Context:

This article is exploring the scenario of Due Process of Law in India since debates from the Constituent Assembly to the paradigm shift case of Maneka Gandhi vs Union of India, 1978.

The Evolving Indian Constitution: Due Process and Basic Structure

• The Indian Constitution can be compared to the mythical ship of Theseus, which underwent continuous replacement of its components. Similarly, the Indian Constitution has evolved over time with amendments and reinterpretations.
• The Constitution initially had limited safeguards for the natural rights of citizens, resembling the feeble safety devices of the ship of Theseus. However, the Supreme Court of India played a crucial role in strengthening these safeguards.
• The Supreme Court introduced two significant doctrines: 
  • The due process clause and the basic structure doctrine. These doctrines serve as lifebuoys for protecting the natural rights of Indian citizens.
• Despite their importance, the due process clause and the basic structure doctrine are not explicitly mentioned in the text of the Constitution, making it somewhat deceptive.

Natural Law School of Jurisprudence:

• The due process clause is rooted in the natural law school of jurisprudence.
• Natural law refers to norms that are considered higher than laws created by the state and are based on human reason.
• Natural law invalidates state-made laws that conflict with its principles.

Meaning of “Law” in the Due Process Clause:

• In the context of the due process clause, “law” refers to natural law.
• The due process clause is an American legal concept found in the Fifth Amendment of the U.S. Constitution (1791).
• It states that no person shall be deprived of life, liberty, or property without due process of law.

Due process has two aspects:

• Substantive Due Process: It focuses on whether the government is justified in interfering with a person’s life, liberty, and property. 
  • It reflects the long-held belief that a constitution protects persons against unwarranted government interference.
• Procedural Due Process: It refers to the general procedures that must be followed before a person’s life, liberty, or property can be taken from him. 

Differences between the Procedure established by Law & the Due Process of Law:

Perspective of India on Due Process of Law:

• Constituent Assembly: Leading members of the Constituent Assembly wanted the due process clause to be incorporated into the Constitution.
• B.N. Rau: He was the constitutional adviser of the Constituent Assembly, clipped the due process clause by prefixing ‘personal’ before ‘liberty’, like the Irish Constitution. 
• Later, the drafting committee dropped the due process clause from the draft and replaced it with ‘except according to procedure established by law’ (a term borrowed from the Japanese Constitution of 1946). 
• Govind Ballabh Pant: He was the prominent opposer as he believed that this due process of law 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.”

Article 21 of the Indian Constitution: It deals with the protection of life and personal liberty. It means, no person shall be deprived of his/her life or personal liberty except according to procedure established by law.

The Basic Structure Doctrine:

• Kesavananda Bharati case (1973): This doctrine was clearly pronounced by the Supreme Court of India in the Kesavananda Bharati case (1973). 
• Judicial Innovation: It is a judicial innovation for ensuring the power of amendment is not misused by Parliament. 
• Basis: Indian Constitution upholds certain principles for the governing rules for the Parliament, any amendment cannot change these principles on the basis of the doctrine of basic structure. 
• Few Upholding Principles:
  • The Supremacy of the Constitution
  • The Rule of Law
  • Sovereign, Democratic and Republic nature
  • The Parliamentary System of Government
  • Independence of the Judiciary
  • Doctrine of Separation of Powers
  • The principle of free and fair elections
  • Welfare State, etc.

Concern Raised from the Kesavananda Bharati case (1973): 

• Fundamental Rights: The upshot of Kesavananda Bharati was that the question of whether fundamental rights are part of the basic structure has been left unanswered. 
  • Hence, the Basic Structure Doctrine is much ado about nothing as far as fundamental rights are concerned.

A paradigm shift- In Maneka Gandhi vs Union of India (1978):

• Scope of Article 21: Before the Maneka Gandhi case, the extent of Article 21 of the Indian Constitution was very limited. But after this case, the ambit of Article 21 of the Indian Constitution was broadened by the Supreme Court.
• Inherent Element: It was declared that due process of law is an inherent element of procedure established by law.
• Guarantee of Procedure established by Law: It guarantees that no person shall be deprived of their life, liberty, or property without following the procedure established by law.

Conclusion: 

As rightly observed by Abhinav Chandrachud in The Oxford Handbook of the Indian Constitution, “The Court has not used ‘due process’ to invalidate social welfare legislation, rather used to protect the interests of vulnerable sections of society such as pavement dwellers and prisoners.”
To achieve natural justice, a system must be reasonable or just. 

News Source: The Hindu