Comparison of Substantive Due Process
with Doctrine of Basic Structure of Constitution
‘Due process of law’ is a term used in USA Constitution and it enables court to strike down laws on somewhat more wide grounds that the doctrine of ultra vires used by English Courts. In India similar result is obtained by the of violation ‘Doctrine of Basic Structure of Constitution.’
“27. Thus we see that the ‘due process’ clause was specifically and deliberately excluded from the Constitution by the Constitution makers, and this fact was noted in A. K. Gopalan’s case (AIR 1950 SC 27) (supra). However, in Sunil Batra v. Delhi Admn., (1978) 4 SCS 494 : (AIR 1978 SC 1675), Krishna Iyer, J. held that after the decisions in R. C. Cooper’s case (AIR 1970 SC 564) and Maneka Gandhi’s case (AIR 1978 SC 597) (supra) the due process clause must be deemed to be ingrained in Article 21. No doubt in Air India v. Nergesh Meerza, AIR 1981 SC 1829 (paras 84 and 85) there are some observations to the contrary (in a 3 Judge bench decision) but these have been made without noticing the series of decisions on Article 21 (mentioned above), beginning from Maneka Gandhi’s case (which is a 7 Judge Constitution Bench Decision), and hence these observations have to be either treated as per incuriam or restricted to mean that the ‘due process’ clause cannot be utilized in our country to invalidate laws infringing freedom of contract. (It is well known that the U. S. Supreme Court had at one time struck down several laws infringing freedom of contract, particularly some of the Neal Deal Legislation of President Roosevelt, on the ground that they violated the ‘due process’ clauses in the Fifth and Fourteenth Amendments).
28. It may be mentioned that ‘due process’ is of two kinds procedural due process, and substantive due process. Procedural due process means that no one can be deprived of his life, liberty or property except in accordance with the procedure laid down in the statutory law. Substantive due process means that this procedure (for depriving a person of his life, liberty or property) must be fair, just and reasonable. Thus, while on a literal interpretation Article 21 only embodies procedural due process, by judicial interpretation it has been held to include substantive due process also. Thus, in Bachan Singh v. State of Punjab, AIR 1982 SC 1325, the Supreme Court held that ‘the concept of reasonableness runs through the entire fabric of the Constitution’ (vide para 16), and also “every facet of the law which deprives a person of life or personal liberty would therefore, have to stand the test of reasonableness, fairness and justice in order to be outside the inhibition of Article 21” (vide para 16).
29. In Maneka Gandhi’s case (AIR 1978 SC 597) (supra) the Supreme Court observed (vide para 56): “The principle of reasonableness which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer to the test of reasonableness in order to be in conformity with Article 14.”
30. I may clarify that I am not resting my decision on the “due process” clause. Even independently of the ‘due process’ clause the same conclusion-can be reached on the basis of the decision in Maneka Gandhi’s case and other decisions of the Supreme Court on Articles 14 and 21. I have referred to the due process’ clause only to point out that substantive due process means (so far as life and liberty is concerned) almost the same thing which has been said in Maneka Gandhi’s case, namely, that the procedure depriving one of his life or liberty must be fair, just and reasonable.”
This judgement produces an interesting debate about the subject.