1. Sabarimala Temple Entry
Justice Chandrachud used the Constituent Assembly Debates (CADs) to argue that the Constitution’s framers deliberately refused to give a specific meaning to the term ‘Untouchability’ in Article 17 in order to allow for expansive interpretation. He said that this practice amounted to gender-based untouchability which violated Article 17, and was therefore unconstitutional.
Interestingly, Justice Indu Malhotra, in her dissenting opinion, also referred to the CADs, but came to the opposite conclusion: untouchability specifically meant only the caste-based practice.
2. Declaration of Human Rights
November 2018 marked the 70th Anniversary of the historic Universal Declaration of Human Rights. Miloon Kothari reminds us that the while the Declaration was being drafted in 1947, the Constituent Assembly was already neck deep in drafting the Indian Constitution
Three members of the Assembly – Hansa Mehta, M.R. Masani and Vijay Lakshmi Pandit – moved between Constituent Assembly and the United Nations and played critical roles in the final shape of the Declaration. Kothari suggests that these members’ inputs were closely informed by their experience of drafting the Indian Constitution
3. Constitutionality of Aadhaar Act
In 2016 the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill was passed as a Money Bill in the Lok Sabha. Article 110 of the Constitution gives the Lok Sabha Speaker the power to decide if a Bill was a Money Bill and states that this decision was final. In the 2018 Constitutionality of Aadhar Case, the Supreme Court had to decide if the finality of the Speaker’s decision was subject to judicial review.
Justice Chandrachud, in his opinion, approached the question by laying out different documents that are part of India’s constitutional history that made mention of Money Bills. He identified the British Parliament Act 1911 and the Irish Constitution 1937 as the influential documents that shaped Article 110.
J Chandrachud traced the manner in which the Assembly made constitutional choices on the final form of Article 110 and concluded that that finality of the Speaker’s decision was not immune from judicial review and that ‘the power of the Speaker of the Lok Sabha, to decide whether a Bill is a Money Bill, cannot be untrammelled’. This conclusion was part of the reason why he struck down Aadhaar Act.
4. The Indian Constituent Assembly by Udit Bhatia (Edited)
This is the first book-length volume of scholarly papers that exclusively focus on the Indian Constituent Assembly. Contributions include papers on the political economy and the role of emotions in of Indian constitution-making and the antecedents of social right in India.
Udit Bhatia’s argues that the Constituent Assembly and its work could be investigated fruitfully by viewing it in three ways: a body that was discursive, political and institutional. Bhatia draws heavily from Jon Elster’s theoretical work on constitution-making.