Context

The Supreme Court in a recent judgment highlighted the importance of due process of law.

What is Due Process of Law?

• Source: The “due process of law” clause comes from the US Constitution.
• About: It means that the government can’t take away a person’s life, liberty (freedom), or property without following a fair and proper procedure. 
  • This concept has two parts: substantive due process of law (the actual laws applied) and procedural due process (the procedures used to apply the laws).
• Safeguards for Citizens’ Natural Rights: The Supreme Court of India eventually introduced two safeguards for citizens’ natural rights: the due process clause and the basic structure doctrine. 
  • However, these doctrines remain absent from the written text of the Constitution.

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Debates and Discussions on Due Process of Law

• Govind Ballabh Pant: He was the prominent opposer of the due process clause as he believed that the clause would be a hurdle in the implementation of social reform laws such as the abolition of the zamindari system.
• C. Rajagopalachari: He  moved a compromise amendment on the due process clause by delinking ‘property’ from it but retaining due process protection for life and liberty.
  • Accordingly, the due process clause was passed by the Assembly on April 30, 1947, which read: “No person shall be deprived of their life or liberty, without due process of law.”
• B.N. Rau: The constitutional adviser of the Constituent Assembly, was entrusted with compiling a draft Constitution reflective of the Assembly’s prior decisions and deliberations.
  • He modified the due process clause by adding ‘personal’ before ‘liberty’, following the example of the Irish Constitution.
  • Despite claims that U.S. Supreme Court Justice Felix Frankfurter advised Rau to completely remove the due process clause, Rau did not follow this advice.
• Replacement of Due Process Clause with “Procedure Established by Law: Later, the drafting committee dropped the due process clause from the draft.
  • It was replaced with ‘except according to procedure established by law‘ (a term borrowed from the Japanese Constitution of 1946).
• Rejection of the Due Process Clause: The Constituent Assembly witnessed debates over the due process clause. The most noted among them was the K.M. Munshi-Alladi Krishnaswami Ayyar debate.
  • The Assembly finally voted against the due process clause.

Basic Structure Doctrine

• Kesavananda Bharati Case: The basic structure doctrine, established by the Supreme Court of India in the 1973 Kesavananda Bharati case, is known as the safeguard of citizens’ rights.
  • The amendability of fundamental rights was the major controversy in this case.
• Fundamental Rights as Part of Basic Structure: Nani Palkhivala argued that fundamental rights are included in the basic structure of the Constitution, and hence unamendable. This proposition was accepted by the 6 judge benches.
  • It was  held that the Constitution (29th Amendment) Act, 1972 which curtailed the fundamental right to property was perfectly valid.
• Maneka Gandhi vs Union of India (1978): In this case, Justice P.N. Bhagwati expressed that the language of Article 21 is open-ended, encompassing guarantees of due process.

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