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