LAOT Monthly Newsletter - February 2022

Dear Readers,

I hope you had a healthy and happy February! In February, Law and Other Things published a range of interesting articles and new scholarship discussions to further scholarship in public law. Below, we will update you on the Blog’s activities during February 2022.

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Blog Posts

• The Delhi High Court is hearing a batch of pleas challenging the exception to Section 375, which exempts forced sexual intercourse by a man with his wife from the criminal offence of rape. In Dismantling The Marital Rape Exception: Constitutionality And Consent, Unnati Ashish Ghia argues that the strongest argument against Exception 2 is under Article 15 (gender-stereotyping and discrimination). She states that “Exception 2 endorses the gender roles within a marriage, particularly the woman’s duty to provide sex, the husband’s right to demand it, and the irrelevance of her consent and desires. From this perspective, Exception 2 constitutes invidious gender discrimination with significant social harm” It attempts to answer a persistent question in the marital rape debate – what comes next after striking down Exception 2?

• In “Whether The Master’s Tools Can Be Used To Dismantle The Master’s House?”: Engaging With Two Films- ‘The Advocate’ And ‘Democracy Dialogues- A Tribute To Balagopal’, Saranga Ugalmugle explores the constraining and expanding power of legal rights discourse in movements of social transformation through an analysis of Deepa Dhanraj’s two documentaries. The author traces the fearless and inspiring journeys of K.G. Kannabiran and K Balagopal as members of the Andhra Pradesh civil liberties movement and as human rights lawyers.

• Our senior analyst Nitya Ravichandra writes about how the requirement of Aadhaar to access social welfare schemes can have the opposite effect of large-scale exclusion of the target population in a two-part series. The article discusses the impact of Section 142 of the Social Security Code, which requires employers and unorganized workers to establish their identity through their Aadhaar numbers. Part 1, discussing the impact of linking Aadhaar with public distribution in India, can be found here.

• Sanskruti Yagnik examines a recent Madras HC order in Karthick Theodre v. Registrar General and recommends a seven-part test for the right to be forgotten, which aims to balance freedom of expression with privacy. This article comes in light of an important question raised by the Madras High Court on whether an accused person who on being charged for committing an “offence and having undergone trial and ultimately been acquitted of all charges by a Court of competent jurisdiction, has the right to seek for destruction or erasure or redaction of their personal information from the public domain”.

•   Mrityunjoy Roy, Legal Analyst LAOT, writes on the July 2021 Delhi High Court judgement, which held that the Delhi CM was responsible for an oral promise he made in a press conference but never acted on. The explainer, in the realm of promissory estoppel, delves into the implications of this judgement and what it means for political promises. 

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New Scholarship

• In February, we began the discussion of three new Indian Law Review articles. We started the discussion with Dr. Sujith Koonan’s article “Manual Scavenging In India: State Apathy, Non-Implementation Of Laws And Resistance By The Community”. In the summary of the paper, he discusses the historical and legal discourse surrounding the perception of Manual Scavenging and notes that a potential cause for the non-implementation of law and state apathy is the domination of the upper class and upper caste consciousness in public administration. Responding to Dr. Sujith’s paper, Arkaja Singh traces developments in policymaking and law surrounding sanitation; and argues that the problem of manual scavenging is a consequence of incomplete municipalization of actual sanitation work.

• The next article taken up for discussion is Eesha Shrotriya and Shantanu Pachauri’s article titled “Simultaneous elections and flexible legislative terms: a constitutionally preferable approach”. The summary of the article can be found here. Professor V. Krishna Ananth responding to the paper, mentions the importance of the costs associated with frequent elections in the cause of democracy and the constitutional scheme premised on accountability. He writes about the neo-classical economic perspective of the authors with reference to the costs associated with elections.

• The next piece in this series is from Dr. Monika Polzin who writes on “The basic-structure doctrine and its German and French origins: a tale of migration, integration, invention and forgetting”. The summary of the central arguments of the article written by our Legal Editor, Mariyam Mayan, can be found here. The paper focuses on how Dietrich Conrad’s work has influenced the development of the basic structure doctrine in India. It tries to discern which parts of past theories were lost in time and space and which have survived to be developed further. Prof. Sanjay Jain, commenting on the article, notes that Polzin provides rich documentation of the different conceptions of constituent power and constitutional identity. He further argues that Polzin’s claim that India adopted the German conception of the basic structure was very broad given the peculiarities of the Indian scenario.

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Reading List’s You Don’t Want to Miss!

• A 3-judge bench of the Karnataka HC is hearing petitions filed by Muslim women students challenging the school uniform policy prescribed by certain colleges and schools in Udupi, Karnataka, which prohibits students wearing a hijab/headscarves to attend classes. Read the listicle by our analyst Mrityunjoy to better under the dispute and its context.

• The Supreme Court stayed the Punjab and Haryana High Court’s interim order that set aside the Haryana Act providing 75% domicile reservations in the private sector. Read this listicle by our analyst Harsh Jain to understand this issue in the context of domicile reservations.

That is it from our end for this month!

Happy Reading!

Dyuti Anand

Law and Other Things