LAOT Monthly Newsletter - March & April 2022
We at LAOT are back with an update of all the interesting things that we have been up to over the past couple of months. Happy reading!
Introducing LAOT Podcasts!
LAOT, in an attempt to expand its reach in terms of both content and form, has launched its podcast series. Through this podcast series we intend to bring to our listeners conversations with some great people on a wide range of topics covering law, politics, sociology and many more. The podcast is available on Anchor, Spotify, Amazon Music, Stitcher and Google Podcasts, and transcripts will be uploaded on the LAOT website. All episodes of the Law and Other Things Podcast can be found on this page, so do bookmark it!
Episode 1 – Interview with Arvind Narrain – Lawyer, Author and Scholar
In the first episode, our senior analyst Shantan Reddy interviews Arvind Narrain, and they discuss Narrain’s latest book, “India’s undeclared emergency: Constitutionalism and politics of resistance”. They discuss authoritarian and totalitarian states, methods of resistance in modern India, India’s declared emergency in 1975 and other related issues.
Episode 2 – Interview with Jhuma Sen & Rachna Chaudhary on the Indian Feminist Judgments Project
In the second episode, our editor-in-chief Gayatri Gupta interviews Jhuma Sen and Rachna Chaudhary. Jhuma Sen, Rachna Chaudhary and Aparna Chandra anchor the Indian Feminist Judgments project [IFJP], a collaboration between feminist legal academics, litigators and judges, practitioners, activists from law and other disciplines, who are using a feminist lens to re-write alternative opinions to existing judgements. Indian Law Review, Volume 5 (Issue 3) presents a set of six re-written judgements and accompanying commentaries that were prepared as part of the IFJP.
In this episode, they discuss the evolution of the IFJP.
● Varun Ahuja, in “Umar Fayaz Mir v. Union Territory of J&K: Analysing J&K High Court’s Delay in Disposing Habeas Corpus Petitions”, analyses the single-bench decision of the Jammu and Kashmir High Court. Through an analysis of the daily orders of the case, he argues that the unreasonable delay caused by the High Court is because of the lackadaisical attitude of the Government, and further that such a delay is not an aberration but part of a larger trend of delay by constitutional courts in deciding habeas corpus petitions. The piece concludes with suggestions of procedures that courts could adopt in order to solve the problem.
● In “Institutional Linchpin v Individual Agency: Revisiting the marital rape debate in light of the connubial law”, Sholab Arora asks whether criminalisation of marital rape would provide effective sexual agency to a married woman. Arora discusses the normative conflict that exists between the narrative promoted by those who advocate for the criminalisation of marital rape, and the narrative that underpins our marriage and divorce laws. Through the piece, Arora aims to demonstrate that even should marital rape be criminalised, personal laws would militate against actual realisation of constitutional liberties, and to prevent that from happening there is a need for a complete overhaul of the connubial law regime.
● LAOT’s analyst Harsh Jain, in his piece “Karnataka High Court’s Hijab Order Explained”, discusses the Karnataka HC’s March 15 order in Reshma v. State of Karnataka, which upheld the February 5 Order banning the wearing of headscarves to school. The grounds of challenge had been that wearing of a hijab constituted an ‘essential religious practice’ in Islam, as a consequence of which insisting on its removal would be violative of the fundamental rights guaranteed under Article 25 of the Constitution. There were also challenges under Article 19(1)(a) contending that dressing was a form of expression, as well as under Article 21. The explainer critically analyses the decision of the court on each of the three questions of importance that it had framed.
Roundtable Book Discussion
Danish Sheikh’s “Love and Reparation: A Theatrical Response to Section 377 in India”
In the conclusion to our blog round-table book discussion, on Danish Sheikh’s “Love and Reparation: A Theatrical Response to Section 377 in India”, he writes a response to the reviews for Love and Reparation: A Theatrical Response to Section 377 in India. The piece was introduced by Douglas McDonald and reviewed by Akhil Kang, Kriti Sharma, and Surabhi Shukla. In this conclusion, he narrates his trysts with legal writing and law speak, and the limitations of law as a genre and the stylistic expectations that it places on an author. He concludes by noting, “Without disavowing my own responsibility towards queer legal storytelling, my hope is that my inchoate experiments with genre here contribute to a conversation about how we can write law differently. In the specific instance of how the law narrates queer life, I consider this a contribution to a counter-archive. If the dominant archive of law in India is one that marks queerness as despicable (if it acknowledges queerness at all, and as Kriti’s invocation of the culpable homicide case which is silent on the sexual orientation of the deceased tells us, this is a big if), I like to think of Love and Reparation as sewing a thread within the fabric of an alternate normative universe. Repair-work, we might say.”
As part of our New Scholarship section, we have been inviting discussants to respond to the public law-themed articles featured in Volume 5 the Indian Law Review. All posts in this discussion may be accessed here.
Dr Monika Polzin’ “The basic-structure doctrine and its German and French origins: a tale of migration, integration, invention and forgetting”
We continued discussion on Dr. Monika Polzin’s “The basic-structure doctrine and its German and French origins: a tale of migration, integration, invention and forgetting”. 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.
● A summary of the central arguments of the paper, written by our legal editor Mariyam Mayan, may be found here.
● Prof. Sanjay Jain’s response to the article may be found here. Prof. 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.
● Prasidh Raj Singh responds to the paper here. Singh notes that the paper plays a significant role in identifying the roots and modes of development of the basic structure doctrine across jurisdictions.
Prof. Farhana Akhter’s “The Standard of Assistance from Legal Aid Lawyers: An Indian Perspective”
We began discussion on Dr. Farhana Akhter’s paper titled “The Standard of Assistance from Legal Aid Lawyers: An Indian Perspective”.
Dr. Akhter examines the standard of assistance provided by Indian legal aid lawyers in light of the international human rights normative framework, and the practical shortcomings of the quality of service delivered. The article proceeds to recommend measures to remedy the shortcomings of the Indian legal aid system in order to bring it into conformity with international human rights standards in order to eventually guarantee effective assistance from legal aid lawyers.
● A summary of the piece, written by our analysts Mrityunjoy Roy and Saumya Khandelwal, may be found here.
● Prof. Jeet Singh Mann responds to the piece here. Prof. Mann observes that the author has rightly narrated the status of the monitoring system in the country, there are a myriad of factors contributing to the inefficiency of the legal aid system in India and that there has to be a comprehensive examination of the same.
● Gale Andrew responds to the piece here. She argues that while the article is an essential step in engaging more deeply with legal aid, certain fundamental questions remain to be answered in order to ensure a more holistic engagement with the issue of legal justice.
Vishal Rakhecha’s “Privacy, the shield that protects or the sword that strikes freedom of speech?”
Vishal Rakhecha, in “Privacy, the shield that protects or the sword that strikes freedom of speech?”, traces the histories of the right to freedom of press and the right to privacy, and proceeds to look at the question of the horizontal application of the right to privacy. He then proceeds to examine the theoretical underpinnings of the conflict between the two rights before analysing the meaning of public interest in the various contexts it has been used in, before proposing an appropriate balancing test.
● A summary of the piece by our analyst may be found here.
● Prof. (Dr.) Shruti Bedi presents a review of the paper here. Dr. Bedi notes that the author’s suggestions will assist in “shaping the course of justice”, but that the manner of application of the balancing test proposed by the author needs further clarity and flexibility in its approach.
The Courts and the Constitution
The Editorial team of LAOT, in collaboration with NALSAR University of Law and School for Policy and Governance, Azim Premji University successfully hosted the third edition of “The Courts and the Constitution”, 15th and 16th of April 2022. The conference was an attempt at examining major constitutional law developments in the past year, and saw six panels spread across two days. We will be sending out another newsletter discussing the conference shortly.
Thank you for reading this far, and we hope that you will continue to read and support us!
Senior Analyst, Law and Other Things