The Need for ‘Nudges’ by the Supreme Court of India: The Case of the Appointment and Removal of the Governors in India

2019 ◽  
Vol 65 (2) ◽  
pp. 390-408
Author(s):  
Siddharth Peter de Souza ◽  
Aayush Agarwala
Keyword(s):  
Supreme Court ◽  
Critical Appraisal ◽  
Indian States ◽  
Indian Constitution ◽  
Constituent Assembly ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Intractable Problem ◽  
Exercise Of Discretion

Recent instances of improper exercise of discretion by governors of Indian states have once again underscored the need for a critical appraisal of the manner in which such governors are appointed and removed under the Indian Constitution. The gulf between what the role of a governor was envisaged to be by the Constituent Assembly and what has actually played out in reality is a matter of grave concern. It would not be wise for us to expect the legislature to provide any solution to this problem, since the prevailing scenario plays to the advantage of whichever party holds the reins at the Centre. The judgement of the Supreme Court of India in the B. P. Singhal case made some important interventions as far as this vexed issue is concerned. However, the much-needed panacea to the ills of the process of appointment and removal of governors is still eagerly awaited. In this article, we recommend that the Supreme Court of India adopts a more contextualised approach to solving this intractable problem and considers adopting the ‘nudge theory’ to provide a framework to encourage important actors in this context to take more responsible and fair decisions in order to protect and preserve the democratic structures.

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.

scholarly journals Concept of right to life and its protection under the Constitution of India

2019 ◽  
pp. 55-68
Author(s):  
HARSH PATHAK
Keyword(s):  
Supreme Court ◽  
Fundamental Rights ◽  
Right To Life ◽  
Indian Constitution ◽  
Personal Liberty ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Original Sense ◽  
Life Itself ◽  
The Right

The constitution and jurist characterized Article 21 as, “the procedural magna carta, protective of life and liberty”. This right has been held to be the heart of the constitution, the most organic and progressive provision in Indian constitution, the foundation of our laws. Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12. Violation of the right by private individuals is not within the preview of it. Article 21 applies to natural persons. The right is available to every person, citizen or alien. It, however, does not entitle a foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e). Everyone has the right to life, liberty and the security of person. The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation. There would have been no fundamental rights worth mentioning if Article 21 had been interpreted in its original sense. This Article will examine the right to life as interpreted and applied by the Supreme Court of India.

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.

The Oil and Gas Sector in India: Balancing Business Policies and Public Interest by the Supreme Court of India

2021 ◽  
Vol 2 (1) ◽  
pp. 1-21
Author(s):  
M P Ram Mohan ◽  
Shashi Kant Yadav
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Common Good ◽  
Central Government ◽  
Legislative Power ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Business Policies ◽  
Energy Justice

Indian authorities have formulated and implemented several policies for exploration, production, refining, transportation, and distribution of its Oil & Gas (O&G) resources. With respect to governance of O&G industry, though, the Indian Constitution envisions larger role of Central government, however, the legislative power, over O&G resources, has been in contention between Centre and States over the past seven decades. Moreover, the legislative power of the central government over O&G resources is subject to ‘public interest’ ensuring that the resources are regulated for common good. The interaction between business policies and public interest, and law-making power between Centre and States have been subject to the Supreme Court's (Court's) review covering the constitutional aspects of O&G sector. These constitutional decisions determined the energy progression in India, especially understanding the ‘shape and form’ of energy justice in India. The paper analyses the role of the Supreme Court of India in balancing public interest and business policies through mapping of all the constitutional cases and also important administrative matters, consecutively laying down the foundation of distributive energy justice in India.

The Freedom of Trade and Commerce in the Indian Constitution: The Atiabari Case and after

1963 ◽  
Vol 21 (1) ◽  
pp. 54-84
Author(s):  
H. M. Seervai
Keyword(s):  
Supreme Court ◽  
The State ◽  
Indian Constitution ◽  
Supreme Court Of India ◽  
The Supreme Court

Now that the Supreme Court of India has reconsidered its earlier judgment in Atiabari Tea Co., Ltd. v. The State of Assam in Automobile Transport (Rajasthan), Ltd. v. State of Rajasthan it would not be inappropriate to attempt a brief critical and analytical account of the two judgments and of the problem of the freedom of trade, commerce and intercourse within the territory of India with which they deal. As will presently appear the task is not easy, first, because the drafting of the articles in Part XIII of the Constitution leaves much to be desired and, secondly, because the wide diversity of judicial opinion disclosed in the Atiabari and the Rajasthan cases does not make the task of the commentator any easier.

Response of India towards Torture and Custodial Violence

2020 ◽  
pp. 81-149
Author(s):  
Joshua N. Aston
Keyword(s):  
Supreme Court ◽  
Armed Forces ◽  
Legal Framework ◽  
Special Rapporteur ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Right ◽  
Supreme Court Rulings ◽  
National Police

The chapter deals with the legal framework in India against torture and custodial violence and the response and role of the Indian police force in such crimes. It also gives statistical data on violence taking place in the country at the hands of the police and armed forces. It provides a summary of the report of the United Nations Special Rapporteur on arbitrary and extra-judicial executions. The chapter also discusses the right to protection against torture and the views and verdicts of the Supreme Court of India, and highlights the role of statutory bodies and commissions such as the Law Commission of India and the National Police Commission in preventing torture and custodial violence. Therefore, this chapter has reference to several laws of the country and the Constitution of India and its provisions, and it cites some cases and Supreme Court rulings for preventing torture and custodial violence, which provides India’s response towards the prevention of torture and custodial violence and protecting victims as well as every citizen from such crimes.

scholarly journals A New Dawn? Statelessness and Assam

2019 ◽  
Vol 7 (1) ◽  
pp. 99-111
Author(s):  
Regina Menachery Paulose
Keyword(s):  
Supreme Court ◽  
Robust Solutions ◽  
Refugee Law ◽  
Supreme Court Of India ◽  
The People ◽  
The Supreme Court ◽  
History Of ◽  
The Government ◽  
International Refugee Law

This article explores the ongoing crisis of statelessness that has been created because of a petition made by the people of Assam, India to update the electoral rolls in the state. As a result of the process, which has been approved by the Supreme Court of India, an estimated 4 million people have become stateless. The government has stated that these 4 million people risk deportation back to Bangladesh. This article will briefly examine the history of the situation that has unfolded in Assam; discuss the role of statelessness and how it may lead to genocide, underscoring the importance to act and find robust solutions. Finally, the author will conclude by discussing potential actions that India should take in order to resolve future cases of statelessness, specifically examining the Global Compact on Refugees and other instruments provided for within international refugee law. 

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