Category Archives: Uncategorized

New Blog: Law and Political Economy

For everyone interested in constitutionalism and the rule of law, especially from a critical perspective, the launch of the Law and Political Economy blog should be a matter of great excitement. The founders – David Grewal, Amy Kapczyinski, and Jedediah Purdy – are well-known scholars who bring a range of critical expertise to the field, ranging from international trade law to intellectual property law to political philosophy. I extract the first few paragraphs of the Manifesto here:

This is a time of crises.  Inequality is accelerating, with gains concentrated at the top of the income and wealth distributions.  This trend – interacting with deep racialized and gendered injustice – has had profound implications for our politics, and for the sense of agency, opportunity, and security of all but the narrowest sliver of the global elite. Technology has intensified the sense that we are both interconnected and divided, controlled and out of control.  New ecological disasters unfold each day.  The future of our planet is at stake: we are all at risk, yet unequally so. The rise of right-wing movements and autocrats around the world is threatening democratic institutions and political commitments to equality and openness.  But new movements on the left are also emerging.  They are challenging economic inequality, eroded democracy, the carceral state, and racism, sexism, and other forms of discrimination with a force that was unthinkable just a few years ago.

Law is central to how these crises were created, and will be central to any reckoning with them.  Law conditions race and wealth, social reproduction and environmental destruction.  Law also conditions the political order through which we must respond.

How should legal scholars and lawyers respond to this moment?  We propose a new departure – a new orientation to legal scholarship that helps illuminate how law and legal scholarship facilitated these shifts, and formulates insights and proposals to help combat them.  A new approach of this sort is, we believe, in fact emerging: a coalescing movement of “law and political economy.”

The approach we call law and political economy is rooted in a commitment to a more egalitarian and democratic society.  Scholars working in this vein are seeking to reconnect political conversations about the economic order with questions of dignity, belonging, or “recognition” and to challenge versions of “freedom” or “rights” that ignore or downplay social and economic power.

We pursue these egalitarian and democratic commitments through a set of theoretical premises. Politics and the economy cannot be separated. Politics both creates and shapes the economy. In turn, politics is profoundly shaped by economic relations and economic power.  Attempts to separate the economy from politics make justice harder to pursue in both domains.  As recent events illustrate, market society generates political conflict – conflict that is profoundly racialized and gendered. A politics that can engage this conflict must be attentive to the interplay between the ways the state creates “the market” and the ways market power feeds back into the politics, and between the hierarchies and humiliations of “private” life and the appeal of reactionary political visions.

Law gives shape to the relations between politics and the economy at every point. It is the mediating institution that ties together politics and economics.  Though legal realists and more recent critical scholars of law recognized this long ago, their insights must be revived, and given new meaning in the face of the recent history of legal scholarship.




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Call for Submissions: The Indian Law Review Literature Review Prize 2017

Indian Law Review hopes to publish at least one Literature Review (of around 10,000 words, including footnotes) in every volume. We envisage a Literature Review will not only comprehensively survey existing scholarship (including out-of-print earlier scholarship) on any discrete area of Indian law, but also organise such scholarship thematically and subject it to critical examination. Locating the scholarship in the context of the development of Indian law in that area will be necessary. Some attention to comparative scholarly and doctrinal debates in other jurisdictions may also be welcome. We expect the Literature Review to be a complete initial guide to any scholar wishing to begin research in that area of law.

We will offer a cash prize of INR 25,000 (Indian Rupees Twenty-five Thousand only) to the author of the entry selected for publication (the prize will be awarded in equal shares if the piece is co-authored). We expect the author to be a published expert in that area of law, or have a PhD in that area, or (at least) be pursuing an advanced PhD in that area. The deadline for submitting a Literature Review for our inaugural Literature Review Prize is 15 October 2017 (submissions made after that date would still be considered for publication, but we reserve discretion over the eligibility of late submissions for this prize). Any shortlisted author must also commit to working with the editors through November 2017 to improve the submission in light of reviewers’ comments and suggestions.

Submissions can be made on our dedicated submissions portal. Contributors are advised to read these Instructions for authors before making any submission. Potential contributors may direct any queries (including the suitability of their chosen area of law for the Literature Review) to our Reviews Editor Dr Arun Thiruvengadam <>.

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Does a tax on sanitary pads violate Article 15(1) of the Constitution?

The last few days have seen a campaign asking for a removal of the tax on sanitary pads (which is 5% in Delhi, and goes up to 14% in certain states). It has been argued that the premise of taxing sanitary pads is that they are luxury items; however, their impact on reproductive health and the overall well-being of women, at home and in the workplace, marks them out as essential items rather than luxury goods.

In this post, I will attempt to advance an alternative, legal argument: I will contend that a tax specifically on sanitary pads is unconstitutional, since it amounts to “discrimination on grounds… of sex“, which is prohibited by Article 15(1).  While the argument itself is simple, the possible objections to it are many and complex; consequently, I shall address them in some detail.

Sanitary Pads and Article 15(1)

Article 15(1) prohibits, inter alia, sex discrimination. Discrimination, both in its common usage, as well as in the understanding of the Supreme Court, broadly means to unequally allocate benefits and burdens among identifiable classes of people.

Sanitary pads, by definition, are used only by women. A tax on sanitary pads therefore amounts to a burden upon women. Or, to put it another way, but for being a (menstruating-age) woman, an individual would not be burdened by the sanitary pad tax. Under the classic definition, therefore, the tax discriminates on “grounds of sex.”

This probably sounds rather counter-intuitive. Perhaps the following analogy might help: would not a specific tax on crucifixes amount to discrimination on grounds of religion? If, intuitively, we think that it would, then there is every reason to hold that a tax on sanitary pads amounts to discrimination on grounds of sex: sanitary pads are, arguably, even more important for women than crucifixes are for Christians. That it does not intuitively appear to be so is probably because of a host of political and historical reasons, which have ensured that religious identity is salient in a way that sexual identity is not.

Let us now consider the objections.

Objection 1: The tax is on items, not on persons

The first, obvious, objection is that the tax in question is not a tax on women, but a tax on sanitary pads. Article 15(1) only prohibits discrimination “on grounds of sex“. It does not prohibit discrimination that will ultimately effect a particular sex only (readers will notice echoes of Koushal vs Naz, which held that Section 377 punished only acts, not people).

It is far too late in the day, however, to advance this argument. It is now firmly established, through more than six decades of constitutional jurisprudence (and indeed, pre-constitutional jurisprudence), that the correct test to be used in determining the constitutionality of a statute is not its object or form, but its effect upon rights. This was the holding of the Constitution Bench of the Supreme Court in Khandige Sham Bhat vs Agricultural Officer, in Prem Chand Garg vs Excise Commissioner, and – specific to Article 15(1) – in  Anuj Garg vs Hotel Association. Consequently, the fact that the tax is not a tax on women makes no difference; the fact that it affects women, and women alone, brings it within the ambit of Article 15(1).

Objection 2: “On grounds only of…

A second possible objection might point to the text of Article 15(1), which prohibits discrimination on “grounds only of… sex.” Focusing on the word “only“, the argument would then be that the tax does not burden all women, but only menstruating-age women who use sanitary pads. Consequently, it does not amount to discrimination on grounds only of sex, but “sex-plus”, as it were.

In the early years of Indian sex discrimination jurisprudence, various High Courts disagreed precisely on this issue. While some High Courts upheld putatively discriminatory laws on the basis that they took into account sex and other factors not within the ambit of Article 15(1), other High Courts held that Article 15(1) was applicable to discriminatory laws that were based on sex, and other factors “arising out of sex.” For our purposes, however, the controversy was put to rest by the judgment of the Supreme Court in Air India vs Nargesh Mirza, which held that pregnancy-based discrimination was hit by Article 15(1). The case of pregnancy, I would submit, is on all fours with the case of sanitary pads: not all women get pregnant, but only women get pregnant; similarly, not all women menstruate (and thereby need sanitary pads), but only women menstruate.

More broadly, jurisdictions world over are moving away from what the discrimination law scholar Tarunabh Khaitan calls the strict comparator test. In other words, it is no longer necessary to show, in order to make out a claim of discrimination, that a law must burden all members of one defined class, as opposed to the other. Discrimination law is shifting its focus, rather, to the question of whether laws disadvantage members of a class by virtue of their belonging to that class. That, as we have seen, is clearly the case here.

Objection 3: No Comparator

A more subtle form of the objection, however, might be as follows: given that there is simply no equivalent to sanitary pads for men, it makes no sense to say that a tax on sanitary pads discriminates against women; the whole point of discrimination law is that it is comparative. If, therefore, you cannot by definition tax men on the equivalent of sanitary pads, because such an equivalent doesn’t exist, then the act of taxing women might be problematic in other respects, but it is not an act of discrimination.

Readers will note that this argument restates the comparator claim in a more subtle form: the claim is no longer that the comparison must be between all women and all men, but that there must be something to compare to.

There are three responses to this argument. The first is that the logic of Nargesh Mirza covers this situation as well. In Nargesh Mirza, it was held that penalising pregnancy amounted to sex discrimination, notwithstanding the fact that men could not, by definition, get pregnant. Here, the State is penalising the use of sanitary napkins, notwithstanding the fact that men do not, by definition, use sanitary napkins. The analogy with Nargesh Mirza might not be immediately intuitive, perhaps because, on reflex, we think of pregnancy as a condition, and sanitary pads as an item of use. On the comparator logic, however, both are the same.

Secondly, we can restate Khaitan’s point that the focus of discrimination law is shifting from comparison to disadvantage. Discrimination law now sees as its focus the redressal of structural and institutional conditions that have been historically responsible for subordination on the basis of certain personal characteristics, such as race, religion, gender, etc. Placing a monetary premium upon menstruation fits within this particular understanding of discrimination.

Thirdly, let us go back to our hypothetical of a tax on crucifixes: there is no specific equivalent of a crucifix in other religions. Can we then say that a tax on crucifixes does not discriminate against Christians? The answer is no. Now, you might argue that the comparator there is other religious symbols, such as the Muslim skullcap, or the Sikh turban. Fair enough; but let us imagine that there are only two religions, Christianity, and Religion X, which has no “symbols“, but is an entirely abstract religion. Now, would we say that a tax on crucifixes does not discriminate on grounds of religion? I would submit that the answer would remain no, suggesting that the purpose of discrimination law is to remedy systemic disadvantage, and not necessarily search for comparisons.

Objection 4: After-shave lotions?

The last objection is a consequential one: there are many products used exclusively by women, and many products used exclusively by men: for instance, aftershave lotion. Holding a tax on sanitary pads unconstitutional would mean that none of those products could be taxed. This is an absurd consequence, and any interpretation that supports this consequence must be rejected.

While I am somewhat tempted to bite the bullet and say yes, a tax on aftershave lotion would be unconstitutional on grounds of Article 15(1), I think that there is a crucial distinction between sanitary pads and aftershave lotion, and that it is a distinction that is relevant to discrimination law. This distinction requires us to stress once more that the point of discrimination law is not to capture every instance of dissimilar treatment on the “grounds” set out under Article 15(1), but to remedy disadvantage. It is here that the arguments made by the political campaign – referred to at the beginning of the post – become relevant, because it has been shown that the use of sanitary pads is crucial to women’s reproductive health, as well as their participation in the workforce on equal terms with men. Placing a monetary premium on sanitary pads, therefore, is discriminatory because it disadvantages women, on grounds of their sex, in a non-trivial way. I am not sure if a similar case can be made for aftershave lotion.


Let me sum up my argument. A tax on sanitary pads burdens only women, and is therefore presumptively hit by Article 15(1) of the Constitution. The fact that it does not affect all women (only menstruating women) makes no difference from the perspective of Article 15(1). The fact that it does not, by definition, affect men at all, also makes no difference from the perspective of Article 15(1). And finally, Article 15(1) is attracted because discriminatory treatment, in this case, causes substantive disadvantage to women on grounds of their sex. This makes the initial, presumptive applicability of Article 15(1) absolute.

*I am grateful to Suhrith Parthasarathy and Jawahar Raja for helping me think through some of the issues in this piece.


Filed under Article 15 (general), Equality, Non-discrimination, Sex Discrimination, Uncategorized

Money Bills, Speaker’s Discretion, and Judicial Review

(In this guest post, Jeydev c.s. examines the controversial – and ongoing – issue of whether the Speaker’s decision to classify a bill as a money bill is subject to judicial review.)

Money bills seem to be all the rage these days. What is generally relegated to the annals of arcane legislative procedure is now at the forefront of a public debate that has raised accusations of executive arrogance, been defended as efficient law-making, and for our purposes, is begging questions of constitutional propriety. In this post, I look at the specific legal question of whether the role and conduct of the Speaker in classifying bills as ‘money bills’ is open to judicial review; this very issue is presently before the Supreme Court of India in Jairam Ramesh v. Union of India, as it hears a petition by a former cabinet minister who has challenged the passing of the Aadhaar Act, 2016 as a money bill, among other things. The question is important, because under the Constitution, the Rajya Sabha cannot exercise its customary legislative veto upon money bills. Consequently, the Speaker’s decision to classify a bill as a money bill or not has important ramifications.

It is true that in two recent cases, Mohd. Saeed Siddiqui v. State of Uttar Pradesh and Yogendra Kumar Jaiswal v. State of Bihar, the Supreme Court has held that the Speaker’s decision is not subject to judicial review. However, this post seeks to locate these judgments within the broader jurisprudence of the Supreme Court, with which they appear at odds with. The present petition offers the Court a rare opportunity to unambiguously articulate its position with sufficient reasoning, while acknowledging consequential implications, whichever way it rules.

Article 110 of the Constitution defines a money bill, and sets out six specific subjects which a money bill might cover (imposition of taxation, regulation of government borrowing etc.), so as to merit such classification, as well as any matter that is “incidental” to those six subjects. This is an exclusive list. Clause (3) provides that whenever any question arises to the propriety of classification under article 110, the decision of the Speaker of the Lok Sabha shall be final. However, the question remains: does the finality of the Speaker’s decision necessarily oust the jurisdiction of the courts? Article 122 explicitly bars courts from inquiring into the proceedings of Parliament. As the text of clause (1) suggests, this bar applies to any question on the ground of “irregularity of procedure”. The Supreme Court has, on several occasions, opined on the contours of this restriction.

In M.S.M Sharma v. Dr. Shree Krishna Sinha, it was affirmed that legislative business cannot be invalidated even if they are not in strict compliance with the law. As Chief Justice Sinha observed, these issues fall within the realm of what is a ‘special jurisdiction’ of the legislature – to regulate its own business; and the general rule is one of non-intervention. Historically at common law, this was also a privilege extended to Parliament and its officers, such as the Speaker. The powers of expulsion, censure, contempt et cetera are freely exercised by the UK Parliament without the threat of judicial review. However, the guiding principle of Indian law is constitutional supremacy, not parliamentary supremacy. For this reason, Indian jurisprudence has not been as kind to power unchecked by other branches of government. It has been repeatedly clarified in cases such as State of Rajasthan v. Union of India that the Constitution is ‘supreme lex’, which limits the authority of each branch, including that of the legislature. Judicial review offers an invaluable tool in checking Parliamentary belligerence, and this role is integral to the Indian constitutional scheme, as clarified by the Court in Sub-Committee on Judicial Accountability v. Union of India. From these cases, what is clear is this – the affairs of a legislature are generally the domain of that legislature alone, while the judiciary could play a significant role in review if the former strays from its constitutional circumscriptions.

For more guidance on what that potential role could be, we may look to Keshav Singh’s case. It held that while legislative bodies are not subject to judicial control as far as their internal procedures are concerned, there are certain caveats to such a proposition. It was held that a court of law may question legislative procedure if the impugned action rests not on mere irregularity, but from an ‘illegality’ or ‘unconstitutionality’ of procedure. In Ramdas Athavale v. Union of India, the Supreme Court extended that standard to article 122, as it pertains to procedural actions of Parliament. More tellingly, in Raja Ram Pal v. Speaker, Lok Sabha, the Court had applied this standard to article 105 (3), which sought to import those privileges, powers, and immunities enjoyed by the House of Commons into the Indian scheme (as an interim measure, until the Indian Parliament itself legislates on those matters). This case dealt with the expulsion of certain members of Parliament, by the Speaker. A plain reading of this clause and Parliamentary practices in the House of Commons might suggest a finality to procedural decision of the Speaker in confirming the expulsion, in terms that are analogous to article 110. The Court however noted that the Indian Constitution did not provide for expulsion as a means to effect a vacancy in the house, and the procedure was therefore illegal and unconstitutional, rather than merely irregular. The Speaker’s decision was held to be open to judicial scrutiny, and the expelled members were reinstated by the Court.

Given this precedential matrix, the question now turns to whether the decision of the Speaker to classify a bill as a money bill under article 110 amounts to a procedural matter; and even if it does, whether patently erroneous classification would amount only to mere irregularity of procedure. In Siddiqui, the Court considered a controversy with regard to identical provisions of the Constitution pertaining to state legislative assemblies. Here, the Court validated the finality of the decision of the Speaker, with only a passing reference to the rule clarified in the wealth of cases before it, and dismissed them without any substantial scrutiny. It did not offer any reasoning for this conclusion – in fact, it refrained from attempting to make the crucial link between irregularity of procedure and judicial review. The Court merely reiterated the text of article 110 (3), despite the broader avenue of intervention that has existed as far back as Keshav Singh.

More recently in Jaiswal, the Supreme Court reaffirmed the holding in Siddiqui that any decision of the Speaker in this regard, however flawed, could only amount to a “mere irregularity”, and thus outside the ambit of judicial review. Despite seemingly settling the question once and for all, closer scrutiny shows that the only source relied upon to this end is the conclusion in Siddiqui itself. It does not offer any independent assessment of the issue or unique reasoning – to say, ‘because Siddiqui said so’, holds value only if Siddiqui had done so on solid legal grounding in the first place. To that end, the Court missed an opportunity to detail the reasoning that informed its conclusions, particularly in light of the remarkable consequences of its decision. As anecdotal evidence from oral proceedings in the Ramesh case seems to suggest, the Court does not appear to be inclined to let blatant mischaracterisation go unchecked; Khehar CJ is reported to have observed, “If the Speaker says blue is green, we will tell her that blue is blue and not green”.

The Rajya Sabha is the indirectly-elected, upper-house of the bicameral Parliament of India. As such, it was envisaged to be an active participant in the legislative process – among other things, it would be consultative, advisory, and contributory towards law-making, without being subject to the vagaries of electoral politics. These features are supposed to, in theory, improve the quality of laws that are enacted by acting as a check on the untrammelled legislative intentions of the directly-elected, lower house of Parliament. With respect to ordinary legislation (i.e. non-money bills), the Rajya Sabha finds itself on equal footing with the Lok Sabha, as the former’s views cannot be ignored by the latter since the passing of such a bill by both houses of Parliament is the sine qua non of becoming law. On the other hand, once classified as a money bill, the Rajya Sabha’s legislative role is severely inhibited by reducing it to an advisory position – advice that is not binding on the Lok Sabha.

If the Court is to yet again affirm the conclusions of Siddiqui and Jaiswal in the forthcoming Ramesh case, unthinking reliance on those two cases would be another opportunity wasted as it does not truly answer the question of whether an erroneous certification of money-bills, as such, merely amounts to procedural irregularity. The Court must offer clear reasons as to why patently improper decisions by the Speaker does not amount to any of the other substantive flaws laid down in Keshav Singh and Pal. The obligation on the Court is to show why our constitutional scheme envisages the vesting of so grave a power with the Speaker that may be abused or incorrectly applied, yet not meriting judicial review. The very distinction between money bills and ordinary bills, as envisaged by the incorporation of article 110 in the Constitution, harks to the expectations of a participative and involved upper house. What does it mean for our democratic institutions if this process is obviously abused to exclude the participation of the upper house?

The Court may very well hold that the text of article 110 (3) is unencumbered by other constitutional standards and that the Speaker’s conduct is beyond review. But doing so entails a significant overhaul of our expectations and the Court must have the conviction to account for the implications of such a finding. It should acknowledge that such a reiteration of Siddiqui and Jaiswal emasculates the Rajya Sabha’s legislative function, implies that the ordinary-money bill distinction is specious despite the text of the Constitution, and that the Lok Sabha is paramount in the legislative process – the Court must justify why such radical empowerment of one house alone in a bicameral Parliament is appropriate.

In the absence of such an explicit and forceful finding, the guiding principle should remain those broader grounds for review envisaged in Keshav Singh, Pal et cetera, rather than the assertions of Siddiqui and Jaiswal. The Supreme Court may very well follow Siddiqui and Jaiswal, but it should also take care to detail the contours of such a deviation from the collective wisdom of its earlier jurisprudence on judicial review of legislative procedure – and contend that the Rajya Sabha is thus relegated to legislative redundancy. Bereft of such reasoning, the article 122 standard and the consequential extension of judicial review to the Speaker’s decision under article 110 appears more constitutionally sound.


Filed under Bills, The Legislature, Uncategorized

CPR Conference on Land Rights and Land Acquisition

CPR Land Rights Initiative and Chr. Michelsen Institute, Bergen are pleased to invite you to a conference on

Land Rights, Land Acquisition, and Inclusive Development in India
Thursday and Friday, 2-3 March 2017, 9:30 a.m.
Conference Room II, India International Centre
India faces serious challenges in creating development processes that generate economic growth while being socially inclusive, ecologically sustainable, politically feasible, and in accordance with the Rule of Law. Equitable and efficient acquisition of land by the state for economic development projects, including infrastructure and industry, lies at the heart of these challenges. Simultaneously, securing constitutionally guaranteed land rights to the poorest and most vulnerable communities in India, especially the Scheduled Tribes, against the state and other dominant communities, has been considered crucial to their economic and social empowerment. Land is not only an important economic resource and source of livelihoods, it is also central to community identity, history and culture. Unsurprisingly then, throughout India, dispute over state acquisition of land that deprives people of their land rights spans various dimensions of economic, social, and political life. How do we mitigate this conflict?

The conference will feature the launch of the CPR Land Rights Initiative report on “Land Acquisition in India: A Review of Supreme Court cases from 1950-2016”, that attempts some preliminary answers to this question. Despite its persistent and polarising nature, the debate on land acquisition has been marked by a lack of systematic and comprehensive data in support of particular positions. Existing studies on land acquisition have tended to focus on particular issues, like compensation, or on particular conflicts, or have been otherwise limited in terms of geography and time. The CPR Land Rights Initiative Report is the first comprehensive country wide study of land acquisition disputes before the Supreme Court since India’s independence. The Report analyses these disputes along various metrics, such as public purpose, procedure for acquisition, compensation, pendency of claims, and tracks trends with respect to distribution of disputes across geography and time, and central and state laws. The Report findings will be discussed and debated by stakeholder representatives, including the government, lawyers, international development agencies, and civil society groups, as well as expert researchers from the fields of economics, sociology and political science, and law. Our previous seminar showcasing the first phase of this research can be accessed here.

The conference will also feature findings from an ongoing CPR and CMI research collaboration on “Land Rights and Inclusive Development in the Scheduled Areas”, that will describe the political economy of land rights in areas governed by the Fifth and Sixth Schedules of the Constitution, with particular focus on the states of Gujarat, Andhra Pradesh, Telangana and Meghalaya. Representatives of community groups and civil society organisations will comment on these findings and highlight challenges, both individual and representative, faced by tribal populations in these four states.

A detailed agenda of the conference will be updated here. Please register at this link.

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Judicial Evasion and the Referral in Delhi vs Union of India

The conflict between the government of Delhi and the central government has been one of the more enduring political stories of the last few years. The conflict stems out of Delhi’s unique status as more-than-a-union-territory-but-not-quite-a-state, defined by Article 239AA of the Constitution. The political controversy, in brief, turns upon a dispute between the elected Delhi government, and the central government, on the location of governing power, and the status of the Lieutenant-Governor (a central government appointee). To put it simplistically, the Delhi government argues that, subject to the specific exceptions carved out in Article 239AA, the L-G’s role is (akin to that of the President) that of a rubber stamp, bound by the “aid and advice” of the Council of Ministers. The central government argues otherwise, advocating a much broader role for the L-G.

After substantial political controversy, with the Delhi government alleging that the L-G was deliberately stymying its functioning at the behest of the central government for political gain, the matter reached the Delhi High Court. The High Court handed down an elaborate judgment siding with the central government. Naturally, the Delhi government appealed.

Proceedings in the Supreme Court

The Supreme Court’s orders can be found by searching for “SLP (Civil) No. 26200/2016”, on the “Daily Orders” page. The first date of hearing was 5th September, 2016, where the matter was posted to an appropriate bench. On 9th September, before a bench of Justices Sikri and Ramana, notice was issued, and the parties were asked to complete the formalities. The case was listed for 15th November. On 15th November, it was adjourned by two weeks. On 28th November, it was adjourned for another week. On 5th December, it was listed for 12th December. On 14th December, the Court directed that a reply be filed to one of the I.A.s, and that the case be listed in the third week of January. It was mentioned before the Chief Justice on 18th January, who directed that it be listed on 31st January before the appropriate bench. On 31st January, it came to Justices Sikri and Agarwal, who began hearing it. It was heard in part, and listed for 2nd February. The Court then heard it on the 2nd of February, on the 8th of February, on the 9th of February, on the 14th of February, and on the 15th of February. On the 15th of February, the Court decided that in view of Article 145(3) of the Constitution, this case raised issues of considerable constitutional importance, and needed to be heard by a bench of five judges. The case was referred accordingly.

The Prospect of Judicial Evasion

From the 5th of September to the 15th of February is more than five months, and it is perhaps unfortunate that it took the Court that long to decide that the case raised substantial questions of constitutional importance. More than that, however, what is important is this: the term of an elected government is five years. The present case has been in the Supreme Court for almost ten percent of that time. The Delhi government’s argument is that the L-G is deliberately not allowing it to function as it should, and to fulfil its electoral promises. Whatever the merits of that argument, it is the definition of a political crisis, and – to an extent – a constitutional crisis. In this context, it’s also important to note that the status quo – that is, the High Court’s judgment – favours the central government. In other words, the more the Supreme Court delays setting up the Constitution Bench, the closer this case gets to becoming infructuous (the next Delhi election is in 2020), and the more an unbalanced status quo – that has serious political ramifications – continues.

It is something akin to what would have happened if the UK Supreme Court had simply sat on the Brexit case, instead of hearing it in December and handing down a judgment in January. Whether it wants to or not, the Court is neck-deep into a political conflict, and as the Constitutional arbiter, its task is to decide that conflict in accordance with the Constitution.

Five months, admittedly, is not too great a delay in the Indian legal system (although, in the context of five-year election terms, it is already a great deal of time lost). However, the closer we get to 2020, the closer this case will get to yet another instance of judicial evasion; like Aadhaar and demonetisation, like Bihar’s alcohol ban, like the denial of a tax exemption to a film on homosexuality, and like the constitutionality of the Central Bureau of Investigation, it will be another case which raises crucial constitutional issues, but is effectively decided without a reasoned judgment by the Supreme Court (all these cases, it needs to be reiterated yet again, involve basic fundamental rights; the Delhi case is as important, because it involves the question of governing power).

So, one can only hope that the Constitution Bench to hear this case will be constituted as soon as possible.



Filed under Judicial Evasion, Uncategorized

ICLP: Call for Writing Internships

This April onwards, the Indian Constitutional Law and Philosophy blog will experiment with (paid) writing internships. A writing intern will, over the course of one month, work with the blog editor, and author four (4) blog posts (two on themes suggested by the intern, and two on themes suggested by the editor).

Applications are welcomed from law students in their fourth year or above (including graduates). If you’re interested in applying, please email the following to gautambhatia1988 at gmail dot com:

  1. brief statement of interest, detailing your previous experience with legal writing.
  2. A writing sample of not more than 1500 words (footnotes are not necessary, but will be included in the word count) that sets out a novel constitutional argument.
  3. An academic CV.


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