Print Friendly, PDF & Email

Due process clause and the basic structure doctrine

GS Paper 2

 Syllabus: Structure, Organization and Functioning of the Executive and the Judiciary


Source: TH

 Context: The Supreme Court of India provided two safety devices for the natural rights of the citizenry – namely, the due process clause and the basic structure doctrine.


The due process of law:

  • Taken from: The due process clause is an American
  • Based on natural laws: The term ‘law’ in the due process clause stands for natural law. Natural law, as higher law, renders state-made laws invalid when the state-made laws are contrary to natural law.
  • Meaning: No person shall be deprived of life, liberty, or property, without due process of law. Due process has two aspects –
    • Substantive due process: It anticipates that the substantive/ fundamental provisions of any legislation should be rational and not arbitrary in nature, and
    • 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.


The debate in the Constituent Assembly of India:

  • The leading members of the Assembly agreed on the idea that the due process clause must be incorporated into the Constitution.
  • However, the prominent opposers (like GB Pant) of the clause believed that the clause would be a hurdle in the implementation of social reform laws such as the abolition of the zamindari system.
  • 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 resurrection of due process: In Maneka Gandhi vs Union of India (1978), the SC held that when ‘personal liberty’ under Article 21 was affected by any law, courts would seriously interrogate and probe the purpose, rationale, and legitimacy of the law.


Significance of the judgement:

  • The Court has not used ‘due process’ to invalidate social welfare legislation (which the Constitution makers fear).
  • In fact, the Court has used due process doctrines to protect the interests of vulnerable sections of society such as pavement dwellers and prisoners.


The basic structure doctrine:

  • It is a judicial creation enunciated by the SC in the Kesavananda Bharati case (1973).
  • A 13-judge Constitution Bench of the SC (with a 7-6 majority) redefined the relationship between Parliament and the Constitution by ruling that the “basic structure” of the Constitution is inviolable, and cannot be amended by Parliament.
  • While the Parliament had vast powers to amend the Constitution, certain parts (“basic structure”) are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
  • While parliamentary democracy, fundamental rights, judicial review, and secularism are all held by courts as basic structures, the list is not exhaustive (decided by the court on a case-by-case basis).
  • The basic structure doctrine (origins are found in the German Constitution) has formed the bedrock of judicial review of all laws passed by the Indian Parliament.


Comparing the two doctrines:

  • Unlike the basic structure doctrine, the due process clause was duly discussed by the Constituent Assembly.
  • 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.
  • Hence, the due process clause must be firmly embedded in the constitutional architecture of India and incorporated into the constitutional text.


Conclusion: As the basic structure doctrine highlighted in the Kesavanada Bharati case has touched 50 years, its efficacy to protect the natural rights of the citizen in relation to the due process clause is worth examining.