Moving from the Basic Structure Towards a Permanent Structure: From Positive Law to Natural Law

Prof. (Dr.) Devinder Singh, Dr. Deepak Kumar Srivastava, and Surya Dev Singh Bhandari examine the limitations of the basic structure doctrine in ensuring long-term constitutional integrity. Drawing from historical precedents and jurisprudential debates, the authors argue for a transition towards a ‘permanent structure’ rooted in natural law principles, offering a framework that could better safeguard fundamental constitutional values from transient political upheavals. The authors explore how legal history—from Nazi Germany’s misuse of constitutional mechanisms to consolidate absolute power to postcolonial India’s constitutional amendments—illustrates the fragility of constitutional safeguards in the face of political opportunism. Engaging with jurists like Hans Kelsen, Carl Schmitt, and Maurice Hauriou, they propose an alternative: a hierarchical framework that situates constitutional values within a ‘permanent structure’ rooted in natural law philosophy. This, they argue, would limit even a future constituent assembly’s ability to undermine certain fundamental rights and democratic principles.

CALJ Volume IX Issue I_Moving to Permanent Structure.pdf

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