Chapter

Amending Power

Sudhir Krishnaswamy

in Democracy and Constitutionalism in India

Published in print January 2011 | ISBN: 9780198071617
Published online September 2012 | e-ISBN: 9780199081455 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198071617.003.0001
Amending Power

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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.

Keywords: Supreme Court; basic structure review; judicial review; basic structure doctrine; constitutional amendments; express limits; implied limits; constitution; amending power; constitutional law

Chapter.  15608 words. 

Subjects: Constitutional and Administrative Law

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