ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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The Ninth Schedule Decision

The Supreme Court's decision to judicially review any law incorporated to the Ninth Schedule post April 24, 1973, brings certain troubling questions of constitutional significance to the fore. It exposes the flexibility and vagueness associated with the "basic structure doctrine" and provides an understanding of the vast powers the judiciary has amassed because of the nature of that doctrine.

Time to Define the Constitutions Basic Structure

F or three decades now, the landmark basic structure doctrine has formed the bedrock of Indias constitutional jurisprudence. The doctrine, established by the Supreme Court (SC) in Kesavananda Bharati vs State of Kerala (AIR 1973 SC 1461), limits the Parliaments power to amend the Constitution. In Kesavananda Bharati, the SC held that Article 368 of the Constitution does not provide the Parliament with the absolute power to amend the Constitution. The limitation was that the basic structure of the Constitution could not be altered. Inevitably, the doctrine has profound implications for the role of the judiciary in democratic societies and any theory of separation of powers. Although the legitimacy of the doctrine has been the subject of much controversy, the debate has subsided in recent years. The decision of the SC in I R Coelho vs State of Tamil Nadu ((2007) 2 SCC 1) that examined the permissible extent of judicial review of the Ninth Schedule to the Constitution brings the basic structure doctrine back into sharp focus and provides us with an opportunity to revisit this subject.

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