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5 India: From Positivism to Structuralism

S. P. Sathe

From: Interpreting Constitutions: A Comparative Study

Edited By: Jeffrey Goldsworthy

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 30 June 2022

The constitution of India is not merely a law prescribing a division of power and limits to power, but contains a bill of rights and positive directions to the State to establish a just social order. It incorporates the essential aspects of parliamentary democracy, federalism, provisions regarding inter-state trade, and commerce, among other features. This chapter discusses the salient features of the Indian constitution, directive principles, separation of powers, constitutional amendment, judicial review, problems and methods of constitutional interpretation, positivist and structuralist interpretation, constituent assembly and the role of the judiciary, legal positivism of the early years, external aids to interpretation, resolution of conflicts between constitutional provisions, freedom of religion, powers and privileges of legislatures, affirmative action for the weaker sections of society, freedom of speech, property rights, post-emergency judicial activism, independence of the judiciary, the court as a political institution, and institutional and cultural factors underlying constitutional interpretation.

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