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Interpreting ConstitutionsA Comparative Study$
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Jeffrey Goldsworthy

Print publication date: 2007

Print ISBN-13: 9780199226474

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199226474.001.0001

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India: From Positivism to Structuralism

India: From Positivism to Structuralism

(p.215) 5 India: From Positivism to Structuralism
Interpreting Constitutions

S. P. Sathe

Oxford University Press

The constitution of India is not merely a law prescribing a division of power and limits to power, but contains a bill of rights and positive directions to the State to establish a just social order. It incorporates the essential aspects of parliamentary democracy, federalism, provisions regarding inter-state trade, and commerce, among other features. This chapter discusses the salient features of the Indian constitution, directive principles, separation of powers, constitutional amendment, judicial review, problems and methods of constitutional interpretation, positivist and structuralist interpretation, constituent assembly and the role of the judiciary, legal positivism of the early years, external aids to interpretation, resolution of conflicts between constitutional provisions, freedom of religion, powers and privileges of legislatures, affirmative action for the weaker sections of society, freedom of speech, property rights, post-emergency judicial activism, independence of the judiciary, the court as a political institution, and institutional and cultural factors underlying constitutional interpretation.

Keywords:   India, constitutional interpretation, constitution, parliamentary democracy, federalism, separation of powers, judicial review, legal positivism, structuralism, judicial activism

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