DOCTRINE OF BASIC STRUCTURE: A COMPARISON BETWEEN INDIA AND MALAYSIA
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Abstract
The aim of this paper is to focus on the Doctrine of Basic Structure, which is a judicial principle that was established in the case of Kesavananda Bharati v State of Keralai. It outlines that there are certain basic principles in The Constitution that cannot be amended by the legislature. It provides for a regulatory mechanism on the amendments of The Constitution and is a method of judicial review to check on any kind of state action.ii These basic principles are the very structure and heart of The Constitution, without which The Constitution would lose its value as the ultimate document of governance.
This paper aims to show the applicability of the basic structure doctrine in other countries by making a comparative study between India and Malaysia. Even though both India and Malaysia are federal states and their law is based on common law, there are many differences in the way their respective Constitutions have been interpreted. Hence the application of the Basic Structure Doctrine comes into question in the interpretation of the Malaysian Constitution.
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