Day 1: Courts and the Constitution Conference

On April 15th 2022, the Supreme Court Observer Team attended the ‘Courts and the Constitution Conference’ held at NALSAR University of Law, Hyderabad.

The conference, organised by the Law and Other Things blog in collaboration with NALSAR and Azim Premji University, hosted a range of eminent academics, prominent lawyers, and promising young scholars.

NALSAR Vice-Chancellor Professor Faizan Mustafa, Professor Sitharamam Kakarala of Azim Premji University, and Assistant Professor Sidharth Chauhan of NALSAR delivered the welcome address.

Panel 1: The State of the Judiciary

Panel 1 on ‘The State of the Judiciary’ engaged with the challenges besetting the judicial system today, from the lower judiciary all the way to the Supreme Court. The panel was moderated by Professor Sidharth Chauhan.

Deepika Kinhal of the Vidhi Centre for Legal Policy, Bengaluru, drew attention to the state of the lower judiciary. She argued that while the public and academia typically focus on the higher judiciary (High Courts and the Supreme Court), issues such as pendency and judicial vacancies are particularly exacerbated at the lower levels. For most Indians, the lower judiciary is their main site of their interaction with the justice system. Ms. Kinhal argued that addressing the technical and physical infrastructural barriers in the lower judiciary is necessary to surmount this crisis.

Mihir Rajamane, undergraduate student at Oxford University, presented his data on the Supreme Court’s suo moto jurisdiction. He pointed to the increased use of the Court’s suo moto powers over the last few years, particularly in the COVID-19 era. Mr. Rajamane further commented on the role of the Court in an increasingly fragile constitutional democracy.

Anurag Bhaskar, Assistant Professor at Jindal Global Law School, spoke on the stark absence of caste diversity in courts. Laying emphasis on the importance of representation in the judiciary, Mr. Bhaskar drew attention to the institutional barriers and the systemic biases that affect the caste composition of courts.

Panel 2: The Public Health Crisis and the Constitution

The Panel titled ‘The Public Health Crisis and the Constitution’ engaged with Courts’ intervention during the Covid-19 crisis. The discussion was moderated by Amita Dhandha, Professor Emerita, NALSAR University of Law. 

Senior Advocate Rajasekhar Rao stated that the Right to Health is enshrined in the Constitution. He argued that the increased involvement of the Court during the COVID-19 crisis was a positive development and in line with larger constitutional directives protecting the Right to Health. This intervention was particularly important in the context of an ineffective executive charged with managing the pandemic.

Thulasi K. Raj, Advocate at the Kerala High Court, said that she was wary of the Court’s increased intervention in the area of socio-economic rights during the pandemic. She referred to two decisions by the Supreme Court—on board exams and the State’s free COVID-19 testing—that were framed as indirect discrimination questions. Ms. Raj commented that the Courts must be circumspect in intervening in socio-economic questions as they do not possess the institutional competence to address these issues.

Alok Prasanna Kumar, Co-Founder of the Vidhi Centre for Legal Policy and Research, said that the judiciary’s intervention in matters of public health during the pandemic was comforting. The judiciary is meant to hold the executive accountable. However, he said, the judiciary failed to ask the executive difficult questions about its competence to pass the many sweeping laws it enacted during the pandemic.

Panel 3: Shamnad Basheer Memorial Roundtable on Intellectual Property

The Panel engaged with emerging intellectual property regimes in the context of the COVID-19 crisis. The discussion was moderated by Neeraj Grover of Azim Premji University.

Sanya Samtani, postdoctoral researcher at the University of Pretoria, situated intellectual property within the context of access to healthcare. She pointed to the interplay of international conventions governing the Right to Health with treaties on intellectual property. She also engaged with constitutional provisions on health, arguing that they must be taken into consideration while deciding on questions relating to intellectual property.

Rahul Bajaj of the Vidhi Centre for Legal Policy spoke about pharmaceutical patents in the context of the COVID-19 crisis. He drew attention to measures such as compulsory licensing to check prices of drugs, and developed nations’  opposition towards these measures. Mr. Bajaj stated that the Right to Health under Article 21, while not a right in itself, can be used to ensure equitable access to drugs.

Akshat Agrawal, Advocate at the Patna High Court, emphasised the need to decolonise intellectual property, unveiling the colonial origins of modern intellectual property regimes. Mr. Agrawal emphasised the importance of a decolonised intellectual property regime to ensure global access to healthcare.

Aakanksha Kumar of Jindal Global Law School engaged with the Fundamental Right to Free Speech in the context of copyright laws, particularly in the era of self-generated content.

Click here to read SCO’s coverage of Day 2 of the ‘Courts and Constitution Conference’.