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Democracy and Constitutionalism in India

Sudhir Krishnaswamy

Published in print January 2011 | ISBN: 9780198071617
Published online September 2012 | e-ISBN: 9780199081455 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198071617.001.0001
Democracy and Constitutionalism in India

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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.

Keywords: India; basic structure doctrine; judicial review; constitution; democracy; legitimacy; constitutional interpretation; deliberative decision-making

Book.  280 pages. 

Subjects: Constitutional and Administrative Law

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Table of Contents

Amending Power in Democracy and Constitutionalism in India

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The Broadening Scope of Basic Structure Review in Democracy and Constitutionalism in India

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Applying Basic Structure Review in Democracy and Constitutionalism in India

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Grounds of Review in Democracy and Constitutionalism in India

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Legitimacy of the Basic Structure Doctrine in Democracy and Constitutionalism in India

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