Tag: Supreme Court

FRMB Act 2003: A Source of Fiscal Anxiety, not Prudence

Here, the Author examines the FRBM framework post 2009. It starts with a discussion of the evolution of the Act. It then discusses the logic of fiscal federalism adopted in the Indian constitution - along with its statutory contortions. It problematises the erosion of state fiscal autonomy in the context of the FRBM Act. Finally the piece speaks of the feasibility of balancing fiscal prudence with sub-national fiscal autonomy within the constitutional framework.

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Deliberation as a Constitutional Requirement: Examining the Judicial Review of Legislative Process in India (Part II)

This article, in two parts examines the constitutional implications of non-deliberative legislative processes in India, focusing on recent controversial laws like the electoral bonds scheme. It argues that deliberation is integral to parliamentary democracy and proposes that courts should be empowered to review legislative processes on grounds of non-deliberativeness to uphold constitutional values and improve democratic outcomes.

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Deliberation as a Constitutional Requirement: Examining the Judicial Review of Legislative Process in India (Part I)

This article, in two parts examines the constitutional implications of non-deliberative legislative processes in India, focusing on recent controversial laws like the electoral bonds scheme. It argues that deliberation is integral to parliamentary democracy and proposes that courts should be empowered to review legislative processes on grounds of non-deliberativeness to uphold constitutional values and improve democratic outcomes.

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One Giant Leap for Intersectionality: Analysis of M. Sameeha Barvin v Joint Secretary

The concept of intersectionality continues to elude judges. While the concept has been applied in a few Supreme Court judgements such as Patan Jamal Valli and Navtej Johar, it is still not easy to understand ‘how’ courts should apply intersectionality. In this article, the Author focuses on the M. Sameeha Barvin v Joint Secretary case from the Madras High Court that throws light on intersectionality. The Author argues that the case acts as an instructive manual on how courts can apply intersectionality in matters of discrimination.

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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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