The Doctrine of Basic Structure.

 

The Doctrine of Basic Structure.

The Doctrine of Basic Structure is a landmark concept in constitutional law, particularly prominent in the jurisprudence of India and, by extension, countries like Bangladesh. It asserts that a constitution has certain fundamental features or core principles that are so essential to its identity and spirit that they cannot be altered, amended, or destroyed by the legislature, even through its constituent (amendment) power.

Origin and Evolution (Primarily in India):

The doctrine originated and evolved through a series of landmark judgments of the Supreme Court of India:

1. Shankari Prasad v. Union of India (1951) & Sajjan Singh v. State of Rajasthan (1965): Initially, the Indian Supreme Court held that Parliament's power to amend the Constitution under Article 368 was absolute and could extend to any part of the Constitution, including fundamental rights.
2. Golaknath v. State of Punjab (1967): This case marked a shift. The Supreme Court reversed its earlier stance, holding that Fundamental Rights were "transcendental" and "unamendable" and that Parliament could not abridge or take away these rights. It also ruled that a constitutional amendment was a "law" under Article 13 (which prohibits laws that abridge fundamental rights), and therefore, subject to judicial review. This created a significant tension between the judiciary and the Parliament.
3. Kesavananda Bharati v. State of Kerala (1973): This is the most pivotal case in the evolution of the Basic Structure Doctrine. A 13-judge bench of the Supreme Court, by a narrow majority of 7:6, overruled the Golaknath judgment in part. While it upheld Parliament's power to amend any part of the Constitution, including Fundamental Rights, it introduced a crucial limitation: Parliament's amending power could not be used to alter, damage, or destroy the "basic structure" or "essential features" of the Constitution.
• The Court, however, deliberately did not provide an exhaustive list of what constitutes the "basic structure." Instead, it left it to future courts to determine these features on a case-by-case basis.
• Some of the elements commonly identified as part of the basic structure in the Kesavananda Bharati judgment and subsequent cases include:
• Supremacy of the Constitution
• Republican and Democratic form of government
• Secular character of the Constitution
• Separation of Powers
• Federal character of the Constitution
• Unity and integrity of the nation
• Judicial Review
• Parliamentary system (in India's context)
• Rule of Law
• Fundamental Rights (though they can be reasonably abridged, their essence cannot be destroyed)

Purpose and Significance:

The Doctrine of Basic Structure serves several critical functions:

• Checks and Balances: It acts as a powerful check on the legislative power of amendment, preventing Parliament from fundamentally altering the democratic and constitutional framework established by the original framers.
• Preserves Constitutional Identity: It ensures that the core values, philosophy, and identity of the Constitution remain intact, preventing it from being transformed into something unrecognizable by a temporary political majority.
• Safeguards Democracy: By protecting essential features like the republican and democratic form of government, fundamental rights, and an independent judiciary, it acts as a bulwark against authoritarian tendencies.
• Protects Fundamental Rights: It provides a mechanism to prevent the erosion or abrogation of fundamental rights through constitutional amendments.
• Upholds Judicial Supremacy (in a limited sense): It establishes the judiciary as the ultimate interpreter and guardian of the Constitution, capable of reviewing even constitutional amendments.
• Promotes Stability: By ensuring that certain core elements are immune from change, it contributes to the stability and continuity of the legal and political system.

The Doctrine of Basic Structure in Bangladesh:

The Doctrine of Basic Structure is also recognized and applied in Bangladesh's constitutional jurisprudence. While its origin is often traced to the Indian context, the Supreme Court of Bangladesh has adopted and applied this doctrine in several landmark cases.

The most significant case establishing the Basic Structure Doctrine in Bangladesh is the Anwar Hossain v. Bangladesh (1989), popularly known as the "Eighth Amendment Case." In this case, the Supreme Court of Bangladesh, relying heavily on the Indian precedent (Kesavananda Bharati), held that certain fundamental provisions of the Constitution of Bangladesh constitute its "basic structure" and are unamendable, even by Parliament.

While the Bangladeshi Supreme Court, like its Indian counterpart, has not provided an exhaustive list, commonly recognized basic features of the Bangladesh Constitution derived from this and subsequent judgments include:

• Supremacy of the Constitution
• Democracy and Republican Government
• Independence of the Judiciary
• Separation of Powers
• Unitary State
• Fundamental Rights
• Sovereignty of the people

The Eighth Amendment Case famously struck down certain parts of the Eighth Amendment to the Constitution of Bangladesh, affirming the judiciary's power to review constitutional amendments based on the basic structure doctrine.

In essence, the Doctrine of Basic Structure is a powerful judicial innovation that limits the amending power of the legislature, ensuring that the fundamental principles and foundational identity of the Constitution remain inviolable. It is a vital tool for constitutional stability and the protection of democratic values, especially in written constitutions like those of India and Bangladesh.