Migration of Basic Structure Doctrine

Introduction

The basic structure doctrine in India was adopted in the Kesavananda Bharati v. Union of India[1] where the court ruled that parliament can amend any part of the constitution but without violating the basic features of the constitution. Subsequently, the basic structure doctrine has travelled to many parts of the world like Germany, U.S., Belize, Bangladesh, Tanzania, South Africa etc.

The topic for this paper is ‘Migration of Basic Structure Doctrine’. In the first part, we will present how this doctrine transported from India to Pakistan, Bangladesh, South Africa, Uganda and how Indian Jurisprudence influenced the doctrines in the respective countries. In the second part, we will present a comparative analysis between all the countries. The final part of this paper would be the conclusion.

Pakistan

Pakistan referred to ‘basic structure doctrine’ as ‘salient features doctrine’. The ‘Courts in Pakistan have held the ‘Objectives Resolution’ to be a part of basic structure’[2] and have called it ‘supra-constitutional’[3]. “It was also held that any law inconsistent with ‘Islam’ and ‘Objectives Resolution’ would be repugnant.”[4] “Later, Pakistan’s court rejected all theories regarding ‘basic structure’ and upheld that no special preference must be given to objectives resolution.”[5]

During this period, basic structure doctrine faced utmost rejection in Pakistan. The majority judges refused to admit the principles of Kesavananda in their judgements and held them inapplicable. However, there was still a continuous mention of this doctrine in Pakistan’s Courts. “In 1999, the majority bench held independent judiciary and parliamentary government merged with Islamic ideologies a part of basic structure and hence, unamendable.”[6]

“Finally, in 2015, 13 out of 17 judges recognized that certain parts of the constitution are unamendable and judiciary has the power to struck them down. 8 out of 13 judges identified the salient features of the constitution.”[7] “Under this, 8th amendment was challenged which limited court’s power to nullify amendments. This amendment was not struck down by the court but the basic structure was recognized.”[8]

Role Played by Indian Jurisprudence

“In 1997, while reviewing the 8th amendment, the Pakistan SC referred to the Kesavananda judgement and said that alike India, there exists some salient features in Pakistan’s constitution also which are unamendable. The minority bench concluded that ‘parliamentary form of government blended with Islamic provisions’ is the salient feature of this constitution and the parliament doesn’t have any power to amend them.”[9] Pakistan’s courts upheld their Preamble i.e., Objectives Resolution to be a part of their basic structure like in India[10]. Hence, principles under Preamble were also held to be a part of ‘salient features’ like democracy, freedom, equality, tolerance and social justice as enunciated by Islam etc. “Additionally, making Pakistan a secular country from an Islamic state would also amount to violation of Pakistan’s basic structure.”[11] Pakistan identifies Islam and India recognizes ‘secularism’ as the basic structure.

In a few ways, Pakistan has not followed Indian Jurisprudence. “While reviewing the 8th amendment which ousted judiciary from checking the validity of an amendment, Pakistan’s courts held that this amendment may oust the jurisdiction of other courts, but they were not intended to oust the jurisdiction of Pakistan’s SC.” After this interpretation, the court never struck down the amendment. We find a difference between the India and Pakistan’s position because, ‘Indian courts have struck down amendments and preferred constitutional supremacy over parliamentary supremacy’[12]. However, Pakistan courts have hinted that they may annul an amendment in future but haven’t done it. This exhibits the court’s hesitance to choose constitution over the parliament. “It also reveals that courts in Pakistan identify the basic features, including religious limits but are reluctant to enforce it by invalidating any amendment.”[13] “Regardless of this, Pakistan’s court have constituted ‘independent judiciary’ as one of the fundamental features of the constitution similar to India.”[14]

Bangladesh

The 4th amendment brought in Bangladesh changed the parliamentary form of government and gave all powers to the president. “The court ruled that this was in violation of the basic structure doctrine as the preamble recognizes Bangladesh as a democratic country and this amendment created an imbalance of power between the three organs (legislature, executive and judiciary) which hindered the independence of judiciary.”[15]

“The 8th amendment was challenged in the case, Anwar Hossain v. Bangladesh wherein the court held that constitution rests on some fundamental beliefs which are its structural pillars and if the parliament is allowed to amend them, then the entire constitutional configuration will lose its validity.”[16] “The court also held that a correct interpretation of Article 142 which grants parliament the power to amend constitution would imply only limited power to amend.”[17] “Finally, the judges culled out the basic features of Bangladesh’s Constitution which were supremacy of the constitution, democracy, independent judiciary, republican government, unitary state, separation of powers and fundamental rights.”[18]

Later, through 15th amendment, Bangladesh increased the scope of basic feature and held a large part of the constitution unamendable(Preamble, Part, I, II and III of constitution and Article 150).

Role of Indian Jurisprudence

The Bangladesh’s Courts have borrowed a lot from the Indian Jurisprudence. “It was discussed in Kesavananda, that Indian Constitution is essentially a social document based on a social philosophy which has two main features, basic and circumstantial. The former remains constant but the latter is subject to change.”[19] Similarly, Indian constitution’s basic features are unamendable because they are the core of the constitution. “In Anwar Hossain case, Justice Ahmed cited the above reasoning and observed that Bangladesh’s constitution also has certain fundamental principles, which are its structural pillars and demolition of such pillars would edifice the constitution’.”[20]

“In both Kesavananda and Anwar Hossain case court said held that constituent power is primary and amending power is secondary, the latter is a derivate power. Hence, while amending one cannot exercise constituent power to change the whole constitution, one only exercise amending power while amending. “This similar reasoning was given by Indian Courts also that amendment implies alteration and not abrogation of the constitution because abrogation or destruction means changing the constitution which amending power does not permit.”[21] “Both the countries courts consider amending power below constituent power but above the legislature’s constituted power for making ordinary law.”[22]

However, one cannot ignore 15th amendment which rendered a large part of the Bangladesh’s Constitution unamendable which also meant a departure from the Indian principles. This amendment has made certain articles eternity clauses which means they will remain entrenched in the constitution and cannot be amended. “Under the Indian Jurisprudence, very less and only the core values are considered a part of ‘basic structure’.”[23] Though, the Anwar Hossain case was similar to Kesavananda, the position of Bangladesh has not remained the same now.

Uganda

The first amendment in Uganda tampered with the tenure of the president. This was seen as an act of spitting on the soul of the Constitution. “To ensure the protection of the Constitution, the Indian basic structure doctrine was activated where the court described the doctrine as a mechanism of the Judiciary that can prevent deterioration of the Constitution.”[24] This doctrine can check against the depletion of constitutionalism. The court also described “Basic Structure doctrine As A Family House that must have a strong foundation, pillars, strong weight-bearing walls, strong trusses to support the roof. If the wind blew away the roof, the pillars(basic structure) should remain and the family can put the roof back. But if the pillars were removed, the whole structure would collapse.”[25]

“In the case of the Attorney general, the applicability of the Doctrine was largely addressed, and it was decided that the question of what constitutes the basic structure, will be based on the the preamble, national aspirations and directive principles of State policy, the Bill of rights, the history of the constitution that led to the given provision, and the possible consequences of the amendment.”[26]

Role of Indian Jurisprudence

The courts in Uganda relied upon Kesavananda which gave importance to two main views. First, ‘independence of the judiciary’ which authorized the courts to restrict parliament’s amending power. It gave the judiciary independence to make judgments in the favour of the nation. In Attorney general case, the majority of justices cited the above reasoning and observed that the independence of the judiciary will increase court’s power to limit the arbitrary parliamentary power. Second, ‘the amending power of the parliament does not guarantee the power to destroy, damage, alter or abrogate the framework of the constitution’[27] and so any provision that is a fundamental feature of the constitution is guarded against destruction. The courts related this to their Constitution and held that “the preamble, as well as Article 102 or Article 237, deserves to be the basic structure doctrine.”[28] 

South Africa and Role of Indian Jurisprudence

The existence of basic structure doctrine in South Africa is dicey. “It was held when the South African Constitution was being certified by the constitutional courts that the Indian basic structure which strikes down the unconstitutional amendment is open for Constitutional courts in South Africa to use in the future.”[29] “Later, in ‘The Executive Council of the Western Cape Legislature v. President of the Republic of South Africa’[30], Justice Sachs said that certain features of the constitution, if amended even in the manner prescribed maybe unconstitutional because the ‘fundamental features’ cannot be changed by the parliament.”[31] “In ‘Premier of KwaZulu-Natal v. President of the Republic of South Africa’[32], by citing the jurisprudence of Indian SC, Justice Mohamed noted that an amendment even after following a due procedure can be unconstitutional if the ‘fundamental features’ of the constitution have been destroyed.”[33] “Further, it was observed that once amendments become part of the constitution, there is very little scope to challenge its validity.”[34] We do notice the mention of some ‘fundamental features’ of the constitution which no one can tamper in the judgements but the doctrine has not been established yet. However, the courts have left it open for the courts to use the Indian doctrine in future.

Till now South African Courts have nullified amendments only on procedural grounds and not on substantive grounds because its strict amendment procedure protects the constitution from indiscriminate amendments by parliament. When very high standards are set for amendment, it becomes nearly impossible for Parliament to pass an arbitrary amendment which is why no amendment has been struck on substantive grounds. Due, to this strict procedure, there is no need for courts to define the basic structure. Regardless of that, it can be ascertained that some articles are considered more basic than others. Amendment of Chapter 1 requires parliament to meet the highest standard and procedure is slightly lenient for amending chapter 2. This difference exists because chapter 1 is considered more fundamental and the constitution makers wanted to preserve it. This distinction in amendment procedure helps us understand the hierarchy between articles and ascertain the position of each article in the hierarchy. Hence, the constitution does consider some articles more important than others but has not expressly defined ‘basic structure’.

Comparative Analysis

We find that amendments could be struck down in all the four countries but the basis of challenging it could either be on substantive or on procedural grounds. In Pakistan, India, Uganda and Bangladesh, the constitutional amendments can be invalidated on both the grounds. “However, in South Africa, as of now, amendments can be nullified only on procedural grounds but they may be struck due to substantial invalidity if due to procedural invalidity of an amendment, the case is brought in front of the court. In such a case, court will also check the substance of the amendment.” In the case of India, Bangladesh, Pakistan and Uganda, the parliament can easily amend every part of the constitution which is why there arose a need to define the basic structure of the constitution which was unamendable and give judiciary the power to monitor all amendments. Hence, one can either make stricter amendment procedure to such an extent that no indiscriminate amendment is passed (South African position) or one can keep a normal amendment procedure and strengthen the power of judiciary by permitting them to nullify unconstitutional amendments(Indian position).

The need for basic structure doctrine arose in countries due to battle between parliament and judiciary to be superior. “South Africa hasn’t witnessed such a battle between judiciary and legislature which is why the need for doctrine hasn’t arisen yet.”[35] Uganda has clearly chosen constitutional supremacy over parliamentary. Pakistan’s position is a little different because courts have said that they may invalidate an amendment in future but haven’t nullified any till date. Bangladesh’s constitution’s huge part is a basic structure which has limited the power of parliament and has made constitution the most supreme authority. The difficulty in amending the constitution of Bangladesh and South Africa may bring rigidity within the constitution and it might become tough to amend even during necessity.

Conclusion

Throughout the paper, we saw how the basic structure doctrine migrated from India to countries like Uganda, Pakistan, Bangladesh and South Africa. Indian Jurisprudence has played a great role in influencing various countries to adopt the basic structure doctrine. The Indian position is that basic structure includes only ‘core’ values and judiciary can invalidate any amendment on either substantive or procedural grounds. Bangladesh has increased the scope of basic structure; Pakistan never annulled any amendment and South Africa doesn’t invalidate an amendment on substantive grounds. Hence, these countries have not directly copied the Indian Doctrine, they have customized it in their way to bring it into their respective countries.

This paper also helps us recognize why various countries needed a ‘basic structure’. Since, the parliament has a majoritarian power, it can easily pass amendments that give them absolute power to abridge rights of citizens and power of judiciary. In order to avoid this, basic structure is constituted which doesn’t let any power change the ‘fundamental feature’. The case of South Africa is different, it has not encountered a battle between parliament and judiciary which is why they do not have a defined ‘basic structure’. However, courts have left it open for them to define it later when required. Hence, setting a ‘basic structure’ is the solution for the tussle between parliament and judiciary. And this is also why countries have warmly welcomed it all across the world.


[1] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; AIR 1973 SC 1461, https://indiankanoon.org/doc/257876/.

[2] Asma Jilani v Govt. of Punjab, PLD (1972) SC 139,  https://en.wikipedia.org/wiki/List_of_cases_of_the_Supreme_Court_of_Pakistan.

[3] Zia-ur-Rahman v. The State, PLD (1972) Lahore 382, 390, http://nasirlawsite.com/historic/pld49.htm.

[4] Darwesh M Arbey v. Federation of Pakistan, PLD (1980) Lahore 206, https://pakistanlaw.pk/case_judgements/151362/darwesh-m-arbey-versus-federation-of-pakistan.

[5] Mahmood Khan Achakzai v. Federation of Pakistan, PLD 1997 SC 426, http://nasirlawsite.com/historic/pld426.htm.

[6] Zafar Ali Shah v Musharaff, PLD (2000) SC 869, http://nasirlawsite.com/historic/869.htm.

[7] District Bar Association, Rawalpindi v. Federation of Pakistan, PLD (2015) SC 401, https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/caseLaw.xsp?documentId=6E4DCBAB2B307CE1C12581AD004FD725&action=openDocument&xp_countrySelected=PK&xp_topicSelected=GVAL-992BU6&from=state&SessionID=DN2HKXTO4Q.

[8] Ibid.

[9] Mahmood Khan Achakzai v. Federation of Pakistan PLD (1997) SC 426, http://nasirlawsite.com/historic/pld426.htm.

[10] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, https://indiankanoon.org/doc/257876/.

[11] Darwesh M Arbey v. Federation of Pakistan, PLD (1980) Lahore 206, https://pakistanlaw.pk/case_judgements/151362/darwesh-m-arbey-versus-federation-of-pakistan.

[12] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, https://indiankanoon.org/doc/257876/.

[13] ROZNAI, YANIV. “Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea.” The American Journal of Comparative Law, vol. 61, no. 3, American Society of Comparative Law, 2013, pp. 657–719, http://www.jstor.org/stable/43668170.

[14] Zafar Ali Shah v Musharaff, PLD (2000) SC 869, http://nasirlawsite.com/historic/869.htm.

[15] Wali-ur Rahman, ‘An Analysis of the Supreme Court Judgement on the Fifth Amendment of the Constitution of Bangladesh’ (2009) Vol. 13, Journal of International Affairs https://en.wikipedia.org/wiki/Fifth_Amendment_to_the_Constitution_of_Bangladesh.

[16] Anwar Hossain Chowdhury v. Bangladesh (1989), 18 CLC AD, https://www.researchgate.net/publication/336676754_TOPIC_ON_CASE_COMMENT_ANWAR_HOSSAIN_CHOWDHURY_VS_BANGLADESH_1989_BLD_SPL_1_41_DLR_AD_165_1989esearch.

[17] Ibid.

[18] Muhammad Ekramul Haque, ‘The Concept of Basic Structure: A Constitutional Perspective from Bangladesh’ (2005) Vol. 15, The Dhaka University Studies, Part-F, p. 152, http://journal.library.du.ac.bd/index.php?journal=DULJ&page=article&op=viewFile&path[]=1541&path[]=1450#:~:text=One%20of%20the%20important%20constitutional,not%20be%20done%20by%20referendum.&text=Thus%2C%20now%20the%20basic%20structure,142%20has%20also%20been%20given.

[19] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, https://indiankanoon.org/doc/257876/.

[20] Anwar Hossain Chowdhury v. Bangladesh (1989), 18 CLC AD, https://www.researchgate.net/publication/336676754_TOPIC_ON_CASE_COMMENT_ANWAR_HOSSAIN_CHOWDHURY_VS_BANGLADESH_1989_BLD_SPL_1_41_DLR_AD_165_1989esearch.

[21] Ibid.

[22] Jashim Chowdhury and Nirmal Saha, ‘Amendment Power in Bangladesh: Arguments for the revival of Constitutional Referandum’ (2020) p. 10 https://www.researchgate.net/publication/343820358_Amendment_Power_in_Bangladesh_Arguments_for_Revival_of_Constitutional_Referendum.

[23] Ibid, p. 12.

[24] Male H Marlize K. Kiwanuka v. the Attorney General, (2019) UGSC 6, https://ulii.org/ug/judgment/supreme-court-uganda/2019/6.

[25] Salim Abila Asuman, Amendment Of The Constitution Of The Republic Of Uganda 1995: A Review Of The Basic Structure Doctrine In Uganda, (2020), p. 23, https://www.academia.edu/42310074/THE_BASIS_STRUCTURE_DOCTRINE_IN_UGANDA.

[26] Benson Tusasirwe, The Basic Structure Doctrine and Constitutional Restraint: Take-away from the “Age Limit” Decision, (2019), p. 3, https://cepiluganda.org/wp-content/uploads/2019/06/Basic-Structure-Doctrine.pdf.

[27] Ibid 12.

[28] Salim Abila Asuman, Amendment Of The Constitution Of The Republic Of Uganda 1995: A Review Of The Basic Structure Doctrine In Uganda, (2020), p. 23, https://www.academia.edu/42310074/THE_BASIS_STRUCTURE_DOCTRINE_IN_UGANDA.

[29] Certification of the Amended Text of the Constitution of the Republic of South Africa (1997) (2) SA 97 (CC), (1996), http://www.saflii.org/za/cases/ZACC/1996/24.html.

[30] The Executive Council of the ‘Western Cape Legislature & Ors. v. President of the Republic of South Africa & Ors. (1995) (4) SA 877 (CC) para 204, https://collections.concourt.org.za/handle/20.500.12144/2011.

[31] Adem Kassie Abebe, ‘The Substantive Validity of Constitutional Amendments in South Africa’ (2014) p. 681, http://hdl.handle.net/2263/45482.

[32] Premier of KwaZulu-Natal v. President of the Republic of South Africa (1) SA 769 (CC), http://www.saflii.org/za/cases/ZACC/1995/10.html.

[33] Adem Kassie Abebe, ‘The Substantive Validity of Constitutional Amendments in South Africa’ (2014) p. 682, http://hdl.handle.net/2263/45482.

[34] United Democratic Movement v. President of the Republic of South Africa and Ors, (2003) (1) SA 495 (CC), https://collections.concourt.org.za/handle/20.500.12144/2169.

[35] Adem Kassie Abebe, ‘The Substantive Validity of Constitutional Amendments in South Africa’ (2014) p. 682, http://hdl.handle.net/2263/45482.  

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