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, here and here. The fourth part of our discussions under the New Scholarship series around public law themed articles will include pieces featured in the recently released Volume 9 of the Indian Journal of Constitutional Law. IJCL’s editorial board had previously introduced Volume 9 of the journal here. This post will link the responses to the Articles from this Volume of IJCL.
- The first piece we take up for discussion is from Rangin Tripathy and Chandni Kaur Bagga. Rangin completed his Fulbright Post-Doctoral Fellowship from Harvard Law School (2019-20) and currently teaches at National Law University Odisha. His research primarily focuses on issues related to constitutional governance and civil liberties. Chandni has done her LL.M in Constitutional Law and her B.A., LL.B. (Honours) in Criminal Law in 2017 and 2014 respectively from National Law University Odisha. She is currently pursuing her Doctoral Degree from NALSAR University of Law. Her areas of interest are Criminal Law, Constitutional Law, Women Centric Laws and child rights. Their article titled “Who Are Our Judges? Assessing the Information Disclosure Practice of Indian Supreme Court Judges” can be accessed here.
The abstract of the article reads as follows:
“Judges in India often expect the public to trust their capacity and integrity. The requirement of public trust in judges is not simply a question of what the judges desire but is an essential element of the democratic structure. We argue that it is insincere to expect the public to trust judges when people have limited information about them. Just as voters deserve information about the candidates to make an informed choice, people need information about the judges they are expected to trust. We contend that judges have the primary responsibility to adopt robust disclosure practices and share more about themselves. It is based on a simple premise that the people are not obligated to trust a public functionary and it is the job of the public functionary to generate trust. In this paper, we have examined the disclosure practices of the judges in the Supreme Court of India and have found a pervasive reluctance in judges to disclose essential educational and professional details.”
- Mr. Rangin Tripathy and Ms. Chandni Kaur Bagga discuss their paper here.
- In their response piece, Deepika Kinhal and Shreya Tripathy add two propositions to the article: first, that the disclosures made by the judges should not be limited to information regarding their careers before assuming office; obligation for periodic disclosure is necessary in respect of their financial assets and their performance while in office. Second, that disclosure obligation should be placed on the judges both in the higher judiciary (Supreme Court and High Courts) as well as the District judiciary (district courts and below). You can find the response here.
The second piece up for discussion is from Abhinav Sekhri. Abhinav Sekhri is a lawyer, primarily practising criminal law in New Delhi. He regularly writes about Indian criminal law and procedure in scholarly journals, newspapers, and at www.theproofofguilt.blogspot.in.His article titled “Article 22 – Calling Time on Preventive Detention” can be accessed here.
The abstract of the article reads as follows:
Part III of the Indian Constitution guarantees various fundamental rights to persons, and also details various regulations for the deployment of preventive detention laws by the Union and States. The alacrity with which preventive detention has thus been deployed as a law enforcement tool has alarmed some, and the politically motivated use of these powers is what has often attracted the most criticism. But amidst this clash of arms, surprisingly little problem has been found with the constitutional scheme that regulates preventive detention law. This essay takes aim at Article 22 of the Constitution and argues that the minimum threshold it sets for legislatures is painfully inadequate. Rather than safeguard individual liberty against legislative tyranny, I argue that Article 22 is suborning these ideals instead. Is it time, then, to rid the Constitution of Article 22? And, dare I say, time to finally question as Indians our glibness at the detention of thousands without trial every year
- The summary of the article can be found here.
- In her response, Shrimoyee Ghosh makes observations about Abhinav Sekhri’s approach and discusses salient points emerging from it. She then points out the ritual invocation of incarcerated Kashmiris, and emphasises the constitutionalised deprivation of liberties in Kashmir as key to understanding the subject explored by the article. You can find the response here.
- Abhinav Sekhri’s response to Shrimoyee can be found here.
The third piece up for discussion is by Devdutta Mukhopadhyay & Apar Gupta. Apar Gupta is the Executive Director of the Internet Freedom Foundation. Devdutta Mukhopadhyay is a lawyer who has experience researching and litigating internet shutdowns in India. At the time of writing this piece, she was a Litigation Counsel at Internet Freedom Foundation. Their paper titled ‘Jammu & Kashmir Internet Restrictions Cases: A Missed Opportunity to Redefine Fundamental Rights in the Digital Age’ can be found here.
The abstract of the article reads as follows:
In Anuradha Bhasin v. Union of India, the Supreme Court was called upon to review the constitutionality of the communication shutdown imposed in Jammu & Kashmir in August 2019. The Court’s decision endorsed human rights principles of necessity and proportionality and recognized a derivative fundamental right to internet access. Yet, this principled adjudication failed to provide any immediate relief to the 12.5 million people of Jammu & Kashmir reeling under the longest internet shutdown imposed in any democracy. Our analysis considers why and how this occurred and how the absence of relief necessitated further litigation. Subsequently in Foundation for Media Professionals v. U.T. of Jammu & Kashmir, the Court once again declined to provide relief while denial of 4G mobile internet continued in Jammu & Kashmir during the COVID-19 pandemic. We first examine how the Court avoided any form of judicial review despite endorsing the rigorous and evidence-based proportionality standard in both judgements. We situate both judgements within a line of cases where the Court has given primacy to the ‘national security’ justification offered by the State. When national security grounds are invoked by the State, the Court adopts at least a facial, procedural review which is absent in these cases. This is important because the Court’s recognition of a derivative fundamental right to internet access is yet to be actualized through the grant of relief. We then focus on negative and positive conceptions of a derivative fundamental right to internet access to criticize the Court’s non-enforcement of the former and its cursory dismissal of the latter. Finally, we conclude that the Court’s directions in Anuradha Bhasin and Foundation for Media Professionals have failed to act as a meaningful check on the executive branch but provide precedential value for future litigation.1. The summary of the article written by Devdutta Mukhopadhyay can be found here.2. Sumeysh Srivastava’s response to the article can be found here.
- The last piece up for discussion is by John Sebastian & Aparajito Sen. John Sebastian is an Assistant Professor and Aparajito Sen is a student at Jindal Global Law School, OP Jindal Global University, Sonipat, Haryana, India. Their paper titled ‘Unravelling the Role of Autonomy and Consent in Privacy’ can be found here.
The abstract of the article reads as follows:It has been widely acknowledged that consent is central to the right to privacy. This has been recognised by the Supreme Court in Justice K.S. Puttaswamy v. Union of India (2017), as well as in the Personal Data Protection Bill, 2019 (currently pending in Parliament). While several studies have mentioned the difficulties of obtaining informed consent in today’s world, there has been little discussion on the precise role of consent within a privacy rights analysis. We will attempt to explore this crucial and under-theorised issue through an analysis of the Court’s recent constitutional jurisprudence. Underlying the recognition of the right to privacy have been the values of dignity, autonomy and liberty. We argue that the Court has recognised an autonomy-rich conception of dignity, which focuses upon an individual’s continued capacity to make autonomous choices. This both enhances and limits the role of consent in privacy – while consent is an important factor to be considered by courts, it does not completely determine whether a person can effectively claim a right to privacy. We then situate this understanding of consent within the doctrinal tools adopted by the Court to adjudicate privacy claims – the reasonable expectations test and proportionality. We argue that consent plays a key role in both these tests. Consent is an important variable, but does not operate in an ‘all-or-nothing’ manner, and has to be balanced with other factors such as the autonomy of the individual, public interest and the rights of others. This has important implications for assertions of privacy in the future.1. The summary of the article written by John Sebastian and Aparajito Sen can be found here.2. Ujwala Uppaluri’s response to the article can be found here.