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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
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.
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]]''. It held that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" and are beyond the reach of Parliament. It also declared any amendment that "takes away or abridges" a Fundamental Right conferred by Part III as unconstitutional. In 1973, the basic structure doctrine was formally introduced with rigorous legal reasoning in Justice [[Hans Raj Khanna]]'s decisive judgment in the [[landmark decision]] of ''[[Kesavananda Bharati v. State of Kerala]]''.<ref name=ik-257876-316>{{cite web|url=http://www.indiankanoon.org/doc/257876/|title=Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973|at=Para. 316|publisher=Indian Kanoon|access-date=2012-06-24|archive-url=https://web.archive.org/web/20141214053355/http://indiankanoon.org/doc/257876/|archive-date=2014-12-14|url-status=live}}</ref> Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered.<ref name=hindu-basic-features/> However, in this landmark ruling, the Court adjudicated that while Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.<ref name=ik-257876-787>{{cite web|url=http://www.indiankanoon.org/doc/257876/|title=Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973|at=Para. 787|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>
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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]], [[
# [[Freedom]] and [[dignity]] of the individual
▲#The [[Sovereignty|sovereign]], [[Democracy|democratic]], [[Republic|republican]] structure
#
# The principle of equality, not every feature of equality, but the quintessence of [[Equal justice under law|equal justice]];
# The "essence" of other fundamental rights in [[Fundamental rights in India|Part III]]▼
▲#The principle of equality, not every feature of equality, but the quintessence of [[Equal justice under law|equal justice]];
# The concept of [[social justice|social]] and [[
▲#The "essence" of other fundamental rights in [[Fundamental rights in India|Part III]]
# The balance between [[Fundamental Rights, Directive Principles and Fundamental Duties of India|fundamental rights and directive principles]]▼
▲#The concept of [[social justice|social]] and [[Economic justice|economic justice]] — to build a [[Welfare state|welfare state]]: [[Directive Principles|Part IV]] of the Constitution
▲#The balance between [[Fundamental Rights, Directive Principles and Fundamental Duties of India|fundamental rights and directive principles]]
▲#The [[Parliamentary system|parliamentary system]] of government
# Limitations upon the amending power conferred by Article 368▼
▲#The principle of [[Free and fair election|free and fair elections]]
# [[Judicial independence|Independence of the judiciary]]▼
▲#Limitations upon the amending power conferred by Article 368
▲#[[Judicial independence|Independence of the judiciary]]
▲#Effective [[Access to justice|access to justice]]
▲#Powers of the [[Supreme Court of India]] under Articles 32, 136, 141, 142
==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===
{{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.▼
* Article 13 prevents the passing of laws which "take away or abridge" the Fundamental Rights provisions.▼
▲*A law to amend the constitution is a law for the purposes of Article 13.
* Article 368 does not contain a power to amend the constitution but only a procedure.
▲*Article 13 prevents the passing of laws which "take away or abridge" the Fundamental Rights provisions.
*
* Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed.▼
▲*Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed.
==''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
* 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.
▲*All of the Judges held that the 24th, 25th and 29th Amendments Acts are valid.
*
* Seven judges held (six judges dissenting on this point) that "the power
* Seven judges held (
Nine judges (including two dissenters) signed a statement of summary for the judgment that reads:
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Chief Justice [[Sarv Mittra Sikri]], writing for the majority, indicated that the basic structure consists of the following:
* The supremacy of the constitution.
* 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.
Justices Shelat and Grover in their opinion added three features to the Chief Justice's list:
* The mandate to build a [[welfare state]] contained in the [[Directive Principles of State Policy]].
* Maintenance of the unity and integrity of India.
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Justice Jaganmohan Reddy preferred to look at the preamble, stating that the basic features of the constitution were laid out by that part of the document, and thus could be represented by:
* A sovereign democratic republic.
* The provision of social, economic and political justice.
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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
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|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,
}}
==Evolution of the doctrine==
The basic structure doctrine was further clarified in ''[[Minerva Mills v. Union of India]]''. The [[Forty-second amendment of the Indian Constitution|42nd Amendment]] had been enacted by the government of Indira Gandhi in response to the Kesavananda Bharati judgment in an effort to reduce the power of the judicial review of constitutional amendments by the Supreme Court. In the Minerva Mills case, [[Nanabhoy Palkhivala]] successfully moved the Supreme Court to declare sections 4 and 55 of the 42nd Amendment as unconstitutional.<ref name=ssrn-minerva-mills>{{cite web |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1121817 |ssrn=1121817|title=Minerva Mills Ltd. & Ors. v. Union of India & Ors: A Jurisprudential Perspective|author=Raghav Sharma|publisher=Social Science Research Network|date=2008-04-16}}</ref> The [[constitutionality]] of sections 4 and 55 of the 42nd Amendment were challenged in this case, when [[Charan Singh]] was [[Caretaker government|caretaker Prime Minister]]. Section 4 of the 42nd Amendment, had amended Article 31C of the Constitution to accord precedence to the Directive Principles of State Policy articulated in [[Directive Principles in India|Part IV]] of the Constitution over the Fundamental Rights of individuals articulated in [[Fundamental Rights in India|Part III]]. Section 55 prevented any constitutional amendment from being "called in question in any Court on any ground". It also declared that there would be no limitation whatever on the constituent power of Parliament to amend by way of definition, variation or repeal the provisions of the Constitution. On 31 July 1980, when Indira Gandhi was [[1980 Indian general election|back in power]], the Supreme Court declared sections 4 & 55 of the 42nd amendment as unconstitutional. It further endorsed and evolved the basic structure doctrine of the Constitution.<ref name="ssrn-minerva-mills"/><ref name="indianexpress2">{{cite news|url=http://www.indianexpress.com/news/indian-constitution-sixty-years-of-our-faith/574507/0 |title=Indian Constitution: Sixty years of our faith |newspaper=[[The Indian Express]] |date=2010-02-02 |access-date=2013-12-01}}</ref> As had been previously held through the basic structure doctrine in the ''Kesavananda'' case, the Court ruled that Parliament could not by amending the constitution convert limited power into an unlimited power (as it had purported to do by the 42nd amendment).
In the judgement on section 55, Chief Justice [[Yeshwant Vishnu Chandrachud]] wrote, {{quotation|Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power can not be destroyed. In other words, Parliament can not, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.<ref name=oa-4488>{{cite web|url=http://openarchive.in/judis/4488.htm|title=Minerva Mills Ltd. & Ors. vs. Union of India & Ors.|publisher=Open Archive|access-date=2012-07-17|url-status=dead|archive-url=https://web.archive.org/web/20120404195325/http://openarchive.in/judis/4488.htm|archive-date=2012-04-04}}</ref>}} The ruling was widely welcomed in India, and Gandhi did not challenge the verdict.<ref name=":0">{{cite news|url=http://www.indianexpress.com/news/when-in-doubt-amend/504813/0 |title=When in doubt, amend |newspaper=Indian Express |date=2009-08-21 |access-date=2013-11-23}}</ref> In the judgement on Section 4, Chandrachud wrote:
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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===
The Supreme Court of Israel in majority judgement on January 1, 2024 ruled against an amendment passed by Parliament in July, 2023 which scrapped the “reasonableness” clause, used by the court to overturn government decisions deemed unconstitutional, on the ground that “this does severe and unprecedented damage to the basic characteristics of the State of Israel as a democratic state,”.
===Malaysia===
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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==
* [[Judicial activism in India]]
* [[Liberal democratic basic order]]
* [[Entrenched clause]]
* [[Unconstitutional constitutional amendment]]
==References==
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== Bibliography ==
* [https://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdf The Basic Structure of the Indian Constitution]. Human Rights Initiative.
* H M Seervai, 'Constitutional Law of India'
* V.N. Shukla 'Constitution of India' 10th edition
* [https://www.thehindu.com/opinion/lead/legitimacy-of-the-basic-structure/article26168775.ece Legitimacy of the basic structure]. ''The Hindu.''
* Anuranjan Sethi (October 25, 2005), 'Basic Structure Doctrine: Some Reflections". {{SSRN|835165}}
* Conrad, Dietrich, Law and Justice, United Lawyers Association, New Delhi (Vol. 3, Nos. 1–4; pages 99–114)
* Conrad, Dietrich, Limitation of Amendment Procedures and the Constituent Power; Indian Year Book of International Affairs, 1966–1967, Madras, pp. 375–430
{{law}}
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