Substantive and Procedural Fairness
Chapter Eighty-Seven
Syllabus topic 5, "Procedural fairness"
Pages 260 to 262 of 430
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.
Substantive and Procedural Fairness
The role of the judiciary, which is what MU asks about
It supplies the procedure the legislature omitted. Silence does not exclude natural justice.
It reads fairness into the Constitution. Articles 14 and 21.
It keeps substantive review structured. Proportionality has four steps and Wednesbury has a threshold, so review does not become a general licence.
It restrains itself on policy. Asif Hameed's self-imposed discipline of judicial restraint.
That is the honest account: full procedural review, structured substantive review, and no review of policy.
A worked example
A State prescribes that a candidate for a teaching post must have a doctorate, and rejects an applicant who has one from a foreign university, without telling him why and without any rule about foreign degrees.
Procedural fairness: he was entitled to be told the ground and to answer it, and to reasons, so the rejection falls on S.N. Mukherjee. Substantive fairness: refusing to recognise a foreign doctorate without any rule or criterion is arbitrary under Royappa; and if the requirement had been prescribed by rule, the question would be whether it is a reasonable restriction on his right to practise a profession, which is proportionality. Policy: whether a doctorate should be required at all is not for the court.
Distinctions that carry marks
| Procedural fairness | Substantive fairness | |
|---|---|---|
| Question | How was the decision reached? | What is the decision itself? |
| Content | Notice, hearing, no bias, reasons | Not arbitrary, not irrational, not disproportionate |
| Depth of review | Full | Structured and limited |
| Indian source | Articles 14 and 21, and the common law | Article 14 arbitrariness, Wednesbury, proportionality |
| Remedy | Quash and remit | Quash, or strike down the measure |
What this does NOT mean
It does not mean substantive review is rare. Article 14 arbitrariness is invoked constantly, and it is substantive.
It does not mean procedure is a formality. It is the part of review that most often decides cases.
It does not mean the two can always be separated. A decision reached without considering a relevant matter is both a procedural and a substantive defect.
Quick revision
Procedural fairness is the manner: notice, disclosure, hearing, no bias, decision by the person who heard, reasons; reviewed fully and constitutionally after Maneka Gandhi, subject to prejudice under Canara Bank. Substantive fairness is the content: arbitrariness under Royappa, Wednesbury unreasonableness, and proportionality under Modern Dental College and Puttaswamy; reviewed in a structured and limited way, and not at all on policy, which is Asif Hameed and Tata Cellular. Reasons are the hinge between the two.
Substantive and Procedural Fairness
Test yourself
1. Why do courts review procedure more readily than substance? Because they are expert in procedure and correcting it does not require the court to make the choice, whereas substantive review moves the court towards deciding the matter itself.
2. Which Indian doctrine does the most substantive work? Arbitrariness under Article 14, from Royappa, because it applies to every State action and has a lower threshold than Wednesbury.
3. How do reasons connect the two kinds of fairness? They are a procedural requirement, and they are also the precondition of substantive review, because a decision whose basis is hidden cannot be tested for arbitrariness or proportionality.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.