In this article published by The Print, Vineeth Krishna and Sudhir Krishnaswamy discuss the constitutional legacy of Subhas Chandra Bose.
In this article published by Article 14, Jayna Kothari, Senior Advocate & Executive Director at Center for Law and Policy Research, and Champaka Rajgopal argue that the Supreme Court’s hurried clearance of Delhi’s Central Vista Redevelopment Project on technical grounds has compromised the very fundamentals of the public-trust doctrine.
In this article in the Frontline, Thulasi K. Raj and Kaleeswaram Raj criticise the Union government’s assault on free speech.
In this article, Thulasi K. Raj argues that imposing untenable conditions by courts as part of bail orders violates the right to free speech.
In this article published by The Caravan, Thulasi argues that the Supreme Court of India has become a helpless spectator to executive actions.
In this article published by The Print, Kruthika R and Madhavi Gopalakrishnan, Research Associates at CLPR talk about the recently conducted preliminary rounds of the ConQuest 2020 and also discuss a few interesting questions that created a buzz among the students. The article also enlists the results of the preliminary rounds of the ConQuest quiz 2020.
In this article published by The Print, Kruthika R and Madhavi Gopalakrishnan, Research Associates at CLPR, talk about the CLPR’s annual flagship quiz ConQuest 2020: 5th edition of India’s premier quiz on the Constitution, history and politics.
In this essay published by Socio-Legal Review (SLR), Madhavi and Kruthika, Research Associates at CLPR, argue that English is actually an emancipatory language that is key to socio-economic mobility in India. Further, the essay depicts how the language aspect of the NEP does not fulfil its historical mandate of protecting linguistic minorities and needs to be re-evaluated keeping in mind its outsize impact on disadvantaged students and minorities.
In this article published by Law and Other things, Ritambhara Singh and Arun P S have briefly responded to Prof. Dipika Jain’s paper, ” Law-Making by and for the People: A Case for Pre-legislative Processes in India”. They also reiterated that there is a need to institutionalise the pre-legislative framework that imposes a statutory obligation on policymakers to facilitate pre-legislative consultations while prescribing punishments for defaulting officials and laying down clear timelines etc.
In this article published by Deccan Herald, Thulasi K Raj argues that Supreme Court needs to introspect the decisions taken in the contempt case on Prashant Bhushan.
In this essay published by Socio-Legal Review, Thulasi K Raj states that Judiciary has limited role to play in ensuring the socio-economic rights provided under the Directive Principles of State Policy of the Constitution.
In this article published by The Telegraph online, Thulasi K. Raj argues that Judiciary can not abdicate the responsibility of adjudication in issues where executive action is under judicial review.
In this opinion piece published by The Statesman, Equaliy Fellow Thulasi K Raj argues that…
In this piece published by The Indian Express, Jayna Kothari argues that Bar associations in Karnataka instructing members not to represent accused in sedition cases violates constitutional morality.
The paper examines if the commonly cited reasons & modes for abrogating Article 370 are legally and normatively valid. It goes on to argue that the attempts to abrogate Article 370 without the recommendation of a constituent assembly for J& K is constitutionally suspect.
In this Deccan Herald piece, Kruthika looks at the Indian Constitution making process as a project grounded in an argumentative tradition.
CLPR associate Mathew Idiculla writes for the Hindu about argues that the rights of a legislative assembly of a Union Territory should be seen as an integral element of federalism and that the Supreme Court should affirm the primacy of the elected government.
Senior Advocate Jayna Kothari shares her perspective on the progress of transgender rights and equality in India. Beginning with the history of legal battles of the LGBTI and the campaign against Section 377 of the Indian Penal Code, she moves on to review the Supreme Court’s recent “trans-formation”by recognizing transgender identity. She concludes that criminal law and sexual assault in India is, “still gender specific. It only recognizes rape and sexual assault where the victim in defined as a ‘woman’. Thus, transgender persons facing sexual violence have no criminal remedy”.
In this essay, Prof. Sudhir Krishnaswamy asks if liberalism is a key value embedded in India’s Constitution. He shows that it was not keenly discussed in the constitution making process or integrated in Supreme Court decisions. Moreover, a brief summary of debates in comparative constitutional design confirms that liberalism is rarely expressly embedded in a constitutional text.
Sudhir Krishnaswamy and Deekshitha Ganesan write for the National Law School of India Review, about the consistently high under-trial detention rate in India. Breaking down an empirical study by the Centre for Law and Policy Research, they focus on bail decision making at the pre-trail stage and the natural of the offence as a substantive legal factor.
Writing for the Deccan Herald, Senior Advocate Jayna Kothari responds to recent controversy concerning Chief Justice of India, Ranjan Gogoi. With a review of the present state of justice when it comes to violence against women, she argues that the problem lies in implementation.
Contributing to The Print’s Talk Point, Satya Prasoon argues that the Supreme Court of India must embrace “substantive due process”, in order to regain credibility. The Supreme Court is an credibility crisis after sexual harassment allegations were raised against the Chief Justice of India, Ranjan Gogoi.
Prajavani carries Dolashree Mysoor’s piece on the BJP and INC’s education vision in Kannada. Mysoor analyzes the election manifestos of the BJP and INC and asks, “what do political parties have in store for school education in 2019?”
Writing for The New Leam, Dolashree Mysoor analyzes education and the 2019 Lok Sabha election. In particular, she dissects the election manifestos of the BJP and INC and asks, “what do political parties have in store for school education in 2019?”
Satya Prasoon joins Alok Prasanna Kumar, Ishkaran Bhandari and Apurva Vishwanath in answering the question: ‘Does the Supreme Court’s sealed-cover doctrine ensure secrecy or does it exclude Indians from public debate?’
CLPR Research Consultant Mathew Idiculla asks, will the nationalist card be enough for the NDA to retain power? Writing for the Deccan Chronicle, he looks at whether Bengaluru voters will be prioritize national or local issues when deciding whom to vote for.
CLPR Research Consultant Mathew Idiculla analyses Rahul Gandhi’s plan to directly elect mayors. He asks, ‘is it a workable idea for India?’ On Tuesday, 2nd April 2019, the Rahul Gandhi released the Congress Manifesto. He wants to introduce a system that directly elects mayors to provide leadership that builds ‘real smart cities’.
We analyse how the Supreme Court of India, in 2018, countered both the dominant political power of a single party majority government and social customs and practices that have excluded sections of the Indian population. In part 2, we focus on the Bhima Koregaon, NCT Delhi, Aadhaar and Sabarimala cases.
We analyse how the Supreme Court of India, in 2018, countered both the dominant political power of a single party majority government and social customs and practices that have excluded sections of the Indian population. In part 1, we focus on the Section 377, Adultery, Jarnail Singh, Cow Vigilantism and Hadiya Marriage cases.
CLPR Research Consultant Mathew Idiculla asks, is the CBI an institution worth saving? Writing in the Scroll, he traces the historical origins of the Central Bureau of Investigation, the concerns over its legal validity, and growing public distrust, to argue that CBI is one institution that does not deserve to be “saved”.
In this article, published on Consitution Day 2018, Vineeth Krishna warns against assuming that India will always remain a constitutional democracy. He argues for viewing the Constitution as a ‘civic’ and emphasises the need to create a popular constitutional culture in India.
In this article Jayna Kothari argues that – In the last few years, public interest litigation at India’s Supreme Court has brought significant wins for human rights—but success is best assured when litigation is linked to broader mobilization.
While unchecked institutions can pose a hurdle for constitutional democracy in India, autocrats with their ability to subvert the entire institutional landscape are far more dangerous
Sudhir Krishnaswamy argues that the no leave policy for judges is a partial and incomplete way to understand delay and congestion in the court system. He puts forth three ways in which this problem could be tackled.
In this article in the Deccan Herald, Thulasi K. Raj and Bastian Steuwer make a case against the constitutionality of blasphemy law.
Vineeth Krishna, Lead Associate Editor at CLPR, adds a historical perspective to the recent debate on the role of criminal law in Muslim personal law reform triggered by the passing of the Muslim Women (Protection of tights of Marriage) Ordinance, 2018.
This piece is part of ConQuest-ThePrint series of articles on Indian constitutional and political history
In this article in the Deccan Herald, Thulasi K. Raj and Bastian Steuwer argue that the rejection of the CJI impeachment motion by the Rajya Sabha Chairman is undemocratic.
A 5-Judge Constitution Bench of the Supreme Court reserved its judgment in a PIL demanding the disqualification of legislators with pending criminal charges. In today’s Deccan Herald, Mathew Idiculla examines whether the Court is the right institution to introduce such electoral reforms.
This article explores the constituent assembly members’ views on fraternity.
In this article in The Hindu, Thulasi K. Raj argues that the Sabarimala case is significant for an alternative reading of the Constitution.
Vineeth Krishna E, Lead Associate Editor at CLPR, writes in The Caravan Magazine’s web exclusives ‘Vantage’ on how the framers of the Constitution engaged with the question of representative government for Delhi. He traces the conflict that emerged at the committee and debate stages of the Constituent Assembly.
This article analyses the main constitutional questions and looks at the various options available to the Court regarding the practice of triple talaq.
Vineeth Krishna E, Lead Associate Editor at CLPR, argues in The Print against reading too much into the imagery found in the original manuscript of the Indian Constitution. He further points out that the framers of the Constitution saw the constitution-making process as a break from the past rather than a continuation.
“Rights in Review″ is an annual review of Indian Supreme Court decisions on constitutional fundamental rights cases in the year past.
In 2017 we surveyed all reported decisions of the Supreme Court adjudicating fundamental rights challenges from Dec 15, 2016 to Dec 15, 2017. Once again we select cases which extend or modify existing legal doctrine, apply the law to new factual circumstances or otherwise have a significant impact on public policy or public affairs. We have identified 11 cases this year based on these criteria.
Ashwini and Satya posited that the decision in the Abhiram Singh v Commachen case, in which Hindutva was declared a “way of life”, emboldened this type of action. The view of the RSS seems to have been that action rooted in the Hindu faith, which was a “way of life”, did not violate secularism (Section 123). This gave rise to the question – is the Supreme Court responsible for ensuring that the verdicts it delivers are not misinterpreted by the government?
Ashwini Tallur and Satya Prasoon, associates at CLPR, discussed the role of the Supreme Court as a conflict manager, in The Print on 8th Feb 2018. The context for this article was the Babri-Masjid-Ram Janmabhoomi case (Ayodhya matter) that was heard on the same day. They proposed that the Supreme Court’s decision to tag this case as a title dispute, and have it move through the appeal process like any other title dispute, has helped establish its legitimacy as a neutral entity which has avoided populist measures and instead employed the tools available to the Judiciary to resolve this conflict.
On 8th Feb 2018, Satya Prasoon and Ashwini Tallur of CLPR wrote in The Wire that speech could only be free if it was not protected for its “external” value but only when it was protected when used to express “uncomfortable” and “unconventional” ideas. This analysis of what constitutes free speech was triggered by the recent rise in “Triranga Nationalism”. They examine the appropriation of national symbols by certain groups in the name of “patriotism” and explore how certain public demonstrations demanding social justice or against government actions would be deemed “unpatriotic” if national symbols were used by the protestors.
On 07.12.2017 the Supreme Court started listening to arguments on the the Goolrokh Gupta vs Burjor Pardiwala and Others [Parsi Identity, Parsi Woman Excommunication] case. In The Wire Ashwini Tallur and Satya Prasoon, associates at CLPR, examine the tension between individual rights and group rights in the context this the primary argument in this case – does the Indian Constitution prioritize individual rights over group rights?
They start with a review of the interpretation of the Special Marriage Act by the Gujarat High Court and then go on to analyze the individual’s Right to Freedom of Religion, the Constitution as a document for “social revolution”, the separation of state and religion, and the role of group rights in minority religions.
The Supreme Court passed judgment on 29th Aug 2017 on the whether the State of Gujarat should pay for the repair of those shrines that were destroyed during the Gujarat riots. The 2 Judge Bench overturned the Gujarat High Court decision and ruled that using income tax revenue to repair the religious buildings would amount to “promoting” religion and run counter to maintaining secularism which was the objective of Article 27. Satya Prasoon, an associate at CLPR, examines this judgement in the context of formal secularism and constitutional citizenship and puts forward an argument for substantive secularism.
In this article in The Wire, Thulasi K. Raj argues that the exclusion arguments based on the right to religious freedom are not constitutionally protected.
Ashwini Tallur and Satya Prasoon, associates at CLPR, wrote in The Wire about the Azam Khan case and the role of the judiciary in protecting the Freedom of Speech. They analyze the judgements passed on this right over the past two years and identify a worrying trend of imposing restrictions on free speech. They contend that it is unconstitutional for the judiciary to impose these restrictions on the grounds of “constitutional compassion” and “constitutional sensitivity”. They conclude that the singular focus on outcomes, by the public and the judiciary, while ignoring the reasoning could lead to untenable or biased verdicts that could take years to overrule.
Jayna Kothari wrote in the Oxford Human Rights Hub about the recent unanimous decision by the Supreme Court to declare the Right to Privacy as a Constitutional Right. She details how the Right to Dignity formed the core of the reasoning that led to the definition of the Right to Privacy. The acknowledgment by the Court of the importance of the principles of autonomy, the individual’s right to choose, the right to move freely, right to self-identify one’s gender, right to bodily integrity and reproductive makes this one of the most progressive verdicts passed by the Supreme Court of India.
Satya Prasoon, an associate of CLPR, analyses the cases heard and verdicts delivered by the Supreme Court in its 2nd session (July 3rd – September 22nd 2017) in an article published in Pragati. He weighs the judgements passed by the Court against the judicial process and thinking followed to arrive at these decisions. He points out the seemingly capricious nature of the Court and stresses the need to apply rigorous reasoning and justification to both its administrative and judicial activities. He asserts that by following rigorous reasoning and offering balanced justifications for its actions the Court could set a high bar for public debates and legislative policy decision making.
In this co-authored piece for the Wire, Satya Prasoon examines the “good faith” armour of cow protection legislations which gives legitimacy to Gau Rakshaks, the civilan vigilante group. While drawing parallel with Salwa Judum, he argues that legitimacy to Gau Rakshak stands on even sloppier moral and legal premise. The argumentative gist is that the ‘good faith’ clause under the cow-protection legislations can even legitimise killing by gau-rakshas as long as done in “undefined” good faith and so, it needs to be struck down.
Mathew Idiculla in his article published in The Hindu, draws upon constitutional provisions, legislative history and political science scholarship to make a brief argument on why subnational politics is not necessarily antithetical to Indian democracy.
In this article in Bar & Bench, Thulasi K. Raj discusses the contours of the right to privacy.
In the article titled “Case for inclusive courts” in Frontline, CLPR’s Executive Director Jayna Kothari shares her views on the book titled “Courting the People: Public Interest Litigation in Post-Emergency India” by Anuj Bhuwania. She analyses the basis of the arguments brought out by Bhuwania, placing them within the larger context and framework of the legal system within India. Whilst tracking the development of Public Interest Litigation in India, she advocates for a balanced role of the amicus curiae, the need to rid the anti-poor bias, and deliberates on the path ahead.
In this article in LiveLaw, Thulasi K. Raj argues that Justice Karnan Gag order violates free speech at three different levels.
In an article published in the Oxford University Commonwealth Law Journal titled, ‘A battle of rights: the right to education of children versus rights of minority schools’, Jayna Kothari and Aparna Ravi trace two Supreme Court Judgements which have effectively exempted minority schools from the coverage of the Right of Children to Free and Compulsory Education Act 2009 (RTE Act). They critically analyse the developments that led to these judgements and argue that it results in undermining the core value the RTE rests upon, namely the guarantee of the right and access to quality education.
On February 6 the Supreme Court collegium recommended 9 High Court judges be appointed as Chief Justices of various High Courts. It appears that this recommendation follows an earlier collegium recommendation to appoint 5 High Court judges to the Supreme Court made the previous week. Taken together, these moves have been hailed as a breakthrough in the ongoing impasse between the judiciary and the executive. Arguably till the Executive confirms these appointments, the only breakthrough is that the collegium has recommended names to the Supreme Court for the first time since December 2015!
In this article, Vineeth Krishna examines the constitutional and historical reasons for choosing 26th January as India’s Republic Day.
Apoorva Sharma writes that a fascinating new challenge has been brought against the newly printed Rs 2000 and Rs 500 notes in the Madras high court. A recent PIL brings into question the fact that the new notes have international numerals and Devanagari numerals printed on them, and argues that they should hence be declared “invalid” since the Indian constitution does not permit the use of Devanagari numerals on currency notes.
Sudhir Krishnaswamy suggests that the Court needs to formulate a strategy of transparency in the appointments process to win over public opinion and perception. A failure to do so could result in an unacceptable loss of autonomy and erode the power that the Court has to keep a check on the executive and the legislature.
The World Health Organisation’s Framework Convention on Tobacco Control, is a treaty that is used “to protect present and future generations from the devastating health, social, environmental and economic consequences of tobacco consumption.” India, is a party to the treaty and actively participated in its enactment. This report reviews India’s compliance with Article 5.3 of the FCTC which pertains to the issue of States Parties’ obligations around conflict of interest. The report provides a detailed review of the legal principles emerging out of Article 5.3, considers examples of jurisdictions from around the world that have enacted laws to implement this article and reviews how compliant India has been with its obligations under this provision.
Although the report is ready, it can be made available only after the final approval from the Campaign for Tobacco Free Kids. Keep watching this space for more.
In this policy brief we analyse the current law and policies on tobacco and set out a legal basis for ending tobacco subsidies.
This policy brief examines the law on health warnings in India and the future of tobacco packaging legislation.
A factsheet on the extent of governmental subsidies made available to the tobacco industry through the Tobacco Board.
This is a report of Karnataka Level Workshop and Consultation with researchers and experts on public health and tobacco control laws conducted on May 23rd 2016.
This Booklet explores litigation on tobacco vis a vis public health.
This article is a comment on the Draft Equality Bill, 2016 drafted by Tarunabh Khaitan. It focuses on two central issues. The first is the very concept of equality the Bill propounds and its conflict with other rights guaranteed under the Constitution. The other, is the standard of judicial review envisaged under the bill. It casts doubt on the premise that a court centric model of achieving equality is the best way to achieve equality in a country where millions do not have access to justice.
The ruling Bharatiya Janata Party is famously obsessed with the cow, which is venerated in Hindu cosmology. Most Indian states have now banned cow slaughter. The government of Punjab wants to tax alcohol to pay for shelters for stray cattle. Last year, after a Muslim man in Uttar Pradesh was lynched by a mob for eating beef, a cabinet minister from the B.J.P. demanded to know who else was “involved in the crime” — meaning the beef eating, not the man’s killing.
In this article, Ms. Jayna Kothari talks about how the tobacco industry and its political backers have delayed the implementation of health warnings constituting up to 85% of the packaging, an important anti-smoking measure, even as countries around the world are moving to the next stage of reform.
India’s National Intellectual Property Rights (IPR) Policy, released in mid-May, is a bewildering document. There are two ways to read this policy. The first is as a gigantic exercise in dissimulation, with a terse declaration — India is not changing its IPR laws — tucked inside a mountain of hot air to keep the U.S. and the European Union warm and happy. The other way to read it is as a serious attempt to make policy of tremendous national significance. A serious reading, however, reveals critical problems.
The National IPR Policy is keenly concerned with generating “awareness” of intellectual property (IP) in the country. (So much so that the word “awareness” appears at least 20 times in the policy.) The policy calls for nothing less than a new gold rush towards IP — roping in everyone from university professors to people in “rural and remote areas”.
“Rights in Review″ is an annual review of Indian Supreme Court decisions on constitutional fundamental rights cases in the year past. We select cases which extend or modify existing legal doctrine, apply the law to new factual circumstances or otherwise have a significant impact on public policy or public affairs.
Rights in Review is a CLPR publication which analyses 15 key judgments ruled by the Supreme Court in 2015. This publication seeks to acquaint the reader with various aspects of fundamental rights protection and their relevance and impact.
The year 2015 saw the Supreme Court extend its scope of protection of fundamental rights to the internet in the case of Shreya Singhal v Union of India. This case struck down Section 66A of the Information Technology Act of 2000.
The report also elaborates on the stand taken by the Court in issues such as life, privacy, the death penalty, the reservation policy and the environment. The Court in 2015 paved the way to legislative and executive action in constitutional protection cases by triggering judicial review in the Article 14 equal protection cases and reservation policy case with respect to the Jat community.
Jayna Kothari and Gaurav Mukherjee’s piece on out-of-school children is now live on the Oxford Human Rights Blog. (September 18, 2015)
Jayna Kothari examines the procedure to investigate, try and impeach the apex anti-corruption body of the state, the Lokayukta, for corruption. The article is a narration of the provisions of law, relevant authorities and designated police personnel competent to try and investigate such matters.
This article addresses teachers’ grievances, analysing the role of courts in redressing grievances of teachers in government and government aided schools. The authors have also explored the possibility of alternative grievance redressal forums that could serve as more efficient and accessible alternatives to high courts.
In this article, the author calls for the implementation of internationally accepted guidelines to protect public health policies from being influenced by the vested interests of the tobacco industry. This article was written with reference to Rules that made it mandatory for health warnings to cover 85% of the total display area on packages of tobacco products. The author suggests several proactive measures to address conflicts of interest.
In this article, Jayna Kothari and Aparna Ravi highlight the conflicts of interest between the government and the tobacco industry and note how the intervention of the tobacco industry led to the indefinite suspension of the proposed tobacco packaging rules by the Indian Government. The new rules mandate that warnings should cover up to 85% of the cigarette packaging. The halt in implementation indicates the industry’s influence on government policy making and the serious implications this can have on public health. The article concludes that immediate steps need to be taken to isolate the tobacco industry from the Government’s policy-making wing.
Jayna Kothari examines whether public bodies like Municipal Corporations can be held liable for accidents and deaths of individuals due to their negligence in the maintenance of roads, open drains, and other such hazards. She also delves into using human rights principles to instill a sense of duty of care that public authorities should owe to the public and those who are affected by this negligence in care.
Rights in Review is a CLPR publication which analyses 15 key judgements ruled by the Supreme Courtin 2014. This publication is aimed at acquainting the reader with various aspects of fundamental rights protection and the relevance and impact of the decisions in public life.
The article critically examines the basis of the decision of the Supreme Court to strike down section 309. Further, the author argues for the need for policy initiative, better access mental health care, and recognition of mental health care and health rights as a necessity for those contemplating and committing suicide.
This Report presents the analysis, findings and recommendations of a study conducted by the Centre for Law and Policy Research on the use of the courts for grievance redressal by teachers in government and government-aided private schools in nine States in India for the period from 2009 to June 2014.
The author probes the question of whether the courts should have the right to decide on matters as personally, religiously, and morally divided as euthanasia. She argues for the need of the Parliament to have authority to decide the issue of Right to Life and the Right to Die instead of allowing the Supreme Court to make judgments on such cases.
This article discusses how the re-enactment of the Juvenile Justice Act is linked to the “moral panic”, which struck the government in the wake of public outrage post the Delhi gang rape. The author argues that the new Juvenile Justice bill deprives children of the protection granted to them by the former Act, and criticizes its provisions on rehabilitation as the Bill does not provide a conducive environment for conduct of trials and levies retributive punishment for some cases.
“The Shifting Scales of Justice: The Supreme Court in Neo-Liberal India” is a Volume of 8 essays that explain the trajectory of the Supreme Court in the last quarter of the 20th century. A major theme running through several of the essays is the “conservative turn” that the Supreme Court apparently takes from the 1980’s to the 1990’s.
Sudhir and Madhav Khosla’s essay, “Social Justice and the Supreme Court” draws attention to the protection conferred on socio-economic rights, and questions whether the Supreme Court indeed grew less progressive in the 90’s. They offer a test to evaluate a shift in the Supreme Court’s position. The test requires that there is reliable evidence to suggest that a claim made before the 1990’s Supreme Court would have a less chance of succeeding than if it had, under similar facts and circumstances, been framed in the 1980s.
This report argues for the introduction of a judicial remedy in the form of a cause of action against police officers in their individual capacity for violations of constitutional rights. This recommendation was made in light of the government’s failure to implement the reforms mandated by the Supreme Court in Prakash Singh v. Union of India (2006) 8 SCC 1
The authors argue that courts have become a forum for politically partisan disputes by allowing over-representation of the interests of individuals and groups who are already deeply embedded in political and legal institutions. The article points to the absence of any ‘publicly articulated rationale’ for the courts to take suo motu cognizance of any matter as PIL to have rather ‘atrophied and morphed’ PIL from a counter-majoritarian instrument to a counter-democratic one.
The author argues that although artistic works should be judged only on artistic merit, the novel is a product of carefully studied and researched literature which is already set in a politically charged context. The author nonetheless contends that considering every person who takes a political stance as a fascist would be absurd.
The article notes the rise in the creation of ‘strangers’. ‘Strangers’ are people from outside the mainstream culture of India and who are increasingly marginalised and targeted.
In the light of the recent 49 day tenure of the Aam Aadmi Party in Delhi, the panelists, Sarah Joseph (winner of the Sahitya Akademi Award, founder of Manushi and member of AAP) and Rajgopal Saikumar (Research Associate at CLPR) debate the impact that the AAP has had on the dynamics of Indian politics and its relevance in the upcoming elections.
The Centre for Law and Policy Research presents its working paper on “Recasting the Judicial Appointments Debate: The Constitutional (120th Amendment) Bill, 2013 and Judicial Appointments Commissioner Bill, 2013”
Journalists in India have found themselves entangled in criminal contempt cases since the early 1900s, and, over the course of time, the Courts have developed different tests to ascertain whether or not a particular article may be contemptuous. The Brief contains cases from the Supreme Court and the High Court that have upheld the right of the press to publish articles on the Judiciary, as well as reporting on pending cases.
CLPR undertook a policy review of the legal framework of foster care in India. Given that no such study has been undertaken in India as yet, this Policy Brief is being published to share the findings of CLPR’s review and to stimulate debate and further research on this topic.
The following article argues for the Union’s power to redraw state boundaries unfettered by constitutional restraints, as imposed by the Parliament or the Supreme Court under Article 3 and critically examines how the absence of the State Assembly resolution in the case of creation of the state of Telangana is not a constitutional barrier. The creation of state-nation arrangements, according to the author, sustains Indian Federalism and political unity.
This article discusses the draft amendment for the Constitution (120th Amendment) Bill and the Judicial Appointments Commission Bill, 2013 that sought to reform the appointment of judges with a Judicial Appointments Commission. It takes a critical look at the appointment of such a commission, the issues with the draft amendment, and reform for this bill by using examples from the United Kingdom and South Africa.
The media, in paradoxical ways, sways between being a mechanism of social change on the one hand, and a problem-generating machine on the other. Often it is even circular, where the problem and the solutions are both generated within the same mechanism. The Aarushi-Hemraj murder trial depicted this ecology of communication that is emerging in the Indian media.
This essay (published in the book “In the Wake of Aadhaar: The Digital Ecosystem of Governance in India”) investigates the present legal status of both the UIDAI and the National Population Register in terms of their constitutional status. Often presented in opposition to each other, the author argues that, constitutionally speaking, they have to be viewed together, not only because of the similarities that the two posses despite their alleged differences, but because both – along with other initiatives – pose significant challenges to concerns about citizen privacy and the special conditions under which States can waive privacy concerns in the national interest.
The India at LSE Blog has featured a guest post by Jayna Kothari on the Madras High Court judgment of Aysha v Ozir Hassan. This judgment had made headlines for suggesting that couples who have premarital sex can be considered to be married. In her post, Jayna argues that contrary to the popular understanding, this judgment strengthens the position of women in relationships akin to marriage.
This article considers the role of the Supreme Court in the 2G spectrum case. It argues that the Supreme Court has overstepped its mandate in deciding this issue directly and has done so only to maintain its status as a corruption buster.
Sudhir Krishnaswamy from CLPR and Abhayraj Naik from the Law, Governance and Development Initiative of the Azim Premji University, jointly authored the article “Poke Me: Why the Supreme Court is not the Bulwark of the Constitution it is made out to be” published as a part of the “Poke Me” series by the Economic Times on January 3, 2013.
The article seeks to reassess the character of the Supreme Court of India by examining three propositions highlighted by Nick Robinson’s working paper titled “The Indian Supreme Court by the Numbers” which analyzes the Supreme Court’s case records during the period between 1993 and 2011.
The author in her article elaborates on contrary stances taken on the allotment of spectrum. She concludes by suggesting that the government should play a greater role in deciding modes of allocation and that compelling any one mode of allocation as a constitutional mandate can never be in the interest of the larger common good.
This blog post summarises the arguments made on behalf of the Azim Premji Foundation by Jayna Kothari and Menaka Guruswamy in the Supreme Court regarding the constitutionality of the Right of Children to Free and Compulsory Education Act 2009.
Sudhir Krishnaswamy analyzes attempts by the India and the US to clarify the relationship between the state and private sector, and their respective roles and responsibilities to secure social welfare. He focuses on India’s Right of Children to Free and Compulsory Education Act 2009 and the United States’ Patient Protection and Affordable Care Act, 2010.
In an Op-Ed in Sunday’s Deccan Chronicle, Sudhir Krishnaswamy and Varsha Iyengar commented on the recent judgment of the Supreme Court on the Constitutionality of the Right of Children to Free and Compulsory Education Act 2009. The piece discusses the Constitutional law reasoning of the majority decision in upholding the obligation of private unaided schools to provide free and compulsory education to children from weaker and disadvantaged groups. While it supports this holding, it questions the exclusion of minority unaided schools from the purview of the entire Act and prefers the dissenting opinion’s recognition of equal obligation of minority and non-minority schools under the Act.
CLPR’s Sudhir Krishnaswamy contributed a chapter to the book ‘Access to Knowledge in India: New Research on Intellectual Property, Innovation and Development in India‘ published by Bloomsbury. The book explores the issue of access to knowledge in different fields such as human rights, development, agriculture, health, etc.
A variety of authors from different sectors have contributed to the book. Sudhir Krishnaswamy authored the chapter on “Access to Knowledge and Traditional Knowledge Protection: The Indian Experience”. The chapter discusses the issue of access with respect to traditional knowledge. It also discusses the possibility of a legislation to deal with the protection and use of traditional knowledge.
Sudhir Krishnaswamy and Madhav Khosla published a review of Judges of the Supreme Court of India: 1950-1989 by George H. Gadbois (New Delhi: Oxford University Press) titled ‘Inside Our Supreme Court’ in the 20th August 2011 issue of the Economic and Political Weekly
The author questions the Supreme Courts ignorance of the “Best Interests” test, where the patient’s best interests need to be kept in mind before making a judgment, in the Aruna Shanbaug case. She argues that such a ruling ignores the right to autonomy and self-determination of an individual and the judgment could, in future, affect the rights of those who are severely sick, disabled, and the elderly, adversely.
The book examines the basic structure doctrine that was first articulated by the Indian Supreme court in 1973. This doctrine that the Constitution has some provisions that cannot be altered, or removed through amendments. It assesses the legitimacy of the basic structure doctrine in legal, moral, and sociological terms and argues that much of the criticism against the doctrine emerges from the failure to adequately map the contours of constitutional judicial review.
Jayna Kothari has contributed a chapter titled ‘Social Rights Litigation in India: Developments in the Last Decade’, in Daphne Barak-Erez and Aeyal M. Gross (eds.), Exploring Social Rights: Between Theory and Practice (Hart Publishing, 2007).
The chapter brings to light the growing importance of economic and social rights as a part of Article 21 of the Indian Constitution. In examining the protection of social rights in India, this chapter analyses the role of litigation as a new strategy to fulfill the social rights laid down in the Indian Constitution focusing specifically on the right to housing, food and education cases over the last decade. The aim is to shed light on what has been achieved through social rights litigation and to extract some insights into the potential and limits of litigation as a strategy for advancing social rights.
The article is about a Public Interest Litigation filed in the High Court of Karnataka, Bangalore on the pitiable state of the government hospitals in Bangalore which are short of doctors, beds and equipment, thereby raising pertinent questions about public health being a right for people. The court, however, has taken up this issue quite seriously and this is very essential given the state of government hospitals now. One hopes that more pressure is applied to ensure quality in public healthcare because this is a basic constitutional right in a welfare state.
The paper critically examines what social rights are, the constitutional understanding of social rights, how social rights can be made justiciable, can be implemented, and enforced. The author looks at Supreme Court judgments, constitutional litigation, debates, and discussions around three specific rights: right to food, right to health, and right to education.
Jayna Kothari in this article explores the idea of whether the Right to Housing can be seen as a right in itself. She discusses the landmark Olga Tellis judgement and subsequent developments. She examines whether the right to housing exists in International Human Law and argues for the right to housing to be recognized both nationally and internationally.
Petitioners being members of the transgender community have filed this Writ Petition seeking a declaration that all references to “husband” and “wife” and “male” and “female” in the Special Marriage Act, 1954 be read to include the words “spouse” to include all persons irrespective of their gender identity and sexual orientation.
The Petitioners, Kanika Gulati and Sreekumar Gopinathan, have filed this Public Interest Litigation in the Karnataka High Court, challenging the validity of the Karnataka Prevention of Slaughter and Preservation of Cattle Ordinance, 2020. In particular, Sections 2(2), 4, 5, 6, 7 and 18(1)(d) are challenged on the ground that they violate Articles 14, 19(1)(g) and 21 of the Constitution.
Child Rights Trust (a Bangalore based NGO working extensively in the area of Child Rights) and Ms. Neena Nayak (a child Rights advocate and activist) filed a Writ Petition seeking enforcement of Fundamental Rights, under Articles 14, 15, 19, 21, 21A, 39 and 47 of the Constitution, of migrant children and children of migrant families during the COVID-19 pandemic. The Petition seeks to ensure that migrant children and children of migrant workers are provided with proper living conditions, nutrition, health care/immunization, access to education and their protection. The Petition highlights that the lack of present-day assessment of the number and essential needs of migrant children, infants and pregnant and lactating women of migrant families has aggravated their vulnerabilities during the lockdown.
The Centre for Law and Policy Research recently filed an intervening application on behalf of Swati Bidhan Baruah, lawyer and transgender activist, in a case titled Bhavika Pore v. Union of India. The Petitioner through this Petition is invoking the writ jurisdiction of the Hon’ble Supreme Court under Article 32 of the Constitution of India to direct the concerned authorities to fulfil their statutory obligations with regard to setting up/specifying special Human Right Courts in each district for the better protection of Human Rights and also to appoint a Special Public Prosecutor for the same, vis-à-vis section 30 and 31 of the Human Rights Act, 1993.
India’s Supreme Court will begin hearings in April surrounding legal recognition of same-sex marriages. The Indian government had previously filed a motion opposing LGBTQI+ relationships because they were “not comparable with the Indian family unit “. Jayna Kothari from The Centre for Law and Policy Research tells The World it comes almost five years since the top court de-criminalised a colonial-era ban on gay sex.
A landmark case to legalize same-sex marriage is about to start in India’s highest court. The decision won’t just affect the country’s 1.4 billion residents — it could have global implications and set a precedent in Asia. Jayna Kothari, Senior Advocate and Executive Director of Centre for Law and Policy Research gets interviewed about the petition and gives her insight on how this will affect the rights of the LGBTQIA+ in India.
India Vice President Jagdeep Dhankar criticises the Supreme Court for using the Basic Structure Doctrine to strike down constitutional amendments by Parliament thereby sparking a debate on the separation of powers between the executive and the judiciary. Sudhir Krishnaswamy, Managing Trustee at CLPR and Vice Chancellor of NLSIU, Bengaluru gets mentioned giving his two cents on the topic.
The Print carried out a story on the recently concluded Grand Finale of ConQuest 2020, India’s Premiere National Quiz on the Indian Constitution, Politics and the Law.
On 25 November, Bengaluru will host the culmination of the regional rounds as the top two teams from Kolkata, Pune, Delhi, and Bengaluru vie to become ConQuest champions.
The top two teams from the four regional rounds will now compete for the title of National Champions of ConQuest in late November.
Each team comprised three members, and the quiz had a total of five rounds. The trio from NLU—Kartikya Aggarwal, Ananya, and Rishabh—won.
One memorable question involved identifying the two women depicted in the artwork on the original manuscript of the Indian Constitution.