Articles
How The Constitution Helps To Maintain The Integrity And Unity Of The Nation
The belief that individuals have natural rights- inherent and inalienable- and anterior to any written instrument like a constitution, that government acquires its authority from the people and that the purpose of government is to promote the common good is what conceives and conceptualizes a constitution made in the name of the people, defining the powers of the main institutions and delineating the relationship between various organs of government and between government and the citizens....
Remembering B. N. Rau's Contribution In The Making Of Indian Constitution
The Constitution of India, it is often said, is an extension of the ideals cherished by our freedom fighters. The history of the Constitution, for this reason, is often conflated with Indian nationalism. In such accounts, the study of the Constitution by historians puts the role of politicians and leaders of the liberation struggle at the forefront. In this sense, it is not surprising to imagine why contributions of a civil servant, even one as important as B.N. Rau, have not been...
Preventive Detention Laws Allow State To Carve Out Exception For Its Lawlessness : Mihir Desai, Senior Advocate
[This lecture on the topic 'The Problem Of Preventive Detention In India' was delivered on 23 November 2020 as part of the KG Kannabiran Lectures on Law, Justice and Human Rights – organised by the family of KG Kannabiran (1929-2010) to celebrate his life, work and its futures]. ABSTRACT Preventive detention laws and special legislations like UAPA -- anti-terror laws as they are called -- allow the state to carve out exception for its own lawlessness. These are the laws...
A Tale Of Two Dissents
When we think of dissents, we are reminded of the powerful words of the 11th Chief Justice of the United States Charles Evans Hughes that "a dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed." While unanimity in a decision is desired to ensure consistency and finality, a dissent may reflect an...
[Constitution Day 2020] Reminiscing India's Constitutionalism: Homage to the Indian Constitution
"However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good." -Dr. B.R. Ambedkar At the time when the Constitution of India was framed, democracy was meant to be its utilitarian manifestation. Pandit Jawaharlal Nehru while moving the Objectives Resolution commented that democracy needs to be extended from political to the economic and...
Where Free Speech Is A Path To Lose Personal Liberty: After 70 Years Of Constitutional Democracy
We celebrate 70 years of Constitutional Governance in India, i.e., Bharath on 26th November 2020 with Damocles sword on free speech that could deprive personal liberty. None is bothered about those innocent, not very popular, common journalists and protestors who were arrested for talking against the establishment or protesting against Government policies like the Citizenship Amendment Act (CAA). In recent times, several Journalists have been charged under the sedition law, the Official...
When Heavens Will Fall For Justice To Others…?
While inaugurating'Nyay Kaushal' – e Resources Centre of the country at Nagpur bench of Bombay High Court on 31-10-2020, CJI S A Bobde said: "Let justice be done, though heavens may fall."[1] However, late Justice V. R. Krishna Iyer in his famous book "Off the Bench" narrated " … the delightful account by Lord Denning of the barbaric origin of fiat justitia in Rome" which goes as under; "Let justice be done I As done in Rome In my coat of arms, I took as my...
Section 28 DA Of Customs Act 1962 & CAROTAR Rules 2020: Is The Remedy Worse Than The Disease?
India is a signatory to trade agreements with several countries, including Free Trade Agreements (FTAs) with countries like Japan, South Korea, Indonesia, various ASEAN members etc. The said FTAs are international treaties . In terms of the FTAs, a preferential tariff treatment is given to originating goods of the exporting country. In this regard, 'Rules of Origin' (RoO) are cardinal principles based on which the source country of import goods is established, and subsequently...
The Exorcism Of UAPA
Even after the advent of the NIA Act, 2008, covering the investigation and prosecution of offences under UAPA, the shadow of CrPC still looms large.Prior to the enactment of the National Investigation Agency Act, 2008 ('NIA Act,' for short), the investigation and prosecution (trial) of offences under the Unlawful Activities (Prevention) Act, 1967 ('UAPA,' for short) was governed by the Code of Criminal Procedure, 1973 ('CrPC,' for short). The Part II of the First Schedule of the CrPC...
A Police Constable's Constitution
Commenting about the section prepared by the Fundamental Rights Sub-Committee for the Draft Constitution of India, Somnath Lahiri famously said that the provisions on fundamental rights appear to have been drafted from the point of view of a police constable. Considering that the final version of the fundamental rights clauses retained much of this draft (and, frankly, only narrowed the scope of rights further), Lahiri's criticism squarely holds for Part III of the Constitution as we know...