| Revising Basic Structure Constitutionalism in India

This year is the 50th Anniversary of the Landmark Judgement of Supreme Court of India, Kesavananda Bharati v State of Kerala. With its momentous pronouncement imposing fetters on the Constituent Powers of the Parliament, Apex court of India became perceptibly the most powerful Court in the World. It would not be exaggeration to say that with its holding, Supreme Court of India even surpass the legacy of US Supreme court evolved through Marbury v. Madison. However, unlike Marbury verdict, whose ration has remained unquestioned and almost undisputed, even after its 50th Anniversary scholars both, in India and abroad hotly debate the efficacy of the Doctrine of Basic Structure and struggle to attach any definitive ratio to the plurality of opinions in K. Bharati.

In fact, a noted jurist and an eminent Lawyer, Late shri H.M. Seervai prefered to attach more significance to the Judgement of Apex court in Indira Nehru Gandhi to comprehend the nuances of the basic structure doctrine. According to him, significance of Indira lies in that it was the first pronouncement in which this Doctrine practically came into play and the Court deployed it as a sword to cut down the width of the constituent powers. However, there are number of Scholars including Late Professor Deshpande and instructor of this course arguing that Indira Nehru Gandhi was decided on the plank of separation of Powers rather than on ‘basic structure’. The fulcrum of the reasoning of the Majority was to chip away the Bill of attender on the ground that Parliament had arrogated unto itself the authority of the Court by using general Constituent power to pass a judgement in a particular case.

In short, the debate on Basic structure is still live, ongoing and fascinates academic engagement. In the proposed course, I intend to revisit both jurisprudential and public law contours of the doctrine of Basic Structure constitutionalism in India. I would also briefly explore its reception in certain major jurisdictions like Europe, Latin America , Asia ,and Africa . While engaging with Basic Structure , related and allied notions like Constituent power, Identity of the Constitution, eternity of the Constitution, transformative Constitutionalism, constitutional morality would also be grappled with.

Course Objectives

• To explore jurisprudential founding of Basic structure.
• To explore the Public Law contours of Doctrine of Basic structure
• To conduct through examination of Kesavananda Bharati to assess whether it has any definitive ratio.
• To have a de-tour of Post Kesavananda Bharati pronouncements dealing with basic structure to capture reasoned elaboration on Kesavananda Bharati .
• To compare and contrast judicial approaches on Basic structure in Latin American, African and European Courts
• To grapple with allied ideas viz. Constituent Powers, Constitutional Identity, and Constitutional eternity; Transformative Constitutionalism and Constitutional Morality.
• To explore the possibilities for innovative future of basic Structure.