Publications

Executive Director at CLPR and Senior Advocate at the Supreme Court, Jayna Kothari pens her thoughts about the reliance of our courts on astrology, horoscopes, and the Manusmriti for making observations that indirectly deny women’s equality & dignity in society.

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 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 Deccan Herald, Thulasi K Raj argues that Supreme Court needs to introspect the decisions taken in the contempt case on Prashant Bhushan.

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.

In this Deccan Herald piece, Kruthika looks at the Indian Constitution making process as a project grounded in an argumentative tradition.

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.

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.

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.

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.

Sudhir Krishnaswamy writes for The Print on the judgement in Dr. Subhash Kashinath Mahajan vs. The State of Maharashtra. Sudhir reviewed and assessed the judgment and public reaction to it. He argues that this case is bad in law and does not meet the standards of judicial decision making.

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.

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.

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 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.

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.

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.

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.

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 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.

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.

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.

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.

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.