Blog of the IACL, AIDC

a network of constitutionalists from countries throughout the world

IACL Roundtable on the Indian Constitution

As previously reported, on 12 April an IACL roundtable is taking place at the National Law University, Delhi under the title Contemporary Issues in Indian Public Law: Transnational Perspectivies. In the first of a series of blog posts related to that event, Gautam Bhatia,  a practicing lawyer based in Delhi, and visiting faculty at the National Law School of India University, provides an overview of themes that will be explored.

Gautam BhatiaEver since the framing of India’s Constitution, in 1949, constitutional and public law have played a significant role in the nation’s legal and political landscape. Important civil liberties questions, relating to equality, the freedom of speech, affirmative action, religious freedom, the cultural rights of minorities etc., have all been disputed before the Courts. It is the Courts that have had to resolve complex questions pertaining to federalism, inter-state river-water disputes, and inter-state trade and commerce. And with the advent of public interest litigation, over the last three decades the Courts have come to play an even greater role in administration and everyday public life.

This importance of constitutional and public law has not, however, been matched by a similar profusion of analytical writing and analysis about the Courts’ constitutional and public law jurisprudence. There has been a significant amount of interdisciplinary study on issues such as secularism, affirmative action, and the political history of public interest litigation, or freedom of the press; however, the odd monograph aside, sustained engagement with the Court, at the level of interrogating its legal reasoning and its jurisprudence, has been lacking.

The IACL Round Table, titled Contemporary Issues in Indian Public Law: Transnational Perpectives, jointly organised by the Faculty of Law, University of Oxford, Melbourne Law School, and the National Law University of Delhi, aims to contribute towards creating a culture of engagement with contemporary Indian public law. The Round Table brings together scholars from Oxford, Melbourne and India, to discuss three themes of contemporary relevance.

The first theme is titled “Transnational Engagement with the Indian Constitution.” The Indian Constitution is a smorgasbord of elements borrowed from around the world – a bill of rights that has American and Japanese influences, a Directive Principles chapter inspired by the Irish, a Westminster system of parliamentary governance that is English, and a commerce clause borrowed from Australia, to name just a few. Consequently, engagement with foreign public law has been a staple feature of Indian jurisprudence. In this session, Cheryl Saunders will present a constitutional comparison between India and Australia, Nick Bamforth will discuss comparative authority in constitutional litigation, and Paul Craig will provide some comparative thoughts on meta-constitutional narratives.

In popular imagination worldwide, the Indian Supreme Court is seen as a strongly activist court, often stepping into an administrative and executive void that is created by an apathetic or divided government. Expectedly, this has often led to accusations of overreach. Issues surrounding the separation of powers, therefore, are always at the forefront of the constitutional landscape. This is the second theme of the Round Table. Here, Nick Barber will examine the famous “basic structure doctrine” of the Indian Supreme Court, a substantive, judicially-determined check upon the parliament’s amending powers, which has polarised opinion ever since it was first propounded forty years ago. Sudhir Krishnaswamy will raise some institutional questions about the Directive Principles chapter, which is repeatedly invoked by the Courts in order to justify reading in socio-economic rights into the scope of fundamental rights, as well as pro-actively stepping into the shoes of the executive. And Alison Young will round things off by discussing the possibilities and prospects of inter-institutional dialogue.

The last session focuses on human rights, always a morally and legally fraught part of the constitutional terrain. After a spate of terror convictions, as well as the tightening of rape penalty laws after the “Nirbhaya gangrape” two years ago, the death penalty has catapulted itself back into the national debate. Anup Surendranath will discuss the issue in light of his work in the Indian context, whereas Pip Nicholson will also speak about it. Carolyn Evans will address another theme that has attracted controversy over the last few months – that of religious freedom and conversion laws.

The roundtable will take place on the 12 April 2015, at the National Law University, Delhi. We look forward to seeing you there or reading blog posts related to the event!

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This entry was posted on March 20, 2015 by in IACL roundtable, India and tagged , .
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