New OxHRH RightsUp Podcast! Discrimination Law (Part 3)

April 8, 2024

The last part in the discussion series with Professor Sandra Fredman on her latest monograph – Discrimination Law featuring Jayna Kothari, Executive Director of CLPR, Rosalie Abella, formerly a Justice of the Supreme Court of Canada, and Helen Mountfield KC, a barrister practising at Matrix Chambers in the UK and Principal of Mansfield College Oxford.


New OxHRH RightsUp Podcast! Discrimination Law (Part 2)

March 23, 2024

The second part in the discussion series with Professor Sandra Fredman on her latest monograph – Discrimination Law featuring Jayna Kothari, Executive Director of CLPR, Rosalie Abella, formerly a Justice of the Supreme Court of Canada, and Helen Mountfield KC, a barrister practising at Matrix Chambers in the UK and Principal of Mansfield College Oxford.


Marriage equality: Setbacks, silver linings

October 22, 2023 | Jayna Kothari

Writing in the Deccan herald, CLPR Executive Director Jayna Kothari, pens her thoughts on the latest Supreme Court ruling regarding the Marriage Equality case stating that the rejection of right to marry as a fundamental right is certainly a setback, not just to the queer community, but for everyone.


The Dissenting Judgment Versus the Razing of Equality

November 25, 2022

Writing in The Hindu, Jayna highlights the intersectional nature of inequality and how the exclusion of socially backward classes from the EWS category is unconstitutional. She further argues that the exclusion of SC, ST, and OBC communities from reservations would amount to discrimination and a clear violation of the Indian Constitution.


Notes on Allyship

October 12, 2022 | Rajeev Anand Kushwah

In this opinion piece, published by Gaysi, Rajeev Anand Kushwah explores the understanding of Allyship, exploring what constitutes effective allyship, and what support straight allies can extend to queer movements and communities.


On abortion, Supreme Court has listened to Women

October 3, 2022 | Jayna Kothari

CLPR Executive Director Jayna Kothari writes for the Indian Express on the recent Supreme Court judgement which expanded the abortion rights of women and persons who require safe medical termination of pregnancies. She argued that the judgement upheld the right of all women and girls to make reproductive choices for themselves, without undue interference from the state. She emphasised that any deprivation of reproductive healthcare services negatively affects the dignity of women.


Pride Matters | Beyond Sec 377, the call for trans equality reaches a crescendo

July 12, 2022

In this article published by the Hindustan Times, Jayna Kothari highlights the need to support the transgender rights movement amidst the various human rights violations happening worldwide. In her piece, she says “Everyone needs to join the battle for trans rights, because the systemic changes required to put these basic rights in place would benefit everyone.”


Recognising caste-based violence against women

June 1, 2021

In this article published by The Hindu, Jayna Kothari, Senior Advocate & Executive Director at Center for Law and Policy Research argues that how the recent Supreme Court judgment in Patan Jamal v. State of Andhra Pradesh missed an opportunity to use the concept of intersectionality to uphold the conviction under the Prevention of Atrocities Act (PoA) 1989. Despite highlighting the need for an intersectional approach that takes into account the multiple marginalities faced by the victim, the apex court failed to set a larger precedent recognising caste-based violence against women.


Priya Ramani verdict has expanded the law on sexual harassment

February 24, 2021 | Jayna Kothari

In this article published by Indian Express, Jayna Kothari, Senior Advocate & Executive Director at Center for Law and Policy Research argues that the recent Priya Ramani judgment has expanded the law on sexual harassment and provided the opportunity to widen the defences against defamation law. Most importantly, she states that now, victimisation should also be recognised as a form of sexual harassment and discrimination.


Facebook, Hate Speech & Corporate Criminal Liability: Business & Human Rights Obligations of Communication Technology-Based Platforms

February 12, 2021 | Almas Shaikh

With the recent event of the US Capitol Hill Siege, the question of corporate criminal liability has yet again come to the fore. Though the basic intent of the communication technology platforms remains communication, businesses and states are using it to evoke feelings of anger, hate and certain instances of violence. In this article, Ms Almas Shaikh, Research Associate at Centre for Law and Policy Research discusses the need for corporate criminal liability to stop human rights violations and ensure the development of technology in a responsible manner.


Equality Bill 2021: Takes a New Step in Addressing Discrimination, Recognising Intersectionality & Promoting Equality.

January 8, 2021

CLPR’s draft Equality Bill 2021 takes a new step in addressing discrimination experienced by people on the basis of caste, gender, religion, transgender and intersex identity, disability and other grounds. It aims to promote equality, prohibit different types of discriminatory conduct, provide adequate civil remedies and set up fora for redressal that are accessible and effective in addressing discrimination.


UP anti-conversion law amounts to discrimination and a violation of the right to equality

December 19, 2020 | Jayna Kothari

In this article published by Indian Express, Jayna Kothari, Senior Advocate & Executive Director at Center for Law and Policy Research argues that new UP Prohibition of Unlawful Conversion of Religion Ordinance 2020 leads to serious violation of the right to equality based on religion. She also adds that there is no evidence to support the argument of harms if any, of inter-faith marriages.


At the Intersections of Caste and Gender

October 9, 2020 | Jayna Kothari

In this article published by the Thinking Republic, Jayna Kothari, Senior Advocate & Executive Director at Center for Law and Policy Research talks about the intersection of caste and gender highlighting the discrimination faced by Dalit and Adivasi trans persons. She also argues that the urgent for all activists, lawyers, researchers and civil society members to be intersectional in its approach to be able to understand the multidimensional discrimination faced by the persons at the intersections of race, caste, and gender identity.


Situating Access to Justice During COVID-19: India’s Business and Human Rights Obligations

September 30, 2020 | Almas Shaikh

In this paper published by Socio-Legal Review, Almas Shaikh writes about India’s obligations under the UN Guiding Principles on Business and Human Rights (UNGPs). Focusing on the 3rd pillar, access to remedy, She shows the specific need for an accessible framework to address business and human rights violations, especially in the context of COVID-19.


Trans Equality in India : Affirmation Of The Right To Self-Determination Of Gender

September 28, 2020 | Jayna Kothari

In this paper published by NUJS Law Review, Jayna Kothari, Senior Advocate & Executive Director argues that the verdicts in NALSA and Navtej had the negligible impact on preventing deprivation of basic rights and legal recognition for the transgender community. She examines how the right to life also includes the right to bodily integrity which precludes the reliance of a medical model to decide gender identity, as is required in Indian law at present, and examines Indian and comparative jurisprudence on this issue.


NEP Gets the Language Problem Wrong

September 22, 2020 | Madhavi Gopalakrishnan | Kruthika R

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.


Reservation as a political imperative

September 18, 2020

In this article published by Frontline, co-authored by Thulasi K Raj along with Kaleeswaram Raj & Bastian Steuwer, they argue that even though a right to the reservation may not be culled out from the equality code of the Constitution, it nevertheless remains a significant political and moral duty.


Commercial Courts In India: Three Puzzles For Legal System Reform

September 2, 2020 | Dr. Sudhir Krishnaswamy

In this paper published by the Journal of Indian Law and Society, Dr Sudhir Krishnaswamy & Varshan Mahadeva Aithala made an effort to answer the performance of the commercial courts set up under the Commercial Courts Act, 2015 using quantitative and qualitative methods, nearly four years after the 2015 Act was introduced. As per the research findings, the authors have reached to a conclusion that the objective of speedy and effective justice for commercial matters has not been achieved.


A Brief Response to “Law-Making by and for the People: A Case for Pre-legislative Processes in India”

August 30, 2020 | Ritambhara Singh

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.


The Intersection of Disability and Caste

July 20, 2020 | Jayna Kothari | Almas Shaikh | Aj Agrawal

This Policy paper explores the importance of the intersections of disability and caste. The authors argue that to address the fulfillment of basic social rights of employment, education, housing & health for the most vulnerable, there is need to look at people from inter sectional perspective. The Policy paper also recommends empirical research and data collection to understand depth of the socio-economic deprivation faced by Dalits/Adivasi persons with disabilities, need of inter sectional approach in policy and welfare schemes, need of Anti-discrimination law and also for social movements to work together for overall welfare of marginalized sections of the society.


Why India needs an equality law

June 3, 2020 | Jayna Kothari

In this piece published by Deccan Herald, Jayna Kothari argues that this is a high time when India needs an equality law that would provide a broad framework to address stigma and discrimination prevalent in the society which is quite openly visible during this pandemic and also impose positive duties and obligations on governments and private actors to ensure that all their actions and measures are non-discriminatory.


Re-Imagining Bail Decision Making: An analysis of Bail Practice in Karnataka & Recommendations for Reform

March 30, 2020

The study titled ‘Reimaging Bail Decision Making’ looks at bail decision making in trial courts in three districts in Karnataka – Bengaluru, Dharwad and Tumakuru. The research focuses on the courts, which are the primary site at which decisions on granting bail are made, to understand what guides the grant or non-grant of bail and what are the factors which decide whether bail is likely to be granted or not. These include the statutory basis for the offence, the nature of offence, its classification as bailable or non-bailable, the punishment prescribed and effective legal representation by lawyers.


Tackling Caste Discrimination Through Law: A Policy Brief on Implementation of Caste Discrimination Laws in India

This Policy Brief reviews the status of implementation of the three important legislations addressing caste discrimination in India namely, the Protection of Civil Rights Act, 1955, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the Prohibition of Employment of Manual Scavengers and their Rehabilitation Act, 2013 in Andhra Pradesh, Karnataka, Kerala and Tamil Nadu.


Benched By the Bar

February 29, 2020 | Jayna Kothari

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.


Intersections of Caste and Gender: Implementation of Devadasi Prohibition Laws

November 25, 2019 | Jayna Kothari | Deekshitha Ganesan | Jayalakshmi

CLPR’s policy brief on the Devadasi practice in States like Tamil Nadu, Karnataka, Andhra Pradesh and Maharashtra investigates the prevalence of the practice and reviews the implementation of legislations prohibiting the practice. The policy brief pays close attention to the intersectional discrimination faced by Devadasi women due to their caste, class, and gender and suggests a range of recommendations from statutory amendments to regular empirical studies and training programmes to strengthen the working of the legislations.


Intersectionality: A Report on Discrimination based on Caste with the intersections of Sex, Gender Identity and Disability in South India

August 8, 2019

CLPR’s report collates the life experiences of intersectional discrimination in the four South Indian States of Andhra Pradesh, Karnataka, Kerala, and Tamil Nadu to understand the relationship between different intersecting identities and various sites of discrimination. The report finds that individuals who fall at the intersection of multiple identities face aggravated forms of discrimination in their daily lives. These gaps in the legal landscape are best addressed by a single and comprehensive equality legislation that adopts a broad approach and imposes positive equality duties on the State and private actors.


The primacy of the elected

July 10, 2019 | Mathew Idiculla

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.


Section 377 and Beyond: A New Era for Transgender Equality?

July 3, 2019 | Jayna Kothari

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”.


Is the Indian Constitution Liberal?

July 3, 2019 | Dr. Sudhir Krishnaswamy

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.


10 Cases that Shaped India in 2018, pt. 2

March 8, 2019

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.


10 Cases that Shaped India in 2018, pt. 1

March 1, 2019

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.


Making Rights Real

December 24, 2018 | Deekshitha Ganesan

CLPR’s policy brief develops a comprehensive and functional strategy for the implementation of reservations for transgender and intersex persons in educational institutions and public employment. In order to implement reservations, we must address three principal issues: identification of beneficiaries of reservations, legal basis for reservations and the appropriate form of reservations.


Findings of the CLPR’s Research on Intersectional Discrimination

November 28, 2018 | Deekshitha Ganesan

CLPR has conducted qualitative and quantitative research on discrimination faced by persons at the intersection of caste with gender, gender identity and disability. We presented the preliminary findings of the study on 21 November 2018 at a consultation organised with community members and other stakeholders. CLPR intends to prepare and publish a detailed report on the methodology and results of the study shortly.


Castles in the air

October 16, 2018 | Mathew Idiculla

Last week, Paul Romer (along with William Nordhaus) was awarded the Nobel Prize in Economics for his work on “endogenous growth theory”. Interestingly, Romer has also been championing the creation of Charter Cities – new cities with distinct laws that seek to attract investment and economic growth. In this op-ed, Mathew Idiculla critically examine the motivations and the realities of such an idea in the Indian context.


Constitution framers did not anticipate use of criminal law in reforming Muslim Personal Law

September 26, 2018 | Vineeth Krishna

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


Child Marriage FAQs Brochures: Kannada

September 25, 2018

As part of our collaborative work with Centre for Reproductive Rights, we translated easy-to-understand FAQ Brochures on Child Marriage for our outreach in Karnataka. The brochure contains the relevant legal framework around Child Marriage in India.


Child Marriage Posters: Kannada

September 25, 2018

As part of our collaborative work with Centre for Reproductive Rights, we translated easy-to-understand Posters on Child Marriage for our outreach in Karnataka. The poster contains the relevant legal framework around Child Marriage in India.


Don’t look to SC to do it

September 17, 2018 | Mathew Idiculla

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.


The Supreme Court trans-formed

September 15, 2018

Jayna Kothari, Executive Director at CLPR and Advocate, Supreme Court of India, writes in The Hindu. In this article, she examines Navtej Johar judgment’s special relevance for transgender rights: the contributions of the trans community to this outcome and how the judgment takes transgender rights forward.


The rainbow in our clouds

September 10, 2018 | Jayna Kothari

Jayna Kothari, Executive Director of CLPR and Advocate, Supreme Court, had represented transgender rights activists, Dr. Akkai Padmashali, Sanaa and Umi Umesh, in the Supreme Court on Section 377 challenge case. Deccan Herald carried Jayna’s piece today where she analyses the key themes the Court relied on to read down Section 377


Child Marriage Posters: English

September 7, 2018

As part of our collaborative work with Centre for Reproductive Rights, we disseminated easy-for-reference Posters on Child Marriage for our outreach. The poster contains the relevant legal framework around Child Marriage in India.


Child Marriage FAQs Brochure: English

September 7, 2018

As part of our collaborative work with Centre for Reproductive Rights, we disseminated FAQ Brochures on Child Marriage for our outreach. The brochure contains the relevant legal framework around Child Marriage in India.

Inside the glittering façade

August 17, 2018 | Mathew Idiculla

In this article published in the Hindu Business Line, Mathew Idiculla, Research Consultant at CLPR reviews James Crabtree’s book: The Billionaire Raj: A Journey Through India’s New Gilded Age.

Perceptive and detailed, James Crabtree’s book advances a familiar argument about the story of India’s uneven growth.


Manufacturing electoral choice

May 16, 2018 | Dr. Sudhir Krishnaswamy

Sudhir Krishnaswamy, Managing Trustee at CLPR, writes LiveMint on the Karnataka Elections 2018. He analyzes two elements of the campaign strategy. Firstly, he argues that Congress’s choice of Kannada linguistic nationalism as a campaign frame did not fare well against the cultural and religious national sentiment. Secondly the double-layered campaign structure of the BJP helped them secure the highest seats – leaders from centre and state and the grassroots political workers carried out a well designed campaign strategy.


Karnataka elections: Severe anti-incumbency against Siddaramaiah or Modi-Shah-Yeddyurappa dominance?

May 15, 2018

Mathew Idiculla, Research Consultant at CLPR, provides his opinion on the Karnataka Elections 2018. He argues that there was no visible anti-incumbency against the Siddaramaiah government. However anti-incumbency operated against specific Congress MLA’s. This compounded with the efforts of Modi-Shah-Yedurappa could explain BJP securing highest number of seats.


Rights in Review | The Supreme Court in 2017

April 14, 2018 | Dr. Sudhir Krishnaswamy

“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.


Federalism and Fairness

April 2, 2018 | Mathew Idiculla

Mathew Idiculla’s op-ed titled ‘Federalism and fariness’ appeared in The Hindu on 3rd April 2018. In this article, in the context of South Indian States’ demand to rethink federalism, Mathew analyses these demands by making constitutional and historical arguments.


Can the Karnataka model of development do for Siddaramaiah what such slogans did for Modi?

March 13, 2018 | Mathew Idiculla

Karnataka State elections are scheduled for the 2nd week of May 2018. Matthew Idiculla of CLPR writes in The Print, that since 2017 Mr.Siddaramaiah has started fashioning a campaign based on the “Karnataka Model of Development”. This model leverages the halo effect created by putting forward development policies and employs the communication power of Twitter to promote “#NavaKarnataka2025”.


Briefing Note – Who should plan the city? Master Plan for Bengaluru

February 27, 2018 | Dr. Sudhir Krishnaswamy

As the High Court of Karnataka adjudicates whether the BDA or the MPC should have the power to make the Master Plan, this CLPR Briefing Note authored by Sudhir Krishnaswamy and Mathew Idiculla examines the constitutional and legal framework for urban planning and clarifies the roles of the MPC, the BDA and the Bruhat Bengaluru Mahanagara Palike (BBMP) in planning for Bengaluru. It argues that as per the 74th Constitutional Amendment, it is the elected urban local body like the BBMP which is primarily vested with the task of urban planning while the MPC is tasked with responsibility to prepare a metropolitan-level development plan which integrates the plans prepared by the various elected local bodies in the metropolitan area.


Asphyxiated by Politics, Secularism Gasps for Breath: Can the Supreme Court Rescue It?

February 23, 2018

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?


With new cracks in the judiciary, will politics reclaim its hold on Ayodhya issue?

February 8, 2018

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.


Free Speech and Blind Patriotism in the Times of ‘Tiranga Nationalism’

February 8, 2018

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.


A path to executive power

January 30, 2018 | Mathew Idiculla

On Jan 21st the President Ram Nath Kovind approved the recommendation of the Election Commission to disqualify 20 MLAs of AAP, as it was deemed that they were holding offices of profit. Matthew Idiculla details out the actions that led to this order. In this op-ed in The Hindu, he also looks at the history of and the reason for this practice and delves into why this practice has continued to flourish in the Indian legislative system.


Draft RMP-2031 for Bengaluru: Institutional gaps and flawed outcomes

January 10, 2018 | Dr. Sudhir Krishnaswamy

In the second article on the Draft Revised Master Plan 2031, published in The Hindu, Sudhir Krishnaswamy, Champaka Rajagopalan and Matthew Idiculla highlight the lack of ownership (of the Plan) felt at the local level. They attribute this lack of engagement to the outsourcing of the plan to a private entity (this was done for the previous plan as well) which might have brought in expertise lacking in the BDA, but also led to a disregard for the diversity and local history of Bengaluru. Further complicating the possibility of a successful outcome – the implementation of a plan that creates an economically, socially and environmentally friendly urban living space – is the estrangement of the BDA from the communities it is restructuring. They note that the proposal put forward by the BBMP Restructuring Committee 2017 has unfortunately not been evaluated in the context of moving away from the supply-based planning that is currently being followed.


BDA’s master plan goes from ‘compact’ to ‘urban sprawl’

January 4, 2018 | Dr. Sudhir Krishnaswamy

Can 21st century Bengaluru reject the principles of new urbanism with dense, mixed neighbourhoods that promote public transport and walkability to reduce environmental and resource costs and yet be a liveable, affordable and ecologically smart city? The question that Sudhir Krishnaswamy, Mathew Idiculla and Champaka Rajagopal have about Bangalore Development Authority’s (BDA) draft Revised Master Plan 2031 (RMP 2031).

The Vision Plan, 1 of the 6 documents that make up the draft RMP 2031, outlines a strategy to accommodate a projected population of 24.7 million that, the authors posit, is bound to encourage urban sprawl. The restriction of development in the city core combined with intensive development at the periphery is the antithetic to creating an urban environment that is economically, socially and ecologically progressive.


Rescuing Individual Rights From the Chokehold of Groups Rights

December 3, 2017

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.


How a bystander court went wrong in ruling Gujarat needn’t pay for shrines damaged in 2002 riots

November 19, 2017

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.


Child Marriage before the Indian Supreme Court

November 16, 2017

A little more than a month ago, on 17th Oct 2017, in the Child Marriage and Marital Rape [Independent Thought vs Union of India] case the Supreme Court ruled that sexual intercourse or sexual acts between a man and his minor wife was marital rape. In legal terms the Supreme Court had read down Exception 2 to Section 375 of the Indian Penal Code. This exception had deemed that a man could not be accused of marital rape if he had marital intercourse with his minor wife as long as the wife was not below the age of 15. Reading down the exception now meant that this exception would not apply to cases where the wife was between 15yrs and 18yrs.
Disha Chaudhry wrote about the reasoning behind this judgement in the Oxford Human Rights Hub.


As Case Against Azam Khan Moves Forward, Freedom of Speech Once Again at Judicial Mercy

October 6, 2017

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.


The Indian Supreme Court Declares the Constitutional Right to Privacy

October 4, 2017 | Jayna Kothari

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.


Soaring Highs, Depressing Lows

October 2, 2017

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.


From Salwa Judum to Gau Rakshaks, Indian Laws are Giving Vigilante an Out

September 18, 2017

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.


Subnationalism Not a Threat

September 14, 2017

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.


Case for Inclusive Courts

July 21, 2017 | Jayna Kothari

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.


A battle of rights: the right to education of children versus rights of minority schools

February 14, 2017 | Jayna Kothari

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.


Judicial Appointments: A Breakthrough?

February 11, 2017 | Dr. Sudhir Krishnaswamy

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!


Using Devanagari Numerals on New Currency Dishonours a Historic Compromise

November 25, 2016

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.


The People’s Court

November 24, 2016 | Dr. Sudhir Krishnaswamy

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.


Article on the Supreme Court decision seeking to amend Section 2(q) of the Domestic Violence Act

October 17, 2016 | Jayna Kothari

In this Article published in the Kannada Daily, Prajaavaani, Jayna Kothari critiques the decision of the Supreme Court holding Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, to be unconstitutional. The impugned section defines “respondents” under the Act to only include “adult males”, thus allowing aggrieved persons under the Act to file a case only against adult male relatives.
Jayna Kothari argues that provisions of the Domestic Violence Act are not meant to be construed as gender neutral. She elaborates how it is necessary and intentional that legal provisions on violence against women should apply only to males as perpetrators of such violence.


CLPR’s Report on India’s Implementation of FCTC

October 14, 2016 | Jayna Kothari

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.


A Critique of the Draft Equality Bill

August 3, 2016 | Dr. Sudhir Krishnaswamy

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.


Mr. Modi, Don’t Patent Cow Urine

June 16, 2016 | Dr. Sudhir Krishnaswamy

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.


Submissions to the Parliamentary Joint Committee on the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Bill 2016

June 16, 2016 | Jayna Kothari

On June 16th 2016, CLPR was invited to appear before a Joint Parliamentary Committee (JPC) formed to discuss the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions (Amendment) Bill 2016. This bill sought to amend four laws: (i) Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI), (ii) Recovery of Debts due to Banks and Financial Institutions Act, 1993 (RDDBFI), (iii) Indian Stamp Act, 1899 and (iv) Depositories Act, 1996. The primary aim of the bill was to simplify the procedure involved in the recovery of debt owed to banks and other financial institutions. CLPR limited itself to the proposed amendments to the RDDBFI in its submissions before the JPC.

Jayna Kothari presented CLPR’s submissions before the JPC.


Patently, a missed opportunity

May 25, 2016 | Dr. Sudhir Krishnaswamy

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 | The Supreme Court in 2016

April 1, 2016

“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.


Special courts don’t follow Act provisions

January 16, 2016 | Jayna Kothari

This article, reviews the performance of Special Courts established under the Protection of Children from Sexual Offences (POCSO) Act 2012. Using empirical data, from a study conducted by the Centre for Law and Policy Research, the author exposes the failure of these courts in meeting their objective.


Rights in Review | The Supreme Court in 2015

January 1, 2016 | Dr. Sudhir Krishnaswamy

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.


Probe is Crucial, Who Investigates is not.

July 1, 2015 | Jayna Kothari

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.


Redressing Teacher Grievances

June 20, 2015

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.


The Myth of Speedy and Substantive Justice : A Study of the Special Fast Track Courts for Sexual Assault and Child Sexual Abuse in Karnataka

June 9, 2015 | Jayna Kothari

Fast track courts have often been mooted as a solution to the extensive delays that plague the functioning of “normal” courts in India. In 2012 a special court to exclusively try cases of child sexual abuse under the “Protection of Children from Sexual Offences Act, 2012 (“POCSO”)” was set up. In 2013, the Karnataka state government set up 10 special fast track courts in the state only for trying cases of rape and sexual assault against women under Section 376, IPC.


Smoking out the Elephant in the Room

April 23, 2015

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.


Behind the Smokescreen

April 2, 2015 | Jayna Kothari

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.


Apply Human Rights Approach to Our Public Bodies

March 16, 2015 | Jayna Kothari

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.


After deleting Section 309

December 22, 2014 | Jayna Kothari

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.


Who is Tracking Fast Track Courts?

November 4, 2014 | Jayna Kothari

The Justice J.S Verma Committee Report had recommended the setting up of Fast Track courts for dealing with rape and sexual assault as a way to ensure speedy justice. In this article, the authors conducted a detailed study of the working of three such courts in Bangalore that were set up in December, 2013 and examine whether these courts live up to their objective. The article makes a case for the need for witness protection services, so as to safeguard the interests of the victim of sexual assault before and after they have provided evidence.


The Right to Health of Persons with Disabilities in India

July 31, 2014 | Jayna Kothari

This Report examines the state of the right to health for persons with disabilities in India from the perspective of “equal access” and “non-discrimination.” It is based on an empirical study conducted by CLPR on the experiences of persons with disabilities in accessing healthcare. In addition to the empirical study, it also draws on the insight gathered from four zonal and one national consultation meetings organized by CLPR on disability rights. The outcomes from the consultations have been referenced in this paper. This Report was prepared for Human Rights Law Network, Indian Association of Muscular Dystrophy and National Alliance on Access to Justice for People Living with Mental Illness.


Between Life and Death

July 28, 2014 | Jayna Kothari

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.


Child and punishment

July 17, 2014

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.


S Krishnaswamy, The Shifting Scales of Justice: The Supreme Court in Neo-liberal India, (2014)

June 11, 2014 | Dr. Sudhir Krishnaswamy

“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.


Legal Accountability of the Police in India

June 4, 2014 | Dr. Sudhir Krishnaswamy

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


Restoring legitimacy to PILs

May 3, 2014 | Dr. Sudhir Krishnaswamy

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.


Politics collides with arts, letters

April 29, 2014

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.


Disabilities of our democracy

April 25, 2014 | Jayna Kothari

In this article published in The Hindu, Jayna Kothari and David Seidenberg argue that when an electoral system structurally discriminates against particular categories such as persons with disabilities, it is tantamount to a failure of the democracy as a whole.


The invisible voter

April 14, 2014 | Jayna Kothari

The author alludes to the 2004 Supreme Court order in Disability Rights Group v. Election Commission (EC) which had directed the Election Commission to facilitate favourable voting conditions in all states for persons with disability. The author contends that despite the EC’s immediate directive to all state commissions to comply with this order, the actual level of accessibility in voting has not improved. The author proposes technology solutions like voting through mobiles for easy exercise of the right to vote by persons with serious disabilities.


Ensure Disabled get Voting Facilities

April 2, 2014 | Jayna Kothari

In this article, the authors stress on the necessity of ensuring an enabling atmosphere for disabled persons to exercise their fundamental right to vote, which is an essential aspect of democracy. They urge that electoral participation should go beyond the installation of ramps at polling booths, in order to make polling sites accessible.


National Resources Kit for Persons with Disabilities

March 31, 2014

CLPR in collaboration with the Centre for Internet and Society (CIS) put together the National Resources Kit for Persons with Disabilities. This resource kit was prepared in order to facilitate access to relevant information for all stakeholders. This was done with the aim of ensuring meaningful participation of disabled individuals in governance.


CLPR and CIS Report on Enabling Elections: Making the elections participatory and accessible for PWDs

March 28, 2014 | Jayna Kothari

In light of the upcoming 2014 Lok Sabha elections, CLPR in collaboration with the Centre for Internet and Society, has prepared a Report titled “Enabling Elections: Making the 2014 General Elections Participatory and Accessible for Voters with Disabilities”. This Report addresses the barriers that voters with disabilities face during elections and recommends solutions for the same. A representative democracy is defined by its access to voting and full participation in the political affairs of the country equally for all its citizens, which includes voters with disabilities. This report analyses the legal framework on the rights of persons with disabilities with respect to free and fair elections and argues that the State is constitutionally mandated to enforce this right. The Report examines the relevant provisions of the Representation of People Act, 1951, the Constitution, the relevant directions of the Supreme Court of India and the international conventions.


Loopholes in police oversight body

March 15, 2014

This article analyses the Karnataka Police (Amendment) Act, 2012 which established the State and District Police Complaints Authority (“PCA”). It notes that the PCA is incapable of curbing police misconduct.


Strangers in the Night

February 26, 2014

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.


Aam Aadmi Party: Making the citizen politician? – A debate

February 24, 2014

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.


At a Standstill : Rights of Persons with Disabilities Bill is not a meaningful improvement on its precursor

February 12, 2014 | Jayna Kothari

The Rights to Persons with Disabilities Bill, 2014 was meant to be a substantial improvement over the existing Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, 1995. However, this article highlights in two crucial ways how the Bill fails to make a meaningful departure from the existing legislation. Firstly it retains the medical model of disability and does not acknowledge the role of the social environment is disabling certain individuals. Secondly, it does not put any obligations on the private sector to reserve jobs for the disabled.


CLPR Case Briefs – Journalists and the law of Contempt

January 22, 2014 | Jayna Kothari

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.


Foster Care in India : Policy Brief

January 22, 2014 | Jayna Kothari

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.


Telangana: No Constitutional Barriers

January 4, 2014 | Dr. Sudhir Krishnaswamy

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.


Recasting the Appointments Debate

December 13, 2013 | Dr. Sudhir Krishnaswamy

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.

Denying the disabled.

November 15, 2013 | Jayna Kothari

SINCE 1996, when the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (PWD Act), came into force, by far the majority of cases taken to court have been about equal opportunity in public employment, that is, reservation of jobs for persons with disabilities and related matters such as promotions, identification of posts and eligibility. This struggle is in many ways not that different from the caste and gender battles for affirmative action in government employment.

Sexual harassment in the Indian legal profession

September 9, 2013 | Jayna Kothari

In this article, Jayna Kothari has brought to light the manner in which guidelines on sexual harassment laid down by the Supreme Court in the Vishakha judgment are being flouted. She also talks about the inherent bias in the legal profession against women lawyers and the need to recognize such biases while interpreting the law in relation to sexual harassment.

Closing the care-gap

September 4, 2013 | Jayna Kothari

The new Mental Health Care Bill, 2013, based on the principles of the UN Convention on the Rights of Persons with Disabilities and moves the current mental health care law from a medical to a social model based on human rights. Some of the progressive aspects of the new bill include the recognition of the legal capacity of persons with psycho-social disabilities and of advance directives, as well as the protection of the rights to equality and dignity. But the bill also has several conditions that could negate the guarantee of these rights. In this respect, the bill has been debated intensely within the disability community. Widely speaking, the need to decriminalise attempts to suicide have been considered by the courts, but only from the perspective of the right to life under Article 21 of the Constitution, not from a mental health perspective. By recognising the link between suicide rates and mental health, the bill is progressive in that it imposes a duty on the government to provide care, treatment and rehabilitation for a person with a mental illness and who has attempted suicide. However, the bill does not give any guidelines on how care and treatment should be provided for such vulnerable persons.


The Unique Identification Number and the National Population Register

August 6, 2013 | Dr. Sudhir Krishnaswamy

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.

What rights do women in India in relationships akin to marriage have?

July 17, 2013 | Jayna Kothari

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.


A difficult road to her roots

March 30, 2013 | Jayna Kothari

Chaya’s six-year-old legal battle to search for her roots came to a fruitful end this week. The Karnataka High Court allowed her petition and directed the police to investigate the details of her biological mother and the conditions under which she was given up for adoption by the orphanage. This article examines this case in the light of a person’s right to know her biological or genetic origins.


Undermining the domestic violence law

March 9, 2013 | Jayna Kothari

The Protection of Women from Domestic Violence Act, 2005 aims to provide women with quick decisions on protection, residence, maintenance and child custody. This is an account of how the best intentions of the law are thwarted in the process of implementation.


Poke Me: Why the Supreme Court is not the Bulwark of the Constitution it is made out to be

January 3, 2013 | Dr. Sudhir Krishnaswamy

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.


Working Paper: Moving Towards Autonomy and Equality: An Analysis of the New Mental Health Care Bill, 2012

January 1, 2013 | Jayna Kothari

India ratified the UN Convention on the Rights of Persons with Disabilities 2006 (UNCRPD) and the Optional Protocol to it in 2007. The UNCRPD‘s objective is to protect and promote the rights of persons with disabilities from a social model unlike the earlier medical model of disability. It ensures that persons with disabilities become holders of rights rather than being objects of welfare measures and medical treatment (UN et al 2007). To that extent, ―the UNCRPD marks a paradigm shift in attitudes and approaches to persons with disabilities and views them not as objects of charity, ‘but subjects with rights'(Murthy 2010: 153).


Folly of Mandating Spectrum Auctions

November 23, 2012 | Jayna Kothari

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.


CTLR: “Regulation of consumer protection in Indian telecommunications sector: two steps forward?”

November 12, 2012

Dharmendra Chatur published a review in the Computer and Telecommunications Law Review (C.T.L.R. 2012, 18(8), 240-245, available on Westlaw) of two sets of regulations on telecom consumer protection issued by the Telecom Regulatory Authority of India in 2012. The review titled ‘Regulation of consumer protection in Indian telecommunications sector: two steps forward?’ assesses if these regulation effectively served their statutory purpose in securing effective protection given the pace at which telecom technology and access is growing in India.


Healthcare Law in the US and the RTE in India

September 1, 2012 | Dr. Sudhir Krishnaswamy

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.


RTE must be extended to minority schools also

April 29, 2012 | Dr. Sudhir Krishnaswamy

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.

When Sexual Harassment Law Goes East: Feminism, Legal Transplantation, and Social Change

November 4, 2011 | Jayna Kothari

Every legal system has its own story and unique experiences with the sexual harassment law. This article engages in a comparative study of sexual harassment in India and Israel, which seem to share a very similar trajectory. This article tracks the processes that shaped the reforms in both countries and uncovers significant similarities and differences in the Indian and Israeli sexual harassment law. It suggests that while the Israeli law is more robust in both its substantive scope and its enforcement, it has for this very reason, also experienced a significant backlash which is, interestingly not traced in the Indian context.

Access to Knowledge in India: New Research on Intellectual Property, Innovation and Development in India‘

October 15, 2011 | Dr. Sudhir Krishnaswamy

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.


Access to Knowledge and Traditional Knowledge Protection: The Indian Experience in ‘Access to Knowledge in India: New Research on Intellectual Property, Innovation and Development in India’, Bloomsbury (2011)

October 11, 2011

This volume on Access to Knowledge and Traditional Protection features articles by four contributors on contemporary issues in the domain of intellectual property, development policy and associated innovation in India. The authors adopt an interdisciplinary approach and closely examine Intellectual Property policy and its impact on access to knowledge.

In the volume, Sudhir looks at issues through the prism of knowledge management. He traces the emergence of traditional knowledge policy and the scope for implementing related legislation. He invokes and elaborates on the ‘Offensive’ and ‘Defensive’ approaches to protect traditional knowledge.

Who Decides?

March 20, 2011 | Jayna Kothari

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.


Working Draft of the Rights of Persons with Disabilities Act, 2010: Does it Exceed its Mandate in Including Provisions Relation to other Disability Legislations?

February 24, 2011

CLPR, in collaboration with Centre for Internet and Society and Inclusive Planet, published comments on the Working Draft of Rights of Persons with Disability Act, 2010. Following this, CLPR also prepared a Note that critically reviewed the authorities under the proposed Act.

This is a brief Note on the Working Draft of the Persons with Disabilities Act dated 1.12.2010 (“Working Draft”) on the specific issue of how it relates to the three other disability legislations being the National Trusts Act 1999, the Mental Health Act 1987 and the Rehabilitation Council of India Act, 1992. From the Working Draft it is seen that there are several provisions which are contradictory to some of the provisions in these three legislations in significant ways. This Note also raises concerns as to whether the Working Draft has exceeded its mandate given by the Committee to only amend the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“PWD Act”) by attempting to draft a comprehensive disability law which includes even the other disability legislations.

Democracy and Constitutionalism in India: A Study of the basic Structure Doctrine.

August 6, 2009 | Dr. Sudhir Krishnaswamy

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.


Social Right Litigation in India: Developments of the Last Decade

August 6, 2007 | Jayna Kothari

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.


Criminal Law on Domestic Violence

November 5, 2005 | Jayna Kothari

This article analyses the role of the criminal law system in dealing with domestic violence. It argues that Section 498 A of the Indian Penal Code can only be effectively implemented if a new model of policing and a victim empowerment criminal law model is developed.


Right to Public Health

April 30, 2005 | Jayna Kothari

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.


Social Rights and the Indian Constitution

February 28, 2005 | Jayna Kothari

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.


A Right to Housing?

April 9, 2002 | Jayna Kothari

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.


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