Class Notes.docx - MISSED INTRODUCTORY CLASS CONSTITUTIONAL LAW II | 04 JANUARY 2017 BASIC STRUCTURE THEORY | MODULE I 1 Basic Structure Doctrine

Class Notes.docx - MISSED INTRODUCTORY CLASS CONSTITUTIONAL...

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M ISSED I NTRODUCTORY C LASS C ONSTITUTIONAL L AW II | 04 J ANUARY 2017 B ASIC S TRUCTURE T HEORY | M ODULE I 1. Basic Structure Doctrine: - Content of the theory is not very obvious. - Borrowed from the German Constitution. - It certainly creates a hierarchy of provisions in the Indian Constitution but it need not be interpreted in a manner that the text becomes irrelevant. - Can the idea of it be clear when we do not know what it is? - It is no particular provision | No provision of the Constitution is part of the Basic Structure. - The problem with the doctrine is that the text of the Constitution becoming irrelevant. - Is the basic structure theory meant to supplement the Constitution or to replace the provisions of the Constitutions?- NJAC, Language of the Constitution specifically provided power to an individual being read as judicial superiority is supplanting the Constitution. - Basic Structure gives precedence to the unwritten text of the Constitution over the written text . This is especially highlighted in the amendment powers under Article 368. Controversy arises wrt amendment and replacement of the text. When amendment powers are exercised so as to remove the essence of the original text. - SC has in its judgments stressed upon the need to root the doctrine . - Basic Structure is not the spirit of the Constitution since the latter is very vague and hanging in the air- SC | - Basic structure cannot be so basic that it has no place in the Constitution, it cannot be disjoint from the text of the Constitution. - Is the idea of basic structure to uphold or to limit the Constitution? - Not Very Relevant. 2. Features are provisions of the Constitutions, principles are not. They are the basis of the features. Ex- Distribution of legislative power is a feature of the Constitution, based on the principle of Federalism. 3. Keshavananda Bharati v. State of Kerala : Principle of Eminent Domain was crux of the dispute wrt Article 31. What is the Indian Constitution’s more basic principle- Eminent Domain or Social Revolution? Since the SC chose the former, there were amendments made to indicate that Social Revolution was the more basic principle, for ex subsequent amendments to provisions like Article 31. However, these amendments were defeated because the SC kept reading eminent domain into the provision and thereby requiring the State to give just compensation - However, once Article 19(1)(g) and 31 have been removed, can eminent domain still be invoked? - This is where the argument that principles also need to be rooted into the Indian Constitution. They need to be located in the text of the Constitution. - When Indira Gandhi tried to exclude judicial review, the same feature was rooted into the overarching principle of separation of powers.
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- Hence, grounding of the theory is very important because without that it becomes very difficult to apply it.
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