Articles for category: Indien

Reimagining Indian Federalism

As India’s new dominant party system coalesced after 2014, the country entered a phase of centralisation. India has always had federalism with a strong centre, but from the late 1980s to the mid-2010s, political and economic regionalism and national coalition governments encompassing national and regional parties produced an appearance of deepening federalisation. Since 2014, when the Bharatiya Janata Party (BJP) became the first party in over 25 years to win an outright parliamentary majority, the twin pillars of political centralisation under a dominant party system and economic concentration, have once again drawn attention to the contested nature of India’s federal contract.

7. April 2024

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Civil Society and its Engagement with the Constitution

The Indian Constitution is as much a culmination of the ideas of the freedom movement against colonial powers as it is of the achievement of a social revolution through law. Our Constitution, which was inspired by the Universal Declaration of Human Rights, thus, not only provided for political freedom from foreign rule and established a democratic republic, but it also provided a road map to undo the deeply entrenched hierarchies, inequalities, and social exclusions in our society and therefore for a social transformation. Much of the civil society interventions of the last seven decades have been to work for redeeming the promise of the constitution inside and outside courts.

5. April 2024

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Reconceptualizing Legislative Privileges

Earlier this month, the Indian Supreme Court delivered a judgment in a reference pertaining to the law and scope of legislative privileges under the Indian Constitution. The primary question before the court was whether legislative privileges extend to the protection from prosecution of a legislator who receives a bribe to speak or vote in a certain manner in the legislature. In the following sections of this post, I’ll first discuss the existing law on legislative privileges in India, which is unique in its origination and formulation. I’ll then argue that there is a need to reconceptualize the understanding of legislative privileges in order to support the legislative systems in performing their roles and functions in their true essence.

15. März 2024

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Privileges Constrained

Last week, the Indian Supreme Court delivered its judgment in Sita Soren v. Union of India, holding that parliamentary privilege – the constitutionally recognized legal immunity of legislators – does not extend to bribe-taking for exercising their legislative vote or speech a certain way. In this blog post, I discuss the Court’s formulation of the essentiality test, as well as its conclusions on the availability of privilege for bribe-taking. I argue that while the ruling can strengthen democratic institutions since it protects the integrity of legislative processes, certain risks in the essentiality test’s composition – which risk depriving important legislative functions of privilege – must be addressed.

13. März 2024

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On the Politics of Non-Transparent Electoral Funding in India

Last week, a five-judge bench of the Indian Supreme Court delivered a significant verdict adjudicating the constitutionality of the Electoral Bond Scheme (“EBS”). The EBS introduced a novel method of making ‘anonymous’ donations to Indian political parties, both by individuals and a body of individuals. The judgment makes a democracy-enabling jurisprudential step in extending the right to information of voters to the details of political funding received by political parties in an effort to cement transparency and accountability as the central values of the electoral exercise.

21. Februar 2024

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Absolute Truths and Absolutist Control

Last week, the Bombay High Court delivered its judgment in Kunal Kamra v. Union of India, comprising a split verdict on the constitutional validity of the Information Technology Rules, 2023. The rules install an institutional regime for determining – and warranting takedown by social media intermediaries – of content relating to the Central Government deemed “fake, false or misleading”. This regime was challenged on three main grounds – first, its violation of citizens’ free expression due to “fake, false, or misleading” speech being constitutionally protected; second, the pedestalization of state-related information, such that it enters public discourse with a single, truthful formulation, as being an illegitimate and disproportionate measure; and third, the violation of natural justice in enabling the state to determine truth and falsity concerning itself.

14. Februar 2024

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When Discrimination is Not Enough

The Supreme Court, India’s apex constitutional court, recently delivered its disappointing decision in Supriyo Chakraborty v Union India (Supriyo), rejecting marriage equality in Indian law. The much-awaited decision was heard by a constitution bench (five judges) of the Supreme Court and dealt with far-reaching questions of both Indian constitutional law and family law. The decision is characteristic of the Indian Supreme Court’s ongoing phase of great deference to the executive and legislative branches but also marks a sharp and worrying break from the court’s otherwise progressive jurisprudence on issues of gender and sexuality.

22. Oktober 2023

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The Basic Structure Doctrine, Article 370 and the Future of India’s Democracy

A constitution bench (five-judges) of the Supreme Court of India recently concluded the hearings related to the the abrogation of Article 370 of the Constitution and the bifurcation of the State of Jammu and Kashmir (J&K) into two Union Territories. How the Supreme Court finally decides this instant case will have far-reaching constitutional implications. In particular, the basic structure challenge pressed upon by the Petitioners, is likely to determine the future of India’s democratic federal architecture and the structural balance of power between the Union and states.

20. Oktober 2023

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Using the Constitution for Partisan Benefits

Last month, the Indian parliament passed the 106th amendment to the Constitution. It inserted several provisions to the Indian Constitution, collectively providing for horizontal reservation of one-third of directly elected seats of the House of the People, the state legislative assemblies, and the Delhi legislative assembly for women. In this blog, I discuss the political motivations underlying the enactment of this amendment and argue that this amendment is an opportunistic attempt by the incumbent government to reap partisan benefits using the Constitution before the upcoming state and general elections. Such actions demystify the idea that constitutions are a place for high-order politics. The amendment shows that with enough numbers, constitutions could easily be reduced into a political tool for furthering dominant political interests.

18. Oktober 2023

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Constitutional Pluralism and Article 370

Recently, the Indian Supreme Court finished hearing oral arguments on a batch of petitions challenging the constitutional validity of The Constitution (Application to Jammu and Kashmir) Order, 2019 which extended all provisions of the Indian Constitution to Jammu and Kashmir. In the midst of the arguments, the Court pondered upon the nature of the relationship between the Constitution of India and the Constitution of Jammu and Kashmir. While the Court is unlikely to hand down an authoritative ruling on this relationship, the exchanges between the judges and lawyers offer us a valuable avenue to explore. By analysing the Jammu and Kashmir Constituent Assembly Debates, this piece examines the nature of the relationship envisaged by the two constitutions. I argue that the constitutional principle that undergirded the previously existing constitutional relationship between India and Jammu and Kashmir is heterarchy.

2. Oktober 2023

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