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December 7, 2017
“Just as war is too important to be left to Generals, so is the Constitution too important to be
left to the Judges!”
Please read the Basic Structure majority judgements (PLD 2015 SC 401) of Justice Azmat
Saeed Sheikh and Justice Jawwad S. Khawaja and the minority Judgements of Justice
Saqib Nisar, Justice Asif Saeed Khosa and Chief Justice Nasir ul Mulk.
Do you agree that the courts have power to determine the constitutionality of
Constitutional Amendments on the doctrine of “Basic Structure?
The essay analyses the constitutionality of the Twenty First Amendment (hereinafter
the “21st Amendment”) to the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter
the “Constitution”), through the Constitution (21st Amendment) Act, 2015 (hereinafter the
“Amendment Act”), on the touch stone of existence of basic structure in the Constitution, as
has been established by the superior Courts. This 21st Amendment was passed in the aftermath
of 16th December, 2014's tragic incident of terrorist attack on Army Public School, Peshawar,
which left 141 dead, including a majority of children and other staff members. As a result, in
order to console the grieving nation, and to wipe the tears of every mother who had lost their
children in this unfortunate attack, the Government of Pakistan, in collaboration with the army,
decided to eradicate terrorism from the country. For this purpose, the government decided to
legislate military Courts, the operation of which would, 'inherently', be protected from any
violation of the fundamental rights, as enshrined in the Constitution, as a result of the said
Amendment.
INTRODUCTION
The basic aim of passing the said amendment was to give constitutional cover to the
establishment and operation of the military Courts, with the aim to convict the terrorists who
have been acquitted either for non-availability of evidence, or due to inability of prosecution
to prove their offences beyond reasonable doubt. The preamble to the said Amendment Act
outlines and states that, to cater to the existing extraordinary circumstances of “grave and
unprecedented threat to the integrity of Pakistan”, special measures are required to be taken for
speedy trial of the offences relating to terrorism and waging of war against Pakistan. As a
result, under the garb of this constitutional cover, 'military Courts' were established to conduct
Originally, in the Constitution, there are three 'constitutional' Courts established (under
Article 1751, which include the Supreme Court of the country, High Courts for all the four
provinces, and a High Court for Islamabad Capital Territory, and the Federal Shariat Court
under Article 203 C2, whose jurisdiction and powers have been given in the Constitution itself,
With the passing of 21st Amendment (along with the subsequent amendment in Pakistan Army
Act, 1952), a special Court was created for the trial of terrorists belonging to certain
organizations. It was argued that, by constituting this special Court, through a proviso to Article
175 of the Constitution, the legislature had curtailed the power of other Courts. As a second
fold of the said 21st Amendment, certain other secondary legislations had been protected from
the applicability of prohibitory clause of Article 8 of the Constitution3. Pursuant to the passing
of the 21st Amendment, it was challenged before the Supreme Court of Pakistan in the case of
District Bar Association Rawalpindi v The Federation of Pakistan. In the split decision,
Justice Azmat Saeed held in favor of the basic structure doctrine. He looked into the history of
1
Constitution of Islamic Republic of Pakistan 1973, Art. 175.
2
Ibid, Art. 203 C.
3
(n 1), Art. 8.
Basic Structure doctrine in India and Pakistan, and determined that the Constitution of Pakistan
had Salient Features, which could not be altered, abrogated or destroyed through an
Amendment made by the Parliament and that the Court was vested with the jurisdiction to
The idea behind this constitutional doctrine of basic structure is that there are certain
features of the 'fundamental law' of the land, which cannot be amended by the actions of the
legislative. In this regard, there are legislative instruments, as well as judicial pronouncements
supporting this very idea of existence of basic structure. Historically, the legislative origin, of
this doctrine, is the Basic Law of Federal Republic of Germany, 1949.4 On the other hand, the
judicial origin is the jurisprudence established by the Indian Superior Courts. It was Prof
Dietrich Conrad, head of the law department at the South Asia Institute of the University of
Heidelberg, and the author of the doctrine that “the basic structure” of a constitution cannot be
changed, who enlightened the Indian Lawyers about the idea of Basic Structure of a
constitution, that made an essential part of Indian jurisprudence. The Courts of India have, time
and again, decided on the issue whether the amending power of Parliament is absolute of not,
and right now, following is the position of this doctrine in the jurisprudence of India.
Position in India
In India, there are two main cases on the issue where the question of amending power
of the parliament (Article 368), under the Constitution of India, 1949 (hereinafter the “Indian
Constitution”) was discussed and decided upon. In this regard, first case is I.C. Golak Nath Vs.
4
Basic Law for the Federal Republic of Germany, Art. 1.
State of Punjab5, the 1967 judgment on the question of amending power of the Parliament of
India, where it was held that the Parliament cannot amend the fundamental rights' part of the
Indian Constitution in a way that it curtails the ambit of these fundamental rights. The two
issues, discussed in the case of Golak Nath were that whether the act of Parliament, amending
the Indian Constitution, fell in the definition of 'Law' as provided in Article 13(2) of the Indian
Constitution, and whether the amending power of parliament extended to amending the
To the first issue, the Court held that the any amendment to the Indian Constitution
must be deemed 'law' as understood in Article 13 (2)7. For the second issues, majority of the
judges in Supreme Court of India ruled in the favor of limited amending power of the
parliament. However, in the latter case of Kesavananda Bharati Vs. State of Kerala8, the
Supreme Court of India recognized the Indian Parliament's right to amend the Indian
Constitution, and restricted this amending power to the extent that it would not take away the
basic structure of the Indian Constitution. In Kesavananda's case9, it was held that what can be
constituted as the 'basic structure', includes, inter alia, the status of basic land of law, the
religious/secular character of the Constitution, the form of Government, and the character of
the Constitution. According to Lord Birkcnhead, L.C., this basic structure of the Constitution
is based on the foundation that is enshrined in the constitutional freedoms. In the said case, the
six judges, led by Chief Justice, had mentioned specific provisions which may not be abrogated
by the exercise of power under Article 368 of the Indian Constitution. However, these six
judges who held that the 'essential elements' or the 'basic features' of Constitution cannot be
5
AIR 1967 SC 1643
6
Ruchita T. Jain and Kirti S. Soni. “Legal Service India” published on 21st January, 2010,
http://www.logalserviceindia.com/article/l426L. C. GolaknathV. StateOfPunjab.html
7
Venkatesh Nayak. “The Basic Structure of the Indian Constitution”. Available at <http://www.hu
manrightsinitiative.org/publications/const/the_basic_structurc_of_the_ indian_constitutoin.pdf>
8
AIR 1973 SC 1461
9
Ibid.
abrogated did not give a definitive list of these basic features.
Position in Pakistan:
The debate as to what constitutes Basic Structure of the Constitution has always been a
topic under discussion among the legal fraternity in Pakistan. There have been litigation on this
issue, however, no concrete decision has been laid down by our superior Courts. This question
had never been decided by the Courts, and was brought forth with the case of 21st Amendment.
It is imperative to note that the judges are always inclined towards negative, when there comes
the debate of existence of basic structure in the Constitution, more than they positively favored
it. In this regard, it is pertinent to discuss the important cases, where the Supreme Court of
Pakistan has vaguely decided the issue of basis structure of Pakistani Constitution, as well as
the cases in which Supreme Court has decided upon the question of Court's power to strike
down a legislative amendment. The terms 'nature' of the constitution, and 'basic provisions' had
first been coined in the case of Fazlul Quader Chowdhry Vs. Muhammad Abdul Haque10 where
the Court while deciding the scope of Article 224 of the 1962 Constitution, held that the “aspect
of the franchise, and of the form of the Government are fundamental features of a Constitution”
and therefore “the Constitution was not intended to be varied according to the wishes of any
person or persons”.11 In State Vs. Zia ur Rehman12, the Court held that the judiciary, in exercise
of its judicial power, could not strike down a provision of the Constitution. Since, the Supreme
Court itself was the creature of the Constitution, it could neither claim, nor had the right to
strike down the provision of the Constitution. In the case of Islamic Republic of Pakistan Vs.
Abdul Wali Khan13, Justice Hamood ur Rehman, while quoting his own decision in the case of
10
PLD 1963 SC 486.
11
PLD 1963 SC 486, 511.
12
PLD 1973 SC 49.
13
PLD 1976 SC 57.
Province of East Pakistan Vs. Siraj ul Haq Patwari14 said that “the Court should lean in favor
of upholding the constitutionality of a legislation and it is, therefore, incumbent upon Courts
getting into the discussion of whether the fundamental rights can be abrogated through a
constitutional amendment, said that the issue before this Court is to decide that whether the
Court can strike down any provision for being violative or repugnant. To this question, their
While deciding the case of Federation of Pakistan Vs. United Sugar Mills15, the Court
vehemently denied the power of Supreme Court to set aside a constitutional amendment, by
relying upon the case of Zia ur Rehman16, that, in Pakistan “...a constitutional provision cannot
be challenged on the ground of being repugnant to what are sometimes stated as “national
Legislature in accordance with the procedure laid down by the Constitution...” In Al-Jehad
Trust Vs. Federation of Pakistan17, the Court, instead of adopting the basic structure doctrine,
pressed in to service the rule of interpretation that if there is a conflict, the provision which
contains lesser rights will yield in favor of the provision which contains higher right.
In Mahmood Khan Achakzai Vs. Federation of Pakistan18, it was held that the
“…freedom bestowed upon the parliament in clause (6) of Article 239 after amendment does
not include power to amend those provisions of the Constitution by which would be altered
blended with Islamic Provisions”. The Court finally decided that “[i]t is open to the Parliament
14
PLD 1966 SC 854.
15
PLD 1977 SC 397.
16
PLD 1973 SC 49.
17
PLD 1996 SC 324.
18
PLD 1997 SC 426.
contemplated under Article 239 as long as basic characteristics of federalism, parliamentary
democracy and Islamic provisions as envisaged in the Objective Resolution/ Preamble of the
Constitution of 1973 which now stands as substantive part of the Constitution in the shape of
2A are not touched.” While rejecting the basic structure theory, it was held that “[i]t can, thus,
be said that in Pakistan there is a consistent view from the very beginning that a provision of
the Constitution cannot be struck down holding that it is violative of any prominent feature,
characteristic or structure of the Constitution. The theory of basic structure had thus completely
been rejected.
In Wukula Mahaz Barai Tahafaz Dastoor Vs. Federation of Pakistan19 the Court held
that an impugned Constitutional amendment which tends to destroy any of the basic features
of the Constitution without which the State could not have been run as was originally mandated
by the framers of the Constitution cannot be upheld as it destroy the basic feature of the
Constitution. However, the Court held that what are the basic essential features of the
Constitution of Pakistan is yet to be answered with clarity. The Court quoted three basic
features of the Constitution, as narrated by the counsel for Petitioners; “representative form of
Government, Islamic concept of democracy and independence of judiciary.” The Court held
that the concept has remained alien to the Courts of our country, and has not been consistently
applied in Pakistan.
In Syed Zafar Ali Shah Vs. Federation of Pakistan20, it was held that the basic features
government blended with Islamic Provisions, could not be altered even by the Parliament.
While deciding upon the coup of Musharraf, the Court held that he could amend the
Constitution, but he could not alter the basic structure of the Constitution, which included the
19
PLD 1998 SC 1263.
20
PLD 2000 SC 869.
abovementioned features.
In 2005, in the case of Pakistan Lawyer's Forum Vs. Federation of Pakistan,21 the
Supreme Court while deciding the constitutionality of 17th Amendment to the Constitution,
Constitution, however, there are limitations on the power of Parliament to make amendments.
It was held that by the judiciary but by the body politics of the country, Furthermore, it was
observed that this Court can only set aside a constitutional amendment if it is not passed in
accordance with the procedure of passing an amendment as laid down in the Constitution.
Thus, in the context of Pakistan, as opposed to Indian jurisprudence, the issue pertaining
to the basic structure of the constitutions has been only elusively discussed by the legal
fraternity. Until recently, jurisprudential history of Pakistan, with respect to the doctrine of
basic structure, was brimming with ambiguity and vague references to some abstract notion of
the basic structure of the constitutions. However, the judgment of Supreme Court, District Bar
The 21st Amendment to the Constitution was passed through an Amendment Act, on
06th January, 2015 to remain as a part of the Constitution for a period of two years. It is
imperative to discuss the certain parts of the Amendment Act. The preamble stated that
'extraordinary situation and circumstances' exists which have put the country in crisis. In sum,
this proviso has created a judicial system, which would work “in aid of” the Supreme Court of
21
PLD 2005 SC 719.
22
PLD 2015 SC 401.
THE CASE OF DISTRICT BAR ASSOCIATION v. THE FEDERATION OF
PAKISTAN
held that it had intrinsic powers to review the constitutionality of a constitutional amendment
passed by the Parliament. While the 902-page judgment has been hailed as an ostensibly
favorable instance of the current trend of Asian nations to uphold the Basic Structure Doctrine.
In the decision, the petitions challenging the 18th Amendment (laying down a new
procedure of judicial appointments) and 21st Amendment (setting up a series of military courts
to try cases involving terrorism) to the Constitution were heard together as they involved a
common constitutional question as to whether there are any limitations on the powers of the
Parliament to amend the Constitution and whether the Courts possess jurisdiction to strike
questions in the affirmative, saying that Article 239(5)23 and Art. 239(6)24 still left room for
The majority verdict asserted that, from State v. Zia Ur Rahman to Nadeem Ahmed v.
Federation of Pakistan, the Court has consistently held that the BSD has been
recognized only to the extent of identifying salient or fundamental features of the Constitution.
On the other hand, Chief Justice Nasir-ul-Mulk’s opined that the foundations of arguments for
Basic Structure Doctrine in Pakistan are shaky.25 Quoting a stray remark from Mahmood Khan
23
“no amendment of the Constitution shall be called in question in any court on any ground whatsoever”,
Constitution of Islamic Republic of Pakistan, Art. 239(5).
24
“for the removal of doubt, it is hereby declared that there is no limitation whatever on the power of Parliament
to amend any of the provisions of the Constitution”, Constitution of Islamic Republic of Pakistan, Art. 239(6).
25
District Bar Association (Rawalpindi) v. Federation of Pakistan, PLD 2015 SC 401.
Federation of Pakistan and a restriction imposed by the SC on military dictator Pervez
Musharraf, in Zafar Ali Shah v. Pervez Musharraf Chief Executive of Pakistan, he declared that
nowhere has such a basic structure as commonly understood in India to be left deliberately
The Chief Justice, along with Justice Rahman, argued that the difference in politico-
judicial histories of India and Pakistan warrant the assertion that the BSD, as developed in a
foreign jurisdiction like India, cannot be similarly applied “unthinkingly” to Pakistan, and that
the debate with respect to the substantive vires of an amendment to the Constitution is
democracy), not by the judiciary.26 Justice Nisar, concurring, made a passing remark that the
earlier trend of passing draconian amendments had generally ceased and therefore, unlike their
unique beneficial intent and effect.27 This argument appears to attribute the very ‘heroism’ to
elected representatives, which he denounced in case of the Judiciary, and seems optimistic in
its assumption that the Parliament would not relapse into such tyranny.
Justice Khawaja argued that, on an organic reading of the Constitution, the Parliament’s
power to amend the Constitution is constrained by limitations which are both political and
subject to judicial review, that the expression “amendment” (ordinarily implying correction
and improvement) does not extend to abrogation or destruction and, therefore the Court has the
affirmed that the Preamble, on account of its clarity in issuing nine People’s directives, is
unlike the hopelessly vague Indian Constitution’s Preamble, and therefore judges in Pakistan
need not rely on individual proclivities to circumscribe powers of State organs, like Indian
26
Ibid, 471.
27
Ibid, 535-536.
28
Ibid, 490.
judges do.29 The dispensation of representatives’ fiduciary obligations in Pakistan would thus
be reviewable by the Judiciary, through the mechanisms provided by the Constitution itself–
the un-amendable Salient Features embodied by the Objectives Resolution 1949, and not
differs from the SFD recognized by the 8 judges in concurrence with Justice Azmat Saeed-
while the former rooted them in the Preamble, the latter said that the SC “is vested with the
jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient
Features”.30 While they did not provide an exhaustive list, the 8 judges expressly recognized
certainly included in the Prominent Characteristics, forming the Salient Features”.31 Thus the
13 judges who approved the SFD themselves did not articulate a unanimous theory of what the
SFD precisely entails, and whether the prominent features of the Constitution or judicial
discretion would reign supreme while interpreting Salient Features, which may lead to
Justice Khosa posited that acceptance of any one of the basic features as a touchstone
or a test of repugnancy or contrariety qua the other provisions of the Constitution would render
the entire Constitution vulnerable to challenge in courts of law.32 This would inevitably call for
value judgment by the courts instead of allowing the people deciding as to what is good for
them, which “would bring serious damage and destruction, if not doom,” to the present
constitutional system in Pakistan.33 Further, Justice Nisar asserted that the opening words of
the resolution “…the will of the people of Pakistan to establish an order -Wherein the State
29
Ibid, 532-533.
30
Ibid, 772.
31
Ibid, 633.
32
Ibid, 986.
33
Ibid, 878.
shall exercise its powers and authority through the chosen representatives of the people”
succinctly delineates sovereignty and authority in the body of elected representatives, not
ANALYSIS
The Basic Structure Doctrine finds no textual basis in the constitutions of either
Pakistan or India. It is entirely the creation of the judiciary. Justice Aharon Barak of the
Supreme Court of Israel has justified the ‘unconstitutional constitutional amendments’ doctrine
as being little different from judicial review of ordinary legislation.35 This essay disagrees with
this view as applied to the basic structure doctrine. The counter-majoritarian argument against
judicial review of legislation is well known. Yet, in most jurisdictions that have established
Constitutional Courts, the constitution itself grants the power of judicial review. Thus it can be
the majority rule exercised by parliament.36 The people who ratified the constitution approved
of judicial review, and that takes much of the sting away from such arguments.37 But the basic
structure doctrine cannot look to the text of the constitution to support itself. Any power to
declare a constitutional amendment void is glaring in its absence in the text of the constitutions
in the same way that judicial review of legislation may be. It lacks that democratic legitimacy
34
Ibid, 474.
35
Aharon Barak, Unconstitutional Constitutional Amendments, 44 (3) Israel Law Review 321, 336 (2001)
36
Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central
and Eastern Europe, 46 (2nd ed. 2014)
37
Of course in jurisdictions like the United States such arguments seem to have more force because there is no
power of judicial review expressly given in the Constitution.
38
Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central
and Eastern Europe, 46 ( 2nd ed. 2014)
inherent in a provision that is found in the text of the constitution. In jurisdictions like Pakistan,
the counter-majoritarian criticisms are aggravated because of this. Any such doctrine
contradicts Article 239 (5) and (6) of the Constitution of Pakistan which specifically bars the
judiciary from reviewing any constitutional amendment; and goes on to state that there is no
limit on the power of Parliament to amend the constitution. In India, once the Supreme Court
had laid the groundwork for the doctrine, the legislature passed the 42nd amendment in 1976,
which determined that constitutional amendments are not subject to judicial review.39 The
Supreme Court of India would rule that this amendment was unconstitutional as it violated the
Both examples show the inherently undemocratic and counter-majoritarian role that the
basic structure doctrine plays, in a way that cannot be compared to judicial review of ordinary
legislation. A decision in ordinary judicial review can always be subject to change via a
constitutional amendment. This mitigates counter-majoritarian concerns. This is not true when
dealing with the basic structure doctrine. It is thus an undemocratic aberration, that gives the
Furthermore, while ordinary judicial review has certain parameters and limitations,
such as the rules of standing, the basic structure doctrine provides no such limitations. There
is nothing in the constitutional text of any of the abovementioned countries in South Asia that
could inform the legislature what counts as the basic structure of the Constitution, or when, for
that matter, the legislature exceeds its authority regarding it. This directly ties into my next
point. One of the main concerns raised against judicial review, especially in the contentious
debates about unenumerated rights, is that it may allow judges to roam free imposing their own
The basic structure doctrine is the manifestation of this nightmare. In Pakistan, the
39
Aharon Barak, Unconstitutional Constitutional Amendments, 44 (3) Israel Law Review 321, 333 (2001)
judiciary has conveniently described the elements of this doctrine at a very high level of
generality. Thus, democracy, a parliamentary form of government and the independence of the
judiciary are factors that form a part of this basic structure.40 Only one of these factors needs
to be highlighted to show how easily one could justify striking down any amendment under
This is a concept so broad, that the judiciary could presumably shoehorn anything and
everything under the sun to justify striking down a constitutional amendment. For example,
some views say that the Sharia is repugnant to democracy.41 Would this mean that any
constitutional amendment that sought to increase the power of Pakistan’s Federal Sharia Court
is a democratic country where Islam is the state religion and enjoys preference over other faiths.
Many would view this as an ‘undemocratic’ feature, but many in Pakistan may not. So which
idea of democracy would the judiciary follow? It would seem that the standard would be
Products42 as it asked for heightened review by the judiciary in cases concerning discrete and
insular minorities. This ties in with one of the most famous justifications for judicial review:
the protection of minorities. Putting aside the fact that it is questionable whether this is really
the best justification for judicial review of ordinary legislation. 43 It surely falls flat on its face
when attempts are made to justify something like the basic structure doctrine through it. The
basic structure doctrine has never made the protection of minorities the focal point of its
40
District Bar Association (Rawalpindi) v. Federation of Pakistan, PLD 2015 SC 401, Para 180
41
The ECt.HR took this view in Refah Partisi v. Turkey (Application No. 41340/98) (2001). A view that this
author disagrees with.
42
United States v. Carolene Products, 304 U.S. 144 (1938)
43
See Wojciech Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of
Central and Eastern Europe. Chapter 2 (2nd ed. 2014) for an alaylysisn of this justification.
legitimacy. None of the features identified by the Supreme Court of Pakistan or India point to
some overarching minority protection rationale behind the rise of the basic structure doctrine.
Dixon and Landau make, what I believe, is the strongest argument for having something
like the basic structure doctrine (or provisions that provide for invalidating constitutional
amendments in general). They argue that such principles prove useful in preventing fragile
democracies from democratic erosion.44 This is an argument similar to those made regarding
militant democracy. Although a judiciary with the power to declare constitutional amendments
unconstitutional may certainly be well suited to guard against potential amendments that might
fracture fragile democracies, I believe the basic structure doctrine is distinguishable from many
The point is that although one can argue that the basic structure doctrine can be used to
protect fragile democracies by, for example, protecting principles like the separation of powers.
The lack of a clear limiting principle is too high a cost to pay. The Indian Supreme Court went
on a frolic of its own with regards to the interpretation of ‘compensation’ in the constitution.
amendment that attempted to create a temporary provision that allowed the civil service regime
to ratify all incumbent office holders in their posts during a three-year period without opening
their positions to civil service compensation.46 But as Dixon and Landau point out, “the shape
of the meritocratic regime, and in particular its application to incumbents, appear to raise a
complex balancing of values that would normally be within the realm of democratic
44
Dixon and Landau, Transnational constitutionalism and a limited doctrine of unconstitutional constitutional
amendment, ICON Vol. 13 No.3, 606, 611 (2015). Also see Samuel Issachroff, Constitutional Courts and
Democratic Hedging, 99 Geo. L. J. 961, 999 -1001 (2011).
45
See Waqqas Mir, Saying not what the Constitution is…but what it should be: Comment on the Judgment on the
18th and 21st Amendments to the Constitution. Volume 2 LUMS Law Journal 64 (2015), for this argument being
made about the ruling in Pakistan. In India, consider the case of Indira Gandhi v. Raj Narain, A.I.R. 1975 S.C.
229 (India). And in Bangladesh the 8th Amendment was directed at the judicial system.
46
Dixon and Landau, Transnational constitutionalism and a limited doctrine of unconstitutional constitutional
amendment, ICON Vol. 13 No.3, 606, 621 (2015)
contestation.”47 But the people were robbed of this democratic process by the judiciary.
These examples show that in the absence of a limiting principle in the text of the
constitution, judge made innovations like the basic structure doctrine can interfere in nearly
any subject of a constitutional amendment. It does not need to be even remotely related to any
principle of militant democracy. Thus, the adoption of the basic structure doctrine comes at too
exist in fragile democracies, then the best solution would be to adopt eternity clauses that are
CONCLUSION
cannot be treated the same way as judicial review of ordinary legislation, as Justice Barak
suggested. First, as I have explained, the basic structure doctrine exacerbates the problems of
counter-majoritarianism which cannot be justified the same way that it can be for judicial
review of ordinary legislation. The tendency for judges to impose their own subjective views
on the people is aggravated in the realm of the basic structure doctrine. Furthermore, while
judicial review may have some justification as a necessary tool for the protection of vulnerable
minorities, the basic structure doctrine has never espoused such a rationale to justify itself. The
doctrine has mostly been used to protect the judiciary. But this means that it can possibly be
used in the militant democracy context. However, this paper has argued that the doctrine is too
malleable and cabining it within specific boundaries is too elusive a task Proponents of the use
of the doctrine should ponder over the very apt observation of Justice Nisar of the Supreme
Court of Pakistan who voted against the use of the doctrine: “[T]he Constitution does not end
47
Ibid.
(it certainly did not begin) with the Judges, and the courts would do well to remember that.”48
48
District Bar Association (Rawalpindi) v. Federation of Pakistan, PLD 2015 SC 401.