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Priniciple of Presumption of Constitutionality

edited January 27 in Polity & Governance
Context: The author is discussing how the verdict of Naz Foundation vs GoI was overturned 4 years later in Suresh Kr Kaushal vs Naz Foundation. The cited arguments that are relevant in the context of Indian counstitutional identity were -
1. The sancity of the 'Principle of presumption of constitutionality'
2. The impropriety of 'extensively relying upon the judgements of other jurisdictions'

Can someone elaborate on this? Thanks in advance.
The only thing necessary for the triumph of evil is for good men to do nothing.
·
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Comments

  • @mayurasharman Le bhai dekh le, isme JNU wali boo aa rahi hai kya tujhe. Agar kuch pata hai is bare mein to please contribute. ForumIAS me waise bhi wo pehle wale type discussions ab anhi hote. Please don't act as an impediment to it.
    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
  • On a nice sunny day someone like me loves to wade into such discussions, but neither the day is bright nor my mood sir, however not to offend you or to dissuade to enquire further, I have few basic questions pertaining this particular question and a consistent pattern in other questions you asked as well.
    Definitely Law is not your optional, because I never came across such "concepts" which forms the basis of your questions here and in other threads.
    My question- Who is the "author"? I mean are you framing questions after reading a newspaper or magazine article or some academic text? I reckon its just a general commentary, not strictly legal in nature.
    2nd- Please elaborate the context properly, everyone knows the cases here but merely citing the case doesnt necessarily contextualises a problem. Everywhere you seem to start the question with "context", however I am soo unable to figure out the context despite best of my effort.
    3rd- " The cited arguments" - which arguments? Please mention...

    Basically try to simplify your query after providing a background comprehensive enough to help others clearly formulate the issue.
    ·
  • @preetkarandhaliwal
    1. The book which I am referring to is - The Oxford Handbook of the Indian Constitution - Sujit Choudhry; Madhav Khosla; Pratap Bhanu Mehta - Oxford University Press
    2. This particular doubt arose when I was going through Chapter 7 of the book - Constitutional Identity - Gary Jeffery Jacobson
    3. Most of the chapters are presented as monologues coming form eminent scholars raging from Upendra Baxi to retired CJIs of India. How can I question the extent of legalism flowing in their own commentaries when I, as a non-Law student, myself am a novice as far the dealings of Indian Contitution goes.

    I will further elaborate the context to this in my answer below. Before that could you just please try to ellaborate on what was not exactly clear to you when I pinpointed the cases above?
    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
  • Ohhh that book haha. Its a good read.
    Clears a lot many questions. However still you should frame a question comprehensively.
    Also i have got just a single piece of advice for you, its more rewarding to read such texts twice or thrice and then go through a follow up basic text which helps you comprehend and grasp the nuances and technicalities of it. Currently it seems, you read a chapter and you end up on the forum posing questions.
    Also mostly such essays or monogrpahs are self explicatory, i.e they would take the pains themselves to explain a concept which is extensively used.
    Looking at the number of your queries I feel either you havent worked on your basics of polity before directly jumping on to such texts or the essays are poorly written and if you say they are monologues, then poorly delivered.
    ·
  • edited January 27
    @preetkarandhaliwal Seems you have gone offiline now. Let me try to address your points 2 and 3.

    2. The discussion was regarding the oversturning of the case decisions by the Supreme Court as regards to the criminalising of 'homosexual conduct'. In the former case, the HC of Delhi read that the provisions of IPC that had criminalised these consensual sexual acts were unconstitutional. Now the reasons cited by the HC were larlegy imports of the constitutional right of privacy (+same sex rights) outsourced from abroad (esp American precedents). Plus a few other arguments were cited as well.

    The judges failed to elucidate the relevance of their opinions devoted to 'other' people's constitutions for maintaining the spirit of 'their' constitution. This ruling was considered as an embodiment of judiciary's commitment to 'transformative constitutionalism'.

    Now coming to the latter case, this affirmations get challenged in the overturning of DHC's decision by the SC. The nullification was a disappointment to those who were citing the DHC's decision as an endorsement of a progressively inclusive political community.

    3. The arguments did not coming from the author, but form the SC during its reading of the case.

    Hope its much clearer now. :) :)

    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
  • edited January 27

    Ohhh that book haha. Its a good read.
    Clears a lot many questions. However still you should frame a question comprehensively.
    Also i have got just a single piece of advice for you, its more rewarding to read such texts twice or thrice and then go through a follow up basic text which helps you comprehend and grasp the nuances and technicalities of it. Currently it seems, you read a chapter and you end up on the forum posing questions.
    Also mostly such essays or monogrpahs are self explicatory, i.e they would take the pains themselves to explain a concept which is extensively used.
    Looking at the number of your queries I feel either you havent worked on your basics of polity before directly jumping on to such texts or the essays are poorly written and if you say they are monologues, then poorly delivered.

    I was asking for my doubt clearance and you gave me a whole lecture on it. Haha. Sirjee, I am here to clarify my doubts because, as I did state already, I am a novice as regards to constitutional matters. Please stop being judgemental here. Don't you think it is better to post such doubts on the forum rather than posting threads upon threads about which books to refer and which coachings to take?
    Now could you please show me/ throw me some light here. Will be indebted.
    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
  • Are bhai, ye sab toh facts of the case hain na. I wasnt talking about these. That you pinpointed a case itself clarifies case facts. You didnt mention the arguments that were made my the differing side ie appellants, the respondents and the bench.
    Citing a case is not contextualising, citing the arguments which made you frame the question number one regarding the sanctity of the principle of presumption of constitutionality is important.
    Also the case is not yet settled as matter is sub judice in wake of acceptance of curative petition. There is no finality yet.
    As far as your last question is concerned, there is never any impropreity in citing foreign case law as india inherited common law system nd british and american cases are frequently cited especially when the plea is about enhancing the scope of law or undertaking some corrective measure. Only issue will be when a case law is cited which runs against the laws of our country or principles of our constituion.
    ·
  • edited January 27
    @mayurasharman Bhai aap hi light maro yar ispar, pura context samjha diya diya hain yahan. Thoda simple words me ellaborate kar dena yaar.
    PS - I don't adhere to liberalism in any of its manifestations . Period. Lol. Ab to answer kr de bhai.
    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
  • akkib89 said:

    Ohhh that book haha. Its a good read.
    Clears a lot many questions. However still you should frame a question comprehensively.
    Also i have got just a single piece of advice for you, its more rewarding to read such texts twice or thrice and then go through a follow up basic text which helps you comprehend and grasp the nuances and technicalities of it. Currently it seems, you read a chapter and you end up on the forum posing questions.
    Also mostly such essays or monogrpahs are self explicatory, i.e they would take the pains themselves to explain a concept which is extensively used.
    Looking at the number of your queries I feel either you havent worked on your basics of polity before directly jumping on to such texts or the essays are poorly written and if you say they are monologues, then poorly delivered.

    I was asking for my doubt clearance and you gave me a whole lecture on it. Haha. Sirjee, I am here to clarify my doubts because, as I did state already, I am a novice as regards to constitutional matters. Please stop being judgemental here. Don't you think it is better to post such doubts on the forum rather than posting threads upon threads about which books to refer and which coachings to take?
    Now could you please show me/ throw me some light here. Will be indebted.
    :| have fun reading ad questioning. Good day. ;)
    ·
  • edited January 27

    Are bhai, ye sab toh facts of the case hain na. I wasnt talking about these. That you pinpointed a case itself clarifies case facts. You didnt mention the arguments that were made my the differing side ie appellants, the respondents and the bench.
    Citing a case is not contextualising, citing the arguments which made you frame the question number one regarding the sanctity of the principle of presumption of constitutionality is important.
    Also the case is not yet settled as matter is sub judice in wake of acceptance of curative petition. There is no finality yet.
    As far as your last question is concerned, there is never any impropreity in citing foreign case law as india inherited common law system nd british and american cases are frequently cited especially when the plea is about enhancing the scope of law or undertaking some corrective measure. Only issue will be when a case law is cited which runs against the laws of our country or principles of our constituion.

    Ab apne sahi me kuch had tak pakda hai mere doubt ko. The author failed to mention any arguments as such, bas usne arguments ko explicitely na mention kar in do broad headings me qualify kar diya - in other words 'saar bata diya' - itna keh kar author bhaiya kat liye. Uspar thoda prakash dalen ki ye particular subheading - 'Principle of presumption of Constituionality' kyun use kari gayi hai idhar. Aur ye bhi batayen ki iska meaning aur relevance aur is particular case me banch dwara presented arguments se connect kya hai?

    there is never any impropreity in citing foreign case law as india inherited common law system nd british and american cases are frequently cited especially when the plea is about enhancing the scope of law or undertaking some corrective measure
    Bhai this was not a question, ye author ne apni comments diye hain. Maine iske legality par kab argument kiya? I completely understand what you are trying to say.
    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
  • akkib89 said:

    Ohhh that book haha. Its a good read.
    Clears a lot many questions. However still you should frame a question comprehensively.
    Also i have got just a single piece of advice for you, its more rewarding to read such texts twice or thrice and then go through a follow up basic text which helps you comprehend and grasp the nuances and technicalities of it. Currently it seems, you read a chapter and you end up on the forum posing questions.
    Also mostly such essays or monogrpahs are self explicatory, i.e they would take the pains themselves to explain a concept which is extensively used.
    Looking at the number of your queries I feel either you havent worked on your basics of polity before directly jumping on to such texts or the essays are poorly written and if you say they are monologues, then poorly delivered.

    I was asking for my doubt clearance and you gave me a whole lecture on it. Haha. Sirjee, I am here to clarify my doubts because, as I did state already, I am a novice as regards to constitutional matters. Please stop being judgemental here. Don't you think it is better to post such doubts on the forum rather than posting threads upon threads about which books to refer and which coachings to take?
    Now could you please show me/ throw me some light here. Will be indebted.
    :| have fun reading ad questioning. Good day. ;)
    Are yaar bura kyun maan gaye yaar. Haha. Answer na diya na dena chaha, khali baat ghumayi utne der se.
    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
  • akkib89 said:

    mayurasharman Bhai aap hi light maro yar ispar, pura context samjha diya diya hain yahan. Thoda simple words me ellaborate kar dena yaar.
    PS - I don't adhere to liberalism in any of its manifestations . Period. Lol. Ab to answer kr de bhai.

    Yaar, apan log ek hi boat me baithe hain. Mai bhi mains likh ke aaya hoon, interview call ka almost surely hopeful hoon. Second attempt hai. Aajkal kuchh achchi news aa gayi hain, ek badhiya backup option mil gaya hai isliye thoda relaxed hoon. Ergo, Forum pe bakchodi kar raha hoon. :joy: :joy: :joy:

    Yaar, tumharaa thread dekh ke laga lagaa ki ye bandaa abhi pre, mains diya nahi and hi-fi baatein kar raha hai. Isse thodaa #gyan de doon. Iss ka bhalaa ho jaaye. Mai usually comment likh ke reply padhne waapas nahi aata and users ki Forum history me kabhi nahi jhaanktaa. So, I didn't know... Abb tumne tag kar hi diya to aana hi padaa.

    Sorry mate.. My bad... #gyan o:)
    CSM 2015 | CSE Interview 2016 | Expecting*
    ·
  • ^ Hum to bhaiyaa Vivekanand fan hain, ab baato me jyada jhalkega to log damru thama denge...Lol. :mrgreen:
    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
  • akkib89 said:

    akkib89 said:

    Ohhh that book haha. Its a good read.
    Clears a lot many questions. However still you should frame a question comprehensively.
    Also i have got just a single piece of advice for you, its more rewarding to read such texts twice or thrice and then go through a follow up basic text which helps you comprehend and grasp the nuances and technicalities of it. Currently it seems, you read a chapter and you end up on the forum posing questions.
    Also mostly such essays or monogrpahs are self explicatory, i.e they would take the pains themselves to explain a concept which is extensively used.
    Looking at the number of your queries I feel either you havent worked on your basics of polity before directly jumping on to such texts or the essays are poorly written and if you say they are monologues, then poorly delivered.

    I was asking for my doubt clearance and you gave me a whole lecture on it. Haha. Sirjee, I am here to clarify my doubts because, as I did state already, I am a novice as regards to constitutional matters. Please stop being judgemental here. Don't you think it is better to post such doubts on the forum rather than posting threads upon threads about which books to refer and which coachings to take?
    Now could you please show me/ throw me some light here. Will be indebted.
    :| have fun reading ad questioning. Good day. ;)
    Are yaar bura kyun maan gaye yaar. Haha. Answer na diya na dena chaha, khali baat ghumayi utne der se.
    Sahi baat hai bhai aapki.
    ·
  • akkib89 said:

    akkib89 said:

    Ohhh that book haha. Its a good read.
    Clears a lot many questions. However still you should frame a question comprehensively.
    Also i have got just a single piece of advice for you, its more rewarding to read such texts twice or thrice and then go through a follow up basic text which helps you comprehend and grasp the nuances and technicalities of it. Currently it seems, you read a chapter and you end up on the forum posing questions.
    Also mostly such essays or monogrpahs are self explicatory, i.e they would take the pains themselves to explain a concept which is extensively used.
    Looking at the number of your queries I feel either you havent worked on your basics of polity before directly jumping on to such texts or the essays are poorly written and if you say they are monologues, then poorly delivered.

    I was asking for my doubt clearance and you gave me a whole lecture on it. Haha. Sirjee, I am here to clarify my doubts because, as I did state already, I am a novice as regards to constitutional matters. Please stop being judgemental here. Don't you think it is better to post such doubts on the forum rather than posting threads upon threads about which books to refer and which coachings to take?
    Now could you please show me/ throw me some light here. Will be indebted.
    :| have fun reading ad questioning. Good day. ;)
    Are yaar bura kyun maan gaye yaar. Haha. Answer na diya na dena chaha, khali baat ghumayi utne der se.
    Sahi baat hai bhai aapki.
    Phir yaar aap dil par le rahe ho :|
    Ek cheez batana aap, and I may be completely wrong here, GS2 me waise bhi mujhne nahi ukhdta hai zyada, but am I missing something here. Just be straightforward bhai. Kya missing hai mere understanding me.
    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
  • The oxford constitution booklet is a bit over the fence, even though it's a brilliant book written by a brilliant Madhav Khosla.
    I read it in 1st year of my law school. Some insights about the book:
    1. Even though I am a law student, 90% of the book bounced off my head.
    2. When in 2nd year, I had constitutional law, I went back to the book and could understand it.
    3. The book basically deals with themes and different ascepts of the development and application of the Indian Constitution.
    4. If you really want to understand it, start with J N Pandey/Shukla and Austin and go back to the Oxford one, you would love the way it would clear and broaden you perspective.
    5. Not specifically required for UPSC.

    And a request, please make a thread and post all doubts about the book in a single thread rather than flooding the forum with so many threads.
    ·
  • edited January 27
    abhi44 said:

    The oxford constitution booklet is a bit over the fence, even though it's a brilliant book written by a brilliant Madhav Khosla.
    I read it in 1st year of my law school. Some insights about the book:
    1. Even though I am a law student, 90% of the book bounced off my head.
    2. When in 2nd year, I had constitutional law, I went back to the book and could understand it.
    3. The book basically deals with themes and different ascepts of the development and application of the Indian Constitution.
    4. If you really want to understand it, start with J N Pandey/Shukla and Austin and go back to the Oxford one, you would love the way it would clear and broaden you perspective.
    5. Not specifically required for UPSC.

    And a request, please make a thread and post all doubts about the book in a single thread rather than flooding the forum with so many threads.

    Thanks for the reply man.

    2. I am not facing that much of a problem while reading the text. No issues on that. Already well versed with Indian polity to a large extent. But just for the sake of clarity (no exaggeration) I would like to point out that I can easily comprehend 70-80% of the text in one read. The issue lies in the 'accuracy' of my understanding. That, what the author has tried to imply - am I getting the same exact meaning? - the problem lies exactly in this domain. I have to be keep reassuring myself in this respect so that I am not be making any false assumptions just for the sake of completion. You law students are already having an added advantage from the start. Really envy you guys. :p Plus you have a great faculty to resort to for doubt clarification. So I just explained the sole reason why I post here. I could, of course, verify things o the internet, but time is a precious commodity. Why not rely on experts. :#
    3. Yup. I get it.
    4. Thanks for the recommendations. Will surely look into,Austin, but isn't it a bit outdated? Someone told me that the text in this one was quite updated. BTW it was a gift from someone.
    5. Not doing it for UPSC. Mainly a hobby-read.

    Fine. I'll post all doubts in one thread. That may be convenient for all. In the begining I was doing the same. But different people, different opinions. :p

    Thanks again.
    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
  • @preetkarandhaliwal agar dimmaag thada ho gaya ho aur free ho to, Bhai aap ek cheez batana yaar, Plato ne jo republic batayi hai aur post 1789 jo republic ki concept aayi usme kya diffrences they.
    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
  • abhi44 said:

    The oxford constitution booklet is a bit over the fence, even though it's a brilliant book written by a brilliant Madhav Khosla.
    I read it in 1st year of my law school. Some insights about the book:
    1. Even though I am a law student, 90% of the book bounced off my head.
    2. When in 2nd year, I had constitutional law, I went back to the book and could understand it.
    3. The book basically deals with themes and different ascepts of the development and application of the Indian Constitution.
    4. If you really want to understand it, start with J N Pandey/Shukla and Austin and go back to the Oxford one, you would love the way it would clear and broaden you perspective.
    5. Not specifically required for UPSC.

    And a request, please make a thread and post all doubts about the book in a single thread rather than flooding the forum with so many threads.

    +1
    ·
  • @preetkarandhaliwal Bhai Pade likhe admi lagte ho, Marcus Aurelius padi hai? Why itna dil pe lena dude. :mrgreen:
    The only thing necessary for the triumph of evil is for good men to do nothing.
    ·
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