Part IV Separation of Powers, Ch.20 Judicial Independence

2016 ◽  
Author(s):  
Srikrishna BN
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Separation Of Powers ◽  
Judicial Independence ◽  
Disciplinary Action ◽  
Indian Constitution ◽  
High Courts ◽  
Indian Supreme Court

This chapter focuses on the independence of the Indian judiciary and how judicial independence has been interpreted and secured in the country’s constitutional law. In particular, it considers the balance between judicial independence and judicial accountability, along with various concerns and goals that have shaped constitutional doctrine in this area. The chapter begins with and primarily focuses upon a study of the appointment of judges to the higher judiciary and its relevance to the debate over judicial independence in India. It then describes the conditions of service of officers and servants of the Indian Supreme Court and the High Courts as spelled out in the Indian Constitution. It also discusses the approach towards disciplinary action against judges, including their impeachment, and concludes by looking at issues that are integral to the question of judicial independence, especially those relating to salaries, tenure, transfers, and removal.

Part IV Separation of Powers, Ch.19 Judicial Architecture and Capacity

2016 ◽  
Author(s):  
Robinson Nick
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Judicial System ◽  
Stare Decisis ◽  
Indian Constitution ◽  
Administrative Control ◽  
High Courts ◽  
Different Types ◽  
Indian Supreme Court

This chapter examines the structure of the Indian judiciary, which includes the different types of courts and judges as well as the hierarchies and relations between them. In particular, it considers the appeal and stare decisis, along with the system of internal administrative control through which the Indian judiciary coordinates its behaviour. The discussion begins with an overview of India’s judicial system and the relevant provisions of the Indian Constitution. The chapter then discusses the functioning of the Indian Supreme Court, the High Courts, and subordinate judiciary. It comments on the top-heaviness of the Indian judiciary and its impact on the judicial system’s performance.

Part IV Separation of Powers, Ch.21 Jurisdiction

2016 ◽  
Author(s):  
Vakil Raeesa
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Appellate Court ◽  
Constitutional Court ◽  
Constitutional Interpretation ◽  
Indian Constitution ◽  
The Supreme Court ◽  
Indian Supreme Court ◽  
Exercise Of Discretion

This chapter explores how the jurisdiction of the Indian Supreme Court has evolved as an appellate court, a constitutional court, and a ‘final’ court. It begins by reviewing the four kinds of appeal that may be heard by the Supreme Court as specified in the Indian Constitution: civil, criminal, questions of constitutional interpretation, and appeals by special leave of the Court. It then considers the uncertainty and expansion in the Supreme Court’s appellate jurisdiction, with particular emphasis on the imbalance in jurisdictional reforms, the absence of guidelines for the exercise of discretion, and inconsistency in implementing constitutional provisions. It also discusses the Court’s advisory jurisdiction, adjudication of federal disputes, and jurisdiction to interpret the Constitution, along with its power to enforce justice and its claim to inherent powers. The chapter concludes by outlining some of the challenges faced by the Court today.

Part IV Separation of Powers, Ch.24 Review of Administrative Action

2016 ◽  
Author(s):  
Jalan Prateek ◽  
Rai Ritin
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Executive Power ◽  
Indian Constitution ◽  
Administrative Action ◽  
Administrative Review ◽  
Consistent Basis ◽  
Indian Supreme Court ◽  
Legislative Review

This chapter examines the concept of administrative review in the context of the Indian Constitution, with particular emphasis on how administrative actions are reviewed under Article 14. It first considers whether administrative review is different from legislative review, and especially whether the grounds of judicial review under Article 14 apply to the same extent when it comes to the validity of legislation compared with administrative action. It then discusses the scope of the power of administrative review under the concept of ‘reasonableness’ and whether this concept has been applied on a consistent basis. It also comments on the inherently abstract and imprecise nature of the concept of ‘reasonableness’ and how this has contributed to the lack of a judicially manageable test or standard for analysing the various cases adjudicated by the Indian Supreme Court. Finally, the chapter discusses the nature of executive power and how it may influence an adjudication of reasonableness.

Part V Federalism, Ch.27 Inter-State Trade, Commerce, and Intercourse

2016 ◽  
Author(s):  
Datar Arvind P
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Court Ruling ◽  
Supreme Court Ruling ◽  
Indian Constitution ◽  
Inland Waterways ◽  
Indian Supreme Court ◽  
Inter State

This chapter examines the trade, commerce, and intercourse clauses in the Indian Constitution. Part XIII of the Indian Constitution consists of Articles 301 to 305 and encompasses ‘Trade, Commerce and Intercourse within the territory of India’. The focus of this chapter is on the controversy surrounding compensatory taxes. It first compares the Indian framework with Australian law on trade, commerce, and intercourse, before discussing the controversy over compensatory tax that began with Section 3 of the Assam Taxation (On Goods Carried by Roads or Inland Waterways) Act 1954 and whether the concept of compensatory tax has a place in Indian constitutional law. It then considers the Indian Supreme Court ruling in the Atiabari and Automobile Transport cases and concludes by analysing unresolved questions, such as whether the imposition of entry tax levied under Entry 52, List II, violates Article 301.

Part VI Rights—Structure and Scope, Ch.34 Writs and Remedies

2016 ◽  
Author(s):  
Subramanium Gopal
Keyword(s):  
Supreme Court ◽  
Fundamental Rights ◽  
Habeas Corpus ◽  
Indian Constitution ◽  
Res Judicata ◽  
High Courts ◽  
Governmental Institutions ◽  
Indian Supreme Court ◽  
Public Bodies

This chapter examines the relevant provisions of the Indian Constitution regarding the power of courts to issue writs and grant remedies, with particular emphasis on Articles 32 and 226. It considers these two provisions and how they empower the Indian Supreme Court and High Courts to issue directions, orders, or writs to any person or authority, and to enforce the fundamental rights. It then considers a number of issues relating to Article 226, such as whether it is confined to governmental institutions and statutory public bodies, along with the question of cause of action and territoriality. It also discusses the Supreme Court’s position on the nature of writ jurisdiction in India, including the writ of mandamus, habeas corpus, certiorari, prohibition, and quo warranto. Finally, the chapter explores the procedural aspects of constitutional remedies by focusing on res judicata, questions of fact, and political questions.

scholarly journals From Executive Appointment to the Collegium System: The Impact on Diversity in the Indian Supreme Court

2019 ◽  
Author(s):  
Aparna Chandra ◽  
William Hubbard ◽  
Sital Kalantry
Keyword(s):  
Supreme Court ◽  
Gender Diversity ◽  
High Court ◽  
Judicial Appointments ◽  
High Courts ◽  
National Debate ◽  
The Supreme Court ◽  
Indian Supreme Court ◽  
The One ◽  
The Impact

There has been a national debate raging in India about the system of appointments for Supreme Court and High Court judges. At the founding of the Indian Supreme Court, the executive had primary authority over judicial appointments. In 1993, the Supreme Court created a new system of appointments known as the collegium system, whereby the Chief Justice of India and senior judges of the Supreme Court make new appointments to the Supreme Court as well as the High Courts. In 2014, Parliament amended the Constitution and passed a bill to create a commission to appoint judges, but the Indian Supreme Court declared the law unconstitutional.In this article, we ascertain whether the nature of the appointments procedure impacts the biographical and other characteristics of the judges that are eventually selected. We do this by comparing the biographical characteristics of judges appointed by the executive-appointments system (prior to 1993), on the one hand, and the judges appointed by the collegium (on or after 1993) to the Supreme Court of India.We find that both the pre-collegium and the collegium system maintain the geographical and religious diversity of India in the candidates that are appointed. However, both have failed to account for gender diversity. In addition, the path to the Supreme Court appears to have narrowed – typically those who are appointed as judges by the collegium spend longer periods in private practice and on the bench than pre-collegium judges.

Part IV Separation of Powers, Ch.15 Separation of Powers

2016 ◽  
Author(s):  
Pal Ruma
Keyword(s):  
Constitutional Law ◽  
Separation Of Powers ◽  
Judicial Power ◽  
Indian Constitution ◽  
Auditor General ◽  
Election Commission

This chapter examines how the issue of separation of powers is treated in the Indian Constitution. More specifically, it considers whether the separation of powers is a principle in the constitutional law of India and if so, what sort of doctrine of separation of powers is embraced by the Indian Constitution. The chapter begins with an overview of the three models of separation of powers articulated in the Indian Constitution, along with the constitutional provisions showing the functional overlap between the executive, legislature, and judiciary. It then turns to a discussion of the legislative branch’s judicial powers under the Constitution, as well as its control of the judiciary; the executive’s administration, legislative, and judicial functions; and the courts’ judicial power and independence. Finally, it looks at the allocation of powers relating to governance to autonomous bodies such as the Election Commission and the Comptroller and Auditor-General.

Part II Negotiating Constitutionalism, Ch.6 Law, Politics, and Constitutional Hegemony: the Supreme Court, jurisprudence, and demosprudence

2016 ◽  
Author(s):  
Baxi Upendra
Keyword(s):  
Supreme Court ◽  
Social Action ◽  
Socially Responsible ◽  
Indian Constitution ◽  
Constitutional Amendments ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Indian Supreme Court ◽  
Politics And Law ◽  
Constitutional Pluralism

This chapter examines constitutional hegemony in relation to three forms of prudence: legisprudence, jurisprudence, and demosprudence. It considers how constitutional pluralism has influenced the making and working of the Indian Constitution, especially through the dynamics of the Supreme Court of India. In particular, it explores the notion of adjudicatory leadership and the concept of demosprudence in the context of the Indian Supreme Court, along with the changing relation between demosprudence and jurisprudence. The article first looks at the demosprudence of the Supreme Court of India, before discussing the concepts of organisational adjudicatory leadership, hermeneutic adjudicatory leadership, Social Action Litigation, and socially responsible criticism. It also analyses the politics and law of constitutional amendments.

Commitment and Cooperation on High Courts

2017 ◽  
Author(s):  
Benjamin Alarie ◽  
Andrew J. Green
Keyword(s):  
Supreme Court ◽  
Building Blocks ◽  
Two Dimensions ◽  
Supreme Court Of Canada ◽  
High Courts ◽  
House Of Lords ◽  
Indian Supreme Court ◽  
Uk Supreme Court ◽  
The Uk ◽  
High Court Of Australia

This chapter sets out and justifies the building blocks of commitment and cooperation. These two dimensions allow the authors to situate high courts relative to each other. They use them to focus on the five main high courts in their study, namely, the US Supreme Court, the UK Supreme Court (and its predecessor House of Lords), the Supreme Court of Canada, the High Court of Australia, and the Indian Supreme Court. This chapter provides both a preliminary assessment of how these courts sit relative to each other along these two dimensions and a brief overview of the key design choices made by each of these courts.

Expressive Conduct and Article 19(1)(a) of the Indian Constitution: A Purposivist Approach

2021 ◽  
pp. 1-26
Author(s):  
Raghav Kohli
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Ad Hoc ◽  
The United States ◽  
Indian Constitution ◽  
The Us ◽  
Indian Supreme Court ◽  
Judicial Scrutiny ◽  
Speech Clause

Abstract Unlike the First Amendment of the United States, the quest to develop a grand theory to explain the scope and purpose of the free speech clause of the Indian Constitution has rarely been attempted. In this void, the significant constitutional question of when expressive conduct should trigger free speech protection has not received adequate academic and judicial scrutiny in India despite its global resonance. This article examines the evolution of the current doctrine by the Indian Supreme Court on the issue of expressive conduct and finds that the Court's ad-hoc approach fails to provide a meaningful resolution framework. Analysing the jurisprudence of the US Supreme Court on its First Amendment, it discusses two potential approaches available to the Indian Supreme Court: one based on the speaker's conduct, and the other, based on state purposes. It argues that focusing on state purposes not only provides a principled answer to this conundrum but is also consistent with Indian free speech jurisprudence. Contrary to contemporary scholarship, it demonstrates that the law on Article 19(1)(a) of the Indian Constitution, as moulded by the Indian Supreme Court over decades, has implicitly treated the examination of state purpose as its predominant inquiry. This article concludes with some ideas on the limitations and prospects of adopting such an approach.

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