Indian Journal of Constitutional Law, NALSAR releases Vol 9 (2020) | A Mélange of Scholarship on Indian and Comparative Constitutional Law Issues

[Ed Note: We are happy to report the release of IJCL’s Vol. 9 (2020). This Volume of the Journal seems quite promising with 11 pieces in the form of 7 Articles, 2 Essays and 2 Case Comments. Along with the release of the Volume, the Editorial Board seems to have also performed the excellent job of releasing its new website ijcl.nalsar.ac.in. As those who have been following IJCL may have noticed, the Journal has been a bit sporadic post-2013 and it is good to see its return to an annual cycle along with the renewed enthusiasm.

IJCL seems to have had a website even around 2009 as reported in this piece by Madhav Khosla on our blog here, which seems to have been well-maintained till mid 2010 as per Wayback Archival. The renewed website therefore possibly also makes the Journal’s Vol. 8 and 7 freely available for the first time (the other Volumes have been available at NALSAR’s website) as they seem to have been only available behind Hein Online’s paywall where the Journal is otherwise indexed. We are informed that the Board credits Benjamin Vanlalvena (NALSAR 2020) for his assistance in setting up the website. Benjamin was also instrumental in moving LAOT to its current domain and served as our Tech Editor for over 2 years. The entire NALSAR community owes him a round of applause as Benjamin has also been extremely helpful and instrumental in setting up the web presence for multiple other NALSAR’s student organizations. We are also especially grateful to Siddharth Aiyanna from the current Board for having taken the initiative to reach out to us and to him & Upasana P. for authoring the note below. We hope to organize a discussion around some of the pieces in this Volume as part of our New Scholarship initiative soon.]

The Indian Journal of Constitutional Law (IJCL) published under the aegis of The M.K. Nambyar SAARCLAW Chair in Comparative Constitutional Studies at NALSAR University of Law has just released its 9th edition.

While exploring a broad range of themes ranging from the Indian conception of privacy to Chinese constitutionalism, Volume 9 includes a number of excellent pieces that are thought provoking and relevant to contemporary issues in Constitutional law. Significantly, a few papers touch on the ongoing situation in Jammu and Kashmir- covering the ‘abrogation’ of Article 370 and reorganization of the State of Jammu and Kashmir into the Union Territory of Jammu and Kashmir, the wanton abuse of preventive detention, and the recent cases on internet restrictions.

The Articles section begins with John Sebastian and Aparajito Sen’s fascinating exploration of the role of consent within a privacy rights analysis by studying the Supreme Court’s decisions in Puttaswamy I and beyond. Sebastian and Sen argue that the Court has recognized an autonomy-rich conception of dignity, which focuses upon an individual’s continued capacity to make autonomous choices. They then situate this understanding of consent within the reasonable expectations test and proportionality test to conclude that privacy does not operate in an ‘all-or-nothing’ manner.

In their article, M. Jashim Ali Chowdhury and Nirmal Kumar Saha examine the concept of constitutional unamendability in Bangladesh. The authors dissect the 2011 amendment to the Constitution of Bangladesh, which has included a very widely framed perpetuity clause and, also, a very vague reference to the basic structure doctrine and consider the frailties of these two parallel tracks to unamendability. Chowdhury and Saha show how a median line could be drawn by installing a system of popular referendum in the constitution amendment process.

Devashri Mishra and Muskan Arora put to test the constitutionality of the law of criminal defamation. The authors seek to consolidate tools in the form of uncanvassed constitutional arguments that must be considered by the Supreme Court in a challenge to the law of criminal defamation, as they ought to have been in Subramanian Swamy v. Union of India. Mishra and Arora examine the history, intent, and presence of criminal defamation in modern India as the ‘afterlife of colonialism’. On this basis, they make a compelling argument that the law on criminal defamation should be struck down for falling foul of the standard of a ‘reasonable restriction’ under Article 19(2).

Next, Rangin Pallav Tripathy and Chandni Kaur Bagga assess the information disclosure practices of the judges of the Supreme Court. The authors argue that it is insincere to expect the public to trust judges when people have limited information about them. By exploring the democratic foundation of the idea of public faith in the judiciary, Tripathy and Bagga contend that people need information about the judges they are expected to trust and that judges have the primary responsibility to adopt robust disclosure practices and share more about themselves.

Kashish Mahajan explores the topical issue of abrogation of Article 370 of the Constitution and the consequent dilution of the special status and bifurcation of Jammu and Kashmir. The author examines the constitutional validity of the legal measures adopted to effectuate these changes and contends that the Legislative Assembly of the State can be construed to mean the Constituent Assembly of the State thereby keeping the mechanism for the abrogation of Article 370 alive. The article also lays down a legal standard for the kinds of decisions that may be taken by the President and the Parliament during the operation of President’s rule and argues that the actions of abrogating Article 370 and bifurcating the State of Jammu and Kashmir are unconstitutional when tested against this standard.

Anirudh Belle’s article examines what Mark Tushnet had referred to as the “weak-form” system of judicial review of legislations. The author argues for weak- form review in India as a system that breaks away from the traditional contrasts between legislative and judicial supremacy, and which better protects rights by reallocating powers between the legislatures and the courts. In order to make his case for the adoption of weak-form review, Belle outlines the evolution of judicial review in India and explores the arguments made for weak-form review and concerns that are commonly placed against it. In order to do so, the author details the evolution of judicial review in India and justifies its present avatar as “strong” as a justification in response to a scholarly position which holds that Indian judicial review, though strong in design, is, in practice, a “partial substitute” of weak-form review. Belle then proceeds to make a compelling case for weak-form constitutional review by exploring arguments made for weak-form review and addressing concerns that are commonly placed against it.

Wenjuan Zhang delves into the debate of whether China has constitutionalism and offers a new analysis framework for examining the same. The author highlights the theoretical development of constitutionalism in English Literature and reviews the evolution of constitutional design to show the struggling journey of the constitutional transition from revolution oriented to the rule of law direction.  Zhang then introduces the constituted form in the Chinese constitution and analyses it from the perspective of popular sovereignty. Testing the Chinese constitution designing and practice against the proposed analysis framework based on popular sovereignty, the author argues that China has a thin version of constitutionalism.

The Essays section features two stimulating pieces and discuss ideas which warrant further consideration.

Abhinav Sekhri launches a spirited challenge of Article 22 of the Indian Constitution. The essay is of immense significance given the wanton abuse of preventive detention within India, particularly in Jammu & Kashmir, in the last year. Sekhri tactfully argues that the protections guaranteed by Article 22, particularly the minimum threshold that it sets for legislatures, is painfully inadequate and subverts the ideal of safeguarding individual liberty against legislative tyranny. He asks, “is it time, then, to rid the Constitution of Article 22?”

Prannv Dhawan’s essay revisits the controversial issue of appointment of judges to constitutional courts in India. It attempts to address the inadequacies of the collegium system, while underscoring the need to safeguard the institutional independence of the judiciary. Dhawan’s solution entails rigorous public scrutiny and debate about the judicial appointment process in a bid to increase objectivity and transparency. 

Volume 9 closes with two powerfully written case comments on recent Supreme Court decisions.

Shrutanjaya Bharadwaj comments on the Supreme Court’s recent decision in Chebrolu Leela Prasad Rao v. State of Andhra Pradesh, better known as the 100% reservation judgement. Bharadwaj strikes at two aspects of the Court’s decision with surgical dexterity. First, it is argued that the court erroneously interpreted the non-obstante clause in Paragraph 5(1) of Schedule V of the Constitution. Second, the Court’s ruling that the non-obstante clause cannot override Article 14 of the Constitution, is contested on the grounds that the basic structure doctrine has been held to apply prospectively, and that since the basic structure is a reflection of the original Constitution, it cannot be violated by an original provision. 

Finally, Devdutta Mukhopadhyay and Apar Gupta provide an inside account of the twin decisions by the Supreme Court concerning internet shutdowns in Jammu & Kashmir in the last year – Anuradha Bhasin v. Union of India, and Foundation for Media Professionals v. U.T. of Jammu & Kashmir. Mukhopadhyay and Gupta critique the judgements for their failure to provide tangible relief, despite the Court’s principled recognition a derivative fundamental right to internet access; while also exploring the negative and positive conceptions of a derivative fundamental right to internet access. They then critique the absence of any form of judicial review by the Court despite endorsing the proportionality standard in both judgements. It is also pointed out that these cases are an aberration from other cases in which the ‘national security’ defense has been advanced by the State, in that previous cases involved at least some form of facial review.

IJCL is now accepting articles for its next edition. Submissions can be made on the journal’s website, or by email. The Editorial Board of IJCL welcomes long-form response pieces to any of the published articles. Shorter form responses may be considered for publication on the LAOT blog. 

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