We bring to you a summary of the discussions in ‘The Courts and the Constitution: 2020 and 2021 in Review’ conference that was held this year. This summary of the conference was compiled and drafted by Khushi Mittal, Mrityunjoy Roy and Nitya Ravichandra.
The Courts and the Constitution is a two-day conference that seeks to discuss and broadly reflect on the past, present and future of Indian Constitutionalism. It was organised by the Editorial Team of the Law and Other Things Blog, in collaboration with its institutional sponsors, the Centre for Constitutional Law, Policy and Governance, Azim Premji University, and NALSAR University of Law. The conference saw six panel discussions on various themes under constitutional law and public policy. Each panel saw the presentation of the selected paper from the Call for Proposals that was circulated earlier this year.
The introductory session of the conference began with an opening address by Sidharth Chauhan, Assistant Professor at NALSAR University of Law, who discussed the importance of discussion on contemporary constitutional law issues. NALSAR’s Vice-Chancellor, Faizan Mustafa discussed his experiences as a teacher of public law and shared his concerns about the recent amendments to citizenship laws in India. Sitharamam Kakarala, the Director of the School of Policy and Governance, Azim Premji University, shared his concerns about the state of constitutionalism, and the need for increased awareness in this realm. He expressed a need for increased checks and balances in the system. Finally, the Editors-in-Chief of the Law and Other Things blog, Bhavisha Sharma and Gayatri Gupta, fifth-year students at NALSAR, shared their experiences of working with the blog.
Panel I: The State of the Judiciary
The panel on ‘The State of the Judiciary’ was moderated by Prof. Sidharth Chauhan. The first speaker of the session was Deepika Kinhal, from Vidhi Centre for Legal Policy, Bangalore, who discussed the need for an interdisciplinary approach to the administration of justice in the country, and the physical and digital infrastructure of courts in the country. Anurag Bhasker, an Assistant Professor at the Jindal Global Law School discussed the lack of representation in the Indian judiciary. Mihir Rajamane, an undergraduate student at the University of Oxford, spoke about the Supreme Court’s suo moto powers, and the role of the same in recent government moves such as the vaccination policy.
Panel II: Public Health Crisis and the Constitution
The second panel, on ‘Public Health Crisis and the Constitution’ was moderated by Prof. Amita Dhanda, Professor Emeritus at NALSAR, who introduced the panel and said that she felt that one of the primary duties of constitutional courts was to contently read and interpret the constitution for us. Adv. Rajshekhar Rao, Senior Advocate, Supreme Court of India spoke about the constitution as a repository of the right to health, and spoke of how the COVID-19 outbreak presented unprecedented challenges to the State as well as the courts. He added that the judiciary would have to ask the uncomfortable questions, else no one would. Thulasi K. Raj, an Advocate at the Supreme Court and the Kerala High Court, presenting her Paper, spoke about the indirect discrimination discourse that has emerged in Indian jurisprudence, which she contextualised with the examples of entrance examinations and access to health during the pandemic. The third speaker for this panel was Alok Prasanna Kumar, from the Vidhi Centre for Legal Policy, Bangalore spoke of how the most important role of the courts was to ask questions, and how to some extent the same was fulfilled when the courts questioned the vaccination policy and by doing so effected changes in it. However, courts failed to question the Executive’s unjustified use of the National Disaster Management Act to infringe on Fundamental Rights, and failed to question the government’s legal power for the wide, discretionary acts done during the Covid-19 pandemic.
Panel III: Shamnad Basheer Memorial Roundtable on Constitutional Law and Intellectual Property
The last panel of the day was the ‘Shamnad Basheer Memorial Roundtable on Constitutional Law and Intellectual Property’, organised in the memory of Prof. Shamnad Basheer. The first speaker, Sanya Samtani, a Postdoctoral Researcher at the University of Pretoria, spoke about the overlap of intellectual property law with other areas of law, in the context of claims in copyright and education, by examining the relevant international treaties and domestic laws. The second speaker, Rahul Bajaj, from Vidhi Centre for Legal Policy, New Delhi, spoke of India’s initial scepticism to allow patents in the Pharmaceutical industry in order to ensure the growth of the industry, and examined the success of the policy. He then spoke of the role of patent flexibility in improving access to public health. The next speaker was Akshat Agarwal, an Advocate in the Patna High Court, who talked about the TRIPS Agreement and IP waiver in light of the COVID-19 vaccinations. Finally, Aakanksha Kumar, Associate Professor, Jindal Global Law School, discussed the private right versus public right debate in the content creation space and the protections that “re-coded” content could claim.
Panel IV: Developments in Indian Federalism
The fourth panel consisted of Alok Prasanna Kumar, Shadan Farasat, Suhrith Parthasarthy, Pankhuri Aggarwal and Abhijeet Rawaley & Dayaar Singla. Alok Prasanna Kumar from the Vidhi Centre for Legal Policy moderated the session. Shadan Farasat focused on how a federal polity works in practice today and how the courts see the federal division of powers between the centre and state by looking at the concrete example of the status of Delhi. Suhrith Parthasarthy spoke about the need for greater power for state governments as opposed to the centre. He argued that they were the government closer to the people and therefore better placed to make optimal use of resources and make developmental decisions. Pankhuri Agarwal went next, speaking on how the Goods and Services Tax (GST) laws in her opinion has dealt the biggest blow to federalism in recent times by centralising fiscal power. Finally, Dayaar and Abhijeet spoke against the local domicile based reservation in the private sector being proposed by various governments, such as the 75% reservation for local residents in the private sector being proposed by the Haryana government, arguing that it was in contravention to Article 16 of the Constitution.
Panel V: Environmentalism and Governance
The ‘Environmentalism and Governance’ panel was moderated by Rahul Mohanty, Assistant Professor at NALSAR. It began with Shibani Ghosh from the Centre for Law and Policy Research who emphasised the need to fix policy vacancies in the regional level, and the need to have science-based, evidence based policies as opposed to short-term fixes. The next speaker was Lavanya Suresh, an Assistant Professor at BITS Hyderabad, who delivered her presentation about climate justice through a data-driven standpoint, and then discussed the disparate impact of climate change. The third speaker for the session was Geetanjoy Sahu, an Assistant Professor at the Tata Institute of Social Sciences, Mumbai, who spoke about Forest Rights and Governance. He pointed out that environmentalism is a set of ideas and values, and not just plants and animals. He discussed how national environmental polices cut off indigenous peoples’ access to forests, and the government’s subsequent steps to remedy this injustice. Speaking of the Forest Rights Act of 2006, Sahu points out, “It is not a land distribution act but recognises the historical rights of the indigenous people.” The last presentation of the day was by Ria Yadav and Dylan D’Souza from the Democracy and Constitutional Values Fellowship. Dylan spoke of how environment policies internationally seem to be centred on the Western world, with a focus on an aesthetic notion of the environment that ignores the needs of those directly interacting with it. Ria then spoke of the use of technology to protest, and how the use of digital spaces has been impactful for environmental activism.
Panel VI: Civil Liberties and Criminal Justice
The final panel of the conference was on the theme ‘Civil Liberties and Criminal Justice’. The speakers discussed the various ways in which civil liberties are being curtailed by the executive and those in power by exploiting the criminal justice system. The panel was moderated by Prof. Manisha Sethi, Assistant Professor, NALSAR University of Law.
The first speaker, Abhinav Sekhri, an Advocate at the Delhi HC and the founder of the Proof of Guilt blog, discussed the broader theme of constitutional regulation of the legal justice system. He observed that pre-trial pendency allowed the executive to get away with erosion of civil liberties, and that any assumption of neutrality in criminal law was wilful blindness.
Disha Wadekar, an advocate at the Delhi HC, and Nikita Sonawane, founder of the Criminal Justice & Police Accountability Project, Bhopal, discussed the issue of targeting and overcriminalisation of marginalized communities in India. While focusing on the caste and colonial underpinnings of the criminal justice system, Disha also debunked the notion that the erosion of civil liberties is a colonial phenomenon. While the Criminal Tribes Act was repealed in 1952, the legal regime against marginalised communities was retained as laws against ‘habitual offenders’. Building on the same idea, Nikita discussed the genealogy of policing within the post-independence habitual offender framework. She focused on how the police, or ‘Brahmanical policing’, construct both criminality and evidence of criminality of the marginalised communities by maintaining record of their criminal antecedents, including their personal information. Chandini Chawla, an advocate at the Bombay HC and Idrish Mohammed, advocate at the Rajasthan High Court, discussed the state of protection of fundamental rights in prisons in India. The last speaker, Prerna Vij, a postgraduate student at Ashoka University, spoke about the issue of vigilantism and how it shapes our understanding of rule of law and normative ideas of justice.
We hope that you are able to participate in the next edition of the conference!