“The constitutional theory of checks and balances is a part of the basic structure of the Indian constitution.”
The absolute authority of the Collegium system in matters relating to appointment and transfer of judges of constitutional courts has been debated and questioned for long. The collegium consists of the Chief justice of India (hereinafter CJI) and his four senior-most colleagues, who regulate the matters of judicial appointments to the Supreme Court (or two senior-most colleagues in case of appointment or transfer to High Courts along with the senior-most judge having the concerned High court as his parent court).
The saddest are these: ‘It might have been’.–John Whittier
Whittier’s words aptly manifest my longing. They manifest my unfulfilled aspiration- “How would it have been if I had worked or interned under Justice Rohinton Fali Nariman.” This wish did not come to fruition as this colossal judge Nariman retired on 12th August. The seed of this dream was sown during my nascent law school years as I came across one of his lectures.
No right is absolute, and every right comes with certain restrictions. So does the Right to Privacy, which is a fundamental right under Article 21 of the Constitution of India. Right to life includes Right to Privacy and, as it is argued somewhere else on this blog, ‘privacy, as a right, is important for an individual to exercise control over his or her personality.’ The authority of the State to restrict the Right to Life (and limiting the right to Privacy) derives from the second part of Article 21. It states that the rights cannot be violated ‘except according to procedure established by the law’. After the Maneka Gandhi v. Union of India, the procedure established by the law must also be just, fair and reasonable. Every such procedure must pass the scrutiny of Articles 14, 19 and 21 of the Constitution of India. This post highlights the conditions under which the Indian State can constitutionally intervene with the Right to Privacy. Herein, it is crucial to understand that the rights are the general norms that must triumph, and the restrictions are exceptions. No exception can override the general norms except in certain clearly defined conditions (also known as ‘tests’ or ‘doctrines’).
An interestingjudgment comes from the High Court of Ghana [“Court”] wherein the Court upheld the applicant’s ‘right to Religious freedom and manifestation’. The applicant is a Rastafarian by religion. According to the applicant, Rastafarianism is a religious movement that combines ‘protestant Christianity, mysticism and a pan-African political consciousness’. One of the key tenants/beliefs of the Rastafarian religion is wearing ‘dreadlocks.’ The applicant was refused admission to school in Ghana. He was made to stand separately during the admission process because he was wearing ‘dreadlocks’ which was apparently against the rules and regulations of the school management (which says “students must keep their hair low, simple and natural”). The question before the Court was whether the applicant has a right to manifest his religion. If yes, then are the rules and regulations of the school goes against his right to religious freedom and its manifestation or the school is justified in imposing this restriction?
The entirety of our world is facing an air of uncertainty, confusion, and conflict due to the pandemic. For a country like India, which has several states and union territories, a population of nearly 1.3 billion people, and a spectrum of diversity, the principle which protects the sanity of this hierarchy is federalism. India has been a host to several types of federalisms that have surfaced in different times since independence. However, lately this particular idea of federalism has been slightly dented due to conflicts between the centre and different states especially in the times of COVID-19 pandemic.