Abhinav Chandrachud is not incorrect in noting, Doctrine of ‘Fairness’/‘Non-Arbitrariness’ laid the foundation of Substantive Due Process in our country. Justice Nariman supports this view.

In a richly cited CJI K.G. Balakrishnan Judgment [2010] it indeed was held, ‘Substantive Due Process’ is a part of Indian Constitutional Jurisprudence.

5 years later, in Rajbala v. Haryana, (2016) 2 SCC 445 Justice Chelameswar strongly rejected that thought.

“From McDowell, (1996) 3 SCC 709 it is clear, Courts in this country do not undertake the task of declaring a piece of legislation unconstitutional on the ground that the legislation is ‘arbitrary’ since such an exercise implies a value judgment and Courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution. To undertake such an examination would amount to virtually importing Doctrine of ‘Substantive Due Process’ employed by American Supreme Court at an earlier point of time.”

Aadhaar-PAN Judgment, Binoy Viswam v. Union of India [Writ Petition (Civil) 247 of 2017] allegedly proved once again, Substantive Due Process is philosophical hot air. And in Shayara Bano v. Union of India, [Writ Petition (Civil) No. 118 of 2016] CJI Khehar and Justice Abdul Nazeer held recently,

“It is not possible to adopt concepts emerging from the American Constitution, over the provisions of the Indian Constitution. It is therefore not possible to refer to Substantive Due Process, as the basis of the decision of the present controversy, when there are express provisions provided for, on the matter in hand, under the Indian Constitution. It is also not possible, to read into the Constitution, what the Constituent Assembly consciously and thoughtfully excluded.”

Hon’ble Justices Nariman and Lalit felt the compulsion of nuance:

“In Rajbala, (2016) 2 SCC 445 at Paragraphs 53 to 65 and Binoy Viswam, (2017) 7 SCC 59 at Paragraphs 80 to 82, McDowell was read as being an absolute bar to the use of ‘arbitrariness’ as a tool to strike down legislation under Article 14. McDowell is per incuriam, not having noticed several Judgments of Benches of Equal or Higher Strength, its reasoning even otherwise being flawed. The Judgments, following McDowell, are, therefore, no longer good law.”

The following is how 2 Judges of Supreme Court interpreted 3 Judge McDowell:

“That the Arbitrariness Doctrine contained in Article 14 would apply to negate legislation, subordinate legislation and Executive action is clear from a celebrated passage in the case of Ajay Hasia, (1981) 1 SCC 722.  In this view of the law, a 3 Judge Bench of this Court in K.R. Lakshmanan (Dr.), (1996) 2 SCC 226 struck down a 1986 Tamil Nadu Act on the ground that it was arbitrary and, therefore, violative of Article 14.  McDowell failed to notice at least two binding precedents, first, the Judgment of a Constitution Bench in Ajay Hasia and second, the Judgment of a Coordinate 3 Judge Bench in K.R. Lakshmanan. Also, Sunil Batra, (1978) 4 SCC 494 which held arbitrariness as a ground for striking down a legislative provision, is not at all referred to in the 3 Judge Bench decision in Mcdowell.

The 3 Judge Bench has not noticed Maneka Gandhi, (1978) 1 SCC 248 cited in Mohd. Arif, (2014) 9 SCC 737 to show that the wheel has turned full circle and Substantive Due Process is part of Article 21 as it is to be read with Articles 14 and 19.

Even after McDowell, this Court has in fact negated statutory law on the ground of it being arbitrary and therefore violative of Article 14 of the Constitution [See, Malpe, (1998) 2 SCC 1; Mardia Chemicals, (2004) 4 SCC 311].

In Natural Resources Allocation, (2012) 10 SCC 1, this Court went into the Arbitrariness Doctrine in some detail. It referred to Royappa (1974) 4 SCC 3; Maneka Gandhi and Ajay Hasia and went on to comment, referring to McDowell that no arbitrary use should be made of the Arbitrariness Doctrine. On a reading of this Judgment, it is clear that this Court did not read McDowell as being an authority for the proposition that legislation can never be struck down as being arbitrary.”

The Question of Substantive Due Process: Larger Bench?

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[1] “When Court rejects ‘arbitrariness’, it proceeds on the basis of AP v. McDowell. It seems, McDowell did not absolutely rule out arbitrariness, but only insisted mere formulation of ‘arbitrary’ is meaningless. The issue of why something is arbitrary must depend on constitutional analysis. What Court said was, “some or other constitutional infirmity…” is needed. Naturally, nothing is invalid because one asserts that it is arbitrary. If one says something is arbitrary, one must point out why it is arbitrary having regard to the constitutional scheme. Nobody denies that. Petitioners in Rajbala were not saying that the law is arbitrary because they dislike it. Rather, the law is arbitrary because it restricts a constitutional right (and this is admitted by Court) without any constitutionally valid basis. Merely relying on McDowell then is not sufficient to reject the ‘arbitrariness’ challenge. What Court ought to have done is examined why – having admitted the relevant rights to be on a higher pedestal than statutory rights – the restrictions were valid in the constitutional scheme. There does not seem to be any independent reasoning on this aspect. In the circumstances, the present 2 Judge Bench [Panchayati Raj] should not have gone into this question to conclude that arbitrariness is irrelevant. At the highest, this should have been Referred to a Larger Bench.”

[2] There were no observations against McDowell by the Nine Judge Bench in Puttaswamy v. Union of India, [Writ Petition (Civil) No. 494 of 2012]. Though it has been held by Chandrachud J writing for 3 others that “Article 14, as a guarantee against arbitrariness, infuses the entirety of Article 21”.

[3] Senior Advocate, Rakesh Dwivedi attempted to argue in Puttaswamy that Krishna Iyer J’s statement in Sunil Batra that a due process clause as contained in the U.S. Constitution is now to be read into Article 21, is a standalone statement of the law and that “Substantive Due Process” is an expression which brings in its wake concepts which do not fit into the Constitution of India. Justice Nariman rejected the contention.