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{{short description|Common law
{{Indian Constitution TOC}}
The '''basic structure doctrine''' is a [[common law]] [[legal doctrine]] that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. The doctrine is recognised in [[India]], [[Bangladesh]], [[Pakistan]], and [[Uganda]]. It was developed by the [[Supreme Court of India]] in a series of [[constitutional law]] cases in the 1960s and 1970s that culminated in ''[[Kesavananda Bharati v. State of Kerala]]'', where the doctrine was formally adopted. Bangladesh is perhaps the only legal system in the world
In ''Kesavananda Bharati'', Justice [[Hans Raj Khanna]] propounded that the [[Constitution of India]]
The Supreme Court's initial position on constitutional amendments had been that any part of the Constitution was amendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368.
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The Supreme Court's position on constitutional amendments laid out in its judgements is that Parliament can amend the Constitution but cannot destroy its "basic structure".
The basic structure doctrine was rejected by the [[High Court of Singapore]]<ref>''Teo Soh Lung v Minister of Home Affairs'' [1989] 1 SLR(R) 461</ref> and the [[Supreme Court of Papua New Guinea]].<ref name="Donigi2010">{{cite news |url=https://www.thenational.com.pg/olippac-and-the-supreme-court-ruling/ |title=OLIPPAC and the Supreme Court ruling |author=Peter Donigi |work=The National |date=8 July 2010 |access-date=29 June 2025}}</ref> It was initially also rejected by the [[Federal Court of Malaysia]], but was later accepted by it. Conversely, the doctrine was initially approved in [[Belize]] by the [[Supreme Court of Belize|Supreme Court]] but was later reversed on appeal by the Belize Court of Appeal.<ref name=":1">{{Cite web |date=15 May 2014 |title=Civil Appeal No. 18 19 21 of 2012 THE ATTORNEY GENERAL v THE BRITISH CARIBBEAN BANK LIMITED v DEAN BOYCE and FORTIS ENERGY INTERNATIONAL (BELIZE) INC v THE ATTORNEY GENERAL |url=https://www.belizejudiciary.org/wp-content/uploads/2014/01/Civil-Appeal-No.-18-19-21-of-2012-THE-ATTORNEY-GENERAL-v-THE-BRITISH-CARIBBEAN-BANK-LIMITED-v-DEAN-BOYCE-and-FORTIS-ENERGY-INTERNATIONAL-BELIZE-INC-v-THE-ATTORNEY-GENERAL.pdf |access-date=20 December 2023 |website=Judiciary of Belize |at=Section [3](iii) |archive-date=29 January 2024 |archive-url=https://web.archive.org/web/20240129010724/https://www.belizejudiciary.org/wp-content/uploads/2014/01/Civil-Appeal-No.-18-19-21-of-2012-THE-ATTORNEY-GENERAL-v-THE-BRITISH-CARIBBEAN-BANK-LIMITED-v-DEAN-BOYCE-and-FORTIS-ENERGY-INTERNATIONAL-BELIZE-INC-v-THE-ATTORNEY-GENERAL.pdf |url-status=dead }}</ref>
==Definition==
That the Constitution has "basic features" was first theorised in 1964, by Justice [[Janardan Raghunath Mudholkar|J.R. Mudholkar]] in his dissent, in the case of ''Sajjan Singh v. State of Rajasthan''. He wrote
The [[Supreme Court of India]], through the decisive judgement of Justice
# Supremacy of the Constitution
# [[Rule of law]]
# The principle of [[separation of powers]]{{cn|reason=''The Presidential system of America is based upon the separation of the Executive and the Legislature. So that the President and his Secretaries cannot be members of the Congress. The Draft Constitution does not recognise this doctrine.'' https://www.constitutionofindia.net/debates/04-nov-1948/ #7.48.200|date=March 2025}}
# The objectives specified in the [[Preamble to the Constitution of India|preamble]] to the [[Constitution of India]]
# [[Judicial review]]
# Articles 32 and 226
# [[Federalism]] (including financial liberty of states under [[s:Constitution of India/Part XII|Articles 282 and 293]])
# The [[Sovereignty|sovereign]], [[Democracy|democratic]], [[republic]]an structure
# [[Freedom]] and [[dignity]] of the individual
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# [[Judicial independence|Independence of the judiciary]]
# Effective [[access to justice]]
# Powers of the
==Background==
The Supreme Court's initial position on constitutional amendments was that no part of the Constitution was unamendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368. In ''Shankari Prasad Singh Deo v. Union of India'',<ref>''Shankari Prasad Singh Deo v. Union of India''
===''Golaknath'' case===
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==''Kesavananda Bharati'' case (1973)==
{{Main|Kesavananda Bharati v. State of Kerala}}
Six years later in 1973, the largest ever Constitution Bench of 13 Judges, heard arguments in ''Kesavananda Bharati v. State of Kerala'' ([[case citation]]: AIR 1973 SC 1461). The Supreme Court reviewed the decision in ''[[I.C. Golak Nath and Ors. vs. State of Punjab and Anr.|Golaknath v. State of Punjab]]'', and considered the validity of the 24th, 25th, 26th and 29th Amendments. The Court held, by a margin of 7–6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated even by a constitutional amendment".<ref name="autogenerated1">{{Cite book |last=Austin |first=Granville |url=https://archive.org/details/workingdemocrati0000aust/page/258/mode/2up |title=Working a Democratic Constitution - A History of the Indian Experience |publisher=Oxford University Press |year=1999 |isbn=978-019565610-7 |___location=New Delhi |pages=258–277 |url-access=registration}}</ref> The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter "Supreme Court Cases". The findings included the following:
* All of the Judges held that the 24th, 25th and 29th Amendments Acts are valid.
* Ten judges held that ''Golak Nath'''s case was wrongly decided and that an amendment to the Constitution was not a "law" for the purposes of Article 13.
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* A [[republic]]an and [[democracy|democratic]] system.
* The [[secular]] character of the Constitution.
* Maintenance of the [[separation of powers]].{{cn|reason=''The Presidential system of America is based upon the separation of the Executive and the Legislature. So that the President and his Secretaries cannot be members of the Congress. The Draft Constitution does not recognise this doctrine.'' https://www.constitutionofindia.net/debates/04-nov-1948/ #7.48.200|date=March 2025}}
* The [[Federation|federal]] character of the Constitution.
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}}
The note is that in ''Kesavananda Bharati'' the dissenting judge, Justice Khanna, approved as "substantially correct" the following observations by
{{Quote box
|title =
|align = center
|quote = Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.
|source = Limitation of Amendment Procedures and the Constituent Power; Indian Year Book of International Affairs,
}}
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{{quotation|Three Articles of our Constitution, and only three, stand between the heaven of freedom into which [[Rabindranath Tagore|Tagore]] [[Chitto Jetha Bhayshunyo|wanted his country to awake]] and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual.<ref name=oa-4488/>}}
This latter view of Article 31C was questioned, but not overturned, in ''Sanjeev Coke Manufacturing Co v Bharat Cooking Coal Ltd.''<ref>
The Supreme Court's position on constitutional amendments laid out in its judgements is that Parliament can amend the Constitution but cannot destroy its "basic structure".<ref name="indianexpress2"/><ref name = "countrystudies">{{cite web |url=http://countrystudies.us/india/109.htm |title=India - The Constitution |publisher=Countrystudies.us |access-date=2013-12-01 |archive-url=https://web.archive.org/web/20121014185951/http://countrystudies.us/india/109.htm |archive-date=2012-10-14 |url-status=live }}</ref>
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===Bangladesh===
The basic structure doctrine was adopted by the [[Supreme Court of Bangladesh]] in 1989, by expressly relying on the reasoning in the Kesavananda case, in its ruling on ''Anwar Hossain Chowdhary v. Bangladesh''.<ref>''Anwar Hossain Chowdhary v. Bangladesh''
===Belize===
The basic structure doctrine was invoked by the [[Supreme Court of Judicature of Belize]] in ''[[Bowen v Attorney General]]''<ref>''[[Bowen v Attorney General]]'' BZ 2009 SC 2
The Supreme Court affirmed the doctrine in ''[[British Caribbean Bank Ltd v AG Belize]]''<ref>''[[British Caribbean Bank Ltd v AG Belize]]'' Claim No. 597 of 2011
On appeal, the Court of Appeal reversed the decision of the Supreme Court, ruling that "the so-called basic structure doctrine is not a part of the law of Belize and does not apply to the Belize Constitution".<ref name=":1" />
=== Cyprus ===
The Cypriot Supreme Court used the basic structure doctrine in 29 October 2020, in ΚΛΟΓΟΔΙΚΕΙΟ ΚΥΠΡΟΥ, ΑΝΔΡΕΑΣ ΜΙΧΑΗΛΙΔΗΣ κ.α. v. ΓΕΝΙΚΟΥ ΕΦΟΡΟΥ ΕΚΛΟΓΗΣ κ.α., 29 Οκτωβρίου 2020, (Εκλογική Αίτηση Αρ. 1/2019), to declare unconstitutional a constitutional amendment that modified the election legal framework.
===Israel===
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The basic structure doctrine was first cited with approval by the Federal Court in ''obiter dicta'' in ''Sivarasa Rasiah v. Badan Peguam Malaysia'',<ref>[2010] 2 M.L.J. 333.</ref> before ultimately being applied by the same court in ''Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Ano'r Case''<ref>[2017] 3 M.L.J. 561.</ref> and ''Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak & 2 O'rs & 2 Other Cases''.<ref>Federal Court, 29 January 2018.</ref> In those cases, the Federal Court held that the vesting of the judicial power of the Federation in the civil courts formed part of the basic structure of the Constitution, and could not be removed even by constitutional amendment.
===Papua New Guinea===
The [[Supreme Court of Papua New Guinea]] found that the basic structure doctrine was not applicable in Papua New Guinea as part of a 2010 judgment on [[Organic Law on the Integrity of Political Parties and Candidates|an organic law]], referring to it as a "foreign doctrine".<ref name="Donigi2010"/><ref>{{Cite web |url=https://actnowpng.org/sites/default/files/SC%20REF%201%20OF%202008%20OLIPAC%20_EDITED%20No%202_%20final%20copy.pdf |title=Special Reference Pursuant to Constitution, Section 19: In the Matter of the Organic Law on the Integrity of Political Parties and Candidates, Reference by the Provincial Executive Council of the Fly River Provincial Government of Western Province |publisher=Papua New Guinea Supreme Court of Justice |date=7 July 2010 |pages=40–41 |quote=Under the structure of government and distribution of powers between the three arms of government, the legislative power is vested in the parliament and it has unlimited law-making powers. However, the exercise of its legislative power is always subject to the ''Constitution''. The exercise of the legislative power to amend or alter the ''Constitution'' is not made subject to any foreign doctrine such as the "basic structure" doctrine. The ''Constitution'' is intended to be construed in accordance with the principles and the use of certain materials as aids to interpretation provided in the ''Constitution''.}}</ref>
===Pakistan===
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=== Uganda ===
In December 2017, the Ugandan parliament passed a Constitutional Amendment which removed the age limit of 75 years for the President and Chairpersons of the Local Council.
==See also==
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