. (2004) 4 sec 311: AIR 2004 SC 2371 .
114. (1973) 4 sec 225: AIR 1973 SC 1461.
115. Tilis is ilnportfillt because th e Sta te contended th at since the
right to " appeal " is a statutory right as opposed to a
ftu1da1nental , natural or essential right , the fah-ness of the
appe ll ate proced tu-e cou ld not be questioned. Tilis argument was
rejected by the court on the grotu 1d that though the statute
tenned the challenge fill " appeal " (i.e. fill " appeal " against the
arb itrar y actions of the bfiltl<), the provi sion illVolved the right to
petition a court of fust il1Stfil1ce.
116. (2004) 4 sec 311: AIR 2004 SC 2371 .
117. Ibid, para 64.
118. Ibid.
119. (1978) 1 sec 248.
120 . (2004) 4 sec 311 : AIR 2004 SC 2371.
121. (1978) 1 sec 248.
122 . (1973) 4 sec 225: AIR 1973 SC 1461.
123 . 1975 Supp SCC 1: AIR 1975 SC 2299.
124 . (1980) 3 sec 625: AIR 1980 SC 1789.
125 . (1981) 2 sec 362 .
126 . (1994) 3 sec 1: AIR 1994 SC 1918.
127 . (1994) 3 sec 1: AIR 1994 SC 1918.
128 . (2004) 4 sec 311 : AIR 2004 SC 2371.
129 . (1973) 4 sec 225: AIR 1973 SC 1461.
130 . (1978) 1 sec 248.
131. A textual redundan cy is adlieved by tlli s construction. "Jud icial
revie w" or sin1ple " due process " is itself a pro ced ural right.
Reading "judicial re view" into Art. 21 of the h1difil1 Constitution
wo uld result ill a p rob len1 of ilWUte regres s - if "personal
liber ty" Cfill be deprived by "fan- procedure " th en under the
cotut ' s illlPlied constn1ction ill Mardia Chemicals, "judicial
revie w" or fan- pro ced ure itself Cfill only deprived by fah-
pro ced ure . Textuall y, tllis co11Struction wo uld render Art. 21 a
tautolog y .
132 . (2004) 4 sec 311 : AIR 2004 SC 2371.
133 . Ibid.
134 . (1978) 1 sec 248.
135 . See, Brown v. Board of Education, 98 L Ed 873 : 347 US 483 (1954)
overn1 liI1g Plessy v . Ferguson, 41 L Ed 256: 163 US 537 (1896). It
could be said that th ough " equal ", tllis law was "arbi trfil·y".
136 . (2004) 4 sec 311 : AIR 2004 SC 2371.
137. (1973) 4 sec 225: AIR 1973 SC 1461 .
138. (1978) 1 sec 248.
139. (1998) 2 sec 1: A IR 1998 SC 602.
140. (2004) 4 sec 311: AIR 2004 SC 2371 .
141. A IR 2003 All 295.
142. Constitution (44th An1endn1ent ) Act, 1978.
143. A IR 2003 All 295.
144. (1987) 4 sec 611.
145. c2000) 3 sec 450.
146. (1978) 1 sec 248.
147. (2004) 4 sec 311: AIR 2004 SC 2371 .
148. Even assu 111ing that a court finds that th e right to "personal
lib erty" includes th e rig ht of govenu n ent e1n p loyees not to have
their timings doau n ented , the court still illunlina tes its analys is
by deter nlinin g whether a "personal liberty " deprivation has
taken place .
149. (2004) 4 sec 311: AI R 2004 SC 2371 .
150. Tilis argu 1nent leaves out of th e analys is Ar t. 19(1)(g) of the
Indian Constitution i.e. th e right to practice any p rofess ion or to
carry out any occupation , tr ade or bus iness . H owever , the
Sup r en1e Court h as gene r ally been deferen tial towards
goven un ent r egu lation of po tentially ha rm.ht! activities . See, State
of Bombay v. F.N . Balsara, A IR 1951 SC 318 (dealing with the
valid ity of the Bomba y Prohib ition Act ); R .M. D. Chamarbaugwalla
v . Union of India, AIR 1957 SC 628 (dealing with the validity of
gan1bling r egu lation ). Titls also asstm1es that a court wo ttld find
that the tax does not dis crinlin ate and consequently violate Art.
14.
151. (1981) 4 sec 335 : AIR 1981 SC 1829.
152 . TI1e tern1 has been used by Ricl1ard Fallon, "So111 e Conft.1sions
About Due Process , Judicial Revie w, and Constitutional
Ren1edies " (1993) 93 Cohm1 L Rev 309, 310.
153 . See, Daily R ated Casual Labour v . Union of India, (1988) 1 SCC 122;
Randhir Singh v. Union of India, (1982) 1 SCC 618: AIR 1982 SC 879
(applying equal protection analysis to sala ry and pens ion scales).
154 . (2004) 4 sec 311 : AIR 2004 SC 2371.
155 . See e.g ., Railway Board v . C.R . R angadhamaiah, (1997) 6 SCC 623
(invalidating an exea 1tive ord er retrospective ly am.ending a
pens ion p r ovision in the Railway Rttles ). Tilis was a case decided
before Mardia Chemicals case, but it involved exea1tive action as
opposed to legislative action. It is sugges ted in tllis paper that
tllis decision wo ttld perhaps extend to legislative enac tmen ts as
well, following the court's decision in tl1e Maneka. Gandhi case.
156 . Right to Inforn1ation A ct, 2005 [Act 22 of 2005].
157 . Muslim Won1en (Prote ction of Rights on Divorce ) A ct, 1986 [Act
25 of 1986].
158 . See e.g., Anti Apartheid (U11ited Nations Convention ) A ct, 1981
[A ct 48 of 1981].
159 . TI1e Bhopal Gas Leak Disaste r (Pr ocessing of Claims ) Act, 1985
[A ct 21 of 1985].
160. Code of Civ il Pro cedu re, 1908 [A ct 5 of 1908].
161. TI1e Prote ction of Civil Right s Act, 1955 [A ct 22 of 1955].
162. Emblen1s and Names (Pre vention of Improper Use ) Act, 1950
[12 of 1950].
163. Wate r (Prevention and Control of Pollution) Act , 1974 [Act 6 of
1974], Air (Pr evention and Contro l of Pollution ) Act , 1981 [14 of
1981].
164. Banking Companies Act, 1949 [Act 10 of 1949].
165. Cable Television Netwo rk s (Regulation ) Act , 1995 [Act 7 of
1995].
166. See e.g ., The Chaite red Accotmtants Act , 1949 [Act 38 of 1949].
167. See e.g., Mahai ·ashh ·a Control of Organised Crime Act, 1999 [Act
XXX of 1999].
168. National Secu rit y Act , 1980 [Act 65 of 1980].
169. Indiai1 Con tr act Act, 1872 [Act 9 of 1872].
170. The Com panies Act , 1956 [Act 1 of 1956].
171. Transfer of Propert y Act, 1872 [Act 9 of 1872].
172. The Reserve Bank of India Act , 1934 [Act 2 of 1934].
173. Secu ri ties ai1d Exchange Board of h1dia Act , 1992 [Act 15 of
1992].
174. See e.g., Adm inistrative Tribm1a ls Act, 1985 [Act 13 of 1985].
175. Life Insurance Corporation of India Act , 1956 [Act 31 of 1956].
176. See e.g., Banaras Hindu Universit y Act, 1915 [Act 16 of 1915].
177. See e.g ., Border Securit y Force Act, 1968 [Act 47 of 1968].
178. See e.g., Census Act , 1948 [37 of 1948]; Am1 y Act , 1950 [Act 46 of
1950].
179. See e.g ., Mal1arashtra Regional ai1d Town Plaiuling Act, 1966
[Act XXXVII of 1966].
180. Land Acquisition Act , 1894 [Act 1 of 1894].
181. Banking Compailies (Acquisition of Trai1sfer of Unde rt ak in gs )
Act, 1969 [Act 22 of 1969].
182. Special Economic Zones Act, 2005 [Act 28 of 2005].
183. Armed Forces (Special Po wers ) Act , 1958 [Act 28 of 1958].
184. Fore igne r s Act , 1946 [Act 31 of 1946].
185. See e.g., Inco m e Tax Act, 1961 [Act 43 of 1961].
186. Mahai ·ashh ·a Revenue Code , 1966 [Act XLI of 1966].
187. Fore ign Exd 1ai1ge Mai1age m ent Act , 1999 [Act 42 of 1999].
188. Prevention of Mone y Latu1dering Act , 2002 [Act 15 of 2003].
189. Ancient Monumen ts and Ard1aeological Sites Remains Act ,
1958 [Act 24 of 1958].
190. See e.g., Bihar ai1d Uttai · Pradesh (Alteration of Bom1dai ·ies ) Act,
1968 [Act 24 of 1968].
191. Citizens llip Act , 1955 [Act 57 of 1955].
192. For examp le, Parlian1ent cai1 p r ovide for the re gu lation ai1d
deve lopment of inter -Sta te ri vers tmde r Entr y 56, List I, Vllt h
Sd 1edu le to th e Constitution of h1dia, wlli d 1 may create dispu tes
between States ainongst them selves , or between the States and
U11ion. Concurrent legis lation on matte rs governed b y List 3 of
the Vllth Schedu le to th e Constitution of India may also re sult in
con flict.
193. Nick Rob inson , " Expai1ding Jud iciar ies: h1dia ai1d the Rise of
the Good Goven1ance Cou rt" (2009) 8 Was h U11iv Gl St L Rev 1.
194. See e.g., S.P. Sathe , Judicial A ctivism in India : T ransgressing Borders
and Enfo rcing Limi ts (Oxfo rd 2002).
195. Ibid, 106.
196. Ibid.
197. Jayanth Krishnan , "Scholarl y Discotu-se and the Cementing of
Norms : 1l te Case of the Indian Supre m e Cotut - And a Plea for
Research " (2007) 9 J App Prac & Process 255, 273- 274.
198. S.P. Sathe , Judicia.l A ctivism in India : Transg ressing Borders and
Enforcing Limi ts (Oxford 2002) 106.
199. Baxi, "Taking Suffering Serious ly: Social Action Litigation in the
Supreme Court of India " in Dhavan et al., The Judicial Power
(Tripathi 1985) 289, 294.
200. Ibid, 107.
201. Upendra Baxi, " ' The Fair Na111e of Justi ce' : 11,e Memo r able
Voyage of Ouef Justi ce Chand r achud ", in V.S. Deshpande , A
Cha.ndrachud Reader (Universal 1985) 71.
202. (1978) 1 sec 248.
203. Nick Robinson , "Expanding Judiciaries: India and the Rise of
the Good Governance Cotut " (2009) 8 Wash U1uv Gl St L Rev 1.
204. Kharak Sin gh v . Sta te of UP ., AIR 1963 SC 1295.
205. Sunil Batra v . D elhi A dmn., (1978) 4 SCC 494: AIR 1978 SC 1675.
206. Charles Sobraj v . Centra.lJail, (1978) 4 SCC 104: AIR 1978 SC 1514.
207. M .H . H oskot v . State of 1'1.aharashtra, (1978) 3 SCC 544: AIR 1978
SC 1548; H ussainara Khatoon (Ill ) v. S tate of Bihar, (1980) 1 SCC 93:
AIR 1979 SC 1360.
208. M .H . H oskot v . State of 1\1.aharashtra, (1978) 3 SCC 544: AIR 1978
SC 1548.
209. Prem Shanka r Shukla v . Delhi A dmn ., (1980) 3 SCC 526: AIR 1980
SC 1535.
210. T. V Vatheeswaran v . State of T.N ., (1983) 2 SCC 68; read with Sher
Singh v. State of Punjab , (1983) 2 SCC 344: AIR 1983 SC 465.
211. Sheela Barse v. Sta te of Maharashtra , (1983) 2 SCC 96: AIR 1983 SC
378.
212. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161: AIR
1984 SC 802.
213. O lga Tellis v . Bombay Municipal Corpn ., (1985) 3 SCC 545: AIR
1986 SC 180.
214. Att orney General of Ind ia v. Lachma Devi, 1989 Supp (1) SCC 264:
AIR 1986 SC 467.
215. 1\1.C. Meh ta v . Union of Ind ia, (1986) 2 SCC 176: AIR 1987 SC 965.
216. Parmanand Katara v. Union of India, (1995) 3 SCC 248.
217. See, People's Union for Civil Liberties v . Union of India, (2004) 12
SCC 104; Bomba y High Cotut Suo Motu Writ Petition No . 5629 of
2004 (malnu trition cases).
218. Sha.ntistar Builders v. Narayan Khimalal Tota.me, (1990) 1 SCC 520:
AIR 1990 SC 630.
219. Unni Krishnan J.P. v. Sta te of A .P., (1993) 1 SCC 645: AIR 1993 SC
2178.
220. D .K. Basu v. Sta te ofW .B., (1997) 1 SCC 416: AIR 1997 SC 610.
221. Visha.ka. v . S tate of R ajasthan, (1997) 6 SCC 241: AIR 1997 SC 3011.
222. Prakash Sin gh v . Union of Ind ia, (2006) 8 SCC 1.
223. See, Durga Das Basu, Shor ter Constitu tion of India (13th Edn .
Wadh w a).
224. See, Shyam Divan and Amun Rosencranz , Environmenta.l Law
and Policy in India (Oxford Universit y Press 2002).
225. (1978) 1 sec 248.
226. (1997) 1 sec 416: AIR 1997 SC 610.
227. (1978) 1 sec 248.
228. (1997) 1 sec 416: AIR 1997 SC 610.
229. (1997) 6 sec 241: AIR 1997 SC 3011.
230. Gar y L. Bostw ick, "A Taxon om y of Privacy : Repose , Sanc tu ary
and Intimate Decision ", (1976) 64 Cal L Rev 1446.
231. 24 L Ed 77: 94 US 113, 142 (1876).
232. Ibid, 142.
233. Kharak Sin gh v . S tate of UP. , AIR 1963 SC 1295; Satwant Singh
Sawhney v. Passport Officer, AIR 1967 SC 1836; D . Bhuvan Mohan
Patnaik v. State of A. P., (1975) 3 SCC 185: AIR 1974 SC 2092;
Gobind v. S tate ofM .P., (1975) 2 SCC 148: AIR 1975 SC 1378; Sunil
Batra v. Delhi A dmn ., (1978) 4 SCC 494: AIR 1978 SC 1675; Francis
Coralie Mullin v. I.IT of Delhi, (1981) 1 SCC 608: AIR 1981 SC 746;
O lga Tellis v. Bombay Municipa.l Corpn ., (1985) 3 SCC 545: AIR 1986
SC 180; DT C v. Ma zdoor Congress, 1991 Supp (1) SCC 600: AIR
1991 SC 101; l.Inni Krishnan J.P. v. Sta te of A .P., (1993) 1 SCC 645:
AIR 1993 SC 2178; P. R athinam v. I.Inion of India, (1994) 3 SCC 394:
AIR 1994 SC 1844; Ma dhu Kishwar v. State of Bihar, (1996) 5 SCC
125: AIR 1996 SC 1864; People's Union for Civil Liberties v . Union of
India, (1997) 1 SCC 301: AIR 1997 SC 568; Islamic A cademy of
Education v. St ate of Karnata.ka, (2003) 6 SCC 697: AIR 2003 SC
3724.
234. 94 us 113, 142 (1877).
235. S.P. Gupta v. Union of India, 1981 Supp SCC 87: AIR 1982 SC 149.
236. Ibid, p ara 17.
237. Ibid.
238. (1983) 2 sec 96: AIR 1983 SC 378.
239. See, Planned Parenthood of Southeastern Pennsyfoania v. Casey, 120
L Ed 2d 674: 505 US 833 (1992).
240. (1985) 3 sec 545: AIR 1986 SC 180.
241. (1986) 2 sec 176: AIR 1987 SC 965.
242. (1989) 4 sec 286: AIR 1989 SC 2039.
243. (2006) 8 sec 1.
244. While it is argua ble tha t ilnp ro vin g wo rkh tg condi tions for
w orkers, or p ro vidh tg priva cy right s to h om osexuals m ay be nefit
societ y gener ally, th e ben efit to a partic ular catego ry of pe rsons
h t these cases tends to be greate r th an the benefit to societ y
gener ally.
245. (1983) 2 sec 96: AIR 1983 SC 378.
246. (1997) 1 sec 416: AIR 1997 SC 610.
247. Su o Mot u Writ Petiti on No . 5629 of 2004, Order da ted 8-7-2004.
248. (1989) 4 sec 286: AIR 1989 SC 2039.
249. (1978) 4 sec 104: AIR 1978 SC 1514.
250. (1978) 4 sec 494: AIR 1978 SC 1675.
251. (1997) 6 sec 241: AIR 1997 SC 3011.
252. (1997) 1 sec 416: AIR 1997 SC 610.
253. V.B. R angaraj v . V.B. Gopalakrishnan, (1992) 1 SCC 160: AIR 1992
SC 453.
254. (1997) 6 sec 241: AIR 1997 SC 3011.
255. (1997) 1 sec 416: AIR 1997 SC 610.
256. (2009) 111 DRJ 1.
257. The p etiti oner ai·gued th at S. 377 of th e Pen al Co de served as a
"weapo n for po lice abuse " .
258. (2007) 2 sec 711.
259. See, Abhin av O 1an dr ad 1t1d, "Dialogic Jud icial Activism in
India" 18-7-2009 The H indu .
260. Suo Mott1 Writ Petiti on No. 5629 of 2004.
261. See, Laur en ce H . Tribe , A merican Cons titu tiona.l Law (1st Ec:ln .
1978) 893.
262. 86 L Ed 1655: 316 US 535 (1942).
263. 18 L Ed 2d 1010: 388 US 1 (1967).
264. 22 L Ed 2d 542: 394 US 557 (1969).
265. Jed Rub enfeld , "11,e Right to Pri vacy" (1989) 102 H arv L Rev
737.
266. See f11rther, Abhin av O rnndr achu d, "11,e Substa n tive Right to
Privacy : Tr acing th e Doctrin al Sh adow s of th e India n
Consti tt1tion" (2006) 3 SCC J-31.
267. See, Wilnbe rly, "Reth iltl<in g th e Sub stanti ve Du e Process Right
to Privacy: Gr ound in g Privacy in the Four th Aine ndin ent" (2007)
60 Vand L Rev 283; Garr y, "A Differen t Model for th e Right to
Privacy : 11,e Political Ques tion Doctrin e as a Subs titt 1te for
Sub stanti ve Du e Process " (2006) 61 U Mianu L Rev 169;
Willian1son, "11,e Constitt 1tion al Privacy Doctrine after Bowers v.
H arwick: Reth in kin g th e Second Death of Subs tanti ve Du e
Process " (1989) 62 S Cal L Rev 1297.
268. Roe v. Wade, 35 L Ed 2d 147: 410 US 113 (1973).
269. Loving v. Virgin ia, 18 L Ed 2d 1010: 388 US 1 (1967).
270. Eisenstadt v . Baird, 31 L Ed 2d 349: 405 US 438 (1972); Griswol d v.
St ate of Connec ticu t, 14 L Ed 2d 510: 381 US 479 (1965).
271. Skinner v. Oklahoma, 86 L Ed 1655: 316 US 535 (1942).
272. Pierce v . Society of Sisters, 69 L Ed 1070: 268 US 510 (1925).
273. Lawrence v. Texa.s, 156 L Ed 2d 508: 539 US 558 (2003).
274. R eno v . Flores, 123 L Ed 2d 1: 507 US 292, 302 (1993). See, Rid 1ar d
H . Fallon Jr ., "Sh·ict Ju dicial Scrutin y" (2007) 54 UCLA L Rev
1267, 1283.
275. Gary L. Bost wick, "A Taxono m y of Pri vacy : Rep ose, San ctu ary
and ln tin1ate Decision" (1976) 64 Cal L Rev 1446, 1448.
276. 22 L Ed 2d 542: 394 US 557 (1969).
277. Bu t see, th e d ul d po rn ogr aph y cases: New York v. Ferber, 73 L Ed
2d 1113: 458 US 747 (1982); Osborne v. Ohio, 109 L Ed 2d 98: 495
US 103 (1990); A shcroft v. Free Speech Coalition, 152 L Ed 2d 403:
535 us 234 (2002).
278. TI1e fluid unde rstan din g of Alt. 14 "arb itrari n ess" also app lies
to Art. 22, see, Francis Coralie Mull in v . I.IT of D elhi, (1981) 1 SCC
608: A IR 1981 SC 746, para 3; Nand Lal Bajaj v . St ate of Punjab ,
(1981) 4 SCC 327: AIR 1981 SC 2041, para 8.
279. Wooley v . Mayna rd, 51 L Ed 2d 752: 430 US 705 (1977).
280. Lau r ence Tribe, A merican Cons titutional Law (1978) 893.
281. AIR 1963 SC 1295.
282. (1985) 3 sec 545: AIR 1986 SC 180.
283. (1986) 2 sec 176: AIR 1987 SC 965.
284. Tom Gerety, "Redefuung Pri vacy" (1977) 12 H arvar d Civil
Rights -Civil Liber ties Law Review 233, 236.
285. Gar y L. Bost wick, "A Taxono m y of Pri vacy : Rep ose, San ctu ary
and ln tinrnte Decision" (1976) 64 Cal L Rev 1447, 1448.
286. Jed Rubenfi eld , "11,e Right to Privacy" (1989) 102 Harv L Rev
737, 754.
287. Khara.k Singh , 1303.
288. Ibid, 1306.
289. (1975) 2 sec 148.
290. Ibid, 150.
291. Ibid, 156.
292. Ibid, 157.
293. 14 L Ed 2d 510: 381 US 479 (1965).
294. (1975) 2 sec 148.
295. See, 1\tfala.kSingh v . State of P&H, (1981) 1 SCC 420; Sunil Batra v.
Delhi A dmn ., (1978) 4 SCC 494: AIR 1978 SC 1675; M .P. Sharma v.
Satish Chandra, AIR 1954 SC 300; R .M . Ma.lkani v. State of
M aha rashtra, (1973) 1 SCC 471.
296. Lau rence Tribe, A merican Constitu tional Law (1st Edn . 1978) 889.
297. (1997) 1 SCC 301. It must be no ted that surveillan ce does not
m.erely refer to ph ysical surveillan ce. It has been defined as a
"po lice investigative teclulique involving visual or electro1lic
observation or listen ing dhected at a person or place" . See,
Black's Law Dictionary (5th Edn . West Publislling Co . St Pau l 1979)
1296. It, therefo re, follo w s th at "teleph one -tapp ing " is a form. of
surveillance. See also, V.R. Krislu ta Iyer, Freedom of Information
(Easten 1 Book Co1npan y, Luckno w 1990) 129.
298. People's Union for Civil Liberties v . Union of India, (1997) 1 SCC
301: AIR 1997 SC 568. See also , R .M. M alkani v. State of
Maharashtra, (1973) 1 SCC 471 (stating that evidence obtained by
telephone -tapp ing could be used in a cou rt of law ).
299. District Registrar and Collector v . Canara Bank, (2005) 1 SCC 496.
See also, ITO v . Seth Bros., (1969) 2 SCC 324.
300. (1992) 1 SCC 286. But see, Sharda. v . Dhannpal, (2003) 4 SCC 493.
301. c2010) 7 sec 263.
302. Ibid.
303. c2010) 7 sec 263.
304. (1992) 1 sec 286.
305. R ochin v . California, 96 L Ed 183: 342 US 165 (1952).
306. (1584) 76 ER 637.
307. (1981) 4 sec 335: AIR 1981 SC 1829.
308. Ibid, para 73.
309. Ibid, para 84.
310. (1998) 8 sec 296.
311. (2003) 1 sec soo.
312. (1998) 8 sec 296, pa r a 37.
313. (2009) 111 DRJ 1.
314. 14 L Ed 2d 510: 381 US 479 (1965).
315. 31 L Ed 2d 349: 405 US 438 (1972).
316. 35 L Ed 2d 147: 410 US 113 (1973).
317. 156 L Ed 2d 508: 539 US 558 (2003).
318. (2009) 111 DRJ 1.
319. For exan1ple, in 2007, the Sup ren1e Cour t of h1dia applied strict
scn1tin y revie w in an equal protection case in A nuj Garg v. H otel
A ssn . of India, (2008) 3 SCC 1: AIR 2008 SC 663. Althoug h the
focus of tllis work is due pro cess and not equal protection , tl1e
co1ut ' s decision llighli ghts the sllift fron1 rationalit y revie w to
sh·ict review in tl1e equal pro tection arena [see furtl 1er, A shoka
Kumar Thakur v. Union of India, (2008) 6 SCC 1]. H owever , despite
referring to several decisions of the Ainerican Supre1n e Cou rt in
support of tl1e test , tl1e cour t app lied strict scn1tin y to gende r and
 age discriln ination , wh ich is not a h·aditional Ainerican "suspect 335. Ibid, pai ·a 135.
class " whicl 1 wou ld trigger strict scrutil 1y, and suc h 336. (1978) 4 sec 494: AIR 1978 SC 1675.
discrinllllation would or di11arily have i11vited only i11tenned iate 337. (1978) 4 sec 104: AIR 1978 SC 1514.
scrutiny , a tes t wh ich requi res a "substantial " relation to an 338. (1980) 3 sec 526: AIR 1980 SC 1535.
"iln po rt ant govenm1en t ptu-pose" . TI1e court articu lated a two 339. (1983) 2 sec 68.
pronged test: i) the legislative i11terfe rence shou ld be justi fied i11 340. O lga Tellis v . Bombay M uni cipal Corpn ., (1985) 3 SCC 545: AIR
pril 1ciple; and ii) th e sain e should be propo rtionate i11 measure ; 1986 SC 180.
while holdil 1g tha t the stric t scn1tiny tes t should app ly to 341. Consum er Educa tion & Research Centre v . Union of India, (1995) 3
"protective discrinlination " cases . Applying the tes t to the facts SCC42.
of the case, the cour t invalidated a law wh icl1 prohib ited the 342. Sha.ntistar Build ers v. Narayan Khimalal Tota.me, (1990) 1 SCC 520:
en1ploy 1nent of a 111ai1tu 1der the age of 25 or any wo n1ai1 at any AIR 1990 SC 630.
estab lishment whe re liqu or or i11toxicating dn1gs were served . 343. M .H . H oskot v. St ate of Mahara.shtra, (1978) 3 SCC 544: AIR 1978
320. (2009) 111 DRJ 1. SC 1548.
321. (1978) 1 sec 248. 344. Kishrn Pattnayak v . St ate of Or issa, 1989 Supp (1) SCC 258: AIR
322. (1994) 3 sec 394: AIR 1994 SC 1844. 1989 SC 677.
323. (1996) 2 sec 648: AIR 1996 SC 946. 345. Sha.ntistar Builders v. Narayan Khimalal Tota.me, (1990) 1 SCC 520:
324. Ibid, para 22. AIR 1990 SC 630.
325. (1996) 2 sec 648: AIR 1996 SC 946. 346. 1\tfohini Jain v. St ate of Karnata.ka, (1992) 3 SCC 666; Unni Krishnan
326. (1971) 2 sec 261. J.P. v. Stat e ofA .P., (1993) 1 SCC 645: AIR 1993 SC 2178.
327. Ibid, paras 9, 17.
347. h1serted by the 86th Ain endn1en t to the Constitution i112002.
328. (1994) 1 sec 550: AIR 1994 SC 1702.
348. Accor dil1gly, this would typically signify a n1oven1ent of
329. Ibid, para 14. doctr i11e fro1n judicia l review of adnlinistrative action to judicia l
330. (2004) 6 sec 264. review of legis lative action.
331. Ibid, para 10. 349. See, Ramana D aya.ram Shetty v. In terna tional A irport A u thority of
332. (2008) 4 Kai1t LJ 593. India, (1979) 3 SCC 489: AIR 1979 SC 1628.
333. Ibid, para 104. 350. See e.g ., R.P . Kapu r v. S. Pratap Singh Kairon, AIR 1964 SC 295;
334. Ibid, para 125. Exp ress Ne wspapers (P) Ltd . v. Union of India, (1986) 1 SCC 133:
 AIR 1986 SC 872.
351. State of R ajasthan v. Union of India, (1977) 3 SCC 592: AIR 1977 SC
1361, 1376, para 28 (hold ing that caste based considerations n1ay
prove m.ala £ides).
352. See, M.P . Jain, Principles of A dminis trative Law (4th Edn. 1986)
562- 585; M.P. Jain, Principles of A dministra tive Law (5th Edn. 2007)
610- 615; Pratap Singh v. St ate of Punjab, AIR 1964 SC 72; C.S.
Rowjee v . State of A .P., AIR 1964 SC 962; Shivajira.o Nilan gekar Patil
v . Mahesh Ma.dhav Gosavi, (1987) 1 SCC 227: AIR 1987 SC 294;
State of Haryana v . Bhajan Lal, 1992 Supp (1) SCC 335: AIR 1992 SC
604; Exp ress Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC
133: AIR 1986 SC 872.
353. See, S .R . Bommai v . Union of India, (1994) 3 SCC 1: AIR 1994 SC
1918; Sta te of R ajasthan v. Union of India, (1977) 3 SCC 592: AIR
1977 SC 1361.
354. A .K. R oy v . Union of India, (1982) 1 SCC 271: AIR 1982 SC 710.
355. Arts. 123 and 213, Constitution of India.
356. TI1e ter m. "stricter " is used con1parative ly . Judicial revie w
invo lving decis ions of the President invo lves standards far less
stringent standards than those applied to ordin ,u-y ad1ninist r ative
law decisions.
357. (1985) 1 SCC 523: AIR 1985 SC 551. See fur ther, the doctrine of
colourable exercise of po wer . K.C. Gajapati Narayan Dea v. State of
Orissa, AIR 1953 SC 375; STO v . A jit Mills Ltd ., (1977) 4 SCC 98:
AIR 1977 SC 2279; G.C. Kanungo v. Sta te of Orissa, (1995) 5 SCC 96:
AIR 1995 SC 1655; Krishna Kumar Singh v. St ate of Bihar, (1998) 5
SCC 643; Welfare A ssn . v. R anjit P. Gohil, (2003) 9 SCC 358: AIR
2003 SC 1266.
358. K. Nagaraj v. Union of India, (1985) 1 SCC 523: AIR 1985 SC 551.
359. (1985) 3 sec 198: AIR 1985 SC 724.
360. Ibid, 731.
361. (1987) 1 sec 378: AIR 1987 SC 579.
362. It had alread y been established that the ordinance n1aking
power of the Presiden t and Governors of Sta te was akin to the
legislative function. See, A .K. Roy v . Union of India, (1982) 1 SCC
271: AIR 1982 SC 710.
363. Ibid, 589.
364. AIR 1992 Kant 28. See also , St ate of Karnataka v . B.A . Hasana.bha,
AIR 1998 Kant 210; John James v. Bangalore Developmen t Au thority,
ILR 2000 Kant 4134; l.P . Vashist v. St ate of Haryana, (2005) 140 PLR
70.
365. TI1e power to expe l me m.bers of Parliam.ent , subject to jud icial
review , was re cognised by the Supre m.e Cotut of India in Raja
R am Pal v . H on'ble Speaker, Lok Sabha, (2007) 3 SCC 184.
366. MAN U/KA/0003/1992, paras 17- 19.
367. (2005) 1 RLW 415: (2005) 1 WLC 322.
368. WP No. 4188/2004, pa r a 40.
369. The th en1e that the prestm1ption in favour of the bona £ides of a
statute conflicts with the judicial stance in constih 1tionall y
invalidating a stah1te, has been explored in Abhinav
Chandracud , "How Legitin1ate is Arbitrariness? Constitutional
h1validation in the Light of Mardia Chemicals v . Union of India"
(2008) 2 Indian J Const L 179.
370 . See, Peresie , "Toward a Coherent Test for Dispai ·ate ln1pact
Discrilnination " (2009) 84 Ind LJ 773 .
37 1. See, Sauita Kumari v . Union of India, (1993) 2 SCC 357; Surendra
Prasad Khugsal v . M.M .T.C., 1994 Supp (1) SCC 87 : AIR 1993 SC
2491; Bisha.n D ass Bagha v. Govt. of Punjab, (1992) 2 SCC 193: AIR
1993 SC 972.
372 . Art. I, S. 9(3). Ho wever , the Indian Consti tu tion does , i11 Art.
20(1) prohibit ex post facto law s.
373 . 1975 Supp SCC 1: AIR 1975 SC 2299.
374 . R am Krishna D almia v . Justice S .R. Tendolkar, AIR 1958 SC 538;
Food Corpn . of India v. Sta te of Kera/a, (1997) 3 SCC 410 : AIR 1997
SC 1252.

W 247 VII. Conclu s ion
IN INDIAN CONSTITUTIONmHSllWNTIVE DUE PROCESS :ffi)Ur
visible in three sphere s: i) ba sic structure ; ii)
"arbitrarine ss"; an d iii) right s creat ion . In the first
sphere , the Supreme Court articula ted a broad "ba sic
structure " te st, in a manne r remini scent of th e ap proa ch H owever , in 1978, Maneka Gandhi v. Union of India1
adopted by Cardozo and Frankfu rter JJ in the federal
state due pro cess cases, in substant ively determining
wha t Parliament can and canno t amend in the
Constitut ion. The court' s "basic structu re" test was
sub stan tive for at least two rea son s - first, it ident ified identifie d two propo sition s: i) equality is antithe tic to
higher values in the Indian Constitut ion, similar to
Ame rican sub stan tive due pro cess do ctrine ; an d second,
it substantively crea ted norm s whi ch limited th e power
of Parliamen t to ma ke law in amend ing the
Con stitu tion . H owever , the court 's "ba sic stru cture "
theo ry was also procedural because in crea ting the test,
the court essentially ensured th at it wou ld have access
to cases of constitu tional significance . The "ba sic
struc ture " test typ ically applied in the initial year s to
que stions of judi cial access, and in safeguarding the
court's own juri sdi ction, the "sub stan tive" basic
struc ture test ap plied to procedura l due process
concern s relating to the jurisdiction of con stitu tional
ts. In later yea rs, it extended to que stions beyo nd
jud icial acce;,s. . . ,,
The term a~b1tr~nnes s was us~d _by' the Supreme
Court of Indi a sin ce the Consti tu tions ena ctment .
(1'-11.
aneka Gandhi) it gained a "new " mea ning . The term
"arb itra rine ss" wa s typi cally only app lied to cases
involving liJ 248 discrimin ation or equa l prote ction
problem s unti l 1978. In i\1.anekaGandhi case2, the court
arbitra riness; an d ii) the procedu re establi shed by law
unde r Article 21 must be "fair, just an d reasonable " . The
first pro po sition appeared to be substa nti ve because it
en abled a cou rt to test the constitutional validi ty of
sub stan tive law an d determine if it was arb itrary" .
II
H ow ever 1 in the afterm ath of the Maneka Gandhi easel it
wa s appli ed to pro tect natur al justice int erests in a
pr ocedu ral due proce ss sense. The second propo sition
appeared to be proce dur al because it con cerne d only
pr ocedu ral law. H owever 1 even the secon d te st could be
said to ha ve been "sub stanti ve" be cau se it was crea ted
employ ing a "fluid " unde rst anding of the Con stitution/
discard ing the pr eviou s attem pts to pigeon-hole right s
with in rigid bou n dar ies an d discar ding the consciou s
1
deletion of the "due pr ocess" clause from Art icle 21. In
the immediate afterma th of the Maneka Gandhi easel
court s began to emp loy what ap pe ared to be the spirit
of the second propo sition in up holding procedu ral due
1 11
pr ocess valu es relatin g to ''natu ral ju stice". In othe~
word s, in the immed iate afterma th of the 1\11.anekaGandhz
case1 courts beg an rea ding "na tu ral justice"
requirement s of notice and hearing into law . Thi s was a
pr ocedu ral developmen t in that it iden tified proce dur al
intere sts such as no tice an d he aring . H oweve r, the
manne r in which procedur al right s we re read into law
wa s itself subst antive.
In Malpe Vishwanath A charya v . State of Maharashtra31
II
the cour t employed the arbitrariness" te st to make a
valu e judgme nt regarding the fairn ess of substant ive
law, indicating that the Supreme Cou rt wo uld certain ly
ven tur e a sub stantive inq uiry into the fairne ss of law .
Unti l then the arb itrar ine ss" test ha d been used almo st
1
II
exclusively to read proce dur al fairn ess into law.
It soon be came ap p arent that the first propo sition of
the Maneka Gandhi case h ad sw allowed or env eloped the
secon d . For exam pl e1 in the Mardia Chemicals Ltd. v.
Union of India4, although the law dea lt w ith the fairne ss
of "pr ocedu re establi shed by law "1 the court avoided
u sing the Maneka Gandhi case Article 21 an alysis an d 1
u sed the arb itrar ine ss" test instead . In this manner 1 the
II
arb itrar ine ss" test also became a convenient rou te for
cou rts to avoid havin g to identify rights that could fall
wit hin the meaning of the wo rd s "life and pe rson al
liberty" w ithin Art icle 21 of the Con stitu tion. It became
clear tha t if a law wa s not "fair, just an d rea sonable"1 the
II
cou rt could inv alida te it using th e arbitrar iness" te st
despite the fact that it did not invo lve the right to life
and pe rson al liberty.
 lill249It also became clear that even if the pro cedu re
establ ished by law to depriv e the right to life and
person al liberty wa s "fair just and reasonable " th e
1 1
court cou ld still inv alid at e th e law sub stanti vely by
using its arbitrarin ess" logic. The Delhi High Court 's
II
opini on in the Naz Foundation v . State (Govt. of NC T of
Delhi)5 was perhap s the best exampl e of fair pro cedu re
i.e. CrPC1 bu t unfair sub stance i.e. Section 377 IPC.
The third segment of sub stantive du e proce ss in Indian
constitutio nal law deal s with the creation of rights. The
court' s "privacy " and "dignity " cases encapsulate the
court' s w illingness to expand th e contou rs of
constitutio nal int erpr etatio n . H ow ever 1 in cat egorising
thi s segme nt one cannot ignore tho se cases wh ere
right s wer e implicitly creat ed . The Basic Structure case6,
Indira Gandhi case7 and the Mardia Chemicals case8 each
1 1
safegua rded jud icial access1 althoug h th ey may hav e
app eared to lay down sub stan tive tests. In th is sense,
these cases dealt with proc edu ral du e pro cess concerns .
H ow ever 1 in implicitly creating a "right to jud icial
access", these cases w ere sub stan tive.
Accordi ngly, th e sph eres of substa nti ve and
proc edu ral du e pro cess are often indistingu ishable.
While it may certainly be simp le to catego rise a decision
as eith er "subs tantive" or "proc edu ral" based on
wh ether the de cision focuses on the que stion of "why "
or "how " respectively, th e du e pro cess" element adds
II
compli cations to the analysi s. Pro cedural due pro cess
no rms can be sub stantively creat ed . Sub stant ive due
proc ess case s can safeguard pro cedura l due pro cess
interests.
1. (1978) 1 sec 248.
2. Ibid.
3. (1998) 2 sec 1: AIR 1998 SC 602 .
4. (2004) 4 sec 311: AIR 2004 SC 2371 .
5. (2009) 111 DRJ 1.
6. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973
SC 1461.
7. Ind ira. Nehm Gandhi v . R aj Narain , 1975 Supp SCC 1: AIR 1975 SC
2299.
8. Mantia Chemicals Ltd . v . Union of India, (2004) 4 SCC 31 1: AIR 2004
SC 237 1.

Subject Index
A D M I N ISTRA TI V E LA W » 161
sub stan ce vers us pr oces s in » 161
A M E RI CA N C o N STI TUT I ON AL LA w » 14
absorp tion » 46
Am end m en t » 17
Cardozo -Frankfu rt er ap proach » 20
doct rin e of reverse in corp oration » 25
early in corp oration » 20
Black J » 22
fun dame ntal fairn ess » 24
self-in crim in atio n » 22
fede ral state du e p rocess » 16
origins of » 16
fun dame n tal "une nu m er at ed " rights » 26
H enry Fri en dly » 49
H olm es J » 20
in corp oration » 46
in corp ora tion versus ab sorp tion » 26
ju dic ial access » 52
ju dicial revi ew an d » 53
Marbury v . Madison » 52
no n -stat u tory review » 52
Lord Coke » 128
per lege m te rr e » 128
N ew Deal » 29
or dered liberty » 21
doct rin e of inco rp oration an d » 14
privilege s an d immu ni ties » 18
sacr ed sym bol » 69
strict scru tin y » 38
su bsequen t d ue process » 31
su bstan tive rig ht to privacy » 31
abortion » 35
Blackmun J » 36
Lochn er Er a » 31
Warren Era, an d » 31
po st -Lochne r privacy » 33
sexual orien tation » 35
un enume rated fund am en tal ri gh ts » 42
creation of » 42
void -for-vagu eness » 52
AR BIT RA R !l\ E SS » 130, 141
absenc e of » 131
absorp tion, th rough » 141
do ctri na l loosen ess of » 178
equ al p rot ection » 180
u nr easonab le class ification an d » 180
exce ssiv e d elega tion an d » 182
execu tive action » 184
go vernme nt action, in » 130
leg islative » 177
leg islative com peten ce » 181
Malp e Vish wanath case » 187
anal ysis of » 188
arbitr ari nes s resta ted » 187
lex inju sta n on est lex » 187
 Man eka Gan dhi case » 247
Mar dia Chemi cals case » 193
McDow ell case » 186
ana ly sis » 186
arbi trarine ss discip lin ed » 186
d ecision » 186
ne w arbi tr arin ess test » 177
old arbitr arine ss test » 177
pas sage of time » 190
statu tes, to overr ul e ju dgmen ts » 182
su gges tion s » 203
Sukhp al Singh case » 199
fairne ss tes t » 199
gaze in to th e futu re » 199
B ASIC ST R UCTURE CA SE » 113
a lan dm ar k » 163
cons titu tion al amendmen ts » 115
effect of » 123
Eme rgen cy » 126
essent ial feature s » 116
CH A N D RA K U M AR CA SE » 136
anal ysis of » 137
D u E P R OCES S OF LA W » 9
ori gin s of » 9
Pan di t Th aku r Das Bh ar gava » 62
E.P. Ro YA PPA CASE » 142
criticism s of » 143
equal pr otectio n law » 144
HABE A S C O RP US CA SE » 132
11' D!A N CO 1' STIT UTIO N AL LA W » 57
A .K. Gopa lan case » 76
con stitution al lan dma rk » 76
object test » 112
Alladi Krishn asw am y Ayy ar » 60
exp rop ria tory legislation » 60
b asi c stru ctu re » 70
Bill of Righ ts » 79
M.C. Setalvad » 79
Con stitu en t Assembly » 57
A dvi sory Commi ttee » 58
B.N . Rau » 57
Hida yatul lah J » 106
Pan di t Th aku r Das Bh ar gava » 62
Black Law » 63
Sub-comm ittee on Fun dame ntal Righ ts » 58
distinction , Ameri can Co ns titu tion » 70
do ctri ne of early classification » 102
evalua tion » 102
do ctri ne of equal prote ction » 89
classification » 89
cons titu tion ality of statu tes » 89
int elligi ble di fferen tia » 89
Madhu Lim aye case » 106
persona l lib erty » 105
rationa l nexu s » 99
bri gh t line ru les » 101
well-defined class » 91
Viv ian Bose J » 92
Draf ting Committee » 57
Dr . B.R. Ambedkar » 59
du e p rocess an d » 57
Govind Ballabh Pan t » 61
ju st cau se » 58
Em ergen cy » 126
con cep t of de moc racy » 127
H .R. Kh ann a J » 127
Indir a Neh ru Gand hi case » 126
V.R. Krishn a Iyer J » 126
 Fr ankfur t er' s fear s, ana ly sis of » 72
go lden tr iang le » 77
Arti cles 14, 19 an d 21 » 77
M.C. Setalvad » 66
pa rtly rig id an d pa rtly flexib le » 71
proc ed ural d ue proce ss in » 107
proce d ural scru tiny » 103
Arti cle 22 an d » 103
reasonab len ess » 78
clas sificat ion test » 94
in telligib le d iffer entia » 94
nexus re quir eme n t » 95
in telligib le diff eren tia » 94
in trodu ction » 78
p roced ural scru tiny » 83
r easonab le re stri ctions » 79
rea son for » 94
sub st an tive do ctrine » 81
1/\le dnesb u ry unr easo n ablenes s » 79
rig id boun da ries » 75
Faz! Ali J » 77
Ru stom Ca vasjee Cooper case » 111
effects t est » 112
sub stantive d ue process in » 247
thr ee sph eres of » 247
arbitrarine ss » 247
basic stru ctu re » 247
ri gh ts crea tion » 247
th eory of original in ten t » 66
d own str eam cons train ts » 67
u p str eam cons tr ain ts » 67
w ri ting of » 67
p rim ary con sequence s » 67
l K DIA N STA TU T E S » 205
kin d s of » 205
horizon tal » 205
vertical » 205
JU DICIA L ACCESS » 113
b asic stn tetu re » 164
b irth of » 113
MA N E KA GA N DHI CAS E » 145
Cha n drachud J » 149
go lden tri ang le of righ t s » 149
na tur al justice » 146
per sonal liberty » 145
pr ocedu ral du e pr oces s, after » 156
rule of law » 152
Dice y » 153
M I K ERVA J\1ILLS CASE » 167
anal ysis of » 173
de cision » 167
go lden tri ang le » 167
rationa lity test » 171
search for bala n ce » 167
NA TURAL JUST IC E » 48
Ajay Ha sia case » 153
arbitr ari nes s te st » 155
con stitu tiona lised » 156
fair heari ng » 49
in India n consti tu tiona l law » 157
Man eka Gan dhi case » 151
Munn v. Illinoi s » 211
notice and h earing » 84
R.D . Sh etty case » 153
rebirth » 141
useless form ality theo ry » 159
P RO CE DURAL D UE PRO CESS » 47
afte r Mane ka Gan dhi case » 156
b irth of » 107
 functio ns » 47 5.P. Sath e » 206
inst rume ntal » 47 Up en dra Baxi » 206
in tri nsi c » 47 RIGH T TO P RI VA CY » 220
h armonio us con stru ction » 108 arb itr arines s » 244
me an ing s of » 47 com p ellin g State in ter est » 224
natu ral ju stice » 48 dign ity » 237
scope of » 158 fairnes s » 244
Subba Rao J » 110 fair trial » 226
fiv e distin ct line s of thought » 110 info rm atio n, disclo su re of » 225
sub sets of » 47 linguistic righ ts » 233
Rich ar d Fallon » 47 mala fides » 238
sub stantive d ue proces s, distinguis h from » 47 arbitr ari nes s te st » 238
R . G AK DH I CA SE » 138 form versu s sub stance » 238
an alysis » 139 m ala fid es tes t » 238
doctr in e of sepa ration of p ow ers » 139 di sp ar at e im pact ana ly sis » 242
in depen den ce of ju diciary » 139 Math ew J » 223
RIG HT T O L IF E » 164, 206
of intim ate decisi on » 228
anima l existe n ce » 211 child rea ring » 233
dialogic judici al activi sm » 217 m arri ag e » 229
dignity » 237 proc rea tion » 228
examp les of » 207 ratio na l n exu s » 230
int erest » 219 sexual in tercours e » 229
righ t to privacy » 219 stric t scru tin y » 230
ju risp ru denc e » 206 privacies of re pose » 222
legis lativ e void cases » 216 privacies of sanctuary » 222
locus stan di » 212 rea sonab len ess » 244
me an ing of life » 211 su rveilla nce » 222
obligatio ns » 208, 215 SA M PAT H K U M AR CA SE » 132
contin u ou s » 209 Ad mini strative Trib unals A ct, 1985 » 134
recur ring » 209 P.N . Bhag w ati CJ » 133
pers onal lib erty » 236 an alysis » 135
fu n dame ntal postu late of » 236 S. R . BoM M A I CA SE » 174
po sitive con tinuo us case s » 217 anal ysis of » 176
pub lic in terest » 212 b asic stru ctu re, abso rp tion of » 17 4
right to die » 232
 bas ic stru cture tes t » 175
decision » 174
reasonab len ess t est » 174
secularism » 176
S UBSTA N TI V E DU E PROCES S » 1
Ame rican con stitu tional law, in » 1
bou n da ries of » 2
meaning s » 1
arb itra rines s test » 3, 164
compo nen ts of » 43
burden imposing » 43
righ ts crea ting » 43
non-textual orig in » 43
textu al origin » 43
defini tion » 40
Marbury v . Madi son » 40
featu res of » 72
Felix Fra nkfurte r J » 1
Ind ia n Cons titu tion, effect s » 2
origina l int ent, th eory of » 6
in Ind ian cons titu tio na l law » 247
mi schie f rule » 227
He yde n' s case » 227
procedur al d ue proce ss, differenc e » 40
reasonab len ess t est » 4
sp her es of » 164
sub stantive scruti ny » 5, 40
th eory of » 5
ty pes of » 40