Chapter

Applying Basic Structure Review

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/9780198071617.003.0003
Applying Basic Structure Review

More Like This

Show all results sharing this subject:

  • Constitutional and Administrative Law

GO

Show Summary Details

Preview

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.

Keywords: Supreme Court; basic structure doctrine; basic structure review; state action; constitutional amendments; judicial review; executive action; judicial deference; administrative law review; hard unconstitutionality review

Chapter.  22999 words. 

Subjects: Constitutional and Administrative Law

Full text: subscription required

How to subscribe Recommend to my Librarian

Buy this work at Oxford University Press »

Users without a subscription are not able to see the full content. Please, subscribe or login to access all content.