Sudhir Krishnaswamy
- Published in print:
- 2011
- Published Online:
- September 2012
- ISBN:
- 9780198071617
- eISBN:
- 9780199081455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198071617.003.0005
- Subject:
- Law, Constitutional and Administrative Law
The basic structure doctrine has, since its inception in Kesavananda Bharati v. State of Kerala in 1973, often been criticized as being illegitimate. This chapter examines the key challenges to the ...
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The basic structure doctrine has, since its inception in Kesavananda Bharati v. State of Kerala in 1973, often been criticized as being illegitimate. This chapter examines the key challenges to the legitimacy (including moral legitimacy, legal legitimacy, and sociological legitimacy) of the basic structure doctrine by engaging directly with the normative arguments about legitimacy of the doctrine while building on arguments of legal doctrine carried out so far. It focuses on the mode of constitutional interpretation and the judicial role in creating and sustaining the use of the basic structure doctrine, and considers Richard Fallon's account of the concept of legitimacy in constitutional theory. It also discusses express constitutional meanings, implied constitutional meanings, the doctrine of implied limitations, the doctrine of necessary implication, structural interpretation, exclusivity of amending power, and judicial review. Finally, the chapter explores alternative accounts of the concept of sovereignty advanced by the Supreme Court and academic commentators as underlying the basic structure doctrine: judicial supremacy, popular sovereignty, and shared sovereignty.Less
The basic structure doctrine has, since its inception in Kesavananda Bharati v. State of Kerala in 1973, often been criticized as being illegitimate. This chapter examines the key challenges to the legitimacy (including moral legitimacy, legal legitimacy, and sociological legitimacy) of the basic structure doctrine by engaging directly with the normative arguments about legitimacy of the doctrine while building on arguments of legal doctrine carried out so far. It focuses on the mode of constitutional interpretation and the judicial role in creating and sustaining the use of the basic structure doctrine, and considers Richard Fallon's account of the concept of legitimacy in constitutional theory. It also discusses express constitutional meanings, implied constitutional meanings, the doctrine of implied limitations, the doctrine of necessary implication, structural interpretation, exclusivity of amending power, and judicial review. Finally, the chapter explores alternative accounts of the concept of sovereignty advanced by the Supreme Court and academic commentators as underlying the basic structure doctrine: judicial supremacy, popular sovereignty, and shared sovereignty.
Sudhir Krishnaswamy
- Published in print:
- 2011
- Published Online:
- September 2012
- ISBN:
- 9780198071617
- eISBN:
- 9780199081455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198071617.003.0003
- Subject:
- Law, Constitutional and Administrative Law
After the conception of the basic structure doctrine in Kesavananda Bharati v. State of Kerala, a clear type of basic structure review of constitutional amendments emerges in Indira Gandhi v. Raj ...
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After the conception of the basic structure doctrine in Kesavananda Bharati v. State of Kerala, a clear type of basic structure review of constitutional amendments emerges in Indira Gandhi v. Raj Narain. In this case, the Supreme Court identifies different types of basic structure review of constitutional amendments: namely, an extension of Article 13-type judicial review for compliance with fundamental rights to constitutional amendments, or an independent new form of judicial review. This chapter contends that the court's approach to basic structure review of executive action fails to articulate the relationship between basic structure review and administrative law review of executive action. It considers three issues related to the level at which courts scrutinize state action under the basic structure doctrine: that basic structure review ensures compliance with principles and not rules; whether basic structure review may be characterized as a soft incompatibility review rather than a hard unconstitutionality review; and whether judicial deference has any role to play in basic structure review.Less
After the conception of the basic structure doctrine in Kesavananda Bharati v. State of Kerala, a clear type of basic structure review of constitutional amendments emerges in Indira Gandhi v. Raj Narain. In this case, the Supreme Court identifies different types of basic structure review of constitutional amendments: namely, an extension of Article 13-type judicial review for compliance with fundamental rights to constitutional amendments, or an independent new form of judicial review. This chapter contends that the court's approach to basic structure review of executive action fails to articulate the relationship between basic structure review and administrative law review of executive action. It considers three issues related to the level at which courts scrutinize state action under the basic structure doctrine: that basic structure review ensures compliance with principles and not rules; whether basic structure review may be characterized as a soft incompatibility review rather than a hard unconstitutionality review; and whether judicial deference has any role to play in basic structure review.
Sudhir Krishnaswamy
- Published in print:
- 2011
- Published Online:
- September 2012
- ISBN:
- 9780198071617
- eISBN:
- 9780199081455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198071617.003.0004
- Subject:
- Law, Constitutional and Administrative Law
In Kesavananda Bharati v. State of Kerala, the Indian Supreme Court announced the basic structure doctrine, but it fell to later decisions to elaborate on the nature and character of basic features ...
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In Kesavananda Bharati v. State of Kerala, the Indian Supreme Court announced the basic structure doctrine, but it fell to later decisions to elaborate on the nature and character of basic features and to specify the mode by which they may be identified. At various points the Court has suggested that democracy, secularism, rule of law, federalism, judicial review, separation of powers, among others, are basic features of the Constitution. A first step to clarify the identity of basic features of the Constitution is to scrutinize the important judicial opinions in several cases such as Indira Gandhi v. Raj Narain, as well as the early speculations in Kesavananda, in order to identify the main arguments and concerns about the basic features of the Constitution. This chapter argues that the basic structure doctrine seeks to identify ‘basic features’ of the constitution, as distinguished from core articles or ‘integral’ parts of it. It also contends that the Supreme Court is right to refuse to provide an exhaustive catalogue of basic features in a legislative mode.Less
In Kesavananda Bharati v. State of Kerala, the Indian Supreme Court announced the basic structure doctrine, but it fell to later decisions to elaborate on the nature and character of basic features and to specify the mode by which they may be identified. At various points the Court has suggested that democracy, secularism, rule of law, federalism, judicial review, separation of powers, among others, are basic features of the Constitution. A first step to clarify the identity of basic features of the Constitution is to scrutinize the important judicial opinions in several cases such as Indira Gandhi v. Raj Narain, as well as the early speculations in Kesavananda, in order to identify the main arguments and concerns about the basic features of the Constitution. This chapter argues that the basic structure doctrine seeks to identify ‘basic features’ of the constitution, as distinguished from core articles or ‘integral’ parts of it. It also contends that the Supreme Court is right to refuse to provide an exhaustive catalogue of basic features in a legislative mode.
Sudhir Krishnaswamy
- Published in print:
- 2011
- Published Online:
- September 2012
- ISBN:
- 9780198071617
- eISBN:
- 9780199081455
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198071617.001.0001
- Subject:
- Law, Constitutional and Administrative Law
The basic structure doctrine was announced by the Supreme Court in Kesavananda Bharati v. State of Kerala in 1973. This book argues that basic structure review in India is an independent and distinct ...
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The basic structure doctrine was announced by the Supreme Court in Kesavananda Bharati v. State of Kerala in 1973. This book argues that basic structure review in India is an independent and distinct type of constitutional judicial review which applies to all forms of state action to ensure that such action does not ‘damage or destroy’ the ‘basic features of the Constitution’. These basic features of the constitution are identified through a common law technique and are general constitutional rules which are supported by several provisions of the Constitution. The book argues that the basic structure doctrine like other types of constitutional judicial review possesses a sound constitutional basis and rests on a sound and justifiable interpretation of the Constitution. The legitimacy of basic structure review may be assessed under three categories: legal, moral, and sociological. The legal legitimacy of such review is established by defending a structuralist interpretation as a coherent and justifiable model of constitutional interpretation. The moral legitimacy of basic structure review rests on a rejection of majoritarian versions of democracy and the adoption of a dualist model of deliberative decision-making in a constitutional democracy. The sociological legitimacy of the doctrine is, to a large extent, contingent on the success of the moral and legal legitimacy arguments.Less
The basic structure doctrine was announced by the Supreme Court in Kesavananda Bharati v. State of Kerala in 1973. This book argues that basic structure review in India is an independent and distinct type of constitutional judicial review which applies to all forms of state action to ensure that such action does not ‘damage or destroy’ the ‘basic features of the Constitution’. These basic features of the constitution are identified through a common law technique and are general constitutional rules which are supported by several provisions of the Constitution. The book argues that the basic structure doctrine like other types of constitutional judicial review possesses a sound constitutional basis and rests on a sound and justifiable interpretation of the Constitution. The legitimacy of basic structure review may be assessed under three categories: legal, moral, and sociological. The legal legitimacy of such review is established by defending a structuralist interpretation as a coherent and justifiable model of constitutional interpretation. The moral legitimacy of basic structure review rests on a rejection of majoritarian versions of democracy and the adoption of a dualist model of deliberative decision-making in a constitutional democracy. The sociological legitimacy of the doctrine is, to a large extent, contingent on the success of the moral and legal legitimacy arguments.
Sudhir Krishnaswamy
- Published in print:
- 2011
- Published Online:
- September 2012
- ISBN:
- 9780198071617
- eISBN:
- 9780199081455
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198071617.003.0001
- Subject:
- Law, Constitutional and Administrative Law
Between 1951 and 1973, the Indian Supreme Court accepted two separate arguments for judicial review of constitutional amendments: first, constitutional amendments are subject to judicial review under ...
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Between 1951 and 1973, the Indian Supreme Court accepted two separate arguments for judicial review of constitutional amendments: first, constitutional amendments are subject to judicial review under Article 13 (express limits) and second, that constitutional amendments are subject to basic structure review (implied limits). This chapter evaluates these two arguments in support of judicial review of constitutional amendments. It argues that constitutional amendments may be subject to implied limits whereby the courts may review a particular constitutional amendment to assess whether it destroys or abrogates the basic features of the constitution. It also examines substantive limits on amending power and the Supreme Court's use of the basic structure doctrine for the first time in Kesavananda Bharati v. State of Kerala to subject constitutional amendments to judicial review. Since that ruling, the doctrine has been used by the Supreme Court in several significant constitutional law cases not all of which relate to constitutional amendments.Less
Between 1951 and 1973, the Indian Supreme Court accepted two separate arguments for judicial review of constitutional amendments: first, constitutional amendments are subject to judicial review under Article 13 (express limits) and second, that constitutional amendments are subject to basic structure review (implied limits). This chapter evaluates these two arguments in support of judicial review of constitutional amendments. It argues that constitutional amendments may be subject to implied limits whereby the courts may review a particular constitutional amendment to assess whether it destroys or abrogates the basic features of the constitution. It also examines substantive limits on amending power and the Supreme Court's use of the basic structure doctrine for the first time in Kesavananda Bharati v. State of Kerala to subject constitutional amendments to judicial review. Since that ruling, the doctrine has been used by the Supreme Court in several significant constitutional law cases not all of which relate to constitutional amendments.
Raju Ramachandran and Mythili Vijay Kumar Thallam
- Published in print:
- 2018
- Published Online:
- August 2019
- ISBN:
- 9780199485079
- eISBN:
- 9780199096992
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199485079.003.0009
- Subject:
- Law, Legal Profession and Ethics
This essay deals with the ramifications of the judgment in the National Judicial Appointments Commission Case for the basic structure doctrine. The doctrine of basic structure places limits on the ...
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This essay deals with the ramifications of the judgment in the National Judicial Appointments Commission Case for the basic structure doctrine. The doctrine of basic structure places limits on the legislative power to amend the Constitution, and owes its origins to the judgment of the thirteen-judge bench of the Supreme Court in the Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225). According to the authors, the judges in the NJAC Case, by striking down the 99th Amendment to the Constitution of India for violating the basic structure, appear to have conceptually expanded the remit of the basic structure doctrine significantly. They conclude that the contents of what was held to be part of basic structure in the NJAC Case are largely incapable of being defended normatively. Against this background, they chart the significance of the judgment on constitutional law and separation of powers questions in the future.Less
This essay deals with the ramifications of the judgment in the National Judicial Appointments Commission Case for the basic structure doctrine. The doctrine of basic structure places limits on the legislative power to amend the Constitution, and owes its origins to the judgment of the thirteen-judge bench of the Supreme Court in the Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225). According to the authors, the judges in the NJAC Case, by striking down the 99th Amendment to the Constitution of India for violating the basic structure, appear to have conceptually expanded the remit of the basic structure doctrine significantly. They conclude that the contents of what was held to be part of basic structure in the NJAC Case are largely incapable of being defended normatively. Against this background, they chart the significance of the judgment on constitutional law and separation of powers questions in the future.
A.G. Noorani
- Published in print:
- 2006
- Published Online:
- October 2012
- ISBN:
- 9780195678291
- eISBN:
- 9780199080588
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195678291.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This chapter deals with the evolution of the ‘basic structure’ doctrine, which states that any part of the Constitution may be amended by following the procedure prescribed in Article 368, but no ...
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This chapter deals with the evolution of the ‘basic structure’ doctrine, which states that any part of the Constitution may be amended by following the procedure prescribed in Article 368, but no part may be so amended as to ‘alter the basic structure’ of the Constitution. The arguments related to limitation on amending powers in the Golak Nath Case and the Kesavananda Case are examined. It then considers the contributions of German jurist and scholar, Professor Dietrich Conrad, to the theory of ‘implied limitations’ on amending power. It suggests that it was no coincidence that a German jurist had thought of implied limitations on the amending power. The Germans learnt from the bitter experience of the Nazi era.Less
This chapter deals with the evolution of the ‘basic structure’ doctrine, which states that any part of the Constitution may be amended by following the procedure prescribed in Article 368, but no part may be so amended as to ‘alter the basic structure’ of the Constitution. The arguments related to limitation on amending powers in the Golak Nath Case and the Kesavananda Case are examined. It then considers the contributions of German jurist and scholar, Professor Dietrich Conrad, to the theory of ‘implied limitations’ on amending power. It suggests that it was no coincidence that a German jurist had thought of implied limitations on the amending power. The Germans learnt from the bitter experience of the Nazi era.
Harish Narasappa
- Published in print:
- 2018
- Published Online:
- January 2019
- ISBN:
- 9780199484669
- eISBN:
- 9780199093717
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199484669.003.0003
- Subject:
- Law, Constitutional and Administrative Law
In the first part, the interpretation and application of the rule of law by Indian courts, primarily the constitutional bench of the Supreme Court of India is analysed. A review of the major ...
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In the first part, the interpretation and application of the rule of law by Indian courts, primarily the constitutional bench of the Supreme Court of India is analysed. A review of the major principles laid down by the Supreme Court in relation to equality and liberty is followed by a critical examination of the innovative jurisprudence developed by the Court while interpreting Article 21. The principles of judicial independence, separation of powers, and evolution of the basic structure doctrine, as well as their relationship with the rule of law is critically evaluated. In the second part the political understanding of the rule of law is examined, particularly focusing on Nehru’s comment that the rule of law should follow the ‘rule of life’ and its meaning and continued impact on lawmaking. The chapter concludes by identifying four broad themes of the Rule of Law in India.Less
In the first part, the interpretation and application of the rule of law by Indian courts, primarily the constitutional bench of the Supreme Court of India is analysed. A review of the major principles laid down by the Supreme Court in relation to equality and liberty is followed by a critical examination of the innovative jurisprudence developed by the Court while interpreting Article 21. The principles of judicial independence, separation of powers, and evolution of the basic structure doctrine, as well as their relationship with the rule of law is critically evaluated. In the second part the political understanding of the rule of law is examined, particularly focusing on Nehru’s comment that the rule of law should follow the ‘rule of life’ and its meaning and continued impact on lawmaking. The chapter concludes by identifying four broad themes of the Rule of Law in India.
Richard Albert
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190640484
- eISBN:
- 9780190640514
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190640484.003.0005
- Subject:
- Law, Constitutional and Administrative Law
Constitutions sometimes codify unamendable rules. These unamendable rules are resistant to legal forms of change. They cannot be altered using the codified rules of amendment. Nor can they be ...
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Constitutions sometimes codify unamendable rules. These unamendable rules are resistant to legal forms of change. They cannot be altered using the codified rules of amendment. Nor can they be repealed. The only properly legal way to change them is to rewrite the constitution. Why do constitutional designers codify these unamendable rules? This chapter explains seven reasons why constitutional designers choose to codify unamendable rules. In explaining these reasons, the chapter discusses many different examples of codified unamendability around the world. This chapter also explains that unamendability can arise in two other forms. First, interpretive unamendability emerges from a judicial decision or an unwritten constitutional norm rooted in the dialogic interactions of political actors. Examples include the basic structure doctrine in India and the substitution of the constitution doctrine in Colombia. Second, constructive unamendability arises as a result of the practical impossibility of gathering the majorities required to amend a rule despite that rule being freely amendable in theory. This chapter illustrates how constructive unamendability occurs and operates with reference to the phenomenon of constitutional veneration, the use of omnibus amendment bills in Canada, the challenge of multi-party incompatibility, and the Equal Suffrage Clause in the U.S. Constitution,. This chapter then connects the three varieties of unamendability to the discussion in Chapter 3 on measuring amendment difficulty. This chapter shows that unamendability further complicates the effort to measure amendment difficulty across jurisdictions and makes it impossible to do so with any reliability. This chapter considers constitutions from around the globe.Less
Constitutions sometimes codify unamendable rules. These unamendable rules are resistant to legal forms of change. They cannot be altered using the codified rules of amendment. Nor can they be repealed. The only properly legal way to change them is to rewrite the constitution. Why do constitutional designers codify these unamendable rules? This chapter explains seven reasons why constitutional designers choose to codify unamendable rules. In explaining these reasons, the chapter discusses many different examples of codified unamendability around the world. This chapter also explains that unamendability can arise in two other forms. First, interpretive unamendability emerges from a judicial decision or an unwritten constitutional norm rooted in the dialogic interactions of political actors. Examples include the basic structure doctrine in India and the substitution of the constitution doctrine in Colombia. Second, constructive unamendability arises as a result of the practical impossibility of gathering the majorities required to amend a rule despite that rule being freely amendable in theory. This chapter illustrates how constructive unamendability occurs and operates with reference to the phenomenon of constitutional veneration, the use of omnibus amendment bills in Canada, the challenge of multi-party incompatibility, and the Equal Suffrage Clause in the U.S. Constitution,. This chapter then connects the three varieties of unamendability to the discussion in Chapter 3 on measuring amendment difficulty. This chapter shows that unamendability further complicates the effort to measure amendment difficulty across jurisdictions and makes it impossible to do so with any reliability. This chapter considers constitutions from around the globe.
Richard Albert
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190640484
- eISBN:
- 9780190640514
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190640484.003.0001
- Subject:
- Law, Constitutional and Administrative Law
What is an amendment? This chapter shows why this question is central to the study of constitutional change. Some constitutional changes are identified as amendments but in reality may be more. ...
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What is an amendment? This chapter shows why this question is central to the study of constitutional change. Some constitutional changes are identified as amendments but in reality may be more. Whether a constitutional change is an amendment entails implications for how the change must be made, whether a court can and should evaluate its constitutionality, and what the change requires for legitimation. This chapter returns to the origins of formal amendment—to the Articles of Confederation, America’s first constitution, which codified the very first amendment rule in a national constitution—to uncover the foundations of amendment practice and what makes an amendment different from other constitutional changes. This chapter moreover raises a question about an increasingly common phenomenon that straddles the border of legality and legitimacy: the violation of amendment rules. This chapter explains that the Indian basic structure doctrine and Bruce Ackerman’s theory of constitutional moments are, at bottom, variations on the same theme we see all over the world: changes to amendment rules that occur in defiance of the rules of formal amendment. Many examples follow to illustrate this point. The chapter closes by describing and situating the importance of the chapters to follow in this book. This chapter considers constitutions from around the globe.Less
What is an amendment? This chapter shows why this question is central to the study of constitutional change. Some constitutional changes are identified as amendments but in reality may be more. Whether a constitutional change is an amendment entails implications for how the change must be made, whether a court can and should evaluate its constitutionality, and what the change requires for legitimation. This chapter returns to the origins of formal amendment—to the Articles of Confederation, America’s first constitution, which codified the very first amendment rule in a national constitution—to uncover the foundations of amendment practice and what makes an amendment different from other constitutional changes. This chapter moreover raises a question about an increasingly common phenomenon that straddles the border of legality and legitimacy: the violation of amendment rules. This chapter explains that the Indian basic structure doctrine and Bruce Ackerman’s theory of constitutional moments are, at bottom, variations on the same theme we see all over the world: changes to amendment rules that occur in defiance of the rules of formal amendment. Many examples follow to illustrate this point. The chapter closes by describing and situating the importance of the chapters to follow in this book. This chapter considers constitutions from around the globe.
Richard Albert
- Published in print:
- 2019
- Published Online:
- October 2019
- ISBN:
- 9780190640484
- eISBN:
- 9780190640514
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190640484.003.0003
- Subject:
- Law, Constitutional and Administrative Law
Some constitutional amendments are not amendments at all. They are self-conscious efforts to repudiate the essential characteristics of the constitution and to destroy its foundations. They dismantle ...
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Some constitutional amendments are not amendments at all. They are self-conscious efforts to repudiate the essential characteristics of the constitution and to destroy its foundations. They dismantle the basic structure of the constitution while at the same time building a new foundation rooted in principles contrary to the old. Changes on this scale are not properly called constitutional amendments. They are better understood as constitutional dismemberments. A constitutional dismemberment is incompatible with the existing framework of the constitution. It intends deliberately to disassemble one or more of the constitution’s elemental parts by altering a fundamental right, an important structural design, or a core aspect of the identity of the constitution. To use a rough shorthand, the purpose and effect of a constitutional dismemberment are the same: to unmake the constitution. But what, then, is a constitutional amendment? This chapter explains that there are four fundamental features to a constitutional amendment: its subject, authority, scope, and purpose. The most important feature of an amendment is its scope, which at all times must not exceed the boundaries of the existing constitution. This chapter therefore defines a constitutional amendment in terms of what it is and what it is not, with illustrations drawn from around the globe. This chapter considers constitutions from Barbados, Belize, Brazil, Canada, Dominica, Guyana, Ireland, Italy, Jamaica, Japan, New Zealand, and the United States.Less
Some constitutional amendments are not amendments at all. They are self-conscious efforts to repudiate the essential characteristics of the constitution and to destroy its foundations. They dismantle the basic structure of the constitution while at the same time building a new foundation rooted in principles contrary to the old. Changes on this scale are not properly called constitutional amendments. They are better understood as constitutional dismemberments. A constitutional dismemberment is incompatible with the existing framework of the constitution. It intends deliberately to disassemble one or more of the constitution’s elemental parts by altering a fundamental right, an important structural design, or a core aspect of the identity of the constitution. To use a rough shorthand, the purpose and effect of a constitutional dismemberment are the same: to unmake the constitution. But what, then, is a constitutional amendment? This chapter explains that there are four fundamental features to a constitutional amendment: its subject, authority, scope, and purpose. The most important feature of an amendment is its scope, which at all times must not exceed the boundaries of the existing constitution. This chapter therefore defines a constitutional amendment in terms of what it is and what it is not, with illustrations drawn from around the globe. This chapter considers constitutions from Barbados, Belize, Brazil, Canada, Dominica, Guyana, Ireland, Italy, Jamaica, Japan, New Zealand, and the United States.
