‘The Basic Structure Doctrine is a judicial fabrication propounded by the Supreme Court of India and is often celebrated as a sure guarantee of civil rights’. Photo credit: Getty Images/iStockphoto
The Indian Constitution is to some extent a cosmic ship of Theseus. The legendary ship of the Greek hero Theseus was preserved for a long time, but each of the old planks was replaced with new timbers. This led to a thought experiment that questions whether an object that has all its components changed remains the same object as it was originally. Similarly, the Indian shipbuilders of the Constitutional Argo produced a basic blueprint with weak safeguards for the natural rights of citizens. Fortunately, in due course, the Supreme Court of India provided two lifebuoys to the natural rights of citizens – namely, the Due Process Clause and the Basic Structure Doctrine. But in the parchment of the Constitution, both these principles are still conspicuously absent. This makes the Constitution a confusing scripture. Another conundrum is to identify, of the two instruments, definitive guarantees for the hard-earned natural rights of the Indian masses.
perversion of due process
The due process clause is deeply rooted in the natural law school of jurisprudence. Natural laws are norms that are higher than state-made laws, and are the dictates of human reason. Natural law, as higher law, invalidates state-made laws when the state-made laws are contrary to natural law. The word ‘law’ in the due process clause stands for natural law. The due process clause is an American creation. The Fifth Amendment to the US Constitution (1791) states that “no person shall be deprived of life, liberty, or property, except by due process of law”. There are two aspects of due process – substantive due process and procedural due process. The Due Process Clause secures a number of rights to the people which ideally should not be taken away by the law.
When the Constituent Assembly of India deliberated on the fundamental rights, prominent members of the assembly agreed on the idea that due process clause should be included in the constitution. The draft Clause 11 included a due process clause, which read: “No person shall be deprived of his life, liberty or property except according to due process of law.” Govind Ballabh Pant was a prominent opponent of the due process clause as he believed that the clause would hinder the implementation of social reform laws such as the abolition of the zamindari system. C. Rajagopalachari introduced a compromise amendment on the due process clause by separating ‘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 stated: “No person shall be deprived of his life or liberty except by due process of law.”
BN Rau, the constitutional advisor to the Constituent Assembly, was entrusted with the task of preparing a draft constitution reflecting the earlier decisions and deliberations of the assembly. Rau removed the due process clause by prefixing ‘individual’ before ‘freedom’, following the Irish constitution. Although it is said that United States Supreme Court Justice Felix Frankfurter advised Rau to reject the due process clause altogether, Rau did not heed that advice. Later, the drafting committee removed 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 saw heated debates on the due process clause – the most famous of them being the KM Munshi-Alladi Krishnaswamy Iyer debate. The assembly ultimately voted against the due process clause and it was a moment of grave irony as the assembly had supported the due process guarantee only a year and a half earlier.
amorphous core structure
The basic structure doctrine is a judicial apocryphal propounded by the Supreme Court of India in the Kesavananda Bharati case (1973). It is often celebrated as the surest guarantee of civil rights. But a close vivisection will reveal its fragility. Amendment of fundamental rights was the main controversy in Kesavananda Bharati. Nani Palkhivala argued that the fundamental rights are included in the basic structure of the constitution, and hence are not amendable. This proposal was accepted by six ‘citizen-judges’ headed by Sikri. But Justice HR Khanna decisively rejected this view. He held that the Constitution (29th Amendment) Act, 1972 which had diluted the fundamental right to property, was fully valid. The conclusion of Kesavananda Bharti was that the question whether fundamental rights are part of the basic structure has been left unanswered. Therefore, there is nothing in the Basic Structure Doctrine as far as fundamental rights are concerned.
Veteran lawyer TR Andhyarujina, in his book, Kesavananda Bharati Case: The Untold Story of the Struggle for Supremacy by the Supreme Court and Parliament, says: “It is a dubious conclusion that the Supreme Court in the Kesavananda Bharati case held that ‘Parliament has no power’ Kept the ratio of Amend the Basic Structure of the Constitution” Only the majority view – an unprecedented statement drafted by Chief Justice SM Sikri – held that Article 368 does not enable Parliament to change the basic structure of the Constitution. Is the majority view the decision Legitimate part, it’s a controversial question.
revival of due process
In Maneka Gandhi v. Union of India (1978), which marked a paradigm shift in Indian constitutional law, Justice PN Bhagwati held that the words and phrases in Article 21 are open-textured and guarantee due process. Rohan J writes, “The new understanding of Article 21 was that ‘personal liberty’ was a vast reservoir of rights and when this fundamental right was affected by a law, the courts would seriously inquire and examine the purpose, logic and validity of the law.” Will investigate.” Alva in his book Liberty after Freedom: A History of Article 21, Due Process and the Constitution of India.
Abhinav Chandrachud explains in The Oxford Handbook of the Indian Constitution, “BN Rau and Alladi Krishnaswamy Iyer were concerned that the due process clause would be used by Indian courts to invalidate social welfare legislation such as price control laws. However, the Court has not used ‘due process’ to invalidate a social welfare law. In fact, quite often, the Court has used the principles of due process to protect the interests of the weaker sections of the society such as street 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 later dropped. The Due Process Clause has an illustrious place in the constitutional history of the world. It is the due process clause, and not the basic structure doctrine, that provides a certain guarantee for the natural rights of the citizen. Unfortunately, the natural rights of the citizens are under threat in India due to legislation like the Unlawful Activities (Prevention) Act. Therefore, the due process clause should be firmly incorporated into the constitutional architecture of India, and incorporated into the constitutional text.
Faisal CK is the Deputy Law Secretary to the Government of Kerala. Views expressed are personal