Basic Structure Theory or Doctrine of Necessity? Parliament’s Power to Amend the Constitution in India and Pakistan

Abstract

India and Pakistan both have written Constitutions of 1950 and of 1973 respectively. The authority to make alterations through amendments in the Constitutions has been entrusted to the Legislature under Art. 368 of Constitution of India and Articles 238-239 in case of Constitution of Pakistan, 1973 aiming that the problems could be sorted out and needs be fulfilled if they would arise in future in the functioning of Constitutions. Similarly, the degree of suppleness embraced by a Constitution has to be well-adjusted by a desire to safeguard its essential features as a superior commandment that restricts acting parliamentarians of the state. There is no limit explicitly enshrined in Art. 368 of the Constitution of India upon power of Legislature for amending the Constitution nor does in Pakistan Constitution under the above mentioned articles of the Constitution of Pakistan, yet the Superior Judiciary in both the Countries upheld that power of Parliament for amending the Constitution is not unrestricted or may be extended to change the fundamental scheme of the Constitution. In this way, the Doctrine of Basic Structure of the Constitution was developed in these two countries, so that the position of the Constitution, as the Supreme Lex of the land, could be maintained. It took bit long in the case of Pakistan to adhere to Basic Structure Theory, rather adherence have been given to the Doctrine of Necessity that led to abrogation and suspension of Constitution many a times. This article identifies the development of the „Doctrine of Basic Structure‟ as a Constitutional safeguard in both countries, i.e., India and Pakistan and the role of superior Judiciary in these two countries in its development.