"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Friday, November 27, 2009

Review of Basic Structure - A foiled attempt

T R Andhyarujina has written an article in (2009) 9 SCC (J) 34 ,brining into the light the probable causes of the foiled attempt to review the Basic Structure doctrine. Find here a piece written by Justice Krishna Iyer on the same issue in 2005 as a response to a demand to reveal the green room setting of the review. Andhyarujina's article is a reiteraton of Justice Iyer's narrative.

Wednesday, November 25, 2009

Questions concerning "Judicial Legislation" referred to Constitutional Bench

Recently, in the case of University of Kerala v. Council, Principals', Colleges, Kerala and Ors., a Supreme Court Bench consisting of Markandey Katju and Asok Kumar Ganguly, JJ. has, on 11th November 2009 referred the following questions to a Constitution Bench :

1. Whether the Court by an interim order dated 22.09.2006 can validly direct implementation of the Lyngdoh Committee's Report;
2. Whether the order dated 22nd September, 2006 really amounts to judicial legislation;
3. Whether under our Constitution the judiciary can legislate, and if so, what is the permissible limits of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by our Constitution;
4. Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or it can only make a recommendation to the legislature or concerned authority in this connection; and
5. Whether Article 19(1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee report without authority of law.
6. What is the scope of Articles 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform functions of the executive wing of the State."

These questions primarily deal with the power of the Supreme Court to interfere into the domain of the Legislature and the Executive.