The Bombay High Court Dismisses the Ministry of Truth
In 2023, the Indian central government established a Fact Check Unit to monitor online content related to ‘any business of the Central Government’ and order the takedown of any information that it considered ‘fake or false or misleading.’ The FCU itself was envisaged as a public body and a part of the central government. As it seems, the Indian central government wanted to depart from existing liability rules protecting platforms in all cases of online criticism of the Indian State. As the FCU would be the last arbiter of what could be said online in India about the central government, the amendment instituted what could be called a ‘Ministry of Truth’. This was struck down by the Bombay High Court.
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Jurisprudence of Convenience
Last month, in Nipun Malhotra v. Sony Pictures Film India Private Ltd, the Indian Supreme Court delivered an opinion on the limits of protected speech under Article 19(1) of the Indian Constitution. While the opinion touched upon several important aspects of the free speech right, it is replete with behavioral guidance, and its language makes it hard to discern the binding legal principles. I argue that courts should approach cases involving hard questions of constitutional law with extreme caution in terms of their potential implication on the growth (or absence) of a consistent doctrine.
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Kashmir’s Legal Exceptionalism Reinforced
A single judge bench of the Delhi High Court recently passed an order, rejecting a plea by the petitioner, Sublime Software, challenging a blocking decision by the Union Government under Section 69A of the Information Technology Act, 2000. n this blogpost, we critically analyze the Delhi High Court's ruling, arguing that it exemplifies a troubling trend of legal exceptionalism in Kashmir. We critique the order for its unqualified deference to the states’ national security claims, failing to examine the merits of those claims at all.
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Secret Campaigns and Masked Messages
Every election season in India reignites a familiar concern: the pervasive influence of financial resources on the democratic process. While the Election Commission of India, in conjunction with the judiciary and various state apparatuses, consistently underscores the link between monetary power and electoral outcomes, a significant loophole persists. This blogpost examines that loophole: the unchecked power of surrogate advertising on social media platforms and uncovers the systemic failures that enable political parties to exploit these gaps, perpetuating financial inequalities in the democratic process.
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The Genre-Bending of Climate Litigation in India
In a widely acclaimed judgment, India recently saw its first climate ruling issued by the Supreme Court. The Court derived the right to be free from the adverse effects of climate change from Article 21 and Article 14 of the Constitution. The ruling of the Supreme Court has been classified in this blog as an important step in connecting human rights and climate change. In this blog post, I offer another overarching route that cases connected to climate change in India have taken, which is genre-bending in that they use environmental litigation as the pathway to also address climate change.
Continue reading >>Uniting the Indian Opposition
More than 35 parties have come together to form a big-tent united opposition bloc called the ‘Indian National Developmental Inclusive Alliance’ (“INDIA”) to jointly fight the BJP in the 2024 General Elections. They believe that if the opposition could field a single common candidate against every BJP candidate, they could potentially defeat the BJP or at least challenge its ambitious goal of winning a supermajority. The strategy of uniting the opposition against an electorally strong and populist leader is not uncommon, both for India and globally. In the following paragraphs, I’ll discuss how this strategy has played out in the recent past and what lessons INDIA could learn from such a global experience.
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India’s New Constitutional Climate Right
The Supreme Court of India delivered a historic judgement on climate change and human rights in M.K. Ranjitsinh and Others v. Union of India and Others (hereinafter “M.K. Ranjitsinh”) on March 21, 2024. A three-judge bench of the Supreme Court, led by Chief Justice, D.Y. Chandrachud, formulated a new constitutional right to be free from the adverse effects of climate change by drawing upon Article 21 (the fundamental right to life and personal liberty) and Article 14 (the fundamental right to equality) of the Indian Constitution. The final judgement is a remarkable development for the evolution of constitutional climate litigation in India
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The End of a Dream?
The Bharatiya Janata Party (BJP) may have officially declared war on the hijab in 2022, but the Hindu right’s battle strategy has been set in place since at least 2014 when the BJP rose to power under the leadership of Narendra Modi. A tenacious master of populism, the BJP has successfully altered the mainstream Hindu perception of the Muslim as a threat to secularism. Within this imaginary, Muslims are believed to constantly seek exemptions from the secular regulations constraining the Hindu community.
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Selective, Reactive and Liminal
With a staggering 450 million internal migrants (as of the 2011 census), migration has become integral to the political economy of India. India also has the largest diaspora in the world, numbering 18 million people. The modes, institutions, and ideological underpinnings of migration governance vis-à-vis both internal and international migration have witnessed substantial shifts and continuities ever since the ascendance of the NDA (National Democratic Alliance) led Modi government in 2014.
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The Right to Education and Democratic Backsliding in India
Since the election of the Bharatiya Janata Party (BJP) to power in the federal elections in India in 2014, the country’s performance in key indicators of democratic quality has suffered. Over the course of its two terms in power, the party has sought to subvert key institutions for accountability, enact an ethno-cultural majoritarian electoral agenda, and use federal law enforcement agencies against their political opponents. While there is extensive literature on the erosion of civil-political rights in the past ten years, the effects of the BJP government on social rights like education and healthcare remain under-explored. Therefore, in this post, I explore three striking dimensions of primary educational policy under the BJP government.
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India’s Push-and-Pull on Reproductive Rights
For a piece mapping India’s push-and-pull on reproductive rights – the expanse of its protection and the edges it comes up against – history is a good place to start. Rights in the reproductive sphere are relatively new to India. While India enacted a seemingly liberal abortion legislation as early as 1971, concerns about women’s rights were hardly the drivers behind it. Women’s bodies were a means to achieve the State’s end of population control. It is difficult to justify if women were truly seen as rights-holders. Did this change in recent years?
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Subordination and Arbitrariness in Citizenship Law
In 2019, the Hindu nationalist Bharatiya Janata Party returned to power in India. The Bharatiya Janata Party oversaw the enactment of the Citizenship (Amendment) Act 2019 (‘CAA’) which gave Hindu, Sikh, Buddhist, Jain, Parsi and Christian (but not Muslim) migrants from Afghanistan, Bangladesh and Pakistan a fast-tracked pathway to Indian citizenship. This post argues that the CAA is unconstitutional, and uses it as an example to clarify two important under-theorised Indian constitutional principles: anti-subordination and arbitrariness.
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Reimagining Indian Federalism
As India’s new dominant party system coalesced after 2014, the country entered a phase of centralisation. India has always had federalism with a strong centre, but from the late 1980s to the mid-2010s, political and economic regionalism and national coalition governments encompassing national and regional parties produced an appearance of deepening federalisation. Since 2014, when the Bharatiya Janata Party (BJP) became the first party in over 25 years to win an outright parliamentary majority, the twin pillars of political centralisation under a dominant party system and economic concentration, have once again drawn attention to the contested nature of India’s federal contract.
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Civil Society and its Engagement with the Constitution
The Indian Constitution is as much a culmination of the ideas of the freedom movement against colonial powers as it is of the achievement of a social revolution through law. Our Constitution, which was inspired by the Universal Declaration of Human Rights, thus, not only provided for political freedom from foreign rule and established a democratic republic, but it also provided a road map to undo the deeply entrenched hierarchies, inequalities, and social exclusions in our society and therefore for a social transformation. Much of the civil society interventions of the last seven decades have been to work for redeeming the promise of the constitution inside and outside courts.
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Reconceptualizing Legislative Privileges
Earlier this month, the Indian Supreme Court delivered a judgment in a reference pertaining to the law and scope of legislative privileges under the Indian Constitution. The primary question before the court was whether legislative privileges extend to the protection from prosecution of a legislator who receives a bribe to speak or vote in a certain manner in the legislature. In the following sections of this post, I’ll first discuss the existing law on legislative privileges in India, which is unique in its origination and formulation. I’ll then argue that there is a need to reconceptualize the understanding of legislative privileges in order to support the legislative systems in performing their roles and functions in their true essence.
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Privileges Constrained
Last week, the Indian Supreme Court delivered its judgment in Sita Soren v. Union of India, holding that parliamentary privilege – the constitutionally recognized legal immunity of legislators – does not extend to bribe-taking for exercising their legislative vote or speech a certain way. In this blog post, I discuss the Court’s formulation of the essentiality test, as well as its conclusions on the availability of privilege for bribe-taking. I argue that while the ruling can strengthen democratic institutions since it protects the integrity of legislative processes, certain risks in the essentiality test’s composition – which risk depriving important legislative functions of privilege – must be addressed.
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On the Politics of Non-Transparent Electoral Funding in India
Last week, a five-judge bench of the Indian Supreme Court delivered a significant verdict adjudicating the constitutionality of the Electoral Bond Scheme (“EBS”). The EBS introduced a novel method of making ‘anonymous’ donations to Indian political parties, both by individuals and a body of individuals. The judgment makes a democracy-enabling jurisprudential step in extending the right to information of voters to the details of political funding received by political parties in an effort to cement transparency and accountability as the central values of the electoral exercise.
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Absolute Truths and Absolutist Control
Last week, the Bombay High Court delivered its judgment in Kunal Kamra v. Union of India, comprising a split verdict on the constitutional validity of the Information Technology Rules, 2023. The rules install an institutional regime for determining – and warranting takedown by social media intermediaries – of content relating to the Central Government deemed “fake, false or misleading”. This regime was challenged on three main grounds – first, its violation of citizens’ free expression due to “fake, false, or misleading” speech being constitutionally protected; second, the pedestalization of state-related information, such that it enters public discourse with a single, truthful formulation, as being an illegitimate and disproportionate measure; and third, the violation of natural justice in enabling the state to determine truth and falsity concerning itself.
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