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Working of the constitution : Checks and balances
Pai V Sudhish
Working of the constitution : Checks and balances - Lucknow Eastern Book Co. 2014 - 280p xvii
Table Of Contents:
Table of Cases
Part I. CONSTITUTIONAL SUPREMACY
1. The Myth of Sovereignty Evolution of the idea of judicial supremacy Concept of higher law — Origins of constitutionalism and judicial review Limited government and judicial review
Due process — substantive
Judiciary — The guardian of the Constitution — Constitutional supremacy
Constitutional interpretation — Implied limitations — Need
Need for judicial review and supremacy Qualifications for exercise of power of judicial review
Conclusion
Part II. LEGISLAT IVE POWER AND JUDICIAL OVERSIGHT
2. Some Facets of Parliament’s Legislative Power
3. Judicial Imprimatur on Parliament’s Mythical Power?
4. Problems and Paradoxes of Some Judgments Re: Parliamentary Privileges
Legislative/Parliamentary privileges — Expanded scope of Article 21
Cash for query — “MPs Expulsion case” Raja Ram Pal v. Lok Sabha Amarinder Singh v. Punjab Vidhan Sabha
No confidence motion — “JMM Bribery case” P.V. Narasimha Rao v. State (CBI/SPE)
Privileges — Non-members Whether oath a prerequisite for enjoying privileges and immunities
Legislative privileges — Officers Discussion re: Private conduct of a judge
Notice to the House/Speaker — Appearance in court
5. Reforms of Political Parties and the Electoral System Organisation of society Democracy Constitutional democracy — Irreducible essentials Representative democracy Rule of law and democracy
Degeneration — Need for reforms
Political parties — Role and decline Present legal position
New law — Need and justification Salient features of the proposed law
Re: Constitutionality of the proposed law
Representational legitimacy
50 per cent + 1 vote — To be secured for being elected
Negative vote Compulsory voting Egalitarian voting
Criminal background — Disqualification for contesting
Money power — Ceiling on election expenditure
Vigilance Committees
Proposed amendments
Epilogue
6. Law Making — Knowability of the Law — Ignorance of Law — When an Excuse Law
Law-making in a parliamentary system
Public opinion
Institutions and systems
Legislation — Pre-enactment and post-enactment publicity
Primary legislation
Pre-enactment stage
Post-enactment stage
Legislature’s obligation
Delegated/subordinate legislation
Executive’s obligation
Rule of law — Constitutional fundamental — Accessibility of the law Knowability — Fundamental right
Ignorance of law should be an excuse
Epilogue
Part III. JUDICIAL POWER
7. Human Rights, Common Law and Judiciary
8. Is the Writ Jurisdiction Rendered Nugatory?
Judicial review
Writs
Exercise of jurisdiction — Courts’ functions
Supreme Court
Position diluted
Suggested remedy
High Courts — Not very different
Alternative remedy
Delay
Res judicata
Prohibition
Judicial review is about decisions too
Writ jurisdiction to be effectively exercised
9. Is Wednesbury on the Terminal Decline?
Judicial review — Constitutional supremacy vis-à-vis parliamentary sovereignty
Administrative law — Tools of legal control
Administrative law — Reasonableness
Legal concept of unreasonableness — Review of administrative action
Constitutional foundations of judicial review
Proportionality
Different standards of reasonableness
Wednesbury and proportionality
Human Rights Act in UK and its impact
Operation of Wednesbury and proportionality in judicial review
Margin of appreciation — Calibrating proportionality
No demise of Wednesbury
The correct legal position
Judicial review and appeal
Judicial review — Varying degrees
Judicial review and appeal — Remain distinct
Is “Wednesbury” redundant?
“State of U.P. v. Sheo Shankar Lal” — Inappropriate observations
Conclusion
An afterword
10. Public Interest Litigation and Judicial Activism in India
11. Environment Law and Role of Civil Courts
12. The Ninth Schedule Judgment — A Critique
Anomalies in Some Recent Judgments — An Appraisal
Part IV. EXECUTIVE POWER
14. Preserving the Primacy of the Prime Minister — A Case for Reform in India
15. Delay in Bringing Laws into Force — Assent and Justiciability Thereof
Legislation
Key features of a parliamentary system
Legislation — Introduction and passing and enforceability
Re: Assent to Bills
Head of State — Part of legislature — Assent necessary to make law
Comparative position — Other Constitutions
UK
Federal legislation
US
Canada
Some other countries
Provincial legislation
Australia
Canada
Constitutional position in India
Major premise
Exercise of power by President/Governor in general
Exercise of power by President/Governor re: Assent
Reserving for President’s consideration
Article 201 — President’s discretion
Time frame for exercise of power — No inaction
Justiciability of action under Articles 111, 200, 201
Madras High Court — Assent held justiciable
“Malwinder Singh and Kaiser-I-Hind” — Assent not legislative process — No idle formality — Open to judicial review
Judicial review of refusal of assent on substantive grounds — No constitutional heresy
Withholding assent — Amenable to judicial review
Non-justiciability of assent — Not the ratio of earlier judgments
Recommendations of various Commissions
Experience of working the Constitution
Governors
Need for amendments
Proposed amendments
Position re: Ordinances
Re: Post assent delays
Bringing an Act into force and making it workable
Delay-executive
Constitutional theory of legislative control over executive
Executive domination
Reasons for the delay
Effective and meaningful control and responsibility
Re: Bringing an Act into force
Framing rules, issuing orders, etc.
Need for the proposals
16. Is the River Rising Higher than the Source? Nature of Rules of Business — Directory
or Mandatory?
17. The Power of Eminent Domain and the New Legislation on Land Acquisition — Some Reflections
Part V. FOURTH ESTATE: MEDIA POWER
18. Trial by Media
Subject Index
9789351452089
1. Working Constitution
342.540200 / PAI-2
Working of the constitution : Checks and balances - Lucknow Eastern Book Co. 2014 - 280p xvii
Table Of Contents:
Table of Cases
Part I. CONSTITUTIONAL SUPREMACY
1. The Myth of Sovereignty Evolution of the idea of judicial supremacy Concept of higher law — Origins of constitutionalism and judicial review Limited government and judicial review
Due process — substantive
Judiciary — The guardian of the Constitution — Constitutional supremacy
Constitutional interpretation — Implied limitations — Need
Need for judicial review and supremacy Qualifications for exercise of power of judicial review
Conclusion
Part II. LEGISLAT IVE POWER AND JUDICIAL OVERSIGHT
2. Some Facets of Parliament’s Legislative Power
3. Judicial Imprimatur on Parliament’s Mythical Power?
4. Problems and Paradoxes of Some Judgments Re: Parliamentary Privileges
Legislative/Parliamentary privileges — Expanded scope of Article 21
Cash for query — “MPs Expulsion case” Raja Ram Pal v. Lok Sabha Amarinder Singh v. Punjab Vidhan Sabha
No confidence motion — “JMM Bribery case” P.V. Narasimha Rao v. State (CBI/SPE)
Privileges — Non-members Whether oath a prerequisite for enjoying privileges and immunities
Legislative privileges — Officers Discussion re: Private conduct of a judge
Notice to the House/Speaker — Appearance in court
5. Reforms of Political Parties and the Electoral System Organisation of society Democracy Constitutional democracy — Irreducible essentials Representative democracy Rule of law and democracy
Degeneration — Need for reforms
Political parties — Role and decline Present legal position
New law — Need and justification Salient features of the proposed law
Re: Constitutionality of the proposed law
Representational legitimacy
50 per cent + 1 vote — To be secured for being elected
Negative vote Compulsory voting Egalitarian voting
Criminal background — Disqualification for contesting
Money power — Ceiling on election expenditure
Vigilance Committees
Proposed amendments
Epilogue
6. Law Making — Knowability of the Law — Ignorance of Law — When an Excuse Law
Law-making in a parliamentary system
Public opinion
Institutions and systems
Legislation — Pre-enactment and post-enactment publicity
Primary legislation
Pre-enactment stage
Post-enactment stage
Legislature’s obligation
Delegated/subordinate legislation
Executive’s obligation
Rule of law — Constitutional fundamental — Accessibility of the law Knowability — Fundamental right
Ignorance of law should be an excuse
Epilogue
Part III. JUDICIAL POWER
7. Human Rights, Common Law and Judiciary
8. Is the Writ Jurisdiction Rendered Nugatory?
Judicial review
Writs
Exercise of jurisdiction — Courts’ functions
Supreme Court
Position diluted
Suggested remedy
High Courts — Not very different
Alternative remedy
Delay
Res judicata
Prohibition
Judicial review is about decisions too
Writ jurisdiction to be effectively exercised
9. Is Wednesbury on the Terminal Decline?
Judicial review — Constitutional supremacy vis-à-vis parliamentary sovereignty
Administrative law — Tools of legal control
Administrative law — Reasonableness
Legal concept of unreasonableness — Review of administrative action
Constitutional foundations of judicial review
Proportionality
Different standards of reasonableness
Wednesbury and proportionality
Human Rights Act in UK and its impact
Operation of Wednesbury and proportionality in judicial review
Margin of appreciation — Calibrating proportionality
No demise of Wednesbury
The correct legal position
Judicial review and appeal
Judicial review — Varying degrees
Judicial review and appeal — Remain distinct
Is “Wednesbury” redundant?
“State of U.P. v. Sheo Shankar Lal” — Inappropriate observations
Conclusion
An afterword
10. Public Interest Litigation and Judicial Activism in India
11. Environment Law and Role of Civil Courts
12. The Ninth Schedule Judgment — A Critique
Anomalies in Some Recent Judgments — An Appraisal
Part IV. EXECUTIVE POWER
14. Preserving the Primacy of the Prime Minister — A Case for Reform in India
15. Delay in Bringing Laws into Force — Assent and Justiciability Thereof
Legislation
Key features of a parliamentary system
Legislation — Introduction and passing and enforceability
Re: Assent to Bills
Head of State — Part of legislature — Assent necessary to make law
Comparative position — Other Constitutions
UK
Federal legislation
US
Canada
Some other countries
Provincial legislation
Australia
Canada
Constitutional position in India
Major premise
Exercise of power by President/Governor in general
Exercise of power by President/Governor re: Assent
Reserving for President’s consideration
Article 201 — President’s discretion
Time frame for exercise of power — No inaction
Justiciability of action under Articles 111, 200, 201
Madras High Court — Assent held justiciable
“Malwinder Singh and Kaiser-I-Hind” — Assent not legislative process — No idle formality — Open to judicial review
Judicial review of refusal of assent on substantive grounds — No constitutional heresy
Withholding assent — Amenable to judicial review
Non-justiciability of assent — Not the ratio of earlier judgments
Recommendations of various Commissions
Experience of working the Constitution
Governors
Need for amendments
Proposed amendments
Position re: Ordinances
Re: Post assent delays
Bringing an Act into force and making it workable
Delay-executive
Constitutional theory of legislative control over executive
Executive domination
Reasons for the delay
Effective and meaningful control and responsibility
Re: Bringing an Act into force
Framing rules, issuing orders, etc.
Need for the proposals
16. Is the River Rising Higher than the Source? Nature of Rules of Business — Directory
or Mandatory?
17. The Power of Eminent Domain and the New Legislation on Land Acquisition — Some Reflections
Part V. FOURTH ESTATE: MEDIA POWER
18. Trial by Media
Subject Index
9789351452089
1. Working Constitution
342.540200 / PAI-2
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