Scrutinizing the Constitutional Power to Disqualify a Person From Contesting Democratic Elections

“If the people who are elected are capable and men of character and integrity, then they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it, and India needs today nothing more than a set of honest men who will have the interest of the country before them…It requires men of strong character, men of vision, men who will not sacrifice the interests of the country at large for the sake of smaller groups and areas…We can only hope that the country will throw up such men in abundance.”

Dr. Rajendra Prasad on 26th November, 1949 before putting the motion for passing of the Constitution of the floor.[i] Continue reading

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THE CONSTITUTIONAL, LEGISLATIVE AND JUDICIAL FRAMEWORK OF DISENFRANCHISEMENT IN INDIA: A CRITICAL EXEGESIS

I. INTRODUCTION

“In spite of the ignorance and illiteracy of the large mass of the Indian people, the Assembly has adopted the principle of adult franchise with an abundant faith in the common man and the ultimate success of democratic rule… If democracy is to be broad based and the system of governments that is to function is to have the ultimate sanction of the people as a whole, in a country where the large mass of the people are illiterate and the people owning property are so few, the introduction of any property or educational qualifications for the exercise of the franchise would be a negation of the principles of democracy… ”

-Alladi Krishnaswamy Ayyar, Constitutional Assembly Final Debates, 23rd November 1949[i]

On 10th December 2015, the Supreme Court upheld the Haryana Panchayati Raj Act amendments, which imposed educational, debt and property-based restrictions upon the right to contest Panchayat elections.[ii] Initially, an ordinance known as “Haryana Panchayat Raj (Amendment) Ordinance, 2015 was promulgated on 14th August 2015, then replaced by the Haryana Panchayati Raj (Amendment) Act, 2015[iii] which was passed by the Haryana Legislature on 7th September 2015 and subsequently notified. The constitutionality of the Amendment Act was upheld by the Court, spurring considerable debates surrounding the province of judicial review over legislative prescription of qualifications for contesting elections, the politics of disenfranchisement[iv] and the Constitutional framework pertaining to these spheres. Continue reading

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CLS interview with Sr. Adv. K.K. Venugopal

The Constitutional Law Society recently had the opportunity to interview Mr. K.K. Venugopal, Senior Advocate, Supreme Court of India. He is not only one of the most respected and experienced lawyers in the country but is also regarded as an expert in Constitutional Law. He answered various questions regarding Constitutional Law and litigation as a career for law students amongst others. 

Following are the excerpts of the interview conducted by the Constitutional Law Society of the West Bengal National University of Juridical Sciences, Kolkata.  Continue reading

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BASIC STRUCTURE DOCTRINE: OLD WINE IN A NEW BOTTLE?

The Supreme Court of Pakistan (“SCP”), by an overwhelming majority of 13 out of 17 judges, recently held that it has intrinsic powers to review the constitutionality of a constitutional amendment passed by the Parliament.[i] While the 902 page judgment has been hailed as an ostensibly favorable instance of the current trend of Asian nations such as Bangladesh, Sri Lanka and Malaysia among others[ii] to uphold the Basic Structure Doctrine (“BSD”), an in-depth analysis shows that the BSD was not adopted in an identical manner to India- in fact, a different doctrine was upheld, namely the Salient Features Doctrine (“SFD”). Continue reading

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JUDICIAL APPOINTMENTS- USHERING IN A NEW PERSPECTIVE

The discourse around the independence of judiciary in India pivots around the selection of judges, which hitherto had been the sole bastion of the Judiciary. The system of appointment of judges has been a matter of intense discussion and debate since time immemorial. The evolution of “Collegium system” has its genesis in its three judgments, referred to as the “Three Judges Case.” The First judge’s case[1], rendered the judiciary subservient to the executive in the appointment and transfer of the judges, however both the Second[2] and Third judge’s[3] cases established the primacy of the CJI and judiciary in the matter of all judicial appointments. Though the collegium system solved the problem of executive’s arbitrary appointment of judges, it resulted in unforeseen problems. Continue reading

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“ALL BIRDS HAVE A FUNDAMENTAL RIGHT TO FLY”: IMPLICATIONS OF ATTRIBUTING CONSTITUTIONAL RIGHTS TO ANIMALS

I. INTRODUCTION

The Supreme Court of India has recently stated that it will decide the validity of the Gujarat High Court order which mandated that birds had a fundamental right to fly.[i] Likewise, The Delhi High Court went ahead and declared the same through an order in People for Animals v. Md Mohazzim[ii]. The order is remarkable because it provides a new angle to animal rights discussion and is confounding as it does not shed much light on the stated proposition in the said order that it was a settled law that birds have a fundamental right to fly as well as the right to live with dignity.[iii] The order wasn’t accompanied with a detailed explanation about the constitutional provisions in question. Instead, the court relied on A. Nagaraja v. Animal Welfare of India[iv] as the ‘settled law’. Continue reading

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Bicameralism: Renewed Significance

In the 2014 general elections, the National Democratic Alliance (‘NDA’) has managed to bag 335 seats, and the Bharatiya Janta Party (‘BJP’) by itself has secured 282 seats – well above the simple majority mark of 272 seats that is required to form a government. Throughout the election season, the campaign pitch of the BJP and its Prime Ministerial candidate, Narendra Modi, had been ‘development’. Among the promises of economic growth, a key point of discussion has been the tardy rate of passage of bills in both Houses of the Parliament due to frequent disruptions. One of the appeals made by BJP during the campaign was for a sufficient mandate in order to form a ‘stable government’, and ensure the quick passage of bills. Indeed, the BJP ran a successful campaign and were given a strong mandate by the electorate to form a stable government.

Continue reading

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