NUJS Law Review

28/02/2024

RELEASE OF SPECIAL ISSUE ON THE BASIC STRUCTURE DOCTRINE, VOLUME 16(4), 2023

We are pleased to announce the release of the Special Issue on the Basic Structure Doctrine, Volume 16(4) of the NUJS Law Review!

With this special issue, the NUJS Law Review focuses on the broad theme of the Nani Palkhivala Essay Competition, which was 'Application of Basic Structure Doctrine to Contemporary Issues', under two sub-themes on the Scope of Judicial Review, and Powers of Promulgating Ordinances. This Conclave was being held to mark the Golden Jubilee of the Kesavananda Bharati v. State of Kerala case and celebrate the legal stalwart Nani A. Palkhivala’s immense contribution to the development of the basic structure doctrine.

The NUJS Law Review had the honour of collaborating with a brilliant set of authors who, in this issue, have contributed novel argumentation and detailed research on the said doctrine. The articles in this edition are the winning entries of the Competition, evaluated by a panel comprising notable legal stalwarts such as Justice (Retd.) M. R. Shah, Professor Upendra Baxi, Professor Rohit De, and Jhuma Sen, to name a few.

Moreover, we are delighted that Professor Upendra Baxi kindly agreed to author the Foreword for this Special Issue.

Following are the articles and notes published in the Special Issue:

1. Foreword by Professor Upendra Baxi (Emeritus Professor of Law, University of Warwick)

2. Editorial Note: The Board of Editors

3. Article: Harmonising Constitutional Ideals: A Modern Reassessment of the Basic Structure Doctrine by Kartikay Agarwal & Harmanjot Kaur (Kartikay is a 5th-year student at RMLNLU, Lucknow, and Harmanjot is a 5th-year student at Nirma University, Ahmedabad)

4. Article: Gopalan, Golaknath, & Raj Narain - Conundrum of Judicial Review vis-a-vis the Application of Basic Structure Doctrine to Ordinary Laws by Prabhu Gupta (3rd-year student at the HNLU, Raipur)

5. Article: Ordinances and the Basic Structure Review: To Test or Not to Test? by Krishangee Parikh & Krishna Ravishankar (3rd-year students from NLU, Jodhpur)

6. Article: The Mehndi of Judicial Review in Same-Sex Marriages: Infusing the Hues of Basic Structure on the Judiciary’s Palms by Pratham Malhotra & Pravertna Sulakshya (4th-year students from RGNUL, Punjab)

7. Article: Beyond Administrative Law Review: Assessing Ordinance Promulgation through the Lens of the Basic Structure Doctrine by Om Agarwal (4th-year student from RGNUL, Punjab).

8. Article: Application of the Basic Structure Doctrine to the Powers of Promulgating Ordinances by Saumya Ranjan Dixit (3rd-year student from NLU, Odisha).

We hope you enjoy reading these articles and welcome any feedback that you may have for us.

The articles can be accessed here: https://nujslawreview.org/articles-archives/

The complete open access archive of the NUJS Law Review with the latest issues

15/02/2024

We are delighted to share that Professor Upendra Baxi, has authored the Foreword to the Special Issue on the Basic Structure Doctrine, Volume 16(4) of the NUJS Law Review!

In the Foreword, Professor Upendra Baxi focuses primarily on the general criticisms of the basic structure doctrine. He then delves into a brief counter to the above criticisms. Thereafter, Professor Baxi delves into the question of differentiation between the phrases ‘basic structure’ and ‘essential features’. Lastly, he provides two aspects of basic structure: forensic freedoms (free space of argumentation in an open court—the independence of the Bar), and second, the independence of the judiciary (executive-free spaces for judicial interpretation of the interpenetrating text and context). Professor Baxi concludes by stating that if the aforementioned two aspects are taken away, it would be synonymous with taking away the idea of the Constitution altogether, responsible sovereignty, and the very idea of legitimate authority.

We are extremely grateful for his words of appreciation and contribution to this Special Issue on the Basic Structure Doctrine!

The Foreword can be accessed here:

Foreword Foreword Professor Upendra Baxi* Volume 16 Issue 4 (2023) In this Foreword for the Special Issue on the Basic Structure Doctrine, Professor Upendra Baxi focuses primarily on the general criticisms of the said doctrine. He then delves into a brief counter to the above criticisms. Thereafter,...

14/02/2024

We are pleased to share the sixth paper for the Special Issue on the Basic Structure Doctrine, Volume 16(4) of the NUJS Law Review!

HARMONISING CONSTITUTIONAL IDEALS: A MODERN REASSESSMENT OF THE BASIC STRUCTURE DOCTRINE by Kartikay Agarwal & Harmanjot Kaur

The authors analyse the basic structure doctrine in the present-day paradigm years after its genesis in the Kesavananda Bharati case. They argue that the doctrine’s scope should also be increased to cover the legislative powers of the Parliament while testing the precedential value of Kesavananada Bharati. They also propose that judicial review becomes a crucial element in the context in which the authors establish their stance. However, they warn and take a critical stance against unwarranted activism by the judiciary in the name of judicial review. Finally, they identify the overlaps between constitutional morality and the basic structure doctrine. This is tied together in the larger scheme of separation of powers and judicial review.

The paper can be accessed here:

Harmonising Constitutional Ideals: A Modern Reassessment of the Basic Structure Doctrine Harmonising Constitutional Ideals: A Modern Reassessment of the Basic Structure Doctrine Kartikay Agarwal & Harmanjot Kaur* Volume 16 Issue 4 (2023) The basic structure doctrine first theorised in the case of Ke...

14/02/2024

We are pleased to share the fifth paper for the Special Issue on the Basic Structure Doctrine, Volume 16(4) of the NUJS Law Review!

GOPALAN, GOLAKNATH, & RAJ NARAIN – CONUNDRUM OF JUDICIAL REVIEW VIS-A-VIS THE APPLICATION OF BASIC STRUCTURE DOCTRINE TO ORDINARY LAWS by Prabhu Gupta

The author traces the constitutional development of the basic structure doctrine and explains its strong links to Indian polity and jurisprudence. Through this extensive analysis, the author has analysed several key shortcomings that hold back the doctrine from maximising its intended purpose. The author particularly discusses the power of judicial review and its importance vis-à-vis controlling the actions of the Parliament and Executive within the bounds of the Constitution. In this regard, the author flags the concern regarding the expansion of the scope of judicial review and proposes models to limit such instances.

The paper can be accessed here:

Gopalan, Golaknath, & Raj Narain – Conundrum of Judicial Review vis-a-vis the Application of Basic Structure Doctrine to Ordinary Laws Gopalan, Golaknath, & Raj Narain – Conundrum of Judicial Review vis-a-vis the Application of Basic Structure Doctrine to Ordinary Laws Prabhu Gupta* Volume 16 Is...

14/02/2024

We are delighted to share the fourth paper for the Special Issue on the Basic Structure Doctrine, Volume 16(4) of the NUJS Law Review!

THE MEHNDI OF JUDICIAL REVIEW IN SAME-SEX MARRIAGES: INFUSING THE HUES OF BASIC STRUCTURE ON THE JUDICIARY’S PALMS by Pratham Malhotra & Pravertna Sulakshya

The paper grapples with the judicial dilemma thrown up in the landmark Supriyo v. Union of India case on the question of the applicability of the doctrine of basic structure to the exercise of judicial review by the Supreme Court of India. The authors discuss the ever-expanding reach of the basic structure doctrine and the possibility of its violation by the very constitutional courts charged with protecting it. It substantiates this by describing instances of judicial overreach, and proposes the basic structure doctrine as the solution. Thereafter, in the context of the marriage equality case, the authors propose that a combination of the basic structure doctrine with the practice of dialogic constitutionalism bears the potential to attain incremental justice without jeopardising the Separation of Powers.

The paper can be accessed here:

The Mehndi of Judicial Review in Same-Sex Marriages: Infusing the Hues of Basic Structure on the Judiciary’s Palms The Mehndi of Judicial Review in Same-Sex Marriages: Infusing the Hues of Basic Structure on the Judiciary’s Palms Pratham Malhotra & Pravertna Sulakshya* Volume 16 Issue 4 (2023) T...

13/02/2024

We are delighted to share the third paper for the Special Issue on the Basic Structure Doctrine, Volume 16(4) of the NUJS Law Review!

ORDINANCES AND THE BASIC STRUCTURE REVIEW: TO TEST OR NOT TO TEST? Krishangee Parikh & Krishna Ravishankar

In this paper, the authors evolve a test that is basic structure compliant for application to ordinances the promulgation of which involves significant basic structure values. Once the authors have filled the gaps in the present judicial review mechanisms, they propose the application of this mechanism to the Delhi Services Ordinance case to act as a guiding force in all future decisions and clarify the review mechanism once and for all.

The article can be accessed here:

Ordinances and the Basic Structure Review: To Test or Not to Test? Ordinances and the Basic Structure Review: To Test or Not to Test? Krishangee Parikh & Krishna Ravishankar* Volume 16 Issue 4 (2023) Promulgation of ordinances and the procedure adopted by the Executive have often been a topic of dis...

13/02/2024

We are please to share the second paper for the Special Issue on the Basic Structure Doctrine, Volume 16(4) of the NUJS Law Review!

BEYOND ADMINISTRATIVE LAW REVIEW: ASSESSING ORDINANCE PROMULGATION THROUGH THE LENS OF THE BASIC STRUCTURE DOCTRINE by Om Agarwal

The author explores the intricacies regarding the justiciability of the promulgation of ordinances in India. This analysis is fundamentally carried out by weighing the same against the basic structure doctrine. Identifying the basic structure through an exhaustive analysis of case law both in India and the United Kingdom, the author succinctly locates executive action to appropriately balance the scale of separation of powers. Finally, the author proposes a two-fold model for the motive examination of ordinances to review the condition precedent of an ‘immediate need’ of the ordinance.

The article can be accessed here:

Beyond Administrative Law Review: Assessing Ordinance Promulgation through the Lens of the Basic Structure Doctrine Beyond Administrative Law Review: Assessing Ordinance Promulgation through the Lens of the Basic Structure Doctrine Om Agarwal* Volume 16 Issue 4 (2023) The limited decisions and comme...

13/02/2024

We are delighted to share the first paper for the Special Issue on the Basic Structure Doctrine, Volume 16(4) of the NUJS Law Review!

APPLICATION OF THE BASIC STRUCTURE DOCTRINE TO THE POWERS OF PROMULGATING ORDINANCES by Saumya Ranjan Dixit

In this paper, the author proposes the application of the basic structure doctrine to the promulgation of ordinances. Identifying the inadequacy of the present standards of judicial review applied to the exercise of the powers of promulgation, the author proposes a new model of judicial review. The author identifies the constitutional basis for the application of the basic structure test to these powers of promulgation and discusses the result that is achievable from the same. Therefore, the author proposes moving away from the intent-based test to a ‘hard review’ that is more effective in striking down offending State actions.

The article can be accessed here:

Application of the Basic Structure Doctrine to the Powers of Promulgating Ordinances Application of the Basic Structure Doctrine to the Powers of Promulgating Ordinances Saumya Ranjan Dixit* Volume 16 Issue 4 (2023) Articles 123 and 213 of the Indian Constitution, 1950 (‘the Constitution’) grant...

13/02/2024

RELEASE OF NUJS CITATION STANDARD & STYLESHEET - SECOND EDITION

We are proud to announce the release of the Second Edition of the NUJS Citation Standard & Stylesheet formulated by the NUJS Law Review!

The first edition of the NUJS Citation Standard & Stylesheet was formulated by the NUJS Law Review in 2016. It was devised with the primary goal of lending simplicity, uniformity and consistency to the referred sources and the formatting style employed for the papers published by the Journal. Equally significant has been the Journal’s goal of providing a uniform citation standard that accounts for India’s vibrant legal traditions, and the varied and unique authorities relied upon within the domestic legal discourse

It was noted by the then Board of Editors that the usage of certain international standards for Indian sources and international sources tended to be cumbersome in their application. To date, very few citation standards have made actual attempts to provide a uniform standard to cite sources while particularly addressing the needs of the Indian legal framework. The Second Edition intends to further these efforts in providing an exhaustive guide for academicians and scholars for referencing sources, both domestic and international. It revises various past practices of referencing under the first edition and also adds thirty-seven new sources.

These new sources include methods for citing online journal articles, podcasts, social media posts, dissertations and theses, amongst others. Additionally, efforts have been made to include standards for referencing to various international sources such as documents pertaining to UNHRC, Secretary General, as well as decisions of the International Criminal Court, the African Court on Human and People’s Rights, and ICSID tribunals, and arbitral rules, to name a few.

In preparing the Second Edition, feedback was collected from various academicians, legal scholars, and contributors. The efforts to formulate the Second Edition have been spearheaded by the Board of Editors and the Members of the NUJS Law Review. However, we could not have arrived at this juncture without the efforts and contributions made by the past Editorial Boards over the years towards the publication of this revised edition.

We hope that the revised edition brings further simplicity, consistency and clarity, and contributes to the ease and convenience of both the readers and the authors. Additionally, we hope that it remains true to its original purpose of providing an India-centric citation standard and fills the current void in Indian legal scholarship. We also call upon other Indian journals and academicians to adopt this second edition.

The Second Edition is accessible on our website here: http://nujslawreview.org/citation-standard/

The official citation standard of the NUJS Law Review

10/02/2024

RELEASE OF SPECIAL ISSUE ON DISABILITY LAW, VOLUME 16(3), 2023

We are pleased to announce the release of the Special Issue on Disability Law, Issue 16(3) of the NUJS Law Review on our website!

With this special issue, the NUJS Law Review focuses on disability law jurisprudence, policies, and structures and wishes to contribute to and further bolster the voices in this space. We are happy to share that the Special Issue contains articles authored by persons with disabilities, scholars, practising professionals, and law students.

Moreover, we are delighted that Dr. Justice D. Y. Chandrachud, Chief Justice of India, kindly agreed to author the Foreword for this Special Issue. We are extremely grateful for his words of appreciation for the articles therein and for the work done by NUJS Law Review.

Following are the articles and notes published in the Special Issue:

1. Foreword by Dr. Justice D. Y. Chandrachud (Chief Justice of India, Supreme Court of India)

2. Editorial Note: Reform That You May Preserve: The Need to Institutionalise Pwd Representation in Indian Academia by Tanishk Goyal & Kaira Pinheiro (Law Clerk-cum-Research Associate at the Supreme Court of India, and Associate at Shardul Amarchand Mangaldas & Co., respectively)

3. Article: ‘Undue Burden’ Under the Rights of Persons with Disabilities Act, 2016: In Search of a Definitive Legal Standard by Rahul Bajaj, Ishika Garg & Ahsnat Mokarim (Rahul Bajaj is co-founder of Mission Accessibility, and Senior Associate Fellow (Disability Rights) at the Vidhi Centre for Legal Policy. Ishika Garg and Ahsnat Mokarim are 4th-year law students at NALSAR University of Law, Hyderabad, and MNLU, Mumbai, respectively)

4. Article: Critical Pedagogy of the Disabled in Legal Academy and Possibility of Emancipatory Script of Disability Movements: A Critical Note by Dr. VK Tiwari, Arjun Ghosh & Sushanth Gajula (Dr. Vijay Kishor Tiwari is an Assistant Professor (Law) at NUJS, Kolkata. Arjun Ghosh and Sushant Gajula are 5th-year students at the NUJS, Kolkata)

5. Article: How Accommodating is Reasonable Accommodation: Analysing India’s Rights of Persons with Disabilities Act, 2016 by Adya Jha & Jasel Mundhra (LL.M. candidate at Harvard Law School and Associate at Talwar Thakore & Associates, respectively)

6. Article: Education and Leaving No One Behind: A Critical Analysis of Law and Policy for Children with Disabilities in India by Kriti Sharma & Soumya Vinayan (Assistant Professors at Jindal Global Law School, Sonipat, and Council for Social Development, Hyderabad, respectively)

7. Article: The Idea of Insanity: When Equality Leads to Inequality by Shreya Mittal & Himanshu Mishra (HK. Mishra) (second-year law students at NLIU, Bhopal)

We hope you enjoy reading the articles and welcome any feedback that you may have for us.

The articles can be accessed on:

The complete open access archive of the NUJS Law Review with the latest issues

10/02/2024

We are delighted to share that the Hon'ble Chief Justice of India, Dr. Justice D. Y. Chandrachud, has drafted the Foreword to the Special Issue on Disability Law, Volume 16(3) of the NUJS Law Review!

In the Foreword, Justice Chandrachud highlights the challenges faced by persons with disabilities, and how the Rights of Persons with Disabilities Act, 2016, provides a comprehensive framework to deal with such challenges. Justice Chandrachud, thereafter, highlights the progress in academic discussion made by this Special Issue and the diverse range of topics explored by the articles therein. He concludes by advocating for a legal system that actively fosters an environment where diverse perspectives are valued and celebrated.

We are extremely grateful for his words of appreciation and for his contribution to this Special Issue on Disability Law!

The Foreword can be accessed here:

25/01/2024

We are delighted to share the fifth paper for the Special Issue on Disability Law, Volume 16(3) of the NUJS Law Review!

CRITICAL PEDAGOGY OF THE DISABLED IN LEGAL ACADEMY AND POSSIBILITY OF EMANCIPATORY SCRIPT OF DISABILITY MOVEMENTS: A CRITICAL NOTE by Dr. VK Tiwari, Arjun Ghosh & Sushant Gajula

The potential for a transformative pedagogy focused on disabled individuals within law schools, challenged by the dominance of positivism in epistemic imagination, is explored in this legal journal paper. This paper inquires into the framework and trajectory of such pedagogy, unveiling its scope by critiquing the limitations of disability studies and movements entangled in the language of neo-liberal market and state. The paper illuminates the intrinsic exclusionary nature ingrained in legal pedagogy, law schools, and related discourses, emphasizing how the aggressive imposition of the positivist framework sidelines the experiences of disabled individuals. The authors argue for a departure from the confines of positivist jurisprudence to critically assess liberal discussions on accessibility and reasonable accommodation. Through a comparative analysis involving figures like Vikas Kumar, GN Sai Baba, and Stan Swamy and their engagements with the judicial system, the paper exposes the deficiencies of liberal legalism and the restricted perspectives of disability movements limited to middle-class concerns.

The article can be accessed here:

Critical Pedagogy of the Disabled in Legal Academy and Possibility of Emancipatory Script of Disability Movements: A Critical Note Critical Pedagogy of the Disabled in Legal Academy and Possibility of Emancipatory Script of Disability Movements: A Critical Note Dr. Vijay Kishor Tiwari, Arjun Ghosh &...