Indian Constitutional Law Research Articles

The Privacy–Equality Synthesis: Framing Reproductive Rights in India

Abstract Reproductive rights are typically framed as engaging one’s constitutional right to privacy. However, with increasing contestations around the right to privacy, the right to equality has been proposed as an alternate frame. Often, a choice tends to be constructed between the two. Challenging this, some argue for both privacy and equality to be included in framing constitutional reproductive rights. This approach places emphasis on the combined presence of the two rights. Indian constitutional law offers a third, distinct possibility, moving beyond mere rights addition to reading rights in ‘synthesis’. The synthesis pays close attention to the site of dynamic rights interaction, highlighting the effects of the rights on one another. This method of rights analysis, and its latent potential, remains dormant within constitutional doctrine in India. Resurrecting it, and studying examples of abortion and maternal mortality, I frame reproductive rights through the synthesis between privacy and equality. In functioning as a magnifier, a catalyst and a backstop, the synthesis alters the constitutional imagination of reproductive rights in India while, simultaneously, advancing an insightful paradigm for constitutional reproductive rights globally and rights analyses generally.

The Colorful Tapestry in Indian Legal System: Delving into Colorable Legislation in India

The Colorful Tapestry in Indian Legal System: Delving into Colorable Legislation in India

The Emerging Civil Right to Counsel in India: On ‘Enforceable’ Directive Principles

Abstract This Article challenges one of the most robust commonplaces in the study of Indian Constitutional Law, viz. that Directive Principles of State Policy under Article IV cannot be enforced by the judiciary. Through a careful reading of the Constitution’s text and structure, as well as an investigation of relevant precedents within India, the United States, and other common-law jurisdictions, it argues: (1) Article 39A commands ‘the State’ to promote justice on the basis of equal opportunity, in particular through legal services enacted through legislation or other methods; (2) The judiciary is part of the State that Article 39A commands; (3) Courts, then, must use their powers to fulfill Article 39A even if that Article is not judicially enforceable; (4) The judiciary has authority over the maintenance and integrity of the legal system; (5) It also has its own authority to spend money to maintain and improve that system; and (6) it has the authority to allocate funds to pay lawyers and other legal personnel in civil cases if it believes that doing so will strengthen the legal system and fulfill its Article 39A mandate. The Constitution’s promise of the right to counsel in civil cases thus lies well within the judicial power to accomplish. The Article suggests areas where the judiciary should use this power, e.g., family law, housing, and the environment. It also raises important questions about the very nature of Directive Principles and the meaning of judicial ‘enforcement.’

Significance of Compensatory Jurisprudence Under The Employees Compensation Act, 1923

The basic rights contained in the Constitution of India would be useless unless and until concrete means to ensure them were implemented. There can be no justice if there is no remedy (Ubi jus ibi remedium). The term “compensation” refers to making amendments for a loss. Crime is more than simply a breach of the law; it also causes harm to victims and their families, including economic loss, emotional distress, and bodily, psychological, or intellectual injury. Crime has a wide variety of consequences for victims and their families, ranging from major injuries to minor disruptions. The concept of victims’ compensation is a well-established legal principle that is implemented within the framework of traditional civil courts. The court’s adoption of compensatory jurisprudence, guided by the principles of human rights philosophy, serves as a positive indication of its commitment to safeguarding the fundamental rights to life and personal liberty for all individuals, even in situations when there is a lack of explicit Constitutional provisions or established legal precedents. There is evidence that some groups of victims of crime were reimbursed, either by the perpetrator, their relatives, or the sovereign, even in ancient times. The right to compensate is a relatively new addition to Indian Constitutional law. This notion just began to gain traction in India under Constitutional law in the late 1980s. This was an innovative notion devised by the Indian Judiciary to ensure justice. Compensation is often granted based on the claimant’s entitlement. Modern justice is more concerned with delivering assistance to victims than with the requirements of legal principles. The right to compensation for violations of basic rights comes from the rights that were infringed, which shall be further addressed in the research.

Constitutional Morality Vis-À-Vis Cultural Relativism in India

Objective: The objective of the instant paper is to examine and potentially support the claim that fundamental rights guaranteed by the Indian Constitution, such as freedom of religion, despite reservations from cultural relativists, can be seen as emerging elements of constitutional morality. This examination will be based on a comprehensive analysis of judicial decisions, scholarly publications, and juristic opinions. Methodology of the Study: The study will analyse relevant judicial decisions, including landmark cases related to fundamental rights, especially freedom of religion, to understand how the Indian judiciary has interpreted and applied these rights. This will involve examining how the courts have balanced cultural relativism concerns with the principles of constitutional morality. Conclusion: The paper emphasizes the importance of universal human rights and argues against dismissing them due to their Western origin. It advocates for the acceptance of human rights across all cultures. The text acknowledges the complex interaction between law and religious culture, with an emphasis on individual morality. It highlights the value of human dignity within the Indian Constitution, aiming to balance individual rights with the state's duty to ensure equality. The paper also prioritizes women's rights and opposes customs that infringe upon them. It mentions Article 25 of the Indian Constitution, which secures freedom of religion with some limitations. In summary, the passage supports universal human rights, addresses the challenges at the intersection of law and religious culture, and stresses the importance of individual rights and dignity within constitutional morality. Result: The findings of this paper will aim to provide a nuanced understanding of the relationship between fundamental rights, cultural relativism, and constitutional morality in the Indian context. It will shed light on whether fundamental rights, especially freedom of religion, can be considered as emerging elements of constitutional morality despite reservations from cultural relativists. The study will present an analysis of judicial dicta, scholarly publications, and juristic opinions to support its conclusions and contribute to the ongoing discourse on these complex and significant issues within Indian constitutional law.

Constitutional Morality: An Indian Framework

Abstract Over the last dozen years, Indian courts have formulated the idea that, inherent in the Indian Constitution, lies a type of morality referred to as constitutional morality (CM). CM acts as an interpretive device to help courts ascertain the meaning of the Constitution’s text in contested cases. Fundamental questions around CM, however, remain unaddressed: What are the methodological moves that courts have adopted to deploy CM in case law? What judicial premises and logics are at work in CM? And, given CM’s path dependence, what implications does CM have for Indian constitutional law and theory? This Article attempts to address these questions, using three levels of analysis. First, it explores the intellectual history of CM to ascertain how B.R. Ambedkar—the chief draftsperson of India’s Constitution—conceptualized it. Second, it develops a framework that situates CM as understood by Indian courts. Courts have given two distinct meanings to CM: (i) CM as a fiction that anchors the meaning of “morality” understood as a restriction to fundamental rights, and (ii) as an obligation on institutional actors to follow ethical political practices even when the law does not guide their conduct. This Article charts out both accounts and analyzes them on their own terms. Finally, it sketches two problems that the development of CM presents for Indian constitutional theory. As the Indian Supreme Court gears up to commence hearings on whether courts may continue to use CM as an interpretive device, the normative attractiveness of CM will be under the scanner. The framework and analyses I have developed can act as a foundation on which critiques and defenses of CM can take place.

The Public Trust Doctrine in Indian Constitutional Law

The Public Trust Doctrine in Indian Constitutional Law

On Women, Equality and the Constitution: Through the Looking Glass of Feminism

This article explores the approaches that have been adopted by the Supreme Court and High Courts in constitutional cases on sex discrimination. It begins by reviewing and evaluating two competing models of equality-formal versus substantive equality. The authors illustrate the extent to which Indian constitutional law is informed by a formal model of equality, and how attempts at moving towards a more substantive understanding have been thwarted by the deeply embedded assumptions regarding equality as formal equality. They examine three competing approaches to the question of the relevance of gender difference: protectionist, sameness, and corrective. Finally, they contextualise the Supreme Court and High Court case law on gender discrimination within these debates.

Death by Paperwork: Determination of Citizenship and Detention of Alleged Foreigners in Assam

In late 2019, worldwide attention turned to India as masses mobilized across the country to protest an amendment to India’s citizenship laws that was criticized for discriminating against Muslims. Lesser known, however, is that another process to determine Indian citizenship that had been underway for decades in the northeastern state of Assam had gained steam in recent years. Assam, which shares a 263-kilometer (163-mile) border with Bangladesh, has long been a site of fuid cross-border migration and ethnic tensions. The greatest surge of migration into Assam occurred in 1971 when over 10 million refugees fed modern-day Bangladesh to escape its war for independence from Pakistan. In the decades after the 1947 Partition, Assamese leaders who rejected the changing ethnic composition of the state stoked a popular movement aimed at detecting, disenfranchising, and deporting “foreigners” from Assam. Following years of violent unrest, the Government of Assam and the All Assam Students Union (AASU) reached an agreement with the Indian government in 1985 to provide amnesty to anyone who had arrived in Assam before March 24, 1971. While anyone born in India prior to 1987 was granted Indian citizenship, those born in India after 1987 could receive citizenship by birth only if at least one parent was an Indian citizen. On August 31, 2019, upon mandate by the Supreme Court of India, Assam published the National Register of Citizens (NRC), which is a list of people residing in Assam who have been deemed Indian citizens. But the NRC excluded over 1.9 million people, many of whom likely satisfy the requirements of Indian citizenship. To be included in the NRC, all residents of Assam were required to submit documentary evidence of “legacy” showing that they or their ancestors lived in Assam before March 24, 1971. Persons who were excluded from the NRC can appear before quasi-courts known as Foreigners Tribunals (FTs) to contest their adverse citizenship determination. To be successful, however, they must provide significant and often cumbersome paperwork and overcome the arbitrary whims of FT officers. Under the applicable law, the Foreigners Act, 1946, the purported foreigner has the burden of proving that they are an Indian citizen. This report finds that numerous facets of the citizenship verification process contravene international treaties and Indian constitutional law, including due process, fair trial rights, equality provisions, and norms against arbitrary detention. The functioning of FTs are problematic for the reasons described below and deviate from international and Indian law in the following ways:

Religion and origins of Indian constitutional law

Religion and origins of Indian constitutional law

The Many Meanings of Constitutional Morality

This paper examines the different meanings of constitutional morality in the Indian constitutional law context. It traces the doctrine's origins to George Grote’s history of Greece and explains how it was in vogue in the U.S. when Ambedkar arrived there to study at Columbia University. It was at Columbia that Ambedkar took courses on Greek history, where he might have been exposed to Grote’s writings. In the Constituent Assembly, Ambedkar justified including mundane details of administration in the Constitution by arguing that India’s people lacked a culture of constitutional morality, that democracy was a “top-dressing” on an otherwise undemocratic Indian soil. The paper then examines two contemporary uses of constitutional morality in Indian constitutional law: first, as a counterpoise to popular morality (in judgments concerning homosexuality, adultery, rape, and the Sabarimala temple), and second, as a reincarnated basic structure doctrine, involving an analysis of the “spirit”, “soul” or “conscience” of the Constitution. This paper then concludes by discussing whether constitutional morality can be considered to be dangerous as Attorney General KK Venugopal has argued.

Back to the Future? Temporality and Society in Indian Constitutional Law: A Closer Look at Section 377 and Sabarimala Decisions and the Genealogy of Legal Reasoning

‘On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality’. B. R. Ambedkar’s famous last speech to the Constituent Assembly on 25 November 1949 still resonates within contemporary Indian constitutional law, and even more so his following interrogation: ‘how long shall we continue to live this life of contradictions?’ Prima facie societal, the contradiction is however also a temporal one, Indian constitutional law being founded on both the British traditional idea of ‘continuum’ and the American inspired revolutionary principles of ‘pursuance’ of a novel legal and social order. Two recent Indian Supreme Court decisions pertaining to the de-criminalisation of same sex relations ( Navtej Singh Johar v. Union of India) and for the right of menstruating women to enter the Sabarimala Temple in Kerala ( Indian Young Lawyers Association v. Union of India) offer through their differing and sometimes dissenting opinions a glimpse at those temporal contradictions. Through an analysis of both decisions and in particular that of Chandrachud J. and Malhotra J.’s judgements, this article seeks to highlight two radically differing conceptions of temporality applied to constitutional issues, which can themselves be linked back to the transposition of the legal positivist discourse in India within the colonial era: on the one hand, an attempt to continue Common law’s empirical-based tradition and on the other hand, an (apparently) a-historical perception of Law drawn from neo-Roman civilian legal discourse and later normative positivism. If both branches of legal reasoning aim at protecting minorities’ rights, the value they inscribe to History within the realm of Law cannot be further apart.

Human Rights Law and Practice

The book, Human Rights Law and Practice, critically examines the evolution of contemporary human rights law and practice with special reference to India. It evaluates the ongoing discourse on various issues relating to life, liberty, equality and human dignity and their reflections in international human rights law referring the state practice through Constitutional guarantees, judicial decisions as well as through enacting appropriate legislations. The book is divided into nine Chapters. The Chapter 1 is preliminary which discusses theoretical foundations of human rights law. The Chapter 2, namely, “international bill of human rights” demonstrates various facets of civil and political rights as well as economic, social and cultural rights. While the Chapter 3 is devoted to discuss the importance of human rights law in protection against inhuman wrongs, the Chapter 4 demonstrates a large number of debates oncerning human right to development and protection of environment. The Chapter 5 explores various issues relating to human rights in Indian Constitutional law, while the Chapter 6 discusses role of human rights law in protecting women and children. The scope and ambit of the rights of indigenous peoples and minorities have been debated during last few decades. Therefore, the Chapter 7 discusses the function of human rights law for protection of indigenous peoples, whereas the Chapter 8 is devoted to discuss the contour of the human rights law that deals with minority protection. The persons with disabilities have not only been discriminated against in almost all societies throughout history but they are even excluded from the societal mainstream and denied their basic human rights. Therefore, the Chapter 9 examines the utility and justifications of human rights law in protecting the rights of persons with disabilities. Thus, the division of Chapters of the book is excellent as the initial Chapters have discussed mostly individual rights and rest of the Chapters have thrown light on the collective rights of women, children, minorities, indigenous “peoples” as well as the right to have good environment and balanced development.

‘Non-Amending’ Provisions in a Constitutional Amendment: A Practical Application to the ‘Transition Period’ under the 101st Constitution Amendment Act, 2016

Abstract Amendments to the constitution and the jurisprudence surrounding the constituent power of Parliament have traditionally dominated the field of Indian constitutional law and constitutionalism. Most debates in this field have been restricted to issues like the source of the amending power of Parliament, express, and implied limits on the power to amend, and so on. In an attempt to revert to the core principles of constituent power, this paper attempts to answer more basic but extremely compelling constitutional questions: to qualify as an amendment to the constitution, how exactly must an amendment affect the text of the constitution? If an amendment does not change the bare text of the constitution in any way, but merely affects the overall constitutional scheme, can it still be accorded the status of a constitutional amendment? Locating this issue in the extension of the compensation period under the GST regime in India, this paper seeks to provide an answer to these questions by using a practical setting. First, the source of parliamentary competence to bring about such an amendment is traced. By the use of constitutional theory and principles of statutory interpretation, is then demonstrated that such ‘non-amending’ provisions are undoubtedly an inherent part of the constitutional regime. Lastly, this paper proposes a model that covers both legislative powers of Parliament, that is, constituent power and ordinary law-making power. In the nature of a walk-through, this model explains the legislative process to be followed to bring about an extension of the compensation period.

A Study of Judicial Responses relating to Human Rights in India

India is one of the largest democratic & sovereign countries in the world in which the Indian judiciary is also the integral foundation & structural pillar along with its unification & independency in the democratic system. Indian judiciary has the responsibility to deliver the fair & satisfactory justice to the people concerned in according to the provisions of Constitution of India as a protector of human rights which have been guaranteed as justiciable fundamental rights under Indian Constitutional Law by way of judicial responses but the Indian judiciary & judicial responses are subject to the exception and criticisms because both the same create the deepest effects & consequences on person individual & our society in the presence of rule of law for the purposes of the largest interest of public peace & fulfillment of the long cherished dream of welfare state with a view to accomplish the spirit of Constitutional Law of India and intention of the legislators. The responsibility for the enforcement of fundamental rights as human rights has only been furnished to the highest Court of India (Supreme Court under article-32) & High Courts in States (under article-226) of the Constitution of India. The People of our society repose the exclusive believe on the judiciary but the same is not free from the exclusions & exceptions it is absolutely relevant to place over here that delayed justice denied justice it has rightly said therefore due these reasons, in today’s scenario, in the world of globalization, people somewhere are losing their confidence and credibility because of the disadvantages exclusions & exceptions with the inclusion of other connected things which are not the good results for us, society, nation & the world. Corollary with regard to this, in according to the need of hour, the judicial accountability has not only become essential but also compulsory & mandatory in order to the answerability towards the paramount of transparent democracy under the Constitution of India where any person, society or system can never be free from the exceptions in the interest & welfare of world human, living creatures & creation.

Framing religion in constitutional politics: a view from Indian Constitutional Law

ABSTRACTModern constitutional power is organized to secure ever-expanding state control over vast swathes of social and cultural life. Though religion is classically thought to be a domain of human experience that is to be left independent of state power, it is in fact deeply structured by contemporary government. Against this background, this paper examines the manner in which the Indian constitutional state exercises its power over religion and religious practices. It does so by arguing that the epistemic forms through which control is exercised over Indian religious practices operate to misunderstand, distort and flatten out local conceptions of religion, spirituality and ethical striving. That is, by following classic decisions on the bounds of religious freedom as decided by the Indian Supreme Court, it is argued that religion understood primarily as traditions of continued inter-generational practice are transformed in judicial description as practices founded in an imagined doctrinal foundation. This judicial transformation of religion is presented as being counter-intuitive to the nature of religious experience of almost all religious traditions in the Indian sub-continent. And in turn, this is presented as a challenge to secure the allegiance and consent of the Indian people to the ever-widening reach of state power over religion in contemporary India.

Where’s the party?: towards a constitutional biography of political parties

ABSTRACTAlthough the original text of the Indian Constitution did not mention political parties, parties are one of the most crucial institutions for the functioning of Indian constitutional structures. This paper is one of the first attempts to examine them through a constitutional lens in India. I look into the founding debates to inquire how the framers understood the relationship between party dynamics and constitutional design. These debates demonstrate a profound relationship between political parties and constitutional structures, which help us move towards a realist account of Indian constitutional law and demonstrate various modes and functions of constitutionalization of political parties. Moving beyond founding, I will discuss the causes of the anti-defection amendment (the only provision in the Constitution that mentions the term “political party”) and the way it fundamentally transformed the constitutional characterization of our democracy – from a candidate-based representative democracy to a party-based one. This constitutional transformation causes an inconsistency in the Indian law of democracy: while the anti-defection jurisprudence recognizes parties as the fundamental unit of representation, general election law continues with the old conception of candidates as the primary representative unit. This difference affects a wide array of issues ranging from party funding to intra-party democracy.

Context as Pretext: Presidential Discretion in India

Despite being one of the most contested themes of Indian constitutional law, debates on presidential discretion have generally remained inconclusive owing to the fair degree of plausibility of both the contending standpoints on the subject. It is undeniable that Indian parliamentary democratic system has been designed on the model of British parliamentary system in which the crown is absolutely bereft of any discretionary power and has to discharge her duties only on ministerial advice. But at the same time, it is equally true that the circumstantial dynamics of Indian political system is markedly different from the British political system in many respects. Moreover, in interpreting the relevant constitutional provisions and figuring out suitable conventions on presidential powers and functions, the Indian juridical and academic scholarship has not been as inimical to an iota of discretion for the president as has been the British to their crown. Yet, keeping in sync with the spirit of the parliamentary system, the Indian Constitution does not provide any explicit discretionary power to the president. Whatever discretionary power a president may derive is purely circumstantial in nature, and precedents vary widely. The article, therefore, seeks to provide a critical analysis of certain circumstances in which the president in India could exercise powers on his discretion either due to absence of a ministerial advice or, in rarest of the rare cases, to obtain a better outcome than the one coming out of ministerial advice.

Rights of Minorities to Establish and Administer Educational Institutions in India: Some Constitutional Reflections

Minority rights have been accepted into the cannons of both the international human rights law and the constitutional laws in most of the post-colonial nation States. Minorities world over – religious, linguistic and ethnic – have been constitutionally recognized as groups needing special protection and safeguards from the majoritarian attitudes or policies of discrimination towards their legitimate interests. Indian Constitutional law is one of the best in the world to provide a detailed catalogue of human rights to which every individual, including those belonging to religious and linguistic minorities, is entitled to enjoy without any discrimination. Besides this, every minority group enjoys religious, linguistic, cultural and educational rights. This paper deals with the rights of minorities to establish and administer educational institutions under the Constitution of India. It explores the Constituent Assembly debates and text of the Indian Constitution on Article 30, which grants minorities right to establish their own educational institutions. Further,the paper looks into the various Supreme Court decisions on the subject in order to better understand the jurisprudence of this fundamental right. The debate in the Constituent Assembly was full of containment as the draft articles on the minority educational institutions were criticized as being group rights and were argued as being against the concept of democracy, justice, and secularism. Also, it was feared by some that it might underpin the national unity. This is one of the reasons behind ambiguous nature of this provision. The biggest loophole of this provision is that it does not define the term “minority”. Despite these problems,the paper argues that Article 30 offers an important space to the minorities to shape their educational situation in accordance to their desires and should be encouraged as it helps the State in dealing with culture-specific factors behind their educational backwardness.

Nature of Justice Envisaged Under Preamble to Constitution of India

Among the competing principles of justice, picking one is an horrendous assignment. To address such problem it is imperative to understand the society that one belongs. Preamble to Constitution of India articulates the society that people of India have promised to themselves and it stands in conformity with the Rawlsian theory of Justice. Under Indian constitutional law, an egalitarian society, not utilitarian or libertarian society, where the individual and protection of its interests is envisaged.