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Democracy and Constitutionalism in IndiaA Study of the Basic Structure Doctrine$
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Sudhir Krishnaswamy

Print publication date: 2011

Print ISBN-13: 9780198071617

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780198071617.001.0001

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Applying Basic Structure Review

Applying Basic Structure Review

The Limits of State Action and the Standard of Review

Chapter:
(p.70) 3 Applying Basic Structure Review
Source:
Democracy and Constitutionalism in India
Author(s):

Sudhir Krishnaswamy

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198071617.003.0003

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

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