Latest Published Articles
The Sui Generis Executive of the NCT of Delhi: An Exploration in the Backdrop of the Government of NCT of Delhi (Amendment) Act, 2023
Vaibhav Sanklecha and Renuka Joseph
Abstract
Historically, the legislative device of abrogation is a tool which facilitates the interference of the legislature into the domain of other organs of governance and their supremacy. In light of its constitutional implications, the device is one which is not adopted on a day-to-day basis. Ordinarily speaking, the rationale behind the enactment of the 'validating' legislation is to nullify the ineffectiveness apparent in the existing legislation in question, on the basis of which the judicial pronouncement was passed. The Government of NCT of Delhi (Amendment) Act, 2023, coloured as the 'validating' legislation, has the effect of dodging the judicial pronouncement striking down the notification of the Ministry of Home Affairs, through which the scope of power of the Union Legislature was expanded when compared to the existing ambit prescribed by the Constitution vis-à-vis Article 239-AA. In essence, the Supreme Court identified the defect in this notification but not in the constitutional provision. On the contrary, the Parliament, through the Act of 2023, has sought to nullify the hypothetical 'defect' in a constitutional provision. However, when the Parliament attempts to do so, it no longer remains a 'legislative device of abrogation' rather falls within the domain of constitutional amendments. This 'convenient bypass' of the amendment procedure prescribed within the Constitution is coupled with the breakdown of the triple chain of accountability. The chain of accountability remains quintessential to the functioning of a democratic structure since the rate of successfully accommodating the will of the people depends upon this multi-linked chain of accountability. Parliamentary overruling and destruction of the triple chain of accountability together reflect the intention of the Union legislature to revoke the 'sui generis' status granted to the NCT of Delhi.
Keywords: Colourable Legislation, Collective Responsibility, Federalism, Parliamentary Overruling, Triple Chain of Accountability, Validating Legislation
Illusions of Safeguard: A Critical Appraisal of Warrantless Searches under §185 Bharatiya Nagrik Suraksha Sanhita
Kavish Rajpurohit
Abstract
This paper examines whether §185 of the Bharatiya Nagrik Suraksha Sanhita (BNSS) 2023, successor to §165 of the Code of Criminal Procedure, 1973 (CrPC), provides real accountability in warrantless searches or whether its safeguards remain largely illusory. While the provision seems to balance investigative necessity with the protection of individual liberty and privacy, the two-fold safeguard distinguishing between conditions that 'shall be followed' and those applicable 'so far as may be', opens the door to circumvention. This weakness has also been reinforced by judicial interpretation, where even mandatory safeguards are treated as directory, where omissions have been excused on some general grounds of urgency or public unwillingness, and violations have been reduced to the status of mere irregularities. Courts have further prioritised evidentiary utility over procedural integrity, placing the burden on the accused to prove prejudice and thereby incentivising unlawful shortcuts. Nonetheless, the supposed right to resist unlawful searches is similarly hollow since individuals cannot meaningfully verify compliance at the time of intrusion. Compounding this is the almost total absence of sanctioning mechanisms against police misconduct, with departmental remedies being rather ineffectual, as are criminal-level sanctions and institutional remedies. The paper argues that without reforms that shift the burden of justification to the police, provide for contemporaneous disclosure of reasons, maintain the inviolability of some safeguards, and enhance independent oversight, the accountability prescribed by §185 shall remain merely a symbolic one. In effect, warrantless searches risk becoming the norm rather than the exception, undermining liberty and privacy in the name of investigative convenience.
Keywords: warrantless searches, criminal procedure, liberty perspective, accountability, procedural safeguards, judicial dilution, police misconduct
Transformative Constitutionalism Around the World: Some Notes on the Concept
Professor Mark Tushnet
Abstract
Scholarship on transformative constitutionalism has been largely centered around a single political valence and a narrow set of constitutional contexts, limiting its reach. This essay examines the concept's general features across material, cultural, anti-colonial, and reactionary dimensions arguing that transformative constitutionalism is best understood as any constitutional project that commits a polity to dismantling a “deeply unsatisfying status quo” and not as inherently left leaning. It evaluates the spectrum of judicial enforcement available to advance transformation, finding that strong-form enforcement faces serious difficulties given the polycentric complexity of transformative goals, while collaborative and weak-form judicial approaches offer more sustainable pathways. The essay further argues that anti-colonial and reactionary variants of cultural transformative constitutionalism illustrated by Bolivia, South Africa, Hungary, and India deserve greater attention, demonstrating that the idea of transformative constitutionalism can be used to analyse constitutional developments divorced from an inherent political valence.
Keywords: Transformative Constitutionalism - Collaborative Constitutionalism - Judicial Enforcement - Anti Colonial Constitutionalism - Reactionary Constitutions