Tools of Justice: Non-discrimination and the Indian Constitution

Procedia - Social and Behavioral Sciences, 2013

Constitution is fundamental it was not clearly defined. Consequently, there is uncertainty on the ambit of this right in the Malaysian jurisprudence. Conversely, the Indian sian Article 5(1), is certain, and the judiciary had taken an active approach on the interpretation. Consequently, this broadens the ambit of fundamental rights. Hence, India is a source of reference in the adoption of a dynamic jurisprudence on right

Widener Law Review, 2014

Thank you for coming this afternoon. I'm delighted to have the opportunity to present the 2013 H. Albert Young Distinguished Lecture in Constitutional Law. I am truly indebted to a number of people who have supported the work I've been able to do over the last couple of years as the H. Albert Young Fellow. First, of course, the H. Albert Young family. The Young Family's support provided me with time to do the research on comparative constitutional law that culminated in a book on Dignity Rights and will culminate in another book on global environmental constitutionalism that Professor James R. May and I are writing. The Young family's support was also essential in allowing me to travel around the country and abroad to share this and other work I've been doing. 2 My comments tonight will focus on United States v. Windsor, 3 the Supreme Court case from June 2013 which struck down the essential provisions of the Defense of Marriage Act. 4 I'd like to talk about it in comparative perspective, not because the Supreme Court did, but because it didn't. And it should have. Looking at the constitutional law of other nations would have made this opinion stronger, more comprehensible, and, I think, more legitimate. 1. Erin Daly is Interim Co-Dean and Vice Dean of the Widener University School of Law in Delaware. She is the author of DIGNITY RIGHTS: CONSTITUTIONS, COURTS, AND THE WORTH OF THE HUMAN PERSON (2012), RECONCILIATION IN DIVIDED SOCIETIES (U. Penn Press, Human Rights Series 2006) (with Jeremy Sarkin), and GLOBAL ENVIRONMENTAL CONSTITUTIONALISM (Cambridge Univ. Press 2014) (with James R. May). 2. I would also like to thank Linda Ammons, Dean of the Law School, for her support for this work over the years, as well as John Culhane my colleague whose insights and thoughtfulness have helped me think through some of the issues I'll be speaking about tonight. Thanks, also, to Connie Sweeney and Carol Perrupato --a formidable team --whose flawless and selfless work made it possible for us all to come together here tonight. I'd also like to express my gratitude to three fantastic research assistants Brittany Giusini, Katharina Earle, and Nadiia Loizides. 3. United States v.

The Yale Law Journal, 1981

The Yale Law Journal Connecticut, 2 Eisenstadt v. Baird,' Roe v. Wade, 4 and Doe v. Commonwealth's Attorney. 5 The judges and scholars who support judicial intervention usually acknowledge that the rights at stake-variously described in terms of privacy, procreational choice, sexual autonomy, lifestyle choices, and intimate association-are not specified by the text or original history of the Constitution. They argue that the judiciary is nonetheless authorized, if not duty-bound, to protect individua,5 against government interference with these rights, which can be discovered in conventional morality or derived through the methods of philosophy and adjudication. The critics argue that judicial review may be exercised only to enforce explicit constitutional provisions or to ensure the integrity of representative government. They deny that shared social values or fundamental rights exist or, in any case, that courts can ascertain them. The fundamental rights controversy deserves a place in a symposium on legal scholarship: It is concerned with issues that lie at the core of contemporary constitutional discourse-judicial methodology, institutional competence, and democratic theory. My own scholarly agenda also influenced this choice of topic. Several years ago, I started work on an affirmative theory of constitutional decisionmaking based on interpretation-broadly conceived-of the history, structure, and values of American society. I began by examining, and rejecting, "originalist" constitutional interpretation (that is, interpretation rooted in the text and original understanding of the Constitution). 6 The publication of John Hart Ely's important proposals for value-neutral "representation-reinforcing" modes of judicial review 7 occasioned a detour, which confirmed my belief that such process-oriented strate-2. 381 U.S. 479 (1965). Griswold held that a Connecticut statute prohibiting the use of contraceptives could not be applied to married couples. Justice Douglas's opinion for the Court relied on "penumbras" of various provisions of the Bill of Rights. Concurring Justices invoked the Ninth Amendment and the due process clause of the Fourteenth Amendment. The Court has not since recurred to penumbral analysis. 3. 405 U.S. 438 (1972). Eisenstadt invalidated a statute that, in effect, prohibited distributing contraceptives to unmarried persons. The Court remarked that "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id. at 453. 4. 410 U.S. 113 (1973). Roe invalidated a Texas statute prohibiting abortions before as well as after viability. 5. 403 F. Supp. 1199 (E.D. Va. 1975), alf'd mem., 425 U.S. 901 (1976). Doe sustained Virginia's sodomy statute as applied to private consensual homosexual conduct. The Supreme Court affirmed without opinion. Justices Brennan, Marshall, and Stevens voted to note probable jurisdiction and set the case for argument. 6.

The Supreme Court of India, considered as the epitome of Justice in India, upholds the Human Rights through Fundamental Rights and Directive Principles of State Policy. The expression \'fundamental\' indicates that all human beings are endowed with certain rights that are essential for human existence and for flourishing of the human persona and mind. Hence, these rights tend to protect the dignity of the individuals and create conditions in which the human beings can develop their personality to the fullest extent. In A.D.M., Jabalpur v. S. Shukla, Beg, J., observed that the object of making certain general aspects of rights fundamental is to guarantee them against illegal invasion of these rights by executive, legislative or judicial organ of the State. The Supreme Court of India has recognised these fundamental rights as ‘natural rights\' or \'human rights\'. Chief Justice Patanjali Shastri has referred to fundamental rights as \'those great and basic rights which are recognised and guaranteed as the natural rights inherent in the status of a citizen of a free country’. Similarly, the Chief Justice Subba Rao in I.C. Golakanath v. State of Punjab has very rightly observed that \'fundamental rights are the modern name for what have been traditionally known as natural rights.\' They are moral rights which every human being everywhere at all times ought to have simply because of the fact that in contradiction with other beings, he is rational or moral. It hardly matters that by what name they are known . This paper will deal with various cases of Supreme Court in upholding Human Rights Standards. Human Rights, Law, Supreme Court.

2022

Right To Life and Personal Liberty: Navtej Singh Johar Vs Union of India

Law, Culture and Humanities

In this essay, I explore some of the contemporary debates on the role of the Indian Supreme Court in the context of equality and liberty at a moment when it appears that the very reasons for the celebration of judicial review and interventions are under attack by progressive scholars and activists. In reviewing the debates on the role of the Court, I focus on one particular contention that since the realm of social/equality was paramount for the Indian state as a whole, and the Supreme Court post-emergency, the realm of political/liberty was consequently ignored. By revisiting the debate on equality trumping liberty, I acknowledge the critiques of the Court but also point to ways in which certain facets of political liberty do get addressed even in the absence of a focus on liberty. Even if by themselves these judicial interventions may be inadequate to create a due process revolution as far as criminal defendant rights are concerned, they create an “arsenal of tools” available for those concerned with liberty and justice. At the very least, such a conception portrays the Court as less unidimensional than characterized by recent scholarship and retains the Court as a productive site of contestation.

Natural Law, Liberalism, and MoralityContemporary Essays, 2001

2017

LVIII Annual Survey of Indian Law - 2022 (129 - 179), 2025

In the survey year - 2022, several important and interesting constitutional questions involving interpretation and/or enforcement of fundamental rights arose before the Supreme Court in verities of factual scenarios. Only one such question was placed before a constitutional bench consisting of five judges. The bench by 3:2 majority upheld the constitutional validity of the Constitution (One Hundred and Third Amendment) Act, 2019 through which two new clauses were inserted to articles 15 and 16 to enable the state to make special provisions including reservations in favour of EWSs. The points of disagreements between the majority and the minority are, in fact, very contentious and are likely to generate more debates and discussions in the times to come. The reasons accorded by the judges, who were in minority, in support of their views are very cogent and persuasive. They seem to reflect the correct position of law. Two of the views of the majority viz., (i) the reservation in employment under article 16 can be provided in favour of any class without premising it on “inadequacy of representation”, and (ii) the exclusion of poorest among the SCs, STs, SEBCs/BCs from the EWS category does not violate the equality code envisaged under the Constitution do not seem to reflect the correct position of law. There is a need to reflect more on these aspects. Excepting this, there is no other constitutional bench decision directly relating to fundamental rights in 2022. All other decisions were rendered by either two or three judge benches. Some are noteworthy, in particular, ‘reading up’ rule 3-B of the MTP (Amendment) Rules, 2021 in order to make reproductive autonomy available equally to both married and unmarried women, which also led to saving of the provision from being struck down; setting aside the motion adopted by the Maharashtra Legislative Assembly suspending twelve of its members for a period of one year as manifestly arbitrary and unreasonable; insisting that the state has the “duty to act fairly and to eschew arbitrariness in all its actions”; categorical rejection of the binary argument that projects reservation as a policy that undermines ‘merit’ and denies ‘equality’, and a well balanced view adopted in Jacob Puliyel, wherein it held that though compulsory vaccination is unconstitutional but it is permissible to impose suitable restrictions on the unvaccinated if the situation so warrants. Rulings such as these have enhanced the quality of fundamental rights and also enlarged their scopes. The survey year also witnessed an instance, where the apex court had invoked ‘constitutional morality’ to justify a state action. It may be pertinent to point out that some of the decisions or observations made in certain cases do not seem to be based on sound principles of law viz., the decision to correct an earlier decision in proceedings under article 32; observation that the fundamental right under article 32 is subject to the power of the apex court “to relegate the party to other proceedings”, and the view expressed in Ganpati Dealcom (P) Ltd., that the substantive due process is part of the constitutional jurisprudence in India. These decisions and observations are either per incuriam or are not based on firmer footings. These propositions need to be reconsidered. Further, there are two more decisions that are concerning. One, the decision to uphold the Prevention of Money Laundering Act, 2002 in Vijay Mandanlal Choudhary. Some provisions contained in the Act are really problematic. They dilute the procedural safeguards to a great extent that results in denial of right to fair investigation and trial. As pointed out earlier, certain principles/precepts on which the court had based its decision themselves need to be re-examined in proper perspective. It is reassuring that a review petition has already been filed and the same has been accepted for hearing by the apex court. Second is a split verdict delivered by a two judge bench in Aishat Shifa (Hijab Case 2 J.). As a result the matter was directed to be placed before an appropriate bench for adjudication. The case involves important substantial questions of law involving constitutional interpretation. These questions need to be adjudicated sooner by a constitutional bench of appropriate strength.