Centenary of HM Seervai – Doyen of Indian constitutional law – an Australian appreciation

Legal Studies ◽  
2007 ◽  
Vol 27 (3) ◽  
pp. 361-378
Author(s):  
Michael Kirby
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Fourth Edition ◽  
High Court ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Judicial Authority

For much of the second half of the twentieth century, HM Seervai was a leading advocate of the Bombay High Court. He argued some of the most important constitutional cases decided by the Supreme Court of India and eventually resolved in 1970 to write his Constitutional Law of India. It became the leading text on Indian constitutional law. It is still in widespread use. Many instances of recent citations are quoted. But it is not the usual commentary on the text of the Indian constitutional and case law. Instead, the book contains a running discussion on the shifts in direction as well as sharp criticisms where Seervai felt that the courts had strayed from correct constitutional doctrine. Seervai died in 1996 as the fourth edition was just completed. In this paper, originally given as a lecture in Mumbai in 2007 on the centenary of Seervai’s birth, the author questions Seervai’s testamentary prohibition on posthumous editions of his text. He urges that a new edition should be produced to keep Seervai’s legacy alive not only in India but in other constitutional democracies where Indian judicial authority is increasingly cited.

Presumption of Marriage in Uganda

2020 ◽  
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Case Law ◽  
African Countries ◽  
High Court ◽  
The Supreme Court ◽  
Living Together ◽  
Law And Legislation ◽  
Court Of Appeal

Abstract Case law, amongst other sources, shows that many people in Uganda are living together as husband and wife although they are not married. Unlike legislation in other African countries such as Tanzania and Malawi, in Uganda, the pieces of legislation governing marriages are silent on the issue of presumption of marriage. Likewise, unlike in Kenya and South Africa where legislation does not provide for presumption of marriage but courts have held that such a presumption exists based on long cohabitation, Ugandan courts, the High Court, and the Court of Appeal, have held that Ugandan law does not recognise marriage based on long cohabitation (marriage by repute). However, courts will presume the existence of a marriage where a marriage ceremony took place. Since 2003, attempts to enact legislation to provide for the presumption of marriage in Uganda have not been successful. In this article, the author argues that there is still room for the Supreme Court to hold, on the basis of common law, that Ugandan law recognises the principle of presumption of marriage. This recognition would also be in line with Uganda’s international law obligation as the Committee on the Elimination of Discrimination against Women has called upon States Parties to CEDAW to enact legislation giving effect to de facto unions. The author relies on case law and legislation from some African countries to suggest ways in which the Supreme Court could deal with the issue of presumption of marriage.

Teaching Constitutional Law Using Real-life Examples: An Example from the Practice of Assent to Bills Passed by the National Assembly After the Tenure of Office of the President and the Assembly

2020 ◽  
Vol 7 (2) ◽  
pp. 140-151
Author(s):  
Chukwuka Onyeaku ◽  
Tonye Clinton Jaja
Keyword(s):  
Supreme Court ◽  
Federal Republic ◽  
Constitutional Law ◽  
Real Life ◽  
Case Law ◽  
Legislative Process ◽  
National Assembly ◽  
The Supreme Court ◽  
The Subject

As a matter of tradition and necessity, teachers of constitutional law within Nigeria (and elsewhere) are often compelled to refer to case law to provide illustrations of principles of constitutional law as enshrined in the constitution of the Federal Republic of Nigeria, 1999 (as amended). However, in some instances, where the said constitution does not provide explicit provisions, teachers of constitutional law are compelled to cite foreign case law as persuasive precedents. Still there are instances wherein there are neither foreign case law nor indigenous case law as precedents. In such situations, teachers of constitutional law are compelled to examine existing case law and relevant legislation until there is a pronouncement from either the Supreme Court or an alteration of the constitution by the National Assembly. One such situation is the subject of the analysis in this article: the situation whereby a president provides assent to bills after the expiration of the tenure of the National Assembly. As legislative tradition, the last session of each Chambers of the Nigeria’s National Assembly culminating each legislative term is usually a valedictory Session. Accordingly, Thursday, 6 June 2019 witnessed the last Session of the eighth National Assembly. As the president transmitted a Proclamation letter terminating the term of the eighth National Assembly inaugurated on 9 June 2015, it becomes paramount to examine the legal and constitutional implications of bills passed by the eighth National Assembly between 2016 and 2018 and up to 5 June 2019, which were assented to by the president after the tenure of the Assembly and office of the president. Thus, this article examines the constitutionality or otherwise of assenting to bills passed by the National Assembly and assented to by the president after the expiration of tenure of their offices. The article argues that the provisions of the 1999 Constitution had been violated when the president signed into law bills passed by the eighth National Assembly after the tenure of office of the president and the eighth National Assembly. It concludes that bills rejected by the president will require another legislative process of being passed into law again by the same Assembly or subsequent one before it can be assented to by the president. Failure to follow this constitutional process will render the assent unconstitutional.

Part IV Federalism, A Federalism in Canada, Ch.18 From Dualism to Cooperative Federalism and Back?: Evolving and Competing Conceptions of Canadian Federalism

2017 ◽  
Author(s):  
Gaudreault-DesBiens Jean-François ◽  
Poirier et Johanne
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Empirical Reality ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Law ◽  
Cooperative Federalism ◽  
The Impact

This chapter documents the evolution from a dualist—“watertight compartments”—conception of Canadian federalism, to one that must acknowledge an increased number of intergovernmental cooperative ventures. It first examines Canada’s fundamentally dualist federal architecture before looking at the empirical reality of cooperative federalism which frequently challenges this structural dualism. It then considers how the rise of cooperative federalism influenced the evolution of the interpretive doctrines underpinning the law of Canadian federalism. Finally, it analyses the normative strength and scope of cooperative federalism, concluding that the impact of cooperative federalism in Canadian constitutional law remains tamed by the dualist conception of federalism that still underlies the Supreme Court of Canada’s federalism case law.

The Right to Treatment and the Right to Refuse Treatment-recent Case Law

1974 ◽  
Vol 2 (4) ◽  
pp. 455-470 ◽  
Author(s):  
Lynn Bregman Kassirer
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Important Case ◽  
Recent Case ◽  
The Supreme Court ◽  
Right To Refuse Treatment ◽  
The Right ◽  
Right To Refuse

Perhaps no other area of constitutional law has been expanding as rapidly as that pertaining to the rights of the incarcerated. The right to treatment has received the most judicial attention; one such case has just recently been granted review by the Supreme Court. This important case, and others which have appeared in recent months are presented for discussion in this article.

Pre-constitutional Laws in India: Beyond Presumption of Constitutionality

2020 ◽  
Author(s):  
Snehil Kunwar Singh
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
The Core ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Indian Law ◽  
Judicial Scrutiny ◽  
The Impact

Abstract Recent judgements of the Supreme Court of India have done away with presumption of constitutionality for pre-constitutional laws in India. Regarded as one of the core principles in the study of interpretation of statutes, presumption of constitutionality assumes great significance when constitutionality of any law is under challenge. Removal of this presumption for pre-constitutional laws has far-reaching potential on judicial scrutiny of vires of pre-constitutional laws. However, the implications of such removal on pre-constitutional laws have not been studied. This article is an attempt to study such implications. I shall take example of Indian law on sedition, which is a pre-constitutional law, to demonstrate the impact of removal of the presumption.

scholarly journals The Constitutional Case Law of Japan, 1970 through 1990

1997 ◽  
Vol 27 (1) ◽  
pp. 39
Author(s):  
A H Angelo
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
General Context ◽  
University Of Washington ◽  
The Supreme Court

This article is a book review of Lawrence N Beer and Hiroshi Itoh The Constitutional Case Law of Japan, 1970 through 1990 (University of Washington Press, Seattle, 1996) Pages i-xiv, 1-688 including appendices and index. The book contains 47 judgments of Japanese courts on constitutional matters delivered in the period 1970-1990, with most being from the Supreme Court of Japan. The editors, in the Introduction, provide an overview of Japan's constitutional law since 1945 and set the judicial developments in the general context of the Constitution of Japan, in its political setting and, more generally, in an international frame. Angelo praises the authors, concluding that this book is essential for all interested in legal and political developments in Japan.

Oil

2018 ◽  
Author(s):  
Lucas A. Powe
Keyword(s):  
United States ◽  
Twentieth Century ◽  
Property Rights ◽  
Natural Resources ◽  
Supreme Court ◽  
Constitutional Law ◽  
Oil Fields ◽  
Martial Law ◽  
The Supreme Court ◽  
Mineral Rights

This chapter discusses the legal battles over oil and mineral rights in Texas. In the first half of the twentieth century the discoveries of mass oil fields boosted the Texas economy. With oil at three dollars per barrel, Texas voters, in a 1917 addition to the state constitution, gave the legislature the power to pass all necessary legislation to conserve and develop the state's natural resources. In 1931, Texas Governor Ross Sterling declared martial law. Eugene Constantin filed a lawsuit, claiming an unconstitutional interference with his property rights. The chapter examines this case, Sterling v. Constantin, and three important legal events that occurred affecting Texas oil by the time the Supreme Court heard arguments for it. It also considers the significance of Sterling v. Constantin for constitutional law. Finally, it analyzes two other cases, Panama Refining v. Ryan and United States v. Texas.

scholarly journals La irrecurribilidad de autos dictados por la Audiencia Provincial: comentario al auto del Tribunal Supremo, de fecha 30 de mayo de 2018 = The non-appeal of a judicial decree dictated by the Provincial Hearing: comment to the Judicial decree of the Supreme Court, dated may 30, 2018

2019 ◽  
Vol 11 (1) ◽  
pp. 856
Author(s):  
Antonio Merchán Murillo
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
High Court ◽  
The Supreme Court ◽  
Recognition And Enforcement

Resumen: En el presente estudio se pone de manifiesto la irrecurribilidad de un Auto recaído en un procedimiento sobre reconocimiento y ejecución de sentencia extranjera, tal y como se venía propugnando por la jurisprudencia del Tribunal Supremo. Esta cuestión se viene a solventar con la LCJIMC.Palabras clave: auto, recurso de casación; procedimiento de exequátur; Tribunal Supremo.Abstract: The present study highlights the non-appeal of a judicial decree in a procedure for the recognition and enforcement of foreign judgments, as defended by the Supreme Court’s case law. Thisquestion comes to be resolved withthe LCJIMC.Keywords: judicial decree; cassation appeal; exequatur procedure; High Court.

Dr. Janel Jeyapaul v. SRM University: Private Organisations and Public Rights

2017 ◽  
pp. 1-14
Author(s):  
Akhileshwar Pathak
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Fundamental Rights ◽  
High Court ◽  
The Supreme Court ◽  
Public Rights

A person can approach the High Court directly under Article 226 for a violation of a Fundamental Right. The Fundamental Rights, however, are available only against the bodies which are ‘state’ within Article 12 of the Constitution. The judgement of the Supreme Court in Dr. Janet Jeyapaul v. SRM University extends the ambit of Article 226 to all bodies, whether governmental or private, which are performing ‘public function’ or ‘public duty’. Imparting education is taken to be a public function. The judgement opens new dimensions of constitutional law

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