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Title: Police powers and the Constitutiton of India: the inconspicuous ascent of an incongruous American implant
Authors: Datar, Arvind
Swaminathan, Shivprasad
Jindal Global Law School
Keywords: Constitution of India: Police Power
res extra commercium
Fundamental rights-Consitution of India
Issue Date: 31-Dec-2014
Publisher: Emory University, USA
Citation: Datar, Arvind and Swaminathan, Shivprasad. (2014). Police powers and the Constitutiton of India: the inconspicuous ascent of an incongruous American implant. Emory International Law Review, Vol 28 No 1: 63-121
Abstract: Res extra commercium is a doctrine introduced by Chief Justice Das of the Supreme Court of India in the 1957 case, State of Bombay v. R.M.D. Chamarbaugwala, which has the effect of constricting the scope of fundamental rights by rendering as constitutional outcasts certain purportedly "immoral " or "noxious" activities. It does this by blocking these activities from falling within the purview of the protection of fundamental rights. At the core of this paper are three claims. First, it will be argued that though the court did not expressly spell it out, it was the doctrine of "police powers" (the specific conception of the doctrine advanced by Justice Harlan of the U.S. Supreme Court in Mugler v. Kansas,), which lies behind Chief Justice Das's invocation of res extra commercium. Second, it will be argued that Chief Justice Das did not openly invoke the police power doctrine in R.M.D. Chamarbaugwala because larger benches of the Supreme Court had earlier squarely rejected the import of the doctrine from American constitutional law (including one earlier abortive attempt by Chief Justice Das himself) because of the structural differences between the Constitutions of United States and India as a result of which, at the time the decision in R.M.D. Chamarbaugwala was handed down, the jurisprudential climate was positively hostile to the doctrine. Curiously, however, the police power doctrine, now masquerading, as the doctrine of res extra commercium has come to be well ensconced in the constitution law of India virtually unchallenged for over four decades now. The reasons for this anomaly will be explored. Finally, the paper argues why the police power doctrine sought to be imported by Chief Justice Das under the verbal dressing of res extra commercium is incongruous with the scheme of the Indian Constitution.
ISSN: 0094-4076
Appears in Collections:JGU Research Publications

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