“POST-COLONIAL CONSTITUTIONALISM AND THE BASIC STRUCTURE DOCTRINE: A COMPARATIVE STUDY OF INDIA AND SOUTH AFRICA”
AUTHOR – UTKARSH DIXIT, PURSUING LLM (IP), AMITY UNIVERSITY NOIDA
BEST CITATION – UTKARSH DIXIT, “POST-COLONIAL CONSTITUTIONALISM AND THE BASIC STRUCTURE DOCTRINE: A COMPARATIVE STUDY OF INDIA AND SOUTH AFRICA”, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 5 (14) OF 2025, PG. 133-142, APIS – 3920 – 0001 & ISSN – 2583-2344. DOI – https://doi.org/10.65393/DWKY2574
Abstract
This paper conducts a comparative analysis of two seminal models of constitutional unamend ability in the post-colonial world: India’s judicially crafted “Basic Structure Doctrine” and South Africa’s textually explicit constitutional supremacy. Its central research question explores how these distinct mechanisms represent analogous, yet contextually specific, responses to the threat of majoritarian authoritarianism and the erosion of transformative constitutional values. Employing a methodology of comparative constitutional analysis, the study juxtaposes the historical genesis, doctrinal development, and practical application of both systems. The key finding is that while both nations share a profound commitment to protecting foundational principles like democracy, dignity, and equality from legislative override, they diverge fundamentally in method. India’s Supreme Court developed an implicit, substantive limitation on parliamentary power through judicial innovation, creating a flexible but often contested doctrine. Conversely, South Africa’s Constitution pre-emptively established a supreme legal order with stringent procedural entrenchment, offering greater clarity but less judicial discretion. The paper concludes that both models are effective, though imperfect, guardians of transformative constitutionalism. Their comparative success hinges on their ability to balance democratic legitimacy with robust judicial protection, offering vital lessons for constitutional design in post-colonial societies navigating the tensions between majority rule and minority rights.