CEU Electronic Theses and Dissertations, 2024
| Author | Mishra, Anamika |
|---|---|
| Title | Constitutional amendment and dismemberment - Locating judiciary as actors of constitutional dismemberment |
| Summary | This thesis aims to broaden the concept of Constitutional Dismemberment, a term that has been given by Prof. Richard Albert in the context of constitutional amendments. The thesis has explored a gap in the development of this concept – whether courts can be located as primary actors of constitutional dismemberment, instead of being passive, secondary participants in the process, playing their role as guardians of constitution. It goes on to devise a litmus-test, one which, if tested positive, proves conclusively that the institution concerned has been guilty of constitutional dismemberment. The frame of reference used for this enquiry is judicial appointments to the supreme constitutional court, as a separation of power and checks and balances issue and two countries with similar shared experiences have been chosen as subjects of this enquiry: India and Pakistan. India uses a collegium-based model of judicial appointments, where judges appoint other judges, and Pakistan has a judicial commission cum parliamentary committee based model, brought in relatively recently by the eighteenth and the nineteenth constitutional amendment act. The thesis also aims to explore whether the judicial response to both these models can have something instructive for the institutions of either countries. The thesis concludes with the finding that the Indian Supreme Court is guilty of constitutional dismemberment, but the judicial response in Pakistan, seemingly better at first, need not necessarily present an experience to be emulated. As a corollary to this finding, the thesis also concludes that the concept of constitutional dismemberment, insofar as it excludes the judicial branch from being active perpetrators of it, is deficient and needs to be made more robust. |
| Supervisor | Markus Bockenforde |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2024/mishra_anamika.pdf |
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