The Supreme Court Versus the Constitution : A Challenge To Federalism

Constitutionally, the right to amend the Constitution in India lies with Parliament alone. In recent years, however, and in an atmosphere of judicial activism, the Supreme Court has gone beyond its role as interpreter of the Constitution, becoming its arbiter. There is thus scope in India′s federal structure for an impasse between the Supreme Court and Parliament which will not be resolved by referring to the Constitution. Written against this background, this collection of essays by eminent parliamentarians, jurists, legal experts and journalists examines various aspects of this important issue, including: - the doctrine of `basic structure′, and the complex responses to and consequences of this doctrine; - judicial review in India, in relation to the superiority of Parliament in the UK and the virtually unlimited scope of judicial review by the US Supreme Court; - `due process of law′ and its applicability in India; - the electoral system and the threat of majoritarianism; - federalism in India: Parliament and the state legislatures; - The Supreme Court′s creativity in interpreting the Constitution but the continuing absence of clear constitutional principles despite this. - the Court′s role as the protector of fundamental rights. Written in an accessible style, this book is a of interested to academic reseearchers and practitioners in government studies, constitutional issues, law and politics. Basic Structure : After Thirty Years / N.r. Madhava Menon -- The Constitution, Parliament And The Judiciary / P.p. Rao -- The 'doctrine' Versus 'majoritarianism' / Fali Nariman -- The Court, The Constitution And The People / Salman Khurshid -- The 'doctrine' Versus The Sovereignty Of The People / Subhash Kashyap -- The Constitution And 'due Process' / S.k. Dholakia -- 'due Process' Or 'procedure Established By Law'? / Ajay K. Mehra -- Is The 'doctrine' The Obstacle? / P.k. Dave -- Anomalies Of The 'doctrine' / R.k.p. Shankardass -- Federalism Revisited / A.m. Ahmadi -- India's Judiciary : The Promise Of Uncertainty / Pratap Bhanu Mehta -- A 'loose' Doctrine / K.c. Pant -- A Judicial Commission? / Ramaswamy R. Iyer -- The Supreme Court, Parliament And The Constitution / Ajit Mozoomdar. Conceived And Edited By Pran Chopra. Includes Bibliographical References (p. 176-177). Contents 8 Foreword 10 Preface 17 Acknowledgements 19 Basic Structure: After 30 Years 60 The Constitution, Parliament and the Judiciary 71 The ‘Doctrine’ versus ‘Majoritarianism’ 80 The Court, the Constitution and the People 96 The ‘Doctrine’ versus the Sovereignty of the People 100 The Constitution and ‘Due Process’ 109 ‘Due Process’ or ‘Procedure Established by Law’? 116 Is the ‘Doctrine’ the Obstacle? 132 Anomalies of the ‘Doctrine’ 138 Federalism Revisited 148 India’s Judiciary: The Promise of Uncertainty 156 A ‘Loose’ Doctrine 179 A Judicial Commission? 189 The Supreme Court, Parliament and the Constitution 193 The Ideal Remedy 202 An Overview 214 Interventions 218 Looking Back 233 Some Back Issues 240 New Dynamics of Federalism 251 Looking Ahead 276 About the Editor 286 List of Contributors and Participants 287

presented In The Form Of A Debate To Which Each Contributor Brings His Own Particular Expertise And Point Of View-and Offers Possible Solutions-this Very Readable Book Constitutes The First Full-length Discussion Of A Major Issue In Contemporary India. Editor Pran Chopra Argues That A Great Deal Is At Stake In This Situation, Including The Dynamics Of Federalism, Which Makes India Possible; The Role Of The Constitution In Holding The Polity Together; And The Future Of Parliamentary Democracy In India. Written Against This Background, The Essays In This Volume-contributed By Some Of India's Best-known Parliamentarians, Jurists, Constitutional Experts, Scholars, Administrators, And Journalists-present A Many-sided Discussion Of This Crucial Issue.

Papers presented at a seminar held at New Delhi during 19-20 September 2004