Jindal Global Law Review

INDIAN PUBLIC LAW: INVESTIGATIONS AND IMAGINATIONS

VOLUME 3, ISSUE 1, 2012

Issue Editors: Aniruddha Jairam Amit Bindal

Editor’s Foreword (PDF)

ARTICLES

1. ‘Faith’ in Law

     Ratna Kapur
     Article (PDF) | Abstract

This article focuses on the appropriation of ‘faith’ as a legitimate right under the emerging discourse of secularism endorsed by the Hindu Right. This is reflected in the Ayodhya decision which strengthens such redefining of the meaning of the right to freedom of religion in majoritarian terms. The Ayodhya judgment has been analyzed and critiqued as appropriating the discourse of formal equality and religious tolerance to provide an essentialist picture of Indian secularism favoring the agenda of the right wing Hindu nationalists. It argues in favour of a robust right to freedom of religion in a way that defends the rights of worship of Muslims, and in the process rescues one of the central planks of Indian secularism.
Ratna Kapur, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 1:20 ISSN 0975-2498.

2. Constitution as Fundamental Law: Preserving its Identity with Change
    Mahendra Pal Singh
    Article (PDF) | Abstract
The article scrutinizes the effect of changes in the Constitution, by way of constitutional amendments, to the identity of the Constitution. Mapping the historical perspective of the constitutional amendments under the Constitution of India, the author revisits the debates on the doctrine of basic structure expounded by the Supreme Court of India. It critically reflects upon the basic structure doctrine as an aspect of constitutionalism and argues that the invocation of the doctrine of basic structure as the last resort reflects the political stability and maturity of the Constitution.
Mahendra P. Singh, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 21:38, ISSN 0975-2498.


3. Constitutional Right to Access to Basic Amenities: Perspectives on Limits of Law in Social Empowerment
   Parmanand Singh
   Article (PDF) | Abstract

This article calls into question the excessive faith placed in purely legal responses to human suffering in the Indian context. The author seeks to determine the extent to which law, in both its institutional and doctrinal forms, can address social ills in India. The article also discusses international context and various human rights instruments to draw parallels with the Indian experience. The author critically analyses the responses the Indian Supreme Court has made to questions of addressing basic rights under the framework of Article 21 and the Right to Life of the Indian Constitution. The author concludes by saluting the ‘rights’ based discourse introduced by the Indian Supreme Court to economic development narratives in the era of globalization, while also advocating a stronger ‘positive duties’ based approach for the legislature and executive.
Parmanand Singh, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 39:60, ISSN 0975-2498.


4. Public Health Priority: Hazards of Tobacco Consumption, Legal Response and the need for its effective implementation
    Ajay Pandey
   Article (PDF) | Abstract

Consumption of tobacco and exposure to tobacco smoke cause death, disease and disability. India has a strong legal regime to regulate tobacco activity and to protect the rights of non-smokers. It, inter alia, prohibits smoking of tobacco in public places. Landmark court decisions have held that smoking of tobacco in public places is unconstitutional and violates the right to life of non-smokers. The law, however, is not implemented effectively. Participation of the general public is critical in ensuring effective implementation of the law. Creative use of the Consumer Protection Act is a way to secure participation of the general public in effective implementation of the Tobacco Act.
Ajay Pandey, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 61:86, ISSN 0975-2498.


5. Judicial Independence: Is it Threatened?
    J.S. Verma
   Article (PDF) | Abstract

This article seeks to present an insider’s account of the vexed questions of institutional design in Indian law. Drawing upon the lived experiences of the author, it discusses the ever evolving relationship between the judiciary and other state organs, primarily executive and legislative, in the Indian constitutional context. The article presents the historical background of the institutional conflicts that have arisen in India. The basic contradictions between the twin principles of ‘independence’ and ‘accountability’ are highlighted and discussed, especially in the context of how judges actually respond to such questions in the case law. The author concludes by arguing for a ‘self-generated accountability’, using the specific example of the Restatement of Values in Judicial Life, issued by the Indian Supreme Court in 1997.
J.S. Verma, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 105:116, ISSN 0975-2498.


6.Independence of Judiciary: In Search of Conceptual Clarity
   P. Puneeth
   Article (PDF) | Abstract

The concept of independence of judiciary has always been a very passionate topic for discussion, which has gained more momentum in recent days. Many issues ranging from one’s relating to judicial accountability to that of judicial activism vis-à-vis judicial independence have been subject matters of intense debate. Lack of proper understanding of the concept of independence of judiciary has been the main cause for undesirable delay in effectively addressing such issues. There is an imperative need to understand that the concept of independence of judiciary is much wider than mere separation of judiciary from legislature and the executive. It not only emphasizes on non-interference of legislature and the executive in the judicial proceedings but also requires the judiciary to remain independent. Judiciary’s duty to remain independent implies, inter alia, duty of the higher judiciary to allow the subordinate judiciary to remain independent and duty not to overreach on the legislative and executive domain in the name of judicial activism, which leads to fusion of power – an antithesis of separation of power. Judicial independence depends largely on judges themselves.
P. Puneeth, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 87:104, ISSN 0975-2498.


7. India’s Land Title Crisis: The Unanswered Questions
     Jonathan Zasloff
     Article (PDF) | Abstract

The article calls into question the Government of India’s National Land Records Modernization Programme, a massive, multi-lakh billion rupee program of land titling based upon the principles underlying Torrens Registration. It argues that the Union Government would be better advised to preserve and update the current deeds registration system of the Registration Act. Torrens registration is ill-suited to the current state of Indian governance, and risks not only wasting scarce resources, but injuring those millions of low-income farmers that it is intended to assist. Better methods of empowering low-income rural farmers exist and can be achieved at much lower cost. The paper this also suggests that in many areas of the Global South, the rush to Torrens registration could represent both another episode of failed economic development planning and a missed opportunity for genuine legal justice for the poor.
Jonathan Zasloff, Jindal Global Law Review, Volume 3, Issue 1, September 2011, 117:146, ISSN 0975-2498.