Privacy versus National Interest – An overview

The journey of privacy has been a roller-coaster ride in INDIA. This topic has been debated a lot and has again come to highlight because of the controversial biometric project.

Most people value their ability to keep their private lives private, to protect information that they consider private. Some people do it to hide information about their financial status, or relationship status.The importance of such a right cannot be denied – secret voting enshrines the principle that how people vote is ultimately their own private decision – even if they choose to publicly back a particular candidate, nobody is allowed to scrutinize their DECISION.

However, in the case of the biometric project, it has caused great concern among civil liberties campaigners, who argue that such state intervention threatens the privacy of ordinary citizens and also many experts believe it is not a fair trade-off for protecting the national interest.

When it comes to defining National Interest, it is the interest of a nation as a whole held to be an independent entity separate from the interests of subordinate areas or groups and also of other nations or supranational groups. In this case, it seems to be a fair decision to trade off citizen’s privacy for national security.

What actually privacy is? Privacy is widely regarded as an important right in free and democratic societies. Article 17 of the United Nations International Covenant on Civil and Political Rights states that: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation” and “Everyone has the right to the protection of the law against such interference or attacks”.

In India, the Right to privacy is one such right, which has come to its existence after widening up the dimensions of Article 21. The constitution in specific doesn’t grant any right to privacy as such. However, such a right has been culled by the Supreme Court from Art. 21 and several other provisions of the constitution read with the Directive Principles of State Policy.

Security versus privacy

The idea of government possessing citizen’s private information can be associated with AUTHORITARIAN REGIMES and can be a key feature of George Orwell’s dystopian novel 1984, in which privacy is all but eliminated.

Despite a general consensus on the value of privacy, many argue it has limits or rather it must have some restrictions. If the government is able to maintain the right balance between privacy and security enabling the authorities to keep tabs on personal information, without giving them carte blanche to snoop on citizens. For those in favour of compromising on privacy for the sake of national security, the key point is that seeking such information is no big deal given the rationale behind it.  In other words, privacy might be important, but is it so important that we should risk national and international security rather than compromise a little?

Even the supreme court of India quoted that “Right to privacy can never be an absolute entitlement.” In my own opinion, I believe that both privacy, as well as security, are important for different reasons. I believe that national security is important because we are and will be protected as a whole. On the other hand, our privacy is important as well because everyone wants to keep their personal business to their self’s, or at least have the opinion to keep it that way. I believe that people should be able to have their own personal privacy without worrying that it’ll be interrupted. I also believe that national security is important so that people will know they are and will be protected without worry. What is to be done is maintaining the right balance and a reasonable compromise between privacy and security. Well, as many say, “We should be willing to compromise our privacy in the interests of national and international security”

RIGHT TO PRIVACY IN INDIA

The right to privacy is seeded in several articles of Part III of the Constitution.

To pass the test of privacy, any law framed must be constitutionally valid. It must be need-based and it must be proportionated to the abridgement sought to the right to privacy consistent with actual need.

GOVERNMENT IS FACING A CHALLENGE

The government faces a formidable legal challenge in implementing its ambitious unique identification programme. Pleas have been made before the Supreme Court questioning the lack of a statutory basis for the collection of biometric details, and the government has to meet this point to the court’s satisfaction. Instead of arguing that privacy is not a fundamental right, it would do well to assure the court that it has the technology and systems to protect the data collected. And that it would do everything possible to prevent unauthorised disclosure of or access to such data.

WHAT WE NEED IS PRIVACY ACT

A Group of Experts appointed by the Planning Commission and headed by Justice (retd.) A.P. Shah came out with a comprehensive report in 2012 containing a framework for a Privacy Act. Such a law, it said, should recognise all dimensions of the right to privacy and address concerns about data safety, protection from unauthorised interception, surveillance, use of personal identifiers and bodily privacy. Underscoring a set of privacy principles, the committee said the underlying idea should be that the data controller should be accountable for the collection, processing and use to which data are put. In its zeal to aggregate data in electronic form and target subsidies better, the government cannot ignore its responsibility to protect citizens from the perils of the cyber era.

BUT To pass the test of privacy, any law framed must be constitutionally valid. It must be need-based and it must be proportionate to the abridgement sought to the right to privacy consistent with actual need.

Also, many people who totally protest that privacy should not be compromised at any cost should not forget what former president of Obama quoted, THAT YOU CANNOT HAVE 100% SECURITY AND 100% PRIVACY.


ABOUT THE AUTHOR

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DEEKSHA KATHAYAT

Deeksha Kathayat is currently pursuing BLS LLB (third-year) from Dr. D. Y. Patil College of Law. An enthusiast debater and avid mooter, she’s into occasions where she can express her views on various issues. She believes that we realize the importance of our voice only when we are silenced. An aspiring bureaucrat, she describes herself as Unstoppable, Unconstrained, and Zealous.

Article 35A of the Indian Constitution – A critical overview

Debate on article 35A started again when during his visit to Kashmir, the Union Home Minister Rajnath Singh said that the BJP-led government at Centre will not go against the wishes of the people of Jammu and Kashmir on the constitutional provision that guarantees special privileges to the natives. Article 35A of the Indian Constitution provides a special prerogative to the Jammu and Kashmir Legislature to define “permanent” residents of the state and give them certain privileges and rights in the public sector jobs, acquisition of property in the state, scholarships, and other public welfare services.

The Delhi Agreement of 1952 between the then Prime Minister of Kashmir Sheikh Abdullah and Pandit Jawaharlal Nehru granted “Indian citizenship” to the state subjects of Jammu and Kashmir. This was followed by the incorporation of article 35A in 1954 by an order of Dr Rajendra Prasad on the advice of Prime Minister Nehru. Certain provisions in the interest of the “state subjects” of Jammu and Kashmir are allowed under Article 370(1)(d). Article 35A implies that Government of India has given a special status to the “permanent residents” of Jammu and Kashmir.

So, now the conflict is whether the President is empowered to incorporate an article into the Constitution. The article wasn’t put up in the parliament for discussion and was implemented. This again creates a dilemma on the constitutionality and validity of the article. According to article 368(I) of the constitution Parliament solely has the authority and power to amend the Constitution. This would land the article in the labyrinth of its validity. In 1961 the Supreme Court analysed the ambit of Presidential powers and concluded that the President could amend an existing article. But the court was silent on whether or not the President could add an entirely new article to the Constitution.

The NGO ‘We The Citizens’ had challenged the constitutionality of Article 35A and Article 370. It posits that the representatives from Jammu and Kashmir were involved in the framing of the Constitution. Article 370 was just a “temporary addition” in the interest of people from Jammu and Kashmir. Permanent amendments like Article 35A were not the intentions of the constitution-makers. The NGO petition claimed that the Article goes against the “spirit of oneness” creating a hierarchy of classes. It also restricts people from other states from getting employment and buying property within the vicinity of Jammu and Kashmir. This provision infringes rights guaranteed by the Constitution under article 14, 19 and 21.

Charu Wali Khanna had challenged Article 35A on the pretext that it infringes a woman the basic right to marry a man of her choice by not giving her children the right of holding any property if the woman marries someone without a Permanent Resident Certificate. Even if the women a permanent resident of Jammu and Kashmir the children have been debarred from her property. Also, the plea said that the children were not given a Permanent Resident certificate, thus considering them illegitimate.

A three-judge constitutional bench has been set up to hear the pleas challenging the article after Diwali.


ABOUT THE AUTHOR

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ASHISH KUMAR YADAV

Ashish is an undergraduate student at Cluster Innovation Centre, University of Delhi. The institution has a Meta College concept and focuses on an interdisciplinary approach.  He is the co-founder of two non-profit ventures, one of which deals with education and the other in enhancing scientific communication among the masses. He has done three research projects at Cluster Innovation Centre the first aimed to create a prototype of full-fledged Hindi dictionary and another on the Study of a community’s cultural tradition (Banjara community). The third project was Hafta bazaar aimed to digitalize and study the various weekly markets in Delhi. He is quite ardent in the field of economics and journalism and is intrigued by topics from digital marketing to management, which are reflected in his undergraduate studies. He was also a part of a report published on education.

Beginning of a new epoch for Muslim women

Recently with the verdict of the Supreme Court calling the practice of triple talaq as unconstitutional has paved a golden way towards religious reforms in the Muslim personal laws against the practices that were derogatory to a woman’s dignity. BUT this is just a beginning.  Much has to be done; though we cannot deny it is a very strong and historic beginning, one can say probably the process of reforms in Muslim personal laws has just begun and this is a very strong process and is very important because a process well begun is half done.

Triple talaq was a burning issue and a topic of discussion for the past many years. We were constantly bombarded with many debates in news channels as well as newspapers about its validity, and the injustice and the cruel practices followed causing nightmares to Muslim women. Incidents such as talaq via WhatsApp, Skype, letter, cell phones were shocking and made us wonder how technology could be used in this way as well.  As rightly being said by someone, when a new technology is invented you not only find how to use it in various ways but you also try to find how to misuse it in many ways as well.

The triple talaq controversy started when Shayara Bano approached the Court, for assailing the divorce pronounced by her husband – Rizwan Ahmad on 10.10.2015, wherein he affirmed: “…in the presence of witnesses saying that I give ‘talak, talak, talak’, hence like this I divorce from you from my wife.” It was her contention, that such a divorce which abruptly, unilaterally and irrevocably terminates the ties of matrimony, purportedly under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 be declared unconstitutional. And arguments put forth from her side to declare it unconstitutional were:

  1. Talaq-e-biddat, pronounced is not valid as it is not a part of Shariat.
  2. This practice of triple talaq is violative of the fundamental rights guaranteed to citizens of India under article 14, 15 and 21 of Indian constitution.
  3. It was also submitted that practice of triple talaq was not sacrosanct to the tenets of Muslim religion as it has already been denounced internationally.

From the arguments put forward by the advocate of Shayara Bano one can see that not only he gave constitutional reasons for declaring the practice violative of fundamental rights but also he was able to give religious as well international viewpoint against this inhuman practice.

Now all the eyes were on supreme court that whether the court will follow its old traditional course or take a new route, which will come in the history of supreme court as a historic and landmark judgement – and Yes, this time supreme court changed its course and held that NO BODY OF LAW CAN CLAIM A HIGHER AUTHORITY THAN THE CONSTITUTION OF INDIAsurely a landmark judgement.

One more uniqueness of the case was the bench of judges that headed the case and the various statements given by them. There were five judges of five faiths Hinduism, Christianity, Islam, Sikhism and Zoroastrianism. Judges of five faiths heading a case where Muslim personal law was in question and verdict of declaring that practice as unconstitutional just shows how secular, impartial and beautifully extraordinary our Indian judiciary is, and Nemo est supra leges (NO ONE IS ABOVE LAW); not even religion.

If we look at the statements of various judges of the bench it clearly shows there was unity in disregarding the 1400-year-old talaq practice. Out of the five judges, three were totally in agreement to declare it unconstitutional like Justice Kurien Joseph said: “What is held bad in the Holy Quran cannot be good in Shariat, and in that sense, what is bad in theology is bad in law as well.” “There cannot be any Constitutional protection to such a practice” whereas former Chief Justice JS Khehar and Justice Abdul Nazeer deferred and said while triple talaq “may be sinful”, the court can’t interfere in personal laws, which have the status of fundamental right under the constitution. They were of the view that parliament should bring a law to end the practice.

Regarding the government’s view in the judgement, the government as well as opposition party has appreciated the verdict of the apex court and have agreed to the fact that legislature will bring a law to end the practice.

There is a great significance of this judgement for Muslim women and a great victory for them.  They have won the first and most important battle as triple talaq was a nightmare for Muslim women, and by declaring triple talaq as unconstitutional, the court has put a saddle on an unruly horse. The judgement of the Supreme Court has clothed her with dignity and strength.

KUDOS to women like Shayra Bano and others who have the courage and strength to come forward, and raise their voice against injustice, and were determined to get justice. It is truly said that there is no force more powerful than a woman’s determination to rise. For several decades she was suppressed, tortured in the hot water of patriarchal arbitrariness, but nobody knew she is like a tea bag; you can’t tell how strong she is until you put her in hot water and finally she fought back.

Now, what is to be seen is how far this fight goes? What is the next step? Is Uniform civil code the next step? All these questions remain unanswered. Nevertheless, until that time, let us just celebrate this first victory.

Talaq, Talaq, and Talaq is NO, NO, AND NO.


ABOUT THE AUTHOR

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DEEKSHA KATHAYAT

Deeksha Kathayat is currently pursuing BLS LLB (third-year) from Dr. D. Y. Patil College of Law. An enthusiast debater and avid mooter, she’s into occasions where she can express her views on various issues. She believes that we realize the importance of our voice only when we are silenced. An aspiring bureaucrat, she describes herself as Unstoppable, Unconstrained, and Zealous.

Right to Privacy – An analysis of the recent developments

The Aadhaar scheme by the Union Government has been the point of friction for quite a few days. It had been under the lens of allegations like breaching individual’s privacy as it involved the collection of biometric data. With the 12-digit Aadhaar becoming the basis of obtaining the benefits of Government programmes, subsidies, tax administration, and online financial transactions, right to privacy comes under threat.

Privacy has been defined as “a state in which one is not observed or disturbed by other people” or “the state of being free from public attention” by the Oxford dictionary. Privacy can also be defined in the realms of body and mind. The three aspects of privacy include bodily integrity, dissemination of personal information, and right to make own choices.

The debate over privacy has come to light after two cases: the first being the Satish Chandra versus M.P. Sharma case whose documents were searched and seized when a First Information Report was lodged against him, and the second being Kharak Singh versus the State of Uttar Pradesh in which the petitioner was subjected to constant surveillance by police authorities which led to infringement of his constitutionally guaranteed rights.

The Government had reverberatingly stated that “privacy” was never a fundamental right. The government said that “privacy is an elitist concept” and has no benefit for the common masses. It also asserted that privacy is not explicitly mentioned as a right in the Indian Constitution. The increasing number of petitions coerced the Supreme Court to decide on this highly contested issue. Hence a separate nine-judge constitutional bench was formed. This constitutional bench on 24th August overturned the previous decisions of the 1950s and 1960s which held that “Right to Privacy” is not a fundamental right.

Although it was clear that “Right to Privacy” was not absolute in all aspects, the court needs to establish a balance between the rights of the state and citizens on one side and rights of citizens and non-state actors on other.

Four states, West Bengal, Karnataka, Punjab, Himachal Pradesh, and one Union Territory, Puducherry, have argued in the SC that they support a constitutional right to privacy.

The apex court said that although Right to privacy is not mentioned anywhere in the Constitution but can be easily interpreted if we look through Article 21 and thus forms an integral part of this fundamental right. Privacy forms the heart and soul of Constitution as it embedded in both dignity and liberty which is Article 21. It was a historical unanimous decision though there were six judgements given.

There were 5 different judgements of 5 judges while a common judgement of four judges, including Chief Justice J S Khehar. The common verdict in the words of the court is “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

“Right to Privacy” is not absolute in the sense that it has to withstand the threshold of restrictions imposed on other fundamental rights. These aberrations must be a fair, just, and reasonable in the context of Article 21.

The ambit and the contentious areas of the right to privacy will soon be defined with the course of time. Other highly disputed areas include the various social networking sites and applications like the Facebook, WhatsApp, and other messaging services which breach Privacy by selling personal information to private companies.

The bench concluded that “Privacy” is the core of human dignity. This judgment has also wobbled the fate of Section 377 of the Indian Penal Code and the recent beef ban by the Maharashtra Government. Privacy also covers the aspect of personal intimacies, sexual orientation, marriage and food.

This mammoth decision has a galore of impacts and consequences. Now, Aadhaar enrollment would be voluntary and not mandatory, thus not depriving anyone of the welfare benefits if one opts not to enrol. The government is entrusted to advertise that Aadhaar is a voluntary scheme.

This verdict will have an impact on the collection of data by the government and even private companies. This could also lead to the formulation of a legal framework to safeguard individual data as well.


ABOUT THE AUTHOR

ashish lD

ASHISH KUMAR YADAV

Ashish is an undergraduate student at Cluster Innovation Centre, University of Delhi. The institution has a Meta College concept and focuses on an interdisciplinary approach.  He is the co-founder of two non-profit ventures, one of which deals with education and the other in enhancing scientific communication among the masses. He has done three research projects at Cluster Innovation Centre the first aimed to create a prototype of full- fledged Hindi dictionary and another on the Study of a community’s cultural tradition (Banjara community). The third project was Hafta bazaar aimed to digitalize and study the various weekly markets in Delhi. He is quite ardent in the field of economics and journalism and is intrigued by topics from digital marketing to management, which are reflected in his undergraduate studies. He was also a part of a report published on education.

 

Indian Constitution and its Contractual nature

The Indian preamble, an ideal manifestation of the objective sought to be imbibed in the Indian culture, not only in theory but in practice as well; starts with this magnanimous terminology of ‘We the people of India’; therefore, bestowing the ultimate power to the Indian citizens; so it is the Indian citizens, who under the umbrella of ‘Collective force’ have bestowed the Indian Constitution[1] with the power and not the Indian Constitution who has bestowed the power on the Citizens of India.[2]And all the powers of the Constitution, and that of the Constituent Assembly is been derived from the people of the India.[3]It is this declaration which makes preamble a sublime one as compared to others, it is draft not forced upon the unwilling hands of the bearer, in fact, it has been given to themselves by the people of the country through their ‘Constituent Assembly.’[4] Further, it was observed in the case of Union of India v. Madangopal[5]

Our Constitution as appears from the Preamble, derives its authority from the people of India, and learned counsel conceded that it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution.

Additionally, it establishes a contractual nature of the Indian Constitution; which is a result of the consent of the Indian Citizens underlying it.[6] The very concept that Indian Constitution is a Contract, needs much convincing to be believed in. The Idea of the contractual nature of the Constitution was first given by Lysander Spooner; who quotes

The Constitution has no inherent authority or obligation at all, unless as a contract between man and man.”[7]

On this principle he works out a contour, where he concocts that if a Constitution is a contract, similarly it shall be applicable to the persons who were present then when the contract was being made e.g., when the American Constitution was being framed in the 1776, this contract shall be applicable only to the citizens of America present at that time. Similarly, the Indian constitution which was drafted in 1950 is applicable to the citizens living at that time.

But the point of difference between a Contract and a Constitution comes in due to the compulsory nature of the latter as compared to the voluntary nature of the former. This is what John Locke called it as tacit consent to the citizenship.[8]As it is a pre-requisite for the formation of  the Contract, that both the parties must have given their voluntary consent to the agreement; the same is not case with the Indian Constitution, as explained by John Locke in his “two treatise of Civil Government.

Tacit Consent to the Contract

The very idea behind the concept of tacit consent to the Constitution was first evolved by John Locke, where he has styled that by taking birth in a particular country and by using its amenities we are impliedly agreeing to its suzerainty. The traces of which can be found in section 8 of the Indian Contract Act 1872; which specifically provides that a contract can be entered either by performing the condition or by receiving the consideration, therefore, our taking birth on the Indian soil and using its amenities has qualified us to be a party to this Contract we call Constitution.

The trespasser Obligation

Another theory which compels us to the obligatory nature of the Constitution is the concept of Trespasser obligation, under which the person trespassing the land of the owner is liable to follow his orders or else he shall be liable for trespassing, similarly by taking birth on the land of India, we are somewhere trespassing on the land of Indian Government, therefore are suzerainty is subject to Indian Sovereignty.

[1]  Sauvik. Chakraverti, The Essentials Frederic Bastiat, Liberty Institute, 2007, Bastiat was a great supporter of human liberty and was of the view that it was the collective force of the human society which gives the Law its force.

[2]  Keshavanada Bharti v. State of Kerala (1973) 4 SCC 225, see also Behram Khurshid v. The State of Bombay AIR 1955 SC 123

[3]  Constituent Assembly Debates, Vol. 1, 13th Dec. 1946, The resolution moved by Jawahar Lal Nehru on the the aims and object of the Indian Constitution.

[4]  A.K Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88 per MAHAJAN, J.

[5]  Union of India v. Madan Gopal, (1954) SCR 541 (655).

[6]  Lysander Spooner, No Treason: The Constitution of no authority, Free Patriot press, U.S.A, 1867, the philosopher put forward the idea; that the constitution is only enforceable on the people who were living at the time when (Spooner, 1867)the constitution was made; he was an absolute believer on the contractual nature of the contract

[7]   Id. Pg 3

[8]   John Locke, Two treatise of the Civil Government, ed. Thomas Hollis (London: A. Millar et al., 1764). John Locke said by living under the suzerainty of a particular nation, we have given them our tacit consent to be their citizenship. See also Thomas Hobbes’ ‘Social Contract’ 1651, where he regarded as a single contract whih led to the offspring of state and devolution of the power by the people in the Levithian ruler whereas, John Locke in his Social Contract of 1689 was of the view that there were two contract, first by which the people organized themselves and by the second contract they surrendered their right to the sovereign King.


ABOUT THE AUTHOR

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ASHIT KUMAR SRIVASTAVA

Ashit Kumar Srivastava (AKS) is currently working as an Assistant Professor at Amity University, Lucknow. His main area of interest is Constitution and Jurisprudence. However, he mostly inter-relates various socio-legal topics together.

A Need to Define Limits to Constitutional Change

Constitutional reform, progressively known as constitutional change[1] in recent times, is an act of the state that results in a change in the constitutional text of the nation. Undoubtedly, there is a dire need of regular changes to a constitution keeping in view the ever-dynamic nature of the law as well as society. Also, almost all the constitutions[2] across the globe realise the necessity of a carefully designed well-defined process[3] therefor.

However, the debate arises when the question concerns the limit to which such changes can be made. The Constitution of a country undoubtedly provides the basic foundations for the building of political, economic, and legal systems thereof; and changes to the constitution may have serious effects on those, sometimes a detrimental one.

There arises a proposition that apart from providing a carefully crafted process for such constitutional changes, there must be some underlying rule or principle governing the limit to such changes. And, since the limits cannot be set by statutory means,[4] there must be underlying doctrines to serve the same.

Time and again various supreme courts have observed the necessity to define limits to constitutional change and have manifested their observations by laying down doctrines.[5] Also, sometimes the doctrines have been created out of the court rooms.[6] And in both the cases, there lies a belief at the root of this that there must be a limit to the constitutional change.

Putting limits to constitutional change seems of utmost importance when we look at the case of Turkey’s Constitutional Reform recently. Last December, Turkey’s ruling Justice and Development Party (AKP) unveiled a raft of proposed constitutional changes that may consequentially change the parliamentarian form of governance into a presidential one. Although it may seem that it has chances of ensuring stability in the governance, the chance of a one-man rule also cannot be denied.

In an ideal democracy, an unfettered power to change the constitution may be a thing of unanimous acceptance; but the case is different when there’s constantly a dark power play between parties and persons. Lack of limits to constitutional change always instils a fear of tyranny of the majority.

Noted Indian judge Hidyatullah J. observed the same when deciding for a case of similar nature in the Supreme Court of India.[7] Fundamental provisions like Fundamental Rights and Personal liberty, in his words, cannot be a plaything of the majority. Lack of any limit to constitutional changes may create occasions where the basic ideologies and fundamental provisions are treated as the plaything of the majority party in the parliament.

Apart from practical theories like the abovementioned, there also exists theoretical doctrines necessitating for limits to the constitutional change. Some doctrines, exploring the nature of the constitutional amendment power, conclude the same to be a sui generis power that rests within a spectrum between the constituent power and the ordinary legislative power. Drawing on the French Doctrine distinguishing pouvoir constituant originaire and pouvoir constituent derive, a further conclusion is drawn that the amendment power is a delegated ‘secondary constituent power’, authorised by ‘the people’s primary constituent power’.[8]

There are a number of similar arguments on the need and inherency of limits to constitutional change. The foundational structuralism argument contends that there are basic features of every constitution that make up a specific constitutional identity and a hierarchy of constitutional values beyond the reach of the delegated amendment power.[9] The basic structure doctrine developed by the Indian Supreme Court holds a somewhat similar view regarding unamendability of certain provisions.

Every power must come with its own set of limits, for limitless power opens door to tyranny, dictatorship, and corruption. Be it the foundational structuralism, the constitutional essentialism, or the basic structure doctrine, there must be set well-defined limits to constitutional change so as to prevent the constitution from being a plaything of the majority.

[1] The UK parliament has expressed the view that the term ‘constitutional change’ is to be used rather than the term ‘constitutional reform’ as the latter necessitates a positive stroke in the change. Read the full text here: https://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/177/17704.htm

[2] Constitutions of various countries contain provisions as to how the constitutional changes will take place. For example, Article V of the American Constitution, Article 368 of the Indian Constitution etc.

[3] A well-defined process is of utmost importance as observed by many scholars and cited in many reports. See Constitution Committee, 8th Report (2010-2011): Fixed term parliament bills (HL Paper 69), para 160, UK

[4] Constitution being the supreme law, must lay down the limits and principles for itself. However, providing specific rules regarding the same will be practically of no use as they too are vulnerable of being amended/changed. Alternatively, extra-strict or rigid provisions regarding the limit also seems unreasonable owing to the constant factor of change in the national as well as global scenario.

[5] For example, the Indian Supreme Court has laid down the ‘Basic Structure Doctrine’ in the case of Kesavananda Bharati v. State of Kerala.

[6] The doctrine of Constitutional Essentialism by John Rawls is a burning example of such cases. Although the doctrine of Constitutional Essentialism has not been approved yet by the US Supreme Court, still the effect of the same on the American Constitutional Law cannot be denied.

[7] Sajjan Singh v. State of Rajastan, 1965 AIR 845, IN

[8] Yaniv Roznai, Chapter 4, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, Oxford University Press, 2017

[9] Ibid.


ABOUT THE AUTHOR

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ANSHUMAN SAHOO

‘Passionate!’ That’s the only word he uses to describe himself. Questioning assumptions. Challenging hypocrisies. Making the planet a better place to live in. Can be found at http://www.anshumansahoo.in.