Tag: history

Is the Constituent Assembly Still Supreme? Revisiting the Bar of Article 329

Members of the Constituent Assembly of India.

The Constituent Assembly encapsulated the separation of power in numerous provisions to prevent the eclipse of liberties of the citizens. In this architecture, certain provisions like Article 329 stand as near-impenetrable walls, barring judicial scrutiny of electoral and delimitation matters. These provisions which once vanguard the liberties of citizens, now safeguards potential arbitrariness from challenge. The author interrogates this constitutional paradox and navigates the tension between reverence for founding texts and the evolving demands of constitutional morality.

0

Lost in Translation: The Constitutional Case Against Hindi Imposition

A protest against imposition of Hindi in Karnataka.

In recent years, the Union Government’s push for Hindi in governance and education, particularly through the National Education Policy, has triggered constitutional concerns. Though framed as promoting multilingualism, the policy's implementation effectively coerces non-Hindi speakers, especially in Tamil Nadu, into linguistic assimilation. This article argues that such imposition violates fundamental rights and fails the proportionality test outlined in Puttaswamy, undermining India’s federal structure and commitment to linguistic diversity.

0

Expanding Article 21: The Implied Incorporation of Substantive Due Process and its Challenges

February 8, 1947: Indian statesman Jawaharlal Nehru (1889 - 1964) moves the resolution for an independent republic in a historic moment at the Constituent Assembly in New Delhi.

This article explores Supreme Court's implied incorporation of due process within Article 21. Though the text of Article 21 merely mentions ‘procedure established by law,’ the author argues that the recognition of unenumerated rights can be justified through historical intent and the relationship between Fundamental Rights and DPSPs. The author however also shows the challenges with such an approach like excessive judicial discretion, lack of hierarchy among rights, and conflation of Articles 14, 19, and 21.

0

70 Years of Ram Jawaya Kapur: Analysing the Diminishing Influence of Indian Legislature in Contrast with ‘Executive Aggrandizement’ in Constitutional Governance

This article critically examines India's diluted separation of powers, stemming from the *Ram Jawaya Kapur* (1955) ruling that favored executive efficiency over strict separation. It argues that this model, particularly with majority and coalition governments, leads to legislative undermining through mechanisms like bypassing parliamentary scrutiny (guillotine, reduced committee referrals). The article concludes by advocating for strengthening legislative oversight mechanisms to counter this "silent shift" towards executive aggrandizement.

0

Balancing between Tolerance and Reform: A Comparative Analysis of Freedom of Religion in India and the USA

This article attempts to understand the differences between the concept of religious freedom in India and the United States. It seeks to locate these differences in the context of the nature of religion in the two countries and its relationship with society. Moreover, it highlights the changing social realities which necessitate a review of the secularism in these countries.

0

Pardon the interruption: Silencing of judicial review by §472(7) of BNSS, 2023 [Part II]

This two-part essay examines Section 472(7) of the Bhartiya Nagarik Suraksha Sanhita, 2023, which seems to bar judicial review of constitutional pardon powers of the executive. It highlights how the provision undermines constitutional principles, including separation of powers, rule of law, and fundamental rights. The first part discusses the current, pre-BNSS, judicial and constitutional framework, emphasizing the need for a limited judicial review to prevent executive arbitrariness. The second part critiques the new provision and proposes a harmonized interpretation to preserve judicial oversight and safeguard democratic principles against executive overreach.

0

Pardon The Interruption: Silencing Of Judicial Review By §472(7) Of BNSS, 2023 [Part I]

This two-part essay examines Section 472(7) of the Bhartiya Nagarik Suraksha Sanhita, 2023, which seems to bar judicial review of constitutional pardon powers of the executive. It highlights how the provision undermines constitutional principles, including separation of powers, rule of law, and fundamental rights. The first part discusses the current, pre-BNSS, judicial and constitutional framework, emphasizing the need for a limited judicial review to prevent executive arbitrariness. The second part critiques the new provision and proposes a harmonized interpretation to preserve judicial oversight and safeguard democratic principles against executive overreach.

0

Up ↑