Law Is To Be Administered On the Basis Of Standards Of People Living In Society : Justice Nageswara Rao [Video]

"Law is to be administered on the basis of standards of people living in society", commented Justice L. Nageshara Rao while delivering a lecture on 'due process of law' at Ernakulam on Saturday as part of Continuing Legal Education Program organized by the Kerala High Court Advocates Association. Justice Rao was speaking in the context of the debate whether Courts transgress their limits by making content review on legislations on the principle of 'due process of law'.

In the lecture, he narrated the judicial history of evolution of Constitutional understanding of fundamental rights, whereby the original view that fundamental rights operated in distinct silos was changed to an understanding of rights as forming an integrated whole. The concept of 'procedure established by law' incorporated in Article 21, consciously by the Constituent Assembly, did not contemplate Courts undertaking a substance review of legislation. It envisaged that Courts will confine judicial review to examine whether the law has been passed following proper procedure. However, the application of this original intent led to unjust situations, as happened in the case of A.K Gopalan vs State of Madras, where a patently unreasonably law providing for preventive detention happened to pass judicial muster as the Court shunned content-review of the same. The dissenting view expressed by Justice Fazal Ali in that case found resonance later in the Maneka Gandhi case, where the Court adopted the view that fundamental rights under Articles 14,19 and 21 do no operate in distinct silos, but form a golden triangle.  A legislation, to be law, has to pass the test of 'due process', meaning that it should not be one which is merely enacted following the procedure, but that it should also be fair, just and reasonable.

Justice Rao also threw light on how the Constitutional Court in the US followed the principle of 'substantive due process of law', and how judges like Justice Frankfurter, Scalia etc. expressed scepticism about it. He also mentioned that the view that legislation cannot be struck down on the ground of arbitrariness has undergone change following the judgments in Triple Talaq and Privacy cases.

He expressed that even without explicit mention of 'due process of law' in Article 21, content review of legislation is possible under Articles 14 and 21 of the Constitution.  The principle of 'non-arbitrariness' has been read into Article 14 as per E.P Royappa decision. Also, a law affecting freedoms under Article 19 has to satisfy the test of 'reasonableness'.  Therefore, if a piece of legislation is affecting Articles 14 and 19, they have to satisfy the tests of 'non-arbitrariness' and 'reasonableness', and for that purpose, the Courts will have to review the substance of the law.

The principle of 'substantive due process' has been applied in several cases. Courts have now equated 'procedure established by law' with 'due process of law', on the logic that every legislation passed by legislature will not be 'law' unless it is fair, just and reasonable.

However, this exercise has given rise to the criticism that Courts are substituting the will of people expressed through legislations with the wisdom of a handful of unelected judges. He also said that at times, judgments of Courts on sensitive issues do not receive social acceptance. In this backdrop, it is necessary to strike a balance between the rights of the individual and rights of the society, and to administer law as per the standards of the society.

 "Due process of law or substantive due process of law is not a part of our Constitution. According to me, Article 14 and 19 permitting a process where the statute is looked into for the purpose of adjudicating whether it is constitutional or otherwise, challenges to unenumerated rights in Article 21 also can be looked into on the basis of the words used in the Constitution 'procedure established by law'. Procedure, is the procedure to be followed, which should be fair, just and reasonable'", Justice Rao concluded, opining that merit review is possible over a legislation even without importing the concept of 'due process'.

Justice Rao started the lecture commenting "there is no profession thrilling than legal profession". Chief Justice of High Court of Kerala  Hrishikesh Roy delivered a special address in the program, stating that the profession involves a life time of learning and hard work.