Law and Other Things published a range of interesting articles and new scholarship discussions to further scholarship in public law. Below we bring you an update on the Blog’s activities during February 2022.
The Delhi High Court is hearing a batch of pleas challenging the exception to Section 375, which exempts forced sexual intercourse by a man with his wife, from the criminal offence of rape. In Dismantling The Marital Rape Exception: Constitutionality And Consent, Unnati Ashish Ghia argues that the strongest argument against Exception 2 is under Article 15 (gender-stereotyping and discrimination). She states that “Exception 2 endorses the gender roles within a marriage, particularly the woman’s duty to provide sex, the husband’s right to demand it, and the irrelevance of her consent and desires. From this perspective, Exception 2 constitutes invidious gender discrimination with a significant social harm” It attempts to answer a persistent question in the marital rape debate – what comes next after striking down Exception 2?
In “Whether The Master’s Tools Can Be Used To Dismantle The Master’s House?” : Engaging With Two Films- ‘The Advocate’ And ‘Democracy Dialogues- A Tribute To Balagopal’, Saranga Ugalmugle explores the constraining and expanding power of legal rights discourse in movements of social transformation through an analysis of Deepa Dhanraj’s two documentaries. The author traces the fearless and inspiring journeys of K.G. Kannabiran and K Balagopal as members of the Andhra Pradesh civil liberties movement and as human rights lawyers.
Our senior analyst Nitya Ravichandra writes about how the requirement of Aadhaar to access social welfare schemes can in fact have the opposite effect of large scale exclusion of the target population itself in a two-part series. The article discusses the impact of Section 142 of the Social Security Code, which requires employers and unorganised workers to establish their identity through their Aadhaar numbers. Part 1 discussing the impact of linking Aadhaar with public distribution in India can be found here.
Sanskruti Yagnik examines a recent Madras HC order in Karthick Theodre v. Registrar General and recommends a seven-part test for the right to be forgotten, which aims to balance freedom of expression with privacy. This article comes in light of an important question raised by the Madras High Court on whether an accused person who on being charged for committing an “offence and having undergone trial and ultimately been acquitted of all charges by a Court of competent jurisdiction, has the right to seek for destruction or erasure or redaction of their personal information from the public domain”.
Mrityunjoy Roy, LAOT Legal Analyst, writes on the July 2021 Delhi High Court judgement which held that the Delhi CM responsible for an oral promise he made in a press conference, but never acted on. The explainer, in the realm of promissory estoppel, delves into the implications of this judgement and what it means for political promises.
In the month of February, we began the discussion of three new Indian Law Review articles. Starting with Dr. Sujith Koonan’s article “Manual Scavenging In India: State Apathy, Non-Implementation Of Laws And Resistance By The Community”. In the summary of the Paper, he discusses the historical and legal discourse surrounding the perception of Manual Scavenging and notes that a potential cause for the non-implementation of law and state apathy is the domination of upper class and upper caste consciousness in public administration. Responding to Dr. Sujith’s paper, 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.
The next article taken up for discussion is Eesha Shrotriya and Shantanu Pachauri’s article titled “Simultaneous elections and flexible legislative terms: a constitutionally preferable approach”. The summary of the article can be found here. Professor V. Krishna Ananth responding to the Paper, 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.
The next piece in this series is from Dr. Monika Polzin who writes on “The basic-structure doctrine and its German and French origins: a tale of migration, integration, invention and forgetting”. The summary of the major arguments of the article written by our Legal Editor, Mariyam Mayan, can be found here. The paper focuses on how Dietrich Conrad’s work has influenced the development of the basic-structure doctrine in India. It tries to discern which parts of past theories were lost in time and space, and which have survived to be developed further. Prof. Sanjay Jain, commenting on the article, notes that Polzin provides a rich documentation of the different conceptions of constituent power and constitutional identity. He further argues that Polzin’s claim that India adopted the German conception of the basic structure was very broad given the peculiarities of the Indian scenario.