Indian Basic Structure Jurisprudence in the Islamic Republic of Pakistan: Reconfiguring the Constitutional Politics of Religion

Nelson, Matthew J.

Abstract

In both India and Pakistan, parliament is constitutionally endowed with ‘constituent power’, that is, the power to introduce constitutional amendments via procedures laid down in the constitution itself. Duly promulgated amendments, however, are occasionally struck down when Supreme Court judges see them as violating what the judges themselves define as the ‘essential features’ of each country’s constitutional ‘basic structure’. I trace the migration of basic structure jurisprudence from India to Pakistan, focusing on the ways in which it has elevated the power of judges over that of elected officials in the realm of religion-state relations. Specifically, I highlight the ways in which judicial independence vis-à-vis judicial appointments has been described as an essential feature of each country’s constitution, greatly enhancing the autonomous power of judges to mould constitutional benches that, in turn, define India’s constitutional understanding of secularism and Pakistan’s relationship with Islam.

Citation

Nelson, M. J. (2018). Indian Basic Structure Jurisprudence in the Islamic Republic of Pakistan: Reconfiguring the Constitutional Politics of Religion. Asian Journal of Comparative Law, 13(2), 333-357. https://doi.org/10.1017/asjcl.2018.18

• Journal Article Type: Article
• Acceptance Date: Sep 6, 2018
• Online Publication Date: Dec 3, 2018
• Publication Date: Dec 1, 2018
• Deposit Date: Jun 3, 2019
• Publicly Available Date: Jun 3, 2019
• Journal: Asian Journal of Comparative Law
• Print ISSN: 2194-6078
• Electronic ISSN: 1932-0205
• Publisher: Cambridge University Press
• Peer Reviewed: Peer Reviewed
• Volume: 13
• Issue: 2
• Pages: 333-357
• DOI: https://doi.org/10.1017/asjcl.2018.18