Rehan Abeyratne

Giving structure to the basic structure doctrine

Perhaps no issue of Indian constitutional law has received more scholarly attention than the basic structure doctrine. The notion that courts can invalidate constitutional amendments poses difficult questions about the scope of judicial review and the nature of India’s democracy. Theoretically, it might seem oxymoronic to speak of unconstitutional constitutional amendments. If amendments are duly passed, how can they be unconstitutional? Practically, even if constitutional amendments can be invalidated, why should courts make that determination? And on what basis? Yaniv Roznai’s impressive new book, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, provides a comprehensive account of this phenomenon within a global constitutional context. This review outlines Roznai’s arguments before applying his analysis to South Asia. It discusses how India and Bangladesh might benefit from his recommendations. It concludes by discussing the limitations of Roznai’s study and argues that recent South Asian jurisprudence calls for more practical, interdisciplinary scholarship in this area.