Due Process of Law

350 Pages·2012·72.527 MB·English

by  Abhinav Chandrachud

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«nmcnr l,.aw Coll~e
)l!umb:u
Fc,reword by
HON'0LE Ml\ JUSTICE R.V. RAVEENDRAN
Judge, $uprem~ Coon of Jndi:,
•
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1st Edition, 2011 Rep1-i11te,d 2012
t 800.00
ISBN: 978-93-5145-168-6
All rights reserved. No part of this work may be copied, reproduced, adapted, abridged or
translated, stored in any retrieva.l system, computer system., photographic or other system or
transmitted in any form by any means whether electronic, mechanical, digital, optical,
photographic or otherwise without a prior written permission of the copyright holders, Eastern
To
AAI, DAD,
AAJU
& PRABHA , N ANI & BAB A,
THE C HITALES, THE C HANDR ACHUD S
andC HINTAN
thoug h the founding fathers had consciously decided
.;1.,,,,,@c.tt,1-uo ou not to adop t the due pro cess clause and had opted for
Rk& .. f!.!JO1 8043 "procedur e established by law" in Article 21 of the
!!Fa,,,.·
.!230 /8320
Constitution of India.
Due proc ess as initially und erstood, referred to II a
1
course of legal proceedings according to those rules and
Foreword
lilv11
principle s which have been established for the
prot ection and enforcement of private rights". [Pennoyer
v. Neff, 24 L Ed 565: 95 US 714 (1877)] Slowly and
steadily app lication of due pro cess expand ed be~
judicial proce edings and the State and its officers, t~
administrative decisions and actions which affected the
rights of persons were requ ired to comply with the
1
re,guirements of due process namely notice hearing/
1 1 1
WRITING A TREATISE ON AN ABSTRACT BUT RELEVAli 1rJ;QN.£Ef~ cedur e. Simultaneously, the scope and
like "due process" is a difficult task, when compare_d to ambit of due process also expanded from merely
writing a text on a trad itional subject. Mr_ ~bhinav procedurald ue proc ess (relating to fairness in t~ial, right
Chandrachud has attempted to capture the sp1nt of due to be heard before being condemned or subJected to
proc ess as it develop ed in American jurisprudenc e/ and adverse decision) to substantive due process (referring to
1
explain s how it has inevitably but discreetly entered right to counse t right to legal aid right to remain silent/
Indian constitut ional law in a mutated form even 1
right to be warned or put on notice that anything said In India, for more than a quar ter century after the
by a person arrested may be used agains t him etc.). Constitution was adopted, Article 21 providing that no
Frankfurter J, explained the elusive nature of due person shall be deprived of his life or personal liberty
process in Joint Anti-Fascist Refugee Conzmittee v. McGrath except according to procedure established by law, was
[95 L Ed 817: 341 US 123 (1951)] as: interpreted by the Supr eme Court strictly and narrowly.
It consistently resisted attempts to read due process
'Due process ', unlike son1e legal rules , is not a technica l
requ irements into Article 21. A.K. Gopalan v. State of
concep tion with a fixed conten t unrelated to time, place
and circumstances. Expressing as it does in its ultimate Madras [AIR 1950 SC 27] ruled from 1950 to 1978. Then
analys is, respect enforced by law for that feeling of just came 1\1.anek.aG andhi v. Union of India [(1978) 1 SCC 248].
treatme nt which has been evolved through centuries of Interpreting Article 2\ ~he Supreme C~urt he_ld t~
Anglo -An1erican WVIII constitutional history and depnve a person of his life or personal liberty 1t w~
civilization, 'due proc ess' cannot be imprisoned within enough for law to prescribe a procedure, but the
the treacherous limits of any formul a. Represe nting a proc edure prescribed by law should be fair, just and
profoun d attitude of fairness between man and man, and reasonable. In short, it held that procedu re established
more particularly between the indivi dual and by a valid law in effect meant due process of law. This
governn 1ent, 'due pro cess' is compo unded of history, resulted in a series of rights being recognised as a part
reason , the past course of decisions, and stout confidence of the right to life. By equati ng procedure established by
in the streng th of the democ ratic faith which we profess.
law to due process of law, the Supreme Court impliedly
Due pro cess is not a mechan ical instrumen t. It is not a
impo rted and incorporated fairness in triat right to be
yards tick. It is a process .
heard before being condemned, judgm ent only after
trial, and deprivation of life and liberty only after due available is aptly explained with reference to a
pro cess, as part of Article 21. It also subsequently read government servant who is charged with a misconduc t
the right to counsel, right to legal aid, right to privacy and a person accused of a crime. In disciplinary
among others, as parts of substantive due process. Rule proceed ings against a government servant, what is
of law became truly meaningful. assured is only procedural due pro cess and not
The book analyses the difference between procedural substantive due pro cess (or very limited substantive due
due pro cess and substantive due proces s. The autho r proces s). On the other hand, a person tried for a
lucidly explain s the thin line differentiating substantive criminal offence is entitled to prote ction of both
W IX
due pro cess from procedural due process. He points out procedural due proces s and substantive due process. He
that any enqu iry into why a person is arrested also explains the scope and applicability of the due
(depri vation of freedom from physical restraint) would proces s doctrine in regard to executive and legislative
be a substantive due process and any enqu iry into how a actions. He points out that importing the requiremen ts
person is deprived of liberty by an arrest (procedure of substantive due pro cess with reference to legislative
followed in dep rivation of life and liberty) would be a action will create difficulties as it involves conside ration
procedural due pro cess. The procedural due process of political philosophies, economic policies and,
relates to giving notice, disclosing reasons for the there fore, the enquiry would be limited .
propo sed action and giving a hearing in a fair enquiry The author identifies the effective application of
or trial, whereas substanti've due process refers to the substantive due pro cess in three spheres of Indian
investigation into the reasons why he is charged with a constitu tional law: i) articulation of basic structure
misconduc t or a crime. Where and when both will be doctrine; ii) application of arbitra riness test derived
from Article 14; and iii) recognition and creation of
several un enume rated rights relating to life and
personal liberty.
The book fills the vacuum that has existed in regard to
this branch of law in Ind ia thoug h due proce ss has been
1
gradually assimilated in Indian constitutional law in the
last three decade s. The book will be of consider able
interest and assistance to serious stude nts of law as also
membe rs of the Bar and the Bench in un derstan ding the
intricacies of due proce ss. The author should be
congratulated for his maiden effort.
R.V . Raveendran
New Delhi
31-3-2011
WX THIS IS A SIGNIFICANT SCHOLARLY INVESTIC
fascinating, important, and evergreen top ic of "jud icial
review and substantive due pro cess", of value both for
its general treatment and for its original interpreta tion
of Indian cases and constitut ional materials. Abhinav
Chandrachud ' s centr al argu ment that substantive
jud icial review has entered Indian constitut ional law by
variou s distinctive means is a major contr ibution to the
ongoing transnational debate about constituti ons and
their jud icial interpr etation.
Noah Feldman
Bemis Professor of Law
Hauser Hall 210, Harvard Law School
Camb ridge, MA 02138