How to do Basic Structure Review: the Sixteenth Amendment Case, Originalist Question, and the Moral Reading of the Constitution.

In the Sixteenth Amendment Case, the Supreme Court of Bangladesh invalidates the impugned amendment, which attempted to revive some provisions of the original constitution relating to the removal of judges, on the ground that it violates the basic structure of the constitution. In so doing, it establishes that the “basic structure” should be identified with reference to the “[c]onstitution as it stood on the date of its amendment”. This paper identifies the contradiction in such a “textualist” formulation while showing how it upsets the moral authority of the doctrine to promote the “court-centric” constitutionalism in Bangladesh. Drawing on Dworkin’s concept of the moral reading of the constitution, it argues that the original constitutional provision can be discarded by basic structure review only when its “moral reading” is prioritized over the textualist reading of the constitution.

Reading Crowds into The First Amendment to the Indian Constitution

The First Amendment to the Indian Constitution is widely considered a foundational moment in the development of jurisprudence around the right to, and limits on the freedom of speech and expression in India. I specifically focus on the introduction of the term ‘public order’ to the limits on the right to freedom of speech and expression guaranteed under the Constitution.

By reading crowds into the First Amendment debates, I explore how Indian legal doctrine in this area has been influenced by the specific social, political and technological context in which this discussion took place. This includes that of the history of violence during Partition, concerns around the stability and viability of the Indian nation, and the interaction between crowds and reading publics associated with print technology.

Constitutional adjudication on the basic structure doctrine in Sri Lanka

In Sri Lanka, basic structure arguments have been categorically rejected by the Supreme Court. The Court’s over-reliance on the compliance of the procedural requirements has undermined the effects of the substance of these amendments on the country’s constitutional order. Central to this judicial approach is the emphasis on popular sovereignty. As a result, once procedural requirements are fulfilled, unfettered power to amendability has judicially been established – at times, to the detriment of constitutionalism in Sri Lanka.

My paper examines the recent Twentieth Amendment determination of the Supreme Court of Sri Lanka and aims to explore its reasoning and rejection of the basic structure doctrine. In doing so, the paper will demonstrate the emphasis on popular sovereignty in the majority-ethnicity-dominant state which has been reflected in the constitutional amendment rules that stand at odds with the multi-ethnic, multi-religious character of Sri Lanka.