Press Note- The Courts and The Constitution Conference, 2023.


The Courts and the Constitution Conference, 2023 took place on March 11-12 at NALSAR University of Law, Hyderabad, in collaboration with Law and Other Things and Azim Premji University. This press note presents a summary of the ideas discussed at the conference, and has been prepared by the Rapporteuring Team comprising Eeshan Sonak, Harsh Jain, Ishika Garg, Mariyam Mayan, Prakruthi Jain, Rashika Bodh and Utkarsh Mani Tripathi. Stay tuned for a detailed report on the conference which will be published soon!

March 11, 2023

Inaugural Session

The event commenced with the inaugural session where Siddharth Chauhan presented an overview of the Courts and the Constitution Conference. The welcoming remarks were given by Dr. Srikrishna Deva Rao, Vice Chancellor, NALSAR, and Sitharaman Kakarala, Professor, Azim Premji University. This was followed by an overview of the Law and Other Things Blog given by the Editors-in-Chief Anushree Verma and Shravani Shendye. Justice Ujjal Bhuyan, Chief Justice of the Telangana High Court, then traced judicial developments in the past few years and encouraged students to adopt a critical approach and question developments in the law. Justice Bhatt, Judge, Supreme Court of India, began his speech by observing how the Constitution forms the hallmark of any great democracy, and how the onus falls on the judges to interpret the Constitution in a way that upholds its core values. He further traced the various changes in approach that underlie constitutional jurisprudence of the Supreme Court and observed how certain core essentials of the Constitution have remained unchanged through the passage of time. The session was drawn to a close with the vote of thanks given by Dr. Vidyullatha Reddy, Registrar, NALSAR.

Panel I – Media Ownership and Viewpoint Pluralism

The first substantive panel on ‘Media Ownership and Viewpoint Pluralism’ was opened by the moderator Sidharth Chauhan. Apurva Vishwanath began the discussion by flagging out certain issues pervading the media landscape including the divide created by the rise of digital media, the current lack of positive obligations on State broadcasters, the need for control over political advertisements in the upcoming election year, and how judicial inaction provides an impetus to hate propaganda on news channels. She also deliberated on how increased government regulation over media houses can give the State more power to govern freedom of speech and expression. Building on the need to look beyond government regulations, Vakasha Sachdev emphasised the need to provide increased protection to journalists, by way of timely judicial intervention and in terms of enhancing the current jurisprudence on the right to receive information. He also explored other avenues of protecting journalists’ rights, including through unionization and possibly giving more independence and powers to the Telecom Regulatory Authority of India. Lastly, Alok Prasanna Kumar emphasised the need to adopt a more nuanced legal understanding of ownership and control of media houses. He narrated how, as opposed to direct control, it is arbitrary state action that often leads to self-censorship by media outlets. Tying in with the common theme of judicial inaction, he also talked about the current system of High Court administrative control over trial courts and its implications for decisions delivered by the latter.

PANEL II – Populism and South Asian Constitutionalism

Dr. Omar Siddique started the discussion by outlining the impact that Constitutionalism and populism have had on the Judiciary in Pakistan. From the standpoint of the judiciary, Siddique discussed five contextual factors that have a bearing on bench and bar politics and the impact of partisanship attributed to judges. Next, Dr. Kumaravadivel Gurupuran spoke about the Sri Lankan experience of popular constitutionalism, and populism and constitutionalism. He explained the difference in these concepts and touched upon Sri Lankan judiciary’s performance when it comes to upholding them. Further, Vivek Reddy argued that the mushrooming of judicial activity is a threat to Indian Constitutionalism. He explained how from the 1970s onwards, the Courts started expanding the immutable baseline values that nobody could touch, thereby taking decisions away from the democratic process to the Constitutional pocket. Now, with the constitutionalization of other democratic processes and expansion of the baseline, Vivek argued that the Court’s core responsibility of protecting basic liberties is being compromised. He suggested that the Court should stick to its baseline role to protect the minimum non-negotiable rights and uphold the constitutional democratic legitimate expectation that people have from the Court, otherwise it would undermine the Constitutional aspiration of India. Aravind Narain summarized the discussion and linked Vivek Reddy’s baseline framework to the basic structure doctrine as a classic assertion of the idea of Constitutionalism as a limit point to populism.

PANEL III – Affirmative Action: Changing Conceptions of Equality

Professor Afroz Alam began the discussion by explaining the idea of equality, and its theoretical underpinnings, and introducing affirmative action as an effort that is needed to bring about real substantive equality. Professor Kamala Sankaran then proceeded to comment on the Janhit Abhiyaan judgment, from a comparative perspective between a written and an unwritten Constitution, placing the importance of Constitutional pre-commitments which enable us to dispense with the need to morally justify affirmative action. Sankaran concluded by raising concerns over the strengthening of the executive and narrowing of the scope of judicial scrutiny, giving a freer hand to the Government in budgetary allocation, and reducing accountability in anti-poverty measures. Professor G. Mohan Gopal furthered the discussion by revisiting some fundamental ideas like the distinct drafting histories of Articles 15(4) and 16(4), leading to the differences in the language of these provisions. He emphasized the need for “due and adequate” representation of all communities and representative democracy rejecting the idea of elitism and meritocracy. Gopal then analyzed the EWS reservation as catering only to the socially and educationally forward classes with a very high creamy layer cut-off, and called it an attempt to take away 10% reservations from backward classes and a measure to discriminate in favour of the powerful.

March 12, 2023

Panel IV – Developments in Gender Jurisprudence

The Panel began with Jayna Kothari presenting a quick overview of developments in gender jurisprudence in the past years. She spoke about her experience appearing for the petitioners in the Hijab case, and noted how the issue of discrimination on grounds of sex was sidelined. She then spoke about the Justice Chandrachud’s progressive decision on maternity benefits which acknowledged that families could have different forms and requires a wider understanding. She concluded by hoping that Courts be more willing to substantively deal with gender inequality as the central question in cases brought before it. Next, Vyjayanthi Vasantha Mogli discussed how even after Navtej Singh Johar, transmen and transwomen struggle to live freely. By giving specific (anonymous) examples, she discussed the atrocities transgenders are subjected to because of problematic mindsets and a lack of state action and accountability, and also highlighted the dire need of reservations for transgenders. This was followed by Gauri Pillai discussing the Supreme Court’s purposive interpretation on how medical termination of pregnancy must be interpreted expansively to also include unmarried women. Pillai asked some primary questions like which rights did the court looks at and the potential of looking at the matter with the gender discrimination lens. She concluded by noting that restrictive reproductive laws do not reduce abortion but instead force women towards illegal and unsafe means. Dr. Sruti Chaganti shared that for her, matrimonial law is the toughest to practice, having to deal with questions like how one sets interpersonal standards and use the law to enforce them, and the morality of doing so. She provided a plethora of cases where she faced such questions ranging from property cases to broken down marriages, and stressed on how resistance to power and aspiration for agency underlies feminist politics, while the embrace of radical alternatives of life beyond categories underlies queer politics. She concluded in search of realizations asking “how do we become women, how do we become queer in our practice of law?” Lastly, Dr. Amita Dhanda summarized the panel noting that the luxury of studying law has to be exercised with a freedom to exercise ideas beyond what the court says in its black letter. Patriarchy doesn’t only harm gender minorities but also harms men because the demonizing of the other person is problematic. If both men, women and transgender are stereotyped then no will move ahead.

Panel V – Developments in Criminal Law

The panel was opened by the moderator Murali Karnman. The first speaker, Mrinalini Ravindranath, focused on the increasing degree of criminalization in the Wildlife Protection Act, 1972, under the guise of environmental conservation. She drew attention to how the conceptualization of criminal activity under the Act disproportionately targets forest-dwelling and other marginalized communities by deeming their very presence in protected areas as “polluting”. She then narrated how this problem is compounded by the fact that the forest department and forest officers are often seen as operating outside the general criminal justice system and the checks and balances it contains. The second speaker, Kunal Ambasta, spoke about the dichotomy between special criminal laws and general criminal law principles, highlighting how the former have become an indirect way of subverting constitutional rights. By elaborating on the recent cases of NIA v. Zahoor Ahmad Shah Watali and the Prevention of Money Laundering Act case (Vijay Madanlal Chaudhary v. UOI,) he concluded by stressing the need for special laws to comply with the generality of broader criminal law principles. Lastly, B.B Pande, began his speech by drawing attention to the tension between a normative conceptualization of law, as opposed to a realistic approach which sees the law for what it is. He argued that the current changes in criminal law jurisprudence, including the Watali and PMLA cases, reflect this tension. He highlighted on two key points: first, that while non-state actors violate human rights much more than the state, what we see today is a collusion between the two; second, while the police are the fundamental force that shapes the implementation of criminal law, academia tends to hyperfocus on the role of Courts in this regard. He concluded by remarking on how death penalty has been redefined during the tenure of Hon’ble Justice U.U Lalit, marking a reiteration of the test of considering both mitigating and aggravating factors, laid down in Bachan Singh v. State of Punjab.

Panel VI – Shamnad Basheer Memorial Roundtable on Technology and Human Rights

Apar Gupta started by discussing the IT rules and how they have expanded to regulate online service providers, which is different from its historical understanding.  He referred to the internet shutdown in J&K and how the Anuradha Basin judgement and other judgements did not provide a legal analysis but just gave safeguards. He raised concern that tests of proportionality will not be applicable if answers are avoided and only inferences are seen. Sachin Dhawan then continued by discussing how state power has been the focus of our constitutional history and suggested that we look beyond just the state. He argued that increased monopolized private power has a direct impact on affecting rights, and suggested that an anti-monopoly law as a possible solution to this. Vrinda Bandari continued on the previous discussions noting that the Constitution remains silent when it comes to technology. She argued that privacy is not an elitist construct and is a concept for all sections of society but the concerns for privacy might vary. She also argued that privacy should not be equated with secrecy, stressing that we do not have a specific law for CCTVs and facial recognition. She used the example of the UK and the court’s role in surveillance legislation. In her conclusion, she raised concerns that AI can also be discriminatory and caution is required. Srinivas Kodali pointed to Aadhar as the foundation of linking all databases. The state is using biometrics to identify criminals which is an old colonial idea that has been recently digitized. He narrated how digitalization has made policing invisible to both the public and the police and concluded by saying that the laws have become merely a means of justifying actions as the machines are taking over. Lastly, Dr. Sitharaman Kakarala in his summarization pointed out that transgression of state powers is quite regular these days. The struggle for law and human rights is very relevant to technology. The new era of development asks us to tame the state power in the context of technology if we are to uphold democracy.

Closing Remarks

The last speaker of the conference was Dr. Kalpana Kannabiran who conducted a Book Talk on The Speaking Constitution: A Sisyphean Life in Law (Harper Collins, 2022) originally written in Telugu and recently translated into English. Kannabiran started with her description of her father’s battle to protect civil liberties. She began tracing the legal genealogy of the country’s civil liberties movement in order to shed light on how the idea of justice and jurisprudence evolved in the Indian courts. The numerous accounts spoken about are primarily centred around Andhra Pradesh including peace talks and negotiations between the Naxalites and the government of Andhra Pradesh, and also cases like that of Afzal Guru and Ansari Begum’s deportation case taken up by K.G. Kannabiran in the aftermath of the partition. She noted the importance of the parliamentary debate that surrounded the enactment of the SC and ST Atrocities Act highlighting the need for resurrecting and protecting such debate and discussion. Lastly, she concluded by talking about how the state’s focus on ensuring the fulfilment of duties by the citizens has morphed them into subjects while conveniently forgetting the protection of their civil rights and liberties.

The conference was brought to a close with the student coordinators Sukrut Khandekar, Utkarsh Mani Tripathi, and EICs Anushree Verma and Shravani Shendye sharing their experience in its organization and a vote of thanks by Sidharth Chauhan on behalf of NALSAR and Dayaar Singla on behalf of the Board of Editors of Law and Other Things.

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