Basic Structure Doctrines and the Problem of Democratic Subversion

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

Democracy · Law and economics · Political science · Politics · Sociology · Subversion · Law · Political Conflict and Governance · Political Economy and Marxism

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• Basic Structure Doctrines and the Problem of Democratic Subversion

  Christopher Beshara, M J Maxwell et al.•Verfassung in Recht und Übersee•2015

  Add to list