NLUD Journal of Legal Studies - Volume 6
Full Volume
Front Matter
Ends and Means: Reflections on the Electoral Bonds Judgment
Hrishika Jain & Kaustubh Chaturvedi
Abstract
The Supreme Court's judgment in Association for Democratic Reforms v. Union of India, in invalidating the Electoral Bonds scheme and directing authorities to disclose details of bonds purchases and encashments, has firmly placed itself in the shelves of constitutional canon. Yet, that is precisely why a critical engagement with it, one that separates the ends from the means employed, is necessary. The authors critique the Court's uncritical acceptance of the conception of informational privacy advanced by the Union of India, and the unfounded use of 'essentiality' to dangerously narrow the voter's right to information. They also highlight the Court's (mis)adventures with the double proportionality framework and misapplication of the conventional proportionality assessment. At the same time, the Court made some salutary attempts to advance the law — notably, through its clarity on the presumption of constitutionality in fundamental rights cases and on the constitutionalisation of political parties — attempts which deserve mention due to the potentially canonical status of the judgment. Keywords: Electoral Bonds–Right to Privacy–Double Proportionality–Right to Information
Terror Trials: Life and Law in Delhi’s Courts by Mayur Suresh
Lisa Hajjar
Civil Implications Of PMLA: Envisaging The Financial Death Of An Accused
Anwesha Choudhury & Sarthak Sharma
Abstract
The Prevention of Money Laundering Act, 2002, serves as a critical legal framework in India's efforts to combat money laundering. The Act empowers the Enforcement Directorate to attach, retain, and confiscate 'proceeds of crime'. The scope of the PMLA extends beyond mere criminal prosecution, incorporating civil measures that include freezing of bank accounts and retention of properties. Therefore, civil implications of the statute could lead to prolonged financial deprivation of people long before their guilt is established in a court of law. Sections 5, 17, and 18 of the PMLA have been subject to constitutional scrutiny, particularly regarding the attachment of untainted properties and concerns over potential misuse of the ED's powers. Furthermore, systemic deficiencies plague the adjudication process under the PMLA. Judicial interpretations of these provisions continue to shape the application of the PMLA, balancing the need for effective law enforcement with the protection of individual rights.
Keywords: Money Laundering - Proceeds of Crime - Attachment of Property - Enforcement Directorate
The Unfulfilled Promise Of Default Bail – On The Judicial Commitment To Pre-Trial Punishment in India
Kartik Kalra
Abstract
Indian criminal procedure contemplates a system of “default bail”, requiring a pre-trial detainee's unconditional release following the completion of a specified duration in prison, provided the state's inability to file a “charge-sheet” – a document containing its investigative work – within this duration. While the legislative provisions regulating default bail are seemingly absolute, a five decade long doctrinal evolution of the law on default bail has weakened it in many aspects, making the regime largely toothless. This weakening, I propose, has occurred in three dimensions – first, the authorization of re-arrests after an accused's release; second, the prohibition on enquiring into a charge-sheet's substance to assess an investigation's completeness; and third, the concentration of institutional efforts to hinge the accused's release on the time of document filings in court, which serves to whitewash how the regime has become rigged in the state's favour. The law on default bail has evolved with a minimal conceptualization of its necessary normative underpinnings, which concern the imposition of a duration-definite investigative duty on the state and its pursuit of “systemic effectiveness” as a principle of procedure. The systemic attachment of guilt with pre-trial detainees that entrenches a notion of guilt to its recipient class is one important explanation behind the Court's negative institutional outlook towards default bail, offering insights into why the regime has been substantially weakened.
Keywords: default bail – criminal procedure – charge-sheet – remand – guilt – pre-trial detention
Neurodivergence In Legal Education
Priyam Bhattacharya
Abstract
The experience of neurodivergent students in legal education differs from that of neurotypical students. Mapping the causes of this incongruence cannot be solely attributed to their differing cognitive patterns. What becomes the larger cause of this distinction is the widespread and deep-rooted bias against non-normative ways of cognition and disability. The present inquiry aims to highlight the experiences and struggles of neurodivergent law students. It outlines how the experience of neurodivergence is negotiated with the identity of being a law student, specifically in the context of the prominent, limiting, and abled-bodied idea of an ideal law student. This negotiation often entails a tough bargain between expressing one's authentic self while also seeking acceptance. This internal scuffle often pushes the student to mask their neurodivergence in the face of social stigma, which further creates a severe deficiency in social and academic citizenship and a sense of belonging. Keywords: Neurodivergence, Legal Education, Masking, Belongingness and Accommodations
Lost In Translation: Legislative Drafting and Judicial Discretion
Renuka Sane & Madhav Goel
Abstract
This paper studies ambiguous drafting and the exercise of judicial discretion in the context of the Supreme Court decision in Vidarbha Industries Power Ltd. v. Axis Bank Ltd. The Bankruptcy Law Reforms Commission (BLRC) had clearly recommended that the judiciary should not have any discretion in accepting an insolvency petition once certain objective criteria were met. The legislation, however, provides no rationale for why it ignored the BLRC and allowed judicial discretion. The Court also does not provide tests for exercising this discretion. Since this decision, thirteen petitions under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) have been dismissed. Consequent litigation and delayed timelines will result in erosion of the value of the Corporate Debtor's assets and make financial creditors wary of extending credit. The paper underscores the need to improve the quality of drafting and tempering judicial decisions with a practical understanding of commercial realities. Keywords: Vidarbha – discretion – legislative intent – commercial and economic realities – may – shall – statutory interpretation
Marriage (In)Equality: The State Discriminated, The Court Let It Slide
Shivani Vij
Abstract
This paper argues for marriage equality of queer couples under the Indian equality code. In a recent challenge laid to the exclusionary marriage laws in India, queer couples strongly argued unequal treatment meted out to them as compared to heterosexual couples, which was devoid of any intelligible differentia or legitimate State interest that could justify the exclusion. Though the marriage laws, legislated in 1950s, may not have intended to differentiate, their impact was to exclude queer couples from the institution itself and all benefits arising from it, and this was significant. The act of discrimination sat well with all five judges of the Supreme Court, but relief was not granted. The central question became, why relief was denied under Article 32 of the Constitution and if this could be done with a positive finding of discrimination. The majority's focus on the limited power of the Court to grant relief amidst separation of powers outweighed the minority's focus on judicial review in violation of constitutional rights. This paper draws from the reasoning of the minority to make a strong case for marriage equality. Keywords: Same-sex Marriage – equality – fundamental rights – discrimination