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 III: July 2017

THE EDITORIAL BOARD

  1. Devina Srivastava, Editor-in-Chief
  2. Sameer Avasarala, Publishing Editor
  3. Samiya Zehra, Publishing Member
  4. Shashank Kanoongo, Publishing Member
  5. Madhurika Durge, Deputy Editor-in-Chief
  6. Ayushi Jain, Executive Editor
  7. Aswinikumar Bairagya, 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
  11. Saurav Agarwala, Member Editor
  12. Ashim Gupta, Member Editor

THE ADVISORY COUNCIL

  1. Prof. (Dr.) Ranbir Singh, Hon. Member
  2. Prof. (Dr.) Shashikala Gurpur, Hon. Member
  3. Prof. (Dr.) A. Lakshminath, Hon. Member
  4. Prof (Dr.) M. P. Singh, Hon. Member
  5. Prof. (Dr.) R. Venkata Rao, Hon. Member
  6. Adv. Arvind Datar, Hon. Member
  7. Adv. Geeta Luthra, Hon. Member
  8. Dr. S. Sivakumar, Hon. Member
  9. Dr. Faizan Mustafa, Hon. Member
  10. Dr. Rose Varghese, Hon. Member
  11. Prof. (Dr.) Madabhushi Sridhar, Hon. Member
  12. Prof. (Dr.) Michael Keating, Hon. Member
  13. Prof. (Dr.) Richard Albert, Hon. Member
  14. Prof. (Dr.) Sujit Choudhry, Hon. Member
  15. Ms. Sneha Priya, Student Advisor

Editorial Note

The Editorial Team of the Indian Constitutional Law Review is pleased to bring forth the third edition of the journal. We are immensely grateful to all our erudite contributors whose valuable research has broadened the horizon of the journal and supplemented its worth. The contribution of the authors is what defines the quality and scope of our journal. The journal has been receiving an ever-enhancing number of noteworthy manuscripts. This edition, the reviewers had to perform the mammoth task of selecting the top twelve manuscripts from a total of more than sixty that were received for publication. Distinguished contributions were received from professors and legal practitioners on a variety of constitutional and allied issues

Editorial Note

ARTICLES: EDITION II

1. The Inclusion of Educational Institutions under the Term 'Shops'

Harsh Mahaseth, NALSAR University of Law, Hyderabad

The object of Article 15 of the Constitution of India is the prohibition of discrimination. Article 15(2) prohibits the restriction of access to public places which have been given under the provision. Gautam Bhatia in his article titled, “horizontal discrimination and article 15(2) of the Indian Constitution: A Transformative Approach” has provided a unique argument pertaining to Article 15(2) of the Constitution of India which hasn’t been applied much till date. In this article Bhatia makes the argument that Article 15(2) should have be givena wide interpretation which coversprivate economic transactions as well where such goods and services offere d are accessible to everyone. For this he looks at the transformative nature of the Constitution and the Constituent Assembly Debates.

Full Article

2. Case Comment: Shankar v. State of Tamil Nadu

Bryon Sequeria, Lloyd Law College, Greater Noida

The underlining point of focus is that though movies enjoy the guarantee under Article 19(1)(a) but there is a distinction between the movies broadcasted on TV and print media we have seen that the government has on many occasions banned movies under the garb of reasonable restrictions. Many controversies have also arisen regarding the content of various movies such as Vishwaroopam, Parzania, Bajirao Mastani etc. to name a few. As a result, these movies have been banned in the sensitive areas. There also many movies like Kissa Kursika got banned during emergency because it was allegedly based on Indira Gandhi’s life. Shah Commission, instituted to inquire into the excesses committed during emergency found Sanjay Gandhi responsible for burning the prints of the movie. Many movies were banned because they were based on issues which could stir up communal enmity like Garam Hawa, Black Friday etc. People who oppose such bans argue that with the movies should not be banned and people should be given the freedom to form their opinions after watching the movies. This is primarily because the grounds mentioned in Section 5 of Cinematography Act, 1952 are very subjective and broad. Since the censor board has no jurisdiction over the contents posted on the internet, the filmmakers who do not wish to carry out the cuts directed by it release the censored parts on the internet the recent example being the release of censored parts of the movie Angry Indian Goddesses in the form of a video by the director. People who support censorship argue that it protects the vulnerable sections of the society like children whose can easily get influenced by the contents and things which are truly offensive and inhumane should not reach the audience.

Full Article

3. Section 124A: A Dogmatic Attempt to curb Dissent

Akshay Sharma & Lavanya Pathak, NUSRL Ranchi

The right to freedom of speech and expression is often regarded as a right that not only is the backbone of a democratic state but a tool that professes and promotes ideality and contentment in a political arrangement. It is a means to be open to dissenting opinions, respect individual thought and also promote welfare in the state. This paper aims to conclude that sedition law, that is section 124 of the IPC, is a catastrophic tool that shatters such values that are highly regarded in a country like ours by infringing right to freedom of speech and expression. This paper studies the origin of sedition law and explains how it holds little or no relevance in today’s times used in its strict sense without any reasonability. The paper explains how this law is ultra vires as it violates Article 19 (1) (a) of the constitution and the basic structure doctrine which propagates that a law affecting the Fundamental Right may be held bad for sheer uncertainty. The paper throws light on the vagueness and ambiguity of the said law and This leads to the various ways in which the sedation law is used by the government for political censorship as it infringes the Right of person to express his feelings against the government and has been repeatedly being misused by many governments to curb its opponents. Governments have blatantly used S. 124A to stifle the voice of dissent and to further their political goals which is absolutely in contradiction to the principles of a democratic government. The paper concludes that it is ultra vires and is continuously used by the government to silence the dissenting voices and thus, must be done away with.

Full Article

4. Legislations on Religious Matters: Parliamentary and Judicial Positions

Jai Prakash Meena, NALSAR University of Law, Hyderabad

Religion is a matter of individual belief or faith therefore constitutional provision also recognize such and provide freedom of religion under Article 25 to Article 30 of the Indian Constitution. After 42nd Amendment Act, 1976, “secular” term added into preamble of constitution which provides that state shall remain neutral toward any particular religion. State shall not promote and make any kind of discrimination toward any particular religion. However, there are certain provisions in the constitution which make state intervention into matter of religion as valid ground, i.e. public order, morality, health etc.

Full Article

5. Liquor, Res Extra Commercium & their place in the Constitution

Jane Maria Tomy, NLU Odisha

There, in Bihar, Nitish Kumar had prohibited liquor. Down here, in Kerala, Pinarayi Vijayan is planning to reopen bars. Meanwhile, Supreme Court has banned the liquor shops within 500 metres of the highways. Liquor prohibition has, thus, become the broiling subject in the government policies. From where does the government evoke the power to ban liquor so absolutely and sometimes, unreasonably? All the credits should go to the doctrine of Res Extra Commercium. Res Extra Commercium discreetly allowed for negating the fundamental right to trade for the so-called ‘immoral trades’. Through this doctrine, the clear words of Constitution that gave the right for the business men to trade in anything subject to Article 19(6) were being nullified. The brunt of this doctrine was felt most by alcohol. In this research paper, the author have analyzed the judicial pronouncements on liquor prohibitions and highlighted the judiciary’s confusions on the applicability of the Res Extra Commercium in the Indian soil. The objective was to give an to answer the question as to whether our constitution – makers had envisaged an ex-ante restriction – as imposed by Res Extra Commercium – on a fundamental right.

Full Article

6. Uniform Civil Code: Achilles' Heel of India?

Arvind Geedipally & Khushboo Saraf, Tamil Nadu National Law School

In India there are different religious denominations governed by their own personal laws and rules. With the change in societal norms various some personal laws have undergone amendment while others failed to keep pace. This lead to a situation which created differences leading to substantial deprivation of rights, especially gender neutral rights in cases like polygamy or triple talaaq, among unreformed personal laws. Uniform Civil Code is being touted as a one stop solution for all problems of personal laws. Uniform Civil Code touches the very fabric of Indian constitution ranging from Fundamental Rights (Articles 14, 15, 25, 26, and 29), Directive Principles (Article 44) and other provisions such as Articles 371A, 371G and Seventh Schedule, Federalism, Secularism including Pluralism and Multiculturalism. Supreme Court has also rendered a number of decisions on Uniform Civil Code, which are thoroughly analyzed in the paper to get an understanding on conceptualizing of a Uniform Code in India. The main aim of Uniform Civil Code should be uniformity of rights and not uniformity of laws. The paper argues for a Uniform Code at the present juncture, where there exist different religious laws with uniform rights, rather than a common code, whose main aim is to have a single common law across all religions. The paper arrives at Uniform Code rather than a common code, by analyzing the constitutional safeguards provided to certain regions and the lists in seventh schedule, along with the failure of common code in addressing uniform rights and the threat it poses to the unique socio religious fabric of India. This paper arrives at mechanism where conflicting notions of personal laws, constitutional provisions are prevented and a fundamental alternative way for implementing a uniform civil code from constitutional and socio-political perspective in a secular democracy is provided, which is through gradual reforms in personal laws which in future paves way for a common code rather than imposing a common code at once.

Full Article

7. Regulating Pharmaceutical Patents: Road to Fundamental Right to Health

Tantu Vardhn Sabharinathan, OP Jindal Global Law School

A detailed case analysis of the literal interpretation of Section 3(d) of the Indian Patent’s Act in the landmark judgment, ‘Novartis v. UOI’, in consonance with the constitutional principles mentioned under Article 14, 19 and 21, provides ample space to debate the prospects of guaranteeing fundamental right to health.The paper has taken the liberty to discuss the prospects of how strict regulation of patents and preventing evergreen helps in guaranteeing the actual fundamental right to health and uphold the constitutional principles of guaranteeing right to live with dignity the era of patents. The paper has also discussed the prospects of companies striking the right balance between profits that can be reaped out of their medical research fund and guaranteeing social welfare to the public.

Full Article

8. Legislative Privileges: Evaluating through Right to Information

Prof. D. Ganesh Kumar, Symbiosis Law School, Pune

The prerequisite of a democratic system is that the government is run according to the will of the people which is reflected in the collective will of the Legislature. Since the Legislature, amongst all the three organs, is the only body through which people express themselves, the Legislative House as well as the Legislators are given a special status. This is embodied in the ‘Privileges’ conferred on them by the Constitution. The Federal structure provided for by the Indian Constitution has inbuilt checks and balances so that the three organs of the state function in harmony with each other and with people’s aspirations. Hence, while conferring special privileges on the Legislature and its members, the Constitution also takes care to counterbalance the same with the powers of the other Governmental organs and the rights of the people. The present paper makes an attempt to analyze the Legislative privileges in the light of the people’s right to information.

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9. Unsettling the Settled for Settling the Unsettled?

Naveen Kumar Murthi, Advocate, Madras High Court

Substance abuse has always been visualised as an abominable addiction that is presumed to annihilate the very existence of a man since it starts controlling him and not vice versa. But, the very same substance, when consumed in the right proportion is deemed to give an exhilarating ecstasy which even the kings and rulers of the greatest of great kingdoms spanning over the last thousands of years have relished.

Full Article

10. Article 30: Administrator or Admonisher?

Rudrani Sengupta, KIIT Law School

This paper focuses on minority educational institutions formulating their code of conduct and regulations for the upliftment and maintenance of their credo and dogma. Article 30(1) of The Constitution of India, 1950 confers to the minority educational institutions the right to establish and administer educational institutions of their choice, but trammels them from mal-administering. The word ‘administer’ means the right to manage and conduct the affairs of the institution. In the case of Malankara Syrian Catholic College v Jose, the Supreme Court has summarised the general principles relating to the establishment and administration of educational institution by minorities where the right to establish and administer an educational institution is not absolute, nor does it include the right to mal- administer. In the light of the contemporary and on-going issue, the Students representing different factions clashed during a protest march against the management of Farook College, a prominent institution under Muslim management in Kozhikode, which adheres to a strict code of conduct disallowing free intermingling between female and male students, curbing their fundamental rights. Rules and regulations which are arbitrary and manifestly unjust in nature can be quashed by the court, applying the Wednesbury Principle developed by the court in Associates Provincial Picture House Ltd v Wednesbury Corporation. The society is a conglomerate of people from various sections, therefore all institutions must broaden their horizon and not only restrict themselves to their traditional outlook.

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11. The Doctrine of Pleasure

Swadha Rath, Symbiosis Law School, Hyderabad

doctrine of pleasure originated in England where a servant of the Crown holds office during the pleasure of the Crown and he can be dismissed from the service at pleasure of the crown. Doctrine of pleasure in India is also based on the same content as it existed under the common law in England but has not been accepted completely, some restrictions were implemented on the same .The doctrine is embodied in Article 310 of Indian Constitution and the words ‘except as expressly provided by the Constitution’ inserted in Article 310(1) clearly denotes that the pleasure of the President is very much controlled by and subject to certain constitutional principles, the word ‘except’ excludes the services of the tenure of the Judges of the High Courts and Supreme court, of the comptroller and Auditor-General of India, of the Chief Election Commissioner and the Chairman and Members of Public service commission is not at the pleasure of the Government. And furthermore Article 311 also imposes restrictions on the privilege of dismissal at the pleasure. President doesn’t get the absolute power as the crown gets in England.

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12. Critical Appraisal of Suresh Kumar Koushal & Anr v. Naz Foundation & Ors

Parth Agrawal & Jatin Sardana, Symbiosis Law School, Noida

Discrimination of individuals on the premise of their sexual orientation & sex character in modern society has faced much discourse. The Supreme Court’s judgment reversing the well reasoned Delhi High Court judgment in Naz Foundation v. Government of NCT of Delhi has evoked an intense reaction from the all corners because of its disappointment in maintaining the interests of the LGBT people group. Hon’ble Apex Court in Suresh Kumar Koushal v. Naz Foundation, 2013 upheld the constitutionality of section 377 IPC thereby criminalizing homosexuality once again. The paper attempts to critically appraise this regressive judgment of Supreme Court taking into account Dworkin & HLA Harts concepts of rights, equality, law & justice.

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