As part of our New Scholarship Section on our Blog, we have been inviting discussants to respond to specific articles. The authors will also respond to these pieces if they choose to. The earlier series can be found here: ILR Vol. 4 Issue 1, ILR Vol. 4 Issue 2 and SLR Vol. 41 Issue 2. Our fourth part of discussions under the New Scholarship series around public law themed articles will include pieces featured in the recently released 2021 Volume of the Indian Law Review. This post will link all the responses to the Articles from this Volume of ILR.
I. The first piece in this series is from Prabha Kotiswaran and Sneha Banerjee. Sneha Banerjee is an Assistant Professor at the Department of Political Science, University of Hyderabad. Prabha Kotiswaran is a Professor of Law and Social Justice at the Dickson Pool School of Law, King’s College London, UK. Their paper is titled “Divine labours, devalued work: the continuing saga of India’s surrogacy regulation”, which can be found here. This discussion has been coordinated by our legal editor, Eeshan Sonak.
The abstract states – “This article offers a feminist critique of the Surrogacy (Regulation) Bill, 2019. Fifteen years since the first proposed regulation of assisted reproductive technologies and surrogacy, the 2019 Bill leaves much to be desired. It reflects a limited understanding of the complexities of surrogacy, is discriminatory in its approach, is plagued by lack of clarity, is unrealistic and most importantly, does not include adequate safeguards for the surrogate. Women’s reproductive labour in performing surrogacy is valorized but not compensated. Even though the Bill may well accept some recommendations of the Rajya Sabha select Committee, its failure to address issues that we highlight will mean that if passed, it will be challenged in the courts on constitutional grounds. This will generate uncertainty for years, for many infertile couples and individuals who look to the law for streamlined regulation, defeating its main purpose in facilitating a novel mode of reproduction.”
- The summary of the paper by Eeshan Sonak can be found here.
- Chayanika Shah responds to the paper on our blog here. She emphasizes on the need to look at the ART Bill and the Surrogacy Bill together, and argues that both these bills need to be redrafted in light of their discriminatory approach and reassertion of heteronormative patriarchies through the text and legal provisions.
- Anindita Majumdar responds to the paper here. She writes that many provisions of the surrogacy bill exhibit elements of manifest arbitrariness, whether it is the absence of assisted reproductive technologies from an identification of gestational surrogacy, or the choice of a ‘close relative’ as surrogate.
- Sharmila Rudrappa responds to the paper here. She questions the focus that Banerjee and Kotiswaran place on the child’s biogenetic make-up, arguing instead that dismantling love from genetics is a feminist ideal and central to an ethics of reproductive justice. On the question of compensation, she argues that the reality is that sellers of labour power almost always end up on the losing side and that caste, class, and gender matter in ways that compel one to give and the other to receive, and shape the sorts of demands one can make on the other’s time, labour, affection, and indeed, body. Ending her commentary on a ‘hopelessly idealistic note’, she asks “might the lack of an Indian law on surrogacy be something to celebrated?”
- Sneha Banerjee and Prabha Kotiswaran respond to the discussion pieces here. They express their disappointment with the outcome of the Bills, especially given that the sharp feminist critique of the various versions of the two Bills, right from the early 2000s, has gone largely unheard.
II. We then discuss Eesha Shrotriya and Shantanu Pachauri’s article titled “Simultaneous elections and flexible legislative terms: a constitutionally preferable approach”, which was published here. This discussion has been coordinated by our legal editor, Ajitesh Arya.
The abstract states- “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.”
- The summary by Eesha Shrotriya and Shantanu Pachauri can be found here.
- V. Krishna Ananth responds to the paper here. Professor Ananth mentions the importance of the costs associated with frequent elections in the cause of democracy and the constitutional scheme premised on accountability. He writes about the neo-classical economic perspective of the authors with reference to the costs associated with elections.
III. The next piece in this series is from Sujith Koonan’s paper titled ‘Manual scavenging in India: state apathy, non- implementation of laws and resistance by the community. Sujith Koonan is an Assistant Professor at Faculty of Law, University of Delhi.You can access the article here. This discussion has been coordinated by our legal editor, Pranjal Gautam.
The abstract states- “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.”
- The author, Sujith Koonan summarizes the arguments made in his paper here.
- Arkaja Singh responds to the paper here. Arkaja Singh traces developments in policymaking and law surrounding sanitation; and argues that the problem of manual scavenging is a consequence of incomplete municipalization of actual sanitation work.
IV. The next piece in this series is from Dr. Monika Polzin, Professor at the Institute for European and International Law, Vienna University of Economics and Business. Her paper is titled “The basic-structure doctrine and its German and French origins: a tale of migration, integration, invention and forgetting”, which can be found here. This discussion has been coordinated by our legal editor, Mariyam Mayan.
The abstract states- “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 a comparison 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”.
- The summary by Mariyam Mayan can be found here.
- Professor Sanjay Jain responds to the paper here.
- The response by Prasidh Raj Singh can be found here. He focuses on how Schmitt’s conceptualization of an almighty and mystical constituent power is a flawed approach, and how creating a distinction between essential norms or a Constitution and constitutional laws deceives the originality of the Constitution.
V. The next piece in this series, titled “The Standard of Assistance From Legal Aid Lawyers: An Indian Perspective” has been authored by Dr. Farzana Akter. She is a Professor at University of Dhaka. Dr. Farzana Akter completed her PhD under a joint PhD programme from the Vrije Universiteit Brussel (VUB) and Universiteit Gent, Belgium. The article can be found here. This discussion has been coordinated by our legal editor, Anushree Verma.
As per the abstract, this 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”.
- The summary of the paper by our analysts, Mrityunjoy Roy and Saumya Khandelwal can be found here.
- Prof. Jeet Singh Mann and Pooja Tiwari respond to the paper here.
- Gale Andrew responds to the paper here.