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(Shubhansh Thakur is a fourth year student of Symbiosis Law School, Noida. This is the second article in a two part article series.)
In part I, the author argued for the unconstitutionality of the notification allowing the formation of a delimitation commission. It was argued that there was indeed no law by which the central government could notify the subsequent delimitation commission for the north eastern states. Apart from this, there was no law which would allow the alteration of DPACO, 2008. The notification was thus an example of executive interference into the tasks entrusted to the Election commission. In this post, the author shall argue that the circumstances which led the president to lift the order of deferment issued in 2008, was nothing but an arbitrary exercise of power under the garb of subjective satisfaction. ARBITRARY EXERCISE OF EXECUTIVE POWER The president is empowered under Section 8A(1) of the Representation of People Act,1950 (RPA) to rescind the order of deferment with respect to delimitation, “if he is satisfied”. This means the power vested in the president is dependent upon his subjective satisfaction. The aspect of subjective satisfaction brings with it limited standards of Judicial Review (JR). The judgement of S.R. Bommai v. UOI had interpreted the term ‘satisfied’ in terms of Article 356 in following words:
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(Shubhansh Thakur is a fourth year student of Symbiosis Law School, Noida. This is the first article in a two part article series.)
In this two post series, the author shall argue against the constitutionality of the delimitation commission for the north eastern states (by making Assam as the base). In the first part, author shall establish that there was no legislative backing for the government to notify the commission and alter the Delimitation order. In the second part, author will go on to establish that the subjective satisfaction of the president which paved the way for the delimitation was indeed irrational and arbitrary. The world’s largest democracy is driven by the principle of ‘one person, one vote’. In order to effectuate this principle, it is necessary that every vote must carry the same weightage irrespective of the location of the voter. The equal weightage is crucial for electoral systems following proportional representation. In contrast to our ‘first past the post’ system’, the Constitution still envisages the principle of maintaining a uniform ratio between the population and number of seats that are available to each parliamentary constituency. Article talks about maintaining this ratio for the house of people (correspondingly Article 170 exists for state legislatures). (Gunjan Baheti and Tanmay Joshi are fourth year students of National Law University, Nagpur)
Introduction The 52nd Constitutional Amendment incorporated the Tenth-Schedule in the Constitution, which deals with the disqualification of a Member of Parliament on grounds of defection. However, the ongoing political crisis in various states is making us question the validity of its various provisions, mainly paragraph 2(1)(a) and paragraph 6(1). These paragraphs have been under judicial scrutiny time and again. This article aims to provide an insight into the issues involved with the “Anti-Defection Laws” and discusses the way forward after analyzing the judicial approach and the Speaker’s role. (Omkar Upadhyay is a third year student of National Law University, Nagpur.)
Introduction Following the trends of European legal system, India too recently incorporated the ‘right to be forgotten’ in its proposed data protection regime which awaits enactment. The said right is of prime importance particularly in the modern technological era where the individuals have left information trails while accessing the internet. Moreover, given the vulnerability of personal data available freely on the internet, it becomes pertinent to hone privacy, as it is not only limited to tangible, but also extends to intangible world. The concern for privacy is more serious for the digital world where “forgetting has become the exception, and remembering the default”.[i] However, a wrangle of arguments and criticisms has been leveled against the said right. While one side favours it for ensuring privacy in the digital world, the other side primarily laid concerns on its possible tussle with other rights particularly right to access information and right of expression. (Aryan Bhat is a second year student of National Law University, Delhi)
INTRODUCTION On July 21, the Supreme Court found itself in yet another controversy after it instituted suo moto contempt of court proceedings against distinguished lawyer Prashant Bhushan for his tweets questioning the current Chief Justice of India for not wearing masks or gloves and not following the prescribed social distancing norms while riding a bike in Nagpur. He further tweeted that the past four Chief Justices’ role in destroying the democratic ethos of the country would be well-noted by historians in future. The contempt notice became quite contentious as prominent citizens, including retired Supreme Court judges, issued a public statement urging the Court to reconsider the contempt proceedings against Bhushan as the notice reflected an attempt to “stifle criticism” from every stakeholder in Indian democratic and constitutional polity. On 14 August 2020, the Court found Prashant Bhushan guilty of contempt of court. (Advay Milind Vora is a third year student of Faculty of Law, The Maharaja Sayajirao University of Baroda, Vadodara)
Introduction Bollywood cinema has come a long way. From Mughal-E-Azam to Gulabo Sitabo, Bollywood has produced a variety of films belonging to different genres. The depiction of content in the films is protected by freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. Unlike other publications, films are the only form of expression which are subject to pre-censorship. Pre-censorship means the prior restraint on content before it is released for public viewing. It comes under the restrictions enumerated in Article 19(2) of the Indian Constitution. The validity of pre-censorship in films was upheld by the court in K.A. Abbas vs. Union of India. This gives the Central Board of Film Certification (henceforth, CBFC or Censor Board) essential control to prescribe cuts as they feel like, to such an extent that films sometimes lose meaning. They also have the power to prevent the release of a film if they dislike the content within it. Censorship in Bollywood cinema is capricious; it changes according to the discretion of the person holding the chairman position of the board. (Shubham Gupta and Shrey Lodha are fourth year students of National Law University, Odisha)
INTRODUCTION Stymieing the commercial activities and effacing the rotational flow of cash of the businesses across the globe and within the country, the lockdown, a countermeasure to the novel corona-virus has inadvertently compelled unemployment to show its teeth. Amidst the rising unemployment, it is the private sector employees who have been affected the most. During this pandemic, the employers of such employees can use and have used the law as a shield which is ‘almost’ impossible to penetrate. In this article, the authors shall examine these shields and have accordingly categorized them into three heads namely (a) economical shield; (b) legislative shield; and (c) contractual shield. Every shield is coupled with a penetrating sword which could be used to protect the interests of these private-sector employees. Besides, an attempt is made to put into perspective the procedural difference followed in dismissal or removal of employees in the public sector and private sector. (Tarun Mehra and Savyasachi Narayanan are third year students from Campus Law Centre, University of Delhi)
The Indian subcontinent has a history which is replete with instances of dynasties conquering the lands and possessions of those before them, ransacking livelihood, usurping religious institutions, and cultivating communal intolerance. In an attempt to resolve these medieval yet unsettled controversies, the Parliament prudently enacted The Places of Worship (Special Provisions) Act, 1991. In order to curb the potential conflicts and to maintain a sense of communal harmony, the P.V. Narasimha Rao government enacted this Act in 1991, at a time when the Ram Janmabhoomi- Babri Masjid conflict was at its zenith and about a year before the demolition of Babri Masjid. The statute which has been the epicenter of multiple debates has been brought into limelight again recently after a petition was filed by a Hindu body namely, Vishwa Bhadra Pujari Purohit Mahasangh among others in the Apex Court challenging Section 4 of the Act propounded to be the heart and soul of the impugned statute. The question which has been put forward is, whether the concerned legislation follows the ideals of secularism, or is it just another politically motivated propaganda meant to do more harm than good. Failed in taking a stand against the pandemic: A Delineation of washout of the Indian Legislature17/8/2020 (Deepika Kacholia is a second year student of Dr. Ram Manohar Lohiya National Law University, Lucknow)
Introduction The outbreak of the Covid-19 pandemic interrupted the working of legislatures (barring that of Meghalaya which even met amid the lockdown) across the country. While various legislatures across the globe were quick to devise novel modus operandi in order to keep with the pandemic, the Indian Parliament that has worked in the face of many adversities, is still in the state of adjournment along with the State Legislative Assemblies. During the 1962 Indo-China skirmish, the Parliament’s date of commencement was even brought forward (page no. 14). But in the present scenario, when multiple issues confront the nation, the Parliament has not been in action. (Jhalak Gupta and Ritvik Maheshwari are second year students of National Law University, Odisha)
In shadow of the outbreak of pandemic COVID-19, Uddhav Thackeray led Maharashtra Government released an arbitrary order, effective from May 25th to June 8th which uses euphemistic words to rule out any criticism against the government by allowing initiation of legal actions against the person who tries to use his/her freedom of expression. Any person posting or sharing information that is capable of causing unrest in the Mumbai City against the government will be penalized. This gag order caught the attention of the whole country because of its arbitrary nature. Justifying the mischievous act of government, the police stated that the action was necessary to curb the “animosity created in the state due to COVID-19 pandemic”. The said order derives its power from section 144 of the Criminal Procedure Code (CrPC) and the person will be charged under section 108 of the Indian Penal Code (IPC). |
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