Articles

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.

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.

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. ‎

The suprema lex of the Indian nation-State bestows the power of judicial review upon the courts to keep in check the powers of various organs of the State by providing for a separation of powers, and checks and balances-based governance system. The scope of judicial review has been a contentious issue ever since the Indian Constitution, 1950 (‘the Constitution’) came into effect and has been the subject matter of many a landmark judgement. Arguably, the most important judicial development in India has been the basic structure doctrine evolved by the Supreme Court in Kesavananda Bharati v. Union of India. Developed to check the amending powers of the Parliament, the doctrine has since evolved into an all-encompassing variant of judicial review being used to check a vast array of State action. This paper intends to discuss the nature and location of the basic structure doctrine in the Constitution and inquire whether it resides within the constitutional provisions while expanding the significance and development of the basic structure doctrine. The paper, while accepting the doctrine’s significance to check constitutional amendments, identifies the aspects of the expanding scope of judicial review and argues against its application to ordinary law on various grounds. Incorporating and analysing scholarly discourse and judicial pronouncements, the paper suggests alternate and legitimate ways to achieve goals that are sought to be attained through the application of the basic structure doctrine.

The limited decisions and commentary on the justiciability of ordinances have relied upon administrative law grounds. Given the constitutional origin of ordinances and the unique executive law-making they entail, there is significant scope for the application of principles of constitutional law to their review. This paper pitches the application of the basic structure doctrine in judicial scrutiny of ordinances. First, ordinances are broken down into their constituent executive and legislative elements to strip them of the immunities ordinary legislation enjoys from judicial review. Second, lessons are drawn from the application of the basic structure doctrine to executive action in S. R. Bommai v. Union of India (‘Bommai’) with support from the United Kingdom Supreme Court’s ruling R (Miller) v. Prime Minister/Cherry v. Advocate Gen. for Scotland. Thereafter, Bommai’s reasoning is enhanced with novel propositions and applied to ordinance-making powers. The rule of separation of powers is extended to form a new principle of tripartite equilibrium for a balance between the branches of government. Tripartite equilibrium further rationalises the application of the basic structure doctrine to ordinances. Lastly, a two-fold model of motive examination of ordinances is expounded to review the condition precedent of an ‘immediate need’ of the ordinance.

The Forest Conservation (Amendment) Act, 2023, (‘the Amendment Act’) has introduced significant changes to the Forest Conservation Act of 1980. The amendments have diluted the forest conservation law regime in India by introducing multiple exemptions and definitional loopholes to circumvent conservation obligations. The prevailing state of affairs has been further worsened and decapacitated by unreliable forest data, which was one of the main criticisms of the India State of Forest, 2021, report. These amendments have been introduced at a time when international agreement on cooperative action towards climate change mitigation has gained pace, as evident in the recently concluded 28^th session of the Conference of Parties. This paper seeks to critically analyse the fundamental changes that have been introduced by the Amendment Act, through an assessment of the scale of the potential consequences. The paper also seeks to present the problems inherent in the mechanisms adopted for recording forest data of India, along with modifications that have the potential to improve its qualitative character. Furthermore, an argument for overhaul in the forest law regime of India has been made, in light of the observations made in Global Stocktake and India’s nationally determined contributions under the Paris Agreement. Certain indispensable attributes of an ideal forest conservation law have been elaborated upon to advance the need of a new forest conservation law.

This paper contests the dichotomous monist-dualist understanding of the relationship between municipal and international law. It determines that this approach is rendered limited as it proposes a sense of legal clarity, which, in fact, is non-existent. This is evidenced in the inconsistency between textual constitutional expression and practical application in written as well as unwritten constitutions. It is augmented by the contemporary critique of constitutional orthodoxy in favour of rights-based jurisprudence, a weak normative view of constitutional texts regulating the incorporation of international law, and contradictions between the textual proclamations and historical customary practices. Instead, the paper proposes a spectrum-based vision that recognises the fluid tendencies of nations and multilateral institutions in interacting with and reciprocating the laws and actions of others. The paper demonstrates the absence of pure monism and pure dualism and argues that each nation is uniquely positioned on a spectrum between these two far ends. This position itself is dynamic and relative. It may change, and it may be described in relation to another nation or the same nation in a different time period. The paper argues that, additionally to the role played by constitutional courts in altering the value attached to textual constitutional expression, the degree of institutionalisation of regional organisations is significant. It delves deep into the case of the European Union (‘EU’) to establish the point. Finally, despite determining the EU as an exceptional body fostering monist tendencies among member states via the doctrine of direct effect, the paper focuses on the reactionary capacity of national constitutional courts in determining the degree of monism on the spectrum.

The concept of ability breeds discrimination. On the basis of empirical evidence and other intangible aspects of human existence, the authors submit, that the theory of centrality governs the understanding of canons of criminal jurisprudence asymmetrically more than the theory of marginality. It is in this light that the insanity defence needs substantial, if not total, reconstruction. The article characterises mental disability with reference to the concept of responsibility in criminal law underlining the essential variance in the perception and construction of the defence.  The authors, on one hand, highlight the quandary of the present-day approach by underlining the invasion of the most basic rights such as that of equality, non-discrimination and the right to access justice and self-determination, while on the other hand, dwell on the glaring inconsistencies in the law and procedure in this area. Finally, the authors reason that the critical disability viewpoint requires us to avoid adopting any exclusionary action, more so on the basis of rationality that the majority commands. The focus must not be to place people beyond criminal adjudication but to improve rehabilitation services and expand the understanding of subjective defences of mens rea. This is what the disability discourse stands for.

The advent of mainstream genres in music has given rise to a plethora of copyright claims, pitting top artists against each other. For instance, The Hollies’s claim of infringement against Radiohead over ‘Creep’, which followed Radiohead’s own claim relating to the track against Lana Del Ray. The note aims to assess whether such concerns pertaining to infringement are overstated, especially in light of various factors that propel the composition of music today. First, many mathematical studies indicate that the number of harmonies that may be constructed on a given number of bars are finite. Second, ‘pop’ or ‘rap’ music artists today show a trend of utilising similar scales, chords, time signatures and beats (i.e., easier scales on smaller and repetitive bars that could be popularised amongst the audience due to their ease of making ‘covers’, amongst other methods). Third, the creation of marketable music draws on the pre-existing corpus for inspiration, which is the reason why one witnesses the amount of remixing and sampling of music as done today. The author understands that the basis of copyright lies in the recognition of an individual’s creative efforts. However, this may be offset by the increasing commercialisation of tunes in the twenty-first century. This note proposes to explore arguments furthering the above-mentioned statements, essentially to determine whether courts should be taking such claims of copyright infringement as seriously.