By: Malika Jain Imagine walking on the road and stepping into a pothole in the monsoon. Those rageful emotions have got a legal vent, a fundamental right petition! Recently, Justice Devan Ramachandran of the Kerala High Court expressed his frustration similarly at the persistent uncertainty surrounding the restoration of drains and footpaths in Ernakulum City ahead of monsoon. This, however, is not the first instance of … Continue reading Fundamental Rights on Road
This piece highlights the judicial inconsistency in constitutional interpretation that persists at the Apex Court, using three judgments as case studies. First, by examining two recent judgments—Public Interest Committee for Scheduling Specific Areas and Kishore Chhanganlal Rathod—the article illustrates the Supreme Court’s inconsistent application of Article 329, which bars judicial review of delimitation laws. Second, it contrasts the smaller bench’s view in Kishore Chhanganlal Rathod with that of a larger bench in Anoop Baranwal, focusing on how the two judgments addressed judicial propriety. Overall, the piece critiques the Kishore Rathod judgment for disregarding binding precedent, engaging in flawed reasoning, and perpetuating the results-oriented approach characteristic of Panchayati Eclecticism. Continue reading The Harrowing Influence of Panchayati Eclecticism: A Test of Judicial Propriety of Article 329
In this article, the author examines the critical role of electricity in modern life and its evolving recognition as a Fundamental Right under the Indian Constitution. It explores the legislative and judicial developments that have transformed electricity from a taxable commodity to an essential service, culminating in its acknowledgment as a basic necessity under the Right to Shelter and Right to Life (Article 21). Through an analysis of key statutes and landmark judgments, the author argues for a rights-based approach to electricity access, emphasizing its indispensability in ensuring equal opportunities, socio-economic development, and a dignified standard of living for all citizens. Continue reading From Commodity to Fundamental Right: Is Denial of Access to Electricity a Violation of Article 21?
In this post, the authors discuss the case of Mr. Sanjay Mishra, the Enforcement Directorate (ED) director, whose tenure was extended through office orders and amendments. They argue that the 2021 amendment to the Central Vigilance Commission Act, which allows for the extension of the director’s tenure up to five years, nullifies the previous judicial pronouncement in the Common Cause case. The authors contend that this amendment, aimed at overruling the court’s decision, transgresses the constitutional safeguard of separation of power. They also emphasize the importance of fixity of tenure in probe agencies to ensure their independence from political influences and external control. The recurring and discretionary extensions granted by the government undermine the stability and integrity of these agencies. Ultimately, the authors assert that the extensions granted to Mr. Mishra under the amended act are unlawful and go against the principles established by the Common Cause judgment. Continue reading The Central Vigilance Commission (Amendment) Act, 2021: Another Tale of Legislative Overreach? Part II
In this post, the authors discuss the case of Mr. Sanjay Mishra, the incumbent Enforcement Directorate (ED) director, whose tenure was extended through office orders and amendments. The legality of these extensions was challenged in the Common Cause (A Registered Society) v. Union of India case, where the Supreme Court ruled that further extensions should not be granted to Mr. Mishra due to his attainment of the age of superannuation during the initial two years of his appointment. However, a second year-long extension was granted under an ordinance, and a third extension was granted under an amendment to the Central Vigilance Commission Act. The authors analyze whether this amendment nullifies the effect of the judicial pronouncement, potentially transgressing the constitutional safeguard of separation of power. They also highlight the importance of ensuring fixity of tenure in probe agencies to safeguard their independence.
In this post, the author highlights the introduction of the Place of Effective Management (POEM) test in India as a means to determine corporate tax residency and addresses the theoretical issues surrounding its application. The author argues that the lack of clarity and adequate guidance in determining POEM leads to unpredictability, uncertainty, and arbitrariness, which violates the principles of Article 14 of the Indian Constitution. The author suggests alternatives, such as the economic nexus test or a hierarchy of tests, to address the shortcomings of the POEM test and ensure fairness and predictability in determining corporate tax residency. Continue reading Place of Effective Management: A Solution Rigged with Theoretical Problems
In this post, the author discusses the exclusion of the High Court’s writ jurisdiction and analyzes the appellate mechanism from the Armed Forces Tribunal. The author highlights the doctrine of basic structure and explain that the High Court and Supreme Court have the power to review decisions of district judiciary and tribunals, ensuring the protection of fundamental rights. The author also addresses the absence of alternative appeal mechanisms for servicepersons aggrieved by the Armed Forces Tribunal’s orders and argues for the importance of the High Court’s writ jurisdiction in such cases. They further discuss the superintendence of the Armed Forces Tribunal vis-à-vis High Courts and emphasize the need for judicial review under Article 226. The article emphasizes the necessity of self-restraint exercised by High Courts while reviewing matters from the Armed Forces Tribunal and affirms the jurisdiction of High Courts to interfere with its orders. Continue reading Exclusion of the High Court’s Writ Jurisdiction: Analysing the Appellate Mechanism from the Armed Forces Tribunal
In this article, the author first delineates the meaning of Article 38 of the Constitution as envisaged by the constitution framers. The author then delves into the judicial interpretation of Article 38 of the Constitution for fulfilling the key objectives enshrined within the ambit of Article. The author analyses the law and suggests a normative approach towards infusing the text and spirit of Article 38 into the institutions of national life. Continue reading Infusing Social Justice Into our National Institutions: An Analysis of Article 38
In this article, the author analyses a relatively unexplored facet of the Indian Constitution, i.e., the reorganization of states under Article 3 and aims to formulate a potential framework of judicial review that ought to be utilized to test any future reorganization on the anvil of constitutionality. The same, according to the author, is imperative to keeping in mind the large-scale significance of state reorganisations and the hitherto-deferential attitude shown by the judiciary to the legislature. Continue reading Reorganisation of States: Carving a Space for Judicial Review
In the part II of the article, the author discusses the lack of any judicial precedent regarding the distribution of freebies, which has prompted the political parties to misuse the lacuna that has been created. Political parties have much before the elections start promising various freebies to lure voters into voting for their parties and thus putting a huge burden on the State exchequer. The author concludes by suggesting ways through which the issue can be resolved. Continue reading Free-Freebies or Paid-Freebies: Who Pays for it?(Part-II)
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