PART Q
Justice Krishna Iyer took note of the fact that our Constitution does not contain a due process clause and opined that after the decision in Maneka, the absence of such a clause would make no difference: “…true, our Constitution has no ‘due process’ clause or the VIIIth Amendment; but, in this branch of law, after Cooper and Maneka Gandhi the consequence is the same.”370
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A substantive challenge to the constitutional validity of the death penalty on a
conviction on a charge of murder was raised in Bachan Singh371. The judgment noted: “136. Article 21 reads as under: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” If this Article is expanded in accordance with the interpretative principle indicated in Maneka Gandhi, it will read as follows: “No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law." In the converse positive form, the expanded Article will read as below: “A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.””372
Bachan Singh clearly involved a substantive challenge to the constitutional validity of a statutory provision. The majority adjudicated upon the constitutional challenge under Article 21 and held that it did not suffer from substantive or procedural invalidity.
370
Ibid, at page 518 (para 52) (1980) 2 SCC 684 372 Ibid, at page 730 (para 136) 371
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