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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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Amending Power

Amending Power

The Constitutional Basis for Basic Structure Review

(p.1) 1 Amending Power
Democracy and Constitutionalism in India

Sudhir Krishnaswamy

Oxford University Press

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

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