The Two Judgments: Golaknath and Kesavananda Bharati - The purpose of this article is not to criticize the judgment, but to give its effect and the changes it made in the previous constitutional position of fundamental rights.
The Two Judgments: Golaknath and Kesavananda Bharati* by K. Subba Rao (Ex-Chief Justice of India) Cite as : (1973) 2 SCC (Jour) 1 The purpose of this article is not to criticize the judgment, but to give its effect and the changes it made in the previous constitutional position of fundamental rights. Before considering the effect of the recent judgment, it would be convenient at this stage to notice the scope of Golaknath judgment for two reasons: (1) there is misapprehension as regards the scope of the said decision and (2) it would help to ascertain how far and to what extent, the fundamental freedoms of the people, as recognised by that decision, have been changed by the recent decision. In that case the landlord questioned the constitutional validity of an Act passed by the legislature taking away the fundamental rights in an estate. The Supreme Court dismissed the petition of the landlord. That is to say, contrary to the impression created by propaganda, the rich man lost the case. In effect it laid down the following propositions: (1) All the amendments made up to the date the judgment was delivered, were valid. (2) The amendment under Article 368 being law, it is subject to the provisions of Article 13 and therefore if the said law takes away or abridges the fundamental rights, except in the manner and to the extend prescribed by Part III, it will be void.
The Anglo-Irish Treaty of December 6, 1921 was the foundation stone of an independent Ireland
" The Constitution of 1937 was formulated, presented and adopted by the people within a very short time-span, but none the less it encapsulated the mores and ethos of the people. However change was inevitable and Irish society would be transformed over the ensuing decades". Discuss this statement in detail regarding all of the following: . The content of the Constitution as originally enacted. 2. Outline how the Constitution responded to the changing needs of Irish society. 3. Outline ONE Article (or sub-article) the inclusion (or non-inclusion) of which you would regard as surprising given the history of Irish Constitutional emergence. Name: Vivienne Matthews O'Neill Student Number: 00394556 Subject: Constitutional Law Date Due: 18th February 2004. Word Count: 7586. 13 CONTENTS . Introduction 2. The Anglo- Irish Treaty 1921 3. The 1922 Constitution 4. Original content of the 1937 constitution 5. Reaction to the new constitution 6. Status of the country in 1937 7. The doctrine of precedent 8. Conclusion 9. Bibliography. 13 INTRODUCTION The Irish Constitution is necessarily a product of it's time; the immediate post-revolutionary period of Irish history. To a greater extent than is perhaps generally appreciated, the 1937 Constitution re-enacted that of 1922 with a re-ordering of the contents which served partially to disguise its
The Constitution And an Element of Change.
"The whole system of government of a country, the collection of rules which establish, regulate and govern the government" Professor K C Wheare1 What is a Constitution? To put it in a simple language "a Constitution is a document which sets out the rules/law to be adopted by a particular state over which it reins and it governs over all other forms of law (i.e. its superior to all other law). Our Constitution! Enacted in 1937 by the people of Ireland, it is a detailed document containing 50 articles, which include such features as: Separation of Powers; the legislative, the executive and the judiciary. Universal Suffrage: anyone over the age of 18 has the right to vote in Dail elections and on any issue in relation to amendment of the constitution. Fundamental Rights: articles 40 - 44 Amendment and Referendum: articles 46 + 47 This document marked a new political beginning for Ireland and it was drafted without any reference to any other government. Though, it did incorporate institutions, which existed in other states (most commonly England). The constitution does not, although it is our supreme law, give us a list of all legal frameworks but it allows for the use of legal rules and interpretation to be used as long as they do not violate a citizen right under its articles. Pre 1937 Developments! It must be noted that Eamon De Valera and his government and
The Proportionality test inevitably takes judges in to the review in to realms of merits review in proceedings under the Human Rights Act 1999. Discuss
The 'Proportionality' test inevitably takes judges in to the review in to realms of 'merits review' in proceedings under the Human Rights Act 1999. Discuss Although the courts considered issues of Human Rights under the European Convention of Human rights it wasn't until its incorporation under the Human Rights Act 1998 that it fully became effective. As a result courts were given new powers especially under sections 3 and 4 which considered issues of compatibility. In terms of Judicial review a whole new spectrum came into play in regards to the intensity of review permitted under the test of proportionality. It is this test which I will be discussing as its acceptance into English law has resulted in the question what is the role of judges under this principle and how far can they go in assessing decisions before overstepping their boundaries and entering into the 'realms of merits review.' Prior to the HRA Before entering into a discussion about the test itself it is useful to look at the background to judicial review prior to enactment of the Human Rights Act. The traditional test adopted was stated in a case of Associated Pictures v Wednesbury Corpn 1 where it was held that in order to submit that a decision made by an administrative body was unlawful 'it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body
Watkin observes how the Welsh have the ability to absorb the new, while retaining values from the past. Through examining the constitutional history of Wales, the national identity of the Welsh, the preservation of values such as the Welsh language, and t
Thomas Glyn Watkin reflects on the history of Wales as a nation, the uniqueness of the current devolution settlement, and the promising future that the Welsh hold in their grasp. Watkin observes how the Welsh have the ability to absorb the new, while retaining values from the past. Continuing, he argues that the Welsh have an uncompromising national identity where determination is evident throughout the past and into the present, despite fragmented government and differing legal systems. Concluding, Watkin puts forth his belief that there is no doubt that Wales will continue to progress whilst embracing its traditions and heritage, and therefore become a nation with an integral role in the larger world. Watkin is essentially arguing that the legal history of Wales helps to explain the present situation, and the future. In the Middle Ages, the Welsh were known as a distinctive nation: "The Welsh were, indeed, for all their differences, a very distinctive people."1 However, as time passed, their national identity was in jeopardy. The Welsh Laws in the Middle Ages helped to distinguish and unify the Welsh: "The laws remained a focus of unity."2 Welsh law making became redundant for a long period; however, on the creation of the National Assembly in 1997, Ron Davies declared a new dawn had broken for Wales.3 Also a focus of unity; the Welsh language had experienced adversity from
Mixed legal systems
Introduction This paper seeks to make the case for considering if there truly are any "pure" legal systems in the world. It will first attempt to discuss different definitions of mixed legal systems, as well as an analysis of the different levels of mixedness. Subsequently, it will make a proposition, supported by the case studies of South Korea, Japan and the Philippines, of whether it is possible for a pure system of law to exist. Summarily, this paper seeks to propose that there will always be both pure and mixed legal systems in existence. Definitions The classic definition of a mixed system stems from F.P Walton: "Mixed Jurisdictions are legal systems in which the Romano-Germanic tradition has become suffused to some degree by Anglo-American law."1 Subsequently, a more modern definition developed from Robin Evans-Jones: "What I describe by the use of this term in relation to modern Scotland is a legal system which, to an extensive degree, exhibits characteristics of both the civilian and the English common law traditions."2 Substantiating this are the examples of Louisiana, Quebec, Scotland and Seychelles. Both definitions effectively indicate that a 'mixed legal system' is one where the common laws and the civil laws interact and function together instead of just co-existing separately. Accordingly, this factor is pertinent in examining if a pure legal
The Constitution of United Kingdom In Comparison with the Constitution of Russia
Constitutional Law The Constitution of United Kingdom In Comparison with the Constitution of Russia Introduction: Constitutional law is concerned with the role and powers of the institutions within the state and with the relationship between the citizen and the state . Thus, it tends to concentrate on the relation between the primary organs of sovereign power (for example, Parliament and the judiciary) and the fundamental principles of constitutionalism, such as the rule of law. All constitutional law presupposes the existence of a constitution, whether written or not. A constitution sets out the relationship between individuals and the Government. It is a document that sets out necessary rules for the framework and operation of state institutions, for example defining the powers of the state and its agencies . Who can do what and where the limits of power are. This can only be of value if people feel an ownership of their constitution and other institutions are open and fair. This essay will examine the constitutional law of the United Kingdom in comparison with the constitutional law of Russia. To do so a brief background and history will be discussed in order to explain how the current constitutional law of these two countries came about. An Introduction to the United Kingdom and Russia's Constitution Similarly, the study of constitution of the United Kingdom and
Estado de Derecho
Universidad de Costa Rica Facultad de Ciencias Económicas Escuela de Administración Pública Curso de Estado de Derecho Profesora: Laura Ramírez Tema: Organismos Electorales Integrantes: Geraldin Castaing...........................................A41225 Amalia Vásquez.................................................A Anabelle González.........................................A52452 Laura ......................................A 8 junio 2008 ORGANISMOS ELECTORALES I. Concepto Según la definición que plantea el Instituto Interamericano de Derechos Humanos para organismos electorales, dice que "los organismos electorales son la autoridad suprema del Estado, especializada y en diversos grados autónoma, encargada de la llamada función electoral" 1. Por otro lado menciona que "la función electoral es ejercida por un complejo institucional que por lo general actúa con autonomía dentro del Poder Judicial y en algunos casos con independencia respecto de las tres clásicas ramas del poder público" 2. Lo anterior hace referencia a que generalmente los organismos electorales tienen autonomía del Poder Judicial sin embargo, como vimos anteriormente, en nuestro país estos tienen tal autonomía, que son muchas veces considerados como un cuarto poder, o por lo menos haciendo referencia al Tribunal Supremo de Elecciones. Se especifica también que la organización
The Advantages and Legal Issues of the One Spot Two Examinations System
The Advantages and Legal Issues of the "One Spot Two Examinations" System Introduction In the "One Spot Two Examinations" system, unlike the "Two Spots Two Examinations" system in which the immigration and custom facilities of each jurisdiction are located inside its border1, all these facilities of two different jurisdictions are located inside the border of one jurisdiction. This system can be used in the situation where is hard to locate these facilities beside the border, such as airports, railway stations and sea bay. By using this system, the passengers will be more convenience and save a lot of time. A lot of countries have adopted a similar system, such as some European countries, Canada and United States of America. For example, the "preclearance system"2 between Canada and United State is very similar to the "one spot two examinations" system between Hong Kong and Mainland China. The preclearance system is used in some international airports of Canada, such as Toronto Pearson International Airport. Travellers who fly from Canada to United States from these airports will enter into a "preclearance area" inside of the airport before boarding. In this area, travellers will pass though the Immigration, Customs, Public Health, and Department of Agriculture inspections which is operated by the United States Customs and Border Protection services.
'The enactment of a codified constitution would transform the British system of government.' Discuss
A codified constitution 'provides a clear, accessible and coherent account of the fundamental rules and principles according to which the state and society are constituted and governed.'1 For a codified constitution to transform the British system of government, it would have 'to change [its] shape, appearance, or condition...'2 E. Wing has suggested that a constitution (given its wider meaning) refers to the whole system of government of a country.3 It therefore appears that the British system of government is in fact its constitution, and as 'as every schoolchild is supposed to know, the United Kingdom (UK) does not have a written constitution'.4 Consequently, the question reads, the enactment of a codified constitution would transform the (uncodified) British constitution. Although there are no 'obviously agreed boundaries to it',5 Oliver suggests that the UK constitution is 'based on a combination of traditions, conventions, Acts of Parliament, Acts of devolved bodies, as well as the regulations and decisions of the courts.'6 What needs to be appreciated from the outset is that the question poses an unqualified assumption. In reality, the extent to which codification would transform the constitution is entirely reliant on factors that would have to be decided before the constitution were enacted. These factors include what a written constitution should contain and how
![Prerogative powers are very important source of UK Constitution dealing with issues such as foreign affairs. There are not written down, and can only be followed in common law. All major prerogative is now regulated by conventions.[1] Despite being the Mo](https://mbt-essays-prod-public.s3.eu-west-1.amazonaws.com/888953/listing/888953_1.jpg)