This is from The Hindu: http://www.thehindu.com/2004/09/26/stories/2004092600471600.htm
The due process clause
THE IMPORTATION of the “due process clause,” consciously deleted at the time of framing the Constitution, has led to a decisive supremacy of the judiciary over all other branches of Government. The Supreme Court judgment in the Maneka Gandhi Case (AIR 1978 SC 597), while interpreting equality before law (Article 14), said that all Articles on Fundamental Rights bear a relationship with one another and any law depriving a person of any of the liberties or freedoms must not only satisfy the requirements of Article 21 (procedure established by law) and Article 19 (equality before the law). Reading the principle of “reasonableness” or non-arbitrariness as an essential attribute of equality impacting on the freedoms under Article 21, is indeed a clever way of introducing the “due process clause” in place of the “procedure established by law” provision in that Article.
Justice Krishna Iyer in his separate but concurring judgment declared that “law is reasonable law, not any enacted piece.”
He further said in the Sunil Batra Case (AIR 1978 SC 1675) that though the Constitution had no “due process” provision, yet after the Maneka Gandhi Case judgment the consequence was the same.
By a stroke of the pen, the Supreme Court changed the course of constitutional law since then. The all-pervasive “brooding omnipresence of reasonableness” the court discovered in the equality guarantee (Article 14) led to the undefined and undefinable “reasonableness” doctrine, the Brahmastra, so to say, in the hands of Supreme Court judges.
One can argue that if Article 14 were to be read like that, what was the necessity of stipulating reasonable restrictions in considerable details in Article 19(2) to (6). Perhaps in the light of the new interpretation, all rights and freedoms and their scope can be articulated from Article 14 only, making the rest of Part III almost redundant.
“Due process” today has such meaning and scope as judges from time to time might give to it. By re-interpreting Articles 14, 19 and 21 and by refusing to take note of the rejection of the “due process clause” in the Constituent Assembly, the judges have given to themselves the unchallengeable authority to strike down any legislation or other state action solely on the ground that it does not appear to them to be “reasonable, just and fair.”
Some see in this act a “naked usurpation of the legislative function under the thin guise of interpretation.” Judicial law-making increasingly has become the order of the day and is welcomed by a large body of people who seem to have become disenchanted with the uncertainties of the electoral and parliamentary processes. But the danger inherent in such a position is there for every thinking person knowledgeable about history to see.
Today it may appear to be a better choice; but what is at stake is the very foundation of democracy and democratic form of Government. That is why the Supreme Court itself on several occasions has reminded us that absolute power is anathema to our constitutional order.
Criticising the role of the American Supreme Court’s continuing revision of the Constitution using the Fourteenth Amendment and under the guise of interpretation, many scholars and even judges of that country have warned of the dangers involved in such an extraordinary role, “that of the nation’s paramount policy-maker, a super legislature.” The Court was not empowered to rewrite the Constitution; it was specifically barred from policy-making, no matter how humane or justifiable its purpose, wrote a reputed jurist (see Raoul Berger, Government By Judiciary – The Transformation of the Fourteenth Amendment, Harvard University Press, 1977).
The comments on the American Supreme Court’s role in exercising powers of amendment equally applies to the Indian Supreme Court’s assumption of extraordinary powers under the “basic structure” doctrine and the “due process clause”, both alien to the text and history of the Indian Constitution. The threat involved is to the democratic system itself, which indeed is a basic structure if there is one.