NUJS Law Review
The Quarterly Flagship Journal of NUJS
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Volume 16 Issue 4 (2023)
Editorial Note
Editorial Note
by Board of Editors
In this note, the authors discuss the Nani A. Palkhivala Memorial Conclave organised by West Bengal National University of Juridical Sciences (‘NUJS’), Kolkata, in collaboration with the Nani A. Palkhivala Memorial Trust and was supported by the Tata Group. As part of the Conclave, NUJS also organised the Nani A. Palkhivala Memorial Essay Competition, 2023 (‘Essay Competition’). The broad theme of the Essay Competition was ‘Application of Basic Structure Doctrine to Contemporary Issues’. Submissions were
Editorial Note
by Board of Editors
In this note, the authors discuss the Nani A. Palkhivala Memorial Conclave organised by West Bengal National University of Juridical Sciences (‘NUJS’), Kolkata, in collaboration with the Nani A. Palkhivala Memorial Trust and was supported by the Tata Group. As part of the Conclave, NUJS also organised the Nani A. Palkhivala Memorial Essay Competition, 2023 (‘Essay Competition’). The broad theme of the Essay Competition was ‘Application of Basic Structure Doctrine to Contemporary Issues’. Submissions were
Other
Foreword
by Professor Upendra Baxi
In this Foreword for the Special Issue on the Basic Structure Doctrine, Professor Upendra Baxi focuses primarily on the general criticisms of the said doctrine. He then delves into a brief counter to the above criticisms. Thereafter, Professor Baxi delves into the question of differentiation between the phrases ‘basic structure’ and ‘essential features’. Lastly, he provides two aspects of basic structure: forensic freedoms (free space of argumentation in an open court—the independence of the Bar),
Foreword
by Professor Upendra Baxi
In this Foreword for the Special Issue on the Basic Structure Doctrine, Professor Upendra Baxi focuses primarily on the general criticisms of the said doctrine. He then delves into a brief counter to the above criticisms. Thereafter, Professor Baxi delves into the question of differentiation between the phrases ‘basic structure’ and ‘essential features’. Lastly, he provides two aspects of basic structure: forensic freedoms (free space of argumentation in an open court—the independence of the Bar),
Article
Harmonising Constitutional Ideals: A Modern Reassessment of the Basic Structure Doctrine
by Kartikay Agarwal & Harmanjot Kaur
The basic structure doctrine first theorised in the case of Kesavananda Bharati v. State of Kerala (‘Kesavananda Bharati’), is a judicial tool to protect and preserve the foundation of the Indian Constitution, 1950. It originated to complement further the idea of exercising restraint upon the constituent power of the Parliament. This paper is a study of the academic and historical genesis of the basic structure doctrine, developments in the doctrine post the case of Kesavananda
Harmonising Constitutional Ideals: A Modern Reassessment of the Basic Structure Doctrine
by Kartikay Agarwal & Harmanjot Kaur
The basic structure doctrine first theorised in the case of Kesavananda Bharati v. State of Kerala (‘Kesavananda Bharati’), is a judicial tool to protect and preserve the foundation of the Indian Constitution, 1950. It originated to complement further the idea of exercising restraint upon the constituent power of the Parliament. This paper is a study of the academic and historical genesis of the basic structure doctrine, developments in the doctrine post the case of Kesavananda
Article
Gopalan, Golaknath, & Raj Narain – Conundrum of Judicial Review vis-a-vis the Application of Basic Structure Doctrine to Ordinary Laws
by Prabhu Gupta
The suprema lex of the Indian nation-State bestows the power of judicial review upon the courts to keep in check the powers of various organs of the State by providing for a separation of powers, and checks and balances-based governance system. The scope of judicial review has been a contentious issue ever since the Indian Constitution, 1950 (‘the Constitution’) came into effect and has been the subject matter of many a landmark judgement. Arguably, the
Gopalan, Golaknath, & Raj Narain – Conundrum of Judicial Review vis-a-vis the Application of Basic Structure Doctrine to Ordinary Laws
by Prabhu Gupta
The suprema lex of the Indian nation-State bestows the power of judicial review upon the courts to keep in check the powers of various organs of the State by providing for a separation of powers, and checks and balances-based governance system. The scope of judicial review has been a contentious issue ever since the Indian Constitution, 1950 (‘the Constitution’) came into effect and has been the subject matter of many a landmark judgement. Arguably, the
Article
Ordinances and the Basic Structure Review: To Test or Not to Test?
by Krishangee Parikh & Krishna Ravishankar
Promulgation of ordinances and the procedure adopted by the Executive have often been a topic of discussion in the Indian context. Interestingly, due to the recently promulgated Delhi (Civil Services) Ordinance 2023, debates around the effectiveness of the current modes of judicial review of these instruments have recommenced. This paper aims to discuss these modes of judicial review while reading it along the trajectory of the Basic Structure doctrine and its principles. This shall further
Ordinances and the Basic Structure Review: To Test or Not to Test?
by Krishangee Parikh & Krishna Ravishankar
Promulgation of ordinances and the procedure adopted by the Executive have often been a topic of discussion in the Indian context. Interestingly, due to the recently promulgated Delhi (Civil Services) Ordinance 2023, debates around the effectiveness of the current modes of judicial review of these instruments have recommenced. This paper aims to discuss these modes of judicial review while reading it along the trajectory of the Basic Structure doctrine and its principles. This shall further
Article
The Mehndi of Judicial Review in Same-Sex Marriages: Infusing the Hues of Basic Structure on the Judiciary’s Palms
by Pratham Malhotra & Pravertna Sulakshya
The recent legal vendetta of Supriya Chakraborty v. Union of India (‘Supriya Chakraborty’) yearns for the recognition of the right to marriage equality through a judicial reinterpretation of various personal and secular laws. Curiously, the respondents have argued that the Supreme Court’s declaration on this matter would trespass into the realm of the Legislature, challenging the sacred principle of separation of powers and endangering the Constitution’s Basic Structure. This essay contends that the respondents’ argument
The Mehndi of Judicial Review in Same-Sex Marriages: Infusing the Hues of Basic Structure on the Judiciary’s Palms
by Pratham Malhotra & Pravertna Sulakshya
The recent legal vendetta of Supriya Chakraborty v. Union of India (‘Supriya Chakraborty’) yearns for the recognition of the right to marriage equality through a judicial reinterpretation of various personal and secular laws. Curiously, the respondents have argued that the Supreme Court’s declaration on this matter would trespass into the realm of the Legislature, challenging the sacred principle of separation of powers and endangering the Constitution’s Basic Structure. This essay contends that the respondents’ argument
Article
Beyond Administrative Law Review: Assessing Ordinance Promulgation through the Lens of the Basic Structure Doctrine
by Om Agarwal
The limited decisions and commentary on the justiciability of ordinances have relied upon administrative law grounds. Given the constitutional origin of ordinances and the unique executive law-making they entail, there is significant scope for the application of principles of constitutional law to their review. This paper pitches the application of the basic structure doctrine in judicial scrutiny of ordinances. First, ordinances are broken down into their constituent executive and legislative elements to strip them of
Beyond Administrative Law Review: Assessing Ordinance Promulgation through the Lens of the Basic Structure Doctrine
by Om Agarwal
The limited decisions and commentary on the justiciability of ordinances have relied upon administrative law grounds. Given the constitutional origin of ordinances and the unique executive law-making they entail, there is significant scope for the application of principles of constitutional law to their review. This paper pitches the application of the basic structure doctrine in judicial scrutiny of ordinances. First, ordinances are broken down into their constituent executive and legislative elements to strip them of
Article
Application of the Basic Structure Doctrine to the Powers of Promulgating Ordinances
by Saumya Ranjan Dixit
Articles 123 and 213 of the Indian Constitution, 1950 (‘the Constitution’) grant the power of promulgating ordinances to the President and the Governor respectively. The intent behind carving such powers is to deal with sudden emergencies when the existing laws fail to resolve it. However, this intent has been ransacked due to the grave misuse of the power in promulgating non-urgent ordinances only to bypass legislative scrutiny. This practice is further marred by a formalistic
Application of the Basic Structure Doctrine to the Powers of Promulgating Ordinances
by Saumya Ranjan Dixit
Articles 123 and 213 of the Indian Constitution, 1950 (‘the Constitution’) grant the power of promulgating ordinances to the President and the Governor respectively. The intent behind carving such powers is to deal with sudden emergencies when the existing laws fail to resolve it. However, this intent has been ransacked due to the grave misuse of the power in promulgating non-urgent ordinances only to bypass legislative scrutiny. This practice is further marred by a formalistic
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Justice D. Y. Chandrachud cites NUJS Law Review in his dissent in the judgement on the constitutional validity of Aadhar. He cites the article authored by Pratik Datta, Shefali Mehrotra and Shivangi Tyagi from Vol. 10(2) titled Judicial Review and Money Bills.
The Supreme Court of India has cited five articles published in NUJS Law Review in its historic judgement decriminalising homosexuality. The following authors have been cited with three articles being from the special issue of Vol. 2(3) - 1) Shamnad Basheer, Sroyon Mukherjee & Karthy Nair 2) Saptarshi Mandal 3) Tarunabh Khaitan 4) Robert Wintemute and, 5) Dipika Jain & Kimberly Rhoten.
Advocate Arvind Datar cites the NUJS Law Review article "Judicial Review and Money Bills" by Pratik Datta, Shefali Malhotra & Shivangi Tyagi to highlight that the judicial review of money bills is not precluded by virtue of the term "finality" in the matter pertaining to Aadhar as a money bill
The Ministry of Finance cites article by Rishad Ahmed Chowdhury in Volume 5 of the NUJS Law Review in the Economic Survey 2017 – 2018