DELIMITING THE DOCTRINE: AN ARGUMENT AGAINST BASIC STRUCTURE REVIEW OF ORDINARY LAWS

Abstract

The Basic Structure Doctrine, which was crafted to preserve the enduring identity of the Constitution, finds itself in an identity crisis in the fifty years of its existence. One prominent debate regarding the doctrine concerns its applicability to challenges against ordinary legislation. The judicial history in this regard is marred by conflicting opinions that add more to the debate than they resolve. This essay undertakes a comprehensive analysis of all the significant developments on the key issue of the scope and extent of the doctrine and attempts to harmonise them piece by piece. It has been observed that courts have, at times, readily extended the doctrine in testing the validity of ordinary legislation by construing the basic structure as nothing more than an interpretation emergent from a multi-provisional reading of the Constitution. Such an approach fails to appreciate the ‘identity of the doctrine’ and the ‘method of identification of basic features’ as two independent concepts. The invocation of the doctrine is not sine qua non for testing ordinary legislation based on ‘principles’ emerging from a multi-provisional interpretation of the Constitution. The sanctitude of the doctrine’s identity lies in its operation in the sphere of constitutional amendments only, and the same must be preserved.