Judicial Review and Fundamental Rights: Key Features Of Constitutionalism
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The U.K. continues to operate without a written constitution. Similarly, the Hungarian Kingdom of the Austro- Hungarian Monarchy (and until 1945) was without a written constitution, and yet it qualified as a constitutional state in its time, with a number of important statutory documents, charters, and treaties. Today Israel and New Zealand have written bits and pieces of ordinary laws which deal with constitutional issues but without entrenchment.
According to the advocates of the unwritten constitution, a charter is too rigid, while the constitution that manifests itself in traditions enables a more flexible approach. That the judges have nothing to apply is more of an advantage, because it upholds the separation of the branches of power, inasmuch as it excludes the possibility of government by judges at the same time
D. Grimm, Types of Constitutions, 98, in M. Rosenfeld and A. Sajó, eds. The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) 100
Black’s Law Dictionary.
‘Liberal’ in this book is used in its nineteenth-century European sense (‘classic liberalism’), meaning emphasis on individual liberty and the free market as an extension of this freedom and designing the defence of liberty against successive threats. Liberalism can be a political philosophy; as a political movement it animated constitution writing and it was a nationalist movement in many nineteenth-century societies. Liberalism is intimately related to constitutionalism. Liberal in U.S. political usage is close to ‘progressive’, social democratic, or welfarist in the European sense.
Note that, in contrast to this criticism, many of the contemporary social values which were granted constitutional status and priority are not directly elitist: social rights and anti-poverty and equality programmes in the constitution may be intended by elites to deceive the public, but technically these are not about privileges of the elite of the day
Supra Note 6
Constitutional Asembly Debates, 264 Vol. VII, 1948.
‘The source of human rights is man’s moral nature . . .’ J. Donnelly, Universal Human Rights in Theory and Practice, 3rd ed. (Cornell University Press, 2013) 15.
Because of political resistance at this stage, when it comes to religion the ‘established Law and Order’ is the limit.
Security (sûreté) as personal freedom means that no one can be arbitrarily arrested and convicted.
‘Imprescriptible’ or ‘unalienable’ does not mean that the rights cannot be limited; it means that people cannot resign from these rights. For example, a man cannot become a slave of his own accord
Ch. McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 European Journal of International Law (2008) 655. The inviolable and supreme dignity of the person as a right is practically never used directly by the German Constitutional Court for deciding cases.
The need for the protection of public order led to the introduction of such measures in the Belgian Constitution as early as 1831.
(1803) 1Cranch 137.
Ch.-L. Montesquieu, The Spirit of the Laws [1748], A. M. Cohler, B. C. Miller and H. S. Stone, trans. and eds. (Cambridge University Press, 1992) 157. The power to judge is not equal to the two other powers.
Federalist No. 78 (Hamilton), 464, in A. Hamilton, J. Madison and J. Jay, The Federalist Papers [1787–8] (Mentor, 1961) 465. Least dangerous—‘to the political branches’ 20 1803 U.S. LEXIS 352
AIR 1973 SC 1461.
Justice Syed Shah Mohammed Quadri, “Judicial Review of Adminstrative Action”, 6 SCC (Jour) 1 (2001).
Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458.
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
Golak Nathv. State of Punjab, AIR 1967 SC 1643.
Minerva Mills v. Union of India, AIR 1980 SC 1789.
Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd., (1983) 1 SCC 147.
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.
M.P. Jain and S.N. Jain, Principles of Administrative Law: An Exhaustive Commentary on the Subject Containing Case-law Reference (Indian & Foreign) 1779 (Wadhwa and Company Nagpur, New Delhi, 6th edn 2007).
B.N. Cardozo, The Nature of Judicial Process, 94 (Universal Law publishing Co. Pvt. Ltd., 2004).
B. Ackerman, The Future of Liberal Revolution (Yale University Press, 1992) 3 (emphasis added).
For a less enthusiastic home-grown appraisal see K. D. Ewing, Bonfire of the Liberties. New Labour, Human Rights, and the Rule of Law (Oxford University Press, 2010).
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