Constitutional Renaissance

December 23, 2021December 23, 2021

Holding Sedition Law unconstitutional is not enough: Section 124A

After bail in Sedition case! — Sedition Case: Narwal, Kalita and Tanha outside Tihar Jail after Delhi High Court granted them bail.

A few months back, most of the national newspapers and twitter-feeds were filled with ‘positivity and praises of the Apex Court’ after the comments passed by the Hon’ble Supreme Court (CJI Ramana, Bopanna, and Roy JJ) in a hearing in which the colonial-era sedition law (section 124A of the Indian Penal Code) was under challenge. The bench of three judges expressed concerns about the ‘misuse’ and ‘lack of accountability of the executives’ under the law. The Court also questioned Attorney General KK Venugopal and asked him (as reported by the Indian Express), “It’s a colonial law. It was meant to suppress the freedom movement. The same law was used by the British to silence Mahatma Gandhi, Tilak, etc. Still, is it necessary after 75 years of independence?”

October 27, 2021October 27, 2021

Guest Post: Mental Health of Prisoners in India: A Constitutional Analysis

The right to the highest attainable standard of health is a prerequisite for the enjoyment of fundamental human rights. The term ‘health’ encompasses both physical and mental health. WHO defines health as a state of “complete physical, mental and social well-being and not merely the absence of disease or infirmity”. Mental health may be defined as “a state of well-being in which an individual realizes his or her abilities, can cope with the normal stresses of life, can work productively and can make a contribution to his or her community”. It is more than the mere absence of mental disorders. The discourse on the same is gaining ground, considering the number of mental health cases on a surge. However, prisoners in India have been excluded from the realm of mental health discourse.

September 13, 2021September 13, 2021

Guest Post: Five Years of Striking NJAC: The Conundrum of Independence of Judiciary

“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).

August 30, 2021August 30, 2021

Guest Post: Justice R.F. Nariman: An Ode to a Teacher that I never had

For all sad words of tongue and pen;

The saddest are these: ‘It might have been’.–John Whittier

Justice R.F. Nariman: An Ode to a Teacher that I never had

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.

August 5, 2021August 6, 2021

Limiting the Right to Privacy: The Puttaswamy Judgment-II

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’).