tag:blogger.com,1999:blog-15602189.post7209095415713842520..comments2023-09-21T16:17:51.838+05:30Comments on Law and Other Things: Dr.Rajeev Dhavan's submissions in the K.Krishna Murthy caseAnonymoushttp://www.blogger.com/profile/09348738084817273397noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-15602189.post-80625710402690444872011-02-13T21:46:06.975+05:302011-02-13T21:46:06.975+05:30does this mean that affirmative action under artic...does this mean that affirmative action under article 16(4)forma a part of the basic structure??Unknownhttps://www.blogger.com/profile/18280561183733639740noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-4797627696680133352008-11-26T21:01:00.000+05:302008-11-26T21:01:00.000+05:30243D(6) refers simply to 'backward class' which is...243D(6) refers simply to 'backward class' which is closer to 16(4) than 15(4) but the caveat that reservation only apply to those not adequately represented found in 16(4) is missing from it. The objective here seems to be to ensure proportional representation regardless of their numbers in these civic bodies ex ante. In that sense, it seems to be different from both Art. 15 and 16.<BR/><BR/>Does anyone know if the creamy layer applies here?Dilip Raohttps://www.blogger.com/profile/18294894305584371011noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-916749939738072042008-11-26T10:54:00.000+05:302008-11-26T10:54:00.000+05:30I am not convinced by his arguments.Were OBCS unde...I am not convinced by his arguments.Were OBCS underrepresented in civic bodies and legislatures?.<BR/>It would be interesting to look whether this issue figured in the Constitutional Assembly debates.ரவி ஸ்ரீநிவாஸ்https://www.blogger.com/profile/10176389904737294055noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-88528189965696024902008-11-26T00:52:00.000+05:302008-11-26T00:52:00.000+05:30Will limit my comments to one point made by Dr. Dh...Will limit my comments to one point made by Dr. Dhawan. <BR/><BR/>2. The basic structure doctrine cannot be the basis of striking down an ordinary statute. To apply the basic structure doctrine directly to legislations and executive actions would amount to rewriting the balance of power in the Constitution and surrender it to a vague and wandering 'jurisdiction' unsuited for that purpose.<BR/><BR/>I entirely agree. Many people are unaware that the Palkhivala's arguments in Kesavananda (and this does not come from across exceedingly clear from the judgment) did rely upon the meaning of the word "amend" in Article 368. He argued that "amend" does not include "change so as to nullify the character of". Also, a few earlier observations by Justices Hidayatullah and Mudholkar were based on the consideration of whether or not some part of the constitution would be more important than the others.<BR/><BR/>So we see that the genesis of the BS doctrine was based on the concept of constitutional amendment itself. <BR/><BR/>Regarding Coelhe, I think that Coelho must be taken to mean that once a law is placed into the Ninth, it for all purposes is tantamount to a constitutional amendment. Therefore it can be challenged under BS. To remain doctrinally sound, the observations in Coelho must not be interpreted to applying to all laws in general. The better view o take is,n my opinion, that laws in the 9th do not violate the BS, but the AMENDMENT which places the laws in the 9th is the one which violates BS. So BS should be used to lift the veil of the 9th, and then the law must be challenged under the provisions of the Constitution.<BR/><BR/><BR/>I anticipate at last the following counters.<BR/><BR/>1. "You rest your argument too much on the meaning of the word amend" - The basis strcture doctrine hinges on a correct understanding of amend. That is the legal basis of the doctrine.<BR/><BR/>2. "Words do not matter" - Really!? Sorry, they do. In any event, what is the other doctrinal justification?<BR/><BR/>3. "If an amendment can be challenged under a higher threshold, why not a law?" - this is a very important argument. But in my opinion, BS is not a "threshold" but a technique to bring certain actions within the scope of review. <BR/><BR/><BR/>I am sure these will be unpopular arguments - waiting to see how unpopular!Anonymousnoreply@blogger.com