How has the "due process" norm shaped Indian and American jurisprudence? Legal experts discuss in Kerala High Court

A colloquium on the theme “Evolution of due process norm under American Law: Lessons for the Indian Judiciary” held at the Kerala High Court on Friday evening saw legal experts discuss the impact of the “due process” clause in the United States of America, as well as in India.

The discussion featured New York Supreme Court judge, Justice Mathew F Cooper and founding Vice-Chancellor of the OP Jindal Global University, Prof (Dr) C Raj Kumar as panellists. The panel discussion was moderated by Justice Anu Sivaraman of the Kerala High Court.

The event was organised jointly by the Kerala High Court Advocates’ Association and the Indian Law Institute.

Justice Cooper spoke in some detail about how the 14th Amendment of the US Constitution, which contains the "due process" and "equal protection" clauses, was necessary to expand the scope of basic rights to earlier disenfranchised people.

He recounted that the clause was not part of the original Constitution. Rather, “it came after the American civil war. Its primary function was to ensure that freed slaves - African Americans - would not be disenfranchised, that they would not be deprived of their rights.”

He proceeded to note that the due process clause has since been used to expand the scope of rights on several issues. These issues include rights against self-incrimination, reproductive autonomy, and gay marriage.

During the course of the discussion, he also highlighted the example of how the 14th Amendment played a part in ending racial segregation in American schools.

“America has a sordid history of discrimination against African Americans, probably our greatest sin second to slavery itself. And it took the United States Supreme Court using the 'equal protection clause' of the 14th amendment in Brown v. Board of Education to end segregation in schools."

He went on to comment on how the 14th Amendment continues to be a part of every-day workings of the court system, to help ordinary litigants address their grievances.

Interestingly, the judge also highlighted that caseload pendency also plays a part in discerning the effectivity of the due process of law. In this regard, he acknowledged that India faces a more uphill task.

“We are so over worked and so over burdened by all the cases. But what I hear is our case load is nothing compared to your’s and my heart goes out to you and my admiration is immense.”

In India, the panelists noted that the corresponding provision is Article 21 of the Constitution, which provides for the “procedure established by law” to be followed before depriving persons of their personal liberty.

While discussing the difference between substantive and procedural due process, Prof Raj Kumar recounted that the Constituent Assembly had been persuaded against using the language of “due process” after member VN Row was advised against it by then Supreme Court judge Felix Frankfurter.

While the phrase “procedure established by law” was adopted instead for practical reasons of expediency, Prof Rajkumar observed that over the years, India has come to have a better appreciation of the “due process” clause.

Professor Rajkumar also commented on how jurisprudential growth in India has been shaped by the Court’s interpretations of Article 21. Explaining how this came to be in India, he said,

“After the Emergency, there was a very deeply felt need for the judiciary to… develop its identity, but also assert its credibility… It was not acceptable anymore on the part of the judiciary to be a mute spectator when it comes to a violation of what it assumed to itself the substantive due process.”

The legal evolution that followed was a result of creative interpretations of the law, particularly Articles 14 and 21, Prof Raj Kumar said. In this regard, he also observed that the case of Maneka Gandhi v. Union of India played a pivotal role.

He added a note of caution that the time has come for adopting a more nuanced, doctrinal approach in re-interpreting the law using Article 21.

While speaking on how the provision has been invoked in cases of economic significance, Prof Kumar opined that “it should not end up becoming a tool that the judiciary uses almost arbitrarily to decide when things are arbitrary.”

As the discussion concluded, Professor Rajkumar commented,

Among others who spoke at the event are Advocate Lakshmi Narayan R of the KHCAA who welcomed the gathering, and Senior Advocate Ranjith Thampan, Additional Advocate General, who rendered the concluding remarks. The event concluded after a panel discussion.