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 II: April 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. Madhurika Durge, Nominee Member
  7. Aswinikumar Bairagya, Associate Editor
  8. Gayathree Kaliyatt, Associate Editor
  1. Shreyangshi Gupta, Member Editor
  2. Amit Singhal, Member Editor
  3. Mahvish Shahab, Member Editor
  4. Mrudula Sarampally, Member Editor
  5. Swapnil Tripathi, Member Editor
  6. Kriti Johri, Member Editor
  7. Yavanika Shah, Member Editor
  8. Shreeyash Lalit, Member Editor
  9. Sharad Verma, Member Editor
  10. Ankita Aseri, Member Editor

THE ADVISORY COUNCIL

  1. Prof. (Dr.) Ranbir Singh, Hon. Member
  2. Prof. (Dr.) Madabhushi Sridhar, Hon. Member
  3. Prof. (Dr.) Michael Keating, Hon. Member
  4. Prof. (Dr.) Richard Albert, Hon. Member
  5. Prof. (Dr.) Sujit Choudhry, Hon. Member
  6. Dr. Janhavi S.S., Hon. Member
  7. Dr. Satish Gowda, Hon. Member
  8. Adv. S. Basavaraj, Hon. Member
  9. Ms. Sneha Priya Yanappa, Hon. Member
  10. Dr. Atmaram Shelke, Member
  11. Adv. Manjeet Kumar Sahu, Member
  12. Prof. Natvika Singh, Member
  13. Prof. Sanya Yadav, Member
  14. Prof. Niteesh Upadhyay, Member
  15. Prof. Mohd Imran, Member
  16. 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 II

1. Analysing the 'Anti-Defection Law'

Anjali Gupta, Campus Law Centre, University of Delhi

The 52nd Constitutional Amendment Act of 1985 added the Tenth Schedule to the Indian Constitution, popularly known as the “Anti-Defection law”. Defecting party members posed a threat to the very foundation of the Indian democracy and the principles that sustained it. The amendment aimed at reducing party defections prevalent amongst the members at that time. The law has succeeded in a reasonable manner and has been able to secure party stability to some extent. The schedule mentions the grounds on which a defecting member stands disqualified from his original political party. The law also contains some exceptions from disqualification, like in the case of a party merger. The current article seeks to provide a brief analysis of the grounds mentioned in the Tenth Schedule. It also highlights some of the merits and demerits of the law. As the law gets older and older, we find that with the corruption prevalent amongst politicians and given their dishonest tactics, they have been able to take advantage of loopholes in the law to suit their personal needs. This is the reason why the law has not been able to achieve the best it can. The current article tries to delve into the loopholes, which render the 52nd Amendment Act somewhat unsuitable and unsuccessful. It also looks at some of the changes required in the law and the way forward.

Full Article
2. Constitution and the unwritten Right to Vote

K. Neelima, Ph.D. Scholar, Department of Pol. Sci., University of Delhi

The Constitution provides the probability for convergence of the political point of view with the people’s point of view in an important democratic space for dialogue mediated by the legal point of view. It is possible that such a dialogue may be tilted in favour of those who control such a space but the Constitution makes sure that the judiciary minimizes any such possibility. The rights have been the subject-matter of political and judicial battlefields, including the most basic right in a democracy, the right to vote. The right to vote is not a fundamental right but Article 326 defines the right, which is given in the Representation of People Act, 1951. Article 326 states that elections to Parliament and Legislative Assemblies would be conducted on the basis of adult franchise and every adult citizen could register in the electoral rolls to vote. However, there is a difference between right to enroll as a voter and right to vote. The central question of this research is that whether the right to vote as been fundamentally upheld by the Indian Constitution Furthermore, how has the judiciary interpreted this unwritten right? The method of inquiry would be through the qualitative study of judgments and the legal interpretations of the right to vote for citizens in India.

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3. Defamation Laws in India in relation to Subramaniam Swamy v. Union of India

Dr. Monika Jain, Senior Advocate, Delhi High Court

This research paper critically analyses the legal jurisprudence developed on the issues neighboring constitutionality of defamation. In doing so, it presents comprehensive analysis of the derivation of the law and the present category of defamation law in India. Supplementary, the research paper takings to evaluation the judgments of the Apex Court Subramanian Swamy and R. Rajagopal cases regarding constitutionality of criminal and civil defamation respectively. It is argued that Subramanian Swamy case fails to suitably apply the standard of rationality. As a final point, the paper concludes that court should be cautious whenever restrictions are imposed on right to freedom of speech and the problems faced by the media due to the bad effect of law. The main idea behind balancing should be exercise of individual’s freedom of speech and expression without compromising with the person’s reputation in the eyes of public. It has also been held by this Court that in judging the reasonableness of restrictions, the Court is fully entitled to take into consideration matters of common report, history of the times and matters of common knowledge and the circumstances existing at the time of legislation.

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4. Equality, Dignity & Privacy: Indian & US "pansexual" Human Rights

Prof. (Dr.) Jennifer A. Drobac, Indiana University Robert H. McKinney School of Law, Visiting Fellow, University of Cambridge

This Essay explores two concepts for the protection of human rights for women and sex-based minorities. First, it suggests that the right of privacy, when given full enforcement, safeguards all persons against violence and discrimination. Second, this Essay examines the notion of pansexuality and how all persons, in some way, fit under this umbrella term. With the idea that we are all pansexual, pigeonholing based on sexbased characteristics ceases. Government can then afford all pansexual human beings the full panoply of civil rights and protection.

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5. Exercising power of Pardon in cases of Death Penalty: A Looming Constitutional Crisis

Aditya Manubarwala, Pravin Gandhi College of Law, Mumbai University

The Constitution of India empowers both the President and the Governor to suspend, remit or commute death sentences vide Articles 72 and 161. However, Article 72 (3), by its very wordings makes it amply clear that there is no hierarchy as to how this power is to be exercised by the President and the Governor and how a death row convict is to approach either of them. The article highlights how this lack of a hierarchical safeguard can lead to a dangerous situation whereby the State Government could virtually stonewall a mercy petition dismissed by the President of India, through the office of the Governor, who has to merely suspend, remit or commute the same and thus defeat the death penalty. The article traces the historical origins of this constitutional position and enumerates contrarian views held on this issue in the Constituent Assembly by the draftsmen of the Constitution. It embarks on a comparative analysis of this position and attempts to examine the larger trend regarding the legal position on this issue internationally. Lastly, an attempt has been made to provide possible solutions to rectify this position of law that could potentially lead to a modern day constitutional crisis.

Full Article

6. Film Practitioners Contemporary Debate on Freedom of Speech and Film Censorship Laws of Bangladesh

Md. Zahidul Islam, Lecturer, Kulliyah of Shari’ah & Law (KSL), Islamic University, Maldives

Freedom of speech is a vital element to humanity and for the foundation of a free society. The making and exhibition of films also falls under the free speech clause. Alike to other fundamental liberties, freedom of speech doesn’t have any absolute form and it is related to the reputation of others like national security issues , public mental health and moral instincts. It is a contemporary debate that freedom of speech is violated by the censorship law. The aim of this paper is to identify the relation between freedom of speech and censorship laws of Bangladesh. It is a qualitative research approach . The information has been collected studying articles, books, newspapers and statutes. The restrictions on freedom of speech are acceptable for the interest of security of a state, public order and to establish friendly relationship with other foreign countries. In this case, censorship plays an important role to protect moral values and law of order situation in a country.

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7. Relationship between President and Council of Ministers

Ashim Gupta, National Law School of India University, Bengaluru

The relationship between the two most powerful posts in the India, President and Council of Ministers, is not clearly layered out in the Constitution of India. This led to various controversies regarding exercising the powers vested with these posts. But it should be noted that every time such a controversy arose, it has been confirmed that the President is just a constitutional head and the real power rests with the Council of Ministers. The controversy between the powers were largely solved by the 42nd Constitutional Amendment Act. Moreover, with this research paper we can conclude Article 74(1) and 75(3) must be read together to determine how the President can exercise his powers which ultimately states that the advice of the council of ministers needs to be followed by the President as long as parliamentary support is available, and in the event the parliament is being dissolved, the president need not wait for advice from the PM he may use his own discretion at will…(Read More)

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8. Rise of the Right: Eclipse over Doctrine of Separation of Powers

Gauri Singh, Faculty of Law, Delhi University

This paper explores the impact of rise of the right wing political spectrum over the theory of separation of powers. The growth of right wing political parties across the globe has developed into a global trend, worth reckoning with. The right-wing parties their policies range across a wide policy spectrum, from populist and nationalist to far-right neofascist. In contrast, the theory of separation of powers has protected democracies for many years. It ensures a system of checks and balances, transparency and independent functioning of various organs of a Government. The paper considers two major democracies in the world to make an analysis. Primarily India which saw the amelioration of the Bharatiya Janta Party (BJP) in 2014 with Narendra Modi spear heading the movement. And Brazil’s Partido Republicano da Ordem Social (Republican Party of the Social Order), a centre-right party which won elections in 2013. In conclusion, it is analysed how this new tendency over-shadows the foundations of the largest democracies in the world.

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9. Separation of Powers: Does it really exist?

Nikhil Gupta, Aditya Gogna, O.P. Jindal Global Law School, Sonipet

The theory of separation of power is an ever-evolving theoretical concept where practical implementation in the absolute sense is difficult to attain. The authors in the present paper attempt to achieve three things. Firstly, deciphering the doctrine. Secondly, the comparative analysis of various jurisdictions, and lastly, the creation of similar ideology which inculcates the idea which the doctrine promotes and attempts to make it workable. The following is an attempt to achieve the aforementioned.

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10. Removal of Judges of SC by Parliament under 16th Amendment of Bangladesh Constitution

Md. Abdur Rahim, Asst. Professor, University of Asia Pacific, Dhaka

The Constitution of Bangladesh has recently been amended inserting the provisions of parliamentary mechanism of judicial discipline for the judges of higher judiciary. The immediate previous one was comparatively compatible with the concept of judicial independence and separation of powers. Under the present scheme judicial independence has been compromised with judicial accountability. It is anticipated that judiciary will fail to maintain its dignity and to discharge its sacred responsibility.

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11. Supreme Court's tryst with Judicial Independence

Anubhav Verma, Jwngthima Brahma, National Law School of India University, Bengaluru

India is the only country in the world where appointment of judges to the higher judiciary is done by the judges themselves. The Executive has not been given a decisive say in the appointment process. The Executive may dissent but its dissent is of no significance as the Supreme Court has only to reiterate its recommendation. The settled position of constitutional law is that the reiterated recommendation of the Supreme Court is binding on the Executive. Ergo, the power that the Apex Court enjoys in the matter of appointment of judges is almost despotic, untrammelled, uncannelised and unfettered. This power has been used by them ad nauseum to brush aside imaginary attacks on its independence. The sequitur to this has been that many a times the court has clearly gone overboard and transgressed its jurisdiction. The research paper examines the scope of the interpretive jurisdiction of the Supreme Court and argues that the Supreme Court has clearly overstepped it in the 2nd, 3rd and the 4th Judges Cases.

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12. The curious case of the Right to Privacy in India

Anubhav Khamroi, Anujay Shrivastava, Jindal Global Law School, Sonipet

“Privacy” is one of the most nebulous terms our society has ever chanced upon. In the recent years, there have been debates on Right to Privacy, its safeguards, reasonable restrictions against this right, various positions and non-recognition of this right by some courts, and the ongoing debate on the existence of a constitutional Right to Privacy. Many Indian jurists have raised the question that – “While there is a right to life, is there a right to privacy?” This raises a very difficult conundrum for constitutional jurists that while one has the right to life, does that also entail the right to enjoy a life of their own choice, devoid of any public scrutiny. There is no clear understanding of the different paradigms of the right to privacy, and there exists a lack of a theoretical framework to help us in this respect. This paper tries to draw out such a theoretical framework by identifying the three paradigms of privacy rights or the “Triangle of Privacy” – Zonal, Rational and Decisional. Further, the authors have also tried to deploy the “integral part test”, derived from Maneka Gandhi decision, to establish the relationship between the right to personal liberty u/a 21 and right to privacy. It is contended that at the heart of liberty is the right to define one’s own concept of existence and thus, “privacy” is of the same basic nature and character as “personal liberty”. Finally, the paper calls for a constitutional amendment by the parliament adopting the judicially carved out right to privacy as a fundamental right under Part III of the Indian Constitution.

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13. The Power to punish for Contempt of the House: Examining the issue and conflicts

Ayushi Agarwal, National Law School of India University, Bengaluru

The Constitution of India confers upon the Parliament and State Legislatures broad privileges and immunities and vests with it the power to punish for breach of the same, which is more prominently known as the ‘power to punish for contempt of the House’. In this article, the author analyses the conflict between the exercise of this power and the freedom of the press under Article 19(1)(a) of the Constitution of India as well as the requirement of a just, fair and reasonable procedure under Article 21. It also explores the tussle between the legislature and the judiciary created due to this power. The author argues that the power to punish for contempt must be subject to Article 19(1)(a) and justifies why the decision in MSM Sharma needs to be overturned. Further, the author argues that this power must be exercised in accordance with procedural tests under Article 21 and reasons why failing to do would be a violation of principles of criminal law as well as natural justice. The author applauds the Supreme Court for taking a step towards limiting the arbitrary exercise of the power to punish for contempt of the House by the Speaker when the judiciary’s powers were being infringed upon. At the same time, she also notes that the Courts have so far failed to extend their own reasoning to its logical conclusion and explore whether the power to punish for contempt is itself suspect, given the difference in the historical backgrounds of the Indian Parliament and the House of Commons. The author emphasizes that the need of the hour is the codification of the privileges and immunities of the Parliament and the State Legislatures, which was envisaged at the time of the drafting of the Constitution itself and will be a step in the right direction in curbing the current arbitrary exercise of the power to punish for contempt of the House.

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14. Uniform Civil Code in India: A Legal Quagmire between Constitutional and Personal Laws

Prof. D. Ganesh Kumar, Akshay Douglas Gudinho, Symbiosis Law School, Pune

There emerges an unending litany when advocates of the legal and religious discourse attempt to impose a dominance of their beliefs in the codification of laws under the state. India, however, has played mediator in this regard and has acknowledged various religious practices, customs, traditions, and the like, while upholding the cardinal principles of the Rule of Law under the Indian constitution. In pursuance of establishing the Grund Norm, the state has faced the herculean task of determining what encompasses a uniform code that not only applies to the diverse sections of the Indian population but also one that can placate the interests of those who do not see the state and religion as a complimentary dichotomy. The essay shall attempt to establish the judiciary’s acknowledgement of the complex web of personal laws in India, and its attempts to filter them into the realm of uniform acceptability. However, it shall also seek to provide a criticism on the stance taken by the legislature and on the judicial enforceability of selective uniformity. This shall serve as an evaluation on whether the Uniform Civil Code in India is an Unborn Child of the Indian Constitution or simply one that remains hidden illuminating its subtle reflections through judicial pronouncements.

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