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Chapter 3.5.2: 2G Judgment: Do We Finally Have “Due Process of Law” Now?

(August 2012)

I was waiting for this day. Article 14 of the Indian Constitution has always enamored me. The equality, enshrined under Article 14, can be ensured in two ways: first by challenging the law/policy/action of the State on the principle of “intelligible differentia” and “rational nexus” — but that’s not where the real fun lies — and secondly by invoking procedural fairness. After the Maneka Gandhi Judgment (Re: Maneka Gandhi v. UOI, 1978 AIR 597, 1978 SCR (2) 621; download the judgment from http://indiankanoon.org/doc/1766147/) (actually even before that), a new concept of procedural fairness was introduced through out the constitutional scheme of Part III of the Constitution including Article 14, 19 and 21, but it was limited only to arbitrary decisions of the Executive not touching upon policy decisions and/or delegated legislation unless there is manifest arbitrariness. In other words, we have procedural fairness, but not the “Due Process of Law”; and, thus, the law can’t be challenged under Article 14 or 21 of the Indian Constitution for its mere arbitrariness. Now let us see what this 2G Judgment (CPIL v. UOI, Writ Petition (civil) no. 423 of 2010 in the Supreme Court of India; download the judgment from http://supremecourtofindia.nic.in/outtoday/39041.pdf) has done.

The crux of this Judgment lies in Para 79, where the Hon’ble Supreme Court notes as under:

We are also conscious of the fact that the Court should not interfere with the fiscal policies of the State. However, when it is clearly demonstrated that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognized parameters.

The only constitutional principle in challenge in the case was that of the equality principle under Article 14 of the Indian Constitution. There was no challenge on the basis of “intelligible differentia” and “rational nexus”; the challenge was, in fact, to the TRAI’s policy recommendations indirectly and to the manner of its implementation by the DOT directly. The Hon’ble Court, in Para 74 of the judgment, has gone to the extent of recording a finding that the TRAI’s policy recommendations were flawed on the principles of equality, which is unprecedented. Finally, the Court has found that “the exercise undertaken by the officers of the DoT between September, 2007 and March 2008, under the leadership of the then Minister of C&IT was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality”; though the de-jure result of the judgment is the quashing of licenses issued pursuant to the press releases issued on 10.1.2008, but the de-facto result is the quashing of the policy recommendation of the TRAI. The above, in fact, means that a policy decision of the government can be challenged indirectly on the principle of “due process of law”, especially if it is against larger public interest. Applying the same logic, the law laid down by the Parliament can be challenged if the parliamentarians fail to appropriately consider the arbitrary recommendations of the standing committee. Here “appropriately consider” would mean procedural regularity; i.e., if the Parliament passes an arbitrary legislation recommended by the standing committee with in a few minutes by voice vote without enough deliberation, then, well, it can be challenged because the parliamentary privileges are not above constitutional rights; and when a conflict would arise between the two, i.e. the parliamentary privileges and the constitutional rights, it will have to be resolved by harmonious construction principle vide Special Reference No. 1 of 1964 (AIR 1965 SC 745; download the judgment from http://indiankanoon.org/doc/1481910/); and harmony, in such circumstances, will always lie in favor of the larger public than a few parliamentarians. In a way, we have a kind of “Due Process of Law” now. © 2012-2015 Ankur Mutreja