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As constraintlanguages, fully informed by the logics and languages of contemporary human rights, ROL speaks to what sovereign power and state conduct may not, after all, do. State powers ought to be differentiated; no single public authority ought to combine the roles of the judge, jury, and executioner 2. Governance via undeclared emergencies remains violative of ROL values and illegitimate 4. Constitutionally declared states of emergency may not constitute indefinite practices of governance and adjudicative power ought not to authorize gross, flagrant, ongoing, and massive violation of human rights and fundamental freedoms during the states of emergency 5.
The delegation of legislative powers to the executive ought always to respect some limits to arbitrary sovereign discretion 6. Governance at all moments ought to remain limited by regard for human rights and fundamental freedoms 7. Governance powers may be exercised only within the ambit of legislatively defined intent and purpose 8.
Towards these ends, the State and law ought not to resist, or to repeal powers of judicial review or engage in practices that adversely affect the independence of the legal profession.
These "oughts", far from constituting any fantastic wish-list, define the terrain of ongoing contests directed to inhibit unbridled state power and governance conduct.
The question is not whether these "oughts" are necessary but whether they are sufficient. It is here that we enter the realms of the ROL facilitative languages which leave open a vast array of choices for the design and detail of governance structures and processes. These choices concern the processes of composing legitimate political authority, forms of political rule, obligations of those governed and of those who govern. Constitution of legitimate authority The ROL does not quite address this dimension.
Assuming, however, that universal adult franchise constitutes a core ROL value, the ROL seems equally well served by both the "first past the post" or "proportional" and "preferential" voting systems and related variants. Neither the thin nor the thick ROL versions offer any precise norms and standards for the delimitation of constituencies in ways that avoid gerrymandering representation. Elections cost big money for political leaders and parties at fray; what "regulation" may violate the liberal ROL freedom of speech and association values remains an open question.
So do appeals to forms of "hate speech" in the competitive campaign politics.
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The dominant ROL discourse moreover remains indifferent to the question of affirmative programs of legislative representation, which modify the right to contest elections for cultural and civilizational minority groups and coequal gender representation.
The ROL languages, for weal or woe, insufficiently address the notion of participation, do not extend so far as to prescribe means of constitutional change such as referenda, or the right to recall of errant or corrupt legislators. Forms of political rule As concerns structures of governance, ROL remains rather indifferent to choices amongst federalism over unitary, republican over monarchical, secular over theocratic, flexible over rigid, constitutional formats.
Nor do these foreclose choices concerning the scope and method for amending constitutions. The composition, of judicial power and of the administration of justice methods of judicial appointment, tenure, and removal of judges, constructions of judicial hierarchies, etc. Obligations of governed and of governors The celebrated constraints upon lawmaking legislative power do not entail any ethical obligation to make laws for instance, a public 'right' to have a law made for disadvantaged, dispossessed, and deprived peoples; these remorseless non-decisions impact upon many a human, and human rights, future.
However, this arbitrariness is overridden by the disciplinary globalization where the South States have mandatory obligations to make law favouring the communities of direct foreign investors over those of their own citizens; these obligations stand fostered by transnational corporations and international financial institutions which themselves owe very little democratic accountability and human rights responsibilities.
Finally, without being exhaustive, how may ROL address its Other? A multitude of mass illegalities often historically generate forms of citizen understandings that eventually redefine interpretations of the ROL. Inflected by indeterminate notions of popular "sovereignty", these divergent insurgencies signify terrains of struggle of the Multitudes against the Rule of the Minuscule. This summary checklist of anxieties is not intended to suggest that we dispense altogether with the ROL languages and logics.
Rather, it invites sustained labours that subject the normative and ideological histories and frontiers of ROL with very great care and strict scrutiny. Towards this end, I reiterate my one sentence summation: ROL is always and everywhere a terrain of peoples' struggle incrementally to make power accountable, governance just, and state ethical.
Originality and mimesis-postcolonial Indian ROL Of necessity, many a colonially induced historic continuity 18 marks the Indian Constitution. But the colonial inheritance relates more to the apparatuses and institutions of governance than to conceptions of justice, rights, and development.
These in turn affect continuities with the colonial past.
The distinctiveness of the Indian ROL lies in providing space for a continuing conversation among four core notions: "rights", "development", "governance" and "justice". In the scramble for a New Empire, the constituent imagination of the so-called "transitional societies" remains tethered primarily to what these former socialist societies may learn from the American constitutional experience.
Thus stand monumentally sequestered some considerable opportunities for comparable learning from the Indian ROL experience and imagination.
Postsocialist constitution-making has much to learn from the originality of the postcolonial form; however, and despite renewed interest in comparative constitutional studies, it seems that the "New" Europe has very little to learn from the old Global South. For the moment, I briefly consider below the relatedness of these four key notions: governance, rights, justice, and development. Governance The Holocaust of the Partition of India furnishes the histrionic moment in which the Indian constitution stands composed.
The establishment of frameworks for collective human security and order was considered as a crucial ROL resource in the same way that today the making of a new global ROL remains affected by the two "terror" wars.
The notion that the radical reach of self-determination ought to be confined merely to the end of the colonial occupation furnishes a new leitmotif for Indian governance; integrity and unity of the new nation redefines Indian ROL to authorize vast and ever proliferating powers of preventive detention and eternal continuation of many colonial security legislations as laws in force. No ROL value consideration in general, overall, is allowed to intrude upon state combat against armed rebellion aimed at secession from the Indian Union.
In this the Indian experience is scarcely unique. The politics of autonomy requires Indian understanding of the federal principle and detail. True, this distribution of powers can only be changed by constitutional amendments and these remain difficult of negotiation and achievement in the current era of coalitional politics. However, the Indian Parliament retains a generous residuary authority that empowers it to legislate on matters not specified in the state and concurrent list; further, the laws it may make often have an overriding national authority.
Additionally, Article 35 specifically gives Parliament overriding powers to make laws that outlaw millennially imposed disabilities and discriminations on India's untouchables Article 17 and slavery and slave-like practices Articles And, drawing heavily from the "experience" of comparative Commonwealth federalism, especially Canada and Australia, the Indian Supreme Court innovates constantly in its interpretive provenance to further hegemonic national role for the Union government.
India's distinctive cooperative federalism remains defined and developed by many institutional networks. The constitutionally ordained National Finance Commission constructs human rights normativity in allocation of federal resources to states.
The constitution and the law create India-wide national agencies 23 entrusted with the tasks of protection and promotion of the human rights of "discrete and insular" minorities. The Comptroller and Auditor General of India, assisted by the Central Vigilance Commission, at least help fashion the discourse concerning corruption in high places. And, overall, the Indian Election Commission has incrementally pursued the heroic tasks of attainment of a modicum of integrity in the electoral process.
The ways in which these and related agencies actually perform their tasks is a subject of lively political discourse, within the practices of investigative journalism, and social movement and human rights activism made constitutionally secure by the exertions of State High Courts and the Supreme Court of India.
All this enables continual re-articulation of people's power confronted by a heavily militarized polity and state formation, which put together and often inflict heavy democratic deficit on the processes, institutions, and networks of governmentability. Thus, increasingly civil society interventions activating high judicial power have led to some softening of the anti-democratic aspects of the Indian Constitution at work.
Put another way, Indian federalism contributes to the ROL discourse not just as facilitating governance but also as empowering participatory forms of citizen resilience and selfreliance. This experience needs to be accorded a measure of dignity of discourse in our "comparative" constitutionalism conversations. Rights The Indian ROL notions remain deeply bound to the ways in which fundamental rights stand conceived.
Far from reiterating either the liberal or libertarian theologies of rights as corpus of limitation on state sovereignty and governmental conduct, the Indian ROL conceptions also empower progressive state action. Thus, for example, the following constitutional rights enunciations authorize legislative and policy action manifestly violative of some liberal conceptions of rights: Article 17 outlaws social practices of discrimination on the ground of "untouchability" Articles , enshrining "rights against exploitation", outlaws the practices of agrestic serfdom bonded and other forms of un-free labour and related historic practices of violent social exclusion Articles authorize, under the banner of fundamental rights, state combat against vicious forms of patriarchy Articles so configure Indian constitutional secularism as to empower state to fully combat human rights offensive practices of the dominant "Hindu" religious tradition Articles provide a panoply of fecund protection of the rights of religious, cultural, and linguistic minorities.
The Indian ROL stands here normatively conceived not just as a sword against State domination and violation and historic civil society norms and practices but also as a shield empowering an encyclopaedic regime of "progressive" state intervention in the life of civil society.
In so doing, it engages in simultaneous disempowerment and re-empowerment of the Indian State in ways that makes more complicated governance, politics, and constitutional development. In terms of social psychology of the yesteryear, the Constitution thus inaugurates "cognitive dissonance" in ways that necessarily marks its rather schizoid course of development.
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The rights texts, enunciated in a coequal world-historic time of the Universal Declaration of Human Rights, further impact on the development of international human rights norms, standards, and even values. I have here in view Part IV of the Constitution which enacts the distinction between regimes of civil and political rights and social and economic rights, which subsequently dominate the global human rights forms of talk.
Many actually installed at the time of origin, and subsequent governance mechanisms and arrangements, articulate institutional ways of moving ahead with this mission.
I do not burden this text with any detailed enumeration. The extraordinary powers to redress violation of fundamental rights have achieved, here summarily put, the following results. First, a stunning achievement which refers to administrative law jurisprudence directed to combat and control uses of discretionary powers; second, wide adjudicatory surveillance over legislations accused of violating fundamental rights or the principle and detail of Indian federalism; third, the enormous achievement fashioned by the Supreme Court of India giving its inaugural, and awesome powers of invigilation over the exercise of plenary amendatory powers via the doctrine of the basic structure and the essential features of the Constitution.
P M Bakshi Books
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Rate Product. I'm happy with your fasted delivery, the book is very good. Book delivered in proper time and book also good. Questions and Answers. Why the cost of 12th and 14th edition more than the 15th edition?
How is the page quality? The book is updated according to recent amendments. Maybe that's the reason for the price change. The book that I received, has very good page quality. The fonts are very small though. Report Abuse. Flipkart User. Does it have articles?The jurispathic attributes of the Indian Rule of Law at work can be described best in terms of social reproduction of rightlessness.
The composition, of judicial power and of the administration of justice methods of judicial appointment, tenure, and removal of judges, constructions of judicial hierarchies, etc. It is enclosed within brackets. They conceded this power but with a significant accompanying caveat: the rule-making power of the administration ought not to usurp the legislative function of enunciation of policy, accompanied by prescriptive sanctions.
Although explicitly declared non- justiciable, the Directives cast a "paramount" duty of observance in the making of law and policy. These powers now stand further routinized to bring home micro-accountability for the exercise of everyday legislative, executive, and administrative exercises of power under adjudicatory surveillance.