Guest Post: Seeking Proportionality in the FCRA – International and Comparative Perspectives
Indian Constitutional Law and Philosophy
by Gautam Bhatia
6d ago
[This is a guest post by Viraj Thakur.] Introduction NGOs are often funded by foreign sources. However, the ease with which they can acquire such foreign funding differs based on the object and jurisdiction of the NGO. For instance, the United States has specifically exempted NGOs from the purview of the Foreign Agents Registration Act (“FARA”), which involves the receipt of foreign funding by entities undertaking political activities. The Declaration on Human Rights Defenders, adopted by the United Nations (“UN”) General Assembly in 1998, highlights the role of NGOs (among others) in protecti ..read more
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Judicial Review of Administrative Action: A Critique of the Judgment of the High Court of Kenya [Guest Post]
Indian Constitutional Law and Philosophy
by Gautam Bhatia
1w ago
[This is a guest post by Joshua Malidzo Nyawa.] Introduction Under traditional common law, judicial review of administrative decisions is a highly constrained enterprise. It is limited to testing only the process through which a decision has been arrived at, and not its substance. Limited judicial review is a part of the broader, deferential tradition of the common law, in the context of parliamentary supremacy. The promulgation of the Constitution of Kenya on  27 August 2010  was a legal watershed, and was – in the opinion of this writer – delivered a coup de grace to the common law ..read more
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Guest Post: The Constitutionality of a State-Enacted Water Cess
Indian Constitutional Law and Philosophy
by Gautam Bhatia
1w ago
[This is a guest post by Rahul Pandey.] Introduction In the first unequivocal decision of its kind, the Himachal Pradesh High Court (“Himachal HC”) has struck down the The Himachal Pradesh Water Cess on Hydropower Generation Act, 2023, in NHPC Ltd v. State of HP (“NHPC”). While disputes pertaining to imposition of cess on usage of water for electricity generation are not unprecedented, this is the first instance that such a cess has been struck down in its entirety. A similar legislation was upheld by the Uttarakhand High court (“Uttarakhand HC”) in Alaknanda Hydro Power v. State of Uttarakhan ..read more
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Sanjay Singh’s Bail: Judicial Evasion by Non-Order?
Indian Constitutional Law and Philosophy
by Gautam Bhatia
2w ago
On 2nd April, the Supreme Court granted bail to Aam Aadmi Party [“AAP”] MP Sanjay Singh, in what has come to be known as the “liquor scam” case. At the time of writing, Singh had spent around six months in jail. While the order is undoubtedly significant in that this is the first time that one of the accused in the “liquor scam” case has received bail, the manner in which it has been passed raises a number of crucial issues pertaining to the role and function of the Supreme Court as a court of law. Let us set out the order: Mr. S.V. Raju, learned Additional Solicitor General appearing for th ..read more
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The High Court of Kenya Strikes Down Life Imprisonment
Indian Constitutional Law and Philosophy
by Gautam Bhatia
3w ago
In July of last year, the Kenyan Court of Appeal had struck down mandatory life imprisonment as unconstitutional. As the analysis on this blog noted, the judgment was delivered in a context in which the death penalty in Kenya has not definitively been held unconstitutional (just last week, in fact, a Kenyan Court controversially handed down a death sentence). However, even as the debate around the death penalty continues, the High Court – in a judgment delivered on 19th March 2024 – held life imprisonment itself to be unconstitutional. The judgment – Justus Ndung’u Ndung’u vs Republic, authore ..read more
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The Supreme Court’s Electoral Bonds Judgment – III: A Critique of Double Proportionality [Guest Post]
Indian Constitutional Law and Philosophy
by Gautam Bhatia
3w ago
[This is a guest post by Chiranth Mukunda.] This essay considers the doctrine of “double proportionality” in the Electoral Bonds Case. In brief: the majority opinion, written by Chandrachud CJI, holds the various amendments brought through the Finance Act 2017 unconstitutional for being in contravention of right to information protected under article 19. Once it is established that the foundational design of the scheme was to make political donations through electoral bonds confidential, the enquiry proceeds to analyse whether the right to information is engaged (i), and whether the restrictio ..read more
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The Unexamined Law: On the Supreme Court’s Stay Order in the Election Commissioners Case
Indian Constitutional Law and Philosophy
by Gautam Bhatia
1M ago
In a previous post (“The Mysterious Disappearance of the Stay Hearing“), I had pointed to the Supreme Court’s refusal to hold stay hearings in cases involving time-sensitive constitutional challenges. Perhaps the only thing worse than a refusal to substantively decide a stay application is a judicial order that purports to decide it, but on scrutiny, turns out to be a caricature, or a parody, of legal reasoning. This is the Supreme Court’s order of 22nd March, that dismisses the applications for staying the Election Commissioners Act (that we have discussed extensively on this blog). The strik ..read more
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Guest Post: The Independence of the Election Commission – a Middle Path
Indian Constitutional Law and Philosophy
by Gautam Bhatia
1M ago
[This is a guest post by Utkarsh Rai.] With the recent controversies over the process for the appointment of the Election Commissioner, it might be time to consider various models for independence of 4th branch, or guarantor institutions. In this regard, a possible model emerges from the arguments in the PJ Thomas case, that concerned the validity of appointments to the CVC, another 4th branch institution. In the history of the Court’s engagement with guarantor institutions (which the EC undoubtedly is), this judgement is unique because it saw the Court quashing the appointment of PJ Thomas, r ..read more
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Making the Right to Reproductive Health Meaningful: The Judgment of the Kenyan Court of Appeal [Guest Post]
Indian Constitutional Law and Philosophy
by Gautam Bhatia
1M ago
[This is a guest post by Josua Malidzo Nyawa.]  Introduction The artificial cleavage separating civil and political rights and socio-economic rights was brought to an end in 2010, when Kenyans promulgated the Constitution, which expressly makes socio-economic rights justiciable. By doing so, Kenyans ensured that the most vulnerable, marginalised and disadvantaged people were protected, and that the state occupied the tiller to ensure the continual improvement of their conditions. However, despite the progressive measure of entrenching these rights in the Constitution, their enforcement an ..read more
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The Supreme Court’s Electoral Bonds Judgment – II: The Arbitrariness of Manifest Arbitrariness [Guest Post]
Indian Constitutional Law and Philosophy
by Gautam Bhatia
1M ago
[This is a guest post by Kieran Correia.] In an earlier post, I discussed the majority opinion’s analysis of the first issue in the Electoral Bonds Case – whether the non-disclosure provisions which the Finance Act 2017 introduced in various legislation, and included in the Electoral Bond Scheme (EBS), were unconstitutional. Apart from this, Chandrachud CJI also briefly looks at another central feature of the new electoral financing régime – the elimination of the cap on corporate financing – which this post will take up. As discussed in the previous blog, corporate donations to political part ..read more
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