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 amendments 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 claimdetermination of any particular feature of the Constitution to beas a "basic" feature is determinedmade by the Court inon eacha case-by-case that comes before itbasis.

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.