LAOT Monthly Newsletter - January 2022
Here’s hoping that January has treated you well. We are back with Law and ‘Other Things’ monthly newsletter, with updates on the Blog’s attempts to further scholarship in Public Law in January 2022.
Here is what we published in January. These are succinct and interesting reads, do check them out.
Aaya Ram Gaya Ram is a phrase in Indian politics that emerged in 1967 when Haryana MLA Gaya Lal changed his party thrice within the same day. The anti-defection law that then emerged sought to prevent such situations in the future, where one might defect due to the lure of an office or similar incentives. There are, however, circumstances where legislators may shift to a different party without risking disqualification, and that is the Merger Exemption. A party is allowed to merge with another party if at least two-thirds of its legislators are in support of the merger. If this happens, neither the members who decide to merge nor those who stay with the original party would face disqualification. LAOT’s Senior Analyst Shanthan has authored a two-part post on “Merger Exception to Defection”. Part I introduces defection law to the readers and explains how the merger exception has been and has the potential to be misused to facilitate illegal defections. Part II specifically looks into the examples of Telangana and Goa to show how the merger exception is being misused in state-level politics.
Chief Justice N.V. Ramana recognised the hindrances that inadequate and inaccessible court infrastructure has posed towards access to justice in the country. This led to the CJI conceptualising the National Judicial Infrastructure Corporation (NJIC) with the aim of constructing modern and self-sufficient courts in India. A 2019 study that surveyed 665 district courts had found that only 27% of these had ramps, 2% had visual aid tools, and only 11% had washrooms for persons with disabilities. Only 20% of the courts had guide maps while 45% of the courts had helpdesks. Such shortcomings have been discussed by Ishika Garg and Yash Dodani, who have written a piece titled “A Substantive Equality Guide to Making Judicial Spaces Accessible to Persons with Disabilities”. They argue that there is a constitutional duty on the judiciary to ensure that judicial spaces are accessible to those with disabilities, furthering the spirit of substantive equality, and suggest steps in this direction.
House arrest in India has long been understood and recognised in the context of preventive detention laws. Section 5 of the National Security Act contemplates the detention of a person “in such place as the government deems fit”. Article 22 of the Constitution, which addresses arrest and remand, is not applicable to preventive detention, and as such, ‘house arrest’ as a concept has not been identified by Indian courts in criminal cases for a long time. Analyst Mrityunjoy Roy has written about the Gautam Navlakha case and Sudha Bharadwaj case in the context of including house arrest under the meaning of judicial custody under section 167 of the Criminal Procedure Code, and its implications. He concludes that though it was a landmark move that expands the conception of “custody” under Indian law, the idea is still too abstract and leaves a lot of questions and practicalities around the issue unanswered, and cautions that house arrest risks becoming a development only on paper reserved for the privileged few, instead of genuine progress for criminal law. Further readings on this subject can be found on this thread.
The Oxford South Asian Alternative Forum is organising a conference “Counting Caste: Breaking the Caste Census Deadlock" on 5-6 February, 2022 (register here). The conference will bring together 30 notable names in academia, politics, activism & art to rethink how 'majority' and 'minority' have been framed in India. Kartik Shrivastava writes about the government’s reluctance to conduct a caste census and argues that there is a pressing need to conduct the same. [Increasing Diversity by Increasing Access to Legal Education (IDIA), Hyderabad Chapter, had partnered with Law and Other Things to organise an Essay Writing Competition. This piece, titled “Caste of Votes: Need for a Caste Census?”, was the winning entry selected by IDIA].
The Courts and the Constitution – 2020 & 2021 in Review: Call for Proposals
Law and Other Things, in association with NALSAR University of Law and Azim Premji University, is organising ‘The Courts and the Constitution – 2020 & 2021 in Review’ conference in March 2022. In addition to the invited speakers, proposals for presentations by students, researchers and professionals who are below 30 years of age are invited.
This year, LAOT is inviting submissions from authors on the themes of each panel. They are:
The State of the Judiciary
Public Health Crisis and the Constitution
Emerging Voices – The Shamnad Basheer Memorial Roundtable
Contemporary Issues in Indian Federalism
Environmentalism and Governance in South Asia
Civil Liberties and Criminal Justice
More details about each panel can be found in the attached concept note here. Please fill this google form to apply and submit manuscripts by 25 February 2022. The detailed Call for Proposals can be found here.
Discussion on Divine labours, devalued work: the continuing saga of India’s surrogacy regulation
As part of our New Scholarship Section on our Blog, we have been inviting discussants to respond to specific articles from the volumes of the India Law Review. Our fourth part of discussions under the New Scholarship series includes pieces featured in Volume 5 (Issue 1 & 2) of the Indian Law Review.
We have concluded our discussion on Sneha Banerjee and Prabha Kotiswaran’s Divine labours, devalued work: the continuing saga of India’s surrogacy regulation which was published in Volume 5 of the Indian Law Review. They offer a feminist critique of the Surrogacy (Regulation) Bill, 2019, arguing that it reflects a limited understanding of the complexities of surrogacy, is discriminatory in its approach, is plagued by lack of clarity, is unrealistic and does not include adequate safeguards for the surrogate. The summary of the article, written by our Legal Editor Eeshan Sonak, was published here.
Dr Chayanika Shah emphasizes the need to look at the ART Bill and the Surrogacy Bill together and argues that both these bills need to be redrafted in light of their discriminatory approach and reassertion of heteronormative patriarchies through the text and legal provisions.
Anindita Majumdar writes that many provisions of the surrogacy bill exhibit elements of manifest arbitrariness, whether it is the absence of assisted reproductive technologies from identification of gestational surrogacy, or the choice of a ‘close relative’ as a surrogate.
Sharmila Rudrappa argues that the authors could have “deepened their feminist critiques” and that the bill should consider the legal and social milieu within India, more so than drawing on comparative experiences, since “there is only so much that can be learned through a thorough examination of other nation-states’ surrogacy laws”.
The authors, Sneha Banerjee and Prabha Kotiswaran, in their response to the discussants agree that it is imperative that the dissonances between the Assisted Reproduction Bill and Surrogacy (Regulation) Bill be addressed, but note that such harmonisation has not been undertaken before the Surrogacy Regulation Act has entered into force. Responding to the question of whether non-regulation of surrogacy may be a net positive, the authors note that all social realities are regulated by law, and existing laws already determine bargaining powers between contracting parties in ways that disempower surrogates undertaking pregnancies for domestic commissioning parties.
Reading Lists You Don't Want to Miss!
Here is this month’s collection of LAOT's curated reading lists!
The Representation of Peoples Act, 1951, was recently amended to require a linkage between Voter IDs and Aadhaar. This amendment was criticised for going against the Aadhaar judgement, which had held that Aadhaar was not mandatory. Further, though the amendment has said that Aadhaar linkage was voluntary, the meaning of this is ambiguous. LAOT’s Analyst Saumya has compiled a reading list on this topic.
[TW: SA, r*pe] The Delhi High Court on Friday continued hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his wife from the offence of rape, provided the wife is above 15 years of age. This case has gained a lot of traction in the country, has given rise to several debates. This reading list traces the background and progression of the case and marital rape exemption in India.
Novak Djokovic, ranked World No. 1 on the men’s tennis tour by the Association of Tennis Professionals, was a notable absentee in the recently concluded Australian Open, after he was deported for being unvaccinated. In this context, this thread, discussing the validity of compulsory vaccination and the need to balance individual rights vis-a-vis public health will prove an interesting read.
We are happy to announce that we had four new members join our Board of Editors this month [Anurag Bhaskar, Dayaar Singla, Disha Wadekar, Nikita Sonavane]. Details about the rest of the Board of Editors can be found here.
Senior Analyst, Law and Other Things