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Contents of Volume 19(1)

2023

Janhit Abhiyan: Where does it lead us?

-Dhruva Gandhi

In Janhit Abhiyan v. Union of India (2022), the Supreme Court of India upheld the constitutional validity of the Constitution (One Hundred and Third Amendment) Act, 2019 that introduced reservations for the Economically Weaker Sections (EWS) of society. First, this Comment deviates from the existing criticisms of the judgment to argue that the judgment may pave way for expanding the scope of discrimination law by laying the groundwork for recognising ‘poverty’ or ‘socio-economic disadvantage’ or ‘economic class’ as a protected marker of discrimination. Second, it argues that the diverging opinions of  Justice Pardiwala and Justice Bhat on the interpretation of Article 15(1) require clarification and raise questions on the desirability of applying the reasonable classification test to Article 15(1). Third, the Comment argues that the decision in Janhit Abhiyan conflicts with a previous Constitution Bench judgment in M. Nagaraj v. Union of India on whether the 50% ceiling on reservations is essential to the equal opportunity clause. This Comment thus anticipates the wider implications of the judgment on the evolution of discrimination law in general, and the constitutional doctrine on equality law in India, in particular.

Book Review of Pamela Cox and Sandra Walklate (eds), Victims’ Access to Justice: Historical and Comparative Perspectives (Routledge: 2022)

-Radhika Chitkara

Jurimetrics and Detention: Understanding the Supreme Court Through Detention Cases During the 1975 National Emergency

-Nitish Rai Parwani

This paper employs the lens of jurimetrics to empirically analyse patterns in decision-making by the Supreme Court while deciding cases concerning personal liberty between 1974-1977, with the 1975 National Emergency as the point of reference. The paper investigates and analyses the functioning of the Supreme Court in this period by examining the numerical trends in the number of reportable and unreportable judgments in preventive detention matters during the 1975 Emergency, by contrasting it with the period immediately before the proclamation and after the revocation of the Emergency. First, the paper introduces the period of study and delineates its methodology, along with setting the legislative, political, and judicial context to these judgments. Second, the paper shows a decline in the number of reportable and unreportable judgments in such matters during the 1975 Emergency and explores various reasons for the same. Third, the paper analyses the Court’s jurisprudence on the maintainability of habeas corpus petitions against preventive detentions during this period, with specific focus on ADM Jabalpur v. Shivkant Shukla (Habeas Corpus case). The paper shows how the Supreme Court had laid the groundwork for this decision even prior to the 1975 Emergency, and analyses the subsequent cases that reiterate its position of law. To conclude, the paper raises questions on the extent of judicial independence and accountability during the 1975 National Emergency and underscores the need to further study the working of the Supreme Court more closely and rigorously, for a better understanding of judicial decision-making.

A Tribal Chief and a Colonial Legislation: The Excluded Areas Act of 1846

-Dr. Amrita Tulika

This article explores the nature of colonial sovereignty from a Hobbesian lens of 'state necessity' by taking the example of the Excluded Areas Act of 1846. This Act was a special law that placed the Bhil tribes of the Khandesh and Ahmadnagar districts (in present-day Maharashtra) outside the purview of the general laws in the Bombay Presidency. By drawing from archival sources, including records of the East India Company and legislative proceedings, it contrasts precolonial tribal autonomy with authoritarian and paternalistic colonial rule by a British Agent under the Act. First, the paper locates its argument on colonial rule in an 'unruly' tribal periphery through exceptional/emergency legislation in the larger body of work on colonial sovereignty. Second, it sets out the nature of tribal autonomy and the role of the hill chiefs in these regions. Third, it uses primary material to elaborate on Kuar Vasava's (a Bhil tribal chief) interactions with and rebellion against the East India Company state. Fourth, it briefly explains the law-making process in early colonial India. Fifth, it analyses the promulgation of the Excluded Areas Act of 1846 and the powers of the executive under the Act as direct consequences of Kuar Vasava's rebellion, and argues that the law was used as a tool to undermine tribal autonomy and impose colonial rule. A short conclusion follows.

Deconstructing Police Discretion as Brahminism

-Nikita Sonavane

Police violence is cast as a graphic, brutal spectacle of power on the bodies of the poor. This popular understanding is only the most visible form of routinised arbitrary violence perpetrated by the police. In this article, we study the scope and forms of police discretion in ordinary policing tasks informed by Criminal Tribes Act, 1871 to argue that the police frame criminality not through evidence-gathering but through the power of language and distorted narratives that are passed off as discoverable truths derived from the institution of caste. Through a study focused on alcohol policing under the Madhya Pradesh Excise Act, 1915, this article seeks to underscore that police discretion is constructed by caste, resulting in the criminalisation of oppressed caste communities.

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