Reviewing Judicial Amendments in India: Evolving a ‘Basic’ Structuralist-Pragmatist Approach for Creation and Review of Constitutional Standards and Its Application to the Essential Religious Practice Test

Abstract

Judicial Review has resulted in a plethora of landmark cases on constitutional interpretation since the inception of the Supreme Court. These judgments have both expanded and contracted the meaning of the Constitution’s provisions. At times, they have read in restrictions, such as basic structure review for parliamentary amendments under Article 368, absent from the bare text. The evolution of many similar standards and principles to be used in reference to other provisions emanates and are sanctioned by decisions of our constitutional courts. With due course of time, they tend to act as ‘functional’ amendments to the Constitution. Therefore, this paper argues in favor of an amalgamative approach which merges central tenets of structuralism and pragmatism to create judicial amendments. The approach shall provide a burden to be discharged by the Court whilst making functional changes, by ensuring their compliance with the basic structure and pragmatic concerns. Further, to ensure parity with the Parliament, previous judicial amendments may be subject to a basic structure review, with eased procedural requirements. This paper also applies this approach to the Essential Religious Practice Test, a functional amendment to Article(s) 25 and 26, to illustrate its usage.