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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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The Broadening Scope of Basic Structure Review

The Broadening Scope of Basic Structure Review

Emergency, Legislative, and Executive Powers

(p.43) 2 The Broadening Scope of Basic Structure Review
Democracy and Constitutionalism in India

Sudhir Krishnaswamy

Oxford University Press

In India, the doctrine of basic structure review was developed in the context of challenges to the validity of constitutional amendments. Ordinary legislative power and executive power is subject to judicial review by the high courts and the Supreme Court for competence and compliance with fundamental rights. The question of whether basic structure review would apply to these species of state action was considered and dismissed in Indira Gandhi v. Raj Narain. Subsequently, the court has moved away from this position and utilized basic structure review in conjunction with other available forms of review. The extension of basic structure review to emergency powers, as well as legislative and executive action, requires the court to either articulate a novel constitutional basis for such a power or offer good reasons for extending to these forms of state action the implied limitations which form the constitutional basis for basic structure review of constitutional amendments.

Keywords:   Supreme Court, basic structure review, constitutional amendments, legislative power, executive power, emergency powers, judicial review, India, implied limitations

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