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The fundamental premise of this study is that where Constitutions, such as that of India and Pakistan, articulate legal norms which limit the scope of the executive power to derogate from individual rights during states of emergency, there must likewise exist an effective control mechanism to ensure that the Executive acts within the scope of that power. Viewed from this perspective, the judicial power to interpret the Constitution imposes upon the Court the constitutional duty to provide adequate safeguards against the abuse of state power affecting individual rights. This power remains available notwithstanding the presumed or purported ouster of judicial review. The concept of judicial review as a source of control is examined in the light of the experience of Pakistan and India during periods of constitutional emergency. The divergent approaches of the Courts in these countries, in litigation concerning emergency powers and individual rights, are explained in terms of divergent views that these Courts have adopted with respect to the nature of judicial review.
What role does, and should, legal, political, and constitutional norms play in constraining emergency powers, in Asia and beyond.
This book presents a comprehensive legal and constitutional study of emergency powers from a comparative common law perspective. It is one of very few comparative studies on three jurisdictions and arguably the first one to explore in detail various emergency powers, statutory and common law, constitutional and statutory law, martial law and military acting-in-aid of civil authority, wartime and peacetime invocations, and several related and vital themes like judicial review of emergency powers (existence, scope and degree). The three jurisdictions compared here are: the pure implied common law model (employed by the UK), implied constitutional model (employed by the USA) and the explicit constitutional model (employed by India). The book’s content has important implications, as these three jurisdictions collectively cover the largest population within the common law world, and also provide maximum representative diversity. The book covers the various positions on external emergencies as opposed to internal emergencies, economic/financial emergencies, and emergent inroads being made into state autonomy by the central or federal governments, through use of powers like Article 356 of the Indian Constitution. By providing a detailed examination of the law and practice of emergency powers, the book shares a wealth of valuable insights. Specific sub-chapters address questions like – what is the true meaning of ‘martial law’; who can invoke ‘martial law’; when can it be invoked and suspended; what happens when the military is called in to aid civilian authorities; can martial law be deemed to exist or coexist when this happens; what are the limits on state powers when an economic emergency is declared; and, above all, can, and if so, when and how should courts judicially review emergency powers? These and several other questions are asked and answered in this study. Though several checks and constraints have been devised regarding the scope and extent of ‘emergency powers,’ these powers are still prone to misuse, as all vast powers are. A study of the legal propositions on this subject, especially from a comparative perspective, is valuable for any body politic that aspires to practice democracy, while also allowing constitutionally controlled aberrations to protect that democracy.
This book makes a significant contribution to the understanding of issues of comparative constitutionalism in emergent politics. Recurrent states of emergency in Malaysia, Sri Lanka and Bangladesh provide the background for a comparative examination of constitutional emergency powers, individual rights, and judicial review. This work examines the extent to which the Court in these countries has performed its expected role, identifies problems in approaches to interpretation which have been adopted, and suggests alternatives to constitutional interpretation and judicial review. The alternatives explored are drawn from contemporary western jurisprudence, including those of Ronald Dworkin and writers of the Critical Legal Studies tradition. The juxtaposition of western jurisprudential development to issues of constitutionalism in the countries under survey is a bold attempt to seek some common ground in conceptualizing rights and techniques of juristic interpretation in western and eastern legal cultures. The theoretical framework of the study is well-perceived, the arguments convincing. This carefully researched work makes a valuable and scholarly contribution to the study of comparative constitutional law and jurisprudence.
Oxford Handbooks of Political Science are the essential guide to the state of political science today. With engaging contributions from 51 major international scholars, the Oxford Handbook of Political Theory provides the key point of reference for anyone working in political theory and beyond.
Comparative constitutional law is a field of increasing importance around the world, but much of the literature is focused on Europe, North America, and English-speaking jurisdictions. The importance of Asia for the broader field is demonstrated here i
Britain’s main imperial possessions in Asia were granted independence in the 1940s and 1950s and needed to craft constitutions for their new states. Invariably the indigenous elites drew upon British constitutional ideas and institutions regardless of the political conditions that prevailed in their very different lands. Many Asian nations called upon the services of Englishman and Law Professor Sir Ivor Jennings to advise or assist their own constitution making. Although he was one of the twentieth century’s most prominent constitutional scholars, his opinion and influence were often controversial and remain so due to his advocating British norms in Asian form. This book examines the process of constitutional formation in the era of decolonisation and state building in Asia. It sheds light upon the influence and participation of Jennings in particular and British ideas in general on democracy and institutions across the Asian continent. Critical cases studies on India, Pakistan, Sri Lanka, Malaysia and Nepal – all linked by Britain and Jennings – assess the distinctive methods and outcomes of constitution making and how British ideas fared in these major states. The book offers chapters on the Westminster model in Asia, Human Rights, Nationalism, Ethnic politics, Federalism, Foreign influence, Decolonisation, Authoritarianism, the Rule of Law, Parliamentary democracy and the power and influence of key political actors. Taking an original stance on constitution making in Asia after British rule, it also puts forward ideas of contemporary significance for Asian states and other emerging democracies engaged in constitution making, regime change and seeking to understand their colonial past. The first political, historical or constitutional analysis comparing Asia’s experience with its indelible British constitutional legacy, this book is a critical resource on state building and constitution making in Asia following independence. It will appeal to students and scholars of world history, public law and politics.
This book presents a theory of political liberalism in the British post-colonies.
The political history of Pakistan is characterised by incomplete constitution-making, a process which has placed the burden of constitutional interpretation on state instruments ranging from the bureaucracy to the military to the judiciary. In a penetrating and original study of the relationship between state and civil society in Pakistan, Paula Newberg demonstrates how the courts have influenced constitutional development and the structure of the state. By examining judicial decisions, particularly those made at times of political crisis, she considers how tensions within the judiciary, and between courts and other state institutions, have affected the ways political society views itself, and explores the consequences of these debates for the formal organisation of political power.
It has long been contended that the Indian Constitution of 1950, a document in English created by elite consensus, has had little influence on India’s greater population. Drawing upon the previously unexplored records of the Supreme Court of India, A People’s Constitution upends this narrative and shows how the Constitution actually transformed the daily lives of citizens in profound and lasting ways. This remarkable legal process was led by individuals on the margins of society, and Rohit De looks at how drinkers, smugglers, petty vendors, butchers, and prostitutes—all despised minorities—shaped the constitutional culture. The Constitution came alive in the popular imagination so much that ordinary people attributed meaning to its existence, took recourse to it, and argued with it. Focusing on the use of constitutional remedies by citizens against new state regulations seeking to reshape the society and economy, De illustrates how laws and policies were frequently undone or renegotiated from below using the state’s own procedures. De examines four important cases that set legal precedents: a Parsi journalist’s contestation of new alcohol prohibition laws, Marwari petty traders’ challenge to the system of commodity control, Muslim butchers’ petition against cow protection laws, and sex workers’ battle to protect their right to practice prostitution. Exploring how the Indian Constitution of 1950 enfranchised the largest population in the world, A People’s Constitution considers the ways that ordinary citizens produced, through litigation, alternative ethical models of citizenship.