Tuesday, August 23, 2011
Substantive Due Process
In a book published this month by the Eastern Book Company, entitled “Due Process of Law”, I analyze the doctrine of substantive due process, in particular its evolution in American constitutional law, and its emergence in Indian jurisprudence. In it, I expand upon themes I previously wrote about (here and here), arguing that the term “substantive due process” has evoked three meanings in American constitutional jurisprudence, (i) “federal-state” due process, (ii) “fundamental rights” based due process, and (iii) substantive scrutiny of life, liberty and property deprivations. I examine the origins of the phrase “due process of law” in per legem terre in the Magna Carta, exploring the intellectual disagreement (though centuries apart) between Lord Coke and Blackstone over its meaning, its adoption into the fifth and fourteenth amendments to the American constitution, the tussle between Justices Frankfurter and Black on the American Supreme Court in the manner of its interpretation (at approximately the time that B.N. Rau met Justice Frankfurter and was advised to drop the clause), the “false start” of substantive due process doctrine during the Lochner era (leading up to its new beginnings during the Warren era), B.N. Rau’s own reservations with the “due process” clause even prior to his meeting with Frankfurter, the strong apparent support for the words “due process of law” on the sub-committee on fundamental rights and later on the constituent assembly of India itself and Dr. Ambedkar’s ambivalence towards the clause. I explore what I believe are three emanations of substantive due process doctrine in India: (i) the blending of boundaries between constitutional provisions beginning with the end of the Gopalan era and culminating in our “basic structure” jurisprudence, (ii) the strong substantive “arbitrariness” test with its origins in the moral illegitimacy of the court during the emergency, and (iii) the well known “right to life jurisprudence”. This book explores the juristic techniques employed by the Supreme Court of India in interpreting the Indian constitution and their strong resemblance to American "substantive due process" doctrine, but it does not attempt a history of the court’s handling of socio-economic legislation. I would like to invite interested readers to read further.