Sunday, February 26, 2006

Re-reading Ram Jawaya Kapoor

I never had the opportunity of reading Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549, in law school. Recently, I had to look at it for one section of my book, and I realized how important this case is. It is actually a fairly brief judgment. Yet, it is an authority for at least three important propositions. First, our Constitution does not embody the full separation-of-powers doctrine, only a separation-of-functions principle. Second, despite what some scholars may tell you, our democracy embodies a parliamentary form of government. Third, the cabinet, formulates all important questions of foreign policy.

I found this passage especially nicely written, although Chief Justice Mukherjea borrows the hyphen-joining-the-buckle metaphor without proper attribution from Walter Bagehot's The English Constitution.

In the Indian Constitution, therefore, we have the same system of
parliamentary executive as in England and the council of ministers, consisting,
as it does, of the members of the legislature is, like the British Cabinet, “a
hyphen, which joins, a buckle, which fastens the legislature part of the State
of the executive part.” The Cabinet enjoying, as it does, a majority in
the legislature concentrates in itself the virtual control of both legislative
and executive functions; and as the Ministers constituting the Cabinet are
presumably agreed on fundamentals and act on the principle of collective
responsibility, the most important questions of policy asre all formulated by
them.


Saturday, February 25, 2006

Common Law in India; Statute-of-Frauds Rule

I've been reading Setalvad's Common Law in India. It is so cogently written, and describes our legal system with elegance and modesty. Why did the style of writing die? Actually, the reason I was looking at Setalvad is to understand if our Contracts Act has a statute-of-frauds rule (that something must be in writing for it to be relied on). Setalvad is silent on this point, and I don't have access here to the Mulla Treatise. Does anyone know the answer?

Saturday, February 11, 2006

Another 13-Judge Bench?

A friend mentioned to me in Bangalore last month that our Supreme Court has constituted another 13-judge bench to hear a Bombay rent-control case. If this story is true, it will be the first time such a large bench has assembled since the Keshavananda review bench was dissolved by Chief Justice Ray in 1976. Read more about the odd proceedings, which lasted two days, in Baxi's classic, the Indian Supreme Court and Politics.

All Law Commission Reports Available Online

Well, first, I must apologize for not being active on this blog, which I announced with much fanfare. I had too much going on at work, and I'm also under the gun to finish my book. But the more I work on the book, the more I realize how much there is to explore in the fascinating realm of Indian law. So, I hope to be revive our discussion of law and other things.

My post today will be brief. I was online this evening researching a point on government contracts -- for a portion of my book. I went to the Law Commission's website to see if they have issued anything new on the subject. To my surprise, I discovered the Commission has scanned and posted online its entire series of reports. This is quite amazing. As serious students of Indian law know, the Law Commission reports are important summaries and statements of Indian law. They are referred to frequently by our Supreme Court, and they are usually well-written. I've downloaded the first report by M.C. Setalvad. He wrote it, apparently, while in Ooty during his summer vacation. There is a picture in his book, "Law and Other Things" (which is how this blog derives its name). The report is on state liability in torts. I remember reading about it in my first week at law school, but I never actually read the full report. I've recently been re-reading the Privy Council's decision in P.O. Steamship Navigation Company, which is extensively discussed in the report. Students of Indian law will recall that case as among the first ones we learn in law school.

Well, I'm looking forward to reading Setalvad on my trip to Jordan next week. I hope you take a look at some of these reports too. The Law Commission's website is located at
http://lawcommissionofindia.nic.in/. I hope they get to publishing the pre-independence reports too.