The Indian Constitution is a proverbial ship of Theseus to some extent. The mythical ship of Theseus, the Greek hero, was preserved for long, but each old plank was replaced with new timber. This triggered a thought experiment that raises the question whether an object that has had all of its components replaced remains fundamentally the same object. Likewise, the Indian shipwrights of the Constitutional Argo drew up an original blueprint with feeble safety devices for the natural rights of the citizenry. Fortunately, in due course, the Supreme Court of India provided two lifebuoys for the natural rights of the citizenry — namely, the due process clause and the basic structure doctrine. But in the parchment of the Constitution, these two doctrines are still conspicuously absent. This makes the Constitution a deceptive scripture. Another conundrum is identifying, out of the two devices, the surer guarantee for the hard-earned natural rights of the Indian plebeian.
Vicissitudes of due process
The due process clause is deeply rooted in the natural law school of jurisprudence. Natural law is norms that are higher than state-made laws, and the dictate of human reason. Natural law, as higher law, renders state-made laws invalid when the state-made laws are contrary to natural law. The term ‘law’ in the due process clause stands for natural law. The due process clause is an American construct. The Fifth Amendment in the American Constitution (1791) asserts that “No person shall be deprived of life, liberty, or property, without due process of law”. Due process has two aspects — substantive due process and procedural due process. The due process clause secures people a range of rights that ideally ought not to be taken away by law.
When the Constituent Assembly of India deliberated over the fundamental rights, leading members of the Assembly agreed on the idea that the due process clause must be incorporated into the Constitution. The draft clause 11 contained the due process clause, which read: “No person shall be deprived of his life, liberty, or property without due process of law.” Govind Ballabh Pant 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 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. Rau clipped the due process clause by prefixing ‘personal’ before ‘liberty’, emulating the Irish Constitution. Even though it is said that Justice Felix Frankfurter of the United States Supreme Court advised Rau to jettison the due process clause altogether, Rau did not concede to that advice. 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). The Constituent Assembly witnessed heated 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 and it was a moment of grim irony as just over a year-and-a-half ago, the Assembly had endorsed the due process guarantee.
Amorphous basic structure
The basic structure doctrine is a judicial concoction enunciated by the Supreme Court of India in the Kesavananda Bharati case (1973). It is often celebrated as a firm guarantee of the citizen’s rights. But a close vivisection would expose its infirmity. The amendability of fundamental rights was the major controversy in Kesavananda Bharati. Nani Palkhivala argued that fundamental rights are included in the basic structure of the Constitution, and hence unamendable. This proposition was accepted by the Sikri-led six ‘citizen-judges’. But Justice H.R. Khanna crucially rejected this view. He held that the Constitution (29th Amendment) Act, 1972 which curtailed the fundamental right to property was perfectly valid. 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.
Veteran lawyer T.R. Andhyarujina in his book, Kesavananda Bharati Case: The untold story of struggle for Supremacy by the Supreme Court and Parliament said: “It is a doubtful conclusion that in Kesavananda Bharati the Supreme Court held the ratio of ‘Parliament has no power to amend the basic structure of the Constitution” Only the view by the majority — an unprecedented statement prepared by Chief Justice S.M. Sikri — held that Article 368 does not enable Parliament to alter the basic structure of the Constitution. Whether the view by the majority is a legitimate part of the judgment is a moot question.
The resurrection of due process
In Maneka Gandhi vs Union of India (1978) which marked a paradigm shift in Indian constitutional law, Justice P.N. Bhagwati opined that words and phrases in Article 21 are open-textured and encompass due process guarantees. “New understanding of Article 21 was that ‘personal liberty’ was a vast repository of rights and when this fundamental right was affected by any law, courts would seriously interrogate and probe the purpose, rationale, and legitimacy of the law”, writes Rohan J. Alva in his Liberty After Freedom: A History of Article 21, Due Process and the Constitution of India.
Abhinav Chandrachud points out in The Oxford Handbook of the Indian Constitution, “B.N. Rau and Alladi Krishnaswami Ayyar were worried that the due process clause would be used by Indian courts to invalidate social welfare legislation, like price control laws. However, the Court has not used ‘due process’ to invalidate social welfare legislation. In fact, often, the Court has used due process doctrines to protect the interests of vulnerable sections of society such as pavement dwellers and prisoners.”
Unlike the basic structure doctrine, the due process clause was duly discussed and endorsed by the Constituent Assembly, even though it was subsequently dropped. The due process clause has a splendid place in the constitutional history of the world. It is the due process clause, not the basic structure doctrine, that offers a surer guarantee for the citizen’s natural rights. Unfortunately, the citizen’s natural rights are in the line of fire in India due to pieces of legislation such as the Unlawful Activities (Prevention) Act. Hence, the due process clause must be firmly embedded in the constitutional architecture of India, and incorporated into the constitutional text.
Faisal C.K. is Deputy Law Secretary to the Government of Kerala. The views expressed are personal