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Not sitting "en banc"

edited January 26 in Polity & Governance
How does the structure of the Court have bearing on its interpretation of the Constitutional text?
Differences with the American style? Has the incoherence in interpretation (constitutional jurisprudence) been detrimental so far, or is it too early to form a judgement on this aspect?
The only thing necessary for the triumph of evil is for good men to do nothing.
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Comments

  • Doubt 2 -
    Constitutions often express a 'deep implicit distrust of peope', while also giving them a collective identity and a sense of agency
    A few instances of this 'implicit distrust' in the Indian context? ☺️
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • Not an expert but would still try to answer concisely.

    1. I think more than structure it is the principle of jurisprudence which has a bearing on the interpretation. For example: Due process of Law v/s Procedure established by Law. Structure of court would have a bearing on the jurisdiction rather than interpretation. For ex: Federal court deciding federal laws, constitutional court deciding amendments and state courts deciding state laws.
    2. The difference between American and Indian courts with regard to the above principle has been blurred after the Meneka Gandhi case (Art 21) but exists with respect to jurisdiction (integrated judiciary or not) and mode of appointment of judges.
    3. Incoherence: I would agree but opinions might vary. SC overturns HC, a larger bench SC overturns a smaller bench and this goes on. Judges are not infallible and SC is not supreme because it is always correct; it is always correct because it is supreme: Retd. CJI Lodha. In short I believe it has been detrimental: the increasing number of review petitions might serve as evidence.
    4. Constitution – distrust of people in power: In my opinion it stemmed from the experience of unrestrained colonial power in pre-independence era, minority fears of majority tyranny during independence and the tryst with Emergency in post-independence era to name a few.

    Hope it made some sense.
    2013-Failed Pre by 7 marks
    2014-Failed Pre by 1 marks
    2015-Failed Mains by 25 marks
    2016-Failed Pre
    2017-Final Battle
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  • Constitutions often express a 'deep implicit distrust of people' -
    It is people right? not 'people in power'
    I take things with a pinch of salt.
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  • smoke said:

    Constitutions often express a 'deep implicit distrust of people' -
    It is people right? not 'people in power'

    Yup I also thought the same. I interpreted it as common man's loss of trust (distrust) in people holding power: might have screwed my punctuations :)
    2013-Failed Pre by 7 marks
    2014-Failed Pre by 1 marks
    2015-Failed Mains by 25 marks
    2016-Failed Pre
    2017-Final Battle
    ·
  • Few instances in Indian context:
    1. No provision for referendums... representatives frame policies on behalf of people.
    2. Fundamental rights come with inherent restrictions. Moreover, they can be suspended during emergencies.
    3. Very provision for preventive detention shows distrust of people.

    Reasons being
    large scale illiteracy
    we are not homogeneous, so bound to have different opinions and without few restrictions its difficult to maintain peace

    Just my understanding....
    I take things with a pinch of salt.
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  • Struggle said:

    smoke said:

    Constitutions often express a 'deep implicit distrust of people' -
    It is people right? not 'people in power'

    Yup I also thought the same. I interpreted it as common man's loss of trust (distrust) in people holding power: might have screwed my punctuations :)
    Yes, different interpretations are possible :)
    I've read the book from where he quoted so I could directly get into this context.
    I take things with a pinch of salt.
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  • @Struggle Your Point 2 and 3 hit right at the bulls eye. I was also able to do further research in the meantime. Got what you are implying and it makes perfect sense. Thank you.
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • @smoke Hmmm....Yup. I'll agree with all the 3 instances you cited here. Makes sense. Thank you.
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • edited January 26
    @smoke I think point 1 has more of an impossibilty-in-applicability aspect than rather 'a mistrust of the people'. Could you cite from where did you deduce the same? Have you any idea where I would get the constitutional debates?
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • referendums are always possible, i think.

    I cannot pinpoint to a source. I'm a PSIR graduate and have been reading (books and newspapers) since a longtime.
    I take things with a pinch of salt.
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  • But whenever i find relevant sources i'll mention them :)
    I take things with a pinch of salt.
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  • ^Sure. Will be indebted. Thank you.
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • The distrust in our context was due to the lack of constitutional morality in people. How Ambedkar quoted Grote here to justify the detailed administrative structure incorporated in the constitution to fill in the gap of constitutional morality.
    इस शम्म-ए-फ़रोज़ाँ को, आँधी से डराते हो...
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  • Not sitting "en banc"
    How does the structure of the Court have bearing on its interpretation of the Constitutional text?
    Differences with the American style? Has the incoherence in interpretation (constitutional jurisprudence) been detrimental so far, or is it too early to form a judgement on this aspect?



    Structure of Indian judiciary from Constitutional pov is 'integrated'.
    Hence when a decision is made by SC it is applicable to the entire country. From this perspective the structure provides coherence when it comes to Constitutional interpretation and its application. Restrictions by Art 32 and latitude by Art 226 did cause some confusion but this has been transcended by a wide reading of the Fundamental Rights themselves.

    Wrt to sitting, there exists a tradition of forming 'Constitutional benches'. So generally there is no compulsion for en banc hearings. This causes some incoherence as pointed out by others above (smaller bench overruled by larger one etc) but it provides a valuable self-correction and regulation mechanism. It also keeps the Constitution a living document and allows for changes as per social evolution and progression of mindset of the judiciary and the public, both. Frequent reversals are the price we pay for this and it seems to be a fair one.
    In this context the lower appellate system of USA is similar to our own. In the context of SC it is different in that, US SC sits en banc for all cases. But this has not prevented revised interpretations and self-overrulings but the process is cumbersome, to say the least.

    It does not seem to be detrimental as can be seen by the the expansion of the reading of Art 21 from Gopalan to Maneka Gandhi. This would not have been possible without frequent revisits and changes to its own decisions.



    Constitutions often express a 'deep implicit distrust of peope', while also giving them a collective identity and a sense of agency
    A few instances of this 'implicit distrust' in the Indian context? ☺️


    Constitutions across the world share this trait. Hence they deal in terms of institutions rather than individuals. Also there is division of power and a system of checks and balances which imposes reasonable restrictions on their actions.
    This line of thought is extended even to people. Thus the same Constitution that claims to derive its powers from the 'we the people', circumscribes the power of people by placing Constitutional and legislative restrictions on them and makes them subjects rather than rulers. At the same time it bestows collective identity (and associated rights/powers) upon them by categorizing them in terms such as 'citizens' and 'voters' etc. This gives them a sense that all actions are being performed by their own volition.

    Choosing indirect democracy rather than direct (but to be fair it was because of size of the population rather than anything else)
    Choosing FPP over PR system distrusting the intelligence of people.
    No provision of social auditing.
    No provision of pre-legislative consultation.
    Adding sections like Fundamental Duties.
    No provision of recall etc.
    Restrictive Fundamental Rights.
    Provision of martial laws, preventive detention and emergency wherein FR is undermined.
    Provisions of secrecy in public offices.
    Lack of proper delineation of power for Part 9 and 9a and thus lack of bringing democracy to the doorstep.
    The Lion does not concern himself with the opinions of the sheep.
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  • TinTin said:

    The distrust in our context was due to the lack of constitutional morality in people. How Ambedkar quoted Grote here to justify the detailed administrative structure incorporated in the constitution to fill in the gap of constitutional morality.

    Hmmmm. Things are much clearer now. Thank you for the input :)
    The only thing necessary for the triumph of evil is for good men to do nothing.
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  • edited January 26
    @Jaime_Lannister Dude, that was simply awesome, esp the 2nd half of your answer. :smiley:
    I have found people tending to resort to Article 21 (always, esp the Maneka Gandhi case) whenever matters of incoherency are put to debate. Haha. ;)
    But I guess that's all what we have for now.
    Thanks a ton for pitching your thoughts so beautifully.. :) Really appreciated.
    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
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