Central Vista: Substantive due process not envisaged by Indian Constitution, SG Tushar Mehta

The doctrine of substantive due process is of American import and is not contemplated under the Constitution of India, Solicitor General Tushar Mehta told the Supreme Court on Wednesday during the hearing in the challenge to the Central Vista redevelopment project..Mehta, who continued his defence of the project today, deprecated the “recent trend” to apply doctrines like Constitutional morality and substantive due process to the Indian context, stating that we should stick to our Constitution and not deviate from the same..Imminent need to have new Parliament building: Centre on Central Vista redevelopment."The recent trend is to involve Constitutional morality and due process clause from USA in every case. Constitutional morality is vague. Due process is not contemplated by our Constitution”, said Mehta, adding that he was not in favour of placing reliance on foreign judgments and jurisprudence..Noting that due process is part of rule of law, the Bench headed by Justice AM Khanwilkar asked Mehta whether ‘rule of law’ applies to India.Mehta replied that rule of law is very much applicable to India, but the same would imply adherence to the Indian Constitution and law..“Law and Constitutional values evolve differently in each society depending on their social values. Their (petitioners’) argument of due process is an extension of substantive due process of America. We have our own jurisprudence including Article 14 which covers non-discrimination, non-arbitrariness etc. I don't, therefore, find it necessary to go on a world tour and rely on Congo or South Africa”, he said..Article 21 of the Constitution provides for “procedure established by law” to be followed before depriving persons of their personal liberty. The framers of the Constitution had discussed at length about using the term "due process of law" instead of "procedure established by law", but had eventually settled in favour of the latter. .However, the debate surrounding it is far from settled with the Supreme Court through its judicial interpretations, including the judgment in Maneka Gandhi v. Union of India, which was subsequently relied upon in the more recent judgments in Mohd Arif v. Supreme Court of India and Shayara Bano v. Union of India arguably expanding the scope of Article 21 by reading into it the substantive due process as contemplated in American jurisprudence. .The centre has, however, disputed this position stating in its written submissions that Arif and Shayara Bano have wrongly interpreted Maneka Gandhi judgment as having laid down substantive due process when, in fact, it has only read into the phrase ‘procedure established by law’, the principles of natural justice..During the hearing on Wednesday, the Centre also rebutted the arguments of the petitioner that the decision to redevelop the Central Vista area was taken without adequate public participation..Mehta said that the petitioners have projected a “very catchy” interpretation to public participation and participatory democracy..“Their argument is there should be some referendum of sorts on whether there should be a new Parliament building. Our country is so huge and diverse that I don't think the Constitution intended for a participatory democracy in a manner which the petitioner wants”, Mehta argued..Pointing out that participatory democracy under our Constitution is different, Mehta explained that it is representative participation that is contemplated under Indian Constitution..“Our government functions through the Council of Ministers which is answerable to Parliament and Parliament in turn is accountable to the people. That is the nature of our representative democracy", he contended..Further, it was his argument that the petitioners have not shown any Constitutional or statutory breach with respect to the sanctions accorded to the project or the decisions taken with regard to the same.“They have only offered an alternative method and even if that method is better, it will not be a reason to scrap the project”, Mehta told the Court..The hearing in the case is expected to conclude tomorrow.