Substantive and Procedural Fairness

In one line

Procedural fairness is about how the decision was reached; substantive fairness is about the decision itself, and Indian courts do both, but not to the same depth.

In the wording a student can write in an exam: procedural fairness governs the manner of the decision, requiring notice, a hearing, an unbiased adjudicator and reasons; substantive fairness governs the content of the decision, requiring that it not be arbitrary, unreasonable or disproportionate; Indian courts enforce the first fully and the second through Article 14 arbitrariness, Wednesbury unreasonableness and proportionality.

MU's question

The University asks for the role of the Indian judiciary in ensuring substantive and procedural fairness in the light of the due process clause. The due process element is [Due Process in India]; this chapter separates the two kinds of fairness and shows how far the courts go with each.

The two kinds

Procedural fairness. The rules of natural justice and any procedure the statute prescribes. It answers the question: was he treated fairly on the way to the decision?

Substantive fairness. The quality of the decision itself. It answers the question: is the decision itself defensible, or is it arbitrary, excessive or irrational?

The reason the distinction matters is the depth of review. A court is comfortable reviewing procedure, because it is expert in procedure and because correcting it does not require the court to choose. It is uncomfortable reviewing substance, because that comes close to deciding.

What Indian courts do with procedure

Everything in this module: notice, disclosure, hearing, an unbiased adjudicator, a decision by the person who heard, reasons. The standard is high, the source is constitutional after Maneka Gandhi v. Union of India, AIR 1978 SC 597, and the only significant qualification is prejudice: Canara Bank v. V.K. Awasthy, AIR 2005 SC 2090.

What Indian courts do with substance

Arbitrariness under Article 14. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, makes an arbitrary decision unconstitutional. This is the widest substantive control, and it is uniquely Indian.

Wednesbury unreasonableness. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 KB 223, at its very high threshold.

Proportionality where a right or a punishment is in issue. Modern Dental College and Research Centre v. State of Madhya Pradesh, decided on 2 May 2016, and Justice K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161.

Nothing at all on the merits of a policy. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, and Tata Cellular v. Union of India, AIR 1996 SC 11.

The point where the two meet

Reasons. A decision without reasons cannot be tested for substantive fairness at all, which is why the duty to give them, in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, is simultaneously a procedural requirement and the precondition of substantive review. That is the answer to a question asking how the two are connected.