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Indian Constitution has something called 'basic structure', defined by Basic Structure Doctrine. This doctrine is based on, and evolved from, the Supreme Court of India's decision in the most celebrated case of Keshavanada Bharti, 1972 (The case that saved Indian democracy - THE HINDU). This doctrine says that the Indian Constitution has some basic features that cannot be altered or destroyed through amendments by the parliament.

This theory in India was first introduced by Justice Mudholkar in 1964, by referring to a 1963 decision of the Supreme Court of Pakistan in which Chief Justice Cornelius held that the President of Pakistan could not alter the “fundamental features” of their Constitution. So:

  1. Does any other constitution have such basic or fundamental features defined by legislature or judiciary?
  2. Other than India and in Pakistan (before 1963), are there any major and historical cases in which a Supreme Court, or the highest court the country had, declared that such and such part(s) of the constitution cannot be amended? If yes, in which cases?
  3. Does any constitution itself have articles defining its own 'basic features'?
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  • This is hard to answer as far as comparison to other countries, without at least some detailed elaboration on how the 1972 decision defined these "basic features". Was it because of specific wording in the constitution prohibiting their change? Or because of some reasoning NOT based on constitutional wording? Was the prohibition on changing these basic features found to be absolute, or merely "requires a lot more than a simple parlamentary vote" higher procedural hurdles, similar to those required to amend US Constitution?
    – user4012
    Jul 26, 2013 at 13:37
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    Germany definitely has non-changeable parts defined in the constitution itself.
    – Anixx
    Aug 25, 2013 at 9:17
  • The answer is "yes" to all three, but it looks like other answers are covering the point.
    – ohwilleke ♦
    Dec 5, 2022 at 18:02

2 Answers 2

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Colombia has a "basic structure" doctrine which began in 2003. Thus, the Colombian Constitutional Court can hold that an amendment to the 1991 Constitution is void because violates the main features or principles of the Constitution. This main features or essential principles are built by the Constitutional Court. In other words, the essential principles do not appear in the constitutional text but in the Constitutional Court case law. (an example: http://english.corteconstitucional.gov.co/sentences/C-1040-2005.pdf In this case the Constitutional Court studied an amendment that allowed president Uribe a new term in the Presidency).

I have written some papers (sorry in Spanish) about a comparison between Colombia, Germany and the US relating to the limits to constitutional change. If you are interested, I can send them by email.

On the other hand, South Africa, Ireland, Turkey, Nepal and Bangladesh (among others) have a theory very similar to the Basic Structure doctrine in India.

Finally, Italy, France, Portugal and Germany Constitutions define the basic features of those constitutions, in some articles. Germany's Constitutional Court was the pioneer in 1951 (Southwest case) in creating or building the judicial review of amendments. In fact, Germany had a great influence on India's Supreme Court. There was a German professor (prof. Dietrich Conrad) who gave a famous Lecture in India concerning the judicial review of amendments. This Lecture was heard by some Indian Justices.

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  • The U.S. has one small unamendable provision (a bar on amendments that deny a state equal representation in the U.S. Senate).
    – ohwilleke ♦
    Dec 5, 2022 at 18:03
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    @ohwilleke So long as the state does not consent to loss of equal representation in the senate.
    – hszmv
    Dec 5, 2022 at 21:10
  • @hszmv Agreed. If everyone agrees, everything is possible.
    – ohwilleke ♦
    Dec 5, 2022 at 22:20
  • @ohwilleke: States also have constitutions, which may be subject to different rules. For example, California will allow its constitution to be "amended" by either the initiative process or a supermajority of the legislature (plus a simple majority referendum), but the constitution may only be "revised" through a constitutional convention. The Supreme Court of California has held this to be a real, substantive distinction, and has frequently had to rule on whether a given proposal would be an "amendment" or a "revision."
    – Kevin
    Dec 8, 2022 at 0:43
  • @Kevin Obviously, I wasn't talking about state constitutions or local government charters, which, at least, cannot be amended inconsistent with federal constitutional law or applicable federal statutes in addition to any internal limitations.
    – ohwilleke ♦
    Dec 8, 2022 at 1:45
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Austria has this concept. According to article 44 of the Federal Constitutional Act (B-VG), a "complete change" (Gesamtänderung) of the federal constitution requires a referendum and cannot be enacted like other constitutional amendments with a two-thirds majority of the National Council.

The German-language Wikipedia has an article on it here: Gesamtänderung der Bundesverfassung, which explains that legal experts define it as a change to the fundamental principles: republican, democratic, federal, separation of powers, rule of law, and liberal. Austria's accession to the EU was the only time a referendum happened on these grounds, it affected especially the democratic principle because it made it possible for laws to apply in Austria that had been decided even though Austrian representatives to EU institutions had mostly voted against them.

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