Везде
The Struggle for the Identity of the Indian Constitution: In the Context of the Implementation of the Basic Structuresʼ Doctrine
Table of contents
Abstract Estimate Publication content
References Comments
Share
QR
Metrics
The Struggle for the Identity of the Indian Constitution: In the Context of the Implementation of the Basic Structuresʼ Doctrine
Abstract
PII
S1991-32220000622-3-1
DOI
10.61205/S199132220029654-5
Publication type
Article
Status
Published
Authors
Oleg Belosludtsev 
ORCID: 0000-0001-6946-3327
Occupation: Associate Professor, Department of State and Administrative Law
Affiliation: National Research Ogarev Mordovia State University
Address: Saransk, Russia
Edition
Volume 20 No. 2
Pages
28-36
Abstract

The article examines the Indian experience of implementing the basic structures̓ doctrine and some approaches that are methodologically consistent with it. This experience has theoretical value for the further development of the national doctrine of constitutional identity in current conditions, because it is an example of a different functional understanding of constitutional identity — through the prism of its “internal legal” function.

The purpose of the study is to form a holistic scientific understanding of the origin and development of the doctrine of basic structures, as well as to establish the circumstances that prepared the Indian judicial system for a significant revision of the limits of constitutional amendment.

The research was carried out on the basis of general scientific interdisciplinary and specific methods (formal legal, comparative legal, etc.).

Conclusions. As the experience of constitutional development in other countries shows, threats to the security of the Constitution do not always come from “outside”. India is an ideal example of a country that has fully revealed the protective potential of the internal function of its constitutional identity. Despite a certain break with the constitutional tradition, given that the intention of the creators of the Constitution definitely did not include a rigid model of constitutional design, the use of the doctrine of basic structures made it possible to reconcile the desire for change with the need for continuity and minimize the constitutional disharmony inherent in a complex Indian society. The doctrine of basic structures has become a global phenomenon and has gone far beyond the borders of the Indian state. The original doctrine has been adopted in court decisions of a number of other countries. All this suggests that the doctrine of basic structures should be the subject of further theoretical reflection along with the usual (Eurocentric) approaches to the conceptualization of constitutional identity.

Keywords
internal legal function of constitutional identity, doctrine of basic structures, limits of constitutional change, identity of the constitution
Date of publication
19.04.2024
Number of purchasers
3
Views
61
Readers community rating
0.0 (0 votes)
Cite Download pdf

To download PDF you should pay the subscribtion
1

References



Additional sources and materials

1. Austin G. Working a Democratic Constitution: The Indian Experience. New Delhi; New York, 2003. 771 p. 
2. Besselink L. F. M. National and Constitutional Identity Before and After Lisbon. Utrecht Law Review, 2010, vol. 6, no. 3, pp. 36— 49. 
3. Drinóczi T. Constitutional Identity in Europe: The Identity of the Constitution. A Regional Approach. German Law Journal, 2020, vol. 21, no. 2, pp. 105—130. 
4. Jacobsohn G. J. The Wheel of Law: India’s Secularism in Comparative Constitutional Context. Princeton University Press, 2003. 324 p. 
5. Noorani A. G. Behind the “basic structure” doctrine: On Indiaʼs debt to a German jurist, Professor Dietrich Conrad. Indiaʼs National Magazine, 2001, vol. 18, iss. 9. 
6. Randhawa J. Understanding Judicialization of Mega-Politics: The Basic Structure Doctrine and Minimum Core. Jus Politicum, 2008, no. 6. 
7. Raza A. The Doctrine of “Basic Structure” of the Indian Constitution: A Critique. 12 July 2015. Available at: https://clck.ru/ 39Q56M (accessed 15.10.2023). 
8. Blokhin P. D. The judicial doctrine of constitutional identity: genesis, issues, and perspectives. Comparative Constitutional Review, 2018, no. 6(127), pp. 62—81. (In Russ.) 
9. Vasileva T. A. The principle of respect for the national identity of EU member states: problems of interpretation. Constitutional and Municipal Law, 2017, no. 6, pp. 9—12. (In Russ.) 
10. Gadzhiev G. A. Constitutional identity and human rights in Russia. In: Law and state: cultural dimension: International Scientific and Practical Conference, December 1, 2017. St. Petersburg, 2017. Pp. 19—28. (In Russ.) 
11. Gracheva S. A. Development of Concept of Constitutional Identity in Connection with the Search for Approaches to Resolving of Collisions of Constitutional Regulators and Law of the European Convention of Human Rights. Journal of Russian Law, 2018, no. 9, pp. 52—64. (In Russ.) 
12. Zorkin V. D. The constitutional identity of Russia: doctrine and practice (report at an international conference in the Constitutional Court of the Russian Federation (St. Petersburg, May 16, 2017). Aktual’nye problemy teorii i praktiki konstitutsionnogo sudoproizvodstva, 2017, iss. 12, pp. 7—30. (In Russ.) 
13. Lukyanova E. A. Identity and transformation of modern law. Comparative Constitutional Review, 2020, no. 3(136), pp. 130— 147. (In Russ.)

Comments

No posts found

Write a review
Translate