A. Public Law in the News
- Disqualification of MP or MLA: after conviction: Deciding a PIL seeking non-reversal of disqualification of a MP or MLA convicted and sentenced for more than two years, SC observed that completely barring appeal courts from exercising discretion in staying conviction under Section 389 of Cr.P.C. is not feasible. However, MPs and MLAs who do not get a stay on conviction shall be shown the door.
- Saving the Taj: Bearing the brunt for being lethargic in the preservation of the Taj Mahal, the U.P. government filed a vision document in the SC enlisting several measures to curb pollution and protect environment in and around Taj Mahal. The measures also suggested that Taj Trapezium be brought under Centre’s Adopt a Heritage Scheme, where public and private companies may be tasked with maintenance, cleanliness and preservation. However, SC opined that a firm cannot be expected to turn Taj around, the approach should be more comprehensive with government playing a decisive role by point blank implementation.
- Jantar Mantar opened to demonstrations: Reversing the ban on demonstrations at Jantar Mantar and and Boat Club imposed by NGT last year, the SC restored the two venues proximate to the seat of central power in Delhi for demonstrations in light of the fundamental right of the people to hold peaceful demonstrations.
- Lokpal Affidavit Unsatisfactory: SC| Terming the affidavit filed by the centre for appointment of Lokpal wholly unsatisfactory, the SC directed the Centre to file a fresh affidavit within four weeks elucidating not only the constitution of the search committee but also laying down a time frame for the completion of its deliberations and making recommendations to the selection committee.
- Cow Vigilantism/Lynching: After several instances of mob lynching in the country, Union Home Misiter Rajnath Singh expressed readiness of the government to enact an anti-lynch law. This coincides with advisory of the Centre to states and police chiefs to effectuate specific measures against any such incidents. Meanwhile, SC has held that no citizen can assault the human dignity of another, such an action would comatose the majesty of law.
- SC dismisses review petition in Judge Loya’s case: In April 2018, the apex court after taking into account discreet inquiry held by Intelligence Bureau relying on sequence of events narrated by four judicial officers denied an investigation into Judge Loya’s death opining that petitions lacked bona fides and revealed misuse of judicial process. SC reiterated its stance when it dismissed the review petition filed by Bombay Lawyers Association (BLA) seeking review and recall of judgement denying an independent probe into Judge Loya’s death. Review petition filed in Supreme Court has been dismissed.
- NCT of Delhi, Government v. LG: The Supreme Court delineated the boundaries of power between the Lieutenant-Governor and Delhi Government by stating that the LG cannot interfere in each and every decision of the Delhi Government, and that the LG is bound by the aid and advise of the council of ministers of Delhi Government, except in matters of land, police and public order.
- Death Penalty for Custodial Death: In a first, two police personnel from Kerala were awarded death penalty for custodial death of Udaykumar, 28, detained by the police in a case of theft. In addition, a heavy fine of Rs. 2, 00,000 was imposed on each one of them.
- Ban of Oxytocin leaves doctors sweating: Blowing the suggestion of the Himachal Pradesh High Court to consider the feasibility of restricting and limiting the manufacture of oxytocin only to public sector companies out of proportion, the Union Public Health Ministry has banned retail sale of oxytocin all over the country. The notification has also vested production and country wide distribution of oxytocin in Karnataka Anitibiotics and Pharmaceuticals Ltd., thus replacing 60 licensed manufacturers with one Public Sector Company on war footing. This has sent gynaecologists and obstetricians into a tizzy.
- I-T returns without Aadhar: With the SC yet to decide on the constitutionality of Aadhar scheme, the Delhi HC has ordered the I-T department to make modifications in its e-filing portal or have an ‘opt out’ alternative to enable taxpayers without Aadhar to file income tax returns.
- Medical Admission Row in Maharashtra: In a landmark verdict, the Bombay High Court laid to rest chaos in medical admissions in recent years. The court held that rules making it mandatory for aspirants claiming admissions to 85% state quota of seats to not only be domiciled in Maharashtra but also have completed Class X and XII from the state ware not against constitutional mandate and the state was empowered to do so.
- Bom HC: Intercountry Adoption of Autistic Child, Complete Passport Procedures at Residence: Permitting a US National to adopt a 12 year old autistic boy, the Bombay HC directed the Regional Passport Office to take necessary interview and complete procedures at his residence where the boy is more comfortable. It also directed the Protocol Department of the High Court to coordinate with the Regional Passport Office to ensure a hassle free process.
- Trafficking Bill Passed by LS: The Lok Sabha passed Trafficking of Persons (Prevention, Protection and Reahabilitation) Bill, 2018 on Monday, July 23, 2018. Terming the legislation as victim centric, WCD minister Maneka Gandhi highlighted confidentiality, time bound trials, punishments for aggravated forms of trafficking and setting of National Anti-Trafficking Bureau as focal points of the Bill.
- Criminal Amendment Bill passed by LS: The Lok Sabha, on Monday, July 30, passed the Criminal Law Amendment Bill, 2018 thus replacing the ordinance promulgated by the Centre in wake of public outcry over Kathua rape incident. It makes the rape of a girl child below twelve years of age an offence punishable with death.
- Fugitive Economic Offender’s Bill passed by Parliament: The Rajya Sabha, on July 25, passed the Fugitive Economic Offender’s Bill which was introduced by the Finance Minister Piyush Goyal. The Bill was passed by Lok Sabha on July 19. The Bill is aimed at strengthening the laws dealing with loan defaulters who flee the country.
- Justice Safdar nominated first woman Chief Justice in Pakistan: From having the distinction of being the first woman civil judge in Bolochistan, then the first woman high court judge in Pakistan, Justice Syeda Tahira Safdar will now be the first woman Chief Justice of a Pakistan High Court (Balochistan), in the conservative muslim-majority nation, after an announcement confirming her nomination by the Chief Justice of Pakistan.
- GST Exemption on Sanitary Napkins: Fearing imported sanitary napkins to flood the market at discount after GST exemption, low-cost manufacturers of sanitary napkins are in a dire worry of being rendered uncompetitive. Due to lack of input credit, costs will inevitable increase, thus ultimately not meeting the government’s objective to make available affordable sanitary napkins.
- NGT: If cigarette packs can have warning, why not Ganga water? On account of reverence and respect people have for river Ganga, NGT has directed Central Pollution Control Board and National Mission for Clean Ganga, to upload a prominent map indicating areas where people can drink, bathe and perform achamana (Purification Ritual) with due information about adverse effects of polluted water.
- UK lawmakers urge stringent oversight over social media campaigns: An interim report by the media committee of the House of Commons has urged the UK government to increase its oversight of social media in digital age, especially so in election campaigns. While citing fake news, interference by Russia and data misuse as major problems that deserve attention, it has recommended widening the powers of the Information Commissioner to regulate social media sites, update electoral laws to reflect modern campaign techniques and increase transparency of political advertising on social media.
- Data Protection in India: A high level committee headed by Justice B N Srikrishna has proliferated consent as the edifice of data protection bill in India. It has also proposed amendments in the Aadhar Act to bolster data protection. Recently, however, SC declined data Protection report by Justice Srikrishna committee declined to be taken on record.
B. Current Cases in India
- Sabarimala: Will of God v. Statute?
On Tuesday, August 24, 2018, the Supreme Court commenced hearing on the constitutionality of the ban on entry of women in the historic Sabarimala temple. A day by day account is as follows:
Day 1: Petitioners submitted that restriction of women in temples is an age old practice particularly related to the physiological cycle of menstruation, a productive system indispensable to evolution of man. It was also contended that Sabarimala Temple is not a separate religious denomination for the purpose of Article 26.
Day 2: After looking into the attributes of religious denomination under Article 26, Indira Jaising argued that prohibition of women is a form of untouchability under Article 1. Justice Misra remarked “Where a man can go, a woman can go.” Amicus Curiae Raju Ramachandran submitted that right of women to enter temple is a substantive right flowing from Article 25(2)(b) andnot merely an enabling provision.
Day 3: SC questioned vociferously upon the fixation of age group of 10-50 for restricting entry of women in lieu of menstruation cycle. Senior Advocate P.V. Sundrenanthan argued that the worship falls within the purview of Article 19(1)(a) due to interconnected nature of fundamental rights. Abhishek Manu Singhvi, representing Deavswom Board, submitted that Lord Ayyappa was a celibate for life and the practice of prohibition of women is firmly rooted on this belief for hordes of devotees.
Day 4: Sabarimala hearing witnessed certain remakrs, which could be interpreted as feminist, as Justice Nariman and Justice Chandrachud opined that prohibition on entry of women on physiological grounds or grounds of societal morality would be patriarchal and hence, unconstitutional. After the coming into force of the Constitution, equality and liberty are the cornerstones for testing of any action.
Day 5: This day Advocate K Parasaran submitted that women in Kerala are socially advanced, by virtue of their education, yet do not oppose policies of Sabarimala temple. Hence, he requested that the issue should not be subjected to notions of patriarchy or misogyny. After discussing the scope of Article 17 and Article 25(2)(b), he slipped a retort to the questions of Justice Nariman, in the words “Over activism will create a thrisanku heaven.”
Day 6: While the day witnessed arguments on behalf of Tantriks in the temple, arguments went on to indicate that the said petitions were mere publicity stunts. Advocate Jai Sai Deepak added more intriguing arguments when he argued that Lord Ayyappa is a legal person and entitled to maintain the status of a celibate in terms of right to Privacy under Article 21 of the Constitution.
Day 7: Advocate Biju prayed that the court may not interfere in the customary practice prevalent from generations in the family while Mr. Sankaranarayan argued that declaring impugned practice unconstitutional will hamper essential religious practices that have survived the tests of time and stability.
- Section 377 of IPC
On 10 July, 2018, Supreme Court bench comprising of Chief Justice Dipak Misra, Justice A.M Khanwilkar, Justice D Y Chandrachud, Justice R F Nariman and Justice Indu Malhotra commenced hearing the matter on constitutionality of Section 377 of IPC and in effect decriminalization. A day by day account is as follows:
Day 1: Senior Counsel Mukul Rohatgi prayed that the issue not be confined to the decriminalisation of the practice of homosexuality, but also be a declaration that the rights of the LGBT community are covered under Article 21. The bench concluded that confining adjudication is confined only to the constitutionality of criminalization of homosexuality under Section 377 IPC, and is not addressing larger issues pertaining to civil rights of homosexual community.
Day 2: ASG Tushar Mehta, submitted the Centre’s affidavit, clarifying the stance to not contest and leave the decision at the wisdom of the court. He also shared his personal apprehension of extension of right to choose sexual partner extending to sexual orientation which would legitimize bestiality and incest, to which Chandrachud J. and CJI weighed in and confirmed that only right recognized is the right to choose sexual partner and not beyond. There was also a clarification from bench that the case was not restricted to sexual act, but encompassed the overall relationship thereto.
Advocate Maneka Guruswamy also made her arguments the same day, and stressed on curtailment of freedom of expression and association, in addition to Article 14, 15, 19 and 21. She referred to the SCOTUS judgment of Obergefell, Candian and African Supreme Court, to make her case. She also submitted that homosexuality is not a psychiatric disorder.
Day 3: Senior Advocate Shyam Divan argued that Article 14 envisages a positive act on the part of the State to secure equality to the LGBT community and that Article 21 should incorporate right to intimacy. There was also a discussion on the social stigma which discourages acknowledgment of sexual orientation and statutory insensitivity in acts like Domestic Violence Act, which does not recognize homosexual couples and lack of law on adoption by such couples. There was also a suggestion for public referendum which was turned down by CJI stating that constitutional questions cannot be resolved by this recourse.
Day 4: The final day arguments were by Advocate Manoj George. There was discussion on the Yogyakarta Principles, from which the concept of sexual orientation is derived, consent, situations contemplated by Section 377 and absence of consent as an element of S. 377.
- Female Genital Mutilation
The Court No. 1 bench comprising of Chief Justice, A.M. Khanwilkar and D.Y. Chandrachud JJ. while hearing the matter on constitutionality of practice of Female Genital Mutilation (FGM) made feminist observations, relating gender, more importantly genitalia autonomy to Constitutional mandate and categorizing control over genitalia as matter of privacy, dignity and complete authority. The practice is portrayed as an “essential religious practice” under 25(1) and challenge is made on grounds of violation of inter alia Article 15 and 21 and as an exception to Article 25(1) is subject to public morality and health.
Senior Advocate Indira Jaising, stated in clear terms that FGM is an offence under IPC as well as POCSO, except for medical purpose. Senior Counsel Rakesh Khanna pointed out that there is no health benefit associated with the practice and also referred to the archaic religious texts, which dictate practice for purity and “better complexion”.
- Lack of Access to Differently Abled
A bench of Justices A K Sikri and Ashok Bhushan categorically pulled up the centre for sleeping over their order passed in December to make public places and government buildings accessible differently abled in accordance with the law. The court has asked the centre to file an affidavit within four weeks over its implementation measures in lieu of series of directions passed by the apex court over the course of past six months.
C. Cases Across the Pond
|Date||Case Name||Ratio Decidendi|
|26 June 2018||Trump v. Hawaii
|Held: The president has lawfully exercised the broad discretion granted to him under 8 U. S. C. §1182(f) to suspend the entry of aliens (more popularly known as “Muslim ban”) into the United States; respondents have not demonstrated a likelihood of success on the merits of their claim that Presidential Proclamation No. 9645 violates the establishment clause.|
|18 June 2018||Benisek v. Lamone
Held: Because the balance of equities and the public interest tilt against the preliminary injunction motion of plaintiffs claiming that a Maryland congressional district was gerrymandered to retaliate against them for their political views, the district court did not abuse its discretion in denying the motion.
It allowed elections to proceed under the state’s current election map.
|4 June 2018||Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 7-2
See also Lee v Ashers Baking Company Ltd.
|Held: The Colorado Civil Rights Commission’s actions in assessing a cake-shop owner’s reasons for declining to make a cake for a same-sex couple’s wedding celebration violated the free exercise clause.|
E. Vital Constitutional Questions
Art 371A: The Naga Exceptionalism: Creation of a State within a State?
In July 1960, an agreement was reached by the Government of India with the leaders of the Naga Peoples Convention under which it was decided that Naga Hills Tuensang Area (Nagaland) originally a part of Assam, would be formed into a separate state in India. Article 371A, inserted in 1962, implemented that agreement and it was followed by the enactment of the State of Nagaland Act, 1962.
Art.371-A(1)(a)(iv) reads ‘Notwithstanding anything in this Constitution, no Act of Parliament in respect of ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides.’ It is the interpretation of this particular clause that has caused the Centre and the State to lock horns in the recent past regarding the exploitation of the latter’s natural resources.
This raises an intriguing question. Does this mean that every Act of Parliament to start with, is applicable in the State of Nagaland on its enactment unless the State Legislative Assembly by a resolution decides otherwise? To explore, read more on the link in the footnote.
F. Intersection(s) of Public Law
Can Member(s) of Parliament be Held Criminally Liable for Misusing Their Office?
- Position in India: Members of Parliament in India relish several parliamentary immunities. Hence, even notionally, they are not held criminally liable for misuse of their office.
- Position in United States: Members of Congress in US also relish several parliamentary immunities. However, as opposed to India, members of Congress in US have been indicted for misuse of their office and several other charges in the past. There are more than two dozen members of Congress indicted since 1980. Refer the footnote for a comprehensive list.
G. Appurtenant Scholarship
- Basic Structure Constitutionalism: Revisiting Kesavananda Bharati
Eastern Book Company
This is a must read book for any student who wants to understand the complexities and nuances in the eleven (concurring and dissenting) opinions of Kesavananda Bharati case. This case was decided by a thin majority of 7:6. In this book, judgement wise analysis is made in simple language with critical comments. Besides, the book also has dedicated sections where authors have essayed on the various aspects of basic structure doctrine.
- Towards a Theory of Reasonableness, Michele Mangini
This article is a must read piece for it provides a fresh philosophical perspective on the ‘Doctrine of Reasonableness’. It has relevance for Indian Constitutional Law as well, as it would enable us to unravel and articulate the rolled up concept of Reasonableness enshrined in Article 19 of Part III.
- International Journal of Constitutional Law
Those who are interested in grappling with the current developments in Asian Public Law must have a look at April 2018 issue (Volume 16, Issue 2) of the International Journal of Constitutional Law.
- Nehru, Non-Judicial Review & Constitutional Supremacy, Chintan Chandrachud
While the scholarship is obsessed with the analysis and role played by judicial review vis-à-vis Indian Constitution, Chintan Chandrachud introduces a new paradigm by looking into how in Nehruian era, Parliament engaged in “non-judicial review” to develop an alternative interpretation of the Constitution. This article proves the assertion of Prof. Upendra Baxi that judiciary is not the some interpreter of the Constitution
- The Supreme Court and executive law-making: the afterlife of failed ordinances in Krishna Kumar Singh II, Gaurav Mukherjee
In this article, Gaurav Mukherjee analyses the landmark Supreme Court judgement touching on the effects of promulgation of Ordniance. He focuses on following 4 key aspects of the judgement: conditions for valid promulgation of an ordinance, the survival of actions under failed ordinances, justiciability of executive satisfaction over necessity of promulgating an ordinance, and legality of re-promulgating ordinances.
G. Public Law on Other blogs
H. Mesmerizing Quotes
- Dipak Misra, C.J. in ‘Common Cause v. Union of India’, (2018) 5 SCC 1
“Human dignity is beyond definition. It may at times defy description. To some, it may seem to be in the world of abstraction and some may even perversely treat it as an attribute of egotism or accentuated eccentricity. This feeling may come from the roots of absolute cynicism. But what really matters is that life without dignity is like a sound that is not heard. Dignity speaks, it has its sound, it is natural and human. It is a combination of thought and feeling, and, as stated earlier, it deserves respect even when the person is dead and described as a “body”.”
- Dr D.Y. Chandrachud, J. in ‘Tehseen Poonawalla v. Union of India’, (2018) 6 SCC 72
“It is a travesty of justice for the resources of the legal system to be consumed by an avalanche of misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda. This has spawned an industry of vested interests in litigation. There is a grave danger that if this state of affairs is allowed to continue, it would seriously denude the efficacy of the judicial system by detracting from the ability of the court to devote its time and resources to cases which legitimately require attention. Worse still, such petitions pose a grave danger to the credibility of the judicial process.”
The PDF version of this post is available from the Public Law Bulletin tab in the Home Page.
Ms. Vaijayanti Joshi
ILS Law College Pune
Dr. Sanjay Jain
Associate Professor & Faculty Co-ordinator
Centre for Public Law
ILS Law College, Pune
Mr. D.P. Kendre
Assistant Professor & Faculty Co-ordinator
Centre for Public Law
ILS Law College, Pune
Feel free to reach out to our Student Editors at:
Varad S. Kolhe
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https://www.thehindu.com/opinion/editorial/a-good-beginning/article24555841.ece; https://www.thequint.com/news/india/key-highlights-from-srikrishna-committee-report-on-data-protection; https://scroll.in/article/888600/data-protection-bill-the-problem-isnt-just-the-proposed-law-it-is-also-who-will-enforce-it
See written submissions here,http://www.livelaw.in/sabarimala-womens-entry-day-1-restrictions-on-entry-of-women-nowhere-connected-with-religious-practices-in-the-temple-submits-petitioner-read-written-submissions/.
See written submissions here, http://www.livelaw.in/sabarimala-day-2prohibiting-women-from-entering-temple-is-a-form-of-untouchabiltysubmits-jaising-what-applies-to-man-applies-to-woman-as-well-says-cji-dipak-misra/.
See written submissions here, http://www.livelaw.in/sabarimala-day-6-lord-ayyappa-is-a-legal-person-and-entitled-to-maintain-the-perpetual-celibate-status-under-the-right-to-privacy-under-article-21-argues-adv-sai-deepak/ .
The 16-point Agreement arrived at between the Government of India and the Naga People’s Convention, July, 1960; Available at: http://www.satp.org/satporgtp/countries/india/states/nagaland/documents/papers/nagaland_16point.htm
ijlljs.in/wp-content/…/Deconstructing-Article-371A-The-Naga-Exceptionalism.docx; ‘Nagaland Government’s Oil Plans hit major snag’, The Morung Express, (Dimapur, 18 October 2015); Available at: http://morungexpress.com/nagaland-governments-oil-plans-hit-major-snag/.