The Jurisprudential Evolution: The Basic Structure Doctrine To Ordinary Legislation
- IJLLR Journal
- 2 hours ago
- 1 min read
Gopeshwar Singh, O.P. Jindal University
ABSTRACT
The most unique constitutional innovation by the Indian judiciary has been the basic structure doctrine that has been developed to protect the constitutional identity against debilitating parliamentary amendments. However, the evolving nature of legislation methodology, in which in certain instances legislation of ordinary quality is used to bring about structural reform, poses an urgent enquiry: is the doctrine rightly applicable to ordinary legislation, and how then, once more, should the courts in practice help to make this happen without compromising the separation of powers? In this essay, I give a descriptive analysis of how this dilemma has been approached in the Indian courts, between the orthodox, which (confines the doctrine to constitutional amendments), and the pragmatic turn, which (appreciates that certain statutes may endanger the most fundamental constitutional attributes). The essay claims that Indian courts have been selectively and even tacitly scrutinizing Indian statutes against structural norms. It suggests a range of criteria when such review is justified focusing on systemic effects, institutional maintenance, and remedial discipline. What is obtained is a calibrated model that complies with the legislative policy-making and does not permit the weakening of the Constitution through statutory subterfuge. It is this model that is more conducive to make Indian constitutionalism deal with current methods of constitutional avoidance without disturbing democratic authority.
