Vice and virtue of the Basic Structure Doctrine: a comparative analytic reconsideration of the Indian sub-continent's constitutional practices. Issue 1 (2nd January 2017)

• Record Type: Journal Article
• Authors: Malek, Md. Abdul
• Is Part Of: Commonwealth law bulletin. Volume 43:Issue 1(2017)
• Page Start: 48
• Page End: 74
• Publication Date: 2017-01-02
• Subjects: Law -- Commonwealth countries -- Periodicals; 349.11241
• DOI: 10.1080/03050718.2017.1358648
• Languages: English
• ISSNs: 0305-0718

Abstract

Abstract : This paper examines the doctrine of Basic Structure and its effect upon the development of constitutional jurisprudence on the Indian sub-continent, i.e. Bangladesh, India and Pakistan. It also analyses the courts' robust underpinning on the doctrine that puts 'an embargo or a limit upon the parliamentary supremacy'. Such an embargo or a limit is at times seen as a fundamental one which eventually led practical application. Since this position provokes huge controversy, e.g. illegitimacy, anti-democracy, judiciocracy, counter-majoritarianism, anathema to popular sovereignty, non-textual and abstract formulation, etc., it fairly requires doctrinal expositions to be made on how to figure it out. Moreover, it explores the scope, standing and inviolability of the doctrine in the sense of comparative conceptualization. Furthermore, dissection from multifarious perspective is made in order to look into its pragmatism, justification and legitimacy through fixing its today's position in the ongoing debate among the contemporary constitutional commentators.