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

Articles by Alok Prasanna KumarSubscribe to Alok Prasanna Kumar

Too Late for Social Justice

The Supreme Court’s flawed and jurisprudentially unsound judgment in E V Chinnaiah (2005), which prohibited inter se reservations among Scheduled Caste and Scheduled Tribe communities, looks likely to be overturned by a seven-judge bench in State of Punjab v Davinder Singh. However, this may turn out to be too late to have any transformational effect on social justice, given the shrinking of the state.

A Powerful Internal Critique

The Supreme Court’s judgment cancelling the remission of the convicts in the gang rape of Bilkis Bano, while being a resounding victory for the rule of law, civil liberties, and basic decency, is also an internal rebuke of the Court itself. The bench is unafraid to not only overtly criticise previous benches, which had paved the way for remission, but also other benches which pay mere lip service to constitutional values while acting contrary to the same.

The Selective Misinterpretation of Article 370

In its judgment upholding the constitutional validity of the abrogation of Article 370, the Supreme Court makes two claims: a historical one arguing that Article 370 was meant to be “temporary” and an interpretive one arguing that Article 370’s text allowed its unilateral abrogation by the President of India. This column examines the two claims made in the judgment, looking to see if a firm basis for either is made out.

The Folly of Re-criminalising Adultery

Notwithstanding the Supreme Court of India’s judgment decriminalising the offence of adultery in the Indian Penal Code, 1860, the Parliamentary Standing Committee examining the Bharatiya Nyaya Sanhita Bill, 2023 has demanded its reintroduction as a criminal offence. Not only is the move regressive, but it also completely misunderstands the reason why the Supreme Court deemed the criminalisation of adultery unconstitutional.

Delimitation and Reservation

The Bihar Caste-based Survey and the constitutional amendment guaranteeing reservation for women in Parliament bring the question of delimitation to the fore once again. In the absence of immediate delimitation, these two events show that the under-represented communities and sections of society will only continue to remain unrepresented.

Abortion and the Bharatiya Nyaya Sanhita

Ostensibly to decolonise and modernise India’s criminal justice system, the Bharatiya Nyaya Sanhita, 2023 (which attempts to replace the Indian Penal Code) has been criticised for retaining much of the colonial language and approach that the IPC did. One of those areas is in relation to the law governing abortions in India, but the bill still presents an opportunity to modernise it.

Social Welfare Laws and Federalism

Rights-based welfare legislation, even if passed by the union government, needs implementation at the state level. State governments are not passive implementation agencies and have sometimes stymied the effective implementation of such laws. Three recent examples show the need to better imagine social welfare laws within the context of a federal framework to ensure effective implementation.

Fostering an Independent Bar

Even as debates rage over the threats to the independence of the judiciary, it is necessary to focus on the other institution keeping the judicial system going—the bar—specifically that part of the legal profession which largely practises in the courts. The bar being the source of appointments to judges at the high court and who then go on to become Supreme Court judges, concerns have recently emerged on its independence as well.

Municipal Elections and the Constitution

Some of India’s largest cities with a population of a little more or less than one crore, have gone without a municipal government for several years. This is another key failing of the 74th amendment to the Constitution—the lack of provisions ensuring that urban governance can be carried out without state government interference. This article uses the example of the Bruhat Bengaluru Mahanagara Palike to highlight some of the problems with the constitutional provisions relating to urban local bodies and the inconsistent intervention by the courts.

Demonetisation Judgment

The Supreme Court’s judgment, upholding the constitutional validity of the demonetisation of `500 and `1,000 notes, is legally right but comes too late to be of any appreciable legal interest. It highlights the phenomenon of the Court determining the outcome of a case without actually deciding the case, and raises worrying questions about the abdication of responsibility by the Court.

A Defective Data Protection Board

The Digital Personal Data Protection Bill, 2022 is notably silent on a key agency that it proposed to set up to enforce the law—the Data Protection Board. This silence has implications for the constitutional validity of the provisions in question, especially since the bill excludes the jurisdiction of civil courts and makes the board the sole mechanism for the enforcement of rights and liabilities under the bill.

Fresh Challenges to the 50% Limit on Vertical Reservations

The judicially imposed ceiling of 50% on vertical reservations in India has been questioned recently in two ways—the Supreme Court’s upholding of the 103rd Amendment Act, which allowed economically weaker section reservations beyond 50%, and the state legislations in Jharkhand and Karnataka, whic

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