ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Two Small Steps towards Transparency

Two recent decisions, one administrative and one judicial, have given hope that the judiciary has finally accepted how non-transparent and unaccountable its functioning has become. The decision to make collegium resolutions public and the judgment to streamline designations of “senior advocates” are necessary first steps towards the larger goal of transparency in the judiciary. Both instances highlight the need for the bar and advocates to speak up for the institution and on behalf of the larger public interest.

Contradictions and Unanswered Questions

In reading and understanding the Supreme Court’s judgment in K Puttaswamy v Union of India, the Supreme Court’s articulation of the right to privacy carries within it certain contradictions in thought and approach. Given that this judgment was delivered in the absence of a specific fact situation, its true meaning may only become evident as the Court proceeds to apply it in specific cases. On this front, as we may find out in the future, there is a gap between what the judges are “saying” in this judgment and what they may end up “doing” in the future.

Rethinking the Surrogacy Bill

The Surrogacy (Regulation) Bill, 2016, introduced ostensibly to provide a legal framework for surrogacy in India, is a regressive legislation that seeks to control women’s bodies and reinforces heteronormative notions of what a family is. By limiting surrogacy to “altruistic surrogacy” only, it creates space for women being pressured to bear children for family members. The Rajya Sabha standing committee’s report, having heard a wide cross section of society on this matter, has rightly criticised this bill and called for its redrafting.

Rethinking India’s Federalism

Addressing the problems in local body governance requires a reimagining of federalism in India and moving away from the centre–state framework. Beholden to partisan politics and the state’s unwillingness to part with powers, local bodies have not been able to fulfil the potential envisaged for them in the 73rd and 74th amendments to the Constitution. The answer lies in locating their powers and functions in the Constitution itself.

Defecting from the Law

The impunity with which legislators in Andhra Pradesh and Telangana have ignored the anti-defection law points to certain weaknesses in the processes and norms laid down in it. What is required to remedy this, however, is not just a minor tweak, but a complete overhaul of the way the law works to adequately address the problem of defections by sitting legislators before it overwhelms India’s democracy.

One Decade of the RTI Act

Tilting the Balance of Power: Adjudicating the RTI Act published jointly by Research, Assessment and Analysis Group, Satark Nagrik Sangathan and Rajpal and Sons, New Delhi, 2017; pp xvii + 291, ₹ 400.

The Crisis in the Judiciary

Having sentenced JusticeC S Karnan to imprisonment for criminal contempt of court, the Supreme Court cannot afford to drift back into complacency about the judiciary’s troubles. The systemic problems with judicial appointment and accountability become obvious when we examine other instances of misbehaviour by judges thathave wrecked damage to the judiciary’s credibility.

Are People Losing Faith inthe Courts?

Contrary to popular belief, there is no litigation explosion. The data from the courts themselves suggests that fewer civil cases are being filed while criminal cases have been steadily increasing. This suggests that litigants are approaching the courts in fewer numbers, and may be resortingto other methods to resolve disputes. It may also be possible that the increase in criminal litigation could be attributed to the use of criminal law to resolve civil disputes.

‘Right to be Forgotten’ in Indian Law

courts have yet not recognised the “right to be forgotten” under Indian law. However, there are good reasons to have one’s name dissociated from public records in the interests of privacy and similar concerns, as has been done in the context of victims of sexual assault. It is not an overarching right that should necessarily be available to all irrespective of context. In the absence of any privacy legislation, it is more likely to be a judicially developed remedy in specifi c cases.

Legitimacy of Judicial Review

Judicial review of executive action is an essential aspect of the system of checks and balances in a constitutional democracy. The United States President Donald Trump’s reaction to the judiciary refusing to uphold his executive order imposing the so-called “Muslim ban” suggests that this vital principle might be under renewed threat. India’s experience in this respect should serve as a warning to the judiciary that its independence will be under attack in the next few years.

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.

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