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The basic structure doctrine has, since its inception in Kesavananda Bharati v. State of Kerala in 1973, often been criticized as being illegitimate. This chapter examines the key challenges to the legitimacy (including moral legitimacy, legal legitimacy, and sociological legitimacy) of the basic structure doctrine by engaging directly with the normative arguments about legitimacy of the doctrine while building on arguments of legal doctrine carried out so far. It focuses on the mode of constitutional interpretation and the judicial role in creating and sustaining the use of the basic structure doctrine, and considers Richard Fallon's account of the concept of legitimacy in constitutional theory. It also discusses express constitutional meanings, implied constitutional meanings, the doctrine of implied limitations, the doctrine of necessary implication, structural interpretation, exclusivity of amending power, and judicial review. Finally, the chapter explores alternative accounts of the concept of sovereignty advanced by the Supreme Court and academic commentators as underlying the basic structure doctrine: judicial supremacy, popular sovereignty, and shared sovereignty.

After the conception of the basic structure doctrine in Kesavananda Bharati v. State of Kerala, a clear type of basic structure review of constitutional amendments emerges in Indira Gandhi v. Raj Narain. In this case, the Supreme Court identifies different types of basic structure review of constitutional amendments: namely, an extension of Article 13-type judicial review for compliance with fundamental rights to constitutional amendments, or an independent new form of judicial review. This chapter contends that the court's approach to basic structure review of executive action fails to articulate the relationship between basic structure review and administrative law review of executive action. It considers three issues related to the level at which courts scrutinize state action under the basic structure doctrine: that basic structure review ensures compliance with principles and not rules; whether basic structure review may be characterized as a soft incompatibility review rather than a hard unconstitutionality review; and whether judicial deference has any role to play in basic structure review.

In Kesavananda Bharati v. State of Kerala, the Indian Supreme Court announced the basic structure doctrine, but it fell to later decisions to elaborate on the nature and character of basic features and to specify the mode by which they may be identified. At various points the Court has suggested that democracy, secularism, rule of law, federalism, judicial review, separation of powers, among others, are basic features of the Constitution. A first step to clarify the identity of basic features of the Constitution is to scrutinize the important judicial opinions in several cases such as Indira Gandhi v. Raj Narain, as well as the early speculations in Kesavananda, in order to identify the main arguments and concerns about the basic features of the Constitution. This chapter argues that the basic structure doctrine seeks to identify ‘basic features’ of the constitution, as distinguished from core articles or ‘integral’ parts of it. It also contends that the Supreme Court is right to refuse to provide an exhaustive catalogue of basic features in a legislative mode.

Between 1951 and 1973, the Indian Supreme Court accepted two separate arguments for judicial review of constitutional amendments: first, constitutional amendments are subject to judicial review under Article 13 (express limits) and second, that constitutional amendments are subject to basic structure review (implied limits). This chapter evaluates these two arguments in support of judicial review of constitutional amendments. It argues that constitutional amendments may be subject to implied limits whereby the courts may review a particular constitutional amendment to assess whether it destroys or abrogates the basic features of the constitution. It also examines substantive limits on amending power and the Supreme Court's use of the basic structure doctrine for the first time in Kesavananda Bharati v. State of Kerala to subject constitutional amendments to judicial review. Since that ruling, the doctrine has been used by the Supreme Court in several significant constitutional law cases not all of which relate to constitutional amendments.

This chapter focuses on implicit unamendability and looks at the spread of unconstitutional constitutional amendment doctrines. It discusses the understanding of unamendability as a necessary implication of liberal constitutions in general, whether supplementing or absent any formal eternity clause in the constitutional text. It examines arguments about why courts should recognize an unamendable constitutional core even where the constitution itself is silent on this matter. This chapter also investigates where to locate the elements of the constitutional core and how to restrain unamendability doctrines in order to prevent judicial overreach. It explains how judicially created unamendability is prone to both over- and under-reach in concrete adjudication. It reviews the birth of the basic structure doctrine in India and traces its global influence, as well as demands to develop unconstitutional constitutional amendment doctrines in response to democratic backsliding.

This chapter makes the case for an empowered judicial role in the constitutional governance of emerging democracies in Asia. Courts play a significant role in checking political power in dominant party states and building foundational principles of constitutionalism for aspiring democracies. In the face of concentrated political power, the judiciary can strengthen its institutional role through strategic assertiveness, as the Malaysian apex court has exhibited in two recent landmark decisions: Semenyih Jaya v. Pentadbir Tanah Daerah Hulu Langat (2017) and Indira Gandhi v. Pengarah Jabatan Agama Islam (2018). How can courts develop the constitutional jurisprudence necessary to support a more empowered judicial role? The chapter argues that the constitution’s foundational elements—the constitution’s original framework, the separation of powers, and the rule of law—provide a core basis for courts to safeguard and draw on to structure constitutional adjudication. It explores the specific legal mechanisms that courts can invoke in practice: a constitutional basic structure doctrine, purposive interpretation, and proportionality analysis in constitutional adjudication. Taken together, these judicial interventions can equip courts in developing democracies to defend the constitution’s core structure and to construct principles of constitutionalism.

This essay deals with the ramifications of the judgment in the National Judicial Appointments Commission Case for the basic structure doctrine. The doctrine of basic structure places limits on the legislative power to amend the Constitution, and owes its origins to the judgment of the thirteen-judge bench of the Supreme Court in the Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225). According to the authors, the judges in the NJAC Case, by striking down the 99th Amendment to the Constitution of India for violating the basic structure, appear to have conceptually expanded the remit of the basic structure doctrine significantly. They conclude that the contents of what was held to be part of basic structure in the NJAC Case are largely incapable of being defended normatively. Against this background, they chart the significance of the judgment on constitutional law and separation of powers questions in the future.

This chapter explores the role of courts and how judicial review operates in practice within the wider political context of Asian states historically dominated by consolidated political power. Judiciaries in Malaysia and Singapore are empowered by their written constitutions to invalidate legislation and executive actions for rights violations. Yet these Asian courts have traditionally adopted an insular, rigidly formalistic approach toward constitutional review, marked by extensive deference to the political branches, stridently rejecting notions of implied constitutional principles or basic structures. This chapter consider why. Constitutional adjudication in practice is inextricably bound to constitutional politics. Courts facing a dominant political party operate within a challenging environment for exercising strong judicial review. In the 1980s, the government’s aggressive backlash to judicial decisions with which it disagreed resulted in constitutional crises in Malaysia and Singapore. Chastened, the courts retreated to a subdued position toward constitutional review. Over the next two decades the Malaysian apex court refrained from invalidating any federal statute, while its Singaporean counterpart has not once struck down any law. Recent displays of assertiveness by the Malaysian Federal Court, however, show signs of a reinvigorated judiciary. The chapter tells the story of the courts’ rise, fall, and uneven journey toward constitutional redemption in these Asian democracies.

This chapter deals with the evolution of the ‘basic structure’ doctrine, which states that any part of the Constitution may be amended by following the procedure prescribed in Article 368, but no part may be so amended as to ‘alter the basic structure’ of the Constitution. The arguments related to limitation on amending powers in the Golak Nath Case and the Kesavananda Case are examined. It then considers the contributions of German jurist and scholar, Professor Dietrich Conrad, to the theory of ‘implied limitations’ on amending power. It suggests that it was no coincidence that a German jurist had thought of implied limitations on the amending power. The Germans learnt from the bitter experience of the Nazi era.

This chapter explores the judiciary’s institutional role in maintaining balance among the branches of government. To contextualize the judiciary’s fraught position, it recounts how Malaysia’s dominant coalition government infamously amended the Constitution in 1988 to remove the provision vesting judicial power in the courts. The Malaysian judiciary’s response was initially anemic, with the Federal Court appearing to concede that the courts’ powers were now at the mercy of the legislature. This chapter uses as its central case study the landmark decision of the Malaysian Federal Court in the 2017 case of Semenyih Jaya v. Pentadbir Tanah Daerah Hulu Langat. For the first time in decades, the Court struck down a federal statute, declaring that constitutional judicial power is vested solely in the courts and nullifying the 1988 constitutional amendment. Semenyih Jaya represents a landmark in Malaysia’s constitutional jurisprudence. It recognized judicial power and the separation of powers as features so central to the constitutional framework that they cannot be altered by the legislature, effectively establishing a basic structure doctrine applied to the Malaysian Constitution. With this affirmation of judicial power, the Malaysian Federal Court reanimated the separation of powers as an effective principle of checks and balances.

Accounts of the rule of law in some Asian states have typically been portrayed in highly formalistic terms. Singapore, for example, has long been characterized as having a stable, efficient legal system that perpetuates a “thin” rule of law in service of the state’s objectives. This chapter constructs a more robust conception of the rule of law, which is fundamentally connected to the courts’ power of judicial review. The Malaysian Federal Courts decision in the 2018 case of Indira Gandhi v. Pengarah Jabatan Agama Islam reveals a notion of the judicial power of the courts as a necessary corollary of the rule of law. Further, the Federal Court expressly declared the civil courts’ judicial review power and constitutional interpretation as basic features of the constitution that cannot be altered by formal amendment. This rule of law conception is in line with the principle of legality, premised on the notion that all power has legal limits, as the Singapore Court of Appeal has articulated. This emerging account of the rule of law is inextricably linked to judicial review as integral to the constitution’s core framework.

In the first part, the interpretation and application of the rule of law by Indian courts, primarily the constitutional bench of the Supreme Court of India is analysed. A review of the major principles laid down by the Supreme Court in relation to equality and liberty is followed by a critical examination of the innovative jurisprudence developed by the Court while interpreting Article 21. The principles of judicial independence, separation of powers, and evolution of the basic structure doctrine, as well as their relationship with the rule of law is critically evaluated. In the second part the political understanding of the rule of law is examined, particularly focusing on Nehru’s comment that the rule of law should follow the ‘rule of life’ and its meaning and continued impact on lawmaking. The chapter concludes by identifying four broad themes of the Rule of Law in India.

Constitutions sometimes codify unamendable rules. These unamendable rules are resistant to legal forms of change. They cannot be altered using the codified rules of amendment. Nor can they be repealed. The only properly legal way to change them is to rewrite the constitution. Why do constitutional designers codify these unamendable rules? This chapter explains seven reasons why constitutional designers choose to codify unamendable rules. In explaining these reasons, the chapter discusses many different examples of codified unamendability around the world. This chapter also explains that unamendability can arise in two other forms. First, interpretive unamendability emerges from a judicial decision or an unwritten constitutional norm rooted in the dialogic interactions of political actors. Examples include the basic structure doctrine in India and the substitution of the constitution doctrine in Colombia. Second, constructive unamendability arises as a result of the practical impossibility of gathering the majorities required to amend a rule despite that rule being freely amendable in theory. This chapter illustrates how constructive unamendability occurs and operates with reference to the phenomenon of constitutional veneration, the use of omnibus amendment bills in Canada, the challenge of multi-party incompatibility, and the Equal Suffrage Clause in the U.S. Constitution,. This chapter then connects the three varieties of unamendability to the discussion in Chapter 3 on measuring amendment difficulty. This chapter shows that unamendability further complicates the effort to measure amendment difficulty across jurisdictions and makes it impossible to do so with any reliability. This chapter considers constitutions from around the globe.

What is an amendment? This chapter shows why this question is central to the study of constitutional change. Some constitutional changes are identified as amendments but in reality may be more. Whether a constitutional change is an amendment entails implications for how the change must be made, whether a court can and should evaluate its constitutionality, and what the change requires for legitimation. This chapter returns to the origins of formal amendment—to the Articles of Confederation, America’s first constitution, which codified the very first amendment rule in a national constitution—to uncover the foundations of amendment practice and what makes an amendment different from other constitutional changes. This chapter moreover raises a question about an increasingly common phenomenon that straddles the border of legality and legitimacy: the violation of amendment rules. This chapter explains that the Indian basic structure doctrine and Bruce Ackerman’s theory of constitutional moments are, at bottom, variations on the same theme we see all over the world: changes to amendment rules that occur in defiance of the rules of formal amendment. Many examples follow to illustrate this point. The chapter closes by describing and situating the importance of the chapters to follow in this book. This chapter considers constitutions from around the globe.

Some constitutional amendments are not amendments at all. They are self-conscious efforts to repudiate the essential characteristics of the constitution and to destroy its foundations. They dismantle the basic structure of the constitution while at the same time building a new foundation rooted in principles contrary to the old. Changes on this scale are not properly called constitutional amendments. They are better understood as constitutional dismemberments. A constitutional dismemberment is incompatible with the existing framework of the constitution. It intends deliberately to disassemble one or more of the constitution’s elemental parts by altering a fundamental right, an important structural design, or a core aspect of the identity of the constitution. To use a rough shorthand, the purpose and effect of a constitutional dismemberment are the same: to unmake the constitution. But what, then, is a constitutional amendment? This chapter explains that there are four fundamental features to a constitutional amendment: its subject, authority, scope, and purpose. The most important feature of an amendment is its scope, which at all times must not exceed the boundaries of the existing constitution. This chapter therefore defines a constitutional amendment in terms of what it is and what it is not, with illustrations drawn from around the globe. This chapter considers constitutions from Barbados, Belize, Brazil, Canada, Dominica, Guyana, Ireland, Italy, Jamaica, Japan, New Zealand, and the United States.