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I·CONnect

Blog of the International Journal of Constitutional Law

Indigenous Peoples’ Rights and the “Common Good”

Armi Beatriz E. Bayot, University of Oxford Faculty of Law

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

A recent report by the Food and Agriculture Organization (FAO) of the United Nations shows that the indigenous peoples of Latin America are an important line of defence against the destruction of the Amazon and environmental catastrophe.[1]

Large-scale deforestation has been linked to irreversible loss of biodiversity.[2] It also causes an intensification of the effects of climate change: the Amazon’s ability to absorb CO2 is reduced as the forest cover dwindles, and the forest fires that follow the felling of trees increase the presence of CO2 in the atmosphere.[3] The widespread destruction of nature has also been linked with the increase in animal to human transmission of diseases, as wildlife lose their natural habitats – increasing the likelihood of more pandemics.[4]

With the frightening prospect of losing the Amazon and the rest of the planet’s forest cover on the horizon, the FAO report shows that indigenous peoples are holding the line against aggressive deforestation. While 28% of the Amazon Basin are indigenous territories, they only account for 2.6% of the region’s carbon emissions. Indigenous peoples occupy 237 million hectares of forested land in the Amazon Basin – an area larger than France, Great Britain, Germany, Italy, Norway, and Spain combined. These forests have been much better protected than other forests in the region. While intact forests are declining worldwide, those managed by indigenous peoples have declined at a lower rate – 4.9% compared to 11.2%.[5]

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Published on April 14, 2021
Author:          Filed under: Analysis
 

Term Limits and the Unconstitutional Constitutional Amendment Doctrine in Indonesia

Stefanus Hendrianto, Pontifical Gregorian University

A controversy surrounding constitutional amendment has surfaced recently in Indonesia, after a veteran politician, Amien Rais, accused the administration of Joko Widodo (or Jokowi) of trying to sway the People’s Consultative Assembly (MPR) to amend the 1945 Constitution so that the presidential term could be extended.[1] Currently, President Jokowi is in his second and final five-year term. Rais suspected a plot to revise the Constitution to allow Jokowi to be elected for a third term.

The Driving Force behind the Proposal for Constitutional Amendment  

In 2019, Jokowi’s political party, the PDI-P (Indonesian Democratic Party of Struggle), proposed a plan for a constitutional amendment to revive the defunct National State Planning Policy (Garis – Garis Besar Haluan Negara – GBHN), which was a centralized economic plan model under the New Order military regime.[2] At that time, Assembly (MPR) Speaker Bambang Soesatyo indicated that he would seek limited amendments to the Constitution. In late November 2019, however, the National Democratic or Nasdem party, one of President Jokowi’s closest allies in his coalition government, floated the possibility of a third term for Jokowi.[3]

President Jokowi stated that he will not back the proposals to increase the presidential term limit, saying that the proposal was akin to a “slap in the face.”[4]

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Published on April 13, 2021
Author:          Filed under: Developments
 

What’s New in Public Law


Nakul Nayak, Assistant Professor at Jindal Global Law School, India.


Developments in Constitutional Courts

  1. The Kenyan Constitutional Court dismissed a petition to strike down the Female Genital Mutilation Act, which outlaws the traditional practice of female circumcision.
  2. The UK Supreme Court ruled that care workers carrying out overnight ‘sleep-in’ shifts are not entitled to the National Minimum Wage for the entire duration of their shifts.
  3. The Irish Supreme Court found that the Workplace Relations Commission set up to adjudicate disputes between employers and staff is not unconstitutional.
  4. The US Supreme Court granted review in a case that will decide how harmless error review is applied in federal habeas petitions.
  5. The Indian Supreme Court refused to grant relief in a petition challenging the detention of Rohingya refugees and their deportation back to Myanmar.

In the News

  1. Tunisia’s President Kais Saied refused to sign the Constitutional Court Law amendments introduced by the Parliament.
  2. Ukraine’s President Volodymyr Zelenskyy dismissed two judges of the Ukrainian Constitutional Court on the grounds of national security.
  3. Russia’s President Vladimir Putin signed a new law permitting him to run for two more presidential terms, potentially extending his rule until 2036.
  4. The President of India appointed Justice NV Ramana as India’s next Chief Justice. Justice Ramana will take oath on April 24.
  5. Samoa is currently holding its national elections.
  6. The lower house of the French parliament voted to amend the French constitution to include provisions related to climate and biodiversity protection.
  7. Chile’s Senate postponed by five weeks an election to choose a commission to rewrite the country’s dictatorship-era constitution.

New Scholarship

  1. Philipp Dann & Arun K. Thiruvengadam (eds.), Democratic Constitutionalism in India and the European Union (exploring how democracy is possible within vastly diverse societies of continental scale, and why a constitutional framework is best able to secure the ideals of collective autonomy and individual dignity).
  2. Victor Ferreres Comella, The Constitution of Arbitration (examining arbitration and all its types from a constitutional perspective).
  3. Jorge Contesse, Judicial Interactions and Human Rights Contestations in Latin America, Journal of International Dispute Settlement (discussing recent instances of resistance against the Inter-American Court of Human Rights and offering ways in which the Court could protect and enhance its authority).
  4. Chinmayi Arun, Facebook’s Faces, Harvard Law Review Forum (forthcoming) (theorizing Facebook’s internal systems and how they effect Facebook’s relationships with different states and publics).
  5. Rehan Abeyratne & Iddo Porat (eds.), Towering Judges: A Comparative Study of Constitutional Judges (examining the work of nineteen judges from fourteen jurisdictions and their impact on constitutional law).
  6. Paola Chirulli & Luca De Lucia, Non-Judicial Remedies and EU Administration, Protection of Rights versus Preservation of Autonomy (analysing the theoretical and practical issues raised by the development of the wide range of administrative remedies that have become a central part of the EU administrative justice system).
  7. Monika Zalnieriute, Lyria Bennett Moses, and George Williams, The Rule of Law ‘By Design’?, Tulane Law Review (forthcoming) (exploring the extent to which technology can foster rule of law values in practice and its implications for the idea of society ruled by law.)

Calls for Papers and Announcements

  1. LAWASIA will hold a webinar to discuss the human rights and rule of law concerns emerging out of Sri Lanka. The webinar is free and is scheduled for April 22, 2021.
  2. The Centre for Comparative Constitutional Studies at Melbourne Law School has announced the launch of a new podcast entitled Constitutional Café.
  3. Philosophies, an international peer-reviewed journal published by MDPI, has invited papers for its special issue on “The Philosophy of Human Rights Obligations and Omissions”. The deadline to submit manuscripts is June 30, 2021.
  4. Comparative Legilinguistics and The International Journal for the Semiotics of Law invite paper submissions in English or French for three special issues on the theme ‘COVID-19 Infodemic – Between Law, Ethics and Fake News’. Deadline for abstracts is December 10, 2021.
  5. The Graduate Program in Law of Federal University of Minas Gerais (UFMG, Brazil) and the DigitalConst research group have announced the launch of a Seminar Series on Constitutionalism and Democracy. Specific dates of the seminars will be announced on UFMG’s website.
  6. Trinity College Dublin will host an online book launch and panel discussion of William Phelan’s book ‘Great Judgments of the European Court of Justice’ on April 15.

Elsewhere Online

  1. Jill Lepore, When Constitutions Took Over the World, The New Yorker.
  2. Tarunabh Khaitan, Who should attend a Global Democracy Summit?, Balkinization.
  3. Jane Duncan, Data collection: ConCourt judgment on surveillance has far-reaching, global implications, Daily Maverick.
  4. Sergei Belov, The Content of the 2020 Constitutional Amendments in Russia, IACL-AIDC Blog.
  5. Samo Bardutzky, Bojan Bugaric, and Saša Zagorc, Slovenian Constitutional Hardball: disruptive moves towards an illiberal democracy?, Verfassungslblog.
  6. David Cameron, EU counters “vaccine nationalism” with “vaccine solidarity” for hard-hit eastern states, Yale Macmillan Centre.
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Published on April 12, 2021
Author:          Filed under: Developments
 

Digital Constitutionalism and the Right to Protest Online – A Political Perspective of Digital Dissent from India’s experience with Content Moderation

Lucas Henrique Muniz da Conceição, LL.M. at Birkbeck, University of London and Shailesh Kumar, Ph.D. Candidate at Birkbeck, University of London.

At the end of January, Twitter was involved in a political conundrum in India, because it complied with the government request to ban controversial hashtags, users, and tweets from its platform. The India government argued that the tweets and accounts were defamatory and a threat to national security. As such, it requested the gag order under the provision of the Information Technology Act of 2000 (Section 69A). In truth, the tweets and accounts were by and of Indian citizens joining the Indian farmer’s protest against the three controversial farm bills expedited through Parliament proceedings. The bills present a deregulation of the agriculture sector in India, allowing business to run outside of the government established wholesale markets. This altercation is one of many examples in which Twitter, and other social media platforms, are involved with significant political events, reframing the relationship between the citizenry and the government.

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Published on April 10, 2021
Author:          Filed under: Developments
 

Social Media Photos for 2021 ICON•S Conference “ICON•S Mundo – The Future of Public Law” July 6-9, 2021


The ICON-S team is looking forward to hosting the world at the 2021 ICON•S Conference “ICON•S Mundo – The Future of Public Law” on July 6-9, 2021. All are welcome.

The ICON-S team has prepared several social media photos featuring the Conference theme. All are invited to download them for use social media platforms. Here is the list of photos available in this folder for your use:

  • Twitter Header: An image for use on your Twitter profile.
  • Twitter Sharepic: An image for use in your tweets
  • Insta Story: An image for use in your Instagram posts
  • Facebook/LinkedIn: An image for use on Facebook or LinkedIn

ICON-S thanks Sergio Verdugo and Fred Zaumseil for innovating this idea and creating these designs for our use.

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Published on April 7, 2021
Author:          Filed under: Developments
 

Call for Papers | 2021 ICON•S Conference “ICON•S Mundo – The Future of Public Law” July 6-9, 2021

ICON•S | The International Society of Public Law is pleased to announce that the Society’s 2021 Annual Conference will be held on July 6 – 9, 2021. This will be the seventh Annual Conference of ICON•S, following the six Annual Conferences of previous years (Florence 2014, New York 2015, Berlin 2016, Copenhagen 2017, Hong Kong 2018, Santiago 2019).

Due to the COVID-19 pandemic, the 2021 ICON•S Conference will be held in a completely novel way as a fully online Conference: ICON•S Mundo. The Mun- do Conference will be a truly global academic event, involving multilingual activities gathering hundreds of Public Law scholars, political scientists, judges, doctoral students and practitioners from all over the world. It will offer an unique opportunity to discuss ideas in all areas of Public Law featuring hundreds of academic sessions working in multiple time zones. The Conference will be held in a spirit of collaboration with national and regional chapters of ICON•S, and with an invitation to new
and existing members to join.

The ICON•S Mundo Conference replaces the planned in-person event to be held in Wrocław. ICON•S Wrocław will now be held in July 2022.

Submissions are due May 1, 2021.

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Published on April 7, 2021
Author:          Filed under: Developments
 

What’s New in Public Law


Chiara Graziani, Research Fellow in Comparative Public Law, University of Milan-Bicocca (Italy) and Academic Fellow, Bocconi University (Italy)


In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The German Constitutional Court blocked the EU recovery fund.
  2. The German Constitutional Court held correction of a company’s taxable income resulting in restrictions on freedom of establishment unconstitutional.
  3. The French Constitutional Council ruled on a loi organique concerning the election of the President of the Republic. 
  4. The US Supreme Court agreed to rule on a restrictive abortion law of the state of Kentucky.
  5. The Canadian Supreme Court ruled the federal government’s plan to tax carbon emissions constitutional.
  6. The European Court of Justice has been asked to determine whether Germany’s competition authority was right to order Facebook to halt its data collection practices, due to concerns over alleged abuse of its dominant market position and violations of EU data protection law.

In the News

  1. The German government will introduce a bill expanding citizenship to descendants of Nazi victims.
  2. A new law introduced stricter mask rules in Spain.
  3. Portugal extended the state of emergency to contain Covid-19 until April 15, 2021.
  4. The United Kingdom extended emergency Coronavirus powers for another 6 months.
  5. The US Secretary of State, Antony Blinken, called on the United Nations Security Council to increase humanitarian access to Syria

New Scholarship

  1. Dragoș Călin, Lucia Zaharia, Recent Controversy Regarding the Promotion of Judges in Romania: Searching for Meritocracy, 12(1) International Journal of Court Administration (2021) (addressing the 2018 Romanian amendments to the “laws of judiciary” and discussing how it adversely affected the equity of judicial competition for those who aspire to leading jurist positions)
  2. Rosalind Dixon, David Landau, Abusive Constitutional Borrowing. Legal Globalization and the Subversion of Liberal Democracy (forthcoming 2021) (addressing current patterns of democratic retrenchment and discussing the rise of abusive constitutional practices)
  3. Mariolina Eliantonio, Emilia Korkea-aho, Oana Stefan (eds.), EU Soft Law in the Member States Theoretical Findings and Empirical Evidence (2021) (analysing the impact that non-legally binding sources of law – otherwise known as soft law – have on national courts and administration)
  4. Simone Glanert, Alexandra Mercescu, Geoffrey Samuel, Rethinking Comparative Law (forthcoming 2021) (investigating various assumptions and lines of reasoning of comparative law that deserve reconsideration and aiming to optimize the interpretive rewards that the comparison of laws is able generate)
  5. Elif Mendos Kuşkonmaz, Privacy and Border Controls in the Fight against Terrorism. A Fundamental Rights Analysis of Passenger Data Sharing (2021) (offering legal analysis of sharing of passenger data from the EU to the US in light of the EU legal framework protecting individuals’ privacy and personal data)
  6. Nikos Skoutaris, Between Two Unions: Brexit and the Secessionist Challenges in the UK, in Martin Belov (ed.), Territorial Politics. Constitutional and International Law Dimensions (2021) (discussing the constitutional pathways that Scotland and Northern Ireland can use and the challenges that they have to face in order to secede from the UK and re-join the EU)
  7. Arianna Vedaschi, Kim Lane Scheppele (eds.), 9/11 and the Rise of Global Anti-Terrorism Law. How the UN Security Council Rules the World (forthcoming 2021) (giving a picture of the complex and evolving interaction between the international, regional and domestic levels in framing counter-terrorism law and policies)

Call for Papers and Announcements

  1. LUISS University Center for Parliamentary Studies (Rome) announces two research scholarships of 6 months to work on a project on “Political Representation in the Euro-national Parliamentary System”. The deadline for the applications is 30 April, 12pm (Italian time).
  2. The Erasmus School of Law (The Netherlands), together with the Jean Monnet Centre of Excellence on Digital Governance, invites submissions for a workshop supported by the Netherlands Network for Human Rights Research, to be held on October 28, 2021, on “AI and human rights: friend or foe?”. The deadline to submit proposals is May 15, 2021.
  3. LUISS University School of Government invites applications for the 10th edition of the Summer Program on “Parliamentary democracy in Europe”, to be devoted to “Parliaments during and after the Covid-19 pandemic” and to be held July on 12-16, 2021, at LUISS University Campus in Rome. The deadline for the applications is May 16, 2021.
  4. The European Yearbook of Constitutional Law invites scholars from around the world to submit proposals for its 2022 issue on the theme of “The Constitutional Identity of the European Union”. The deadline for proposal submissions is June 1, 2021.
  5. Loyola University Chicago School of Law and George Washington University Law School are organizing the 12th Annual Constitutional Law Colloquium, to be held on November 12-13, 2021. The deadline to submit abstracts is June 12, 2021.
  6. The journal Law & Practice of International Courts and Tribunals (Brill) will award a Prize in honor of H.E. Rosalyn Higgins. The deadline to submit papers to the competition is June 30, 2021.

Elsewhere Online

  1. Fiona de Londras, Six-Monthly Votes on the Coronavirus Act 2020: A Meaningful Mode of Review?, UKCLA Blog
  2. Pavlos Eleftheriadis, The Government’s Radical Theory of the Constitution, Oxford Human Rights Hub
  3. Abhinav Mehrotra, Myanmar: A Case for Right to Democracy to be a Human Right, Cambridge International Law Journal Blog
  4. Adam Krzywon, Electoral disinformation and summary judicial proceedings. Is the Polish experience relevant?, British Association of Comparative Law
  5. David Natzler, COVID-19 and Commons procedure: back to the future?, The Constitution Unit
  6. Michael Posner, Ryan Goodman, Terrorism and Other Dangerous Online Content: Exporting the First Amendment?, Just Security
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Published on April 5, 2021
Author:          Filed under: Developments
 

The Stalled Amendment Initiative in Serbia


Dragoljub Popović, Union University School of Law, Belgrade – Serbia, and Tanasije Marinković, University of Belgrade School of Law, Serbia


Towards the end of 2020, the Government renewed a two-year old initiative to amend the 2006 Constitution. The Amendment Initiative was addressed to the National Assembly, which has only one chamber. So far, the National Assembly has not taken any action on the Government’s Initiative.

The Amendment Initiative does not stipulate in any detail the amendments that should be made to the Constitution. It only enumerates which provisions of the Constitution should be amended, and it lays out the reasons for this constitutional reform.

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Published on April 3, 2021
Author:          Filed under: Developments
 

What’s New in Public Law


–Susan Achury, Visiting Lecturer at Texas Christian University


In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books, and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of Portugal found that the law legalizing euthanasia is inconsistent with the law’s principle of determinability.
  2. The Spanish Constitutional Court recognized the use of bable language in the parliament of Asturias.
  3. The Constitutional Court of Colombia decided to monitor the implementation of the protection of the access to health, drinking water, and food security of Wayuu children defined in the previous declaration of the unconstitutional state of affairs declared by the court.
  4. The Plurinational Constitutional Tribunal of Bolivia declared unconstitutional the “juicio en rebeldía” established in corruption proceedings and stated no person could be tried and sentenced in absentia.
  5. The U.S. Supreme Court rules the use of police force to restrain constitutes a seizure.
  6. The Federal Constitutional Court of Germany stops ratification of the E.U. recovery fund.
  7. The Constitutional Court of Colombia orders Congress to reopen a debate of political control over the Odebrecht corruption scandal, protecting the opposition’s rights to scrutinize the government.
  8. The Supreme Court of Chile ruled in favor of religious cults’ ceremonies, allowing ceremonies to occur even under quarantine.
  9. The U.N. Human Rights Council adopted a resolution to promote reconciliation, accountability, and human rights in Sri Lanka.

In the News

  1. U.S. President Biden condemned voting restrictions recently adopted in Georgia as a ‘blatant attack on the Constitution.’
  2. The Supreme Court of California held that it is unconstitutional to require defendants to remain behind bars because they cannot afford bail.
  3. United Nations High Commissioner for Human Rights agreed to Ethiopia’s request for a joint investigation in the Tigray region for possible war crimes.
  4. New Zealand approved paid leave for workers who have experienced miscarriages.
  5. The U.S. Treasury Department issued sanctions against the Myanmar military.
  6. Ukraine imposed sanctions on former President Yanukovich and former PM Mykola Azarov, freezing their assets and property and stripping them of all state awards.
  7. An administrative court in Mexico suspended the electricity reform of López Obrador indefinitely

New Scholarship

  1. Nuno Garoupa and Catarina Santos Botelho, Measuring Procedural and Substantial AmendmentRules: An Empirical Exploration (2021) (providing an index of constitutional amendment difficulty based on both procedural and substantive rules)
  2. John Laws, The Constitutional Balance (2021) (examining the role of courts in achieving constitutional balance). Discount code: UG7
  3. Martin Belov (ed), The I.T. Revolution and its Impact on State, Constitutionalism and Public Law (2021) (exploring the different aspects of the impact of information and technology revolution on state, constitutionalism and public law) Discount code: UG7
  4. Luís Roberto Barroso and Patrícia Perrone Campos Mello, In Defense of the Amazon Forest: The Role of Law and Courts (2021) (examining the deficient legal framework to protect the Amazon forest)
  5. Amy Hemsworth, The ‘Exceptionality’ of Legal Aid: Affordable Access to Justice in Judicial Review (2021) (examining the role of costs as a limitation on access to judicial review in the U.K.)
  6. Shauhin Talesh, Elizabeth Mertz and Heinz Klug (eds), Research Handbook on Modern Legal Realism (2021) (analyzing the new legal realism in a comparative perspective)
  7. Tiina Paloniitty and Niina Kotama, Scientific and Legal Mechanisms for Addressing Model Uncertainties: Negotiating the right balance in Finnish Judicial Review? (2021) (examining water-related cases inf Finland to explore the role of science in judicial review)
  8. Nino Guruli, Pro-Constitutional Engagement: Judicial Review, Legislative Avoidance, and Institutional Interdependence in National Security (2021) (analyzing how judicial review can prompt legislation in the national security issues)
  9. Benjamin Lawrence, Outlawing Opposition, Imposing Rule of Law: Authoritarian Constitutionalism in Cambodia (2021) (analyzing how authoritarian practices in Cambodia are framed in terms of adherence to the Constitution)

Calls for Papers and Announcements

  1. The Erasmus School of Law, together with the Jean Monnet Centre of Excellence on Digital Governance, invites submissions for a workshop on “A.I. and human rights: friend or foe?” The deadline for abstract is due May 15, 2021.
  2. Loyola University Chicago School of Law and George Washington University Law School invites submissions for the Twelfth Annual Constitutional Law Colloquium. (Abstract due June 21, 2021)
  3. The International Society of Public Law has issued a call for papers for the 2021 Annual Conference
  4. The Yale Law Journal invites submissions on the Law of the Territories, covering issues arising out of and affecting the U.S. territories and their people, for a Special Issue. (Due July 15, 2021).
  5. The NATO Cooperative Cyber Defense Centre of Excellence invites submissions of papers addressing the rights to privacy and data protection in times of armed conflict. (Abstract due April 19, 2021).
  6. The International Law Association of Australia is calling for submissions for the Brennan Essay Prize in Public International Law and the Nygh Essay Prize in Private International Law.
  7. The Law & Practice of International Courts and Tribunals invites submissions for the 2021 Rosalyn Higgins Prize. (Due June 30, 2021)
  8. The European Yearbook of Constitutional Law (EYCL) invites proposals for its 2022 issue on the theme of ‘The Constitutional Identity of the European Union (Due June 1, 2021)

Elsewhere Online

  1. Clara Burbano Herrera and Gustavo Prieto, The Virtues and Limits of Transformative Constitutionalism: Ecuador’s Constitutional Court Decision on Prisons, Verfassungsblog.
  2. Zülfiye Yılmaz and Barış Bahçeci, Gender of the Constituent Power of the Turkish Constitution of 1921, IACL-AIDC.
  3. Teresa Violante, Not Yet but Soon: The Portuguese Constitutional Court’s decision on medically assisted death, Verfassungsblog.
  4. Nicole Pallotta, The Islamabad High Court Is Protecting the Legal Rights of Animals, Jurist

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Published on March 29, 2021
Author:          Filed under: Developments
 

Special Undergraduate Series–Enforcing Disability Rights: the Indian Supreme Court’s Judgment in Vikash Kumar


Special Series: Perspectives from Undergraduate Law Students

LL.B. Student Contribution


–Prannv Dhawan and Anchal Bhateja, B.A., LL.B. (Hons.) Students, National Law School of India University, Bengaluru (India)

In a significant judgment rendered in case of Vikash Kumar v. Union Public Service Commission, a three-judge bench of the Supreme Court of India constitutionally fortified the right to reasonable accommodation for Persons With Disabilities (PwDs).  This piece seeks to discuss the significance of this decision, and trace the jurisprudential gaps that this particular judgement has filled.

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Published on March 27, 2021
Author:          Filed under: New Voices