UNIT-I Classification of Constitution and Governments. Definition and meaning of M. P. Jain- Indian Constitutional Law- Relevant Volume. Reference Books. M P Jain is the author of Indian Constitutional Law ( avg rating, 15 ratings, 0 reviews, published ) and M P Jain & S N Jain's Principles of Admi. ed to all those who strive to sec a better and brighter India. E. ASIRVATHAM. IND! AN CONSTITUTIONAL LAW; By M.P. JAIN, Bombay,. N.M. Tripathi Private Ltd.
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M. P. Jain*. I. INTRODUCTION. As USUAL, the provisions concerning fundamental rights in the Indian. Constitution continue to be a prolific source of case-law. Constitutional Law - Download as PDF File .pdf), Text File .txt) or read online. Constitutional M.P. Jain, Indian Constitutional Law (5th ed., ) 3. Mahendra . presexdilsini.cf - download M P Jain Indian Constitutional Law book online at best prices in India on presexdilsini.cf Read M P Jain Indian Constitutional Law book reviews.
The distinctiveness of the Indian ROL lies in providing space for a continuing conversation among four core notions: "rights", "development", "governance" and "justice". In the scramble for a New Empire, the constituent imagination of the so-called "transitional societies" remains tethered primarily to what these former socialist societies may learn from the American constitutional experience.
Thus stand monumentally sequestered some considerable opportunities for comparable learning from the Indian ROL experience and imagination. Postsocialist constitution-making has much to learn from the originality of the postcolonial form; however, and despite renewed interest in comparative constitutional studies, it seems that the "New" Europe has very little to learn from the old Global South.
For the moment, I briefly consider below the relatedness of these four key notions: governance, rights, justice, and development. Governance The Holocaust of the Partition of India furnishes the histrionic moment in which the Indian constitution stands composed.
The establishment of frameworks for collective human security and order was considered as a crucial ROL resource in the same way that today the making of a new global ROL remains affected by the two "terror" wars. The notion that the radical reach of self-determination ought to be confined merely to the end of the colonial occupation furnishes a new leitmotif for Indian governance; integrity and unity of the new nation redefines Indian ROL to authorize vast and ever proliferating powers of preventive detention and eternal continuation of many colonial security legislations as laws in force.
No ROL value consideration in general, overall, is allowed to intrude upon state combat against armed rebellion aimed at secession from the Indian Union. In this the Indian experience is scarcely unique. The politics of autonomy requires Indian understanding of the federal principle and detail. True, this distribution of powers can only be changed by constitutional amendments and these remain difficult of negotiation and achievement in the current era of coalitional politics.
However, the Indian Parliament retains a generous residuary authority that empowers it to legislate on matters not specified in the state and concurrent list; further, the laws it may make often have an overriding national authority.
Additionally, Article 35 specifically gives Parliament overriding powers to make laws that outlaw millennially imposed disabilities and discriminations on India's untouchables Article 17 and slavery and slave-like practices Articles And, drawing heavily from the "experience" of comparative Commonwealth federalism, especially Canada and Australia, the Indian Supreme Court innovates constantly in its interpretive provenance to further hegemonic national role for the Union government.
India's distinctive cooperative federalism remains defined and developed by many institutional networks. The constitutionally ordained National Finance Commission constructs human rights normativity in allocation of federal resources to states.
The constitution and the law create India-wide national agencies 23 entrusted with the tasks of protection and promotion of the human rights of "discrete and insular" minorities. The Comptroller and Auditor General of India, assisted by the Central Vigilance Commission, at least help fashion the discourse concerning corruption in high places.
And, overall, the Indian Election Commission has incrementally pursued the heroic tasks of attainment of a modicum of integrity in the electoral process.
The ways in which these and related agencies actually perform their tasks is a subject of lively political discourse, within the practices of investigative journalism, and social movement and human rights activism made constitutionally secure by the exertions of State High Courts and the Supreme Court of India.
All this enables continual re-articulation of people's power confronted by a heavily militarized polity and state formation, which put together and often inflict heavy democratic deficit on the processes, institutions, and networks of governmentability. Thus, increasingly civil society interventions activating high judicial power have led to some softening of the anti-democratic aspects of the Indian Constitution at work.
Put another way, Indian federalism contributes to the ROL discourse not just as facilitating governance but also as empowering participatory forms of citizen resilience and selfreliance. This experience needs to be accorded a measure of dignity of discourse in our "comparative" constitutionalism conversations.
Rights The Indian ROL notions remain deeply bound to the ways in which fundamental rights stand conceived. Far from reiterating either the liberal or libertarian theologies of rights as corpus of limitation on state sovereignty and governmental conduct, the Indian ROL conceptions also empower progressive state action. Thus, for example, the following constitutional rights enunciations authorize legislative and policy action manifestly violative of some liberal conceptions of rights: Article 17 outlaws social practices of discrimination on the ground of "untouchability" Articles , enshrining "rights against exploitation", outlaws the practices of agrestic serfdom bonded and other forms of un-free labour and related historic practices of violent social exclusion Articles authorize, under the banner of fundamental rights, state combat against vicious forms of patriarchy Articles so configure Indian constitutional secularism as to empower state to fully combat human rights offensive practices of the dominant "Hindu" religious tradition Articles provide a panoply of fecund protection of the rights of religious, cultural, and linguistic minorities.
The Indian ROL stands here normatively conceived not just as a sword against State domination and violation and historic civil society norms and practices but also as a shield empowering an encyclopaedic regime of "progressive" state intervention in the life of civil society.
In so doing, it engages in simultaneous disempowerment and re-empowerment of the Indian State in ways that makes more complicated governance, politics, and constitutional development. In terms of social psychology of the yesteryear, the Constitution thus inaugurates "cognitive dissonance" in ways that necessarily marks its rather schizoid course of development.
The rights texts, enunciated in a coequal world-historic time of the Universal Declaration of Human Rights, further impact on the development of international human rights norms, standards, and even values. I have here in view Part IV of the Constitution which enacts the distinction between regimes of civil and political rights and social and economic rights, which subsequently dominate the global human rights forms of talk.
Many actually installed at the time of origin, and subsequent governance mechanisms and arrangements, articulate institutional ways of moving ahead with this mission.
I do not burden this text with any detailed enumeration. The extraordinary powers to redress violation of fundamental rights have achieved, here summarily put, the following results. First, a stunning achievement which refers to administrative law jurisprudence directed to combat and control uses of discretionary powers; second, wide adjudicatory surveillance over legislations accused of violating fundamental rights or the principle and detail of Indian federalism; third, the enormous achievement fashioned by the Supreme Court of India giving its inaugural, and awesome powers of invigilation over the exercise of plenary amendatory powers via the doctrine of the basic structure and the essential features of the Constitution.
These powers now stand further routinized to bring home micro-accountability for the exercise of everyday legislative, executive, and administrative exercises of power under adjudicatory surveillance. This belief and practice combine to produce a distinctive type of "constitutional faith" to borrow a fecund expression of Sanford Levinson, which further enduringly renders legitimate expansive judicial review. In the moment of making the constitution at least three salient justice- of- rights type questions stood posed.
First, if promotion and protection of human rights and fundamental freedoms entailed maximal deference to full ownership over the means of production as the very foundation of freedom, how may "just" social redistribution ever occur?
Second, how may fullest deference to communitarian rights be reconciled with the individual rights of persons who wish to belong to a community and yet also protest against individual rights violation within privileged acts of group membership? Third, how far should go group-differentiated rights that privilege programmes of affirmative action, not just extending to educational and employment quotas, but also to legislative reservations for the scheduled castes and tribes, as ways of righting past and millennial wrongs?
These three interlocutions also define the constitutional conceptions of "development". If one were to take the Preamble and the Directive Principles of State Policy at all seriously, development signifies the disproportionate flow of state and societal resources that enhance real-life benefits for the Indian impoverished masses that Babasaheb Ambedkar luminously and poignantly described as India's atisudras, the social and economic proletariat.
Much before the right to development-based notions of governance and development arrived on the scene of global ROL, the Indian constitution had already codified this understanding.
In any event, the "justice of rights" problem has been variously recurrent in the Indian experience and I offer to view below some vignettes.
It is not a constitutional court, though much of its business relates to issues concerning the enforcement of fundamental rights. The law laid down by the Court is declared to be binding on all courts throughout the territory of India and by necessary implication upon citizens and state actors.
Further, not merely all authorities of the state are obligated to aid the enforcement of the apex judicial decisions but also the Court is empowered to do "complete justice", an incredible reservoir of plenary judicial power, which it has used amply in the past two decades.
Legislative overruling of apex judicial decisions occurs but infrequently; however, an extraordinary device called the 9th Schedule has been invoked since the adoption of the Constitution to immunize statutes placed in it from the virus of judicial review, even when ex facie the legislations inscribed therein remain fundamental rights violative.
In a recent decision, the Supreme Court has assumed powers of constitutional superintendence over the validity of laws thus immunized. In the early years, the Court took the view that although the Directives cast a "paramount" duty of observance in the making of law and policy, their explicit non- justiciability meant that the rights provisions overrode the Directives.
First, the Supreme Courts began to deploy the Directives as a technology of constitutional interpretation, favouring an interpretative style that fostered, rather than frustrated, the Directives.
Second, in its more activist incarnation since the eighties, the Court has begun to translate some Directives into rights. Perhaps, a most crucial example of this is the judicial insistence that the Directive prescribing free and compulsory education for young persons in the age group is a fundamental right.
Simultaneously with the adoption of the Constitution, Indian Justices strove to erect fences and boundaries to the power of delegated legislation processes by which the executive power actually legislates. They conceded this power but with a significant accompanying caveat: the rule-making power of the administration ought not to usurp the legislative function of enunciation of policy, accompanied by prescriptive sanctions.
Thus came into being the "administrative law explosion", where Justices did not so much invalidate delegated legislation but vigorously policed its performance.
The executive may make rules that bind; but courts made it their business to interrogate, and even invalidate, specific exercises of administrative rule-making. A stunning array of judicial techniques over the review of administrative action has been evolved. Justices asserted judicial review power over the constitutionality of legislative performances. Laws that transgressed fundamental rights or the federal principle and detail activated the "essence" of judicial review power.
Whenever possible the Supreme Court sought to avoid invalidation of laws; it adopted the standard repertoire of "reading down the statutory scope and intendments so as to avoid conflict and by recourse to the peculiar judicial doctrine of 'harmonious construction".
But when necessary, enacted laws were declared constitutionally null and void. And even when resuscitated by legislative reaffirmation, they were re-subjected to the judicial gauntlet of strict scrutiny. The instances of judicial invalidation of statutes far exceed in number and range the experience of judicial review in the Global North.
Going beyond this, Indian Justices have assumed awesome power to submit constitutional amendments to strict judicial scrutiny and review. They performed this audacious innovation through the judicially crafted doctrine of the Basic Structure of the Constitution, which stood, in judicial, and juridical discourse, as definitive of the "personality" defined, from time to time, as the "essential features" of the Constitution.
They proclaimed the "Rule of Law", "Equality", "Fundamental Rights", "Secularism", "Federalism", "Democracy" and "Judicial Review" as essential features of the Basic Structure, which amendatory power may not ever lawfully transgress. This method allows GST-registered businesses to claim tax credit to the value of GST they paid on download of goods or services as part of their normal commercial activity.
Administrative responsibility would generally rest with a single authority to levy tax on goods and services. Exports would be considered as zero-rated supply and imports would be levied the same taxes as domestic goods and services adhering to the destination principle in addition to the Customs Duty which will not be subsumed in the GST. Amalgamating several Central and State taxes into a single tax would mitigate cascading or double taxation, facilitating a common national market.
The simplicity of the tax should lead to easier administration and enforcement. GST is applicable from 1 July Trust law[ edit ] Trust law in India is mainly codified in the Indian Trusts Act of , which came into force on March 1, Indian law follows principles of English law in most areas of law, but the law of trusts is a notable exception.
Indian law does not recognise "double ownership", and a beneficiary of trust property is not the equitable owner of the property in Indian law. Send By e-mail. Bare Acts Box Set Supreme Court on Aw Malik Handboo Complete Digest of This edition covers the legislative changes made up to the Constitution st Amendment Act, as well as the latest essential case law from the Supreme Court of India and from various High Courts.
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