Tag: Supreme Court

Outlawing Marital Rape: A recurrently validated crime

Till date, marital rape is not considered a crime in India. Through the article, the Author aims to explain why the judiciary needs to urgently intervene and declare marital rape as unconstitutional. Taking the marital status of the perpetrator and the victim as a defence, the consent of a woman to sexual intercourse has been repeatedly de-prioritised by various High Courts in recent times. Further, the Author analyses some cases to show how consent cannot be easily detected, but a look into the totality of the circumstances helps determine the same. Lastly, the Author provides suggestions for dealing with marital rape as an offence.

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The Delhi Water Crisis Case: Activism or Overreach?

The Supreme Court gave a landmark decision in the Delhi water crisis case. The Author attempts to decode certain aspects of the judgement, focusing on its directive to release Yamuna river water amid acute scarcity in the capital. It examines the legal intricacies surrounding the Court's jurisdiction, the implications for water management, and the dynamics of inter-state water disputes. Central to the discussion is the debate over whether the Court's intervention signifies judicial activism or exceeds its constitutional mandate. By analyzing these complexities, the Article underscores the judiciary's role in ensuring equitable outcomes and protecting fundamental rights in critical public interest matters.

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Javed Ahmad v. State of Maharashtra: The Intriguing Nexus Between Art. 21 and the Right to Dissent

The right to freedom of speech and expression under Art.19(1)(a) of the Constitution, one of the three stars in the ‘Golden Triangle’ of the Constitution, occupies a climacteric position in the Indian constitutional discourse. However, this right has always been linked to Art.19 of the Constitution, and seldom has this been seen in onjunction with one’s right to life and personal liberty under Art.21. In a recent decision of the Supreme Court, such an intriguing nexus between Art.21 and the right to dissent is brought up. Based on this decision, the article seeks to analyse the possibility and the pertinence of such a nexus.

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Wading Through the Fog – Discretionary Clubbing of Cases in India and the Right to a Fair Trial

The article delves into the contentious issue of case transfer and clubbing within the Indian judicial system, highlighting concerns of impartiality and procedural fairness. Justice Hilary Charlesworth underscores the need to eliminate non-legal considerations influencing judgments, echoing international human rights standards. Divergent judgments and discretionary powers raise alarms of potential violations of Article 21 of India’s Constitution and ICCPR Article 14. Drawing insights from international jurisprudence, the article advocates for well-defined criteria to govern case consolidation, ensuring judicial economy and alignment of interests. Upholding procedural fairness is imperative to mitigate arbitrariness and uphold human rights standards in India’s legal landscape.

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Challenges and Prospects of Transgender Reservation: A Call for a Universal Approach

The article aims to address the issue of Transgender reservation. The Indian Constitution mandates affirmative measures for safeguarding the interests of vulnerable communities and preventing exploitation. Nevertheless, the author is of the opinion that legislative efforts regarding reservations for the transgender community have been fragmented and incoherent. The author suggests that it is now imperative to grant horizontal reservations for the transgender community. Furthermore, the author stresses the requirement for distinct reservations due to the unique challenges faced by the transgender community, advocating for horizontal reservation, that is flexible and self-adjusting. Finally, the article calls for acknowledging and upholding the legitimate claims of the transgender community to foster a fairer and more equitable society.

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From Bench to Society: Assessing the Impact of Judicial Ideology

The article explores the concept of judicial ideology and the three distinct methods employed to measure it, emphasizing the significance of addressing this issue in contemporary legal discourse. Judicial ideology, defined as the set of beliefs and principles guiding judges' decision- making, is a critical factor influencing legal interpretations and decisions. While proxy measures, behavioral assessment, and the transplanting of ideology measures offer ways to gauge judicial ideology, their applicability and limitations vary across different legal systems. As judicial ideologies evolve, the integrity of an independent judiciary is at stake, prompting a call for acknowledgment and definition of these ideologies to ensure fairness and equal protection of rights within the justice system. Ultimately, a comprehensive understanding of judicial ideology is essential to create a legal system that serves all members of society.

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Navigating the ‘Neutrality’ Quagmire: Unpacking Subhash Desai v. Principal Secretary and the Nabam Rebia Conundrum  

The recent judgment of the Supreme Court in Subhash Desai v. Principal Secretary, Governor of Maharashtra & Ors has lately been in news due to its upcoming hearing before a 7-judge-bench. Subhash was set in the context of the political controversy regarding the intra-party dissent and subsequent alleged defections that took place within the Shiv Sena Legislative Party in Maharashtra. This article critically analyses the position propounded in Subhash regarding the reference of Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly to a larger bench. Ultimately, this article argues that there are several inconsistencies present in the application of the reasons specified for referring Nabam to a larger bench. Further, it contends that the interim measure proposed in Subhash is unconstitutional in nature and thus, should be set aside.

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Unconstitutionality of Section 15 of the Hindu Succession Act, 1956- Discrimination in the Order of Inheritance

In this Legislation Review, the Author has explained how Section 15 of the Hindu Succession Act violates Articles 14 and 15 of the Indian Constitution, rendering it unconstitutional. This has been done in light of a recent petition to the Supreme Court. While the Act claims that the order of inheritance is based on the proximity of the relationship, Section 15 does not adhere to this principle. This also goes against the principles of justice, equity, and good conscience. Thus a new scheme for Section 15 has been proposed.

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Re-evaluating the U.S. Judgement on Affirmative Action: A need for reconsideration?

The recent US Supreme Court verdict asserting race-based reservation unconstitutional has ignited widespread criticism globally. The article delves into analyzing the implications of the judgment on American society and its education system. Drawing parallels with the trend of affirmative action in India, the authors suggest that the US Supreme Court should draw a comparison between the discrimination faced by untouchables and blacks in India and the US respectively. Hence, the authors advocate for reconsidering the recent judgment, arguing that the previous system of affirmative action aligns better with the principles of justice and equality.

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Demonetization Verdict and its Deep Overtones: It’s the time to Prioritize?

The authors, in this article, discuss the Supreme Court's growing backlog of cases. Through the example of the demonetization verdict, the authors highlight the need for prioritizing substantial legal and constitutional matters. They have also discussed recent reforms made to the case listing system and the need for broad-based reforms to address the issue of backlog.

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Progressive Constitutions

The author in the piece argues that progressive constitutions should keep pace with societal changes, avoid abuse, and ensure citizen participation. The discussion is in light of the recent events in Chile and India show erosion of constitutional principles, compromising democratic institutions and principles of federalism.

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Critiquing The Existing Literature By Analyzing The ‘Surname’ Debate

The author in this article highlights the Hon'ble Apex Court's interpretation of the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956, with regard to the biological mother’s right to decide the child's surname. The article also addresses the question of whose surname will prevail in light of a judgment of Italian Constitutional Court and critiques existing pieces on the Akella verdict.

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