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Wednesday, February 27, 2013

The Hindu : Opinion / Lead : India’s benign constitutional revolution


The Hindu : Opinion / Lead : India’s benign constitutional revolution:


How ‘We the People’ came to be the source of authority of the Constitution

This is the story of how and why the framers of the Constitution of India deliberately designed a procedural error in the adoption of the new Constitution with a view to severing the seamless transition of legal authority from the British Crown-in-Parliament to the new Republic of India. The deliberate procedural error consisted in a deviation from the Constitution making procedure prescribed by the Indian Independence Act, 1947 — the law enacted by the British Parliament granting India independence and formally authorising the Constituent Assembly to draft a Constitution for the newly liberated state. To be sure, the framers of the Constitution of India were not the first, and indeed they were not the last to deliberately incorporate such procedural errors in the process of Constitution making. The founders of the Constitutions of several other states including Ireland, Pakistan, Sri Lanka and Ghana, which were being liberated from the British Empire, took such a step. In doing so, they were all motivated by the same goal: that of ensuring constitutional ‘autochthony.’


CONSTITUTIONAL AUTOCHTHONY

The etymological roots of ‘autochthony,’ which is not to be confused with ‘autonomy,’ are to be found in the Greek autos (self) and chthon (earth). The goal of constitutional autochthony is to deliver an indigenous Constitution, the source of whose ‘authority’ can be located in the new state’s own soil. The dominant academic view in the middle of the 20th Century was that autochthony could not be achieved simply by drafting an original Constitution or verbally invoking We the People as the source of its authority, for autochthony does not so much concern the content of the Constitution as its pedigree: the chain of legal validity authorising it.


This proposition found doctrinal support in the influential theory propounded by the legal philosopher, Hans Kelsen, which had it that it was inconceivable for a legal system to split into two independent legal systems through a purely legal process. One of the implications of Kelsen’s theory was that the basic norm (grundnorm) of the imperial predecessor’s Constitution would continue to be at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as ‘legal’ by the Constitution of the imperial predecessor.

On Kelsen’s account, only an ‘unlawful’ or ‘revolutionary’ act could ensure an autochthonous Constitution by rending asunder all continuity with the imperial predecessor.
Such break in legal continuity is automatically achieved where a former colony’s independence is won as the result of an armed revolution, as was the case with the United States of America. Independence in such instances is not granted ‘legally’ by the Crown-in-Parliament and the Constitution of the newly liberated former colony is in no way authorised by the imperial predecessor. The situation is very different where independence of a former colony is not brought about by armed revolution, but is ‘legally’ granted by the imperial predecessor. This was the case with India, Pakistan, Ireland, Sri Lanka and Ghana whose independence was the result of the British Crown-in-Parliament’s enactment of separate statutes of independence (Independence Act) for each of them. The statutes of independence also set up Constituent Assemblies authorising them to draft new Constitutions for each of these States. Following the constitution-making procedure stipulated in the statute of independence would have meant that the validity of the new Constitution could ultimately be traced to an imperial grant. The mere verbal invocation of We the People as the ‘source’ of authority in such cases would have rung hollow, apart from being jurisprudentially implausible since the source of authority of the new Constitution would continue to be the imperial predecessor’s Constitution. In such cases, it was thought that since there was no ‘revolution,’ one had to be deliberately made up in order to secure an autochthonous Constitution. Accordingly, as John Finnis argues, the framers of new Commonwealth Constitutions took great care to do something illegal “so as to make up a revolution, however contrived.”
IRISH INFLUENCE

The Irish were the pioneers in conceiving the idea of a benign legal revolution geared towards constitutional autochthony. Ireland was granted independence under the Irish Free State Constitution Act, 1922 enacted by the British Crown-in-Parliament which also authorised the Irish Constituent Assembly to draft a Constitution for the newly liberated state. Thus, the Irish Constitution of 1922 was not autochthonous.
Though it was drafted by an indigenous Constituent Assembly, its chain of legal validity could be traced to an imperial statutory grant. With a view to changing this state of affairs, in 1937 the Irish Parliament amended the Constitution by deliberately violating the procedure for amendment stipulated in the 1922 Constitution and put the amended Constitution for acceptance in a referendum. Going one step further, the Irish Parliament also repealed the Irish Free State Constitution Act, 1922 enacted by the British Parliament, though it was not empowered to do so. It is widely accepted that this successfully severed the chain of validity with the Crown-in-Parliament and ensured a truly autochthonous Constitution. The framers of the Indian Constitution appear to have rehearsed the Irish route to autochthony to the extent possible in Indian conditions.
Independence was formally granted to India by the Crown-in-Parliament’s enactment of the Indian Independence Act, 1947 though the executive decision to grant India independence was arrived at earlier in the Cabinet Mission Plan (1946). It was under the Cabinet Mission Plan that the Constituent Assembly was envisaged and charged with the mandate of drafting the new Constitution for India. This was legally recognised in Section 8 of the Independence Act. The Cabinet Mission Plan had envisaged that the new Constitution would be put to the Crown-in-Parliament for approval. Though the Indian Independence Act did not reiterate this requirement, it did specify that the new Constitution drafted by the Constituent Assembly would have to receive the assent of the Governor General of India, who would assent to such law in the name of the British Crown.
The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act: a) They did not put the Constitution to the approval of the either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act 1947; b) Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act — something the Constituent Assembly did not have the authorisation to do. In doing so, the framers not only repudiated the source which authorised them to enact the Constitution but it was also a denial, albeit symbolic, of Indian independence being a grant of the imperial Crown-in-Parliament. This ensured that the chain of constitutional validity did not extend all the way to the Crown-in-Parliament, thus delivering a completely autochthonous Constitution. In this fashion, We the People, through the members of the Constituent Assembly, came to be the ‘source’ of authority of the Constitution, rather than the authority being traceable to the Indian Independence Act enacted by the British Crown-in-Parliament.

WHY DID IT MATTER?

This quest for autochthony is likely to come across to some as an abstruse quibble that shouldn’t concern anyone other than the most pedantic legal theorists. There were, however, two reasons why the framers of new Commonwealth Constitutions felt constrained to pay such close attention to it. Firstly, it was feared that the British Crown-in-Parliament could, however improbably, reassert its authority over the newly liberated state by repealing the statute of independence and abrogating the new Constitution. There was, of course, no immediate apprehension of the British taking such a step. All the same, the framers of new Commonwealth Constitutions would have found, as Geoffrey Marshall notes, merely prudential reassurances to be precarious pegs to hang their nation’s independence on. Secondly, for sentimental considerations, the framers would have been loath to let the new Constitution be grounded in an imperial grant or be assented to by the British Crown. They would have wanted the new Constitution to be truly autochthonous, stemming from the authority of We the Peopleso that an independent future could, albeit symbolically, be insulated from a troubled imperial past.
(Shivprasad Swaminathan is Assistant Professor, Jindal Global Law School)


Wednesday, February 13, 2013

Android Apps for Lawyers

Some useful Android Apps for Lawyers available from Google play, are listed as below:

TheLaw.com releases, ad-free, a significant new version of its Law Guide and Law Dictionary:

* Law Dictionary: 8,500+ definitions
* Search, browse, bookmark entries
* Law Guide & FAQs: 200+ articles
* Legal Advice Forums for quick answers
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* Lawyer Directory - mobile optimized format
* Free case review links
* Find law jobs, upload your resume
* Search NY Code of Law - over 30 sections
* Quick application launch

NOTES:
- Internet is NOT needed for the dictionary, fully available offline. Guide is dynamic and requires an Internet connection.
- NO telephone access is required.


The law relating to Motor Vehicles in India available in a digitally readable format on your Android devices. Know all the important provisions about Traffic rules, Licensing, Penalties, Offenses, Procedure and other things about Motor Vehicles.

This app is designed for common people who do not understand the complicated language of law and only contains the important provisions of the Motor Vehicle Act. All the important provisions contained in the Motor Vehicles Act that every individual needs to know about are covered in this application with detailed section along with notes at the bottom and a separate tab for keynotes in simple language for better understanding the sections.

India Law House 

is a Android based Mobile Search Application for Indian Law & Acts.

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Do you know it is forbidden to imitate an animal in Miami,Florida,America? Here are lots of weird laws about each state of American,you can look up laws convenient by choosing state.



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The Indian Evidence Act, originally passed by the British parliament in 1872, contains a set of rules and allied issues governing admissibility of evidence in the Indian courts of law.
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The Law Dictionary 

A trusted source of legal definitions and terms featuring the entire Black's Law Dictionary (2nd edition) with over 15,000 words and definitions, perfect for lawyers and law students who need fast and easy reference to Black's Law Dictionary. This is not West Law's edition of Black Law's Dictionary, this is the 2nd Edition written by Henry Campbell Black himself.

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This app has all the features you could want in a legal dictionary including:
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The Income-tax Act, 1961

Check out and search the entire Indian Income Tax Act. The Income-tax Act, 1961 is the charging Statute of Income Tax in India. It provides for levy, administration, collection and recovery of Income Tax.

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Read the entire Income Tax Act. Search at will. All sections of the Act are available in the app.

Whether you are a layperson, law student, chartered accountant, a corporate lawyer or a taxpayer, this is an invaluable reference since it contains full text of the Act. You can search using any keyword and the app will show you the relevant sections.
* To see all sections of the Act (index) do not enter any search term and hit the search key. This provides you with complete list of chapters like a TABLE OF CONTENTS.
The list of contents chapter-wise comes up by default when you start the application.
To see list of contents chapter-wise, press the search key with no search text.

The Companies Act 1956 

An Act of the Parliament of India, enacted in 1956, which enabled companies to be formed by registration, and set out the responsibilities of companies, their directors and secretaries. The Companies Act 1956 is administered by the Government of India through the Ministry of Corporate Affairs and the Offices of Registrar of Companies, Official Liquidators, Public Trustee, Company Law Board, Director of Inspection, etc. The Registrar of Companies (ROC) handles incorporation of new companies and the administration of running companies.
Read the entire Companies Act. Search at will. Based on user feedback, ALL sections of the Act are now available in the app. Please upgrade to the latest version.
Whether you are a layperson, law student, a corporate lawyer or a litigant, this is an invaluable reference since it contains full text of the Act. You can search using any keyword and the app will show you the relevant sections.
* To see all sections of the Act (index) do not enter any search term and hit the search key. This provides you with complete list of chapters like a TABLE OF CONTENTS.


The Information Technology Act, 2000
as amended by The Information Technology (Amendment) Act,2008
The IT Rules of 2011(All 23 Rules)
Cyber Law of India
Cyber Crime Law of India
Data Protection Act of India
Ecommerce & Electronic Evidence law
by - Cyber Law Consulting


The Right to Information Act, 2005

Now available in a digitally readable format on your Android devices. Know everything you need to know about the Right to Information.

The Right to Information Act, 2005 was passed by Parliament on 15 June 2005 and came fully into force on 13 October 2005. Under the provisions of the Act, any citizen may request information from a "public authority" (a body of Government or "instrumentality of State") which is required to reply expeditiously or within thirty days. The Act also requires every public authority to computerize their records for wide dissemination and to pro-actively publish certain categories of information so that the citizens need minimum recourse to request for information formally.

This e-book application is one of its kind, a must have application useful for any Individual, Advocates, Law Students and others. This e-book application is prepared by a group of book-lovers after considering the convenience of the readers thus, this e-book application is divided concisely into different Chapters and Sections. A dedicated key is added to navigate through next section. No matter where you are or where you go, this e-book application will be useful and handy.

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-Complete Right to Information Act, 2005.
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*Important Note*

This app will add a few search access points on your device. If you do not want to use this new search page, you can either ignore it or delete it. If you do use it, we get a few cents and it will help us a lot to keep developing more apps. If you don’t, you can delete it and no harm is done (our app remains the same, no need to uninstall it!).


More to follow....

Thursday, February 7, 2013

Do not ignore regional aspirations, Karnataka HC tells the Govt

From the Deccan Herald : Do not ignore regional aspirations, HC tells govt:

The High Court, on Monday, directed the State government not to ignore the regional aspirations of people and ensure equitable distribution of projects and schemes across the State.

Hearing a PIL by advocate Shankara S Bhat seeking direction to set up medical colleges in Uttara Kannada district, acting Chief Justice K Sreedhar Rao observed that the politicians in power get benefits to constituencies they represent and other places get ignored. This should not happen, the court said.

A Division Bench headed by Justice Rao further said coastal areas (like Uttara Kannada) have natural wealth which has been sacrificed for the growth of economy. However, when it comes to giving benefits, such places are being ignored.

Karwar Port, which could have been a good point to transport iron ore, has not been developed till date, the court said. Justice Rao also said the Uttara Kannada district is more close to Goa as we have demarcated them from North Karanataka.

The petitioner contended that the State government, during a Cabinet meeting in Gulbarga, had decided to set up seven medical colleges for the academic year of 2013-14 in the State. However, not even a single college has been alloted for Uttara Kannada district. “We need at least two medical colleges for the district as there are no medical college at all. Since, there are ecological concerns, even big infrastructure projects have not come up in the district,” he said.

The State government has announced that new government medical colleges would be set up in Tumkur, Kodagu, Koppal, Chitradurga, Chikkaballapur and Chamarajanagar districts.

Counsel representing the State government objected to the petitioner’s submission and said the argument was not maintainable. “Seeking such directions from the court is not valid. The State government will set up medical colleges in Uttara Kannada when it feels there is requirement,” he said.

Hearing the arguments, the Bench said the government decision should not be one sided and State should concentrate on regional balance. The court also directed the State government to file objections and adjourned the case for further hearing.
'via Blog this'

Monday, February 4, 2013

Lexis Nexis at the New Delhi World Book Fair 4-2-2013



Lexis Nexis at HALL NO. HA1, STALL NO. B101-112 during the New Delhi World Book Fair at Pragati Maidan,New Delhi from 4th Feb 2013 to 10th Feb 2013.



LexisNexis India Team