Khagesh Gautam

Bio: Khagesh Gautam is an academic researcher from Global University (GU). The author has contributed to research in topics: Constitution of India & Constitutional law. The author has an hindex of 2, co-authored 12 publications receiving 29 citations.

Judicial Independence and Economic Emergency in India

Abstract: This chapter focuses on economic/financial emergency. The chapter begins by noting that the Indian Constitution, like its US counterpart, secures independence of the judiciary by providing for, inter alia, financial independence of the judiciary. Just like the Compensation Clause in the US Constitution, its Indian counterpart the Salary Clause provides that judicial salaries cannot be decreased during the time a judge is holding judicial office. But the Economic Emergency Clause of the Indian Constitution also provides that the President, during the time an economic emergency is proclaimed, can, inter alia, reduce judicial salaries. Whereas the power to proclaim economic emergency is subject to periodic Parliamentary review, the power to reduce judicial salaries is not subject to any such or other kind of independent review. Judicial independence is an extremely important constitutional value and the need to protect it has been accepted globally for a very long time now. In India, it is a settled proposition of constitutional law that an independent judiciary is a part of the basic structure of the Indian Constitution. Other provisions of the Constitution that conflict with the idea of judicial independence have been so interpreted in order to avoid the conflict. The Presidential power to reduce judicial salaries during an economic emergency presents just such a conflict and this article is an attempt to resolve it. This chapter argues that the Presidential power to reduce judicial salaries during an economic emergency is subject to judicial review and provides three independent grounds that justify such review. This chapter also lays down the basis of further work on financial emergency provisions in the Indian Constitution by attempting to briefly distinguish between “financial stability of India,” and “credit of India,” the two grounds on which an economic emergency can be invoked.

The Unfair operation principle and the exclusionary rule: on the admissibility of illegally obtained evidence in criminal trials in India

Abstract: This article addresses the admissibility of illegally obtained evidence, as a matter of evidence law, in criminal trials in India. The United States Constitution’s Fourth Amendment jurisprudence provides, as a matter of constitutional law, that illegally obtained evidence is inadmissible. This rule is known around the world as the Exclusionary Rule. The U.S. Supreme Court has carved our several exceptions to the Exclusionary Rule; however, illegally obtained evidence remains inadmissible in criminal trials in the U.S. in most instances. Relevant legal propositions to this effect have been codified under the Police and Criminal Evidence Act of 1984 in the United Kingdom where inadmissibility of illegally or unfairly obtained evidence remains largely a matter of discretion with the trial * Stone Scholar, LL.M. (Columbia), LL.B. (Delhi); Associate Professor of Law & Assistant Dean (Research and Publications), Assistant Director (Center on Public Law and Jurisprudence), Assistant Director (Mooting and Advocacy Program), Jindal Global Law School, O.P. Jindal Global University, Sonipat, India. The author can be reached at kgautam@jgu.edu.in. The author would like to thank Professor David Siegel (New England Law, Boston) for his valuable comments on an earlier draft of this article in July 2015. An earlier version of this article was presented at the seminar on ‘Judicial Process, Legal Systems and the Rule of Law: Comparative Perspectives on India and the U.S.A.’ organized by Jindal Global Law School in Haryana, India on August 13, 2014. The article was presented in the session on ‘Legal Practice, Court Procedures and Constitutional Perspectives from India and the United States.’ The author is thankful to the Chair of the Session, Judge Gary Eugene Bair, Associate Judge, Montgomery County Circuit, 6 Judicial Circuit, U.S.A., and Professor (Dr.) Stephen P. Marks (Harvard University) and all the participants in the seminar for their valuable comments. The author would also like to thank his teaching assistant V. Balaji (JGLS 2012) for excellent research assistance. †. Oliver Wendell Holmes, The Path of Law, 10 HARV. L. REV. 457, 469 (1897). 148 INDIANA INT’L & COMP. LAW REVIEW [Vol. 27:147 judge. Under Indian law, there is no statutory prohibition against illegally obtained evidence under either the Indian Evidence Act of 1872 or the Code of Criminal Procedure of 1973. However, a review of reported Indian Supreme Court opinions on the point discloses the existence of a judge made doctrine, largely derived out of British common law, whereby illegally obtained evidence can be excluded at the discretion of the trial judge if the admission of the same would operate unfairly against the accused. This rule is designated as the Unfair Operation Principle. This article, for the first time, closely engages with the Unfair Operation Principle as a matter of evidence law. The first part of this article provides a restatement of the law of admissibility of evidence at criminal trials in India by surveying existing Indian jurisprudence on the point. It locates the Unfair Operation Principle as a part of general law of admissibility. The second part of this article argues that a judge has no discretion to admit illegally obtained evidence under the Unfair Operation Principle. This proposition is supported by the philosophy of Professor Ronald Dworkin and accordingly a Dworkinian analysis is provided. The third part of this article compares the Unfair Operation Principle with the Exclusionary Rule in order to demonstrate the similarities and differences between the two. It argues that both rules are similar to the extent that they both protect the interests of an accused at a trial, but are distinct to the extent that one is a rule of evidence law and the other is a rule of constitutional law. Accordingly, the third part makes a comparative argument to support the proposition advanced in the second part.

Emergency Powers in India

Abstract: This chapter focuses on India but from a historico-legal rather than a purely legal perspective. Constitutional law commentaries in India usually focus on the development of legal doctrine regarding emergency powers and focus on important Supreme Court decisions to knit that narrative. Other contributions on emergency powers in India, made by way of book chapters and law review articles, tend also to focus either on doctrinal development or a human rights perspective. A third category tends to focus on a descriptive or political account of the so-called “internal emergency,” on which many important accounts and narratives have been written. This chapter however, and for the first time, takes a historical perspective and places the development of legal doctrine as a part of that historical narrative. Divided into three parts, Part I of this chapter starts where Chapter 1 ends. Whereas Chapter 1 provides an ancient Indian thought on emergency powers, Part I of this chapter gives a brief overview of “pre-British India” and then starts the narrative from “Company Rule.” It thus traces the development of emergency powers from the year 1600 to 1857, and then from 1857 to 1914, coming onwards to the First World War, the inter-war years, the Second World War, and then the years leading up to independence in 1947. This discussion, for holistic reading and comprehensiveness, may be read in the light of Part V of Chapter 2 that provides a similar history, albeit only of martial law. Part II focuses on the immediate post-independence period leading up to the establishment of the Indian Republic in 1950 followed by a legal discussion. In this manner, the “1975 Peacetime Emergency” is placed in a much larger perspective. Part III focuses only on President’s Rule since this emergency has been invoked the maximum number of times in India and has been on the receiving end of much academic and public critique. Part IV concludes by arguing that the development of legal doctrine in the famous Bommai decision and post-Bommai developments have resulted in preventing the abuse of article 356 proclamations. A detailed empirical analysis at the end of this chapter makes a useful contribution by providing a clear correlation between the expanding, aggressive and timely judicial review and the subsequent reduction in the use of article 356 proclamations, and lays down the foundation for further work for future scholars to attempt to find causation, now that a clear correlation has been established.

The Concept of Emergency Powers in History and Political Thought: Greek, Roman and Indian Paradigms

Abstract: This chapter discusses the three historical paradigms that provide much needed theoretical basis for a discussion of various facets of emergency powers that follow in remaining chapters. Whereas the Greek and Roman perspectives on emergency powers have been, and almost always are, dutifully discussed by several writers and commentators on emergency powers, the uniqueness of this chapter lies in the focus that the authors provide on “Ancient and Medieval India.” There is hardly any scholarly discussion available on the ancient Indian thought on emergency powers. Chapter 5, in its first part, also takes forward this discussion. This work thus holistically centers emergency powers not only in Western philosophical thought but also in Indian literature, ancient and medieval, the latter supplying a glaring omission of existing scholarship.

A history of greece to 322 b.c. ed. 2nd

Abstract: This textbook presents a modern interpretation of Greek ideas, culture, and actions. Changes in the new edition concern mainly the spread and significance of tumulus-burial in Albania and the Mycenaean world, the dating of early coinage, the decree of Themistocles, and some aspects of Alexander the Great.

The leopard that learnt from the cat and other narratives of carnivore–human coexistence in northern India

Abstract: Different cultures around the world conceptualize nature, and wild‐ life in particular, in ways that can be radically divergent from the formalized, modern, urban, academic understanding of the same con‐ cept (Aiyadurai, 2016; Gebresenbet, 2017; Govindrajan, 2015; Hill & Webber, 2010; Knight, 2003; Lescureux et al., 2011; Saunders, 1998). Currently, as reflected in conservation literature, the approach to studying wildlife–human interactions usually lies in the domains of the ecological and socio‐economic sciences, often reducing very complex issues to metrics like economic damage or resource value that can be easily quantified in monetary terms (Inskip & Zimmermann, 2009). Received: 13 August 2018 | Accepted: 8 May 2019 DOI: 10.1002/pan3.10039

Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts

Abstract: The United States Supreme Court sits as a unified bench of nine justices. The Indian Supreme Court sits in panels, and can have up to thirty-one judges. This article uses the divergent structures of the U.S. and Indian Supreme Courts to explore how specific court structures are adopted to promote different values or understandings of what a supreme court should be. It analyzes how structure impacts: (1) access to these courts; (2) the cohesiveness of the doctrine they produce; (3) inter-judge relations; and (4) perceptions about these courts, including perceived politicization. It argues a comparative analysis of court structure can challenge common assumptions about the ideal role of a court, as well as aid in judicial institutional design and reform. Such an analysis helps make explicit how law is permeated by the structure of the courts that interpret it.