ISSN (Online) - 2349-8846

Alok Prasanna KumarSubscribe to RSS - Alok Prasanna Kumar

Surrogacy and the Laws on Maternity Benefits

Five high courts across India have uniformly held that women employees who have children through surrogacy would be entitled to maternity benefits in accordance with the rules. How they have arrived at this conclusion is quite different in each case, and each judgment presents different approaches to address this legal question. Beyond the legal question, the approaches must also be closely examined for class biases and paternalistic assumptions about motherhood.

Sectarian Appeals in Elections

The Supreme Court’s judgment on sectarian appeals during election campaigns interprets the Representation of the People Act, 1951 correctly and to its intended effect. The dissenting judgment conflated the substance of the appeal with the identity of the person who is making it, and did not address the scope of the case. The majority judgment’s regulation of election speech is not only necessary to ensure free and fair elections and uphold the secular ethos of the Constitution, but it is also needed to fulfil the constitutional goal of fraternity.

Sectarian Appeal Judgment — Interpreting Representation of the People Act to its Intended Effect

 

Supreme Court’s judgment on sectarian appeals during election campaigns interprets the Representation of the People Act, 1951 correctly and to its intended effect. The dissenting judgment conflated the substance of the appeal with the identity of the person who is making it, and did not address the scope of the case. The majority judgment’s regulation of election speech is not only necessary to ensure free and fair elections and uphold the secular ethos of the Constitution, but also needed to fulfil the constitutional goal of fraternity. 

Debating Contempt of Court

By issuing a contempt notice to Justice Markandey Katju for his over-the-top criticism of its judgment, in the manner that it did, the Supreme Court has only diminished its institutional dignity. While Katju’s behaviour post retirement is not in keeping with the nature of the office he held, the contempt jurisdiction was not meant to be used like this.

Demonetisation and the Rule of Law

The challenge in the Supreme Court and high courts to the current demonetisation exercise requires some serious discussion for what it tells us about the state of the rule of law and constitutional government in India. 

'Equal Pay for Equal Work'

"Equal pay for equal work," envisioned as a concept of gender justice in the workplace and more, has shrunk to a jurisprudential principle used in service disputes between employees and the government. Even this body of court-made law, while laudable in at least protecting the rights of the temporary employees, does not actually further the larger principle in the context of the Indian worker, male or female, who has been abandoned by the state.

Revisiting the Rationale for Reservations

The demand for reservations in jobs and education being made by agitating "middle castes" overturns the logic of affirmative action on its head. Instead of addressing historic discrimination, it is articulated as a means to "capture" public employment and education to maintain caste hierarchies. Accepting these demands, as the high courts have held, would be unconstitutional, but that will not stop governments from trying.

‘Right to Choose’ as a Fundamental Right

Across India, high courts are interpreting Article 21 of the Constitution to give depth and detail to the “inner” aspects of the right to life, namely, the right to privacy and to make one’s own choices. In the face of increasing state intervention in the matter of personal choices, and questioning of earlier notions of what is a matter of choice, the Supreme Court will be called upon to adjudicate the extent and scope of the life and liberty of a citizen on many crucial issues.

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