Suchergebnisse

India has a parliamentary system. But articled in India's Constitution is a provision that authorizes the President to occasionally enact legislation without involving Parliament. Such presidential legislation are called ordinances, not Acts; and rather than enact, the President promulgates them. Textually, ordinances are bounded by several 'controls'. They are limited to circumstances when at least one House of Parliament is not in session, and the President is satisfied that the circumstances are such that immediate action is necessary. And without such formal parliamentary approval after a specified duration, they cease to exist. But after sixty years of constitutional practice these controls are redundant; aggressive political conduct and forgiving judicial interpretations made them so. What was exceptional and temporary is now 'normal' and 'permanent'. As a result, India effectively has two 'Parliaments' – the President, formally speaking, is like a parallel Parliament. This article explains how this second – or, alternative – Parliament came about, and its implications for India's more traditional Parliament. The article locates its central claims within a larger body of comparative law scholarship on presidential systems and executive lawmaking, arguing that the powers of India's President (in acting through the Council of Ministers) rival the strongest presidencies globally.

This paper critically analyses the decision of the Singapore Court of Appeal in Yong Vui Kong v Attorney-General in relation to presidential pardon. Two questions were central to the case. First, is the President bound by the decision of the Cabinet in pardon-related matters? Secondly, are decisions regarding pardon—whether made by the Cabinet or President—subject to judicial review? In relation to the first question, the Court based its reasoning on Singapore's political system being a Westminster-inspired model and, therefore, that the President generally undertakes the same functions as the British monarch. However, this paper identifies the unique features of Singapore's presidency, and argues that the British model does not act as an adequate starting point with regard to the issue of discretion. With regard to the second question, the Court of Appeal held that decisions on pardons are subject to judicial review not on their merits, but only in relation to procedural inadequacies. The paper, however, suggests that the Court's conclusions are inconsistent: either decisions to grant or refuse pardons can be reviewed on their merits, or the suggested grounds of review must be revised.

The article presents information on the presidential legislation of the parliamentary democracies, India and Pakistan. It discusses the role of the President acting as the Council of Ministers for the enactment of legislations as ordinances without the consent of the Parliament. Information on the legal interpretation of the ordinances and its interaction with the principles of the parliamentary system of the government is also presented.

Can the Governor dissolve a Legislative Assembly under the Indian Constitution even before convening its first meeting on the ground that no party had adequate mandate to form the government? That was the question posed before the Supreme Court in Rameshwar Prasad. The Court held in the affirmative. For the Court, a Legislative Assembly can be brought into existence only when some members of the Legislature are in a position to form the Executive Government (the Cabinet). This short comment proposes an argument to the contrary. I argue that the Supreme Court's conclusion was made possible by a method of qualified silence. The comment identifies three forms of qualified silence in the text of the judgment and argues that in so concluding the Court inverted the normative positions of the Legislature and the Executive. In a parliamentary democracy, where the Legislature legitimises public institutions and offices including those of the Executive, the relationship must be otherwise.

Does the Indian Parliament have the power to expel its members under the "powers, privileges and immunities" guaranteed by the Constitution? The Indian Supreme Court was confronted with the question in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha and Others. Powers, privileges and immunities of the Indian Parliament are provided under Article 105. Supposedly based on an interpretation on Article 105(3), Sabharwal C.J., writing for the majority (Thakker J. concurring), concluded that Parliament did have the power to expel and that the same was subject to judicial review. Raveendran J. dissented. The particular privilege of the House of Commons, he said, could not be imported under Article 105(3): the "general scheme" of the Indian Constitution made this English privilege inapplicable to India. I highlight the methodological similarities of Raja Ram Pal with Narashima Rao and ask: why did the Supreme Court arrive at contrary positions in the two cases. In developing one possible set of explanations I introduce the idea of clusters in constitutional adjudication post - Emergency. The idea of clusters I argue suggests that cases of the same kind stick together and possibly decided similarly. The kaleidoscope of legal and pragmatic reasoning that the majority in Raja Ram Pal weaves together I argue in this Article cannot be understood on its own terms: the razzmatazz must be situated within a larger canvas of a cluster of political reforms that the Indian Supreme Court has haltingly pursued in the last five years and prior to it.

This article critically analyses the decision of the Indian Supreme Court in Yashpal and another v. State of Chhattisgarh and others holding the establishment of private universities as unconstitutional. Swayed by the overwhelmingly irresponsible character of the respondent universities, the Supreme Court innovated constitutional arguments to uphold the claims of the petitioners. While intuitively correct in the context of the immediate facts, the judgment, when analysed in the abstract, reveals the self-inflicted harm it has the potential to cause. The judgment is technologically regressive: it fails to account for the emerging trends in education, especially those related to the use of technology and in particular about the emergence of e-education. It is also unconstitutional: it purports to add grounds for judicial review of primary legislation that agreeably is a constituent rather than an adjudicative act. Finally, it is backward looking: it proposes to reintroduce a moralizing rhetoric in the conduct of education, thereby, paving way for poorer educational standards in India. Underlying these distinct inadequacies is a common inability of the Supreme Court to de-link the university as a project of modernity from its status as the ideological apparatus of the nation-state. Universities, for the Indian Supreme Court, are still an embodiment of the popular will and, therefore, incapable of being appropriated. [PUBLICATION ABSTRACT]

What is the status of a right to vote in the Indian legal system? Is the right a constitutional/fundamental right? Or is it simply a statutory right? Contrary to the decisions of the Supreme Court in the last five decades, this paper argues that the right to vote is a constitutional right: its textual foundation may be located in Article 326. And, in this sense, the Supreme Court has erred in construing the right to vote as a statutory right under the Representation of Peoples Act, 1951. Interpreting the right to vote as a statutory right has larger implications for the nature of Indian democracy. If the Court is correct is construing the right as a statutory one, it would follow that democracy may be extinguished by a simple amendment of the Representation of Peoples Act. Under the Court's current jurisprudence, that which could not be achieved by a constitutional amendment may now be achieved by an amendment of an ordinary statute.

What is the status of a right to vote in the Indian legal system? Is the right a constitutional/fundamental right? Or is it simply a statutory right? Contrary to the decisions of the Supreme Court in the last five decades, this paper argues that the right to vote is a constitutional right: its textual foundation may be located in Article 326. And, in this sense, the Supreme Court has erred in construing the right to vote as a statutory right under the Representation of Peoples Act, 1951. Interpreting the right to vote as a statutory right has larger implications for the nature of Indian democracy. If the Court is correct is construing the right as a statutory one, it would follow that democracy may be extinguished by a simple amendment of the Representation of Peoples Act. Under the Court's current jurisprudence, that which could not be achieved by a constitutional amendment may now be achieved by an amendment of an ordinary statute.