Wednesday, November 16, 2011

Hilaire Barnett's Constitutional and Administrative Law (Routledge; Eighth Edition; 2011)

With all the noisy talk of Anna Hazare and his followers about the people being the ultimate source of power, and the regular politicians countering that it is parliament which represents the people and which is the competent authority to make laws, the nice subject of constitutional law goes for a toss. So, it was a delight to chance upon a new arrival in the Parliament Library the other day. It was a textbook in the old-fashioned sense, something that I do not expect any of the Indian political science academics ever to write. The reason for this is that in India we do not have the scholarly traditions that make the study of institutions in the historical context an absorbing study, at least for some of the students. Hilaire Barnett's Constitutional & Administrative Law (Routledge; Eighth Edition; 2011) lifts up one's heart in the tenor of its argument and the texture of language.

Here is an extract from the Introduction:

"...when studying the legislative supremacy of Parliament it is fundamental importance to grasp that, in terms of classical constitutional legal theory, the power of Parliament -- in the absence of a written constitution -- is omnipotent or sovereign. However, the constitutional and legal fact that Parliament has the ultimate law making power within the state, does not mean that there are no restraints on what Parliament may do. The law making powers of Parliament, while theoretically and legally, unlimited, are in fact constrained by the electorate to which Parliament is accountable, and by economic, moral and political necessities. In terms of accountability to the electorate and the limits which this imposes on Parliament's powers, it is necessary to appreciate the philosophical and historical foundations of democracy and the idea of individual rights."

Now this line of argument is plainly incomprehensible to all those participating in the cacophonous debate over Lokpal in this country. The most ignorant among them all are the Anna Hazare associates who are shouting hoarse from rooftops about the supremacy of people in a democracy.

Referring the fact that Britain has no written constitution though it is a constitutional monarchy, Barnett continues with his explanation: "Notwithstanding the lack of a codified constitutional document, under the Constitution of the United Kingdom, the principles on which the government operates today are precisely those which govern the relationship between the government and the people under a written constitution. Here an understanding of the idea of 'social contract' makes it possible to understand the complex relationship between 'sovereign power' and the power of the people to determine who holds that sovereign power and the manner in which it may -- and may not -- be exercised."

One can only lament the fact that we do not have this kind of rigorously written textbooks in our country.

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