BASIC STRUCTURE DOCTRINE Raju Ramachandran* 1
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The Case of the Indian Supreme Court - and a Plea for Research
The Journal of Appellate Practice and Process Volume 9 Issue 2 Article 3 2007 Scholarly Discourse and the Cementing of Norms: The Case of the Indian Supreme Court - and a Plea for Research Jayanth K. Krishnan Follow this and additional works at: https://lawrepository.ualr.edu/appellatepracticeprocess Part of the Comparative and Foreign Law Commons Recommended Citation Jayanth K. Krishnan, Scholarly Discourse and the Cementing of Norms: The Case of the Indian Supreme Court - and a Plea for Research, 9 J. APP. PRAC. & PROCESS 255 (2007). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol9/iss2/3 This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. SCHOLARLY DISCOURSE AND THE CEMENTING OF NORMS: THE CASE OF THE INDIAN SUPREME COURT -AND A PLEA FOR RESEARCH Jayanth K. Krishnan* I. INTRODUCTION For Americans, India has been a country of intense interest in recent years. Less than ten years ago India alarmed many around the world, including then-President Clinton, after it (and neighboring Pakistan) conducted a series of nuclear tests.' But even before this military display, India was on the radar of observers in the United States. Since opening its markets in 1991, India has been fertile ground for American entrepreneurs2 engaged in outsourcing and for other foreign investors as well. With the exception of a two-year period between 1975 and 1977, India has served as a light of democratic rule in the developing world since it gained independence from Britain in 1947. -
State Constitutions and the Basic Structure Doctrine Manoj Mate, Whittier Law School
Whittier College From the SelectedWorks of Manoj S. Mate 2014 State Constitutions and the Basic Structure Doctrine Manoj Mate, Whittier Law School Available at: https://works.bepress.com/manojmate/4/ COLUMBIA HUMAN RIGHTS LAW REVIEW STATE CONSTITUTIONS AND THE BASIC STRUCTURE DOCTRINE Manoj Mate, Ph.D., J.D. Reprinted from Columbia Human Rights Law Review Vol. 45, No. 2 Winter 2014 COLUMBIA HUMAN RIGHTS LAW REVIEW Vol. 45, No. 2 Winter 2014 EDITORIAL BOARD 2013–2014 Editor-in-Chief Ashley Starr Kinseth Executive Editor JLM Editor-in-Chief Edward Kim Alejandro Ortega Journal Executive Executive JLM Executive Submissions Editor Production and Managing Editor Nathiya Nagendra Managing Director Katherine Park Alexander Zbrozek Journal Executive JLM Executive Articles Notes Editor Director of Staff and Editor Zahreen Ghaznavi Alumni Development Michelle Luo Dinah Manning Journal Notes and JLM Executive State Submissions Editors Supplements Editor Brian Civale Aretha Chakraborti Max Hirsch Caroline Stover Executive SJLM Editor Eduardo Gonzalez Journal Articles Editors JLM Articles Editors Beatrice Franklin Rachel Burkhart Mickey Hubbard Meagan Burrows Tamara Livshiz David Hirsch Ian MacDougall Mark Singer Sara Nies Alyssa White Sarah Saadoun Heejeong Won Journal Managing JLM Managing Editors Editors JoAnn Kintz Diane Chan Jarrell Mitchell Johanna Hudgens Corinna Provey Benjamin Menker Dina Wegh COLUMBIA HUMAN RIGHTS LAW REVIEW Vol. 45, No. 2 Winter 2014 STAFF EDITORS Mitra Anoushiravani Joseph Guzman Patrick Ryan Nieri Avanessian Whitney Hayes -
Defining Shariʿa the Politics of Islamic Judicial Review by Shoaib
Defining Shariʿa The Politics of Islamic Judicial Review By Shoaib A. Ghias A dissertation submitted in partial satisfaction of the Requirements for the degree of Doctor of Philosophy in Jurisprudence and Social Policy in the Graduate Division of the University of California, Berkeley Committee in Charge: Professor Malcolm M. Feeley, Chair Professor Martin M. Shapiro Professor Asad Q. Ahmed Summer 2015 Defining Shariʿa The Politics of Islamic Judicial Review © 2015 By Shoaib A. Ghias Abstract Defining Shariʿa: The Politics of Islamic Judicial Review by Shoaib A. Ghias Doctor of Philosophy in Jurisprudence and Social Policy University of California, Berkeley Professor Malcolm M. Feeley, Chair Since the Islamic resurgence of the 1970s, many Muslim postcolonial countries have established and empowered constitutional courts to declare laws conflicting with shariʿa as unconstitutional. The central question explored in this dissertation is whether and to what extent constitutional doctrine developed in shariʿa review is contingent on the ruling regime or represents lasting trends in interpretations of shariʿa. Using the case of Pakistan, this dissertation contends that the long-term discursive trends in shariʿa are determined in the religio-political space and only reflected in state law through the interaction of shariʿa politics, regime politics, and judicial politics. The research is based on materials gathered during fieldwork in Pakistan and datasets of Federal Shariat Court and Supreme Court cases and judges. In particular, the dissertation offers a political-institutional framework to study shariʿa review in a British postcolonial court system through exploring the role of professional and scholar judges, the discretion of the chief justice, the system of judicial appointments and tenure, and the political structure of appeal that combine to make courts agents of the political regime. -
India and the Rise of the Good Governance Court
Washington University Global Studies Law Review Volume 8 Issue 1 January 2009 Expanding Judiciaries: India and the Rise of the Good Governance Court Nick Robinson Yale Law School Follow this and additional works at: https://openscholarship.wustl.edu/law_globalstudies Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, Courts Commons, and the Judges Commons Recommended Citation Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, 8 WASH. U. GLOBAL STUD. L. REV. 1 (2009), https://openscholarship.wustl.edu/law_globalstudies/vol8/iss1/2 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Washington University Global Studies Law Review VOLUME 8 NUMBER 1 2009 EXPANDING JUDICIARIES: INDIA AND THE RISE OF THE GOOD GOVERNANCE COURT NICK ROBINSON∗ ABSTRACT In recent years, courts have risen in power across the world, and the Indian Supreme Court has rightly been pointed to as an example of this global trend. In many ways the Indian Court has become a court of good governance that sits in judgment over the rest of the Indian government. This Article argues that the Court has expanded its mandate as a result of the shortcomings (real, perceived, or feared) of India’s representative institutions. The Indian Supreme Court’s institutional structure has also aided its rise and helps explain why the Court has gained more influence than most other judiciaries. -
The Meaning of Law, 49 J. Marshall L. Rev. 1077 (2016)
UIC Law Review Volume 49 Issue 4 Article 4 Summer 2016 The Meaning of Law, 49 J. Marshall L. Rev. 1077 (2016) Anuj Puri Follow this and additional works at: https://repository.law.uic.edu/lawreview Part of the Law Commons Recommended Citation Anuj Puri, The Meaning of Law, 49 J. Marshall L. Rev. 1077 (2016) https://repository.law.uic.edu/lawreview/vol49/iss4/4 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Review by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. THE MEANING OF LAW1 ANUJ PURI I. INTRODUCTION ................................................................... 1078 II. THE MEANING OF “MEANING” ............................................. 1079 III. FROM MEANING TO DEFINITION .......................................... 1081 A. Infusion of Meaning: The Myth of Sisyphus ................ 1086 IV. THE BATTLE BETWEEN SINGULARITY AND PLURALITY.......... 1088 A. Exhibit A: The Doctrine of Basic Structure ................. 1090 B. Exhibit B: M/s. DRG Grate Udyog v. State of Madhya Pradesh ...................................................................... 1094 C. Exhibit C: The “Right to Education” Case ................... 1096 D. Meaning and Identity ................................................. 1098 V. CONCLUSION ..................................................................... 1100 “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.” ~Lewis Carroll, Through the Looking-Glass2 Abstract Human beings intrinsically seek meaning. We readily accept and absorb a proposition or even a legal stipulation, if it is meaningful. -
IR Coelho (Dead) by L.Rs. Vs. State of Tamil Nadu & Others
“I.R. Coelho (dead) by L.Rs. Vs. State of Tamil Nadu & Others” The Nine Judges' decision by Supreme Court (The 9th Schedule Case) 'A Case Study' Lecture delivered at the 'Advocates Association' on 9th Feb., 2007 at 4.15 pm: Organised by 'SAMVAAD' **** By Justice Sunil Ambwani, Judge Allahabad High Court, Allahabad 1. The nine judges' Bench presided by Justice Y.K. Sabharwal, CJI delivered a unanimous verdict on 11.1.2007 in I.R. Coelho (dead) by L.Rs. Vs. State of Tamil Nadu and others, upholding the 'Basic Structure Doctrine', and the authority of the judiciary to review any such laws, which destroy or damage the basic structure as indicated in Art.21 read with Art.14, Art.19 and the principles underlying thereunder, even if they have been put in 9th Schedule after 14th April, 1973 (the date of the judgment in Kesavananda Bharti's case). The judgment upholds the right of judicial review and the supremacy of judiciary in interpreting the laws, which have been constantly under threat. The judgment reiterates and defines the exclusive right of the judiciary to interpret laws, in an ongoing struggle of supremacy between legislative and judiciary since 26th Nov. 1949, when the Constitution was dedicated to the people of India. Legislative History: Right to Property 2. The philosophy underlying our Constitution goes back to the historic Objective Resolution of Pt. Jawahar Lal Nehru adopted by the Constituent Assembly on January 22, 1947, which inspired the shaping of the Constitution through all its subsequent stages: 'The guarantee and security to all the people of India, justice, social, economic and political; equality of status of opportunity, before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality was the objectives for drafting the Constitution.' The preamble embodied these objectives. -
The Malaysian Judiciary and Constitutional Politics
Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2016 On the Uneven Journey to Constitutional Redemption: The Malaysian Judiciary and Constitutional Politics Yvonne Tew Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1924 25 Wash. Int'l. L.J. 673 (2016) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Comparative and Foreign Law Commons, and the Constitutional Law Commons Compilation © 2016 Washington International Law Journal Association ON THE UNEVEN JOURNEY TO CONSTITUTIONAL REDEMPTION: THE MALAYSIAN JUDICIARY AND CONSTITUTIONAL POLITICS Yvonne Tew† Abstract: This article explores the Malaysian judiciary’s approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation’s political and constitutional history. It traces the judiciary’s tentative movement toward a more rights-oriented approach followed by its more recent retreat in several appellate court decisions. This article argues that the Malaysian courts’ journey toward constitutional redemption has been uneven so far. In order to reclaim its constitutional position as a co-equal branch of government, the Malaysian judiciary must exhibit greater willingness to assert its commitment to constitutional supremacy and the rule of law. I. INTRODUCTION The story of the Malaysian judiciary is inextricably linked to the nation’s constitutional politics. It is a tale of the judicial institution’s rise, fall, and ensuing struggle toward constitutional restoration. Constitutional interpretation is, in large part, an underlying theme to this story: it is the means by which the judiciary articulates how it sees its role and molds its fate within the political climate that it finds itself. -
Doctrine of Basic Structure As a Constitutional Safeguard in India
15739 Iftikhar Hussian Bhat/ Elixir Inter. Law 59 (2013) 15739-15746 Available online at www.elixirpublishers.com (Elixir International Journal) International Law Elixir Inter. Law 59 (2013) 15739-15746 Doctrine of Basic Structure as a Constitutional Safeguard in India: Reflection in the Jurisprudence of Other Countries Iftikhar Hussian Bhat Department of Law, University of Kashmir. ARTICLE INFO ABSTRACT Article history: A representative government is always understood as a limited government for the reason Received: 20 April 2013; that the representatives are mere delegates under special orders. The Sovereignty in such Received in revised form: forms of government lies with the people and is expressed in a Constitution, written or 10 June 2013; unwritten. India has adopted a representative form of government under a written Accepted: 13 June 2013; Constitution operating as a limitation on governmental action. The framers of Indian Constitution came up with a written Constitution in order to ensure that there was some sort Keywords of rigidity in the Constitution. Also the power to amend was given to the Parliament under Constitution, Article 368 in order to overcome the difficulties which may encounter in future in the Parliament, working of the Constitution. However, the extent of flexibility embraced by a Constitution Basic Structure, has to be balanced by a need to preserve its normative character as a higher law that restrains Amendment, temporary parliamentary majorities of the nation. Article 368 of the Constitution does not Supreme Court. prescribe any express limitation upon the parliament’s amending power, however the Supreme Court in Keshavananda Bharati v. State of Kerala (1973) declared that Article 368 did not enable parliament to alter the ‘Basic Structure or Framework’ of the Constitution. -
Determining the Constitutionality of Constitutional Amendments in India, Pakistan and Bangladesh: a Comparative Analysis
DETERMINING THE CONSTITUTIONALITY OF CONSTITUTIONAL AMENDMENTS IN INDIA, PAKISTAN AND BANGLADESH: A COMPARATIVE ANALYSIS Aratrika Choudhuri & Shivani Kabra* Unconstitutional constitutional amendments present an intractable conun- drum in constitutional law theory and praxis, not the least because of the literal paradox in the term itself. The age-old tussle between the Parliament and the Judiciary, in delineating the scope of their powers, has had inevi- table spill-over effects on determining how far a constitution can be altered and negated. We argue that a conflation of the variegated categories of constituent powers has led to the evolution of misplaced critiques of im- plied restrictions on the Legislature’s constitution-amending powers, which characterise doctrines such as the Basic Structure Doctrine to be ‘counter- majoritarian’ checks on democracy and effective political change. In order to understand and engage with these criticisms more fully, we embark upon a comparative constitutional inquiry into the developments of the Basic Structure Doctrine in India, Bangladesh and Pakistan. In an effort to seek clarity as to the scope and limitations of these doctrines, we engage with the oft-reiterated criticisms levelled against this doctrine, not simply by evolv- ing a cogent epistemology on constitutional amendments, but rather with a focus on the actual evolution of the doctrine by the courts themselves. Such comprehensive engagement helps to dispel much of the objections and convoluted interpretations of the long-winded jurisprudence in this sphere, and serves to bring out the versatility of the doctrine in different jurisdic- tions with different socio-political contexts. We also critically examine the development of the Salient Features Doctrine in Pakistan, to determine how far it can be distinguished from the Basic Structure Doctrine, and how far it overcomes the objections to constitutional borrowing and legal transplan- tation from foreign jurisdictions. -
Indian Basic Structure Jurisprudence in the Islamic Republic of Pakistan: Reconfiguring the Constitutional Politics of Religion
This is the version of the article accepted for publication in Asian Journal of Comparative Law published by Cambridge University Press https://doi.org/10.1017/asjcl.2018.18 Accepted version downloaded from SOAS Research Online: https://eprints.soas.ac.uk/31044/ Indian Basic Structure Jurisprudence in the Islamic Republic of Pakistan: Reconfiguring the Constitutional Politics of Religion Matthew J NELSON* School of Oriental and African Studies, University of London, United Kingdom [email protected] Abstract In both India and Pakistan, parliament is constitutionally endowed with ‘constituent power’, that is, the power to introduce constitutional amendments via procedures laid down in the constitution itself. Duly promulgated amendments, however, are occasionally struck down when Supreme Court judges see them as violating what the judges themselves define as the ‘essential features’ of each country’s constitutional ‘basic structure’. I trace the migration of basic structure jurisprudence from India to Pakistan, focusing on the ways in which it has elevated the power of judges over that of elected officials in the realm of religion-state relations. Specifically, I highlight the ways in which judicial independence vis-à-vis judicial appointments has been described as an essential feature of each country’s constitution, greatly enhancing the autonomous power of judges to mould constitutional benches that, in turn, define India’s constitutional understanding of secularism and Pakistan’s relationship with Islam. Constitutional articles providing -
Upholding Judicial Supremacy in India: the Njac Judgment in Comparative Perspective
39150-jle_49-3 Sheet No. 57 Side A 05/22/2017 10:41:02 \\jciprod01\productn\J\JLE\49-3\JLE303.txt unknown Seq: 1 17-MAY-17 10:19 UPHOLDING JUDICIAL SUPREMACY IN INDIA: THE NJAC JUDGMENT IN COMPARATIVE PERSPECTIVE REHAN ABEYRATNE* INTRODUCTION On October 16, 2015, the Supreme Court of India (Supreme Court) issued a landmark judgment in Supreme Court Advocates-on- Record Association v. Union of India (NJAC Judgment).1 The judg- ment held unconstitutional the Ninety-ninth Amendment to the Indian Constitution (Constitution) and accompanying legislation, which established a National Judicial Appointments Commission (NJAC or Commission).2 The Indian Parliament (Parliament) created the NJAC in response to criticisms of the existing “collegium” system, in which senior Supreme Court Justices had the final word on appointments to the higher judiciary.3 The NJAC comprised the Chief Justice of India, two other senior Justices, the union minister of law and jus- tice, and two “eminent persons.”4 By including political leaders and civil society representatives, Parliament sought to bring greater transparency and accountability to the process of judicial selection.5 The Supreme Court, however, denied Parliament the authority to make this determination by issuing the NJAC Judgment before the Commission began to operate. In a long and convoluted 39150-jle_49-3 Sheet No. 57 Side A 05/22/2017 10:41:02 majority opinion, Justice Khehar held that the NJAC violated the * Assistant Professor of Law, Chinese University of Hong Kong. Member, New York State Bar. J.D. 2010, Harvard Law School; A.B. 2007, Brown University. I am grateful to Shreya Atrey, Mark Friedman, Dipika Jain, Anna Lamut, Jayantha Perera, Sarbani Sen, Arghya Sengupta, and participants at the Fifth Annual YCC Global Conference for helpful comments, and Didon Misri for excellent research assistance. -
IJCL 2008 Inner Pages.P65
179 HOW LEGITIMATE IS NON-ARBITRARINESS? CONSTITUTIONAL INVALIDATION IN THE LIGHT OF MARDIA CHEMICALS V. UNION OF INDIA Abhinav Chandrachud* I. Introduction Strange silences punctuate the Indian Constitution,1 silences that distil powers of amendment2 and temper the hastiness of legislative process.3 Of these silences, one is a questionable presumption in favour of the benevolent aspect of the legislator, for it is well settled that a court will not look to the motives of Parliament,4 or to the members of which it is composed, while testing the constitutionality of its statutes.5 If a statute is to be invalidated, there must exist some lucid constitutional basis for the invalidation. No constitutional challenge can be sustained on the ground that the intention of Parliament was suspect – indeed there exists a converse presumption: that all statutes are enacted bona fide and the intention of Parliament in enacting the law is beyond question.6 This is a silent fiction which pervades the Indian Constitution. The presumption is one so fundamental that it continues to be drawn even where the statute suffers from a constitutional infirmity, though it may be invalidated on that account. * B.L.S., LL.B. Candidate (V Year), Government Law College, Mumbai. Paralegal, AZB & Partners. I must thank Mr. Nikhil Sakhardande for his invaluable suggestions and for the encouragement without which this comment would have been a distant reality. I am grateful to Rohan Rajadhyaksha and Jeet Shroff for sharing their thoughts with me on the subject. I also thank Jyoti Dogra Sood for making an exception in my case.