Basic structure doctrine: Difference between revisions

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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 that recognizes this doctrine in an expressed, written and rigid constitutional manner through Article 7B of its [[Constitution of Bangladesh|Constitution]].

In ''Kesavananda Bharati'', Justice [[Hans Raj Khanna]] propounded that the [[Constitution of India]] contains certain ''basic features'' that cannot be altered or destroyed through [[amendments to the Constitution of India|amendments]] by the [[Parliament of India]].<ref name=hindu-basic-features>{{cite news|url=http://hindu.com/2004/09/26/stories/2004092600491600.htm|title=The basic features|date=2004-09-26|access-date=2012-07-09|archive-url=https://web.archive.org/web/20120725005100/http://hindu.com/2004/09/26/stories/2004092600491600.htm|archive-date=2012-07-25|newspaper=[[The Hindu]]|url-status=dead}}</ref> Key among these "basic features", as expounded by Justice Khanna, are the [[Fundamental rights in India|fundamental rights]] guaranteed to individuals by the constitution.<ref name=hindu-basic-features/><ref name=ik-257876>{{cite web|url=http://www.indiankanoon.org/doc/257876/|title=Kesavananda Bharati .... vs State Of Kerala And Anr on 24 April, 1973|publisher=Indian Kanoon|access-date=2012-07-09|archive-url=https://web.archive.org/web/20141214053355/http://indiankanoon.org/doc/257876/|archive-date=2014-12-14|url-status=live}}</ref><ref name=frontline-revisiting>{{cite news|url=http://www.hindu.com/fline/fl2901/stories/20120127290107100.htm|title=Revisiting a verdict|publisher=Frontline|date=Jan 14–27, 2012|volume=29|issue=1|access-date=2012-07-09|url-status=dead|archive-url=https://web.archive.org/web/20131203063934/http://www.hindu.com/fline/fl2901/stories/20120127290107100.htm|archive-date=2013-12-03}}</ref> The doctrine thus forms the basis of the Supreme Court of India's power to review and strike down [[constitutional amendmentsamendment]]s and acts enacted by the Parliament that conflict with or seek to alter this "basic structure" of the Constitution. The basic features of the Constitution have not been explicitly defined by the Judiciary, and the determination of any particular feature as a "basic" feature is made by the Court on a case-by-case basis.

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==

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===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 an [[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===