Harmonising Constitutional Ideals: A Modern Reassessment of the Basic Structure Doctrine

Harmonising Constitutional Ideals: A Modern Reassessment of the Basic Structure Doctrine

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Volume 16 Issue 4 ()

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 Bharati and the constitutional and jurisprudential questions that surround it in today’s time and age. The study of these questions is situated in four contemporary issues – applicability of the doctrine upon the legislative power of the Parliament, questioning the precedential validity of the Kesavananda Bharati case upon the touchstone of the doctrine of stare decisis, the doctrine of legislative overruling and the gaps it creates in achieving constitutional governance, and the overlap between constitutional morality and the doctrine of basic structure. All the aforesaid questions are elements in the larger scheme of separation of powers and judicial review. The paper critically evaluates these broad questions while situating them in the realities of the country today.

Cite as: Kartikay Agarwal & Harmanjot Kaur, Harmonising Constitutional Ideals: A Modern Reassessment of the Basic Structure Doctrine, 16 NUJS L. Rev. 1 (2023)