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{{short description|Common law legal doctrine}}
{{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]]
==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==
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===''Golaknath'' case===
{{Main|I.C. Golak Nath and Ors. vs. State of Punjab and Anr.}}
In 1967, the Supreme Court reversed its earlier decisions in [[I.C. Golak Nath and Ors. vs. State of Punjab and Anr.|''Golaknath v. State of Punjab'']].<ref name = "Lok Sabha Secretariat"/> A bench of eleven judges (the largest ever at the time) of the Supreme Court deliberated as to whether any part of the [[Fundamental Rights in India|Fundamental Rights]] provisions of the constitution could be revoked or limited by amendment of the constitution. The Supreme Court delivered its ruling, by a majority of 6-5 on 27 February 1967. The Court held that an amendment of the Constitution is a legislative process, and that an amendment under article 368 is "law" within the meaning of article 13 of the Constitution and therefore, if an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void. Article 13(2) reads, "The State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contravention of this clause shall, to the extent of contravention, be void." The Court also ruled that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" under the Constitution and are kept beyond the reach of Parliament. The Court also held that the scheme of the Constitution and the nature of the freedoms it granted incapacitated Parliament from modifying, restricting or impairing Fundamental Freedoms in Part III. Parliament passed the 24th Amendment in 1971 to abrogate the Supreme Court ruling in the Golaknath case. It amended the Constitution to provide expressly that Parliament has the power to amend any part of the Constitution including the provisions relating to Fundamental Rights. This was done by amending articles 13 and 368 to exclude amendments made under article 368, from article 13's prohibition of any law abridging or taking away any of the Fundamental Rights.<ref name = "Lok Sabha Secretariat"/> Chief Justice [[Koka Subba Rao]] writing for the majority held that:
* A law to amend the constitution is 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 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</ref> in rejecting the [[Belize Constitution (Sixth Amendment) Bill 2008]], which had sought to exclude certain deprivation of property rights from judicial review. The court recognised the fundamental rights granted by the constitution, respect for the rule of law and the right to the ownership of private property as basic features of the Belizean constitution, as well as the separation of powers, which [[Chief Justice of Belize|Chief Justice]] [[Abdulai Conteh]] noted had been recognised by the [[Judicial Committee of the Privy Council]] in ''Hinds v The Queen''<ref>''Hinds v The Queen'' [1977] AC 195</ref> (which was not a constitutional amendment case<ref name="BCBvAGBelize2011">{{cite web|title=British Caribbean Bank Ltd v AG Belize Claim No. 597 of 2011|publisher=[[Supreme Court of Judicature of Belize]]|url=https://www.italaw.com/sites/default/files/case-documents/italaw7738.pdf|date=2012|access-date=2020-11-22|url-status=live|archive-date=2020-11-22|archive-url=https://web.archive.org/web/20201122015535/https://www.italaw.com/sites/default/files/case-documents/italaw7738.pdf}}</ref>{{rp|41}}) as implicit in Westminster model constitutions in the Caribbean Commonwealth realm.<ref name="OBrien2013">{{cite web|last=O'Brien|first=Derek|date=2013-05-28|title=Derek O'Brien: The Basic Structure Doctrine and the Courts of the Commonwealth Caribbean|url=https://ukconstitutionallaw.org/2013/05/28/derek-obrien-the-basic-structure-doctrine-and-the-courts-of-the-commonwealth-caribbean/|publisher=UK Constitutional Law Association|work=UK Constitutional Law Blog|access-date=2020-11-22|archive-date=2020-10-21|archive-url=https://web.archive.org/web/20201021101350/https://ukconstitutionallaw.org/2013/05/28/derek-obrien-the-basic-structure-doctrine-and-the-courts-of-the-commonwealth-caribbean/|url-status=live}}</ref>
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</ref><ref name="BCBvAGBelize2011"/><ref name="jusmundi_19th-december-2014">{{cite web|title=British Caribbean Bank Limited v. The Government of Belize PCA 2010-18|url=https://jusmundi.com/en/document/decision/en-british-caribbean-bank-ltd-v-the-government-of-belize-award-friday-19th-december-2014|publisher=[[Permanent Court of Arbitration]]|date=2014-12-19|access-date=2020-11-22|archive-date=2020-11-22|archive-url=https://web.archive.org/web/20201122030218/https://jusmundi.com/en/document/decision/en-british-caribbean-bank-ltd-v-the-government-of-belize-award-friday-19th-december-2014|url-status=live}}</ref> and struck down parts of the [[Belize Telecommunications (Amendment) Act 2011]] and [[Belize Constitution (Eighth) Amendment Act 2011]]. The amendments had sought to preclude the court from deciding on whether deprivation of property by the government was for a public purpose, and to remove any limits on the [[National Assembly (Belize)|National Assembly]]'s power to alter the constitution. This was found to impinge on the separation of powers, which had earlier been identified as part of the basic structure of the Belizean constitution.<ref name="OBrien2013"/>
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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