Influence of India’s basic structure doctrine on Commonwealth constitutionalism

The emergence of the basic structure doctrine was developed by the Supreme Court of India in response to sustained tensions between parliament and the judiciary. The doctrine introduced a substantive limitation on the amending power: constitutional change, however wide in scope, cannot extend to the destruction of the Constitution’s core identity.

What began as a domestic resolution of institutional conflict has since acquired a wider comparative significance, particularly across Commonwealth jurisdictions grappling with similar questions of constitutional supremacy.

The doctrine is rooted in a deeper constitutional inquiry concerning the location of ultimate sovereignty. In systems inheriting the Westminster tradition, parliamentary supremacy historically occupied a central position. India, however, departed from this model in a fundamental respect. Its Constitution was not conferred by an imperial authority, but was consciously framed and adopted by a sovereign Constituent Assembly. This act of constitution-making represented an exercise of original constituent power - an expression of the people’s foundational will. Once that moment was complete, all future amendments became exercises of derivative authority, necessarily constrained by the framework established at the founding.

It is this structural distinction that underlies the limitation articulated by the Court. The Constitution, as the embodiment of the people’s original will, occupies a position of normative supremacy over all constituted organs, including parliament. The amending power, though extensive, operates within this hierarchy and cannot be used to dismantle the essential features that define the constitutional order.

This principle was crystallised in Kesavananda Bharati v. State of Kerala, where the Supreme Court rejected both extremes of the constitutional debate - absolute parliamentary supremacy on one hand and a complete prohibition on amending fundamental rights on the other. Instead, it fashioned a middle path: amendments are permissible so long as they do not alter the Constitution’s basic structure. While the Court deliberately refrained from setting out an exhaustive catalogue, it indicated that certain structural features - such as constitutional supremacy, the rule of law, judicial review, separation of powers and democratic governance - form part of this protected core.

The significance of this formulation lies not merely in the limitation it imposes, but in the conceptual framework it establishes. By distinguishing between original and derivative constituent power, the Court provided a principled basis for reconciling constitutional continuity with the need for change. This framework has proven particularly influential in post-colonial constitutional systems, where courts have been required to navigate similar tensions between inherited doctrines of parliamentary supremacy and the normative demands of written constitutionalism.

In many Commonwealth jurisdictions, written constitutions based on the Westminster model did not contain explicit substantive limitations on amendment powers. However, these systems were shaped by a rich body of jurisprudence developed by the Judicial Committee of the Privy Council, which recognised structural principles such as separation of powers, rule of law and judicial independence as inherent features of constitutional governance. These principles, though often unwritten, provided an interpretive foundation upon which courts could build.

It is within this context that courts in jurisdictions such as Guyana, Belize and Lesotho began engaging with the Indian basic structure doctrine. Their approach has been neither mechanical nor imitative. Instead, they have employed the doctrine as part of a broader interpretive methodology, combining it with Privy Council jurisprudence to identify the core features of their constitutional orders and to hold that these features are beyond amendment.

The experience of Guyana illustrates how the doctrine has been adapted to protect the principle of popular sovereignty. The Constitution of Guyana declares the State to be a “sovereign democratic republic” and vests sovereignty in the people. When a constitutional amendment introduced presidential term limits, it was challenged on the ground that it restricted the electorate’s freedom to choose its leader. The courts, drawing upon the reasoning in Kesavananda Bharati, examined whether the amendment diluted the sovereignty of the people - a central constitutional value.

Although the final adjudication acknowledged that reasonable restrictions on eligibility for public office do not necessarily undermine democratic governance, the courts affirmed a crucial principle: constitutional amendments must not alter the fundamental character of the State as a sovereign democratic order. This reasoning closely mirrors the logic of the basic structure doctrine, particularly its emphasis on preserving constitutional identity. The Guyanese courts thus used Indian jurisprudence to give substantive meaning to broad constitutional provisions while grounding their reasoning in their own constitutional text.

In Belize, the synthesis between Privy Council jurisprudence and the Indian doctrine is even more pronounced. In Bowen v. Attorney General of Belize, the court examined a constitutional amendment that sought to exclude judicial review in matters of compulsory acquisition. The effect of the amendment was to make the legislature the final arbiter of legality, thereby undermining the separation of powers.

To assess the validity of the amendment, the court relied heavily on Privy Council decisions such as Hinds v. The Queen and Liyanage v. The Queen, which had long recognised separation of powers as an implicit feature of Westminster-style constitutions. Building upon this foundation, the Belize court invoked the basic structure doctrine to hold that judicial review and separation of powers form part of the Constitution’s basic structure and cannot be abrogated even by constitutional amendment. This reasoning was reaffirmed in subsequent cases, where courts invalidated amendments that attempted to oust judicial jurisdiction or convert legislative action into judicial determination.

The doctrine was further refined by the Caribbean Court of Justice, which introduced the notion of a “basic deep structure”. This concept extends beyond the text of the Constitution to include unwritten principles derived from its history, structure and underlying values. By recognising judicial review and the rule of law as part of this deeper structure, the Court expanded the scope of the doctrine and reinforced its role as a safeguard against constitutional erosion.

Lesotho provides another instructive example of how the doctrine has been adapted within a Commonwealth framework. In examining a constitutional amendment affecting the consequences of a vote of no confidence, the court was required to determine whether the amendment undermined democratic accountability. Drawing upon Westminster traditions and Privy Council jurisprudence, the court identified the principle of responsible government as a fundamental feature of the Constitution.

Responsible government requires that the executive remain accountable to the legislature and either resign or seek dissolution upon losing its confidence. The amendment, by making dissolution contingent upon a two-thirds majority, effectively allowed a government to remain in power despite losing legislative support. The court held that this undermined the basic structure of the Constitution by eroding democratic accountability. In reaching this conclusion, it explicitly referred to Indian jurisprudence and classical constitutional theory, thereby illustrating the transnational nature of the doctrine.

Across these jurisdictions, a consistent pattern emerges. Courts are not merely borrowing the basic structure doctrine; they are integrating it with established constitutional principles recognised by the Privy Council. This synthesis allows them to ground the doctrine in their own legal traditions while benefiting from the analytical framework developed by the Indian Supreme Court. The Privy Council’s jurisprudence, which historically articulated structural principles in colonial contexts, serves as a bridge between imperial constitutional law and contemporary constitutional adjudication.

The broader significance of this development lies in its affirmation of constitutional supremacy. By recognising that certain features of the Constitution are beyond amendment, courts ensure that democratic governance remains anchored in fundamental values. This does not negate the role of parliament, but rather situates it within a constitutional framework defined by the people’s original will.

In conclusion, the basic structure doctrine has evolved into a central feature of Commonwealth constitutionalism. Its significance lies not merely in its adoption across jurisdictions, but in the manner of its adaptation. By combining Indian constitutional reasoning with Privy Council principles, courts have developed a robust framework for identifying and protecting unamendable constitutional essentials. In doing so, they have reaffirmed a fundamental constitutional truth: while constitutions must evolve, they must do so without losing their identity.

Siddharth Sijoria is a IP Co Chair at the Young Commonwealth Lawyers Association.

This article is a shorter version of the author’s contribution in the book India’s Constitutional Odyssey: 75 Years of Evolution and Global Reach.