Pub Date : 2021-05-04DOI: 10.1080/24730580.2021.1913880
Amal Sethi
ABSTRACT The book under review is dedicated to exploring the history of the 2004 Afghanistan Constitution and providing an overview of the said document. This article aims to place the book and its underlying discussions in the context of the ground-level situation in Afghanistan. This article will contend that the book, while being well researched and engaging, does not sufficiently acknowledge the realities under which the 2004 Afghanistan Constitution has to operate. It will further elucidate how despite a few silver-linings, the constitution-making process and the eventual 2004 Afghanistan Constitution, both of which the book reflects rather positively on, suffered from flaws that pose as an obstacle to the Constitution’s endurance. The ultimate hope of this article is to use the book to highlight some of the do’s and don’ts in state-building and constitution-making in societies like Afghanistan, as well as provide a springboard for future academic exploration.
{"title":"Book review: Afghanistan Legal Education Project, An Introduction to the Constitutional Law of Afghanistan (Stanford Law School, Rule of Law Program, 2nd Edition, 2015)","authors":"Amal Sethi","doi":"10.1080/24730580.2021.1913880","DOIUrl":"https://doi.org/10.1080/24730580.2021.1913880","url":null,"abstract":"ABSTRACT The book under review is dedicated to exploring the history of the 2004 Afghanistan Constitution and providing an overview of the said document. This article aims to place the book and its underlying discussions in the context of the ground-level situation in Afghanistan. This article will contend that the book, while being well researched and engaging, does not sufficiently acknowledge the realities under which the 2004 Afghanistan Constitution has to operate. It will further elucidate how despite a few silver-linings, the constitution-making process and the eventual 2004 Afghanistan Constitution, both of which the book reflects rather positively on, suffered from flaws that pose as an obstacle to the Constitution’s endurance. The ultimate hope of this article is to use the book to highlight some of the do’s and don’ts in state-building and constitution-making in societies like Afghanistan, as well as provide a springboard for future academic exploration.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-05-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73835609","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-19DOI: 10.1080/24730580.2021.1905339
Anindita Pattanayak, D. McDonald-Norman
ABSTRACT The Supreme Court’s judgement in State of Uttar Pradesh v Kaushailiya (“Kaushailiya”) affirmed the constitutionality of section 20 of the Suppression of Immoral Traffic in Women and Girls Act 1956. Our “alternative judgement” and commentary challenge the reasoning of the bench in that case from a feminist perspective, including Subba Rao J’s implicit use of concepts of contamination and pollution to support his Lordship’s reasoning.
{"title":"Purity and pollution: a feminist rewriting of State of Uttar Pradesh v. Kaushailiya AIR 1964 SC 416","authors":"Anindita Pattanayak, D. McDonald-Norman","doi":"10.1080/24730580.2021.1905339","DOIUrl":"https://doi.org/10.1080/24730580.2021.1905339","url":null,"abstract":"ABSTRACT The Supreme Court’s judgement in State of Uttar Pradesh v Kaushailiya (“Kaushailiya”) affirmed the constitutionality of section 20 of the Suppression of Immoral Traffic in Women and Girls Act 1956. Our “alternative judgement” and commentary challenge the reasoning of the bench in that case from a feminist perspective, including Subba Rao J’s implicit use of concepts of contamination and pollution to support his Lordship’s reasoning.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85699460","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-04-14DOI: 10.1080/24730580.2021.1911476
F. Akter
ABSTRACT The article examines the standard of assistance provided by Indian legal aid lawyers in light of the international human rights normative framework. It demonstrates that the Indian legal aid system seeks to establish a functional framework to secure justice for all. However, it is not able to ensure that legal aid providers render effective assistance to the beneficiaries. As a result, the system complies with the international human rights standards in terms of legal provisions only; the quality of service delivered does not meet those standards. The article, therefore, recommends some measures to remedy the shortcomings of the Indian legal aid system to bring it into conformity with the international human rights standards and, eventually to guarantee effective assistance from legal aid lawyers.
{"title":"The standard of assistance from legal aid lawyers: an Indian perspective","authors":"F. Akter","doi":"10.1080/24730580.2021.1911476","DOIUrl":"https://doi.org/10.1080/24730580.2021.1911476","url":null,"abstract":"ABSTRACT The article examines the standard of assistance provided by Indian legal aid lawyers in light of the international human rights normative framework. It demonstrates that the Indian legal aid system seeks to establish a functional framework to secure justice for all. However, it is not able to ensure that legal aid providers render effective assistance to the beneficiaries. As a result, the system complies with the international human rights standards in terms of legal provisions only; the quality of service delivered does not meet those standards. The article, therefore, recommends some measures to remedy the shortcomings of the Indian legal aid system to bring it into conformity with the international human rights standards and, eventually to guarantee effective assistance from legal aid lawyers.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75281333","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-03-31DOI: 10.1080/24730580.2021.1905340
Sujith Koonan
ABSTRACT Manual scavenging has a long history in India and it continues even now in different forms. Legal responses to manual scavenging varied from time to time. In the contemporary context, it is seen as a violation of human dignity and many other human rights as well as an unacceptable sanitation practice. Nevertheless, the process towards elimination of manual scavenging has been slow, which led to organized resistance and protest, including litigation, by the manual scavenging community. This paper examines the issue of manual scavenging in India from a legal perspective. It analyses the ways in which the law has addressed the issue of manual scavenging and the strategies used by the manual scavenging community to get the law passed and implemented. It presents a complex scenario on how historical and social perceptions have shaped the legal discourse and the role of social movements in re-shaping or deconstructing the discourse.
{"title":"Manual scavenging in India: state apathy, non-implementation of laws and resistance by the community","authors":"Sujith Koonan","doi":"10.1080/24730580.2021.1905340","DOIUrl":"https://doi.org/10.1080/24730580.2021.1905340","url":null,"abstract":"ABSTRACT Manual scavenging has a long history in India and it continues even now in different forms. Legal responses to manual scavenging varied from time to time. In the contemporary context, it is seen as a violation of human dignity and many other human rights as well as an unacceptable sanitation practice. Nevertheless, the process towards elimination of manual scavenging has been slow, which led to organized resistance and protest, including litigation, by the manual scavenging community. This paper examines the issue of manual scavenging in India from a legal perspective. It analyses the ways in which the law has addressed the issue of manual scavenging and the strategies used by the manual scavenging community to get the law passed and implemented. It presents a complex scenario on how historical and social perceptions have shaped the legal discourse and the role of social movements in re-shaping or deconstructing the discourse.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91527590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-03-12DOI: 10.1080/24730580.2021.1899627
Rudresh Mandal, Ashwini Murthy
ABSTRACT This paper locates its relevance in the post-coronavirus era. The business and legal fraternities have been provided an opportunity to re-examine the role of companies in society, at a time when supply chains are being dismantled and distrust in capitalism has increased. We argue that for companies to build sustainability into business practices (for CSR cannot just be a “check the box” solution to social ills), the investment community – with necessary support from the regulators – must pressurize businesses to do so. We observe that the manner in which CSR is understood and implemented in India is insufficient, due to a myriad of factors including vested political interests. Thereafter, we highlight how market-driven measures such as ESG investing, uniform ESG reporting and an effective investor stewardship model can be the next pieces of the “desirable” CSR puzzle in India.
{"title":"CSR in the post pandemic era: the dual promise of ESG investment and investor stewardship","authors":"Rudresh Mandal, Ashwini Murthy","doi":"10.1080/24730580.2021.1899627","DOIUrl":"https://doi.org/10.1080/24730580.2021.1899627","url":null,"abstract":"ABSTRACT This paper locates its relevance in the post-coronavirus era. The business and legal fraternities have been provided an opportunity to re-examine the role of companies in society, at a time when supply chains are being dismantled and distrust in capitalism has increased. We argue that for companies to build sustainability into business practices (for CSR cannot just be a “check the box” solution to social ills), the investment community – with necessary support from the regulators – must pressurize businesses to do so. We observe that the manner in which CSR is understood and implemented in India is insufficient, due to a myriad of factors including vested political interests. Thereafter, we highlight how market-driven measures such as ESG investing, uniform ESG reporting and an effective investor stewardship model can be the next pieces of the “desirable” CSR puzzle in India.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76456894","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-28DOI: 10.1080/24730580.2021.1877937
Rike U. Krämer-Hoppe
ABSTRACT The systems of judicial review of administrative decisions differ in various countries. Even as differences are observable, each system creates certain stable expectations towards the functioning of judicial review and more generally towards the relationship amongst the three branches of government. Courts can behave outside of these stable expectations. This paper labels these situations as courts stepping in. In Germany as well as India, courts have played an active role in air quality litigation. The paper assesses whether in both cases courts stepped in and thereby highlights the importance of knowing the stable status quo for administrative comparative law scholarship.
{"title":"When do courts step in? Air quality litigation and adjudication in Germany and India","authors":"Rike U. Krämer-Hoppe","doi":"10.1080/24730580.2021.1877937","DOIUrl":"https://doi.org/10.1080/24730580.2021.1877937","url":null,"abstract":"ABSTRACT The systems of judicial review of administrative decisions differ in various countries. Even as differences are observable, each system creates certain stable expectations towards the functioning of judicial review and more generally towards the relationship amongst the three branches of government. Courts can behave outside of these stable expectations. This paper labels these situations as courts stepping in. In Germany as well as India, courts have played an active role in air quality litigation. The paper assesses whether in both cases courts stepped in and thereby highlights the importance of knowing the stable status quo for administrative comparative law scholarship.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75377871","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/24730580.2020.1865654
Vishal Rakhecha
ABSTRACT The right of privacy after the judgement of the Supreme Court in Puttaswamy has been used as a means to restrict publication of private information of public officials by news media. This could lead to the stifling of free-speech rights of media. An appropriate balance would need to be struck between the normative values underlying these rights. On the one hand, protecting the dignity and autonomy of an individual, and on the other publishing information that is going to be in public interest.
{"title":"Privacy, the shield that protects or the sword that strikes freedom of speech?","authors":"Vishal Rakhecha","doi":"10.1080/24730580.2020.1865654","DOIUrl":"https://doi.org/10.1080/24730580.2020.1865654","url":null,"abstract":"ABSTRACT The right of privacy after the judgement of the Supreme Court in Puttaswamy has been used as a means to restrict publication of private information of public officials by news media. This could lead to the stifling of free-speech rights of media. An appropriate balance would need to be struck between the normative values underlying these rights. On the one hand, protecting the dignity and autonomy of an individual, and on the other publishing information that is going to be in public interest.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79035154","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/24730580.2021.1880722
Siddharth Narrain
In this book, Gautam Bhatia offers an original reading of the transformative aspects of the Indian constitution through an analysis of nine judgements of appellate courts. Bhatia argues for a trans...
{"title":"Transformative constitutionalism: a radical biography in nine acts,","authors":"Siddharth Narrain","doi":"10.1080/24730580.2021.1880722","DOIUrl":"https://doi.org/10.1080/24730580.2021.1880722","url":null,"abstract":"In this book, Gautam Bhatia offers an original reading of the transformative aspects of the Indian constitution through an analysis of nine judgements of appellate courts. Bhatia argues for a trans...","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72972829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/24730580.2020.1866882
Monika Polzin
ABSTRACT One fascinating aspect of the Indian basic-structure doctrine for a German lawyer is that its origin and development were influenced by the German scholar, Dietrich Conrad. This paper therefore focuses on Conrad’s work and his French and German sources for the argument that there are implied limits on the amending power. It describes the journey of this idea to India and specifies which parts of these prior theoretical works were lost in time and space, which survived, and which were developed further.Finally, there is acomparison between the justification for the basic-structure in the Kesavanada judgment and the earlier German and French theoretical works. The main thesis is that the Indian basic-structure doctrine is a powerful example of how to justify implied limits on constitutional amendment based on a rule-of-law approach that is firmly rooted in the idea of a democratic and constitutional state.
{"title":"The basic-structure doctrine and its German and French origins: a tale of migration, integration, invention and forgetting","authors":"Monika Polzin","doi":"10.1080/24730580.2020.1866882","DOIUrl":"https://doi.org/10.1080/24730580.2020.1866882","url":null,"abstract":"ABSTRACT One fascinating aspect of the Indian basic-structure doctrine for a German lawyer is that its origin and development were influenced by the German scholar, Dietrich Conrad. This paper therefore focuses on Conrad’s work and his French and German sources for the argument that there are implied limits on the amending power. It describes the journey of this idea to India and specifies which parts of these prior theoretical works were lost in time and space, which survived, and which were developed further.Finally, there is acomparison between the justification for the basic-structure in the Kesavanada judgment and the earlier German and French theoretical works. The main thesis is that the Indian basic-structure doctrine is a powerful example of how to justify implied limits on constitutional amendment based on a rule-of-law approach that is firmly rooted in the idea of a democratic and constitutional state.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74984753","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-02DOI: 10.1080/24730580.2020.1868225
Eesha Shrotriya, S. Pachauri
ABSTRACT Simultaneous elections to the Lok Sabha and State Legislative Assemblies have been proposed by the NITI Aayog and other government institutions to minimize the disruptions caused by frequent elections which include enormous expenditure, administrative burden, communal violence, policy manipulation, etc. These institutions endeavour to introduce and sustain simultaneous elections with the aid of mechanisms like constructive vote of no-confidence, fixed-term legislatures, and executive rule in case of premature dissolutions. Such proposals are based on the misplaced assumption of the dependence of simultaneity on these mechanisms. We find that simultaneity can be introduced without incurring accountability costs. In a bid to achieve stability in governance, they make the system rigid, attack the principles of democracy and federalism, and erode executive accountability towards the legislature, implicating an important tenet of parliamentary democracy. We suggest alternative models which introduce simultaneity without the aid of these mechanisms through flexible legislative terms and phased elections.
NITI Aayog和其他政府机构提议同时选举人民院和州立法议会，以尽量减少频繁选举造成的破坏，包括巨额支出，行政负担，社区暴力，政策操纵等。这些机构在建设性的不信任投票、定期立法机构和防止过早解散的行政规则等机制的帮助下，努力推行和维持同时进行的选举。这些建议是基于同时性依赖于这些机制的错误假设。我们发现，同时性可以在不产生问责成本的情况下引入。为了实现治理的稳定，他们使制度僵化，攻击民主和联邦制的原则，削弱行政部门对立法机构的问责制，暗示了议会民主的一个重要原则。我们建议通过灵活的立法条款和分阶段选举，在没有这些机制的帮助下引入同时性的替代模式。
{"title":"Simultaneous elections and flexible legislative terms: a constitutionally preferable approach","authors":"Eesha Shrotriya, S. Pachauri","doi":"10.1080/24730580.2020.1868225","DOIUrl":"https://doi.org/10.1080/24730580.2020.1868225","url":null,"abstract":"ABSTRACT Simultaneous elections to the Lok Sabha and State Legislative Assemblies have been proposed by the NITI Aayog and other government institutions to minimize the disruptions caused by frequent elections which include enormous expenditure, administrative burden, communal violence, policy manipulation, etc. These institutions endeavour to introduce and sustain simultaneous elections with the aid of mechanisms like constructive vote of no-confidence, fixed-term legislatures, and executive rule in case of premature dissolutions. Such proposals are based on the misplaced assumption of the dependence of simultaneity on these mechanisms. We find that simultaneity can be introduced without incurring accountability costs. In a bid to achieve stability in governance, they make the system rigid, attack the principles of democracy and federalism, and erode executive accountability towards the legislature, implicating an important tenet of parliamentary democracy. We suggest alternative models which introduce simultaneity without the aid of these mechanisms through flexible legislative terms and phased elections.","PeriodicalId":13511,"journal":{"name":"Indian Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82562994","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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