@article{2015::basic_stru,
title = {Basic Structure Doctrines and the Problem of Democratic Subversion: Notes from India},
year = {2015},
note = {One of the primary means of democratic subversion is constitutional
amendment. In transitional democracies, it is not unusual for the
constitution to include substantive constraints on the amending power
as a hedge against the polity’s uncertain commitment to the rule of
law. Although the Indian Constitution has no such provision, its
Supreme Court has taken the controversial position that the
Constitution has an unalterable “basic structure”. Under the basic
structure doctrine, as it has become known, constitutional amendments
that purport to abrogate basic norms of constitutional governance are
void. In India today, the doctrine is evolving from a substantive
limit on the amending power into a restriction on antidemocratic
conduct, broadly understood. My inquiry focuses on whether the basic
structure doctrine provides a coherent theory by which constitutional
arbiters can address some of the pathologies that are common to
postauthoritarian societies and dominant-party democracies. The
article develops two lines of argument, using India as its primary
case study. First, I argue in favor of expanding the conversation
about judicial responses to democratic backsliding beyond
constitutional amendments, to forms of democratic subversion that do
not implicate the constituent power. In arguing that such an expansion
is necessary, I expose various gaps in constitutional doctrine and
suggest that the basic structure doctrine might operate as a normative
guidepost when the law would otherwise allow partisan abuse to go
unchecked. The second strand of my argument is that constitutional
review in transitional settings and dominant-party democracies should
be guided by a substantive canon of construction that creates an
interpretive bias in favor of robust political competition, the
efficacy of checks and balances, the vitality of independent
institutions, the integrity of federal structures, and the nonpartisan
use of public power.},
journal = {VRÜ Verfassung und Recht in Übersee},
pages = {99--123},
author = {},
volume = {48},
number = {2}
}