Three doctrines

V. VENKATESAN
A fresh look at the relevance of three early doctrines that have defined the Indian
Constitution over the years.
THE three books under review share an unusual but common pursuit. Each one of them deals
with a distinct doctrine that defines the Indian Constitution today. The authors trace the roots of
each of the doctrines due process, judicial review, and constitutional morality to the
Constituent Assembly debates and examine their influence in the shaping of the Constitution.
Often mentioned in contemporary public discourse, the three doctrines have an interesting
history and their interpretations have yielded instructive results.
The due process clause, which impressed our Constitution-makers, is essentially an American
doctrine.
The original text of the American Constitution did not have a due process clause. But the 5th and
14th Amendments provided that the government may not deprive any person of life, liberty or
property without due process of law. In the 19th century, the American Supreme Court traced the
doctrine to the Magna Carta. At the time of India's Independence, the debate about the meaning
and significance of the due process clause in America was still raging.
Dr B.R. Ambedkar, the Chairman of the Drafting Committee of the Constituent Assembly, was a
product of the Columbia Law School and was familiar with American constitutional law. Dr B.N.
Rau, an Indian Civil Service officer and a leading member of the Drafting Committee, had
travelled to the U.S., Canada, Ireland and England to discuss India's draft Constitution with
constitutional scholars.
Between October and December 1947, Rau met the former Chief Justice of the U.S. Supreme
Court, Charles Evans Hughes Sr, and the then associate judges of the U.S. Supreme Court,
Justices Felix Frankfurter, H.H. Burton and Frank Murphy. It was Justice Frankfurter who
advised Rau to drop the due process clause from the draft Constitution because it was
undemocratic and it imposed an unfair burden on the judiciary.
Ashok Desai, a senior advocate of the Supreme Court, said in an interview to an online journal a
few years ago that Frankfurter advised against it because in his view due process would mean
different judges taking their own view of what was due and reasonable. The legal issue could
then become subjective and political. We, thereafter, adopted the more limited phrase procedure
established by law, he explained. Rau, who had reservations about the due process doctrine, was
easily persuaded by Frankfurter. The American doctrine was widely perceived to favour the
supremacy of courts and not the supremacy of the Constitution. It was felt that the doctrine
meant just what the courts said it meant and that no other definition was possible.
The members of the Constituent Assembly feared that the adoption of the American doctrine
would lead to a flood of litigation after the inauguration of the new Constitution. They assumed
that the doctrine might come in the way of beneficent social legislation.

Therefore, the Constituent Assembly deleted the phrase due process of law from the draft text
and substituted it with procedure established by law in Article 21. The draft article read: No
person shall be deprived of his life, or liberty, without the due process of law, nor shall any
person be denied the equal treatment of the laws within the territories of the Union. Article 21
reads: No person shall be deprived of his life or personal liberty except according to procedure
established by law.
The debate on the doctrine of due process returned to judicial circles during the hearing of the
Kesavananda Bharati case, which evolved the basic structure theory. H.M. Seervai, counsel for
the respondents, argued before the court that the basic structure doctrine required courts to find a
nebulous spirit of the Constitution, a position ominously close to the due process clause of
the American Constitution, which the framers of India's Constitution had expressly deleted. He
suggested that the Constitution-makers had discarded the concept of due process in order to have
something certain and so substituted it with procedure established by law.
The petitioners in that case had argued that the Constitution had an unamendable or entrenched
basic structure. Accepting this argument, the majority judges in the Kesavananda case rejected
Seervai's argument equating the due process doctrine with the basic structure theory. In Due
Process of Law, Abhinav Chandrachud analyses the Kesavananda judgment to understand this
debate. He suggests that the basic structure test was strikingly similar to the federal due
process cases in the United States where judges looked to the fundamental values of civilised
society in applying federal constitutional standards against the States. He then takes Justice H.R.
Khanna's dissent in the habeas corpus case, decided during the Emergency in 1975, wherein the
majority judges excluded procedural due process from their constitutional analysis. Justice
Khanna substantively read procedural due process as judicial access into his constitutional
analysis.
For the first time in India's constitutional history, the Supreme Court accepted, by majority, in the
Maneka Gandhi case in 1978, that the right to life and personal liberty was subject to a higher
norm based on fairness and reasonableness despite the explicit deletion of the due process clause
from the Constitution. The court found that by denying Maneka Gandhi a hearing before
impounding her passport, the Passport Authority of India had violated the principles of natural
justice. The court articulated the view that the procedure established by law under Article 21
must be fair, just and reasonable.
Habeas corpus case
Thus, while in the habeas corpus case (1976) the court's majority (four of the five senior-most
judges) refused to go against the framers of the Constitution, in the Maneka Gandhi case the
court was willing to discard the constraints of original intent of the Constitution-makers. Thus,
Abhinav Chandrachud says, procedural due process became a part of Indian constitutional law.
Put simply, the difference between the doctrines of substantive and procedural due process is a
function of the interplay between the questions of why and how an authority decides the way
it does. Inquiries that seek answers as to why an authority decided the way it did, and examine
the justice or injustice of the decision, are substantive. Inquiries that examine how an authority

procedurally arrived at a decision constitute an exercise of procedural due process. The book
helps one understand this distinction.
In the author's view, in 1949, the due process clause was specifically deleted from the final
draft of the Constitution in an effort to preclude judicial overreach. However, he says, the
framers gave India's constitutional courts powers of substantive review under Articles 14 and 19,
and of procedural review under Article 22. The absence of the due process clause did not prevent
a due process-like doctrine from emerging in Indian constitutional jurisprudence. For the same
reason, he suggests that it would be erroneous to believe that the due process clause was deleted
entirely from the Constitution.
Justice R.V. Raveendran, who retired from the Supreme Court recently, in his foreword to the
book, says that by equating procedure established by law to due process of law, the Supreme
Court impliedly imported and incorporated fairness in trial, right to be heard before being
condemned, judgment only after trial and deprivation of life and liberty only after due process, as
part of Article 21. It also subsequently read the right to counsel, the right to legal aid, and the
right to privacy, among others, as parts of substantive due process. The rule of law became truly
meaningful, he says.
The Constitution started off with a modest understanding of Articles 21 and 14. The A.K.
Gopalan case, decided in 1950 on that basis, appears irrelevant today. The Supreme Court had
then held that each fundamental right was to be read as dealing with its own field and the area of
life and liberty was dealt with only by Article 21.
In that case, Justice S.K. Das gave an instance that in the middle ages in England, the cook of the
Bishop of Rochester, who was accused of poisoning the Bishop, was by law of Parliament
ordered to be boiled in oil. The judge said that a parliament, in the 1950s, would not pass such a
law. But if it did, it would be constitutional, for the punishment was death and the procedure was
being boiled in oil.
Over the years, the right under Article 21 has been enlarged beyond recognition. The court has
adopted the concept of due procedural fairness and has gone further to read into the Article
substantive due process. India has gone far beyond the American concept of due process of
law, although the words used in the Indian Constitution are more limited. Indian judges have
interpreted Article 21 far more broadly than what the U.S. courts have done with regard to the
due process doctrine, inserted in their Constitution through the amendments.
THE HINDU ARCHIVES

JANUARY 24, 1950: Members of the Central Cabinet signing copies of the new
Constitution of India at the final session of the Constituent Assembly. (From right)
Jairamdas Daulatram, Food and Agriculture Minister; Rajkumari Amrit Kaur, Health
Minister; John Mathai, Finance Minister; and Sardar Vallabhbhai Patel, Deputy Prime
Minister. Behind Patel is Jagjivan Ram, Labour Minister.
Dr C.D. Jha's Judicial Review of Legislative Acts was first published in 1974. Chakradhar Jha,
who was a practising lawyer, is recognised for his contribution to ancient Indian laws and

constitutional law. Scholars consider this book an outstanding work on the subject. Its revising
editors, Justices Arijit Pasayat and C.K. Thakker, both former Supreme Court judges, have taken
care to update the book with the latest developments in law while retaining the author's basic
approach to the issue, which favours strengthening of the power of judicial review of legislative
acts.
In his foreword to the 1974 book, the eminent legal luminary N.A. Palkhivala wrote that our
Constitution-makers had, with foresight, built the judicial review doctrine in the Constitution so
that that its integrity might be preserved against any hasty or ill-considered changes, the fruit of
passion or ignorance. He had cited Justice Frankfurter as having said: Man being what he is
cannot safely be trusted with complete power in depriving others of their rights. Palkhivala
pointed out that but for judicial review, our fundamental rights and liberties would have been in
tatters.
The revising editors have shown that the fruitful working of judicial review in the past six
decades has brought the philosophical and moral aspects of the Constitution into greater
prominence. Judicial review, they say, has counter-balanced the political decisions with reason
and coolness and guided the nation in building healthy nationalism.
Thus, the Supreme Court has repeatedly held that if it comes to the notice of the court that some
Fundamental Rights of citizens have been impaired by any legislative enactment, relief in the
form of declaration of its unconstitutionality cannot be denied merely on a technical plea. The
court being the constitutional protector of the rights of the people, the relief, in genuine cases of
constitutional violations, flows as a matter of natural consequence, it is said in the book. The
book suggests that ethical foundation defines judicial review and limits the notion of
parliamentary supremacy.
The book is noteworthy for its section on Innovations necessary in working of judicial review,
included in the last chapter. It is observed here that the legislature is a mere agent of the
sovereign people and the sovereign people have not delegated legislative function to their agents
to enact arbitrary and unjust laws. Such laws have to be declared null and void on the grounds
that the legislature was not competent to enact such laws under the limited powers conferred on
it by the people. The court, therefore, has to broaden its vision in constitutional interpretation and
rely on the implied intentions of the Constitution.
A significant innovation recommended here is that judges should be enabled to raise the question
of unconstitutionality of a legislative enactment suo motu. If they believe that the particular Act
is prima facie unconstitutional, they may refer it to the Constitution Bench, and such a Bench
may give necessary decision about its constitutionality after hearing the parties appearing in the
case and the representatives of the Union or the State.
Another suggestion is to permit legal challenges to Bills introduced in Parliament and the State
legislatures if the court finds prima facie substance in the challenge. If the Bill itself is declared
unconstitutional, it would save the nation from much harm, the book says.

The following observation in the book aptly reflects contemporary thinking among civil society
activists: In being activist, the court's philosophy should be that the legislature should function
strictly and truly as agent of the sovereign people and all economic and social changes through
legislation can be brought only when such legislations are in keeping with the feelings and
sentiments of the people and are really for their benefit and not based merely on political
sentiment and whims of the party in power.
The third doctrine, constitutional morality, explored in Kalpana Kannabiran's book, was long
forgotten until it was resurrected by the Delhi High Court in the Naz Foundation case. In 2009,
the court invoked the doctrine to decriminalise homosexual behaviour of consenting adults. The
High Court held that Section 377 of the Indian Penal Code, which criminalises homosexual
behaviour, though reflective of public morality, was against constitutional morality. (The court,
however, did not use the terms public and constitutional morality in mutually exclusive terms in
all instances.)
Naz foundation verdict
The doctrine of constitutional morality implies that constitutional guarantees will lose their
significance if these are given conventional, that is, majoritarian, interpretations. As Justice A.P.
Shah, one of the judges who rendered the Naz Foundation judgment, explained: a right against
the majority only when the majority agrees with it is not much of a right. Therefore, the court
reviewed Section 377, which was a piece of moral legislation enacted on the basis of the
majoritarian moral beliefs on the touchstone of the constitutional guarantees, that is,
constitutional morality. To quote from the judgment: The Constitution of India recognises,
protects and celebrates diversity. To stigmatise or to criminalise homosexuals only on account of
their sexual orientation would be against the constitutional morality.
But the High Court's articulation of constitutional morality, as understood by our founding
fathers, was still inadequate. In a perceptive essay, published in Seminar recently, scholar Pratap
Bhanu Mehta suggests that there were specific elements of constitutional morality which B.R.
Ambedkar, as the Chairman of the Drafting Committee, was concerned about during the
proceedings of the Constituent Assembly.
These are liberty tempered by self-restraint, respect for plurality, deference to processes,
scepticism about authoritative claims to popular sovereignty, and the concern for an open culture
of criticism.
Kalpana Kannabiran's book adds to the scarce literature on constitutional morality by exploring
in depth two of its dimensions, namely, the principles of non-discrimination and liberty. She is
convinced that the reference to minorities during the making of the Constitution was not
restricted to religious minorities but referred to all classes that had been pushed to a position of
marginality and were discriminated against. This habit of discrimination is the central problem
that concerned Ambedkar, she says. Therefore, it necessitated the constitutional prescription of
an appropriate administrative structure and apparatus that, together with the fundamental rights
and directive principles, would ensure the entrenchment of constitutional morality a moral
framework into which the body politic must be schooled.

She tests her hypothesis with reference to the political and legal challenges faced by six groups
persons with disabilities, Dalits (Scheduled Castes), Adivasis (Scheduled Tribes), religious
minorities, women, and sexual minorities.
To her, Ambedkar's sketch of constitutional morality helps erode the encrusted norm of
discrimination in the body politic. She suggests that constitutional morality is an intrinsic part of
a larger project of morality in politics that nourishes a free-ranging intellectual life and
democratic political philosophy rooted in democratic political struggle.
Consistent with this understanding, she denies to the judiciary any exclusive responsibility to
interpret the Constitution, because the courts have generally been unable to go beyond
precedents and case laws, and enter the domain of policy initiatives. People's movements, in their
exercise of a dispersed sovereignty, may craft interpretation, she suggests. Sovereignty, she says,
vests people's movements with the power to use the framework of constitutional morality to fight
discrimination. She uses the term insurgent constitutionalism to refer to people's resistance on the
basis of the subaltern experience to the interpretation of the Constitution by courts, merely
guided by ratio, precedents and obiter. Only insurgent constitutionalism, she suggests, can inspire
non-discrimination and liberty to blossom as incontrovertible constitutional guarantees and
enable constitutional morality to pave the way for social transformation.