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.
