The Supreme Court’s two-paragraph order refusing to direct the Election Commission to make publicly available the Form 17C data regarding the total number of voters, within 48 hours of polling, sets out a single reason: that similar relief has been prayed for in an already pending petition (filed in 2019), and to pass the order at this stage would amount to “granting the final relief” prayed for in that petition. This, however, is flawed for two reasons. First – and not for the first time this election season – the Court is using its own failure to hear constitutional cases in good time as a j ..read more

[This is a guest post by Hardik Choubey.] Introduction In my previous post, I discussed the Supreme Court’s (SC or ‘the Court’) order which refused to stay the executive-dominant appointment process of members to the Election Commission (‘the ECI’). In this post, I will be discussing the phenomenon of ‘suspect enforcement’ by union executive agencies, which has been alleged to contribute to reducing the fairness surrounding the 18th Lok Sabha Elections. Throughout this post, I would point to indicators of ‘suspect’ enforcement by executive agencies. The thesis of this essay would be to explore ..read more

With India’s national elections underway, there has been increased scrutiny of online election-related content, in particular, online political advertising. Even a month before the elections began, it was reported that 7 out of the top 20 advertisers on Facebook and Instagram were running ads favouring India’s ruling party (the Bhartiya Janta Party or ‘BJP’). The BJP’s own ad-spend on these platforms was a fraction of what these third-party advertisers spent. These are not new issues. Reporting over the last two years has demonstrated how both Google and Meta allow third parties working in tan ..read more

[This is a guest post by Hardik Choubey.] Introduction The elections to the 18th Lok Sabha (which are to be conducted across seven phases) commenced on 19 April, with the final round of polling to be conducted on the 1st of June. Several high-profile events right before (and during) the elections have raised concerns regarding the conduct of the Supreme Court (SC or ‘the Court’) and the Election Commission (ECI), during this political cycle. In March 2023, a constitution bench of the SC had modified the process for the appointment of members of the ECI (in Anoop Baranwal v Union of India ), wh ..read more

Introduction In a brief order passed yesterday, a two-judge bench of the Supreme Court granted “interim bail” to the Chief Minister of Delhi, Arvind Kejriwal, for the purposes of campaigning for the ongoing general elections. According to the terms of the “interim bail” order, Kejriwal – who was in custody (as an under-trial) in a money-laundering case, is required to surrender and return to custody on June 2, the day after the elections conclude. The eight-page order is shorn of any detailed reasoning, and – as I shall argue – both reflects certain serious problems with our criminal justice s ..read more

In a constitutional democracy, there is a certain baseline expectation that citizens have from their courts. This expectation is that a judge hearing a challenge to the actions of a State organ shall confine themselves to analysing the substance of the claim, and provide transparent and public reasoning to back up their decision, or any other observations that they have to make about the case. Paragraph 5 of Justice Dipankar Datta’s concurring opinion in the Supreme Court’s 26th April judgment on the question of electronic voting machines [EVMs] and VVPAT verification (Association for Democrat ..read more

[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

[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

[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

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