The "Basic Structure" of the Constitution of India and the other constitutions

  • Indian Constitution has something called 'basic structure', defined by Basic Structure Doctrine. This doctrine is based on, and evolved from, the Supreme Court of India's decision in the most celebrated case of Keshavanada Bharti, 1972 (The case that saved Indian democracy - THE HINDU). This doctrine says that the Indian Constitution has some basic features that cannot be altered or destroyed through amendments by the parliament.

    This theory in India was first introduced by Justice Mudholkar in 1964, by referring to a 1963 decision of the Supreme Court of Pakistan in which Chief Justice Cornelius held that the President of Pakistan could not alter the “fundamental features” of their Constitution. So:

    1. Does any other constitution have such basic or fundamental features defined by legislature or judiciary?
    2. Other than India and in Pakistan (before 1963), are there any major and historical cases in which a Supreme Court, or the highest court the country had, declared that such and such part(s) of the constitution cannot be amended? If yes, in which cases?
    3. Does any constitution itself have articles defining its own 'basic features'?

    This is hard to answer as far as comparison to other countries, without at least some detailed elaboration on how the 1972 decision defined these "basic features". Was it because of specific wording in the constitution prohibiting their change? Or because of some reasoning NOT based on constitutional wording? Was the prohibition on changing these basic features found to be absolute, or merely "requires a lot more than a simple parlamentary vote" higher procedural hurdles, similar to those required to amend US Constitution?

    Germany definitely has non-changeable parts defined in the constitution itself.

  • Colombia has a "basic structure" doctrine which began in 2003. Thus, the Colombian Constitutional Court can hold that an amendment to the 1991 Constitution is void because violates the main features or principles of the Constitution. This main features or essential principles are built by the Constitutional Court. In other words, the essential principles do not appear in the constitutional text but in the Constitutional Court case law. (an example: In this case the Constitutional Court studied an amendment that allowed president Uribe a new term in the Presidency).

    I have written some papers (sorry in Spanish) about a comparison between Colombia, Germany and the US relating to the limits to constitutional change. If you are interested, I can send them by email.

    On the other hand, South Africa, Ireland, Turkey, Nepal and Bangladesh (among others) have a theory very similar to the Basic Structure doctrine in India.

    Finally, Italy, France, Portugal and Germany Constitutions define the basic features of those constitutions, in some articles. Germany's Constitutional Court was the pioneer in 1951 (Southwest case) in creating or building the judicial review of amendments. In fact, Germany had a great influence on India's Supreme Court. There was a German professor (prof. Dietrich Conrad) who gave a famous Lecture in India concerning the judicial review of amendments. This Lecture was heard by some Indian Justices.

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Content dated before 7/24/2021 11:53 AM