Substantive Due Process

The crucial question can citizens claim an absolute right over their body parts and refuse to give digital samples of their fingerprints and iris for Aadhar enrollment?’ will only be answered when the Unicorn Constitution Bench decides the Aadhar-Privacy issue.

The Aadhar-PAN Judgment, Binoy Viswam v. Union of India [Writ Petition (Civil) 247 of 2017], for now has added nothing to my intellectual repertoire, nothing certainly to merit a dedication of 1832 words. What it has done though, is, prove yet again substantive due process is philosophical hot air. We have known this for some time.

Emphasis on the doctrine of ‘fairness’/ ‘non-arbitrariness’ laid the foundation of substantive due process in our country. At least, Abhinav Chandrachud, grandson to Former Chief Justice Y.V. Chandrachud, believed so or believes so.

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In a CJI K.G. Balakrishnan Judgment in 2010, richly cited in the book, it indeed was held that the ‘standard of substantive due process’ is a part of Indian Constitutional Jurisprudence.

5 years later, in Rajbala v. Haryana, (2016) 2 SCC 445 Hon’ble Justice J. Chelameswar[1] strongly rejected that standard, all while pointing out he has known it for some time too.

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 the doctrine of ‘substantive due process’ employed by the American Supreme Court… even in the United States the doctrine is currently of doubtful legitimacy. This Court long back in A.S. Krishna v. State of Madras, AIR 1957 SC 297 declared that the doctrine of due process has no application under the Indian Constitution.”

We may also recollect Madan B. Lokur Sa’ab, in Paragraph 426 of the NJAC Judgment, introducing a Ray Quotation from Kesavananda Bharti, (1973) 4 SCC 225:

“Courts are not concerned with the wisdom or policy of legislation. The Courts are equally not concerned with the wisdom and policy of amendments to the Constitution.”

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The response to the Aadhar-PAN Judgment should not be an appeal to the Court, or a misplaced hope on the Unicorn Constitution Bench. The appeal must be to the ballot and to the process of democratic government.

 

[1] Fun Fact: October 14 is ‘Justice Jasti Chelameswar Day’ in the State of Illinois.

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