• Articles
  • The Mehndi of Judicial Review in Same-Sex Marriages: Infusing the Hues of Basic Structure on the Judiciary’s Palms

    The recent legal vendetta of Supriya Chakraborty v. Union of India (‘Supriya Chakraborty’) yearns for the recognition of the right to marriage equality through a judicial reinterpretation of various personal and secular laws. Curiously, the respondents have argued that the Supreme Court’s declaration on this matter would trespass into the realm of the Legislature, challenging the sacred principle of separation of powers and endangering the Constitution’s Basic Structure. This essay contends that the respondents’ argument bears considerable merit since the higher judiciary has defiantly stepped beyond its conventional boundaries, venturing into the domains traditionally reserved for the legislature and executive. Nevertheless, the quest for resolving India’s separation of powers conundrum leads this essay to open the door to the Basic Structure doctrine’s application to judicial review — an expansion of scope that neither defies nor eludes possibility — thanks to the Supreme Court’s adept utilisation of the doctrine to review ordinary legislation and executive action. Building upon this, to counter the innate drawbacks of the traditional options available to the Supreme Court in Supriya Chakraborty, the essay proposes a balanced approach: blending the doctrine’s application to Judicial Review with the finesse of dialogic constitutionalism.

  • Articles
  • Foreword

    In this Foreword for the Special Issue on the Basic Structure Doctrine, Professor Upendra Baxi focuses primarily on the general criticisms of the said doctrine. He then delves into a brief counter to the above criticisms. Thereafter, Professor Baxi delves into the question of differentiation between the phrases ‘basic structure’ and ‘essential features’. Lastly, he provides two aspects of basic structure: forensic freedoms (free space of argumentation in an open court—the independence of the Bar), and second, the independence of the judiciary (executive-free spaces for judicial interpretation of the interpenetrating text and context). Professor Baxi concludes by stating that if the aforementioned two aspects are taken away, it would be synonymous with taking away the idea of the Constitution altogether, responsible sovereignty, and the very idea of legitimate authority.

  • Articles
  • Editorial Note

    In this note, the authors discuss the Nani A. Palkhivala Memorial Conclave organised by West Bengal National University of Juridical Sciences (‘NUJS’), Kolkata, in collaboration with the Nani A. Palkhivala Memorial Trust and was supported by the Tata Group. As part of the Conclave, NUJS also organised the Nani A. Palkhivala Memorial Essay Competition, 2023 (‘Essay Competition’). The broad theme of the Essay Competition was ‘Application of Basic Structure Doctrine to Contemporary Issues’. Submissions were invited for two sub-themes: Scope of Judicial Review, and Powers of Promulgating Ordinances. The NUJS Law Review here assisted in the organisation of the Essay Competition. The panel of judges that scored the entries included notable legal stalwarts such as Justice M. R. Shah, Professor Upendra Baxi, Professor Rohit De, and Jhuma Sen, to make a few. The authors thereafter navigate through the papers published in Volume 16(4) of the NUJS Law Review, Special Issue on the Basic Structure Doctrine, which were the winning entries of the Essay Competition. Professor Upendra Baxi also contributed through a Foreword to the Special Issue.

  • Articles
  • Foreword

    In the Foreword, Justice D. Y. Chandrachud, Chief Justice of India, highlights the challenges faced by persons with disabilities, and how the Rights of Persons with Disabilities Act, 2016, provides a comprehensive framework to deal with such challenges. Justice Chandrachud, thereafter, highlights the progress in academic discussion made by this Special Issue and the diverse range of topics explored by the articles therein. He concludes by advocating for a legal system that actively fosters an environment where diverse perspectives are valued and celebrated.

  • Articles
  • Reform That You May Preserve: The Need to Institutionalise Pwd Representation in Indian Academia

    In this note, the authors, who are former Editors of the NUJS Law Review, discuss significant advancements made recently to ensure the inclusion of persons with disabilities (‘PwDs’) within multiple institutional structures. These include the Supreme Court Accessibility Committee constituted by the Chief Justice of India, approval by the Union Cabinet for Phase III of the E-Courts Project, and direction by the Delhi High Court to embed accessibility features for movies released on Over-the-Top platforms. Thereafter, the authors engage in statistical analysis of the representation of PwDs in law school activities and conclude that confronting the same is the first step towards making the legal profession truly accessible. Finally, they highlight that the current Special Issue on Disability Law conceptualised by the NUJS Law Review attempts to provide an opportunity for PwDs to contribute and helps in the democratisation of academia.

  • Articles
  • Harmonising Constitutional Ideals: A Modern Reassessment of the Basic Structure Doctrine

    The basic structure doctrine first theorised in the case of Kesavananda Bharati v. State of Kerala (‘Kesavananda Bharati’), is a judicial tool to protect and preserve the foundation of the Indian Constitution, 1950. It originated to complement further the idea of exercising restraint upon the constituent power of the Parliament. This paper is a study of the academic and historical genesis of the basic structure doctrine, developments in the doctrine post the case of Kesavananda Bharati and the constitutional and jurisprudential questions that surround it in today’s time and age. The study of these questions is situated in four contemporary issues – applicability of the doctrine upon the legislative power of the Parliament, questioning the precedential validity of the Kesavananda Bharati case upon the touchstone of the doctrine of stare decisis, the doctrine of legislative overruling and the gaps it creates in achieving constitutional governance, and the overlap between constitutional morality and the doctrine of basic structure. All the aforesaid questions are elements in the larger scheme of separation of powers and judicial review. The paper critically evaluates these broad questions while situating them in the realities of the country today.

  • Articles
  • Application of the Basic Structure Doctrine to the Powers of Promulgating Ordinances

    Articles 123 and 213 of the Indian Constitution, 1950 (‘the Constitution’) grant the power of promulgating ordinances to the President and the Governor respectively. The intent behind carving such powers is to deal with sudden emergencies when the existing laws fail to resolve it. However, this intent has been ransacked due to the grave misuse of the power in promulgating non-urgent ordinances only to bypass legislative scrutiny. This practice is further marred by a formalistic judicial review of the promulgating powers which obstructs a substantive scrutiny of ordinance-making powers. Therefore, to prevent the misuse of these provisions, this article suggests an application of the basic structure doctrine to the powers of promulgating ordinances. It argues that such an application would test the effect of the ordinance on the anvil of the basic principles of the Constitution instead of scrutinising the motive behind promulgation, which is advantageous for rigorous scrutiny of the promulgating powers. Moreover, it presents a framework laying down an independent substantive model of basic structure review with elaborate methods and arguments to apply the basic structure doctrine to the ordinances. Lastly, it urges us to adopt this basic structure review to preserve the foundational ideals and supremacy of our Constitution.

  • Articles
  • Ordinances and the Basic Structure Review: To Test or Not to Test?

    Promulgation of ordinances and the procedure adopted by the Executive have often been a topic of discussion in the Indian context. Interestingly, due to the recently promulgated Delhi (Civil Services) Ordinance 2023, debates around the effectiveness of the current modes of judicial review of these instruments have recommenced. This paper aims to discuss these modes of judicial review while reading it along the trajectory of the Basic Structure doctrine and its principles. This shall further help us identify an appropriate review mechanism that can be applied to ordinances, especially those affecting the ideals of the basic structure. In order to arrive at this mechanism, the article shall first, deal with an overview of the Indian scenario pre-Kesavananda Bharati judgement, emphasising the urgent need to save the constitution from further arbitrary alterations. Furthermore, post the Kesavananda Bharati judgement, the Courts applied the basic structure review test in multiple cases. This sheds light on understanding its current ambit with regard to normal legislations and executive action. Thereafter, we would delve into the concept of negative and intermediary approaches of reviewing ordinances as provided by Professor Shubhankar Dam. By adopting a collaborative analysis, it shall provide an insight into the standard to be applied to ordinances under both these approaches, ensuring they are compliant with basic structure values, as proposed by us.

  • Articles
  • Critical Pedagogy of the Disabled in Legal Academy and Possibility of Emancipatory Script of Disability Movements: A Critical Note

    Is there a possibility of a critical pedagogy of the disabled in law schools where epistemic imagination is colonised by positivism? What would be the framework and trajectory of such pedagogy? The authors try to sketch the oeuvre of this pedagogy by exposing the inherent limits of disability studies and movements that seek their validity in the language of the neo-liberal market and state. In doing so, the paper highlights the intrinsic exclusionary nature of our legal pedagogy, law schools, and legal discourses concerning our disabled embodiment and our lived experiences that get pushed to the periphery due to this aggressive imposition of the positivist framework of pedagogy that gives its uncritical discursive support to neo-liberal agenda.  This endeavour necessitates going beyond the clearly delineated, orderly, definite, and precise domain of positivist jurisprudence and critically examine the prevailing liberal discussions regarding accessibility and reasonable accommodation.The authors juxtapose three figures of disabled embodiment, namely, Vikas Kumar, G. N. Sai Baba, and Stan Swamy, and their interaction with our judicial system to expose the limits of liberal legalism, its discourse, and limits of disability movements that have only middle-class concerns into their vision.

  • Articles
  • ‘Undue Burden’ Under the Rights of Persons with Disabilities Act, 2016: In Search of a Definitive Legal Standard

    The Rights of Persons with Disabilities Act, 2016, (‘the Act’) in India grants essential rights and protections to individuals with disabilities, anchored in the principle of reasonable accommodation. At the same time, the Act clarifies that a failure to provide reasonable accommodation is justified when providing the accommodation would cause ‘disproportionate or undue burden’. This standard encompassing factors such as financial constraints and resources to implement such measures. However, varied interpretations and implementation of what makes a burden disproportionate or undue often result in a conceptually incoherent application of the principle of reasonable accommodation among different jurisdictions. This paper attempts to address this ambiguity surrounding the determination of ‘disproportionate or undue burden’ in the application of the principle of reasonable accommodation. By undertaking a cross-jurisdictional analysis of historical and legislative contexts, case laws, and considering international standards, the paper identifies key interpretational tools used in unpacking the ‘undue burden’ defence. Thereafter, the paper proposes a clear framework outlining factors for the Indian courts to consider when interpreting this standard. The scope of this paper is confined to a consideration of the undue burden defence in the realm of disability rights law. An examination of this standard in other areas of law, such as religious accommodations, is beyond the scope of this paper. ‎