The Daily Guardian
And so without any reference to any text or calling for any evidence, in just a handful of lines, a Bench of the Supreme Court comprising the then Chief Justice of India R.C. Lahoti and Justice Ashok Bhan concluded in 2005 in the landmark judgement of In Re Noise Pollution that there was no nexus between the bursting of firecrackers and Diwali/Deepawali…
Continue reading In Re Noise Pollution and Judicial Restraint
The Daily Guardian
Over the past few days, a well-known and fairly accomplished Senior IPS Officer, who is currently the Home Secretary to the State Government of Karnataka, has been in the news for her public spat on Twitter with a widely followed and encyclopaedic anonymous commentator on history who prefers to go by the Twitter pseudonym, “True Indology” which is perhaps a nom de guerre…
The Daily Guardian
In a democracy where referendum is the exception, and periodic elections are the norm, how are elected representatives expected to gather public opinion on matters of policy, including morality, before passing legislations which are ostensibly based on “public morality”?…
Continue reading Public morality, public opinion and policymaking
The Daily Guardian
A democracy too places a premium on maximising good for the maximum number of people, but what makes it different is the premise that there is a lot more room for accommodation of diverse voices with every voice, in theory, being equal in the eyes of law notwithstanding its station in the society’s unwritten pecking order. The inherent participatory premise of democracy and the promise of egalitarianism, howsoever illusory, ephemeral and superficial, is what makes it seem so attractive…
The Daily Guardian
Over the last few days, “hate speech” has become the talk of the town because some have taken offense to the contents of a certain programme which, they believe, target a particular community. While the Ministry of Information and Broadcasting, and the Hon’ble Supreme Court, are simultaneously, and perhaps incongruously, seized of the case, it may be worthwhile to understand the relationship between speech, culture and public morality. In the interest of fair disclosure, this author is appearing on behalf of a few Intervenors in the proceedings before the Supreme Court.…
The Daily Guardian
In the previous piece, this author had demonstrated through application of principles of interpretation and with the aid of Constituent Assembly Debates (CAD) that the Judiciary does not fall within the meaning of “the State” for the purposes of Article 12. This effectively leads to the conclusion that the Judiciary does not have the Constitutional mandate to interfere with fundamental rights…
Continue reading Is Article 32 available against the judiciary?
The Daily Guardian
On the basis of this history, it can be reasonably stated that Part III of the Constitution, which deals with fundamental rights and the remedies to enforce them, has been crafted with a view to protect fundamental rights from unreasonable and summary abridgement by legislative and executive bodies of all grades who form the “State”. The role of the judiciary is limited to exercising its power of judicial review under Articles 32 and 226 to assess the constitutional validity of such State action. …
Continue reading Is judiciary part of the ‘State’ under Article 12?
The Daily Guardian
The pith and marrow of this discussion is that constitutional morality may be invoked on the basis of the provisions of the Constitution to question the conduct of the State and to identify the metes and bounds within which the State must operate.…
Continue reading Constitutional morality, public morality and moral diversity
The Daily Guardian
In the last piece, this author had highlighted the views of Dr. Ambedkar on “Constitutional Morality” as expressed in the debates of the Constituent Assembly on November 4, 1948. While his views on the subject cannot be interpreted as being representative of the entire Assembly, at the very least what can certainly be inferred is that one school of thought represented by Dr. Ambedkar interpreted constitutional morality as translating to respect for the values as embodied in and by the Constitution, both by the State as well as the people.…
Continue reading Constitutional morality versus public morality
The Daily Guardian
There are quite a few myths that abound in relation to the Indian Constitution, in particular in relation to its preparation and its nexus with the Government of India Act, 1935. Contrary to popular perception which gives the impression that the Constitution is the product of a solo act, the history of the framing of the document tells us that the first draft of the Constitution was prepared by the Constitutional Advisor to the Constituent Assembly, Shri Benegal Narsing Rau.…
Yukti 