Our second part of discussions under the New Scholarship series around public law themed articles will include pieces featured in the recently released Volume 41 Issue 2 of the 2020 Volume of the Statute Law Review (SLR) – Oxford University Press (OUP). This post will link all the responses to the Articles from this Issue of SLR OUP.
- The first piece that we have under discussion is from Prof. Dipika Jain. Prof. Jain is currently a Professor & Vice Dean and Executive Director- Centre for Health Law Ethics & Technology (C.H.L.E.T.) at Jindal Global Law School (JGLS), India. She pursued her B.A. in Political Science (Hons) from Lady Shri Ram College and LL. B from Faculty of Law, Delhi University. Her piece is titled “Law-Making by and for the People: A Case for Pre-legislative Processes in India” which is available here.
The abstract states –
Recent legislative trends in India reflect the need for a mandatory pre-legislative process. Pre-legislative consultation affords the benefit of legitimacy to laws arrived at through citizen participation. Furthermore, it informs decision-makers of the lived experiences of those most likely impacted by the legislation. Laws that receive pre-legislative consultation are attuned to realities, which increases the likelihood of their effectiveness. This article explores how several of India’s recent laws that received pre-legislative consultation have been rendered more robust and effective than others. As exemplified by current protests by transgender, intersex and gender non-conforming people in India, the Government’s most recent Transgender Bill, which neglected pre-legislative deliberation process, fails the people it purports to protect. As explored in this article, the Bill fails to uphold constitutionally protected principles, as recognized in the recent Supreme Court case that upheld transgender persons’ fundamental rights. As such, the Transgender Bill reflects a need to engage with the intrinsic and instrumental value of pre-legislative consultation and deliberation in India. In locating transnational trends towards employing such a process, this article argues that India would greatly benefit from mandatory pre-legislative consultation and deliberation. By creating a process that allows for citizen participation in law-making, particularly when such laws impact marginalized communities, legislation would reflect societal needs and eschew a top-down, majoritarian approach.
- Dr. Jain discusses her paper here.
- Arun PS and Ritambhara Singh raise the idea of the need for pre-legislative consultation processes with the involvement of citizens, and relevant stakeholders through a quick illustration of the impact of the Draft Environment Impact Assessment, 2020. Furthermore, they look at the implications followed by the Pre Legislative Consultation Policy, 2014, which, according to them, the paper fails to address to a certain extent. They look at how the Karnataka Police Bill, 2011 (cited as an example of effective public consultation) falls short against the Kerala Police Bill, 2010, and the latter can be raised as a better illustration. They look at the need of an institutional framework and separate laws for pre-legislative deliberation processes, and explore ways of how deliberation is a two-way process by critiquing and analysing points mentioned in Prof. Dipika’s paper. The article can be found here.
- In his response paper, Anirudh Burman critiques the arguments laid in Prof. Dipika’ article by raising the need for a standard definition of a pre-legislative process. He lists some pointers in this direction which include to arriving at a definition, in order to have clarity over the role of such processes in democratic decision-making. Furthermore, he states that pre-legislative processes can be judged as good or bad based on some standard procedural metrics, whereas the paper evaluates their utility based on substantive outcomes. The design of pre-legislative processes has to incorporate a procedural standard for judicial review if a mandatory process has to have any meaning. The article can be found here.
- The second piece that we have under discussion is by Raghav Kohli, a Final Year Student at Gujarat National Law University, Gandhinagar. His piece, “The Sound of Constitutional Silences: Interpretive Holism and Free Speech under Article 19 of the Indian Constitution” is available here.
The abstract of the piece reads as:
Unlike the US First Amendment, Article 19 of the Indian Constitution expressly enumerates eight grounds on which free speech may be restricted. Despite being a fundamental issue of constitutional interpretation, the question of whether Article 19 provides for an exhaustive list of restrictions has largely been neglected in academic literature and Indian jurisprudence. The latest site of contestations on the scope of the free speech clause has been the case of Kaushal Kishor, where the Supreme Court is currently hearing arguments on whether speech can be restricted by invoking fundamental rights beyond Article 19. This Article seeks to develop a principled answer by excavating the meaning of constitutional silences on the relationships between fundamental rights under the Indian Constitution. It argues that a strict textualist approach leads to a distinct form of rights absolutism that is both doctrinally incoherent and inconsistent with Indian jurisprudence. Examining the shift in the Supreme Court’s interpretive outlook from strict textualism to interpretive holism, it finds that the Court’s rich fundamental rights jurisprudence allows importing restrictions on speech from beyond Article 19. Such an approach also provides a meaningful framework for resolving intra-right, inter-right, and right-interest conflicts in the constitutional adjudication of free speech issues.
- Mr. Kohli discusses his paper here.
- Arpita Sarkar agrees with both the major points of the author that is, firstly, only a holistic interpretation of rights instead of compartmental textual interpretation, brings out the spirit of the constitution and secondly, very little has been discussed on the possible conflict between rights and also of conflict between different individuals for the same right. The second point arises from the fact that the Indian constitution offers limited recognition of horizontal application of fundamental rights. However, she is unable to agree with the proposition that restrictions to a right extends beyond the scope of the same provision, alongside the point that possible conflict among individuals for the enforcement of the same right, falls within the scope of the constitution. This makes the crux of her response piece that can be found here.