Papers by Bhanu Partap Singh Sambyal
Comparative Constitutional Law and Administrative Quarterly, 2013
Exit Polls‘ rest on unstable constitutional tectonic plates eager to erupt without notice. It has... more Exit Polls‘ rest on unstable constitutional tectonic plates eager to erupt without notice. It has equal and opposite forces, pulling at it, as its proponent as well as opponent lie in the Constitution. Conduct of free and fair elections has been the focus of the Election Commission from its conception, but fulfilling its constitutional function reached a roadblock when the Apex Court held that it was overreaching its powers. Hence, the Parliament cleverly took over, and amended the Representation of People‘s Act, 1951 to add Section.126A. The section imposes a complete ban on exit polls and makes it impossible to legitimately collect any data through the same. Exit polls reveal some unique information which may aide in the casting of an informed vote. An informed voter is a necessary pre-condition for a robust democracy, functioning of the principle of free and fair elections and thus to uphold the basic structure of our Constitution, exit polls or any other method of information extraction or dissemination is necessary.
Besides the above a complete ban on exit polls may well be challenged under Art. 19(1)(a); though, whether this freedom functions dually for the media as well as the citizen, shall be considered. Further, the paper analyses whether exit polls can be legally or logically read into any of the restrictions under 19(2) without 'statutise-ing' the Constitution, a document which lays down basic principles and not nuanced modalities. A modest effort has been made in this behalf to compare the forms of fundamental rights that may be used to protect exit polls, in India as well as America. The same, it is noted, is a reflection of the kind of freedom the press is guaranteed by their respective Grundnorms.
Delhi Law Review (Student Edition), 2020
The principle of presumption of constitutionality in favour of an enactment, constitutional amend... more The principle of presumption of constitutionality in favour of an enactment, constitutional amendment, ordinances and secondary legislations is an established principle. This presumption is based on some grounds which are mainly backed upon legitimacy of action of legislature. In this article, the authors have discussed the basis of the principle and why the principle should not be applicable on challenges to constitutional validity of ordinances promulgated by President and Governors, as the case may be; secondary legislations made by the executive and pre-constitutional laws. The paper also focusses on the three levels of scrutiny tests applied in the United States of America and their associated means and ends. Further, how these tests can be applied in the context of India has also been analysed. The main argument of this paper is that secondary legislations should not be given the defence of presumption of constitutionality and must be put to strict scrutiny test. Similarly, ordinances and pre-constitutional laws must also be not given this defence and must be put to varying levels of scrutiny tests. The authors are also of the view that strict scrutiny is not an alien standard of law to Indian jurisprudence and is only a rational inclusion to the subsisting requirements formulated by the Supreme Court of India for determining the constitutionality of laws.
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Papers by Bhanu Partap Singh Sambyal
Besides the above a complete ban on exit polls may well be challenged under Art. 19(1)(a); though, whether this freedom functions dually for the media as well as the citizen, shall be considered. Further, the paper analyses whether exit polls can be legally or logically read into any of the restrictions under 19(2) without 'statutise-ing' the Constitution, a document which lays down basic principles and not nuanced modalities. A modest effort has been made in this behalf to compare the forms of fundamental rights that may be used to protect exit polls, in India as well as America. The same, it is noted, is a reflection of the kind of freedom the press is guaranteed by their respective Grundnorms.