Content deleted Content added
m Dating maintenance tags: {{Cn}} |
No edit summary Tags: Mobile edit Mobile app edit iOS app edit App section source |
||
| (11 intermediate revisions by 6 users not shown) | |||
Line 1:
{{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.
Line 13:
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 [[Hans Raj Khanna]] in ''Keshavananda Bharti v. State of Kerala'' (1973) case, declared that the basic structure/features of the constitution is resting on the basic foundation of the constitution. The basic foundation of the constitution is the dignity and the freedom of its citizens which is of supreme importance and can not be destroyed by any legislation of the parliament.<ref>{{cite web|title=13 member constitutional bench verdict (refer paras 316 and 317) in Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April,1973|url=https://indiankanoon.org/doc/257876/|access-date=5 December 2014|archive-url=https://web.archive.org/web/20141214053355/http://indiankanoon.org/doc/257876/|archive-date=14 December 2014|url-status=live}}</ref> The basic features of the Constitution have not been explicitly defined by the Judiciary. At least, 20 features have been described as "basic" or "essential" by the Courts in numerous cases, and have been incorporated in the basic structure. Only Judiciary decides the basic features of the Constitution. In ''Indira Nehru Gandhi v. Raj Naraian'' and also in the ''Minerva Mills'' case, it was observed that the claim of any particular feature of the Constitution to be a "basic" feature would be determined by the Court in each case that comes before it. Some of the features of the Constitution termed as "basic" are listed below:
# Supremacy of the Constitution
Line 39:
# [[Judicial independence|Independence of the judiciary]]
# Effective [[access to justice]]
# Powers of the
==Background==
Line 175:
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===
Line 187 ⟶ 190:
=== 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==
| |||