This chapter examines the Indian constitutional position relating to the formation of contracts and the substantive elements of government contracting. In particular, it considers the key issues and controversies surrounding government contracts and the contracting power of the government. It first discusses the formation of contracts to which the government is a party, along with the circumstances when the government can enter into a contract that binds it into a contractual obligation. It then describes the manner in which the government arrives at a decision to enter into—or award—a contract with (or to) a specific individual or business. It also comments on the nature and extent of judicial review of government contracting. Finally, it explains how the Indian Supreme Court has struck a balance to protect public interest from unauthorised government contracts, while also providing protection to contracting parties to a certain extent.
Lael K. Weis
This chapter focuses on the unique formulation of section 51(xxxi), the expropriation clause found in the Australian Constitution. In particular, the chapter suggests that there are unresolved tensions between the status of section 51(xxxi) as a legislative power-conferring provision and its status as a constitutional guarantee. These tensions are most evident in the High Court's regulatory expropriations jurisprudence. Despite the High Court's insistence that section 51(xxxi) is best understood as a constitutional guarantee and not a supplementary grant of legislative power, the High Court has tackled this key interpretive question by using the same approach used to determine whether a law falls within a grant of legislative power. The chapter suggests that these tensions ultimately betray a deeper ambivalence about the place of rights in Australian constitutionalism.
This chapter examines the U.S. Constitution’s textual basis for judicial engagement with basic questions of ownership, along with property as a feature of the Supreme Court’s engagement with political economy. It first considers conventionalism and essentialism in federal constitutional property jurisprudence before turning to a discussion of the laissez-faire constitutional doctrine of the so-called Lochner-era. It then addresses “regulatory takings” claims, constitutional impediments to redistribution, and the role of normative visions of property use in federalism doctrine, as well as the federal government’s power to govern federal lands. Throughout, the chapter focuses on the interaction between legal doctrine and the larger politics of American economic order, with particular attention to the transition from the welfare state of the twentieth century to conclude with an assessment of the jurisprudence of neoliberal political economy.