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 Home > LAWYERS > Constitutional Law > Constitution of India > 1st Edition, 2015 |
5
The book Working of the Constitution: Checks and Balances by V. Sudhish Pai covers constitutionalism, and contribution of the Supreme Court of India on constitutional issues. This meticulous work analyses the various judgments pronounced by the Supreme Court on Constitutional matters.
This painstaking work will be of invaluable assistance in presenting a true and clear picture of the law.
“Your scholarly articles and books are a great contribution to the development of Indian Constitutional law. Indeed there are no recent books worth mentioning on this branch of Indian Law .There is no doubt that the present generation of lawyers and Judges will surely be benefited by your critical analysis of the judgments of the Indian Supreme Court and of the High Courts. ” - Hon’ble Mr. Justice M. Jagannadha Rao, Former Judge, Supreme Court of India, Former Chairman, Law Commission of India.
"They are very well-researched articles and I congratulate you on the effort that you have put in. I am sure these articles will be quoted in due course when the occasion arises." - K.K. Venugopal, Senior Advocate, Supreme Court of India.
"The theme of your book is unique and timely. The book is obviously an outcome of deep research, analysis and assimilation of thoughts. Such original works are few in India." - Hon'ble Mr. Justice R.C. Lahoti, Former Chief Justice of India.
"Your legal scholarship and profound ability to critically scan and examine intricate legal issues as well as Judgments of highest Court has always impressed me. Your distinctive style of writing has always enriched the content of your writings." - Hon'ble Mr. Justice P.V. Reddy, Former Judge, Supreme Court of India and Former Chairman, Law Commission of India.
"'for the subtle races that produce such lawyers no legal doctrine can be too refined, no legal machinery can be too elaborate.' - Whitley Stokes
That’s praise for you too!!"- Fali S. Nariman, Senior Advocate, Supreme Court of India.
"... I have always admired your extraordinary academic talents and your concern for development of the constitutional ethos and principles. I remember with deep sense of gratitude your contribution in the Law Commission of Karnataka, when I was its Chairman regarding Governor’s power about according assent to the Bills passed by the Legislature. You have come out with your thesis on a very important facet of the Constitution which is not visible to the naked eye, the unseen, the checks and balances so vital to ensure smooth working of the constitution. I congratulate you for making them visible." - Nadoja Dr Justice V.S. Malimath
“I am very much impressed with your book 'Working of the Constitution : Checks and Balances'. The book has helped me to update my knowledge of Constitutional Law and Administrative Law. It is informative, instructive and interesting. As I was reading the book, I was wondering how much of study and analysis have gone into the book to make it what it is. The book is replete with apt quotations. Congratulations! The book deserves widest possible circulation among law students, law teachers, lawyers, Judges and judicial officers...”- P.P. Rao, Senior Advocate
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
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