Courts Constitution and Current Legal Problems
Constitution being sui generis, encompasses uniqueness. Therefore, the notion of constitutionalism in principle and theory may apply to all federal Constitutions. However, scope and ambit thereof are bound to be determined by the textual and structural architecture of the Constitution. From this perspective, the Constitution of India is to be understood, however, developments in other constitutional States cannot be effaced in reading it. Note of caution in over-borrowing must exist. In the bygone decade, owing to the amalgam of progressive and conservative readings of the Constitution, lack of clarity on certain vital issues concerning the constitutional vision of time has surfaced.Ordinarily, the principal constitutional role assigned to the Apex court is to protect the fundamental rights and to set the scales to judge the nudge of legislative and executive organs of State. Therefore, limiting the State to constitutional yardsticks is the core of judicial function. The court, authoritatively tells us what the law is because its quest to so determine is presumed to be based on giving effect to “efficient and formal cause”1 of the Constitution. This function of the court to lay the norms by limiting the legislative powers to ensure that it may not be mistaken and forgotten constitutes the essence of judicial duty and underlines the significance of court as a distinct and independent organ of State. A fortiori, as stated by great Chief Justice Marshall in Marbury2 “***to what purpose were those powers limited, if those powers might, at any time, be exercised by those intended to be restrained?”. Fully cognisant of the same, the Supreme Court ever since its inaugural has been at the forefront
in discharging its constitutional role of judicial review of legislative and executive actions. The former forming the “minuscule” of the later. However, the impact of invalidating a legislative Act often raises the questions of the “democratic standing of the court.” Thus, it is the “efficacy of judicial reasons,” which legitimises its social standing. The proposed deliberation on
subject-given the vast area is confined to “mode, mechanisms, and evolution of principles” by constitutional courts in India. In that sense, few decisional laws indicate that the power of precedent, as Cardozo calls them the power of the beaten track, not always characterises our Supreme Court. Judicial innovation in any sphere is bound to be plagued with challenges to determine the precise nature and ambit of certain nebulous expressions. So, the interpretative incoherence in jural provisions or concepts is bound to emerge in the adjudicative process. Therefore, an essential question arises whether the constitutional courts were consistent in the discharge of their duties? Spread over seven decades of judicial activity, shades of activism and passivity are glaring, but no general pattern is clearly discernible. To understand the functional and traditional contours of the temporal judicial trend, a critical review of Courts in the particular generation is opportune. The proposed webinar seeks to analyse the role of constitutional courts in India in general and Supreme Court in particular on the ollowing aspects:1. Features of judicial dissociation from Politics.2. Courts at the forefront of political discourse.3. Narrative of Electoral or democratic probity- Analysing Anti-defection Jurisprudence.4. Discourse on custody of the Constitution.5.Stimulating dynamics of Judicial Independence: Mapping with the notion of Judicial Accountability.6. Balanced Constitutionalism-Comparative prism of Judicial Review.7. Emerging constitutional values: Proportionality in the right based jurisprudence.8. Decades of Constitutional Practice: Views from Bar.9. Global Constitutional Dialogue.10. Realism v formalism in Judicial outcomes.11. Theological Jurisprudence.12. Law–Literature Movement: Narratives on democratic conversation with Court.The webinar is a runway for continual dialogue in understating our legal apparatus with its continual dynamics.
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1.
Mathew J., spoke of “efficient cause” to mean “supposed original will of people which is prior and superior to will of any representative of
people” and he described formal cause to mean “the constitutional prescription of certain decisive principles of the lasting value of political
rule to ensure the just exercise of power by the state”. [K.K. Mathew, “Democracy,Equality and Freedom”, EBC 1978.]
2.
William Marbury v James Madison, Secretary of State of the United States.
