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

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Reforming the Office of the Governor

The blatantly partisan actions of Karnataka Governor Vajubhai Vala in the aftermath of the Karnataka Assembly elections in 2018, which had thrown up a hung result, call for the need to scrutinise the post and functioning of governors within India’s constitutional scheme. Such malfeasance on the part of governors is not recent and their supposedly neutral role has always been more a pious hope than a reality. The need of the hour is serious constitutional reform, whether by the legislature or by the judiciary.

The Ordinance Route

The deadlock in Parliament has resulted in the increasing tendency of the union government to promulgate legislation through ordinances, when Parliament is not in session. While there are no substantive restrictions on the President’s power to promulgate ordinances, given the inherently temporary nature of ordinances, the exercise of this power must be limited keeping in mind the concerns of rule of law.

Legal Representation and Rape Trials

The right of all accused to have representation in courts is seriously under threat in India not just from the government, but from lawyers and on occasion from civil society itself, especially in rape cases. This leads to serious injustice and sometimes results in deprivation of life and liberty without the due process of law. However, even for the conscientious lawyer, a sexual assault case poses ethical and mental health challenges that have to be navigated with little institutional support.

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.

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