ABOUT ICLR

The Indian Constitutional Law Review is a quarterly law review published by Agradoot Web Technologies LLP in an endeavour to promote the growth of Constitutional Law in India by quality contributions from students, academicians, bar and the bench.

Edition I: January 2017

THE EDITORIAL BOARD

  1. Sameer Avasarala, Editor-in-Chief
  2. Samiya Zehra, Managing Editor, ICLR
  3. Shashank Kanoongo, Managing Editor, IJLMS
  4. Devina Srivastava, Executive Editor, ICLR
  5. Shruti Sharma, Executive Editor, IJLMS
  6. Sushma Reddy, Associate Editor
  7. Gayathree Kaliyatt, Associate Editor
  1. Shreyangshi Gupta, Member Editor
  2. Rishabh Bhojwani, Member Editor
  3. Amit Singhal, Member Editor
  4. Mahvish Shahab, Member Editor
  5. Mrudula Sarampally, Member Editor
  6. Swapnil Tripathi, Member Editor
  7. Kriti Johri, Member Editor
  8. Yavanika Shah, Member Editor
  9. Shreeyash Lalit, Member Editor

THE ADVISORY COUNCIL

  1. Dr. Janhavi S.S., Honorary Member
  2. Dr. Satish Gowda, Honorary Member
  3. Adv. S. Basavaraj, Honorary Member
  4. Dr. Atmaram Shelke, Member
  5. Adv. Manjeet Kumar Sahu, Member
  6. Prof. Natvika Singh, Member
  7. Prof. Sanya Yadav, Member
  8. Prof. Niteesh Upadhyay, Member
  9. Prof. Mohd Imran, Member
  10. Ms. Sneha Priya, Student Advisor

Editorial Note

The Editorial Team of the Indian Constitutional Law Review is pleased to bring forth the first edition of the journal. We seek to place on record our gratitude firstly, to all contributors whose valued articles and essays have brought light and immensely enhanced the value of the First Edition of the Journal. Having received over thirty entries from the widest areas and pockets of Constitutional Law, the Reviewers had to pick the Top Ten to publish in the First Edition of the Journal. Noteworthy contributions were received from Advocates and Professors on varied issues. The Student Community has given us valuable contributions with students from various National Law Universities and other law schools contributing to the First Edition.

Editorial Note

ARTICLES: EDITION I

1. Transperancy: A Threat to 'Independence of Judiciary'?

Adv. Shailendra Kumar, Delhi High Court

This article makes an attempt to investigate the current debate on transparency in the judicial appointments i.e. whether it lacks the transparency, indeed or is it merely alleged? By examining a number of cases, it weighs the judicial stand and leanings of the Supreme Court of India on the issue of transparency and also highlights the dual stand of the Supreme Court of India while adjudicating the issue of transparency for different institutions and judiciary. The article also attempts to explore the probable reasons of the deliberate secrecy adopted by the judiciary in the appointment process. It argues in its conclusion that the transparency in the judicial appointment shall strengthen the institution as well as the ‘independence of judiciary’, a basic feature of the constitution.

Full Article
2. Shah Bano Begum & After

Prof. Vijay Pal Singh, Jagannath University, Harayana

The Preamble of Indian constitution resolves to constitute a secular, Democratic Republic. This means that there is no state religion and that the state shall not discriminate on the ground of religion. In criminal matters there is no discrimination but when we talk about personal (marriage, divorce, succession etc.) matters there is no similarity. This article explains how the Supreme Court directed the Indian Parliament to make laws in this regard. After this case the situation of Muslim women’s and political scenario in India changed, some of situations defined under the present article.

Full Article
3. Can Secularism be a Constitutional Reality?

Swagat Baruah, Gujarat National Law University

Although the 42nd Constitutional Amendment, by inserting the word ‘secular’ in the Preamble, hasasserted that India is a secular nation, the relationship between the State and religion has not yet been defined but only interpreted. A cloud of great confusion still lurks amidst the current debates on religious intolerance and secularism in India as to how the social milieu might interpret secularism. The Supreme Court has consistently taken up the task of defining secularism and has tried giving it a wide ambit of reasoning and interpretation, however, in a fortuitous misfortune, this has also created the great confusion that exists even today. This observation raises the question, should the Supreme Court and the Parliament make efforts in defining Indian secularism or even the idea of it? The Constitution has laid down secularism as a goal towards which all activities of the nation must approach, however silence on its connotation remains long debated…

Full Article
4. Meaning & Scope of Misbehaviour in Removal of Judges: A Critique

Jayant Singh, National Law School of India University, Bengaluru

The Indian judicial machinery, especially the superior courts, enjoy considerable respect from the people of India for impartial of justice. However, occasional allegations of involvement of judges in unethical acts has threatened this very reputation that the judges enjoy. The Constitution of India provides for removal of judges under Articles 124(4) and 217(1)(b). The present understanding of misbehaviour is biased in favour of judges and makes removal of judges on valid grounds highly unlikely. This research paper critically analyses and comprehensively explores the meaning and scope of misbehaviour in context of removal of judges. It further examines the Constitutional provisions for removal of judges of superior courts in light of past instances. Inclusion of provision of misbehaviour was inspired by the Australian Constitution as is explicit in the Constitutional Assembly Debates. However, the Constitution does not define the meaning of the term. In sixty-six years of working of this Constitution, no judge has ever been removed from office. All the three instances when they were sought to be removed, it was only with respect to financial misdoings of such judges. However, one instance involving Justice Asok Kumar Ganguly and the other involving a judgment of Allahabad High Court in Raja Khan v. U.P. Central Sunni Waqf Board seems to indicate that current understanding of misbehaviour as a ground of removal of judges needs to be
re-examined. It is argued that our current understanding of misbehaviour with respect of removal of judges needs to be widened to include those aspects which traditionally have failed to get sufficient attention of both legislature and judiciary. Unwelcome sexual behaviour and favouritism are two of myriad aspects that can be covered under this head. A relook at the present provisions and formulation of clear cut guidelines would be a good place to start.

Full Article
5. Judicial Review: A Comparative Study

Adv. Mohit Sharma, High Court of Himachal Pradesh

Supremacy of law is the essence of Judicial Review. It is the power of court to review the actions of legislature, executive and also of the judiciary. It is the power to scrutinise the validity of law or any action whether it is valid or not. It is a concept of Rule of Law. Judicial Review is the check and balance mechanism to maintain the separation of powers & separation of functions. Judicial Review is meant to uphold the constitutional sanity over the popular will, where the popular will transgresses the constitutional limitations. The Constitution is intended to operate as a limitation upon the powers of the various organs of the State. The question which naturally arises is by what machinery or means these limitations are to be enforced and maintained against inroads or encroachments by those organs. Under those Constitutions where Judicial Review exist, this guardianship of the Constitution belongs to the
Courts. Judicial Review power of the State exercisable by the Courts under the Constitution as sentinels of Rule of Law is a basic feature of the Constitution.

Full Article
6. Muffled Free Speech: Constitutionality of Bans due to hurt to Religious Sentiments

Yashika Jain, National Law University, Delhi

Wendy Doniger’s The Hindus: An Alternative History, a book that was aimed at exploring realities of Hindu culture and deciphering the complexity of its traditions, was recently withdrawn from the markets by its publishers due to the case filed against it on account of the standard allegation: Hurting the sentiments of Hindu Community. India cringed at the news of ever-increasing intolerance in her inhabitants and updated the long list of forms of speech and expression which have been banned within her boundaries. Unfortunately, this was not the first time where the country witnessed unreasonable criticism of a literary work, the author being harassed, and her freedom of speech being restricted . As a hallmark of liberal democracy which sheltered all forms of human expression, the country had enshrined freedom of speech and expression in its Constitution. This has always been the weapon to fight against injustice for the million men and women she harbored. But now, the situation has become heartbreaking as the freedom to express oneself freely has lost all its meaning. Under the garb of religious sentiments, every form of criticism of religious cultures or historical interpretation of religious texts is being muffled. Gandhi was right in saying “It is good to swim in the waters of tradition, but to sink in them is suicide.”…

Full Article
7. Indian Secularism and the Doctrine of Essential Religious Practices

Zaid Deva, Gujarat National Law University

Ambedkar, in the Constituent Assembly affirmed, “There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.” Statements like these led the Bombay High Court evolve the doctrine of essential religious practices in the famous case of State of Bombay v. Narsu Appa Mali. This doctrine stipulates that only such practices will be given state protection under the framework of Indian secularism, which are “essentially religious.” Over the years this doctrine has been criticised strongly with some suggesting that such a policy concentrates unbridled powers in the hands of the third organ of state, whose powers otherwise is to keep a check on the legislature. The case of Mohammed Zubair v. Union of India & Ors.can be said to be another point for criticism, wherein it was held that keeping a beard for a Muslim is not an essential part of the faith. The paper will critically analyse the judgement in an attempt to bring out the flaws of the doctrine of essentiality, as it is used by the Supreme Court today, which, it is argued, is against the constitutional mandate, and the makers’ vision thereof.

Full Article
8. Evolution of Indian Secularism

Prof. Varoma Vijayan, CSI Institute of Legal Studies, Trivandrum

Both in academic and popular usage the term “Secular” has been rendered a catch- all, residual phrase that is the converse of religious. Semantically, the term arose from the specific European
context of post Renaissance politics and derived from the attempt to wrest the State and (its property) from the control of the Church. Hence, the worldly and the other- worldly; the sacred and the secular emerged as mutually exclusive bounded domains. In the West, secularism was closely related to the theory of progress which it was hoped would take societies from a stage of primitive religion onward to a destination of reason. Thus, it implied an emphasis on science, rationality and technology.

Full Article
9. Scrutinizing Constitutional Power of Disqualification from Elections

Amber Siddiqui, National Law Institute University, Bhopal

We are the citizens of a nation which spreads the message of ‘Vasudhaiva Kutumbakam’ and propagates peace in diversity. In a democratic system, to be independent is important but to be credible is more important and there must be checks and balances at every stage, to ensure proper functioning of the democratic structure. This essay in its introduction establishes the academic context of election process and will exhibit the merits of Representation of People Act, 1951 (hereinafter RPA) which inter alia provides qualifications and disqualification of members of Parliament and members of State Legislatures. The essay will scrutinize recent amendments to the RPA and explore their effect on recent disqualification debates. It will outline the key recommendations of the 244th Law Commission Report produced under the chairmanship of Hon’ble Justice A.P Shah. In recent times, the most debated issue is the nexus between criminals and political field and how muscle power is used to taint the election process leading to deterioration in credibility. The basic structure scheme of the Indian Constitution suggests that the process of free and fair elections is an underlying right of all citizens.

Full Article
10. Reviewing a Company's Right to Freedom of Speech & Expression

Srinivas Reddy, Vivekananda Institute of Professional Studies, Pitampura

The rights enunciated in article 19 of the Indian Constitution are available to the citizens only, which hampers the right of a company or corporation to enforce the same. The article discuss the need to devolve the right to freedom of speech and expression on a company, by referring to the one hundred and first report of Law Commission of India which deals in detail with enforceability of the right to freedom of speech and expression and suggested an amendment to the Constitution, a suggestion which was never followed by any government till date. Amendment provides a potent solution to the issue at hand. The article delves into a fascinating mode of interpreting the same by incorporating such a freedom into the term ‘personal liberty’ of an individual. Article 21 can be enforced by a company, interpreting rights into the term life and personal liberty according, i.e. keeping in consonance with the interpretation of a company under article 21. Such an interpretation in is consonance with the law laid down the apex court in the Bank Nationalization case and Maneka Gandhi case. Such an interpretation of a company’s right under Article 21 will lay down effective platform for the enforcement of the freedom of speech and expression in the court of law.

Full Article
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