Year: 2016

The idea of academé is not merely one of settlement of contentions; it is in fact and more importantly, to describe the truthfulness of what exists. The challenge of “what should happen and how” hides in it, a deeper challenge about our understanding of “what is happening around us”. Each one of us may have interesting recipes for the future of Indian polity, but a sensible measure of their strength lies only in their interconnectedness with the truths of our present political existence and in their capability to respond to the misjudgments of past. The present is born out of the past in the same manner as the future would be born through the present. Answers to questions therefore, we think, concerning the past, present and future of constitutional essentialism in India and the promise which it holds for sustainable political development cannot be explored in an empty space ambivalent to the burdens of history. They have to be located instead in a broad framework of political organisation which is accommodative of their interaction with each other. This research may be understood as a statement of a collective effort in this direction to reassess the place of ‘basic structure doctrine’ in the landscape of Indian polity…

The recent judgement of the Delhi High Court in the Naz Foundation case goes beyond merely decriminalising homosexuality. The progressive reinterpretation of Article 15 of the Constitution has brought out its distinct character, which has for long been buried under Article 14 and the general promise of equality it offers. Four key innovation shave been introduced by this reformulation of Article 15, which are likely to give unparalleled protection to all minorities from discrimination. These innovations are 1) the introduction of ‘strict scrutiny’ to review protection under Article 15, 2)the understanding that not only the specified grounds but also grounds analogous to them are to be protected, 3) protection against discrimination not only from the state but also private parties and4) protection from not only direct but also indirect discrimination. The author argues that locating of the right against discrimination in the bedrock of Swaraj or personal autonomy is the crucial tool for justifying the introduction of these innovations. The author concludes that this innovative reinterpretation of Article 15 is likely to give greater credence to anti-discrimination law in the country, bolstering it further which is likely to benefit all minorities – thus reaffirming the counter majoritarian role of the judiciary.

The focus of this article will be on the prosecution and punishment of perpetrators of violations of international criminal law. The article will analyze the desirability and viability of international judicial institutions as a matter of enforcement of international criminal law. In the course of the present article an attempt will also be made to study the principles of state sovereignty and international criminal jurisdiction. It will also make overall assessment of the role played by the United Nations (UN) war crimes tribunals for the former Yugoslavia and Rwanda in respect of prosecution for crimes committed in armed conflicts. This article will also look at the competence of the UN to establish war crimes tribunals.

While both China and India began their independent history rooted in a socialist ideology, albeit with some local customisation, they are today in some measure leaning towards free market capitalism. The development of the right to property in the two countries, however, has been diametrically opposite. While on the one hand India had, in pursuance of its ideological goals, relegated the right to property, China on the other hand, has progressively accorded it a stronger status. However, it has not witnessed the kind of constitutional tensions – be it at the ideological level, as a result of apparently conflicting goals of the State, at the institutional level, as between the judiciary and executive branches of the State, or even at the interface with civil society, which India had to brave. This paper explores the reasons for such divergence of experience. However, as Chinese society and legal institutions witness a change, it is foreseeable that China may experience similar tension as India had once witnessed. In this backdrop, this paper suggests means by which China could learn lessons from the constitutional experience in India, keeping in mind systemic differences in the traditions of the twin nations.

My dear students, colleagues from the faculty and administration, and everyone else who is and has been directly or indirectly associated with NUJS (including, definitely, the current and former honourable members of the managing bodies of the University), I have immense pleasure in being with you this afternoon on the completion of my term as the head of this upcoming institution. This afternoon, and for quite some time during the last several days, weeks and months, I have been taken over by the feeling of losing and leaving behind the love, affection and respect which you have so abundantly bestowed on me. I hope that in the hustle and bustle of life, from time to time you will connect me to your days at NUJS when I have been around, known or unknown to you. In any case, your smiling faces and good actions will keep coming back to me, giving me light and energy during my fading days. Therefore, let us not celebrate today as a day of parting or good bye but as a day of future creation, weaving together the threads of our stray thoughts and interactions into a beautiful tapestry that will give us the pleasure and satisfaction of having made the best of our time at NUJS…

This paper seeks to find an answer to the longstanding dilemma of whether there is room for Islam in modern liberal societies by posing rhetorical questions to Western democracies and members of the Islamic faith alike. Written from the neutral perspective of an outsider, it argues that a misplaced notion of self-censorship and a mentality of constant rejection of criticism characterise Islamic responses to contemporary world controversies. The paper regards such behaviour to be hypocritical to notions of free speech and expression and calls upon Islam to take the onus of setting the record straight by resorting to peaceful and legitimate means of protest against provocations and conceptions that it seeks to deny. It argues that for Islam to live under the same umbrella as western liberalism, it needs to adapt itself and be more receptive to criticism.

While the country is moving towards realizing the goal of achieving the vision of a developed India by 2020, there are still many challenges to be met for accelerating the progress and realizing the goal within nine years. Since I am amidst students and patrons of law, I will discuss the relationship between the importance of building a society with dignity of life and national economic development which will result in people living in a clean and green environment without pollution, having prosperity without poverty, peace without fear of war and a happy place to live for all citizens of the nation. In this context, let me share with you a few thoughts on the topic ‘Evolution of A Happy Society…

The question of whether sexual intercourse, consent to which has been obtained by a false promise of marriage, amounts to rape or not is a question that has come before the Indian judiciary a number of times in recent years. The question has been addressed by the Supreme Court in two recent cases, Uday v. State of Karnataka and Deelip Singh v. State of Bihar. While the former held that the abovementioned situation did not amount to rape, the latter case held to the contrary. This paper carries out an analysis of this question and argues that it is Uday v. State of Karnataka and not Deelip Singh v. State of Bihar which lays down the correct position in law. To prove its hypothesis this paper carries out a review and analysis of all cases that had arisen on the question before Deelip Singh v. State of Bihar. Further, it supports its view by analyzing common law on the matter and goes onto show how the ratio in Deelip Singh v. State of Bihar is based on an incorrect application of the rules of statutory interpretation.

This article aims to deal with the evolution of constitutional adjudication as a formal mechanism for resolving disputes in the area of constitutional law. The interface between law and politics is rather evident in the interpretation offered by courts. This can create obstacles mainly because of the differences that exist between constitutional law and ordinary law. While this interaction has always existed, at times, it gives rise to certain inevitable conflicts in interpretation thus casting doubts on the efficacy of constitutional democracy. The paper proposes to suggest remedies such as restraint in use of power by courts by way of amendments Since the role of the judiciary is only to interpret the existing law, any change in the law or an amendment should vest only with the political powers. This can serve as a check on judicial imperialism and perhaps give incentives to the judiciary to actively participate in discussing the reactions of society to their decisions.

This article examines an unfortunate judicial tendency to depart from the precise wording of the Indian Penal Code by referring to non-Code sources of authority and introducing words and concepts which differ from the Code provisions. This is well illustrated by studying the recent Supreme Court of India judgment in Darshan Singh v. State of Punjab, (2010) 2 SCC 333: AIR 2010 SC 1212 concerning the plea of private defence. The dangers created by this tendency are highlighted and suggestions have been made as to the proper approach that our courts should take.