26 Februar 2021

COVID-19 and the Crisis in Indian Democracy

In the recent global history of constitutional democracies, it is difficult to name a single crisis that has plagued them simultaneously, until the COVID-19 pandemic. The calamity brought in by the virus was universal. For governments, it presented an opportunity for crisis management without compromising rights guarantees. Some countries have marginally succeeded in this test while in others, concerns of democratic decline were amplified. Three features defined the Indian response to COVID-19: lack of transparency, executive monopoly and suppression of dissent. Continue reading >>
0
02 Februar 2021

No Court When Needed

For months, Indian farmers have been protesting against the so-called “farm bills”. With the government unwilling to give in to demands and with farmers determined to keep on protesting until the laws are repealed, India’s Supreme Court has ventured into the political fray. On 12th January it passed an order staying the laws as well as setting up a mediation committee. The Supreme Court’s response fits neatly into a destructive pattern, particularly in the past years under the Modi government, in which it has abnegated its core functions in favor of politically expedient (in-)actions. Continue reading >>
0
09 Oktober 2020
,

Abusing Parliamentary Procedures

Unlike the post-world-war era, democracies are no longer subverted via coups. Would-be autocrats pursue anti-democratic agendas through laws to imbue them with a veneer of legitimacy. This renaissance in authoritarianism has thrown into focus the institution of the legislature, which becomes the primary site for what Javier Corrales terms ‘Autocratic Legalism’. India is no stranger to the trend of Autocratic Legalism, and the ruling Bharatiya Janata Party (“BJP”) has often taken the aid of the presiding officers in both Houses of the Parliament, to push forward its anti-democratic agendas. Considering how central a role presiding officers have played in eroding democracy inIndia, a radical shakeup to the way presiding officers are appointed and function is needed to ensure Indian democracy’s long-term sustainability. Continue reading >>
27 Juli 2020

No Country for Dissent

On July 25, Twitter ‘withheld’ or disabled access to two tweets made by activist lawyer Prashant Bhushan. Prashant Bhushan had posted two tweets in the end of June, criticizing the Supreme Court and especially its current Chief Justice. Based on the Tweets, the Supreme Court initiated suo moto contempt proceedings against Bhushan on July 21 and Twitter’s withdrawal comes two days after the first hearing in the case. Continue reading >>
0
15 Juli 2020
,

The Celebration of Extra-Judicial Murders: Who’s Watching India?

Police killing and brutality have become common news in India lately, with various cases where citizens were beaten, and even killed, on account of trivial violations of the nationwide COVID-lockdown. Instead of using its resources and manpower to gather evidence and bring the accused to trial, the police in India seems to prefer the easy way of extra-judicial killings. The incidents of these killings on the very face of it seem fabricated, as eerily similar narratives are given. Since the draconian Indian Criminal Procedure Code allows the police to fatally injure a person ‘forcibly’ resisting or evading arrest, if he is accused of an offence punishable with death or life imprisonment, most of these narratives include the accused trying to evade the police or firing at it. Such killings with deliberately concocted circumstances, are in common parlance termed as ‘fake encounter’. Continue reading >>
0
11 Juni 2020
,

From Legal Fiction to Reality: Securing the Dignity of India’s Manual Scavengers

Manual scavenging is one of the most inhumane and abhorrent sanitation practices prevalent in modern India: broadly, it means deploying individuals to manually clean up drainage systems. ‘Manual scavengers’ (unfortunately, for the lack of a better term) have been denied their humanitarian due for centuries in the Indian sub-continent and their constitutional due for 70 years in the Republic of India – it is high time the Law dismantles the structure that perpetuates their oppression. Continue reading >>
0
28 April 2020

Cracks in India’s Constitutional Framework

India's constitutional system was conceptualized to share power (although not equally) between the Union and the 29 states alongside an institutionally grounded system of checks and balances between the parliament, the executive and the judiciary. As the world’s largest democracy proceeds into the sixth week of the nation-wide lockdown to address the outbreak of Covid-19, certain cracks in its constitutional framework have been exacerbated that have the potential to structurally alter the constitutional framework of checks and balances in the aftermath of the pandemic. Continue reading >>
0
04 März 2020

The Delhi Killings and the Making of Violence

The recent killings in Delhi, orchestrated by armed mobs with impunity and legitimized through the highest offices of government and the current ruling party, resulted in the death of almost 50 people, mostly Muslims and mostly the poor and vulnerable among them. The sheer scale, design and brutality of the undertaking revived memories of the 2002 Gujarat riots and the 1984 riots in Delhi, that exhibited a certain pattern. That of absolute unrestraint and complicity. Of the state, the executive, the police, the popular media and in many respects the courts as well, in creating and perpetuating a state of terror while fuelling discrimination and disenfranchisement against minorities, especially Muslims. Continue reading >>
13 Januar 2020

Kashmir: A Prologue to a Farce or a Tragedy

On 10 January 2020, the Indian Supreme Court delivered its verdict on the ongoing internet shutdown in Kashmir. While the Court did reprimand the government to some extent, at the time of this writing Kashmir is still cut off from the internet. Anyone who had banked on the Supreme Court to make good on the promise of fundamental rights will be disheartened. Continue reading >>
0
08 Januar 2020

European Solidarity Statement with Academics and Students in India

We are students, scholars, and academics at European universities who […] Continue reading >>
0
20 Dezember 2019

Citizenship by Religion

India is presently witnessing a country-wide mass uprising against the Citizenship (Amendment) Act, 2019, which purposefully aims to grant migrants belonging to six enlisted communities an easy path to Indian citizenship, while denying the same to others – notably Muslims. This Act is unconstitutional as it exploits deliberate omissions on citizenship rules in the constitution while it ignores the constitutional design which is fundamentally based on equality and secularism. Continue reading >>
0
25 Oktober 2019

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. Continue reading >>
11 Oktober 2019

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. Continue reading >>
0
08 Oktober 2019

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? Continue reading >>
0
20 September 2019

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. Continue reading >>
0
20 August 2019

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. Continue reading >>
17 August 2019

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. Continue reading >>
08 August 2019

Of Constitutional Subterfuge and the ‘Integration’ of Kashmir

In what was nothing short of a Constitutional heist, the Indian government has effectively extended the entirety of the Indian Constitution to the state of Kashmir. Continue reading >>
22 April 2019

“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. Continue reading >>
26 Februar 2019

To Catch a Spy: India v. Pakistan at the ICJ

Does the right to consular access also apply to imprisoned spies abroad? The International Court of Justice in The Hague will decide. Continue reading >>
0
22 Oktober 2018

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. Continue reading >>
0
22 September 2018

Independence Day: Das Urteil des indischen Obersten Gerichtshofs zum „Sodomie-Gesetz“

Am 6. September 2018 erklärte der indische Oberste Gerichtshof das sogenannte „Sodomie-Gesetz“, das u.a. den Analverkehr zwischen Männern unter Strafe stellte, für verfassungswidrig. Dabei verwiesen die Richter auf den transformativen Charakter der indischen Verfassung und die ihr innewohnende "konstitutionelle Moral". Die Entscheidung fügt sich ein in eine breitere Bewegung in den Commonwealth-Staaten, die sich für die Aufhebung der Kriminalisierung von Homosexualität stark macht und die von den Obersten Gerichtshöfen ausgeht. Die vorliegende Entscheidung dürfte dieser Bewegung neuen Schwung geben. Continue reading >>
0
09 September 2018

Decriminalising Homosexuality in India as a Matter of Transformative Constitutionalism

What worth is a Constitution if it does not seek out the emancipation of a society’s most marginalized and excluded? Indeed, what vision ought a Constitution espouse if it isn’t a commitment to basic fundamental rights and freedoms? Ultimately, what polity must a Constitution nurture if it isn’t towards imbibing the widest and most deepest sense of inclusion and pluralism in society? All these searching questions and much more came to form a distinct part of the decision of the Indian Supreme Court (Court) when it was called upon to rule on the constitutional validly of Section 377 of the Indian Penal Code, 1860. Continue reading >>
18 August 2018

Zwischen Supreme Court und Zentralregierung: Zur drohenden Staatenlosigkeit der muslimischen Minderheit in Assam

Ende Juli hat die Zentralregierung in Delhi ein neues Bürgerregister für den Bundesstaat Assam veröffentlicht, in welchem sich nicht alle Einwohner des indischen Bundesstaates wiederfinden. Ein Großteil derer, die auf der Liste fehlen, gehört der muslimischen Minderheit an. Ihnen droht die Festsetzung in Camps, der Entzug politischer Rechte, Abschiebung oder gar Staatenlosigkeit. Der Fall, dessen  Historie bis in die Zeit der Unabhängigkeitsbewegungen zurückreicht, zeigt, dass gegenwärtig in Indien Ressentiments gegen ursprünglich Geflüchtete einer bestimmten religiösen Minderheit wieder aufleben und rechtlich verfestigt werden. Continue reading >>
0
15 Juli 2018

Being Gay under India’s Constitution

Section 377 of the Indian Penal Code penzalizes "carnal intercourse against the order of nature". The Indian Supreme Court heard a case last week that could finally lead to the end of this residue of British colonial rule. Continue reading >>
21 Mai 2018

Save the Constitution!

India's oppositional Congress party wants to impeach Dipak Misra, the Chief Justice of India, who stands accused of allocating cases to the respective benches at his own, politically right-leaning whim. In its fight against the governing BJP party, the Congress party has launched a "Save the Constitution!" campaign. Unfortunately, its leader Rahul Ghandi's family has a history of entanglement with the constitution of its own. Continue reading >>
0
24 Januar 2018

Sunshine through the Rain: New Hope for Decriminalization of Gay Sex in India?

Gay sex is still a criminal act according to the Indian Penal Act. In 2013, the Supreme Court had quashed a judgment by a Delhi Court to decriminalise consensual gay sex. Now, there are signs that the Supreme Court might reconsider. Continue reading >>
0
18 Januar 2018

Four Indian Supreme Court Judges Accuse the Chief Justice of Wrongdoing

The judges should have been more considerate towards the institutional damage their actions have caused. They have hurt the court for decades to come. Institutional reform proves healthy when it comes from the inside; and one would like to think, that four senior judges wield a hefty amount of institutional power to transform the procedural mechanism without having to 'call upon the people' to intervene.This was little more than a political act in a country where politics and the law only function along the simple logic of institutionalising antagonism. Continue reading >>
0
10 September 2017

Reconciling Religion: Lessons Learned from the Triple Talaq Case for Comparative Constitutional Governance

The recent case of Shayara Bano v Union of India heard before the Supreme Court of India provide helpful guidance for how a secular democratic regime with a multiplicity of religious, ethnic, and cultural communities can manage constitutional governance with an increasing number of seemingly irreconcilable tensions. Pluralist societies such as Canada and the United States grapple with a variety of delicate balancing acts: in such instance, the need to reconcile accommodation for religious and cultural minorities with the protection of gender rights on the other. Continue reading >>
0
28 August 2017

Privacy and the Indian Supreme Court

The Indian Supreme Court’s landmark ruling on the "Aadhar" biometric identification scheme is an important step to prepare India for the digital age and offers fresh impulses for a public debate on the legal contours of privacy. Continue reading >>
24 August 2017

How not to Divorce Muslim Women in India

The Supreme Court of India has declared the Muslim practice of men divorcing their wife by repeating the word "talaq" three times unconstitutional. Continue reading >>
01 Juni 2017

Triple Talaq before the Indian Supreme Court

The Supreme Court of India has to decide a case that has captured India’s political, constitutional and social imagination – a challenge to the constitutional validity of triple talaq, a practice that allows a Muslim man to divorce his wife unilaterally simply by uttering the word “talaq” thrice. Continue reading >>
22 April 2017

How Old is 14 Really? On Child Marriage and Case-by-Case Justice

A bizarrely archaic hiccup for old-school historicists, curiously ambivalent and legally intriguing to others, child marriages currently enjoy an unforeseen centrality in Germany’s public life. Europe today is hard pressed to look beyond its shores for instructive twenty-first century survival scripts. India’s past offers some lessons on child marriages for the current German predicament. Continue reading >>
11 Dezember 2013

Dürfen Richter gleichgeschlechtlichen Sex legalisieren?

Indiens Strafgesetzbuch droht Männern und Frauen für „carnal intercourse against […] Continue reading >>
08 Januar 2013

A Note On Rape

In a recent popular bollywood jingle Sheila ki jawani (easily […] Continue reading >>
Go to Top