It 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, where the doctrine was formally adopted.
[5] Although Kesavananda was decided by a narrow margin of 7–6, the basic structure doctrine, as propounded in Justice Khanna's judgement, has since gained widespread legal and scholarly acceptance due to a number of subsequent cases and judgments relying heavily upon it to strike down Parliamentary amendments that were held to be violative of the basic structure and therefore unconstitutional.
When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived as unprecedented.
However, the passage of the 39th Amendment by the Indian National Congress' majority in central and state legislatures, proved that in fact such apprehension was well-grounded.
That the Constitution has "basic features" was first theorised in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan.
In Shankari Prasad Singh Deo v. Union of India,[10] the Supreme Court unanimously held, "The terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatever.
[12] Chief Justice Koka Subba Rao writing for the majority held that: Six years later in 1973, the largest ever Constitution Bench of 13 Judges, heard arguments in Kesavananda Bharati v. State of Kerala (case citation: AIR 1973 SC 1461).
[13] The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter "Supreme Court Cases".
Presided over by Chief Justice Ajit Nath Ray, the court had to determine the degree to which amendments were restricted by the basic structure theory.
On November 10 and 11, the team of civil libertarian barristers, led by Nanabhoy Palkhivala, argued against the Union government's application for reconsideration of the Kesavananda decision.
On the morning of 12 November, Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose.
", but that the eventual attribution to Dietrich Conrad is absent, who propounded the arguments in a lecture to the law faculty in the Banaras Hindu University.
The note is that in Kesavananda Bharati the dissenting judge, Justice Khanna, approved as "substantially correct" the following observations by Conrad: Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.
In the Minerva Mills case, Nanabhoy Palkhivala successfully moved the Supreme Court to declare sections 4 and 55 of the 42nd Amendment as unconstitutional.
It also declared that there would be no limitation whatever on the constituent power of Parliament to amend by way of definition, variation or repeal the provisions of the Constitution.
[20] In the judgement on Section 4, Chandrachud wrote: Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power.
Coelho v. State of Tamil Nadu and others,[30] and Raja Ram Pal v. The Hon'ble Speaker, Lok Sabha and others[31] (known as Cash for Query case).
The basic structure doctrine was adopted by the Supreme Court of Bangladesh in 1989, by expressly relying on the reasoning in the Kesavananda case, in its ruling on Anwar Hossain Chowdhary v.
The amendments had sought to preclude the court from deciding on whether deprivation of property by the government was for a public purpose, and to remove any limits on the National Assembly's power to alter the constitution.
This was found to impinge on the separation of powers, which had earlier been identified as part of the basic structure of the Belizean constitution.
[7] The Cypriot Supreme Court used the basic structure doctrine in 29 October 2020, in ΚΛΟΓΟΔΙΚΕΙΟ ΚΥΠΡΟΥ, ΑΝΔΡΕΑΣ ΜΙΧΑΗΛΙΔΗΣ κ.α.
The Supreme Court of Israel in majority judgement on January 1, 2024 ruled against an amendment passed by Parliament in July, 2023 which scrapped the “reasonableness” clause, used by the court to overturn government decisions deemed unconstitutional, on the ground that “this does severe and unprecedented damage to the basic characteristics of the State of Israel as a democratic state,”.
In Malaysia, the basic features doctrine was initially found to be inapplicable by the Federal Court in Phang Chin Hock v. Public Prosecutor.
The basic structure doctrine was first cited with approval by the Federal Court in obiter dicta in Sivarasa Rasiah v. Badan Peguam Malaysia,[45] before ultimately being applied by the same court in Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Ano'r Case[46] and Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Perak & 2 O'rs & 2 Other Cases.
"[52] In December 2017, the Ugandan parliament passed a Constitutional Amendment which removed the age limit of 75 years for the President and Chairpersons of the Local Council.
Taking note of the judgments in Kesavananda Bharati v. State of Kerala[53] and Minerva Mills v. Union of India,[54] the Supreme Court of Uganda in Mabirizi Kiwanuka & ors.