Articles

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.

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 judicial review of the promulgating powers which obstructs a substantive scrutiny of ordinance-making powers. Therefore, to prevent the misuse of these provisions, this article suggests an application of the basic structure doctrine to the powers of promulgating ordinances. It argues that such an application would test the effect of the ordinance on the anvil of the basic principles of the Constitution instead of scrutinising the motive behind promulgation, which is advantageous for rigorous scrutiny of the promulgating powers. Moreover, it presents a framework laying down an independent substantive model of basic structure review with elaborate methods and arguments to apply the basic structure doctrine to the ordinances. Lastly, it urges us to adopt this basic structure review to preserve the foundational ideals and supremacy of our Constitution.

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 help us identify an appropriate review mechanism that can be applied to ordinances, especially those affecting the ideals of the basic structure. In order to arrive at this mechanism, the article shall first, deal with an overview of the Indian scenario pre-Kesavananda Bharati judgement, emphasising the urgent need to save the constitution from further arbitrary alterations. Furthermore, post the Kesavananda Bharati judgement, the Courts applied the basic structure review test in multiple cases. This sheds light on understanding its current ambit with regard to normal legislations and executive action. Thereafter, we would delve into the concept of negative and intermediary approaches of reviewing ordinances as provided by Professor Shubhankar Dam. By adopting a collaborative analysis, it shall provide an insight into the standard to be applied to ordinances under both these approaches, ensuring they are compliant with basic structure values, as proposed by us.

Is there a possibility of a critical pedagogy of the disabled in law schools where epistemic imagination is colonised by positivism? What would be the framework and trajectory of such pedagogy? The authors try to sketch the oeuvre of this pedagogy by exposing the inherent limits of disability studies and movements that seek their validity in the language of the neo-liberal market and state. In doing so, the paper highlights the intrinsic exclusionary nature of our legal pedagogy, law schools, and legal discourses concerning our disabled embodiment and our lived experiences that get pushed to the periphery due to this aggressive imposition of the positivist framework of pedagogy that gives its uncritical discursive support to neo-liberal agenda.  This endeavour necessitates going beyond the clearly delineated, orderly, definite, and precise domain of positivist jurisprudence and critically examine the prevailing liberal discussions regarding accessibility and reasonable accommodation.The authors juxtapose three figures of disabled embodiment, namely, Vikas Kumar, G. N. Sai Baba, and Stan Swamy, and their interaction with our judicial system to expose the limits of liberal legalism, its discourse, and limits of disability movements that have only middle-class concerns into their vision.

The Rights of Persons with Disabilities Act, 2016, (‘the Act’) in India grants essential rights and protections to individuals with disabilities, anchored in the principle of reasonable accommodation. At the same time, the Act clarifies that a failure to provide reasonable accommodation is justified when providing the accommodation would cause ‘disproportionate or undue burden’. This standard encompassing factors such as financial constraints and resources to implement such measures. However, varied interpretations and implementation of what makes a burden disproportionate or undue often result in a conceptually incoherent application of the principle of reasonable accommodation among different jurisdictions. This paper attempts to address this ambiguity surrounding the determination of ‘disproportionate or undue burden’ in the application of the principle of reasonable accommodation. By undertaking a cross-jurisdictional analysis of historical and legislative contexts, case laws, and considering international standards, the paper identifies key interpretational tools used in unpacking the ‘undue burden’ defence. Thereafter, the paper proposes a clear framework outlining factors for the Indian courts to consider when interpreting this standard. The scope of this paper is confined to a consideration of the undue burden defence in the realm of disability rights law. An examination of this standard in other areas of law, such as religious accommodations, is beyond the scope of this paper. ‎

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 most important judicial development in India has been the basic structure doctrine evolved by the Supreme Court in Kesavananda Bharati v. Union of India. Developed to check the amending powers of the Parliament, the doctrine has since evolved into an all-encompassing variant of judicial review being used to check a vast array of State action. This paper intends to discuss the nature and location of the basic structure doctrine in the Constitution and inquire whether it resides within the constitutional provisions while expanding the significance and development of the basic structure doctrine. The paper, while accepting the doctrine’s significance to check constitutional amendments, identifies the aspects of the expanding scope of judicial review and argues against its application to ordinary law on various grounds. Incorporating and analysing scholarly discourse and judicial pronouncements, the paper suggests alternate and legitimate ways to achieve goals that are sought to be attained through the application of the basic structure doctrine.