Law Critical Digest: 15.01.2012

Written by  //  January 16, 2012  //  Critical Digest, Law & The Judiciary  //  Comments Off on Law Critical Digest: 15.01.2012

  1. The New Year has dawned upon us quietly, law and judiciary wise, but things will hot up soon. The judgment in the Vodafone case is likely to be handed down sometime over the course of this month and billions of dollars of revenue and/or foreign direct investment is at stake here. For a brief look on what is at stake and what issues are likely to be resolved in this judgment (hopefully) read this, this and this. [Disclaimer: I assisted Mr. Mohan Parasaran, ASG who appeared for the Union of India in this matter both before the High Court and the Supreme Court of India and all these views are strictly mine and mine alone.)
  2. Popular morality, as distinct from constitutional morality derived from constitutional values, based on shifting and subjecting notions of right and wrong. If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional”is a morality and not public morality”. Justice AP Shah’s eloquent proposition in Naz Foundation, while widely cited, however leaves an obvious question hanging – what exactly is “constitutional morality”? Justice Zakaria Yakoob, in reviewing Prof. Dr. Kalpana Kannabiran offers one perspective here, as do CJI SH Kapadia and Pratap Bhanu Mehta elsewhere. Perhaps it would be worthwhile to go back to Ambedkar’s famous speech “The Grammar of Anarchy” to discern it for ourselves.
  3. It is a joke that elicits much laughter (or at least a couple of sniggers) in the rarefied world of comparative constitutional law academia – India’s “constitutional cow”. It was once more a source of much bemusement as Madhya Pradesh’s somewhat draconian Madhya Pradesh Gau-Vansh Vadh Pratishedh (Sanshodhan) Vidheyak (Madhya Pradesh Prohibition of Slaughter of Cow-Progeny (Amendment) Bill) received presidential assent. Yet, as American jurist, Alex Kozinski, said in the context of the right to bear arms in the US Constitution, “it is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home till they quit annoying us”. The Supreme Court of India however, has in fact developed a jurisprudence of the constitutionality of cow slaughter and the judgments in Mohammed Hanif Qureshi v State of Bihar and State of Gujarat v Mirzapur Moti Kassab are well worth a read. Yes, with a straight face.
  4.  In this age of the iPad with a 3G connection, is there any point in wondering about what is decent or otherwise in television in    the interests of “will somebody please think of the children”? The US Supreme Court has been asked to answer the question Helen Lovejoy never intended answered, and the inimitable Dahlia Lithwick gives us a rip-roaring ride into the mundane insanity of the hearings in FCC v Fox.
  5. Poetry and the law don’t always go well, except when certain judges feel compelled to display their higher cultural attainment by repeatedly quoting poetry in judgments. Yet, some judges take it further and turn their judgments into poetry. Sometimes it works and sometimes it doesn’t. As John C Kleefeld explains in this article published in “Law and Humanities” journal.


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