54 Pages Posted: 4 Nov 2005 Last revised: 26 Dec 2008
Date Written: October 25, 2005
This paper concerns itself with an invention in the Indian constitutional law by the Indian Supreme Court during mid-70s, that of "Basic structure doctrine". This paper dissects the Kesavananda case that comprises of 11 separate judgments in all were delivered running to about 600 pages in the AIR manual. The paper uses various elements of the case like the reasons for the respective stands taken by each individual judgment, idiosyncrasies of the individual judges, their view of nature of Indian democracy and polity, their understanding of Indian constitutionalism, the relationship of various organs of the government under the Indian constitution, consciousness & potential of the judicial branch in our constitutional set-up and the possible roles that our judiciary plays as an important partner with the parliament in the process of nation-building. While studying the doctrine of basic structure this researcher proposes various models by which the doctrine may be identified and evaluated. The three models used to analyze the doctrine are Basic Structure and the theory of Originalism, Basic Structure as balancing tool, and Basic Structure as a tool of development. The tools are used to analyze some of the shortcomings of the basic structure doctrine in the context of underdeveloped societies and proposes a divergent and progressive approach in judicial application of constitutional principles.
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