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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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Legitimacy of the Basic Structure Doctrine

Legitimacy of the Basic Structure Doctrine

(p.164) 5 Legitimacy of the Basic Structure Doctrine
Democracy and Constitutionalism in India

Sudhir Krishnaswamy

Oxford University Press

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

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