Constitutional Exceptionalism in Kashmir

The move of India’s President to abrogate Article 370 has been subject to much academic debate and discourse along the doctrinaire lines and limits of traditional constitutional law. Since the Declaration was passed, however, in a state of exception, the consequent legal vacuum necessitates an analysis in light of both political facts and public law.

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Miller/Cherry 2 Goes to Kashmir

There are certain principles which emerge from Miller/Cherry 2 which are meaningful for cases involving judicial review of executive powers. The application of these principles, especially in cases where the line between the executive and legislature is thin (resulting in what Bagehot described as the ‘fusion of powers’), can guide comparative lawyers to hitherto underexplored areas of administrative law accountability of the executive to legislative bodies.

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When the Judiciary Undermines Judicial Independence

India’s Supreme Court has long sought to protect itself, mostly through an insulated appointment system, from political pressures. Judicial independence seems to be the catchphrase for the Indian Judiciary when it is under pressure or attack. But how far has the Court been successful in navigating and managing the problems caused by judicial hierarchies and politics within its very own walls?

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Staatenlos in Assam

In ihrer Heimat gelten sie ab sofort als illegale Einwanderer. Das Land, in das sie ausgewiesen werden sollen, versinkt langsam unter dem steigenden Meeresspiegel. Fast zwei Millionen Menschen, die im indischen Bundesstaat Assam leben, gelten aufgrund der Veröffentlichung eines Nationalen Bürgerregisters durch die indische Zentralregierung seit dem 31. August 2019 als illegale Einwanderer aus Bangladesch. Tatsächlich gelten die Betroffenen bereits jetzt als Staatenlose. Den Menschen droht eine Situation rechtlicher und territorialer Bodenlosigkeit – verloren zwischen nationalem Staatsangehörigkeitsrecht und internationaler Verantwortungslosigkeit.

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Article 370: Is it a Basic Feature of the Indian Constitution?

The move of India’s Government to nullify Article 370 of the Constitution not only broadened the legislative powers of the Union Parliament over the Jammu & Kashmir but also demoted J&K to the position of a Union Territory. Apart from doubts about the Government’s power to bring about these changes and their legitimacy, it is an open question whether Article 370 is a basic feature of the Constitution of India. Given the sacrosanct political arrangement it encapsulates as well as its role as an exemplar of Indian federal asymmetry, it is now upon the Supreme Court to formally acknowledge the constitutional basis of India’s delicate distribution of powers.

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The Constitutional Siege on Article 370

On August 5, India revoked Article 370, a controversial provision in the Indian Constitution, which happened to be the only link between the State of Jammu & Kashmir and the Indian Union. After its revocation, the Union parliament passed a bill to reorganise the State into two federally administered Union Territories, a move which some have labelled as “illegal occupation” of the State.

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“Twenty Years of Selfless Service”: The Unmaking of India’s Chief Justice

India’s Chief Justice Ranjan Gogoi has been accused by a former staffer of sexual harassment. In a glaring transgression of judicial procedure, Gogoi staged a 23-minute suo motu hearing, in which he presided over a bench made up of Justices Arun Mishra and Sanjiv Khanna. Gogoi feels justified to adjudicate his own case because of extraordinary circumstances.

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Indian Democracy at a Crossroads

The Indian Supreme Court’s ruling on LGBTQ rights signals a court willing to play an unabashedly partisan role in the ongoing battle over the idea of India. The Indian Supreme Court, however, remains a complicated, polyvocal, court, and cannot be attributed any coherent ideological or jurisprudential worldview. This, at a time when the defining role of inclusive pluralism to India’s constitutional identity is at stake and majoritarian nationalism is waging a spirited battle, not just for continued political relevance but for reshaping the very idea of India.

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