How much do you know about the Basic Structure Doctrine in Common Law?

The Basic Structure Doctrine in Common Law Legal Systems

• The Basic Structure Doctrine is a common law legal doctrine that certain characteristics of a sovereign state's constitution cannot be erased by its legislature.

• The doctrine is recognized in India, Bangladesh, Malaysia, Pakistan, and Uganda.

• The doctrine 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.

• Key among the "basic features" of the Constitution, as expounded by Justice Hans Raj Khanna in Kesavananda, are the fundamental rights guaranteed to individuals by the constitution.

• The doctrine forms the basis of the power of the Supreme Court of India to review and strike down constitutional amendments and acts 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 claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it.

• The Supreme Court's initial position on constitutional amendments had been that any part of the Constitution was amendable by Parliament.

• In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab and declared that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" and are beyond the reach of Parliament.

• In 1973, the basic structure doctrine was formally introduced with rigorous legal reasoning in Justice Hans Raj Khanna's decisive judgment in Kesavananda Bharati v. State of Kerala.

• The doctrine was used to strike down Parliamentary amendments that were held to be violative of the basic structure and therefore unconstitutional, including the imposition of a state of emergency by Indira Gandhi in 1975.

• The Supreme Court's position on constitutional amendments laid out in its judgments is that Parliament can amend the Constitution but cannot destroy its "basic structure".

• The basic structure doctrine has been recognized in Malaysia and Belize, rejected in Singapore, and initially rejected but later accepted in Malaysia.

• The basic features of the Constitution have not been explicitly defined by the Judiciary, and 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.The Basic Structure Doctrine in Various Jurisdictions

• The basic structure doctrine is a legal principle that allows courts to strike down constitutional amendments that violate the fundamental principles of a constitution.

• The Supreme Court of India first introduced the basic structure doctrine in the Kesavananda Bharati case, stating that Parliament can amend the Constitution but cannot destroy its "basic structure."

• The basic structure doctrine has been adopted in various jurisdictions, including Bangladesh, Belize, Malaysia, Pakistan, and Uganda.

• Bangladesh is the only legal system to introduce the concept through constitutional provisions, with Article 7B of the Constitution of Bangladesh declaring certain provisions as basic and unamendable.

• The Supreme Court of Judicature of Belize invoked the basic structure doctrine in Bowen v Attorney General BZ 2009 SC 2 to reject the Belize Constitution (Sixth Amendment) Bill 2008, which sought to exclude certain deprivation of property rights from judicial review.

• The Federal Court of Malaysia initially found the basic features doctrine inapplicable but later applied it in Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Ano'r Case and Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak & 2 O'rs & 2 Other Cases, holding that the vesting of the judicial power of the Federation in civil courts formed part of the basic structure of the Constitution and could not be removed even by constitutional amendment.

• The Supreme Court of Pakistan recognized the basic structure doctrine in Constitution Petition No.12 of 2010, etc. in 2015, with a plurality of eight judges accepting it as a basis for limiting the ability of the Parliament of Pakistan to amend the Constitution.

• The High Court of Singapore denied the application of the basic features doctrine in Singapore in Teo Soh Lung v. Minister for Home Affairs, stating that the doctrine was not applicable to the Singapore Constitution.

• In Uganda, the Constitutional Court upheld the validity of a constitutional amendment that removed the age limit of 75 years for the President and Chairpersons of the Local Council, despite opposition leaders and the Uganda Law Society challenging its constitutionality.

• The Supreme Court of Uganda in Mabirizi Kiwanuka & ors. v. Attorney General, UGSC 6, unanimously upheld the Constitutional Court's majority finding, taking note of the judgments in Kesavananda Bharati v. State of Kerala and Minerva Mills v. Union of India.

• The basic structure doctrine has been recognized as protecting characteristics such as democracy, federalism, and the independence of the judiciary.

• The basic structure doctrine has been rejected in some jurisdictions, including Singapore, where the High Court held that the power of Parliament to amend the Constitution is not limited in the same way as the Indian Parliament's power to amend the Indian Constitution.