Legitimacy of the Basic Structure Doctrine

Sudhir Krishnaswamy

in Democracy and Constitutionalism in India

Published in print January 2011 | ISBN: 9780198071617
Published online September 2012 | e-ISBN: 9780199081455 | DOI:
Legitimacy of the Basic Structure Doctrine

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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.

Keywords: Richard Fallon; basic structure doctrine; legitimacy; constitutional interpretation; judicial role; judicial review; judicial supremacy; sovereignty; constitutional meanings; Supreme Court

Chapter.  23982 words. 

Subjects: Constitutional and Administrative Law

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