The Basic Structure Doctrine: India, Germany and Pakistan

Every written constitution has to answer an awkward question: if the people's representatives follow the amending procedure to the letter, can a court still declare the result unconstitutional? India's Supreme Court said yes in 1973. Germany wrote its limits into the Basic Law itself. Pakistan's Supreme Court claimed a similar power in 2015, even though Pakistan's constitution says, in plain terms, that no court may question an amendment.

This essay compares the three and sets out the argument Mian Ashiq Hussain makes in How Constitutions Flourish or Fail: that a doctrine devised by judges is a weak and risky guardian for a living constitution, and that the people, not the bench, should hold the last word on constitutional amendment.

What is the basic structure doctrine?

The basic structure doctrine is the claim that a legislature's power to amend a constitution has unwritten limits: it may change provisions but not the constitution's essential features, and courts decide what those features are. India's Supreme Court adopted it in Kesavananda Bharati (1973). Mian Ashiq Hussain regards it as a subjective theory with no textual basis.

The doctrine has no fixed list of essentials. Its content is whatever judges, at a given moment, decide belongs to the core, and in India that has included the claim that judicial independence, and with it the judiciary's control over the appointment of judges, forms part of the basic structure. For the author this is the heart of the problem. A theory that lets judges name the untouchable parts of a constitution also lets them rank its articles, treating some as essential and others as expendable. A constitution whose provisions are not of equal standing, he argues, loses credibility as a whole, and treating it that way amounts to rewriting it from the bench.

How did India's Supreme Court create it?

India's Supreme Court adopted the doctrine in Kesavananda Bharati v. State of Kerala in 1973, holding that Parliament could amend the constitution but not alter its basic structure. The ruling came by the narrowest of majorities and amid deep controversy, and it grew out of a long contest between the courts and a dominant ruling party.

The author traces its roots carefully. An early form of the idea surfaced in India's Sajjan Singh case of 1965, where the Indian court spoke approvingly of remarks by Justice A. R. Cornelius of Pakistan's Supreme Court in the Fazlul Qadir Chaudhury case of 1963. Yet, as Pakistan's Chief Justice Nasir-ul-Mulk later pointed out, Cornelius had been discussing the President's narrow power to remove difficulties under the 1962 constitution, which says nothing about limits on Parliament's power to amend.

The political backdrop mattered more. Under the Nehru dynasty, the governing party commanded large majorities and treated court rulings with some disdain, and India's constitution was easy to amend. In February 1965 a German professor, Conrad, lectured at Banaras Hindu University on implied limits to the amending power, drawing on the way the Nazis had twisted the Weimar constitution. Some in his audience, already uneasy about the balance of power in India, took up the idea, and Kesavananda turned it into law. Indira Gandhi's easy amendments to sustain her Emergency regime of 1975 to 1977 only deepened the conflict. The author calls the outcome an alien doctrine that carries hidden dangers for democracy.

How is Germany's eternity clause different?

Germany's limits on amendment are written into the Basic Law itself, as an express eternity clause, rather than inferred by judges. The author stresses that this choice came out of a unique history: the Nazi experience and Allied occupation. For him, citing the German model to justify an unwritten Indian or Pakistani doctrine is far-fetched.

The difference he draws is between text and theory. Some constitutions contain eternity clauses because of particular histories: Germany had the memory of dictatorship, and France the memory of its Revolution, so both sought anchors against future storms. Conrad's theory itself, he notes, belongs to the post-war world. After the Second World War, neither Germany nor Japan was fully free to choose its system of government. Germany had to satisfy the Allies' priorities, and its Basic Law was a bargain between German drafters who preferred a centralised federation and Western Allies who wanted a looser one. In such conditions, implied limits on amendment followed naturally.

Even then, Germany did not treat its Basic Law as frozen. After East and West reunited, the people of a united Germany were expected to write a full new constitution. Instead, reunification was carried through by amending the Basic Law. Germany's post-war constitutional story, he concludes, is exceptional, and nations do better building institutions suited to their own societies than copying other cultures.

Where limits are written down, the author accepts that courts must enforce them. Norway's constitution protects its own principles in Article 121. The United States Constitution, in Article V, guarantees each state its equal vote in the Senate unless that state consents otherwise. Bangladesh's constitution goes further: Article 7B declares the preamble, large parts of the constitution and the provisions on its basic structure beyond amendment. That is why, in the author's account, judicial review of amendments in Bangladesh is a different matter altogether. It rests on an express constitutional command, not on an amorphous theory.

What did Pakistan's Supreme Court decide?

In the District Bar Association, Rawalpindi case (2015), a majority of Pakistan's Supreme Court held that it could review constitutional amendments against the basic structure. Yet it struck down no amendment, and before that ruling the Court had never accepted any basic structure doctrine. Chief Justice Nasir-ul-Mulk dissented.

The author treats the judgment as a doctrine announced without a case to apply it to, and finds its reasoning scattered. The opinions fill 809 pages, and the judges in the majority gave reasons too far apart to reconcile. One judge treated the Objectives Resolution as the conscience of the constitution and therefore its basic structure. Another, Justice Sheikh Azmat Saeed, called the Resolution a milestone on the road to constitution-making rather than the destination. Justice Jawwad S. Khawaja showed that the preamble had altered the Resolution's wording, placing authority in the people of Pakistan rather than the state, which in the author's reading defeats the claim that the Resolution is an unamendable core.

He also questions the evidence. One majority opinion relied on a list of 32 countries said to place limits on amendment. The author checked them against the Democracy Index 2019: nine were classed as authoritarian regimes, eight as hybrid regimes and nine as flawed democracies. He asks why such states should be models for Pakistan. Justice Asif Saeed Khan Khosa, by contrast, observed that the theory had been judicially accepted in only one country, India, and that Bangladesh had simply followed India. The author adds that the highest courts in both Malaysia and Sri Lanka rejected the basic structure theory, and that challenges to constitutional amendments have invariably failed before the United States Supreme Court.

Above all, he points to the text and to the remedy. Article 239 of Pakistan's constitution says that no amendment may be questioned in any court on any ground, and that Parliament's power to amend has no limit at all. Justice Qazi Faez Isa read the word "court" there as excluding the Supreme Court and the High Courts. The author rejects that reading: elsewhere, the constitution plainly uses "court" in a generic sense that covers the superior courts, and an express exclusion cannot be undone by interpretation. Because the case was heard in the Court's original jurisdiction under Article 184(3), there was no appeal against the result, and no remedy lies against a judgment of the full court.

What about countries with no judicial review of amendments?

Several respected democracies give courts no power over constitutional change. Switzerland revised its whole constitution in 1874 and again in 1999, with frequent amendments between and since, and its federal judiciary has no power of judicial review. The United Kingdom and New Zealand function without a written constitution at all.

The Swiss example matters most to the author. Thomas Jefferson proposed that each generation revise the United States Constitution to meet its own needs; the framers at Philadelphia in 1787 passed over the idea, but Switzerland broadly embraced it. Between 1874 and 1999 the Swiss made 155 amendments, and the people themselves, through referendums, review the validity of legislative measures. Constitutional review there happens at the ballot box. Norway shows the same spirit in another form: its constitution dates from 1814, yet it is widely regarded as the best democracy in the world, a distinction the author credits to its democratic culture rather than to judicial guardianship.

The United States offers a warning about trusting judges too far. Its Supreme Court approved slavery in the Dred Scott case, a ruling that helped lead to the Civil War, and it took the sacrifices of the people and the 13th Amendment to undo it. In the Lochner era, American courts also voided public welfare laws, revealing what the author calls the judiciary's general tilt towards the status quo. Elected legislatures and executives answer to public opinion; judges who never face voters can lose touch with the hopes and hardships of society.

Who should guard a constitution: judges or the people?

The author's answer is the people. Where a constitution sets no express limit, courts should void an amendment only on objective grounds: the required procedure was ignored, it was forced through against the popular will, it was passed by incomplete Houses, or federating units were shut out. Disagreement with an amendment's content belongs to elections and referendums.

His reasoning runs on several lines. First, error correction. A parliament that oversteps can be voted out and its work reversed at the next election, but a mistaken ruling by the apex court is not easily undone. He suggests the 2015 judgment echoes the Tamizuddin Khan case of 1955 and may one day meet the same fate. The dissenting judges in 2015, he notes, agreed that there are no implied limits on Parliament's power to amend, and that any limits must be expressly written into the constitution.

Second, change. He calls the basic structure doctrine a denial of social evolution: no generation holds a monopoly of wisdom or may bind its successors to its own values. Parity between East and West Pakistan was a basic feature of the 1956 constitution; it is not even an ordinary feature of the 1973 constitution or of Bangladesh's. Pakistan's constitutions of 1956, 1962 and 1973 rested on different foundations, so any list of essentials would have been arbitrary. And invented doctrines, he warns, open the door to unchecked discretion, as the doctrine of necessity did.

Third, design. The power to amend, he writes, is a safety valve that prevents revolutions and bloodshed, and the violent separation of Bangladesh in 1971 shows the cost when a constitution cannot evolve. Rather than hand a veto to judges, he would widen the use of referendums: Article 239 could be amended so that a majority of Parliament may put a constitutional amendment to the people for approval. The maxim that the power to amend does not include the power to destroy, he adds, applies more strongly to courts, because a court cannot revive a provision it has struck down, while Parliament can always correct its own law.

Supporters of judicial review, including Justice Isa in the 2015 case, raise a fear: what if an amendment introduced slavery, curbed freedom of faith or barred girls from education? The author answers that history runs the other way. It was a court, in Dred Scott, that upheld slavery and an amendment that ended it. Courts should decide cases on facts and law, not on hypothetical apprehensions, and they exist to apply the constitution, not to rewrite it.

Frequently asked questions

Which case created the basic structure doctrine?

Kesavananda Bharati v. State of Kerala, decided by India's Supreme Court in 1973. The Court held that Parliament may amend the constitution but cannot alter its basic structure. The author notes that the ruling came by the thinnest of majorities and remains deeply controversial.

Does Pakistan follow the basic structure doctrine?

Only on paper. In District Bar Association Rawalpindi (2015) a majority of the Supreme Court claimed power to review amendments against the basic structure, but it struck none down. Article 239 bars any court from questioning an amendment, and the author expects the 2015 ruling to go the way of the Tamizuddin Khan case.

What is an eternity clause?

An eternity clause is a provision that the constitution itself declares unamendable. Germany's Basic Law, Article 121 of Norway's constitution and Article 7B of Bangladesh's constitution are examples. Unlike the basic structure doctrine, such a limit is written by the framers, so courts enforcing it apply express text rather than theory.

Is the basic structure doctrine used outside India?

Rarely. Justice Khosa observed that only India had judicially adopted the theory and that Bangladesh followed India's example. The top courts in Malaysia and Sri Lanka rejected it, and challenges to amendments have always failed in the United States. Switzerland, the United Kingdom and New Zealand allow no such review.

Read the full argument

This essay compresses one strand of a longer case about how courts, parliaments and people share responsibility for a constitution. The book follows it through Pakistan's constitutional history and sets out the reforms the author proposes. Read it in How Constitutions Flourish or Fail.

Related reading from the same book: Ivory Towers of the Judiciary and Progress, Constitutional Checks and Balances: Conclusions and The Way Forward: Renewing the Social Contract.