Dead hand rule or constitutional guardian: a comparative analysis of judicially imposed limitations on formal constitutional change in India, Bangladesh and Israel

Khamroi, Anubhav (2021) Dead hand rule or constitutional guardian: a comparative analysis of judicially imposed limitations on formal constitutional change in India, Bangladesh and Israel. [Working papers (or Preprints)] (In Press)

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Abstract

In Part I of the Chapter, I shall discuss the birth and evolution of the basic structure doctrine in India. For the sake of reader’s convenience, I shall also draw out a timeline of events to better portray the gradual development and establishment of the basic structure doctrine. Briefly speaking, according to the aforesaid doctrine, any constitutional amendment that abridges or infringes upon any basic or essential feature of the Constitution shall be declared unconstitutional. Herein, one might argue that the idea of a constitutional amendment, which forms a part of the Constitution, being declared unconstitutional is certainly prima facie counterintuitive. Therefore, in Part II of the Chapter, I shall delve into the theoretical underpinnings of the basic structure doctrine, in order to properly appreciate the purpose and requirement of the doctrine in context of modern politics. Moreover, the basic structure doctrine is faced with several objections, many of them being quite meritorious and thus require incisive analysis, such as the debate between primary vs. secondary/derivative constituent power. I shall also evaluate whether judicially enforced limitations on Parliament’s amending power create a “dead hand rule”, or whether it actually guards the substantive content of the Constitution.

Item Type: Working papers (or Preprints)
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
Social Sciences and humanities > Social Sciences > Political Science
Social Sciences and humanities > Social Sciences > Public Administration
JGU School/Centre: Jindal Global Law School
Depositing User: Arjun Dinesh
Date Deposited: 30 Mar 2022 13:01
Last Modified: 30 Mar 2022 13:06
Official URL: https://ssrn.com/abstract=3888745
Additional Information: Included in in "Global Thoughts and Opinions on the Constitution and Constitutionalism 2020"
URI: https://pure.jgu.edu.in/id/eprint/2017

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