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The coloniality of modernity

It was around the 1430s that the term ‘modern’ was used in southern Europe’s Romance languages to show the past in poor light and congratulate the present. As for English, Scottish poet William Dunbar is credited for using it first in his poems wherein the word was used to show the present in positive light while remaining tight-lipped about the past.

J. Sai Deepak

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 In 2002, an interesting paper titled “Early Modernity: The History of a Word” was published in The New Centennial Review of the Michigan State University Press. The paper was authored by Prof. Patricia Seed, then a historian at Rice University, who specializes in early modern and colonial European eras. In the paper, she traced the origins of the word “modern” to the sixth century C.E. (then A.D.) when it was first used in northern Italy. This was when the Roman Empire still existed but northern Italy was conquered and ruled by Germanic Ostrogoths. According to Prof. Seed, the word modern made its debut in the context of architecture when the Ostrogothic ruler of northern Italy encouraged wealthy Roman families to undertake reconstruction of public buildings at their private expense. The outcome was that the new buildings had a different architectural style which distinguished them from those built under Roman imperial rule. Praising the contribution of a particular family for its reconstruction of the Theater of Pompey, the scribe of the Ostrogothic ruler called the family “a careful imitator of antiquity and the noblest founder of modern works” (translation). In this context, according to Prof. Seed, the word modern simply meant “different” without any value being imputed to it, neither positive nor negative.

Subsequently, for a brief period, the word doubled up as a synonym for “new”, thereby bringing in the element of time. In other words, the word modern was not only a reference to the time that something belonged to, it was equally, and perhaps more importantly, a reference to the period it did not belong to. Around the early fourteenth century, it was significantly used in Dante’s Divine Comedy wherein it acted as a synonym for contemporary. Importantly, it was used to compare the present with the past, with the present faring poorly compared to the past. Simply put, the use of modern was a coded criticism of the present.

It was only almost a century later, around the 1430s, that modern was used in southern Europe’s Romance languages to show the past in poor light and congratulate the present. As for English, Scottish Poet William Dunbar is credited for using it first in his Poems wherein the word was used to show the present in positive light while remaining tight-lipped about the past.

The adversarial pitting of the past and the present with the balance tilting in favour of the latter occurred in English in the sixteenth century when modern referred to “someone who takes part in the tastes and cares of his age, and is opposed to all conservatism”. While Prof. Seed’s paper captured the antagonism introduced between the past and the self-congratulatory present by the use of modern, she did not touch upon the relationship between European colonialism, the introduction of coloniality and the code embedded in the word “modern”. To understand this aspect of modernity and its colonial undertones, one has to refer to the literature on decoloniality wherein scholars such as Catherine E. Walsh and Walter D. Mignolo have captured the compound concept of modernity/coloniality, its use by colonizing powers on colonized societies, and their continuing effects on postcolonial societies and the rest of the world.

The literature on decoloniality itself declares that decoloniality was born in response to this all-pervasive Western-normative notion called “modernity” whose hegemonic use by colonizing powers as well as colonialized native elites in postcolonial societies has systematically isolated and ostracized indigenous traditions and knowledge systems in the very societies of their birth. In fact, modern has been used to shame the native into abandoning her traditions and push her into adopting the colonizer’s worldview. So much so, that the word “traditional” is hurled by colonialized natives themselves at native/indigenous worldviews as a pejorative to indicate parochiality and rigidity. This is precisely why decoloniality is indigeneity’s response to coloniality, to take back its identity and to declare its continued existence and validity in the face of an ocean of “modernity”.

The effect of modernity is that native onto-epistemological systems have been “otherized”; they are “alternatives” to the “modern mainstream” and must prove themselves on the anvils of the latter, which they will never succeed at because the coloniality/modernity matrix is designed to exclude indigenous perspectives. Despite its outward proclamations of open-mindedness, dialogue and diversity, the colonial DNA of modernity actively resists and ousts indigeneity. It refuses to accord indigeneity the respect of an equal and uses time as the weapon to question the very relevance of the indigenous point of view. Clearly, modernity effectively represents the weaponization of time by the colonizer who negates and denies the histories and the lived experience of entire civilizations, such as Bharat’s, from the moment of his arrival.

This is what makes decoloniality an active framework, tool, way of life and perspective of resistance and “re-existence”, as Walsh and Mignolo call it. It takes its own contextual shape based on local experiences of hitherto colonized societies which are still dealing with the transgenerational after-effects of colonization through the pervasive presence of coloniality at every turn in every institution.

In the next few pieces, the author shall attempt to unpack these thoughts in greater detail with examples.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court and the High Court of Delhi.

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Legally Speaking

Why Kulbhusan Jadhav refuses to file review petition

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Kulbhushan Jadhav

Formal conferences on the benefits of the case were held from 18 to 21 February 2019. In its Judgement of 17 July 2019, the court originally illustrated the foundation of the question, prior to presuming that it had locale to engage India’s cases dependent on supposed infringement of the Vienna Convention.

The Kulbhushan Jadhav case is one of the questionable case having India and Pakistan as gatherings in the International Court of Justice (ICJ). The Indian side kept up that Jadhav was captured from Iran where he had business interests in the wake of resigning from Navy. India tested Pakistan’s choice in the International Court of Justice.

THE CASE

On 8 May 2017, India documented an Application founding continuing against Pakistan in regard of a question concerning affirmed infringement of the Vienna Convention on Consular Relations of 24 April 1963 “in the matter of the detainment and preliminary of an Indian public, Mr. Kulbhushan Sudhir Jadhav”, who had been condemned to death by a military court in Pakistan in April 2017. India guaranteed that Pakistan had neglected to advise it, immediately, of the capture and confinement of its public. It further battled that Mr. Jadhav had not been educated regarding his privileges under Article 36 of the Vienna Convention on Consular Relations, and that India’s consular officials had been denied admittance to Mr. Jadhav while he was in guardianship, detainment and jail, and had been not able to banter and compare with him, or mastermind his legitimate portrayal. As reason for the Court’s ward, India alluded in its Application to Article 36, section 1, of the Statute of the Court and Article I of the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes.

Around the same time, India additionally recorded a Request for the sign of temporary measures, mentioning the Court to guide Pakistan to “take all estimates important to guarantee that Mr. Kulbhushan Sudhir Jadhav isn’t executed” and to “guarantee that no move is made that may bias the privileges of the Republic of India or Mr. Kulbhushan Sudhir Jadhav regarding any choice the Court may deliver on the benefits of the case”.

By an Order dated 18 May 2017, the Court guided Pakistan to “take all measures available to its” to guarantee that Mr. Jadhav would not be executed forthcoming a ultimate choice for the situation, and to illuminate the Court regarding all the measures taken in usage of that Order. It additionally concluded that, until the Court had given its ultimate choice, it would remain seised of the issues which framed the topic of the Order.

Formal conferences on the benefits of the case were held from 18 to 21 February 2019. In its Judgment of 17 July 2019, the Court originally illustrated the foundation of the question, prior to presuming that it had locale to engage India’s cases dependent on supposed infringement of the Vienna Convention. The Court next tended to the three issues with acceptability raised by Pakistan, which depended on India’s supposed maltreatment of cycle, maltreatment of rights and unlawful lead. The Court reasoned that India’s Application was acceptable.

Going to the benefits of the case, the Court inspected thusly every one of Pakistan’s three disputes concerning the pertinence of the Vienna Convention. Having discovered that none of the contentions raised by Pakistan could be maintained, the Court reasoned that the Vienna Convention was appropriate for the situation, “paying little heed to the claims that Mr. Jadhav was occupied with reconnaissance exercises”.

Next, the Court analysed India’s case that Pakistan had acted disregarding its commitments under Article 36 of the Vienna Convention, by neglecting to illuminate India, immediately, of Mr. Jadhav’s detainment. The Court saw that Pakistan didn’t challenge India’s statement that Mr. Jadhav had not been educated regarding his privileges under Article 36, passage 1 (b), of the Convention, and subsequently inferred that Pakistan had penetrated its commitment under that arrangement.

As respects Pakistan’s supposed break of its commitment to educate India, immediately, of the capture and confinement of Mr. Jadhav, as accommodated in Article 36, section 1 (b), of the Vienna Convention, the Court found that since Pakistan had neglected to illuminate Mr. Jadhav of his privileges, it was under a commitment to advise India’s consular post of his capture and detainment, that commitment likewise being inferred by the privileges of consular officials, under Article 36, passage 1 (c) of the Convention, to visit the public, “to chat and relate with him and to mastermind his legitimate portrayal”. The Court at that point brought up that Pakistan had told India of Mr. Jadhav’s capture and confinement on 25 March 2016, somewhere in the range of three weeks after his capture; assessing the specific conditions of the case, the Court thought about that Pakistan had in this way penetrated its commitment to educate the consular post “immediately”, as needed by Article 36, passage 1 (b), of the Vienna Convention.

The Court at that point went to India’s third case concerning Pakistan’s supposed inability to permit Indian consular officials to speak with Mr. Jadhav, reviewing in such manner that “Article 36, passage 1, makes singular rights, which, by ideals of Article I of the Optional Protocol, might be conjured in this Court by the public State of the confined individual”. It being undisputed that Pakistan had not allowed any Indian consular official admittance to Mr. Jadhav, the Court was of the view that India’s supposed inability to co work in the examination cycle in Pakistan didn’t assuage Pakistan of its commitment to concede consular access, and didn’t legitimize Pakistan’s disavowal of admittance to Mr. Jadhav by consular officials of India. Further, Mr. Jadhav’s decision to be spoken to by a protecting official qualified for legitimate portrayal didn’t get rid of the consular officials’ entitlement to orchestrate his lawful portrayal. The Court thusly reasoned that Pakistan had penetrated the commitments occupant on it under Article 36, passage 1 (a) and (c), of the Vienna Convention, by denying India’s consular officials admittance to Mr. Jadhav, as opposed to their entitlement to visit him, chat and relate with him, and mastermind his lawful portrayal.

As to India’s dispute that it was qualified for restitutio in integrum, its solicitation for the Court to cancel the choice of the military court and limit Pakistan from offering impact to the sentence or conviction, and its further solicitation for the Court to guide Pakistan to find a way to dissolve the choice of the military court, discharge Mr. Jadhav and encourage his protected entry to India, the Court found that the entries made by India couldn’t be maintained. The Court additionally found, nonetheless, that Pakistan was under a commitment to give, by methods for its own picking, compelling survey and reexamination of the conviction and sentence of Mr. Jadhav, in order to guarantee that full weight was given with the impact of the infringement of the rights set out in Article 36 of the Vienna Convention.

MOST RECENT REPORTS

According to Pakistan media reports, Pakistan government has offered second consular admittance to Jadhav, who was condemned to death by a Pakistani military court on charges of “reconnaissance and psychological oppression” in April 2017.

Jadhav, nonetheless, will keep on after up on his benevolence request forthcoming with the President. His choice to defer the rights for a survey request places India in a predicament.

India had contended that Jadhav had been denied a reasonable preliminary by Pakistan. Harish Salve, India’s legitimate advice for the situation at the International Court of Justice, had brought up that the military preliminary after which Jadhav was condemned to death was a hoax.

Recently, at a talk coordinated by the Akhil Bhartiya Adhivakta Parishad, Salve had stated, “It has become an enormous self image issue for Pakistan. We were trusting they would let him (Jadhav) go. They haven’t. We have composed four-five letters. They simply continue denying.” “We have now been in a tussle with Pakistan attempting to get them to set up a hardware (for sufficient audit and reevaluation)”. (Cited as Salve has said)

The decision of the ICJ—a success for Jadhav—had held that Pakistan needed to “give, by the methods for its own picking, powerful audit and reexamination of the conviction and sentence’’ of Jadhav, in order to guarantee that full weight is given with the impact of the infringement of the rights set out in Article 36 of the Vienna Convention. The court had likewise guided Pakistan to give consular admittance to India.

Pakistan had denied India the option to approach Jadhav in confinement just as the option to mastermind his legitimate portrayal. As Pakistan didn’t furnish Jadhav with lawful portrayal, even the admission—which Pakistan had held up—was not viewed as substantial.

Pakistan had contended that the law gave plan of action to Jadhav to bid against his decision. Notwithstanding, the ICJ’s structure showed that Pakistan needed to “give successful survey and reexamination’’ of the sentence. In May 2020, Pakistan instituted the International Court of Justice Review and Reconsideration Ordinance.

The law fixed a period of 60 days for an appeal to be recorded by Jadhav, his family or the Indian high commission in Islamabad. Jadhav, who was welcomed on June 17 to record a request for survey, can’t. He was likewise offered help for legitimate portrayal, another offer Jadhav decided to can’t.

His refusal to record an audit appeal agrees with the story that Pakistan has decided to assemble. Jadhav, Pakistan had asserted in its contentions in court, had postponed outside portrayal. However, his choice to defer the survey request, successfully wasting the additions of a hard-battled triumph at the ICJ, just as Pakistan’s choice to call an uncommon public interview to declare this choice, simply days before the time passes, bring up major issues. All things being equal, as the consular admittance to Jadhav, an unmistakable mandate by the ICJ, was not smooth. India at last acknowledged the solicitation to consular access, notwithstanding reservations to how it was given, in September.

Indeed, even Sartaj Aziz, Sharif’s international strategy counselor, was on record saying the “proof” against Jadhav were “simple proclamations”. Between mid-2016 and mid-2017, the Indian government chose to be innovative and moved toward the ICJ in The Hague and discovered it had a solid lawful argument against Pakistan on consular relations under Article 36 of the Vienna Convention.

In mid-2017 as well, Pakistan had moved toward India for “help” in its test on Jadhav, saying the charges of psychological oppression against him included examinations against National Security Adviser Ajit Doval and afterward heads of Intelligence Bureau and the Research and Analysis Wing.

After Pakistan had circulated another “admission video” by Jadhav, at that point outside undertakings serve Sushma Swaraj told parliament in April 2017: “They (Pakistan) connected giving consular admittance to our acknowledgment of their position… We called attention to that consular admittance to Shri Jadhav would be a basic essential to confirm current realities and comprehend the conditions of his quality in Pakistan.”

For Pakistan, Jadhav was viewed as an incredible catch. After an assault on a military camp in Uri in September 2016 and ventured up penetration in Jammu and Kashmir, Jadhav was something Pakistan could use to pick up identicalness against India. It felt the Baluchistan saying could be focused on with conviction that India was supporting psychological oppression in Pakistan, leaving India no ethical space. Never one to avoid hazards, Pakistan added to this by articulating a capital punishment on Jadhav in April 2017.

As Swaraj stated: “To make matters considerably more ridiculous, three hours after capital punishment was reported, the Indian High Commission got an official correspondence from the Foreign Ministry of Pakistan emphasizing the Pakistani proposition for contingent consular access. That discloses to us a great deal about the ridiculous idea of the asserted proceedings…” It turned out to be clear then that paying little heed to the conditions of Jadhav’s capture, Pakistan’s sole interest was to tar India on the insurrection in Baluchistan . Pakistan was shocked at the ICJ case, since it was a reasonable takeoff from how it figured India would act.

For India, this case was exceptional from numerous points of view. Since the time at that point Prime Minister Jawaharlal Nehru took the Kashmir record to the UN Security Council in 1948, India has diligently avoided “internationalization” of reciprocal issues, especially with Pakistan. That it was India which took the Jadhav case to ICJ had a few ramifications.

India was sure it had a strong body of evidence against Pakistan. From the beginning, it has restricted its reaction to requesting consular admittance to Jadhav, which has been denied multiple times by Pakistan. For this, India used a little escape clause left over in the Vienna Convention on consular issues, one of only a handful few regions where the two India and Pakistan recognize ward by the ICJ.

Indeed, the Indian case has been a decidedly ready and determinedly contended one on a basic solicitation – of admittance to Jadhav. Second, India needed to verify that this case would not give Pakistan an opening to utilize the ICJ course on different issues like Kashmir or Indus water sharing.

This bet required solid political support. Executive Narendra Modi, who doesn’t avoid taking unusual ways, was firmly behind Swaraj and afterward unfamiliar secretary and current unfamiliar clergyman S Jaishankar. It might have conflicted with India if ICJ had acknowledged Pakistan’s contention that the 2008 reciprocal understanding would win. Indeed, the July 17 decision settled one significant point always – that the Vienna Convention bests the reciprocal agreement.

Julia Sequined, one of the ICJ judges, in her announcement, stated: “Apparently – directly from the capture of Mr. Jadhav and without hanging tight for his preliminary – Pakistan confirmed that he was a government agent who under Pakistani law was not qualified for consular access and, comparably, that India having “meddled in the interior issues of Pakistan – had likewise relinquished its entitlement to consular access, under Article 36 of the Vienna Convention”.

What happens now? Despite the turn given to the decision by Pakistan’s advertising division, it needed to declare that Indian authorities would gain admittance to Jadhav. India will need that admittance to be free, that is, without the presence of any Pakistani authorities in the room. New Delhi wants to get a clearer image of how Jadhav was gotten.

Second, the ICJ decision has made the whole “preliminary” harmful and universally inadmissible. Yet, no Pakistan Army boss can endorse Jadhav’s delivery.

India will push for a non-military personnel and open preliminary, where the story may be not the same as the current one scripted by the ISI, Pakistan’s government operative office.

Pakistan would need to keep away from that as well. Jadhav is presently a hot potato for the Imran Khan government. They can’t execute him and clutching him implies Indians will trample any procedure. Be that as it may, they will at present need to trade him for an official exchange with India or some other type of commitment. India needs Jadhav’s profit yet for various terms.

Jadhav may need to spend a lot more years in a Pakistani prison or, more terrible, be under the danger of being assaulted in – prison revolt – like the one in which Sarabjit Singh, sentenced on spying charges, was slaughtered in 2013.

In any case, Pakistan will stay under Indian tension. The ICJ decision just added to the weight.

Joined by Queen’s advice Barrister Khawar Qureshi, a 13-part Pakistani designation, driven by Attorney General Anwar Mansoor alongside the Foreign Office’s Director General South Asia Dr Mohammad Faisal and including authorities of the services of law and international concerns, was available in the court.

The ICJ said that despite the fact that it had discovered Pakistan infringing upon Article 36 the Vienna Convention on Consular Relations (VCCR), “it isn’t the conviction and sentence of Mr. Jadhav which are to be viewed as an infringement of Article 36 of the Vienna Convention.”

The most the ICJ said it could do was to arrange Pakistan to stop infringement of Article 36 and audit the case considering how that infringement may have influenced the case’s result.

“The Court takes note of that Pakistan recognises that the fitting cure in the current case would be successful audit and reevaluation of the conviction and sentence,” it noticed.

To this end, Pakistan was coordinated to quickly educate Jadhav of his privileges under Article 36, award India consular access, and afterward survey the case while considering, under the laws of Pakistan, how not doing so prior may have affected the case’s result.

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Legally Speaking

71st birthday of Indian Constitution

I feel that the Constitution is workable, it is flexible and it is strong enough to hold the country together both in
peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will
not be that we had a bad Constitution. What we will have to say is that Man was vile,’ says Dr B.R. Ambedkar.

MUNEEB RASHID MALIK

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The Ministry of Social Justice and Empowerment on 19th November, 2015, notified the decision of the Government of India to celebrate the 26th day of November every year as the Constitution Day to promote constitutional values among citizens. Before the issuance of the notification, November 26th was celebrated as the National Law Day to honour the 207 members of the Constituent Assembly. Therefore, Constitution Day is celebrated in our country on 26th November every year now to commemorate the adoption of the Constitution of India. The Constituent Assembly of India adopted the Constitution on 26th November, 1949 which came into effect from 26th January, 1950. Justice Krishna Iyer once aptly enunciated that the Indian Constitution is the cornerstone of a liberated nation which lays the grand foundation of a great people’s political edifice of governance and spells out the fundamental rights and socialistic aspirations of the vast masses long inhibited by an imperialist ethos. It creates a trinity of democratic instrumentalities with checks and balances, parliamentary in structure, quasi-federal in character. An independent judiciary, an accountable Parliament at the Centre and like legislatures at the State level, a powerful Election Commission and fearless, critical Comptroller and Auditor General provide a paramountcy of democracy, at once responsible and responsive. Judicial review of State action, public finance auditable by a constitutional authority, obligation to seek fresh mandate through general elections with the adult franchise, accountability, direct and indirect, to the people in several ways, — these are fundamental in the governance of the country. The people, though free, have fundamental duties mandated by Art. 51A of the Constitution to exercise which, as in cases of environmental and ecological preservation, compassion for living creatures, protection of the value of composite culture, the authority of judicial writ power may be moved in aid.

The Constituent Assembly took a total of two years, eleven months and seventeen days to complete the Constitution. The Constituent Assembly considered a total of 2473 amendments proposed to the Draft Constitution from 9th December, 1946 to 26th November, 1949. Dr. Rajendra Prasad, the President of the Constituent Assembly confirmed the Constitution and fifteen articles were immediately given effect to on 26th November, 1949, which were, the provisions of Citizenship, Oath and affirmation by the President, Election, Definitions, Interpretation, Powers of the President to remove difficulties and the short title of the Constitution. The rest of the provisions came into effect from 26th January, 1950 and the working of the Constituent Assembly came to a stop. The preamble, a part of the Constitution, also came into force on 26th January, 1950, which presents the intention of the framers of the Constitution and the principles of the nation. The President in his address, on 26th November, 1949, talked about the Judiciary and enunciated that we have provided in the Constitution for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Court’s independent of the influence of the Executive. There is an attempt made in the Constitution to make even the lower judiciary independent of any outside or extraneous influence. One of our articles makes it easy for the State Governments to introduce separation of Executive from Judicial functions and placing the magistracy which deals with criminal cases on similar footing as Civil Courts.

The Fundamental Rights enshrined in Part III of the Constitution represent the basic values enriched by the people and the object of the fundamental rights is to ensure the inviolability of certain essential rights against political vicissitudes. Fundamental rights are not distinct but are mutually exclusive, as has been held by the Supreme Court in a catena of judgments. Dr. B.R. Ambedkar while highlighting the central importance of Article 32 of the Constitution stated that I am very glad that the majority of those who spoke on this article have realised the importance and significance of this article. If I was asked to name any particular article in this Constitution as the most important – an article without which the Constitution would be a nullity – I could not refer to any other article except this one. It is the very essence of the Constitution and the very heart of it and I am glad that the House has realised its importance. Dr. B.R. Ambedkar, in his speech on November 25, 1949, stated that if we wish to maintain democracy not merely in form, but also in fact, what must we do?

“The first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions”. There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O’Connel, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship. The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.”

As we celebrate the 71st birthday of the Constitution, it will be apposite to remind ourselves of the objectives of the Constitution. We must draw our attention towards the basic principles of law in our society and call to mind the purpose which the law has in view to serve in a country governed by rule of law envisaged by the Constitution. Fundamental rights and fundamental duties have to be given equal importance. Fundamental duties, though non-justiciable, are rules of law. In Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625, the Supreme Court observed that there may be rule which imposes obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding right in another person. But it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism. The obligation exists prior to and independent of the mechanism of enforcement. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of Constitution and even rules of international law would no longer be liable to be regarded as rules of law. It is our duty to abide by the Constitution and carry out our fundamental duties effectively for instilling a sense of obligation and discipline amongst ourselves. We have to fulfil the objectives of law to dispense social justice to the people of our country. The Judiciary has played a magnificent role in upholding the Constitution and must always travel on the same path of delivering justice constructively. Article 51-A (j) obliges us to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement. Therefore, on the Constitution Day, let us pledge to uphold the Constitution and also remember the words of Earl Warren, Former Chief Justice of the United States, when he said:- “Where there is injustice, we should correct it; where there is poverty, we should eliminate it; where there is corruption, we should stamp it out; where there is violence, we should punish it; where there is neglect, we should provide care; where there is war, we should restore peace; and wherever corrections are achieved, we should add them permanently to our storehouse of treasures.”

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Legally Speaking

In Re Noise Pollution and Judicial Restraint

‘The festival of Diwali is mainly associated with puja performed on the auspicious day and not
with firecrackers. In no religious textbook, it is written that Diwali has to be celebrated by bursting
crackers. Diwali is considered a festival of lights not of noises. Shelter in the name of religion cannot
be sought for, for bursting firecrackers and that too at odd hours.’

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And so without any reference to any text or calling for any evidence, in just a handful of lines, a Bench of the Supreme Court comprising the then Chief Justice of India R.C. Lahoti and Justice Ashok Bhan concluded in 2005 in the landmark judgement of In Re Noise Pollution that there was no nexus between the bursting of firecrackers and Diwali/Deepawali. The judgement is mostly known for prescribing noise-level related ceiling for firecrackers, apart from proscribing the bursting of firecrackers between 10 p.m. and 6 a.m. What isn’t known as much is the fact that the very same judgement also issued directions with respect to the use of loudspeakers. It is an indication of the times we live in that noise created by firecrackers is a constant source of discussion, while loudspeakers are discussed in palpably hushed tones; I guess noise too has an identity in this country which decides the treatment it gets even in private conversations. One could paraphrase a popular adage about the law and say “show me the source of the noise and I’ll show you the rule”.

Coming back to firecrackers, while I do understand and agree with the need for their regulation from the standpoint of safety and pollution, I certainly believe that at the very least the sense of restraint and the respect for facts and evidence that Courts are expected to observe in secular (meaning non-religious) matters, they must equally extend to religious matters given that their words carry weight. This applies all the more since Indian Courts are ostensibly secular bodies and are, therefore, as institutions not trained in matters of theology or religion. As individuals, certain members of the system may be trained or may have an interest in or aptitude for such subjects, but from an institutional perspective, Courts are secular/non-religious organs. Such being the case, to hold forth with certitude on matters of ritual or celebration or religion or to draw from limited personal experience or knowledge goes against the nature of the forum and the measured role one is expected to perform when donning the institutional hat.

In fact, from a reading of the judgement, it appears that the nexus between bursting of firecrackers and Diwali was peremptorily denied merely because the submission was made on behalf firecracker manufacturers, which was no reason to deny the nexus. After all, it ought to have been tested on merits as the outcome has resulted in the denial of the religious beliefs of millions of members of Indic communities by the unreasoned and unsustainable conclusion of the highest Court of the land on a subject which isn’t its strong suit, and which the system isn’t institutionally designed to handle with expertise.

In my view, this judgement and its treatment of religious beliefs and traditions is perhaps not a one-off because there appears to be a marked tendency to approach religious beliefs, not all but select, with a certain sense of urban and elitist reductionism, which does injustice to the rights of those who put stock in such beliefs. I am not on “hurt sentiments” lest I be mistaken for being too sensitive, I am specifically on the perceptible impact of an elitist approach on the rights available under Article 25(1). Given that observations, let alone findings, of Constitutional Courts are widely reported by the media, and the symbiotic and cordial relationship that such observations and the media have enjoyed for some time now, it would seem prudent for Constitutional Courts to observe a measure of restraint when they comment on matters of religious importance. While Courts certainly don’t need to and must not pander to populism of any kind, discretion is always the better part of advocacy, even of the judicial kind. And discretion begets respect, which is what, one suspects, the “majesty of the law” ultimately and truly rests on. Who knows, it may even obviate the need for the use of contempt powers at least in some respects.

From a reading of the judgement, it appears that the nexus between bursting of firecrackers and Diwali was peremptorily denied merely because the submission was made on behalf of firecracker manufacturers, which was no reason to deny the nexus.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi. 

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Reconstitution of NCLT benches

Tarun Nangia

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The benches of the National Company Law Tribunal (NCLT) have been reconstituted with
effect from 1 December 2020. The benches shall hear matters of respective jurisdiction as
were hearing before location (before 23 March 2020). All matters including pending before
lockdown and filed during the lockdown shall be heard regularly on all working days. The
benches shall sit as per Rule 9 of NCLT rules, 2016. The order has been issued by Shiv Ram
Bairwa, Registrar, NCLT with the approval of BSV Prakash Kumar, Acting President of NCLT.

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Legally Speaking

Constitutional validity of marital rape in India with respect to Section 375 of IPC, 1860

The rationale of marital rape is assumed on marital unity for some kind of estoppel, retracting wives
from unwanted sexual advances made by their husbands. The major implication of Section 375 of Indian Penal Code, 1860 is that it is narrowed down to rape of female not falling under the ambit of marital relationship. If loosely translated, in the institution of marriage, the entity of husband and
wife is treated as one and this marital status acts as a licence for husbands to rape their wife with full freedom, thus, reflecting the notions of patriarchy existing till date.

Jaya Jha

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‘I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a woman to hate her husband, I would hate him as a rapist”.

– Philippa Gregory, The Red Queen

INTRODUCTION

The history of rape dates back to the term when term Raptus was used to denote the theft of property and person. The act of violating the body of the women, ironically, was a harm inflicted upon the father or husband as women were wholly owned subsidiaries. Rape is a sex crime expressed in terms of stuprum by asserting violence or cum vi or per vim, outraging the women by all means.

The institution of marriage in India is related to great sanctity and the act of performing it is celebrated with great pomp and show. India assumes the role of husbands as an incarnation of God and women to showcase a submissive and docile nature to nurture the family carrying a misleading notion of belief to exercise sexual supremacy in lieu of the sacred bond of marriage between them. Marital ties in India reflect old archaic notions of sex as an obligation. The fundamental design of marital institutions is flawed due to interference of misogyny which presumes the marital status of a woman as a sine quo non to consent into the act of forced sex, leaving her into a state of emotional turmoil and reducing into a living corpse. Women are themselves taught by other women to be a good wife and that is achieved by promoting misogynist ideas and one of them happens to be non-refusal of sex to their husbands. The society appreciated these ideas of sexual violence to scare women into thinking that their male partner is stronger than them and refusing them for sex would do no good to them other than attracting their rage in form of sexual violence.

MARITAL RAPE:UNDERSTANDING

Marital rape can be described as the unwanted intercourse committed by the husband through the act of sexual violence, traumatizing woman to the very core. Marital rape is the most common form of masochism and has existed as long as the institution of marriage. Marital rape does not take place in vacuum and family is considered as the safe heaven but in reality it is just a myth. Family itself cradles violence against women by laying foundations for a sexist society. Marital rape is well prevalent into the roots of the society and hides behind the iron curtain of marriage. Family as an institution which should protect the aggrieved rather immunizing the perpetuator of sexual violence and restraining women from seeking help from outside in the guise of protecting family integrity.

The rationale of marital rape is assumed on marital unity for some kind of estoppel, retracting wives from unwanted sexual advances made by their husbands. The major implication of section 375 of Indian Penal Code, 1860 (herein afterwards called as IPC) is that is narrowed down to rape of female not falling under the ambit of marital relationship. If loosely translated, in the institution of marriage, the entity of husband and wife is treated as one and this marital status acts as a license for husbands to rape their wife with full freedom, thus, reflecting the notions of patriarchy existing till date. The prejudice behind the idea of husbands being the protector roots for promoting these flawed notions of male dominance helping them secure a safe haven even after violating the privacy of women to her own body. Patriarchy is inbuilt in the DNA of Indians which very well explains the social and economical structure of arrangements of bestowing men with the title of breadwinner for the family and exercising major control over the family whereas for the women, they are educated to fit into the shoes of homemaker, depending on the breadwinner. This scenario is utilized at its best by the husbands knowing the fact of dependence of women on their income, thus, leaving them no window open other than to suffer at their hands and continue being in an abusive relationship.

CONSTITUTION OF INDIA TETE-A-TETE MARITAL EXEMPTION TO RAPE

Constitution of a country maps the soul of the country. The Indian Constitution is carefully designed to ensure power control, conformity with human rights, checking upon social and individual interests of conflicts and smoothing the vehicle of national progress and unity. The Constitution of India ensures that every law passed is in confirmation with the ideas and principles as enshrined and any subsequent failure to meet with the standard will be awarded with the status of ultra vires, thus rendering them unconstitutional.

1. RIGHT TO EQUALITY

Article 14 guarantees a fundamental right to its citizen, equality before laws and equal protection of laws. However, this article does not call for equal treatment of every individual and the S.C laid down essentials for a valid classification and they are as follows:-

The classification has to be found on an intelligible differentia distinguishing the grouped ones from others

The differentia must derive a rationale related to the object which is to be achieved by the legislation.

However, the test of equality is to be applied in a certain way which does not stereotype a particular gender curtailing gender biased differential treatment. Section 375 of IPC does have loop hole which prevents married women to seek justice for rape committed within the sphere of marital status. The classification and differential treatment of married women is deemed to have been consented within the institution of marriage which is prima facie a wrong assumption and does not comply with intelligible differentia. The Mrs. Status of women deprives her of her own bodily autonomy and personhood, thus, vitiating the test of Article 14 under the ambit of our Constitution

2. RIGHT TO LIFE AND PERSONAL LIBERTY

Article 21 guarantees for life and personal liberty as enshrined the Indian Constitution. The meaning of ‘life’ was first defined in the famous case of Bandhua Mukti Morcha v. Union of India whose foundation was built on one of the most celebrated judgments of Munn v. Illions according to which ‘ life was something more than mere existence’.

The jurisprudence of Article 21 is the storehouse of all forms of rights, thus, attracting a wide definition of life to protect all forms of human life and liberty. However, there is a blatant violation of Article 21 in terms of marital rape.

RIGHT TO LIVE WITH HUMAN DIGNITY

Right to life is inclusive of the right to live with human dignity which includes the bare minimum necessities of life like mingling and mixing with other fellow human beings and expressing in diverse forms. Rape, other than being a sexual offence is an act of aggression projected with humility towards the victim. The exception of marital rape is violative of the very essence of right to life enshrined under Article 21 rendering it unconstitutional.

RIGHT TO PRIVACY

Right to privacy finds its place under the wide interpretation of Article 21 as recognized by judiciary. The right to be left alone also forms a part of this right which includes the free will to sexual intercourse as well and the marital status of woman can also not retract the fundamental right to sexual privacy from her. Every woman is entitled to sexual privacy and no man can force their sexual desire on any woman according to their whims and fancies. By decriminalizing marital rape, the perpetuators get immunity from their very own heinous act, thus invading on the rights of sexual privacy of women within the institution of marriage and vitiating the very principle of Article 21 under the Constitution of India.

RIGHT TO BODILY SELF-DETERMINATION

This right owes its inception to the wide interpretation of Article 21 of the Indian Constitution. The consent and will to have sex is regarded as one of the most personal and private choice of an individual irrespective of the marital status. So, any law interfering or meddling with the right of bodily self-determination is regarded as Unconstitutional.

RIGHT TO GOOD HEALTH UNDER ARTICLE14 AND ARTICLE 21

Article 21 of the Indian Constitution ensures right to good health. The exemption to marital rape is prima facie violating the right to good health doing no good to wives and harming their psychological and physical well being. There is also a very good possibility of women losing themselves to sexually transmitted diseases (STD). The marital exemption to rape is a loophole which inbreeds the future criminals of society and is unconstitutional.

The S.C has declared that the laws which are subject to under the scrutiny of Article 14 and Article 21 must qualify the test of reasonability to operate within the framework of Constitution. Even if the doctrine of marital rape surpasses the test of ‘reasonability’ it still has to pass the muster of ‘just, fair and reasonable’ law in order to recognized as constitutional.

The Apex Court has laid down that Article 21 of the Constitution delivers the citizen, the right of not being deprived of personal life and liberty except by the procedure established by law, hence, this procedure carries the burden of being just, fair and reasonable and not arbitrary, whimsical or fanciful in nature.

CONCLUSION

Society conceived these sexist values and beliefs from the outset of civilization and projected these practices of perverseness as something very usual and normal phenomenon. In fact, the multi mosaic model of India advocates for this sexual violence against women and treats it as something obligatory on the part of women to continue being a prey of such sexual violence. Since, the inception of marital rapes, rapes were quite common in almost every part of world and every civilization is a witness of such heinous practice but the unfortunate part was women themselves were blamed for such incidents and instead of people checking on men for the perverseness, women were made a toy at the hands of religion and culture. Women were chained with different codes of conduct to comply by, dress being the most important ones. All these practices are demonstrative of the prevalence of patriarchal notions from the very beginning of societal setup, all summing up to ex parte sufferings of women alone.

Societal disobedience is the major cause of the enforcement of existing laws. The laws are made to regulate the code of conduct of people deviating from the usual social norms and to curtail from engaging into such practices again, the element of punishment was introduced but unfortunately marital rapes never saw the day of light as a matter of wrong. Hence, we see the liberal nature of laws towards the sexual predators in the sanctity of marriage, taking advantage of the intimacy of the private affair.

The fundamental design of marital institutions is flawed due to interference of misogyny which presumes the marital status of a woman as a sine quo non to consent into the act of forced sex, leaving her into a state of emotional turmoil and reducing into a living corpse. Women are themselves taught by other women to be a good wife and that is achieved by promoting misogynist ideas and one of them happens to be non-refusal of sex to their husbands.

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Legally Speaking

Long-term battle of arbitral awards with reference to the Vodafone case

The American Constitution constitutes a similar provision prohibiting ex-post-facto laws both by Central and state legislatures. It’s been more than 70 years since India became a democracy, still there is debate regarding the retrospective legislation in taxation laws.

Bahvuk Narula & Rachi Gupta

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The art of taxation consists of so plucking the goose to obtain the largest amount of feathers with the smallest amount of hissing.

—Jean Baptiste Colbert

PREFACE

In India, arbitration is always criticised due to Court interferences. However, recent judicial decisions show that Indian Courts are adopting a minimal interference model. This would help India globally to make a mark in the field of arbitration. In this never-ending process of court trials, challenging the awards in tribunals is a trend now here we can take the example of the same from the landmark case of Vodafone International Holdings B.V. v. Union of India & Anr. The enforcement of foreign awards is always being hard in India due to the regressive approach of the judiciary, which can be seen in judgments like NAFED v. Alimenta S.A. and Venture Global Eng. L.L.C. v. Tech Mahindra. These judgments are undoubtedly acting as a huge stumbling block in the enforcement of foreign awards.

VODAFONE JUDGMENT AT GLANCE

In the landmark judgment of Vodafone, where the Indian income tax authorities passed an order for payment of $2.2 billion by claiming that this is a case of transferring the Indian assets and therefore, such transfer was taxable in India. But later the Supreme Court held that this is not covered within the meaning of Section 2(14) of the Income Tax Act, 1961 and quashed the demand of INR 120 billion by way of capital gains tax and also directed a refund of INR 25 billion just after that Income Tax Act (2012 Amendment) was brought in introducing two explanations in Section 9(1)(i) of the Income Tax Act, 1961 in this way virtually amending the law to ensure that cross-border transactions such as the $11.08 billion Vodafone-Hutchison deal are taxable. This amendment was challenged in the Permanent Court of Arbitration at Hague under India – Netherlands Bilateral Investment Treaty.

This retrospective amendment was widely criticized across the globe and made India an unpopular destination for investments. The Permanent Court of Arbitration (PCA) quashed the income tax department’s demand on the ground of violation of the fair and equitable treatment standard. It is also observed that India violated the bilateral investment treaty with the Netherlands by retrospectively amending the law and directed India to reimburse legal costs of approximately INR 850 million to Vodafone. The Vodafone award stimulates critical issues for foreign investors investing in India. This award negates India’s position on investment treaties that tax disputes do not come under the ambit of investment treaties. The discrepancy arises from the Vodafone case in which the Solicitor General of India has recommended the government of India to challenge the arbitral award and declared parliamentary legislation of a competent Parliament of a sovereign nation to be non-est and unenforceable. On the contrary, the Attorney General clearly expressed his inability to be involved in the case and he is in favour of accepting all well-reasoned awards instead of challenging every award.

The Indian Government has not decided their move yet but as each coin has two sides so each direction towards challenging the award will lead to the question of law regarding the power of the arbitration tribunal to declare parliamentary legislation to be non-est and unenforceable. India has sovereign powers to amend its laws with a prospective effect and in the present case; the transaction was between two non-resident entities through a contract executed outside India which has no nexus with the underlying assets in India.

JUDICIAL & LEGAL DICTUM IN THIS REGARD

The Indian legislature has the power to make prospective laws, but Article 20 of The Indian Constitution, 1950 provides certain parameters for the same. Article 20(1) imposes a limitation on the law-making power of the legislature regarding retrospective criminal liability. There is anarchy in the imposition of retrospective civil liability too.

As article 20(1) of the Indian Constitution provides that;

“no person shall be convicted of any offense except for violation of a law in force at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense.”

The American Constitution also constitutes a similar provision prohibiting ex-post-facto laws both by Central and State Legislatures. It’s been more than 70 years since India became a democracy still there is debate regarding the retrospective legislation in taxation laws.

India has a long term judicial approach regarding retrospective legislation and the landmark case is CIT v. Vatika Township Private Limited, in this case, the Constitutional Bench of Apex Court provided clarity on prospective versus retrospective operation of tax amendments. Moreover, a piece of legislation is presumed not to be intended to have a retrospective operation here the ratio is that the current laws should govern current activities (Principle of lex prospicit non respicit: The Law looks forward and not backward). This case also considered the principle of fairness and leads to the principle of lex non-cogit ad impossibilia – the law does not compel a man to perform what he cannot possibly perform. The ruling concluded that in determining whether a provision is applicable prospectively or retrospectively, attention would be required to be paid to the language of the amending statute, the legislature’s intent, the memorandum to the relevant Finance Act, and the hardship the amendment would cause to the taxpayer. Similarly in the case of CIT v. NGC Networks (India) Pvt. Ltd. held that in the case of retrospective amendment the payer could not have contemplated TDS. Along with that regarding enforcement of arbitral awards, in the case of Govt. of India v. Vedanta Ltd, the court held that-

“enforcement might be rejected just on the off chance that it disregards the State’s most essential thoughts of profound quality and equity, which has been deciphered to imply that, there ought to be incredibly faltering in the declining requirement, except if it is gotten through dishonour or fraud, or unjustifiable methods”

By way of this judgment, the Court reduces the decline of enforcement of foreign arbitral awards and minimizes judicial intervention. The court also observes that the government must change its approach regarding challenging every arbitral award and should adopt an approach that encourages foreign companies to invest in India. It will help India in achieving status as a global arbitration hub.

WAY FORWARD TOWARD ARBITRATION

Today tax uncertainty is a growing cause of concern for foreign investors. Now India is facing criticism owing to the Vodafone award, the question arises whether India would lead to ensuring tax certainty and a stable environment to boost investment hand in hand or not. The scope of investment treaty arbitrations is very bleak and now we have two directions firstly that the Supreme Court of India overturns the decision of the Indian courts regarding non-applicability of the Arbitration and Conciliation Act, 1996 to investment treaty arbitrations, Secondly the legislature can either amend the Arbitration and Conciliation Act, 1996 to include enforcement of Bilateral Treaty Awards within its scope or to establish an entire regime for investment protection. In today’s time, the correlation between Bilateral Investment Treaties and foreign investment is required and we can adopt any approach given upwards to achieve this goal. Bilateral Investment Treaties have a positive role in promoting foreign investment and Investor-State dispute settlement provisions are important factors too in contributing to foreign investment inflows. India is planning a new law to safeguard foreign investment. It also helps us to speed up dispute resolution and to boost stuttering domestic growth.

The scope of investment treaty arbitrations is very bleak and now we have two directions: First, that the Supreme Court of India overturns the decision of the Indian courts regarding non-applicability of the Arbitration and Conciliation Act, 1996 to investment treaty arbitrations; Second, the legislature can either amend the Arbitration and Conciliation Act, 1996 to include enforcement of Bilateral Treaty Awards within its scope or to establish an entire regime for investment protection. In today’s time, the correlation between Bilateral Investment Treaties and foreign investment is required and we can adopt any approach given upwards to achieve this goal.

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