Articles

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.

Under the Protection of Children from Sexual Offences Act, 2012, (‘the Act’) a minor cannot consent to sexual acts. This has brought minors in consensual relationships in conflict with the law by restricting their sexual autonomy and criminalising innocent juveniles.  This paper examines the rationale for this law and explores its consequences on minors’ relationships. It argues that the judicial interpretations of the Act have distorted the notion of a minor’s consent, leading to adverse consequences for minors in conflict with the law. To address these issues, it proposes a novel approach to a minor’s consent. It shows that the existing law creates an overinclusive and rigid ‘rule’, and a standard grounded in the minor’s competence to consent is desirable vis-à-vis the existing rule. This paper justifies this standard by demonstrating how it better accomplishes the objectives of the Act while preventing consenting minors from falling afoul of the law. It then lays down the parameters and psychological underpinnings of this standard. To demonstrate its potential for just outcomes that align with the objectives of the Act, the paper applies this standard to case laws and offers alternative decisions.

Provisions in the Indian Constitution are capable of an ‘ecdysis’. That is, they may completely shed their skin to don another. Their text may acquire a new legal meaning without any formal change whatsoever. This provokes a unique concern: Constitutional provisions may get pitted against one another. The conflict is a given due to the presence of the ‘basic structure’ doctrine. It demands that all under the Constitution be ever-compliant with fixed Constitutional mores. Only select provisions carry this essence of indispensability. They constitute the core around which the Constitution thrives and was born for. Dynamism denotes that provisions outside of the core may don an unpalatable meaning. Basic provisions may conflict with the circumstantial ones. The concern only deepens from thereon. Even the essential text may not be eternal for posterity. That is, the core provisions may themselves switch meanings. As such, the circumstantial and static provisions may again be in a conflict with the core. This time, obsolescence is the latter’s undoing. Either way, interpretive fluidity heightens the risk of an inter-provisional conflict. A surgical scrutiny of the doctrine helps construct the conceptual aftermath. It was initially forged for unconstitutional amendments that attacked the core.  Time has wrought on it details that enable an enhanced function. It now tackles all forms a threat may shapeshift into.  The basis of this assertion is the doctrine’s design. It is best justified as a manifestation of ‘living-originalism’. This theoretical underpinning makes for a unique occurrence. India’s Constitution may cauterise its own text for self-preservation.

Inclusive education has been embedded into Goal 4 of sustainable development. The Sustainable Development Goals (‘SDGs’), 2030, developed by the United Nations and agreed upon by all its member States, explicitly integrate persons with disabilities and their voices, unlike the erstwhile Millennium Development Goals. In this paper, we assess the compliance and compatibility of India’s legal and policy framework for education of children with disabilities with the goals enumerated under SDG 4 on education. In order to make such an assessment, the paper focuses on the Rights of Persons with Disabilities Act, 2016, the Right to Education Act, 2007, and the National Education Policy, 2020. Data sources, studies, and ongoing litigations in India reveal that the needs of children with disabilities continue to be inadequately met by the State. Therefore, the government’s present policy initiatives towards early childhood interventions, school-going age initiatives, and integration into higher education are mapped and analysed in this paper. Lastly, the paper provides certain suggestions that could facilitate holistic and inclusive education of children with disabilities and ensure our achievement of SDG 4 on education.

Over one billion people worldwide suffer from a disability. Equal access in education and employment for this community of people is a  primary focus of the disability rights movement. The barriers to achieving this are compounded in developing nations, where jurisprudence on this issue remains lacking. Foremost among these barriers is the definition of disability adopted in varying jurisdictions, which often focuses on the medical, rather than social, model of disability. One of the most significant ways to combat discrimination against persons with disabilities remains the right of reasonable accommodation, first proposed in the United States of America (‘USA’) in the landmark Americans with Disabilities Act, 1990. This paper adopts a cross-jurisdictional approach to the issues of defining disability and adoption of the right of a reasonable accommodation in the spheres of education and employment, comparing the construct of the Americans with Disabilities Act, 1990 against the (Indian) Rights of Persons with Disabilities Act, 2016, with the aim of providing suggestions to fortify Indian jurisprudence in this area of law.