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date: 18 February 2019

(p. 1033) Index

(p. 1033) Index

A
access to justice
right to life and personal liberty 762–3
administrative and regulatory State see also regulatory State
administrative decisions, route to finality fig 22.1
administrative structure 386–93
conclusion 410–11
constitution, and 394–7
introduction 386
regulatory authorities Table 22.1
regulatory decisions, routes to finality fig 22.2, fig 22.3
regulatory State, conceptual overview 397–401
regulatory State, concerns with 401–10
regulatory structure 394
regulatory tribunals Table 22.2
administrative review
conclusion 447
economic policy 444
forms of administrative actions 442–7
government policy 444
grounds 436–42
‘integrity cases’ 446–7
introduction 432–3
legislative review, distinguished 433–6
promissory estoppel 441–2
subordinate legislation 443–4
tenders 445–6
undue haste 440–1
unreasonableness 436–40
affirmative action see also reservations
carry forward 734–5
consequential seniority 736
entry level reservations 733
external examination 1027–8
fifty per cent rule 733–4
general seats for reserved candidates 735
organisational efficiency 737
overview 732–8
promotion 735–6
quota limits 733–5
other forms 738
relaxation of minimum standards 737
State quotas 735
agency or instrumentality doctrine
identification of State 585–6, 590–5
agrarian reform
right to property, and 948–52
savings clauses 627, 628, 634–5
All India Judicial Service
proposals, for 344
All India Service see also public employment and service law
composition 387
establishment 1004–7
Ambedkar, BR
architect of constitution 3–4
constitutional morality 3–4, 12
foundational and educational role of constitution 69
institutional role of constitution 69
anarchy
determinative constitutional significance 42–6
animus manendi
citizenship 168, 169, 170
anti-defection law see defection
arbitrariness test
application 711–14
deficiencies, of 714–16
due process 790–1
equality, and 711–19
legislative action, application to 716–19
armed forces
freedom of association 847
arrest
rights, upon 810–12
Assam Accord 172, 173
assembly
anticipatory restrictions 838
case law 836–40
colonial restrictions 835
conclusion 848
constitutionality of s 144 of the CrPC 838–9
criminal law restrictions 835–6, 838–40
government employees 837–8
introduction 834–5
moral restriction 837–8
peaceable assembly 835–40
potential unlawful assembly 839
power of the State 838
prior permission for public meetings 837
public order restrictions 837–8
right to strike 839–40 (p. 1034)
association
aims of association, achievement of 842–3
armed forces 847
composition of membership 843–5
conclusion 848
control of an association 844–5
formation of an association 842–3
introduction 834–5, 840
government employees 845–8
membership of an unlawful association 841–2
notice prior to designation 840–1
police 847–8
right not to join 845
security personnel 847
trade unions 847
asymmetric federalism see also federalism
asymmetry, meaning 540–1
autonomy arrangements in Northeast India 556–7
concerns, regarding 542–4
conclusion 558–9
constitutional provisions, for 544–58
ethnic conflict resolution in Northeast India 556–7
essential characteristic of Indian federalism, as 541–2
forms, of 544
indigenous communities, case law 551–3
indigenous communities, constitutional provisions 549–51
intra-State equity provisions 553–5
introduction 540
Jammu and Kashmir, case law 547–8
Jammu and Kashmir, special status 545–7
land and natural resource governance 557–8
normative case, for 541
Scheduled Tribes, case law 551–3
Scheduled Tribes, constitutional provisions 549–51
significance 540–4
special provisions for particular States 553–8
tribal populations, and 543, 549–51
Australia
inter-State trade, commerce and intercourse, compared 489–92
autonomous bodies see also individual bodies eg Election Commission
separation of powers 266–8
Autonomous District Councils
powers of self-governance 529
B
bail
rights, upon 810–12
Basic Structure doctrine see also constitutional amendment
application, of 241–8
democracy-based challenges 241–5
emergence, of 235–41
emergency powers, and 226, 227, 230, 231
external examination 1021–4
generally 99, 104, 106, 111
remedies 614
rights-based challenges 245–8
savings clauses 637–40
secularism, and 115, 117, 121, 122
C
Central Government see Government of India
certiorari see writs
character of constitutionalism
design and structure 9–10
law and democracy 10–12
state failure 8–9
Chief Justice
appointment of judges 353–5
consultation, with 353, 35–5
role 74
citizens
definition 582
natural persons 592
citizenship
acquisition, means of 171
acquisition of citizenship of foreign state 166, 167
animus manendi 168, 169, 170
conclusion 179
continuance of rights 166
cut-off date to determine 166
domicile 168, 169,–170
exceptions to citizenship by birth 171
illegal migrants 172, 173
intention 168, 169, 170
introduction 163–4
jus sanguinis 164, 165, 172–8
jus soli 164, 165, 176
migration, relationship with 166, 169–70
naturalisation 171–2
overseas citizens 172, 177–8
Parliamentary powers 166
Partition, effect of 165–70
residence 168
classification doctrine
deferential nature, of 704
differentia 705, 706–7
elements 705, 709–10
equal treatment principle 703–4
equality, and 702–11, 719
formalistic nature, of 704
impact of rule 705, 708–9
limitations, of 704
objectives of the rule 705, 707–8
reassessment, of 710–11
rights, engagement of 705–6
State actions 702–3
unreasonable comparison between persons or classes of person 702 (p. 1035)
Comptroller and Auditor General
separation of powers 267–8
constitution
definition 36–7
structure 96–7
constitution making
ambiguity 64–7
comparative analysis post-colonial/post WWII 56–9
constitutional incrementalism 61–2, 70
deferral 62–4
democracy, establishment of 58, 59
divided societies, in 59–61
national unity 58–9
non-justiciability 67–9
post-Colonial constitutions 57
revolutionary constitutions 57
sovereignty 58
constitutional amendment see also Basic Structure doctrine
amendment by interpretation (post-1980) 137–42
amendment by Parliament (150–80) 133–7
analytical framework 128–33
Basic Structure doctrine, application of 241–8
Basic Structure doctrine, emergence of 235–41
conceptual background 233–4
conclusion 248–50
constitutent power/ordinary legislation, distinguished 236
fiscal federal arrangements 525–7
forum 132–3
introduction 232–5
judicial review 246
law and politics, of 102–5
limits, to 238–40
local government 564–5
Parliament, status of 235, 240
power to amend 232
procedural rules 129, 130–1
ratification 232
unamendability 233–4, 236, 237
unconstitutional amendments 1021–4
voting 232, 235
constitutional antecedents
age of charters 19–23
conclusion 36–7
constitutional aspirations 29–32, 115
constitutional culture 32–6
constitutional texts 19–29
introduction 17–19
last acts of empire 26–29
viceregal age 23–5
constitutional change see also constitutional amendment
amendment by interpretation (post-1980) 137–42
amendment by Parliament (1950–80) 133–7
analytical framework 128–33
conclusion 142
costs and benefits 128–30
forum for amendments 132–3
interest groups negotiation of constitution 133–42
introduction 127–8
lobbying 129
procedural rules 129, 130–1
rent seeking 129
self-interest 128, 129
substantive rules 129, 131–2
constitutional court see Supreme Court
constitutional hegemony see also Supreme Court
concept 94
demosprudence 95–6, 100
introduction 94–6
jurisprudence 95
legisprudence 95
constitutional imperatives
existential conditions of constitutions 40–2
constitutional identity
conclusion 124–6
development, of 122–4
dynamic identity 115–19
introduction 110–12
politics 120–2
secularism, and 115–19
static identity 112–15
Supreme Court, and 120–4
constitutional interpretation
amendment, by (post-1980) 137–42
approaches, to 75–6
conclusion 92–3
doctrinal approach, to 76
eclecticism 74
ethical approach, to 76, 80, 82
external examination 1019–20
historical approach, to 75–6
historical phases 74, 77–80, 80–6, 86–92
international law 144
introduction 73–5
panchayati eclecticism 74
structural approach, to 76, 81
structure-dominated eclecticism 80–6
textualism 74, 76, 77–80, 81, 82
‘topological space’ theory 91, 92
constitutional project
political project, as 2
social revolution, as 2
constitutional morality
context 2–3
meaning 3–4
revolution, avoidance, of 4
satyagraha 4
constitutional remedies
democratisation of access as human right 105
constitutional rules
constitutional change, and 129 (p. 1036)
procedural rules 129, 130–1
substantive rules 129, 131–2
constitutionalism
ambition not to be bound by particular traditions 2
ancient constitutionalism 30–1
character 8–12
coda 13
constitutional imperatives 40–2
constitutional morality 2–4
constitutional tensions 7–8
cosmopolitan constitution 4–7
framework for common institutional life 2
introduction 1–2
Mughal constitutionalism 30–1
narrative of crisis and anarchy 42–6
narrative of unity 46–9
politics of restraint, as 3
post-colonial constitutionalism 41–2
contempt of court
Supreme Court jurisdiction 392–3
corporations
citizens, as 582
corruption
executive functions, distinguished 299, 303
legislative privileges, and 300–5
cosmopolitan constitution
concept 4
derivative eclecticism 5
principles 4
universalism 4–7
court officers and servants
conditions of service 359–61
courts see also district courts; high courts; Supreme Court
hierarchy 331–2, fig 19.1
management 343–7
State government management role 344
State judiciaries 331–2, 334–5, 343
subordinate courts 343–5
criminal law
conclusion 812–13
Constitution, and 794– 813
double jeopardy 801–2
ex-post facto laws 799–801
fair trial guarantees 805–8
illegally obtained evidence 804–5
introduction 794–6
liberty perspective on criminal process rights 795, 796–8
public order perspectives 795, 798–812
right to counsel 808–10
rights upon arrest and bail 810–12
self-incrimination 802–4
truth-seeking function of courts 798–9
crisis
determinative constitutional significance 42–6
D
Dalits
constitutional culture 3
Scheduled Caste, as 721
death penalty
right to life and personal liberty 763–4
defection
challenges to constitutionality, of 280–2
disqualification of members of Parliament 278–83
features, of 278–9
political parties 281, 282
demosprudence see also social action litigation
constitutional hegemony, and 95–6, 108–9
precedence 100
rights revolution 105–7
stare decisis 100
Directive Principles of State Policy
conclusion 660–1
criticism, of 68
framework values, establishment of 644, 652–9
innovative nature, of 67
interpretive guides, as 644, 651–2
introduction 644–5
limiting principle 659–60
markers of reasonableness, as 649–51
non-enforcement 644, 645, 659–60
non-justiciable character, of 67–9, 645
origins 645–9
savings clauses 642–3
substantive rules, as 129–30
discretion
appeals by special leave of the Supreme Court 371–2
discrimination see also affirmative action; gender equality
positive discrimination 857–60
district courts
civil and criminal jurisdiction 333–4
District and Sessions Court Judge 334
jurisdictions 335
number 333
diversity
pre-Partition 55–6
doctrine of pleasure
civil servants, and 1003, 1009–10
domestic violence
constitutionality of law, against 749–50
domicile
definition 168
migration, and 169–70
double jeopardy
restrictive interpretation 801–2
due process
arbitrariness 790–1
beyond physical restraint 789–90
beyond procedural fairness 785–8
conclusion 793 (p. 1037)
definition 792–3
framing of the Constitution 779–82
introduction 777–9
procedural due process 778, 782–5, 792
procedure established by law 777–8, 782–3, 797
pure form due process 778, 782, 793
reasonableness 790–1
substantive due process 778, 785–91, 792
E
eclecticism
generally 74
panchayati eclecticism 74
structure-dominated eclecticism 80–6
eclipse doctrine
fundamental rights, and 598–9
education
positive discrimination 857–9
teaching religion 900–1
educational institutions see also minority educational institutions
private institutions as POTB 877–81
Election Commission see also elections
deregistration of political parties 203
election expenses 201
establishment 200
Model Code of Conduct 201–2
political parties 202–3, 206
powers 201
‘private’ status of political parties 204
recognition of political parties 203
removal of members 200
role 200
separation of powers 266–7
elections see also Election Commission
campaign finance 208
conclusion 211–12
constitutional right 197, 198, 199, 200
delimitation of constituencies 209–10
democracy immune from amendment 200
election disputes 210–11
electoral rolls 204
electoral speech regulation 207–8
fundamental right 196, 197
introduction 196
local bodies, to 572–4
‘none-of-the-above’ option 199–200
outcomes 209–11
political parties 206, 207
process 206–8
regulating inputs 204–6
reporting requirements 208
right to elect 197
right to know the criminal antecedents of the candidate 198
right to vote 196–200
timing of elections 205–6
electors
disqualification 274
meaning, of 273
emergency powers
Basic Structure, and 226, 227, 230, 231
conclusion 231
conditions justifying President’s Rule 227
constitutional provisions 213–15
‘emergency’ 215–18
failures of constitutional machinery 213, 214, 225–31
financial emergencies 213, 215, 216–18
‘internal disturbance’ 215
introduction 213
judicial review 228
‘militant democracy’ 216, 218
national security emergencies 213, 214
President’s powers 218–24
‘President’s Rule 214, 225–31
purpose 216
safeguards 214, 215
Sarkaria Commission 227, 228, 229
standard for satisfaction of the President 225
employment see also government employees; public employment and service law
positive discrimination 859–60
English East India Company
founding charters 19–20
parliamentary control 21–2
restructuring 21
equality see also arbitrariness test; classification doctrine; gender equality
arbitrariness test 711–19
classification doctrine 702–11, 710
conclusion 719
differentia 706–7
elements of classificatory rule 705
equal treatment principle 703–4
failure to classify 702
impact of the rules 708–9
introduction 699–701
legislative review under right to equality 699–19
limitations of classification doctrine 704
non-comparative unreasonableness 711–19
objective of the rule 707–8
questions by court of classificatory rule 709–10
reassessment of classification doctrine 710–11
right to equality, engagement 7056
State action 702–3
substantive equality 739–40
traditional narrative 701–2
unreasonable comparison between person or classes 702–11
essential practices doctrine
religion and secularism, distinguished 887–93
evidence
illegally obtained evidence 804–5
ex debito justitiae 383–4 (p. 1038)
executive
Council of Ministers 316–20
executive power, definition 320–1
executive power of the States 321
discretionary powers 326–9
functions 320–5
general executive power 321, 522
Governors 307, 326–9
head of government 313–16
head of state 307–13
introduction 307
judicial powers 260–1, 325
judiciary, control of 261
legislative powers 258–60, 323–5
ordinances 324–5
pardons, grant of 323
powers 320–5
Prime Minister 307
separation of powers 257–61
specific executive power 321, 322–3
F
Federal Public Service Commission
establishment 1003
federal scheme
centralised character 458–64
conclusion 464–5
federal framework 451–8
identity of States 458–60, 522
introduction 451
legislative competence 461–3
new States 458–60
regional emergencies 463–4
State boundaries 458–60
State representation in Parliament 460–1
federalism see also asymmetric federalism; federal scheme; fiscal federalism; inter-State trade, commerce and intercourse; inter-State water disputes; legislative competence; local government
asymmetric federalism 540–59
fiscal federalism 521–39
local government 560–78
linguistic federalism 186
parliamentary democracy 270, 460–1
Sarkaria Commission 464–5
Finance Commission
appointment by President of India 524
establishment 524
functions 524
fiscal federalism see also Finance Commission; Planning Commission; taxation
borrowing cases 538
case law 530–8
Centre-State transfers 527, 536–8
conclusion 538–9
constitutional amendments 525–7
expenditures cases 534–5
Finance Commission 524, 529, 536
government borrowing 525, 528
initial framework 522–5
introduction 521–2
meaning 523
National Development Council 529
NITI Aaayog 525
Planning Commission 524–5, 529–30
practice, in 527–30
tax cases 530–4
tax powers, assignment of 524, 526
transfers cases 536–8
free speech and expression
colonial origins 817–19
commercial speech 818–19
conclusion 831–3
domain, of 819–21
expression, meaning of 815
failures to uphold 822–3
fairness 819
freedom of movement, and 861–2
hate speech 818, 828–9
instrumental theories, for 815
intrinsic value, of 815
introduction 814–15
justification, for 815–17
marketplace of ideas theory 816
obscenity, classification 828–9
obscenity, doctrinal confusion 829–31
promotion of democracy 816–17, 819, 831–2
proportionality test 821–2
public order 824–8
public safety 824–5
reasonableness test 821–2, 832–3
right to broadcast 820–1
scope 819–22
sedition 818, 824–8
subversive speech 824–8
freedom of association see association
freedom of the press
legislative privileges, and 294–7
recognition, of 820
freedom to assemble see assembly
functional specialisation
doctrine, of 253
Fundamental Rights see also horizontal effect; remedies; savings clauses
amendments 130–1
horizontal effect 600–13
legislative privileges, and 291, 294–300
non-State actors, applicability to 600–13
substantive rules, as 129
right to elect 197
right to property 627, 628–9, 630, 640–1
right to vote 196, 197 (p. 1039)
G
Gandhi
non-violence 3
gender equality
case law 749–54
conclusion
domestic violence 749–50
formal equality 735–7
formal and substantive equality, compared 743–5
gender difference 748–9
introduction 742–3
maintenance 750–3
sexual expression 753
sexual harassment 753–4
goondas
externment 854–5
government contracts
capacity to contract 968–9
conclusion 983–4
formalities 970
formation 969–75
freedom of contract 975
implied contracts 970
introduction 967–8
judicial review 975–83
judicial review (1950–79) 976–7
judicial review (1980–2011) 977–9
judicial review (2012–15) 979–82
nature, of 969–70
non-compliance 971–3
oral contracts 970
promissory estoppel 973
public interest 975
ratification 972–3
remedies 973–5
restitution 973–5
government employees
right of association 845–8
right to assemble 837–8
Government of India see also local government
All India Service 387
Cabinet Ministers 387
central regulatory authorities Table 22.1
composition 387
departments 387
expenditure responsibilities 523
Finance Commission 524
functions 523–4
Governments of Union Territories 387, 522
Inter-State Council 523
National Capital Territory 522
NITI Aaayog 525
Prime Minister’s Office 387
Ministers, parliamentary accountability 396
ministries 387
regulatory tribunals Table 22.2
State Governments 387
tax powers 524
Governors
appointment, of 311–12
appointment of Chief Ministers 314–15
discretionary powers 326–9
dismissal of ministries 326–7
dissolution of Lower Houses 327
immunity 311
Presidential discretion, compared 328
removal 312–13
Graam Sabhas
statutory rights 549
Grote, George
constitutional morality 3–4
Gram Nyayalayas 336
guarantee of fair trial
burden of proof 807–8
definition of fair trial 805–6
factual prejudice approach, to 806–7
purpose of fair trial 806
H
habeas corpus see writs
head of government see also executive
appointment by President 313, 314
Council of Ministers, dismissal of 315–16
Council of Ministers, dissolution 320
Council of Ministers with Prime Minister 313, 316–17
head of state, distinguished 307
ministers, appointment 313–14
ministers, responsibility 319–20
oaths 315
Prime Minister, as 307
resignation on loss of vote of confidence 315
tenure 315
head of state see also executive
appointment of Prime Minister 313, 326
ceremonial irrelevance 318, 327–8
Council of Ministers, dismissal of 315–16
Council of Ministers, interactions with 316–20
discretionary powers 326–9
dissolution of Lower Houses 327
Electoral College 308
eligibility 308
executive power vested, in 307–8, 316–17
head of state, distinguished 307
immunity 310–11, 318
impeachment 309–10
ministerial advice 318–19
oaths 308
powers 317–18
President of India, as 307–13
Supreme Court jurisdiction over electoral disputes 308–9
terms 309
Vice President 313
High Courts see also public interest litigation
appointment of judges 353–5
constitutional courts, as 332
court management 343
hierarchy of courts fig 19.1
interactions with subordinate courts 343
location 333
number 333
Hindi
official language of the Union 182, 183
Hinduism
definition 894–7
historical imagination
constitutional morality 2–4
cosmopolitan constitution 4–7
history
comparative perspective 55–70
constitutional antecedents 17–37
crisis and unity 38–54
future, and 49–51
social question 51–3
‘waiting room’ model 50
horizontal effect
conclusion 613
direct horizontal effect 601, 602–5
indirect horizontal effect 601–2, 606–13
introduction 600–2
private law 607–13
protective effect 606–7
non-State actors 600
vertical effect, distinguished 600
human rights
democratisation of access to constitutional remedies 105
I
impeachment
head of state 309–10
judiciary 362
Indian Civil Service see also public employment and service law
doctrine of pleasure 1003
establishment 1001–2
evolution under Colonial rule 1001–4
Federal Public Service Commission 1003
provincial devolution 1002–3
Provincial Public Service Commissions 1003–4
Secretary of State, role 1002
industrial townships
subversion of representative local government 568–70
international law
case law 145–53
conclusion 158–9
constitutional interpretation 144
constitutional obligation 144–5
customary norms 149
expansion of judicial powers 154
fostering respect, for 144–55
general principles 151–2
introduction 143–4
‘not-so-customary’ norms 149
service of ‘justice’ 153–5
soft law 152–3
treaty implementation by Parliament 155, 157–8
treaty incorporation in domestic law 146–9
treaty making by the executive 155–7
treaty obligations 145
treaty to which not a party 148–9
Inter-State Council
establishment 465
inter-State trade, commerce and intercourse
Atiabari ruling 493–5
Australian law, compared 489–92
Automobile Transport ruling 496–8
compensatory tax controversy 492–3
conclusion 502
entry taxes, compensatory 500–1
entry taxes, non-discriminatory 499–500
introduction 487–9
Rajastan levy 496–8
trade, commerce and intercourse, meaning 489–92
vehicle taxation 496–8
inter-State water disputes
awards, appeals against 512–13
awards, publication of 516
conclusion 519–20
constitutional design 505–6
constitutional framework, and 503–6
constitutional history 504–5
dispute resolution 508–16
dispute resolution, delays 513–16
dispute resolution, principles 507–8
enforcement 513
implementation 513
inter-State rivers in a federal nation 503–4
introduction 502
legislation 506–7
Mullaperiyar judgment, evaluation of 517–19
Parliament, role in 506–8
Parliament, vesting power in 503
Supreme Court jurisdiction bar 508–11
tribunals, constitution 514–16
tribunals, interim relief 511–12
tribunals, post-award litigation 512–13
J
judicial architecture see also courts; judiciary
backlog 336
conclusion 347–8
court management 343–7
introduction 330–1
Gram Nyayalayas 336
hierarchy of courts 331–7 (p. 1041)
Lok Adalats 336
stare decisis and polyvocality 337–43
top-heaviness in the system 336–7, 347
judicial independence see also judiciary
appointment of officers and servants 359–61
appointments 352–8
conclusions 365–6
conditions of service of officers and servants 359–61
disciplinary action 362–5
external examination 1028–30
generally 261–3, 335, 347
introduction 349–52
judicial accountability, and 351–2
primacy of judiciary in appointments process 356–8
judiciary see also judicial architecture; judicial independence
administrative independence 262–3
All India Judicial Service 344
appointments 352–9
Chief Justice 342–3
collegium system of appointment 346, 355, 356, 358, 365
complaints, against 347
disciplinary action 362–5
executive control, by 261
executive, control of 266
functional independence 262
impeachment 362
independence 261–3, 335, 347
legislative control, of 256–7
legislatures, control of 263–5
metropolitan areas 334
power 261–3
promotion 347
retirement 347
salaries 346–7
savings clauses 635–40
separation of powers 255–7, 261–6, 395
State, as 595–7
State judiciaries 331–2, 334–5
structure 334, fig 19.1
subordinate judiciary 331, 332, 348
upper judiciary 331, 332, 336–7, 345–7
jurisdiction see also Supreme Court
appellate court 368–73
conclusion 384–5
constitutional court 373–8
final court 378–84
introduction 367
remedies 615–18
jurisprudence
constitutional hegemony, and 95
juristic veil
principle 587–90
jus cogens 151, 152
jus sanguinis
citizenship, and 164, 165, 172–8
jus soli
citizenship, and 164, 165, 172
K
Kher Commission 184–5
L
land acquisition
right to reside, and 860–1
land reform see also agrarian reform; property
constitutional change, effecting 134–7, 235–6
language
conclusion 194–5
constitutionally recognised 73
court proceedings 183
Dar Commission 186, 187
education 189–94
disaggregation 183–4, 186
federalism 186
fluency 193
Hindi 182
introduction 180–2
judgments 183
Kher Commission 184–5
legislation 183
linguistic minorities 189–94
linguistic reorganisation of states 186–9, 193
national language 62–4
official language of central government 182–6
official language of provinces 187
official language of the Union 182, 183
Parliament 183
parliamentary deliberation 183
Legislative Assemblies
composition 271
constituencies, adjustment to 272
legislative competence
actual conflict between a State and Central law 477–9
‘aspect theory’ 474–6
conclusion 485–6
concurrent lists 479–85
constitutional framework 467–8
‘double aspect theory’ 475
introduction 466–7
legislative history 467–8
money-lending litigation illustration 469–71
overview 467–8
pith and substance doctrine 471–4, 475–6
power and repugnance, distinguished 468–76
repugnance, conflicting inter vires legislation 476–85
‘substantial effect’ test 471–4
vires, test of 468–74
‘with respect to’ 468–74
Legislative Councils
composition 271, 272–3 (p. 1042)
legislative privileges
approaches, to 291
conclusion 305–6
corruption, and 300–5
expulsion by way of 302
fundamental rights, and 291, 294–300
introduction 290–1
justifications, for 292–3
non-members, invocation against 294–300
press freedoms, and 294–7
rationale 290
scope 294–305
legislature see also legislative privileges; Parliament
composition 271–3
conclusion 289
defection 278–83
disqualification by or under law 283–7
disqualification decisions 287–9
disqualifications 274–89
introduction 270–1
judicial power 255–6
Legislative Assembles 271
legislative control of the judiciary 156–7
Legislative Councils 271
Lok Sabha 270
office of profit 275–8
qualifications 273–4
Rajya Sabha 270
reservation of seats 732
separation of powers 255–7
vacation of seats 287–9
legisprudence
constitutional hegemony, and 95
life and personal liberty
access to justice 762–3
anti-terror and security legislation 765–7
burden on the State 773–4
civil and political rights 761–8
conclusion 776
content 757–9, 775
death penalty 763–4
dignity, and 760–1, 775
environmental jurisprudence 771–3
hierarchy of rights 774
introduction 756–7
judicial decision-making, evaluation of 773–5
personal liberty, meaning of 759–60
right to education 768–9
right to food (security) 771
right to health 769–70
right to shelter and housing 770–1
rights of individuals in detention and protection homes 761–2
sexual minorities 767–8
socio-economic rights 768–71
suicide 765
taking life 763–5
lobbying
role in constitutional change 129
local bodies see also local government; nagarpalikas; panchayats
conduct of elections 572–4
constitutional amendments 564–5, 578
federal framework and 576–8
financing 576
franchise and representation 570–2
functions and powers 574–8
local government
conclusion 578
constitutional amendments 564–5
constitutional provisions 565–7
devolution 571, 574–6
historical background 561–5
indigenous and colonial 561–3
industrial townships 568–70
introduction 560–1
local bodies, conduct of elections 572–4
local bodies, federal framework and 576–8
local bodies, financing 576
local bodies, franchise and representation 570–2
local bodies, functions and powers 574–8
nagarpalikas 565, 566, 571
panchayat samitis 563
panchayats 560, 562, 563, 564, 565, 567, 570, 571
parallel bodies 574–6
post-Independence 563–4
representative self-government 561–5
statutory provisions 565–7
structure 560
urban local bodies 563–4, 565, 570
Zilla Parishads 563
locus standi
citizen standing 670–71
litigation competence 671–2
public interest litigation 668–72
representative standing 669–70
Lok Adalats 336
Lok Sabha see also legislature
allocation of seats 272
chambers 522
composition 270
constituencies, adjustment to 272
direct election, to 270, 272, 522
legislative powers 270–1
membership 270
term 270
M
maintenance
constitutional challenges, to 750–3
mandamus see also writs
public interest litigation 675–6 (p. 1043)
members of Parliament
affirmations 273
defection 278–83
disqualification by or under a law made by Parliament 283–7
disqualification process 287–9
disqualifications 274–89
‘elector’, meaning of 273
eligibility requirements 273–4
oaths 273
office of profit 275–8
vacation of seats 287–9
minority educational institutions see also educational institutions
admissions process 935–7
aid and recognition 935
aided minority educational institutions 939–42
anti-majoritarian justification, for 930–1
classification 935
conclusion 942
equal rights view 923–9
equality justification, for 9312
exclusive right of religious and linguistic minorities 929–32
fee and profit 938–9
historical justification, for 929–30
introduction 921–2
medium of instruction 934–5
non-minority students 937–8
rights, of 932–9
special rights view 923–9
State regulation 932–4, 939–42
textual justification, for 930
Montague-Chelmsford Proposals 26, 37
Montague-Chelmsford Report 26, 27
Morley-Minto Reforms 25
movement and residence
arrest 856
bail 856
conclusion 864–6
direct effect test 853–4
domicile 168
economic activities 863–4
education 857–9
employment 859–60
externment 854–6
freedom of speech and expression 861–2
general physical movement 861–2
goonda laws 854–5
inter-State migration 852
intra-State migration 852
introduction 849–50
judicial approach, to 853–64
land acquisition 860–1
law and order restrictions 853–7
liberty and freedom, distinguished 857, 865
mobility of labour, 864, 865, 866
passports 861
positive discrimination 857–60
preventive detention 853–4
public interest restrictions 851, 860–4
public morality restrictions 862
public safety restrictions 862–3
residency requirements 850, 852
restrictions, to 850–2, Table 47.1
municipalities see nagarpalikas
N
nagarpalikas see also local government
composition 567
devolution 574–6
elections, conduct of 572–4
establishment 565
federal framework, and 576–8
financing 576
franchise 570–2
industrial townships, and 568–70
representation 570–2
structure 567
national identity
creation, of 56
National Company Law Tribunals
challenge to constitutional validity 426, 428–9
Round I (2004–10) 426–7
Round II (2010–15) 428–9
National Judicial Appointments Commission
establishment 356
National Tax Tribunal
challenge to constitutional validity 428
nationalist movement
constitutionalist movement, as 3
nemo debet bis vexari pro una et eadem causa 623
NITI Aaayog
establishment 525
O
office of profit
disqualification of member of Parliament 275–8
exemptions 277
meaning 275–6
tests 276–7
ordinances
original legislation of executive 324
Presidential promulgation, of 324
temporary nature, of 324–5
Other Backward Classes see also affirmative action; reservations
beneficiary group of reservation policy, as 720, 721–6
caste as sole definition 723
central and State lists, differences between 722–3
‘creamy layer’ 725–6
list revision 725
provisions using different terms 722
public (State) employment 728–9
social location 722
sub-classification 725
targeting techniques 724–6
P
Panchayati Raj see also local government
creation, of 571, 577–8
Ghandi’s vision of 560
panchayatis see also local government
composition 567
devolution 574–6
elections, conduct of 572–4
establishment 565
federal framework, and 576–8
financing 576
franchise 570–2
industrial townships, and 568–70
representation 570–2
structure 567
Parliament see also legislature; Lok Sabha; members of Parliament; Rajya Sabha
laws on conduct of elections 273
Lok Sabha 270, 271, 272, 522
members of Parliament 273–4
Rajya Sabha 270, 271, 272, 522
person aggrieved
public interest litigation 668
personal laws
colonial interventions 903–6
conclusion 918–20
constitutionality, of 908–15
historical background 903–5
introduction 903
‘laws in force’ 909–10
legal architecture 903–8
meaning 903–5
non-interventionist approach 909–11
post-Independence Hindu law reforms 907–8
rights of women 906–7
sources 905–6
scrutinising approach, to 911–15
Uniform Civil Code, relationship with 915–18
persons
definition 582
Planning Commission
establishment 524
functions 524–5
police
freedom of association 847–8
power
meaning, of 253
President
advisory opinions given to 374–5
emergency powers 218–24
executive powers 307, 307–13, 316–20, 326–9
gubnatorial discretion, compared 328
head of government , appointment of 313, 314
head of state, as 307–13
‘President’s Rule 214, 225–31
private law
claim impersonalisation 694–5
conclusion 695
constitutionalisation, of 680–95
doctrinal manipulation 692–3
introduction 680–2
moral hazard 693–4
public law, distinguished 682–6
substantive neglect 691–2
tort law as constitutional law 686–90
tort law as constitutional law, consequences of 691–5
private sector
private colleges 730
private employment 731
private schools 731
reservations 730–1
profession, occupation, trade, or business see also educational institutions
arbitrary restrictions 876–7
conclusion 883–4
definition 869–71
excessive or drastic restrictions 873–6
historical factors affecting definition 869, 871
introduction 867–9
jurisprudential themes 881
moral factors affecting definition 869, 871
reasonable restrictions 868, 871, 872–7
role of the State 882–3
social effects 869, 879
promissory estoppel
government contracts 973
property
abolition of fundamental right 959
agrarian reform 948–52
agrarian reform test 951
capacity and concrete property entitlements, distinguished 954–5
compensation 955, 957–9
conclusion 962–3
deprivation 955–6
eminent domain 952–4
estate, definition 949–51
fundamental right, as 944–7, 959, 960–2
introduction 943–4
jagirdari system 950
mahalwari system 950
police powers 952–4
public purpose 956–7
reasonable restrictions 955–6
reinstatement of fundamental right 960–2 (p. 1045)
ryotwari system 950, 951
valid law requirement 953
zamindari abolition 948, 949
Provincial Public Service Commissions
establishment 1003–4
public employment and service law see also All-India Service; Indian Civil Service; Public Service Commissions
administrative reforms 1013–15
conclusion 1013–15
constitutional protections 1010–12
doctrine of pleasure 1003, 1009–10
historical background 1001–7
Indian Civil Service 1001–4
introduction 1001
Public Service Commissions 1012–13
terms of service 1007–10
public interest litigation
access to justice 667–8
amicus curiae, appointment 672
characteristics 664–5
citizen standing 670–1
conclusions 678–79
continuing mandamus 675–6
court-appointed commissions 673
criticism, of 678–9
evolution 665–8
expert scientific committees 674
external examination 1024–7
introduction 662–4
justiciability 675–7
legal aid 667–8
letter petitions 672–3
litigation competence 671–2
locus standi 668–72
person aggrieved 668
phases, of 667–8
procedural innovations 672–5
representative standing 669–70
social action litigation, compared 105
public law
private law, distinguished 682–6
public sector
caveats to reservations 729
gradual extension of reservations 728
minority institutions 728
public (State) education 727–8
public (State) employment 728–9
reservations 727–9
super-speciality posts 728
Public Service Commissions
appointments 1012
Federal Public Service Commission 1003, 1012
functions 1012
political influence, upon 1013
powers 1012
Provincial Public Service Commissions 1003–4, 1012
public trust
legitimation of judicial power 106
Q
quo warranto see writs
R
Rajya Sabha see also legislature
allocation of seats 272
composition 270, 271–2
constituencies, adjustment to 272
election by single transferable vote 270, 271, 522
eligibility requirements 274
indirect election, to 270
legislative powers 270–1
membership 270
term 270
ratification
government contracts 972–3
reading down doctrine
fundamental rights, and 598
regulatory State see also administrative and regulatory State
administrative and independent regulators, compared 399, Table 22.3
administrative decisions, route to finality fig 22.1
aspects of regulation 399–400
conceptual overview 397–401
concerns with 401–10
excessive delegation 404
executive, ‘turf war’ with 404–5
finality, lack of 405–10
legal uncertainty 401–3
principles underpinning 397
multiplicity of channels of appeal 405–10
regulatory authorities Table 22.1
regulatory decisions, routes to finality fig 22.2, fig 22.3
regulatory structure 394
regulatory tribunals 405, Table 22.2
religion see also secularism and religious freedom
definition 887–93
essential practices doctrine 887–93
right to propagate 897–899
superstitious beliefs, distinguished 890–1
teaching 900–1
religious freedom see secularism and religious freedom
remedies see also writs
Basic Structure of the constitution, and 614
cause of action 618
conclusion 625–6
delays and backlogs 626
enforcement of any legal rights 615–16, 617 (p. 1046)
enforcement of fundamental rights 615–17
introduction 614
jurisdiction 615–18
procedural aspects 623–5
questions, factual 623–4
questions, political 624–5
res judicata 623
territoriality 618
tribunals, effect of 626
rent seeking
role in constitutional change 129
res judicata
writs 623
reservations see also affirmative action; Other Backward Classes; Scheduled Castes; Scheduled Tribes
affirmative action 732–8
balance between equality, social justice and efficiency 738–9
beneficiary groups of reservation policy 720–7
democracy by majority rule 740–1
explanation of reservation policy 738–41
introduction 720
legislatures, reservation of seats 732
Muslims and other religious groups 726–7
Other Backward Classes 720, 721–4
private colleges 730
private employment 731
private schools 731
private sector 730–1
public (State) education 727–8
public (State) employment 728–30
Scheduled Castes 720, 721
Scheduled Tribes 720, 721
substantive equality 739–40
targeting techniques 724–6
women 726
residence see also movement and residence
domicile, and 168
restitution
government contracts 973–5
right against self-incrimination
compulsion of evidence 803–4
reliability rationale 803
scope 802
witness, meaning of 803
right to a clean environment
right to life and personal liberty 771–3
right to counsel
fair trial, and 808–10
right to education
right to life and personal liberty 768–9
right to elect
fundamental right, as 197
right to equality see equality
right to establish and administer educational institutions see minority educational institutions
right to food (security) 771
right to free movement see movement and residence
right to health 139, 769–70
right to know the criminal antecedents of the candidate 198
right to life and personal liberty see life and personal liberty
right to practice any profession, occupation, trade, or business see profession, occupation, trade, or business
right to property see property
right to reside and settle see movement and residence
right to shelter and housing 701
right to strike
denial, of 839–40
right to vote
fundamental right, as 196, 197
status 197
rights see also Fundamental Rights; horizontal effect; remedies; savings clauses; State; writs and individual rights eg equality
‘actor’ question 582–97
citizens 582
conclusion 599
‘effect’ question 597–9
eclipse doctrine 598–9
‘form’ question 597–9
horizontal effect 600–13
introduction 581–2
law, meaning of 597–8
persons 582
reading down doctrine 598
remedies 614–23
rights holder, qualification as 582
savings clauses 627–43
severability doctrine 598
State, meaning of 583–7
writs 614, 619–23
Roy, Rammohan
liberal constitutionalism 30
S
Sarkaria Commission 227, 228, 229, 464–5, 577
satyagraha
non-violent political action 4
savings clauses
abolition of zamindari 628, 634–5
agrarian reform 627, 628, 634–5
Basic Structure doctrine, and 636, 637–40
colourable use by parliament 643–5
compensation, adequacy of 629–30
conclusion 643
Directive Principles 642–3
excessive use by Parliament 632–4
fundamental rights 640–3 (p. 1047)
introduction 627–8
judiciary, role 635–40
lack of application of mind and oversight by Parliament 631–2
Ninth Schedule, laws enacted under 631–5, fig 35.1, fig 35.2, fig 35.3
origin 628–30
right to property 628–9, 630, 640–1
‘shared constitutional space’ 635–7
Scheduled Castes see also affirmative action; reservations
beneficiary group of reservation policy, as 720, 721
‘creamy layer’ 725–6
list revision 725
public (State) employment 728–9
sub-classification 725
targeting techniques 724–6
Scheduled Tribes see also affirmative action; reservations
beneficiary group of reservation policy, as 720, 721
‘creamy layer’ 725–6
list revision 725
public (State) employment 728–9
sub-classification 725
targeting techniques 724–6
secularism and religious freedom
Basic Structure doctrine and 115, 117, 121, 122
conclusion 902
constitutional identity, and 115–19
essential practices doctrine 887–93
Hinduism, defined 894–7
introduction 885–7
religious orders of recent origin 893
self-identification 894–7
superstitious beliefs, distinguished 890–1
teaching religion 900–1
security measures
right to life and personal liberty 765–7
separation of powers see also executive; legislature
allocation of powers 255
autonomous bodies 266–8
Comptroller and auditor General 267–8
conclusion 268–9
doctrine of functional specialisation, as 253
Election Commission 266–7
executive 257–61
introduction 253–5
judiciary 261–6
legislative control of the judiciary 257
legislature 256–7
models, of 253–5
power, meaning of 253
parliamentary sovereignty, rejection of 253, 256
severability doctrine
fundamental rights, and 598
sex discrimination see gender equality
sexual minorities
right to life and personal liberty 767–8
Simon Commission 27
social action litigation see also public interest litigation
democratisation of access to constitutional remedies 105
generally 100, 101
rights revolution 105–7
socially responsible criticism
judicial role and function 99, 107–8
sovereign immunity
acts of State doctrine 988–9, 991
conclusion 999–1000
defence to public law claims, as 996–7
fundamental rights cases 995–7, 1000
historical background 986–8
introduction 985–6
post-Independence 990–9
principles 990
sovereign functions doctrine 988, 990, 992–5, 997, 998, 999
stare decisis
demosprudence, and 100
polyvocality of Supreme Court, and 343–7
State
agency or instrumentality doctrine 585–6, 590–5
definition 583
conceptualisation, of 586–7
‘functional, financial and administrative control’ test 592–4
functionalism 584, 585–6
judiciary, as 595–7
juristic veil principle 587–90
structuralism 583, 584, 590, 594– 5
suicide
attempt 765
right to life and personal liberty 765
Supreme Court see also public interest litigation
access to justice 338
admission hearings 337
appeals by special leave of the Court 368, 370–1
appearance rights 346
appellate court, as 367–73
appointment of judges 345–6, 352–8
case load 337
Chief Justice 342–3
civil appeal 368–9
complaints system 347
‘complete justice’, power to do 380–2
composition 97
constitutional bench 74, 338–41
constitutional court, as 332, 367, 373–8
constitutional identity 120–4
constitutional interpretation 368–9, 376–7
contempt of court 392–3 (p. 1048)
coordination and information role 345
criminal appeals 368–9, 370
decision-making 86–7
demosprudence, and 95–6
discretion, absence of guidelines 371–2
enforcement of justice 380–3
federal disputes, adjudication of 375–6
final court, as 367, 378–84
hearings 337
hermeneutic adjudicatory leadership 99–102, 104, 105
imbalance in jurisdictional reforms 369–71
inconsistency in implementing constitutional provisions 372–3
indirect influence over subordinate judiciary 345
inherent powers 383–4
interpretative methodology 73
judges 337
judicial and litigation entrepreneurs 341–3
judgments, finality of 379–80
jurisdiction 96, 367–85, 508–11
location 332–3
organisation adjudicatory leadership 98–9
polyvocal court, as 338
precedent 338–41
President, advisory opinions given to 374–5
public interest litigation 105, 341
retirement 347
role 86
salaries 346–7
structure 86
water disputes 508–11
sustainable development
right to life and personal liberty 771–3
Swaran Singh Committee 418
T
taxation see also fiscal federalism
automobile tax 496–8
compensatory tax controversy 492–3
entry taxes, compensatory 500–1
entry taxes, non-discriminatory 499–500
local bodies 576
Rajastan levy 496–8
Taxation Enquiry Commission 1953–54 528
textualism
constitutional interpretation 74, 76, 77–80, 81, 82
‘topological space’ theory
constitutional interpretation 91, 92
Union Government see Government of India
trade unions
freedom of association 847
tribunals see also Water Disputes tribunals
‘alternative institutional mechanism’, challenges to 423–6
conclusion 429–31
constitutional litigation, over 420–9
constitutional challenge to Administrative Tribunals Act 1985 420–3
Emergency 1975–7 416–20
history 413–20
introduction 412–13
National Company Law Tribunals litigation 426–7, 428–9
National Tax Tribunal Decision 2014 428
Origins 1950–75 413–16
regulatory tribunals 405, Table 22.2
Swaran Singh Committee 418
U
ubi jus ibi remedium 614
United Kingdom
constitutional amendment 235
parliamentary privileges 292, 298–9, 300
United States
constitutional amendment 235
legislative privileges 292
unity
determinative constitutional significance 46–9
universalism
cosmopolitan constitution 4
W
Water Disputes tribunals
awards, appeals against 512–13
awards, enforcement of 513
awards, publication of 516
constitution, of 507, 514–16
delays 513–17
interim relief 511–12
powers 511–16
women see also gender equality; personal laws
reservations 726
rights, of 906–7
writs see also remedies
certiorari 621
habeas corpus 620
issue against legislature 625–6
jurisdiction under the Constitution 619
mandamus 619–20
prohibition 621–2
quo warranto 622–3
res judicata 623
Y
Yogyakarta principles
soft law of persuasive value, as 152
Z
zamindari system
abolition, of 134, 947, 949
land tenure system 945, 948