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

Arghya SenguptaSubscribe to Arghya Sengupta

Judicial Primacy and the Basic Structure

This article is a legal analysis of the Supreme Court judgment in the appointment of judges case. It argues that a majority of the judges did not hold judicial primacy to be part of the basic structure, as has been commonly misunderstood. Further, their application of their understanding of judicial primacy to strike down the presence of the Union Law Minister and eminent persons on the National Judicial Appointments Commission is flawed. Consequently, the judgment has no precedential value were Parliament to attempt fresh reform to bring in transparency in judicial appointments.

Death Penalty in India

The Law Commission of India's 262nd report is the first official document to recommend abolition of death penalty. Its seminal recommendation notwithstanding, the commission's conclusion that divergence in judicial reasoning in the death penalties handed out is cause enough for the abolition of such penalty is too hasty. Further, not applying this recommendation to terror-related offences is fuzzy and unreasoned. If death penalty is no more of a deterrent for terrorism than it is for other crimes, as the commission itself finds, to persist with such a recommendation by using the bogey of "national security" is extremely odd. The report is, however, valuable in creating an intelligent discourse around death penalty in India.

Acting Out of Turn

The recent judgment of the Supreme Court of India, creating a new remedy of postponement orders to balance the freedom of press and the right to a fair trial, has once again raised grave concerns about overreach by the judiciary. This article argues that the creation of such a remedy in this case was beyond the legitimacy and competence of the Court. Further, the conceptualisation of the postponement order as a means to balance the two rights is fl awed. Despite certain safeguards, it marks the beginning of a dangerous discourse to stifl e free speech and will prove ineffi cacious in securing the fair administration of justice.
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