• The basic structure doctrine highlighted in The Kesavanand Bharati case has completed 50 years.
• The Supreme Court of India provided two safeguards for the natural rights of the citizenry namely, the due process clause and the basic structure doctrine.

Due Process of Law:

• The due process clause secures people a range of rights that ideally ought not to be taken away by law.
• The term ‘law’ in the due process clause stands for natural law.
• Natural law norms are higher than state-made laws, and the dictate of human reason.
• The due process clause is taken from the American constitution.
• 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.
• Substantive due process focuses on whether the government is justified in interfering with a person’s life, liberty, and property.
• Procedural due process requires the state to follow fair and reasonable procedures when it interferes with a person’s life, liberty, or property.

Early debates on Due Process of Law for Indian constitution:

• The draft clause 11 of the Indian constitution contained the due process clause, which stated “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 considering that the clause would be a hurdle in the implementation of social reform laws such as abolition of the zamindari system.
• C. Rajagopalachari delinked ‘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, as ‘’No person shall be deprived of their life or liberty, without due process of law.”
• B. N. Rau clipped the due process clause by prefixing ‘personal’ before ‘liberty’ (taken from 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).

Resurrection of due process:

• In Maneka Gandhi vs Union of India (1978) case marked a paradigm shift in Indian constitutional law.
• 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 and courts, it would seriously interrogate and probe the purpose, rationale, and legitimacy of the law.

Basic Structure Doctrine:

• The basic structure doctrine is often celebrated as a firm guarantee of the citizen’s rights.
• It is a judicial concoction enunciated by the Supreme Court of India in the Kesavananda Bharati case (1973).
• The amendability of fundamental rights was the major controversy in Kesavananda Bharati case.
• The historic judgment was delivered by a 13-judge bench and with a majority of 7:6 overruling the Golak Nath case.
• In Golak Nath case, 1967 the Supreme Court ruled that Parliament could not curtail any of the Fundamental Rights in the Constitution.

• It was held that the power of Parliament to amend the Constitution is far and wide and extends to all the Articles but it is not unlimited to an extent that it destroys certain basic features or framework of the Constitution.
• 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.

Unlike the basic structure doctrine, the due process clause was duly discussed and endorsed 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 offers a surer guarantee for the citizen’s natural rights, not the basic structure doctrine. The due process clause must be firmly embedded in the constitutional architecture of India, and incorporated into the constitutional text.

Even though the Indian Constitution has accepted and borrowed many elements from the American Constitution, it did not adopt the American notion of “Due Process of Law.” Instead, the judiciary has the power to determine if a procedure is just, fair, and reasonable.