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Minorities: A View from South Asia
No full textThe ‘minority question’ continues to pose a challenge to countries across the world. Legal provisions, relating to individual rights and non-discrimination, are seen to be insufficient, and special rights to minorities are seen as necessary within national constitutions. This chapter focuses on how the ‘minority question’ has shaped normative and political developments in the South Asian region, and the constitutional choices made. This is a region marked by large populations and great diversity. The post-colonial constitutions in this region have experimented with multiple responses to address their historically plural societies. These include the continuing recognition of religion-based personal laws, the use of federal and/or consociational devices to ‘manage’ multiple identities, the grant of special rights, including affirmative action, to minorities, and the grant of limited autonomy including exclusive rights over land and natural resources to certain communities. This chapter examines the politics surrounding the inclusion of minority rights within these constitutions and the choice of minority rights with a focus on India’s minority protection and affirmative action measures. The discussion also examines the politics surrounding the implementation of minority protection and the various amendments made to refine the rights available to minorities, while also noticing the power of judicial review in this region in determining the scope of these rights. The chapter concludes by examining the lessons, if any, that could be drawn from the South Asian experience
Towards a Monist Constitutional Ideology? In Re: Article 370 of the Constitution, Subordination of Jammu and Kashmir, and the Supra-Constitutional Presidential Power
No full textThis case comment shows how the fascination for a certain form of a monist constitutional order, first articulated by the opposition during the Nehru years, was institutionalised in the form of a judicial discourse, culminating in the Article 370 judgement. At the heart of this discourse lay two imaginaries: (i) a subordinated Jammu and Kashmir (J&K) and (ii) an unbounded or supra-constitutional power vested in the Indian president to deal with J&K, freed of the express conditions precedent laid down in the proviso to Clause 3 of Article 370. In this case comment, I trace the continuities between these monist claims articulated in relation to Article 370 in the early years of the republic and the justifications provided by the Supreme Court for its abrogation
Editorial
No full textThis editorial contextualises the articles in Issue 17(2), which treat matters of public discourse primarily through the lens of public law
Who Eats Last? Intra-Household Gender Inequality in Food Allocation Among Children
No full textThe practice of women eating after men is a common gender-inequitable food allocation mechanism among adults in Indian households and has been associated with poor health and nutritional outcomes for women. However, empirical evidence on whether a similar practice of girls eating after boys is prevalent among children is scarce. Using primary data from a household survey conducted in educationally backward areas of four Indian states, we provide new evidence of this practice among children. Almost 28 per cent of the sample households follow the mealtime custom of girls eating after boys. Scheduled Tribes and households with higher incomes are less likely to follow this practice. Other relevant factors include children’s relative ages by sex and an interplay between family size and children’s sex composition. While our findings may not be generalizable, they suggest an intersectionality between gender and other dimensions of inequality, namely social identity and economic class
Report of the Symposium on Street Vendors and the Law: Practices, Hierarchies, and Economic Citizenship
No full textOn 21 January 2023, the Socio-Legal Review and Centre for Civil Society jointly organised a one-day symposium on “Street Vendors and the Law: Practices, Hierarchies, and Economic Citizenship in New Delhi.”1 The symposium was an attempt to explore the reality and life of the law that regulates street vending in India. The symposium discussed not only the Street Vendors Act, 20142 but also local statutes on town planning and municipal regulations, law enforcement through the police, and the judicial system of the country. The aim of the symposium was to interrogate how these legal frameworks operate along with the informal and non-legal practices of street vendors to produce the reality of street vending in India. To this end, the symposium comprised three panels on the following themes: (I) Formal and Informal Networks, Norms, and Practices; (II) Urban Hierarchies and Spatial Contests; and (III) Street Vendors as Economic Citizens
State Life: Land, Welfare and Management of the Landless in Kerala, India
No full textThe pressing need to manage the spiralling number of landless people around the world has compelled several states to experiment with scattered land distribution programmes in combination with welfare transfers, instead of comprehensive land reform. This article examines the chasm between land demands and state responses in such contexts. Focusing on the Aralam resettlement site for the landless Adivasis in Kerala, India, it argues that management of the landless could take the form of ‘state life’ — a life envisaged by the state rather than the life the people wish to lead. Three interlinked processes are shown to shape state life in Kerala: the reduction of land to welfare, amplified welfare transfers and the mobilization of assumptions about the target population. State life enables states to extinguish simmering land struggles in the short term, but ultimately it reproduces landlessness
Asymmetric Challenges in Cybersecurity Among WTO Members : A Justification for a Veiled Trade Barrier?
No full textThere is a higher prevalence of cyberattacks amongst the least developed and the developing country members of the World Trade Organization (WTO) than its developed country members. To proffer appropriate safeguards against cyberthreats, developed country members are adopting solutions outside of the WTO with Preferential Trade Agreements that specifically make provision on cybersecurity. Normative doctrinal research methodology was used in this research to analyze applicable legislation and rules that are applicable to the WTO members in the area of cybersecurity. The study revealed that the WTO does not have adequate provisions regarding the cybersecurity challenges of its least developed and developing countries, despite their growing significance in the multilateral trade organization. The WTO must formulate comprehensive provisions on cybersecurity that specifically encourages collaboration amongst its members to ensure the free flow of international trade
Special and Differential Treatment at the World Trade Organization: Analysis and Observations
No full textA debate is underway at the WTO over developing country status. As well, various proposals have been made to reform special and differential treatment (SDT). This essay summarizes views expressed and analyzes them against the background of the history of SDT, the Generalized System of Preferences and WTO provision of technical assistance and capacity building. The argument presented is that many of the current concerns can be accommodated in existing provisions without need for the radical changes that have been proposed. The author concludes by offering observations on the path forward for the WTO and its Members
Reasonable Classification versus Equality under the Indian Constitution
No full textThis article critiques the standard of review most prominently applied in cases involving claims of violations of Article 14 of the Constitution: the reasonable classification test. We argue that this test is woefully inadequate in appreciating and protecting the wide-ranging nature of the right to equality. Through an examination of the origins of the reasonable classification test, we demonstrate the weak justifications initially advanced by the Indian judiciary to import it from dated United States (US) case law. Further, we highlight the substantial weaknesses of the test and explain how it precludes the judiciary from safeguarding the content of substantive equality that the Indian Constitution recognises. Most importantly, the article demonstrates that several judges in the last seven decades have noted the shortcomings of the reasonable classification test and have sought to add teeth to the test—sometimes even moving beyond it—in order to protect the right to equality robustly. The article threads together an alternative doctrinal narrative of Indian jurisprudence on Article 14 through these decisions, arguing that this narrative ought to replace the predominant vision of equality as seen through the narrow lens of the deferential reasonable classification test. Finally, we identify the variety of factors that have led the Indian judiciary to ask more searching questions of the state, and we outline how these factors may be incorporated into the judicial inquiry to make Indian equality jurisprudence clearer and more consistent. The article focuses especially on the need for more rigorous standards of review in cases involving identity-based or autonomy-affecting classifications, and it has a bearing on several constitutional cases pending before the Indian judiciary today