CONSTITUTIONAL LAW - I

Annual Survey of Cases

Article 21: Procedure Established by Law and Substantive Due Process of Law
Supreme Court Cases in 2017

Submitted by:
Sahir Boppana
B.A., LL.B. (Hons)
NATIONAL ACADEMY OF LEGAL STUDIES AND RESEARCH
HYDERABAD

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 TABLE OF CONTENTS
INTRODUCTION ................................................................................................................................ 3

LIST OF CASES ................................................................................................................................. 5

EVOLUTION OF DUE PROCESS IN INDIA ............................................................................................ 6

Analysis of Cases ............................................................................................................................ 9

Asha Ranjan vs State Of Bihar And Ors ................................................................................. 9

Girish Kumar Suneja vs CBI .................................................................................................... 10

Ajay Kumar Ghoshal and Ors. Vs State of Bihar and Ors ....................................................... 11

Shayara Bano vs Union Of India And Ors. Ministry Of ... ....................................................... 12

Justice K.S.Puttaswamy(Retd)... vs Union Of India And Ors. on 24 August, 2017 .............. 14

Justice Narimans Opinion vs Justice Chandrachuds Opinion: ............................................... 15

Impact of Justice Chandrachuds Opinion: ............................................................................... 16

CONCLUSION ................................................................................................................................. 17

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 INTRODUCTION
The conflicting concepts of Substantive due process of law and Procedure established by law
have always played a crucial, pivotal role in the functioning of the judiciary.
Article 21 of the Indian Constitution specifies that a person may be deprived of his life and personal
liberty only if it is according to a procedure established by law.1
Any person may claim his right under Article 21 only if he has been deprived of his life and/or
personal liberty by the State as defined by Article 12.2 It is said to embody a constitutional value
of supreme importance in a democratic society, allowing for progressively expanding the scope of
such rights in the years that followed. Extensive interpretation in a case by case basis has allowed
for a wide, growing definition for the notion of those rights.
However, over the years, it has been asked time and again, about the fate of a person who has been
deprived of his rights by the state through the law itself. Would such a claim be valid? Would such
an established procedure be justified merely by an Article, despite being oppressive, unjust and
unfair by nature? The main question arises as to whether a procedure, though established by law,
is valid even if it goes against the very principles of fairness, justice and equality embodied by the
Constitution itself. Thus, Procedure established by law has been subject to interpretation in
various cases in the years to come.
The framers intentionally excluded the due process clause in the Indian Constitution. As the
procedure established by law in India had not been equated to the American concept of due
process of law even by the Supreme Court, it was only seen as the procedure prescribed by law
and enacted by the State. Over the years to follow, these issues and questions have allowed for a
doctrine to be developed and evolve through cases; the doctrine of Due Process of Law.
The issue of whether prescribed procedures were followed and the validity of the law according to
a pure textual reading of Article 21 is dealt with in the question of due process, or pure form as
discussed in The Oxford Handbook of The Indian Constitution.
The two concepts of due process found in American jurisprudence are Substantive Due Process
and Procedural Due Process.

1
Art. 21, the Constitution of India:
No person shall be deprived of his life or personal liberty except according to a procedure established by law.
2
Art. 12, the Constitution of India

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Procedural due process deals with the procedural aspect of the law. The court questions whether
the procedure followed, as established by law, is fair. It sees whether rights have been violated out
of necessity in a fair and reasonable manner, in spite of the procedure followed already being a
valid, established law.
Substantive due process deals with the substantive law. The court questions whether the specific
substantive law is fair in itself, though it may be validly enacted. 3It acts as a blanket prohibition
on the state infringing fundamental rights through the law itself.

The first case to impact any change in the interpretation of this understanding of procedure
established by law, was Maneka Gandhi vs. Union of India, wherein the Supreme Court noted
that the procedure by law in itself must be fair, just and right when depriving a person of life or
liberty. It mustnt be oppressive, arbitrary or fanciful. 4
In this survey of cases, an attempt will be made to look at the present situation of judicial decisions
involving Procedure established by law and Due process of law in Supreme Court cases involving
Article 21 of the Indian Constitution.
Supreme Court cases from 2017 have been taken for the paper, as it would allow for a more recent
and current understanding of the present scenario surrounding these issues. However, the main
reason for selecting 2017 as the year for this survey because of the two important judgements
involving due process that were passed this year:
1. The Right to Privacy Judgement:
Justice K.S.Puttaswamy(Retd)... vs Union Of India And Ors. on 24 August, 2017
2. The Triple Talaq Judgement:
Shayara Bano vs Union of India and Ors. Ministry of... on 22 August, 2017
Though the paper will attempt to analyze different relevant cases of 2017, the main focus of the
paper will be on the two important cases mentioned above. More specifically, the view and
opinions of the authors, Justice D.Y. Chandrachud and Justice Nariman in the privacy judgement
and the Triple Talaq judgement cases respectively will be discussed in detail.

3
Sujit Choudhry, P. B. Mehta and M. Khosla. "Oxford Handbook of Indian Constitutional Law (Oxford University
Press)" (2014)
Available at: http://works.bepress.com/sujit_choudhry/103/
4
Maneka Gandhi vs Union Of India, 1978 AIR 597

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 LIST OF CASES
Cases Referred:
1. Maneka Gandhi vs. Union of India, 1978
2. Sunil Batra vs. Delhi Administration, 1980
3. Kharak Singh vs. State of Uttar Pradesh
4. Selvi vs. State of Karnataka
5. Govind v. State of Madhya Pradesh
6. Mohd Arif vs. Union of India

Cases used for survey:

1. Justice K.S.Puttaswamy(Retd)... vs Union Of India And Ors. on 24 August, 2017
2. Shayara Bano vs Union of India and Ors. Ministry of... on 22 August, 2017
3. Asha Ranjan vs State Of Bihar And Ors on 15 February, 2017
4. Girish Kumar Suneja vs CBI on 13 July, 2017
5. Ajay Kumar Ghoshal and Ors vs. State of Bihar

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 EVOLUTION OF DUE PROCESS IN INDIA
The evolution of the doctrine of due process in India has arisen from a broader, growing
understanding of the rights guaranteed by Article 21. Such a development in the Indian legal
system is considered by scholars to be a part of a larger move towards more expansive
interpretative approaches in the Supreme Court.5 The Right to Life:
Kharak Singh vs. State of Uttar Pradesh, the Supreme Court quoted and held that:
By the term life as here used something more is meant than mere animal existence The
provision equally prohibits the mutilation of the body by amputation of an armour leg or the
pulling out of an eye, or the destruction of any other organ of the body through which the soul
communicates with the outer world.
In Sunil Batra vs. Delhi Administration, the Supreme Court reiterated the same view, while also
holding that the right to life included the right to lead a healthy life so as to enjoy all faculties
of the human body in their prime conditions.
It was mentioned that it would include right to protection of a persons tradition, culture, heritage
and all that gives meaning to a mans life including the right to live in peace, to sleep in peace and
the right to repose and health.
In Peoples Union for Democratic Rights v. Union of India, it was held that not paying minimum
wages to workers was essentially denying their right to live with basic human dignity and would
violate Article 21 of the Constitution. Justice Bhagwati held that rights and benefits conferred on
workmen employed by a contractor under various labour laws are clearly intended to ensure basic
human dignity to workmen, and not implementing these benefits and failure to enforce the laws
violates the fundamental right of workers to live with human dignity under Article 21.
The Supreme Court in 1985 noted that the execution of death sentence by public hanging violates
Article 21. It fails to meet the standards of being a just, fair and reasonable procedure. Thus, an
order passed by the High Court of Rajasthan for public hanging was set aside by the Supreme
Court on the grounds that it violated Article 21.
The Supreme Court held in Sher Singh v State of Punjab, that even an unjustifiable delay in
execution of death sentence is violative of Article 21.

5
Manoj Mate, The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive
Detention Cases, 28 Berkeley J. Int'l Law. 216 (2010)

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The Supreme Court had taken the view that Article 21 read as a whole is concerned with the fullest
development of an individual, ensuring his dignity through the rule of law. Each and every
procedure should be reasonable, fair and just. The right to life and personal liberty has been
interpreted widely to include the right to livelihood, health, education, environment and all those
matters that contributed to life with dignity.
Under this doctrine the Court would not merely examine the reasonableness of the procedure itself
and whether it is fair and just, but also whether it has managed to operate in a fair, just and
reasonable manner. The process clause is one that is comprehensive and is applicable in every area
of State action including civil, criminal and administrative action.

The Right to Liberty:

What the was noted to be groundbreaking in Maneka Gandhi vs. Union of India, 1978 was the
court's recognition of "an implied substantive component to the term "liberty" in Article 21 that
provides broad protection of individual freedom against unreasonable or arbitrary curtailment."6
In Govind v. State of Madhya Pradesh, the judges were more inclined to grant the right to privacy
the status of a fundamental right. Justice Mathew stated that
Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the
individual, his personality and those things stamped with his personality shall be free from official
interference except where a reasonable basis for intrusion exists. In this sense, many of the
fundamental rights of citizens can be described as contributing to the right to privacy.

In the case of Selvi vs. State of Karnataka7, the right was extended to the right of privacy of an
individual; the aspect of search and seizure of police authority and to the extent it can curtail right
to privacy of a citizen.
One principle of ensuring fundamental fairness is that the accused shall not be convicted upon
coerced or involuntary confession. An extension of this principle has led to courts holding that
evidence obtained through force or by some method that is believed to shock the conscience shall
not be admissible. Installing cameras in a persons bedroom for surveillance for a considerably
long period of time is not an suitable process of collecting evidence. It violates rights of privacy

6
Maneka Gandhi vs. Union of India, 1978 AIR 597
7
Selvi & Ors vs State Of Karnataka & Anr on 5 May, 2010

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that are ensured by Article 21. The guarantee of Due Process of the security of ones privacy in
his own home against arbitrary is essential and fundamental to a free society. The regulations
imposed by Police Power must not be arbitrary and oppressive. The police power must be exercised
subject to constitutional limitation, including due process.

The evident shift over the years from a positivist, formal approach of interpretation of the law and
the Constitution, to an expansive one has allowed for continuous change. The activist approach
adopted by courts to interpret fundamental rights in an appropriate manner brought about new
doctrines; doctrines of due process and non-arbitrariness.8

8
Manoj Mate, The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive
Detention Cases, 28 Berkeley J. Int'l Law. 216 (2010).

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 Analysis of Cases
For this paper, the author analyzed certain parts of cases relevant to the theme of due process and
procedure established by law, with regard to Article 21. The aspects of the case pertaining to this
theme have been mentioned and explained, with an attempt to broaden the understanding of the
current stance of the courts.

Asha Ranjan vs State Of Bihar And Ors on 15 February, 2017,

Zahira Habibulla H. Sheikh was referred to on the issue of fair trial and procedure in accordance
with law.
It was said that failure to accord fair hearing either to the accused or the prosecution violates the
basic standards of due process of law. To be essential to the concept of due process of law,
condemnation should be rendered only after the trial in which the hearing is a real one, not sham
or a mere farce and pretense.
Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and
violated by an overhasty, stage-managed, tailored and partisan trial.
The fair trial for a criminal offence consists not only in technical observance of the frame and
forms of law, but also in recognition and just application of its principles in substance, to find out
the truth and prevent miscarriage of justice.
The court observed with reference to Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of
Delhi), in which a three-judge bench opined that there had been a qualitative difference drawn
between fair trial and speedy trial. With a difference in the nature of the trials itself, the right to
speedy trial is one that is relative and essentially dependent on external factors, such as social
impact and gravity of the crime. It does not preclude the rights of public justice. The interests of
the society at large must be taken into consideration.
With analysis of the concept of fair trial as a facet of Article 21, it was perceived that in its ambit,
it covers interest of the accused, prosecution and the victim.
When the court referred to State of Haryana v. Ram Mehar and Ors, in which it was observed that
fair trial cannot be attributed rigidity or flexibility in its application. It requires fairness to the
accused, the victim and the collective at large.

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The victim may be a single person, but the injury suffered by one person is likely to affect the
community interest. Therefore, the collective under certain circumstances and in certain cases,
assume the position of the victim. It is settled in law that the right under Article 21 is not absolute.
The right involving procedure can be curtailed in accordance with law as is permissible by
following due procedure that is able to withstand the test of reasonableness.

Girish Kumar Suneja vs CBI in July 2017

It was submitted by the counsel for the appellants, that the order passed by the High Court should
be recalled or revisited on account of the contention that the appellants had been prevented from
exercising certain legal and constitutional rights. It was submitted by the counsel that they had
been denied access to justice. The right to life and liberty guaranteed by Article 21 had been
restricted. It was specifically mentioned that there are certain procedural safeguards specified by
statutes and these were said to have been denied to the appellants, restricted or constricted by a
judicial order and therefore the procedure established by law had been compromised. It is further
submitted that the procedure which the appellants were subjected to is not just, fair and
reasonable. However, it was seen that no procedural safeguard has been denied to the appellants.
The court observed it to be problematic to equate failure of justice with failure of procedure. It
was also inaccurate to claim that statutory rights had been restricted or constricted by a judicial
order. The remedies available to the appellants still continued to be available, though through a
different forum; the Supreme Court.
It was also observed by the Court that a case such as this, involving coal block allocations should
be dealt with differently, with special attention with regard to the overall public interest. The scale
of the illegalities allegedly committed including those with criminal intent should be considered.
With this in mind, the Court saw no option other than to involve the CBI and monitor the
investigations as the procedure, to reach a logical conclusion. With the weight of the matter and
the seriousness involved, the court had to later interfere with matter later with regard to the
illegalities involving the CBI Director himself.

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With these facts of the case, it was observed that the procedure adopted by this Court does not
violate any right to the life and liberty of any of the appellants or any other persons allegedly
involved in the criminality associated with the allocation of coal blocks.9
This case allowed for an interpretation that drew a distinction between procedure that is simply
not just, fair and reasonable on the face of it, and one that is necessary. It showed how a court may
resort to a procedure out of necessity, and how it may be justified by special circumstances and a
greater cause such as public interest, while circumstances leave the courts no other viable option.
It also displayed how even courts are answerable for their own procedure, making it necessary to
justify the judicial decisions.

Ajay Kumar Ghoshal and Ors. Vs State of Bihar and Ors

The issue of fair and speedy trial as a right of the accused was in question as the accused was being
subjected to retrial upon order of High Court, despite the appeal upon his conviction. The court
observed upon reference to many cases that retrial must only be sought when justice is demanded.
It again referred to the case of Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi).
An integral part of Article 21, the accuseds right to fair trial and speedy trial are distinct and have
a qualitative difference. While both ensure that a persons life and liberty is not infringed upon
without necessary, fair procedure, aspects of the procedure may vary depending upon the case
facts and circumstances. Speedy trial is one that is relative in nature. It depends on circumstances
of the case in criminal proceedings, wherein a delay does not justify discontinuance of prosecution
and dismissal of the case altogether. Speedy trial ensures rights of accused. The rights of public
justice need to be considered, which the speedy trial does not preclude. When continuation of
prosecution is in question, nature and gravity of crime, persons involved, social impact and societal
needs must be weighed with the right of an accused to speedy trial. If there is more weightage to
the former, the delay of several years in concluding the trial should not justify operating against
the continuance of prosecution, nor against the possibility of retrial. The appeal court must closely
keep in view that while protecting the right of an Accused to fair trial and due process, the people
who seek protection of law do not lose hope in legal system and the interests of the society are not
altogether overlooked.10

9
Girish Kumar Suneja vs CBI
10
Mohd. Hussain @ Julfikar Ali vs. State (Govt. of NCT of Delhi)

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The court found that the appellate court did not show how the alleged delay in the trial caused a
miscarriage of justice. In case an accused chooses to file an appeal against their conviction and
sentence, the appellate court is required to consider the evidence on record and arrive at a
conclusion independently. The court observed the impugned order could not be sustained as the
High Court had made a mistake by remitting the matter back to the trial court for fresh trial.
The Supreme Court set aside the impugned judgment, allowing the appeals of the accused. The
matter was remitted back to the High Court for consideration of the matter afresh. The High Court
afford sufficient opportunity to the parties involved to proceed with the matter afresh in
accordance with law. 11

Shayara Bano vs Union Of India And Ors. Ministry Of ... on 22 August, 2017,
Justice Nariman gave an opinion on Substantive Due Process when the issue of whether or not
substantive due process would be permissible came up.
Some contentions against the applicability of substantive due process, included those saying that
a clause that was intentionally deleted from our constitution is not to be implemented, as it was
not intended by the framers. The American concept of substantive due process has been known to
be of controversy in the United States itself, and it would be problematic to implement it in a
country whose constitution itself does not include it.
However, in his opinion, Justice Nariman supported substantive due process. It was supported with
the reasoning that substantive due process creates a greater scope for ensuring fundamental rights,
allowing a guarantee of reasonableness in relation between man and state, and is an injunction
against arbitrariness and oppressiveness.
It was observed with reference to the landmark case of Maneka Gandhi vs. Union of India, that
whether it is or is not included in the constitution does not matter, as the result or consequence is
the same. What was noted to be groundbreaking in Maneka Gandhi vs. Union of India, 1978 was
the court's recognition of "an implied substantive component to the term "liberty" in Article 21 that
provides broad protection of individual freedom against unreasonable or arbitrary curtailment."12

11
Ajay Kumar Ghoshal and Ors. vs. State of Bihar and Ors. (31.01.2017 - SC) : MANU/SC/0085/2017

12
Maneka Gandhi vs. Union of India, 1978 AIR 597

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When Justice V.R. Krishnaiyer, in a later case, referred to the aforementioned case, he mentioned
that though there is no specific clause for due process in India, the result is essentially the same. It
may be said that as far as Article 21 is concerned, it may be treated as the counterpart of the due
process clause in American constitution.13 He also goes on to say that what is punitively
outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is
unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted
with procedural unfairness, falls foul of Article 21.
Justice Nariman in Mohd Arif vs Supreme Court upon observing the trend in interpretations of
Article 21, had stated that
The wheel has turned full circle. Substantive due process is now to be applied to the fundamental
right to life and liberty.
The Constitution Bench of the court in this case had held that the expression reasonable
procedure in the context of Article 21 would encompass an oral hearing of review petitions arising
out of death penalties.
In the present case, Nariman has again reiterated the same view in support of substantive due
process, based on numerous previous judgements as authority, that it is valid and applicable in
Indian courts.
It was observed that the judgement in State of A.P. v. McDowell & Co14 is problematic as it did
not consider previous judgements of constitution bench in the Ajay Hasia case and a coordinate
three judge bench in Lakshmanan case. It is mentioned that the three Judge Bench had not noticed
Maneka Gandhi case cited in Mohd. Arif 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. It is also
mentioned how Maneka Gandhi was cited as an authority in cases that followed, such as Bachan
Singh v. State of Punjab, allowing for applicability of substantive due process to the fundamental
right to life and liberty.
Some points made by Mathew, J., while delivering the first Tej Bahadur Sapru Memorial Lecture
entitled "Democracy and Judicial Review" were also mentioned in the judgement. His view is
premised on the similarity between the American judicial system and the Indian judicial system.
He says that even without the due process clause in the Indian constitution, the imposition of

13
Sunil Batra vs Delhi Administration, 1980 AIR 1579
14
State of A.P. v. McDowell & Co (1996) 3 SCC 709

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reasonable restrictions by a law, can be observed to adopt a certain standard similar to that of the
American Supreme Court in adjudging reasonableness of a legislation under the due process
clause.
The reasoning behind Narimans opinion was based on a trend in previous landmark cases that
brought out the concept of substantive due process. It is also justified as such a wide interpretation
of the Article for allowing substantive due process ideally creates a wider scope to better guarantee
individual rights and prevent their infringement in certain cases.

Justice K.S.Puttaswamy(Retd)... vs Union Of India And Ors. on 24 August, 2017

Justice Chandrachud has brought about significant shift in the understanding of the Article 21 and
its relation to Article 14. The observations made and subsequently discarding of Substantive due
process of law by J. Chandrachud would definitely set a remarkable precedent for future cases.
The case has also laid down one major inclusive interpretation of privacy as a right, in the sense
that it is not a limited one, but is prevalent in different aspects of freedoms, as stated;
"Privacy lies across the spectrum of protected freedoms"

"Article 14, as a guarantee against arbitrariness, infuses the entirety of Article 21. The inter-
relationship between the guarantee against arbitrariness and the protection of life and personal
liberty operates in a multi-faceted plane.
First, it ensures that the procedure for deprivation must be fair, just and reasonable.
Second, Article 14 impacts both the procedure and the expression law. A law within the meaning
of Article 21 must be consistent with the norms of fairness which originate in Article 14. As a
matter of principle, once Article 14 has a connect with Article 21, norms of fairness and
reasonableness would apply not only to the procedure but to the law as well."

Right to privacy has been read under Article 21 in this judgement. Essentially, the right to choose
is one that would fall under the concept of liberty.
At the same time, the court has also kept it open for privacy to be read under other fundamental
rights and therefore the resting place of right to privacy is not always Article 21. It is to be decided
on a case-to-case basis on the factual matrix.

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J. Chandrachud also goes onto discard the substantive due process concept with his statement:
"The danger of construing this as an exercise of substantive due process is that it results in the
incorporation of a concept from the American Constitution which was consciously not accepted
when the Constitution was framed. Moreover, even in the country of its origin, substantive due
process has led to vagaries of judicial interpretation. Particularly having regard to the
constitutional history surrounding the deletion of that phrase in our Constitution, it would be
inappropriate to equate the jurisdiction of a Constitutional Court in India to entertain a
substantive challenge to the validity of a law with the exercise of substantive due process under
the US Constitution. Reference to substantive due process in some of the judgments is essentially
a reference to a substantive challenge to the validity of a law on the ground that its substantive (as
distinct from procedural) provisions violate the Constitution."15
Chandrachuds opinion is based primarily on the fact that the due process clause was
intentionally deleted upon advice from Justice Frankfurter to Shri B.N. Rau during the early stages
of drafting the constitution. It also emphasizes how it challenges the law itself and its constitutional
validity, which was never the intention of the framers. It is evident that courts have adopted
something that
With this significant shift in the approach by which the Article may be interpreted, and the way in
which reliance on due process of law is placed, it is now clear that there is no more an incline
toward a particular stance. Chandrachud has opined instead of relying on procedure as opposed to
due process, or vice versa, there must be a middle ground established.

Justice Narimans Opinion vs Justice Chandrachuds Opinion:

Justice Nariman takes the view that substantive due process has become an inevitable part of
interpretation of Article 21, as seen over the years through different landmark cases. His stance is
based on an understanding that substantive due process allows for a wider, better interpretation of
the article, to guarantee individual rights in a better manner. Narimans view is justified by various
cases as authorities, with trends in wide interpretation over the years. His reasoning is mainly based

15
Justice K.S.Puttaswamy(Retd) ... vs Union Of India And Ors. on 24 August, 2017

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on precedent and the understanding that the judicial system is more or less similar in its functioning
with reasonable restrictions, to that of the U.S judicial system, which adjudges reasonableness of
a legislation under the due process clause.
Hence, Nariman supports the applicability of Substantive due process in judicial functioning.
Justice Chandrachuds opinion and dissent toward substantive due process is primarily based on
the intention of the framers of the constitution. It is emphasized how the framers intention is
different from what is being interpreted. The fact that such interpretation may challenge the
constitutional validity of a law validly enacted is problematic in itself, as the intention of framers
cannot be understood to be that. He establishes that a middle ground needs to be reached with
respect to the procedural aspect of law and individual rights, discarding applicability of substantive
due process of law in Indian courts.

Impact of Justice Chandrachuds Opinion:

The judgement would not impact the term and understanding of the concept of life, but only that
of the procedure established by law.
It should be noted that there is no change in the functioning of Article 21 itself, but rather a change
in the way it is interpreted with respect to procedure.
Public Interest Litigations are essentially premised on a wide interpretation of Article 21. With
Justice Chandrachuds opinion, that reflects the majority opinion of the 4-Judge bench, there is
now a significantly more restricted interpretation of Article 21.
Public Interest Litigations would now have to operate with their focus on purely legal points and
contentions. Consequently, the number of PILs would now be seen to reduce significantly.

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 CONCLUSION
As the survey has allowed for these different cases to be analyzed thematically, it shows a certain
evolution of these concepts and the scope of interpretation allowed.
It may be observed how an American concept such as due process, which was intentionally
excluded from the Indian Constitution, has emerged in practice through interpretations in various
cases. The reason for this may be inferred that the very idea of constitution itself creates scope for
concepts that are not explicitly included. It allows for court to create a space for interpretation and,
provided that a positivist approach is avoided, there is potential for expansive interpretation of
rights.
With or without the text in place, it was always open to wide interpretation in courts and
circumstantial arguments to act in accordance with the principles behind the law and the
foundation of the constitution, to allow courts and the legal system to function and grow while
keeping the intentions laid down by the framers.
Justice Chandrachuds opinion in the latest case of Justice K.S.Puttaswamy(Retd)... vs Union Of
India And Ors., did set a noteworthy precedent that has implications for cases in the years to come.
While discarding the American concept of substantive due process of justice, he emphasized that
a middle ground is needed to be established wherein procedure is followed in a reasonable manner
that is valid and specified by law and is at the same time, justified, fair and reasonable in itself.
Public Interest Litigations would be most affected by this judgement, as they generally tend to
involve a wider interpretation of Article 21. As the interpretation is now required to be more
narrow and restricted, it means that cases must proceed on purely legal points.
The judgement seems to favour procedural due process over substantive due process, with
emphasis on the fact that the latter inappropriately challenges the constitutional validity of the law
itself, despite the due process clause being intentionally deleted from the Constitution itself.

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