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(Kartik Singh is a third year student at National Law University, Odisha, )
The novel Covid-19 pandemic has severely impacted the life and businesses globally. In a bid to fight against the pandemic, several charitable trusts, public and private, have come to the forefront encouraging the public to donate some amount for the general good. The Indian government, in order to provide assistance and relief, has opened a fund known as the “PM CARES Fund”, wherein people, irrespective of their citizenship, as well as companies, can donate any amount. The fund has received a plethora of donations from individuals and companies, and the same is expected to alleviate the sufferings of the people affected by the pandemic. Interestingly, the fund has run into troubled waters with the Prime Minister’s Office (PMO) refusing to entertain several RTI applications (right to information) intending to extract details about the fund, including the total amount deposited in the fund, details of the highest contributor, the notifications and circulars concerning the formation of the fund, etc.. The government has maintained that the PM CARES Fund is not a “public authority”, therefore, it is not answerable to the applications filed under the RTI Act.
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Reservation in Promotion: Unravelling the debate between Individual’s Right and State’s Discretion29/7/2020 (Shreya Tripathi is a second year student at Maharashtra National Law University, Nagpur.)
The Reservation policy as envisaged under the Constitution of India has been the subject of debate for many decades by many scholars, jurists and general people of India. The Constitution has provided for ‘reservation’ to the backward classes of society with a view to not only implement the constitutional promises and visions of the Preamble of the Constitution of India of providing ‘Equality of status and opportunity’, but also to bring de facto justice through the mechanism of reservation. For quite a long time, the society in India due to the prevalence of caste system has discriminated against people belonging to the so-called lower castes. Discrimination was manifested in various forms like, denial of entry to public places, educational institutions, job opportunities etc. Highlighting the socio-economic inequality, Dr. B.R. Ambedkar said: “We must begin by acknowledging first that there is a complete absence of two things in Indian Society. One of these is 'equality'. On the social plane, we have in India a society based on privilege of graded inequality, which means elevation for some and degradation of others. On the economic plane, we have a society in which there are some with immense wealth as against many who are living in utter poverty” (Harsh Khanchandani & Manik Arora are second year students at Symbiosis Law School, Pune. This is Part 2 of a two-part series.)
-- In the first part of this article the authors traced and introduced the concept of genetic privacy. Further, they discussed reasons behind DNA information being sought while highlighting the importance and benefits of DNA information. Then the focus is shifted to the evaluation, misuse and potential for abuse of genetic privacy. The first part comes to an end with the analysis of legislative action for the safeguard of genetic information. -- The Expanding Horizons of Article 21 This segment addresses the evolution of Article 21 of The Constitution of India through various landmark judgments. It shall focus on the various elements added to the Article which are now accepted as falling under the ambit of the definition of ‘Life and Liberty’ as mentioned under Article 21. “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Article 21 has been described as the procedural Magna Carta protective of life and liberty of the Indian Constitution. It has also been likened to the Fifth Amendment to the American Constitution, Article 40(4) of the Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946. It secures under its ambit two essential rights – (1) The Right to Life and (2) The Right to Personal Liberty. Therefore, Article 21 doesn't merely provide security to the physical act of breathing. Its meaning is constantly evolving to include various other rights that help ensure human dignity, livelihood, and health amongst other things. (Harsh Khanchandani & Manik Arora are second year students at Symbiosis Law School, Pune. This is Part 1 of a two-part series.)
‘Data is the New Oil’ is a statement that has been heard often in the 21st century and indeed data has proven itself to be the most valuable, untapped, and immense assent of modern times. Almost every aspect of modern life utilizes data collection and analysis methods to enhance reach, understanding, and productivity in their respective spheres. This includes but is not limited to, business, management, scientific research, finance, governance, etc. This has naturally raised legitimate concerns over the brazen power that a website or platform holding their user's data can exercise over them. Targeted advertisements, email address mining, and the exchange of cookies are all methods that are used extensively in order to further the ability vested in the platform to keep an eye on its user. Technologies such as facial recognition and biometric identification have seen complaints of the overreach of power and breach of privacy being lodged against them. The authority and potential for abuse these technologies hold in the wrong hands is a truly terrifying prospect. In response to the concerns raised by these technologies, a plethora of legislation across the globe has emerged in order to safeguard privacy and freedom. (Samavi Srivastava and Utkarsh Vats are second year students at National Law Institute University, Bhopal)
As protests against racism and for civil liberties in the United States proceeded, while some world leaders came out in support, others were less than accommodating of them. President Trump, a hardcore Republican, not only expressed his disdain for the protests but also threatened to deploy the military against the protestors if they did not retreat. This brings forth various questions regarding the legality of such an action; the ambit of the Presidential powers, their conflict with powers of the states, etc. Two important legislations come into play to address this question: the Insurrection Act and the Posse Comitatus Act. Further, the authors argue the general trend in the USA of moving away from ideas of liberalism and whether this conflicts with the idea of democracy as a whole. This trend threatens the picture of the USA as the role model of a Western Liberal Democracy. A larger picture is brought to light while assessing the general shift of the world away from traditional ideals of liberalism, and how the USA’s actions influence it. (Shreya Jha is a fifth year student at Amity Law School, Delhi; and Lavanya Jha is a third year student at the National University of Juridical Sciences, Kolkata.)
The debate around cow slaughter has been of political and constitutional relevance for a long time now. The Hindu community is generally considered strongly opposed to it because of the elevated status of the cow in Hindu scriptures and mythology. Conversely, the consumption of beef is a commonplace in Islamic communities. Thus, the attachment of such religious connotation to the nature of cow-slaughter has often been used to create a rift between the two religious communities. The characterisation of this debate took constitutional relevance when it was tabled in the Constituent Assembly while the country was still recovering from the partition – which was primarily of a communal nature. The adjudication of cow slaughter in a manner harmonious to both identities was an imperative task. (Shivank Verma is a third year student at Hidayatullah National Law University. This essay won the second runner-up position at the 2nd IDIA Chhattisgarh National Essay Writing Competition.)
On August 5, 2019, the Union Government through The Constitution (Application to Jammu and Kashmir) Order, 2019 (“C.O. 272”) amended Article 367 of the Constitution of India to insert a new clause in it. This path breaking and contentious amendment triggered a complicated legal process which finally resulted in the amendment of the Article 370 itself, whereby all the provisions of the Constitution of India were made applicable to the State of Jammu and Kashmir. Article 370, as it stood before, was a ‘temporary’ provision, which conferred a special status on the State, by virtue of which most of the Articles of the Constitution of India did not apply there. The State had its own Constitution, its own personal laws, and its own penal code. This essay analyses the nature and legal implications of C.O. 272 and the insertion of the new clause in Article 367 of the Constitution. It also seeks to establish the legal validity of the said order in the light of Mimansa Rules of Interpretation. Finally, the author of this essay looks into certain criticisms advanced at the manner and procedure adopted by the Government to strip Jammu and Kashmir off its special status. (Nikita Yadav is a second year law student at the Campus Law Center, University of Delhi.)
Yesteryear, China witnessed the genesis of Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2), commonly known as COVID-19 or Coronavirus, when the first ever case was registered in Beijing on 17 November 2019. Soon enough, it became a pandemic and caught the attention of virtually everyone irrespective of their social strata. In India, it set its footprint on 30 January 2020 and spread nationally at an alarming rate. To tackle this, on March 28, Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund) was launched with Prime Minister Narendra Modi as its ex-officio Chairman, and Union Home Minister Amit Shah, Defense Minister Rajnath Singh and Finance Minister Nirmala Sitharaman as its three ex-officio trustees. The PM CARES Fund attracted humongous uncapped donations from people belonging to different economic strata as it captured the imagination of the Indian population. In just one week of its inception, it had attracted a sum of INR 6500 crore and so far, it has amassed a whopping INR 9,677.9 crore, according to an analysis by ‘IndiaSpend’. (Tarun Agarwal and Divyansh Bhargava are third year students at Institute of Law, Nirma University, Ahmedabad)
To fight the pandemic, there exists a conundrum over the separation of power between the central government and the state governments. It is evident that Disaster Management Act (DMA), 2005 gives a wide amplitude of power to the central government to “take such other measures for the prevention of disaster, or the mitigation, or preparedness and capacity building for dealing with the threatening disaster situation or disaster as it may consider necessary.” On the other hand, the Epidemic Disease Act (EDA), 1897 and Article 246 of the Constitution of India empowers the state to take necessary steps to control the spread of the virus and to take decisions in the matters of public order and health. During the COVID-19 crisis, the distribution of power between the central and state government seems to be blurred. As mentioned above, central government has invoked the provision of the Disaster Management Act (the torchbearer in this pandemic) and declared the pandemic a notified disaster ‘to take all such measures as it deems necessary’, which eventually gives the central government more power in comparison to the state governments. For instance, the Ministry of Health and Family Welfare issued a circular asking state government to refrain from buying personal protective equipment and directed that the same shall be distributed by the central government. Compliance with this policy was made a compulsory condition for the state government for availing funds under the Article 293 of the Constitution of India. Further, there has been a sweeping exercise of executive authority by the central government while implementing the nationwide “lockdown” where the term lockdown itself stands in ambiguity and does not derive its force from any particular legislation. This unprecedented move by the central government indicates the tendency for the centralization of power clearly seen during the pandemic. The authors in this piece would like to argue that whether there is an exigency for the demarcation of power between the central government and the state role during the pandemic. (Ritika Kanwar is a fourth year student at Institute of Law, Nirma University, Ahmedabad)
The Road not Taken Since the colonial era, the homosexual or same-sex relations have been considered against the order of nature and the norm of societal decency, and hence been criminalized. One such provision is the Section 377 of Indian Penal Code of 1860 (hereinafter referred to as ‘1860 Code’). The same had been decriminalised in 2018 by a constitutional bench of the apex court in judgement of Navtej Singh Johar v. Union of India (hereinafter referred to as ‘2018 Judgement’) stiking down Sectiokn 377 as unconstitutional. The in pari materia provision under the legal framework of Singapore, to Section 377 of 1860 Code, is Section 377 of Singapore Penal Code, 1936 (hereinafter referred to as ‘1936 Code’) which criminalized carnal intercourse. This particular section in the 1936 Code was repealed by the respective legislature in 2007. Despite this, Section 377A of 1936 Code which essentially criminalises homosexuality or consensual sex between men, is still a part of the comprehensive criminal law framework of Singapore. Not long after the said 2018 judgement, the constitutional validity of S. 377A of 1936 Code had been challenged on the grounds of being arbitrary and violative of Articles 9 (Liberty of the person), 12 (Equal protection) and 14 (Freedom of speech, assembly and association) of the Constitution of Singapore in the case of Ong Ming Johnson v. Attorney General (hereinafter referred to as ‘2020 Judgement’). |
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