July 2019 (Edition VIII)

• FEATURED: PRESIDENTIAL PARDONING POWER, JUDICIAL REVIEW & NEW FACE OF MERCY: COMPARATIVE ANALYSIS BETWEEN NIGERIA & INDIA Olusola Babatunde Adegbite • FEATURED: CONSTITUTIONAL & LEGISLATIVE FRAMEWORK OF CIVIL SERVICES IN INDIA IN CONTEMPORARY WORLD SCENARIO Dr. Niranjan Parida • FEATURED: NRC IN ASSAM: ANALYZING CONSTITUTIONAL MORALITY & LEGAL RATIONALITY Ambar Kumar Ghosh AMIT SINGHAL ASWINIKUMAR BAIRAGYA Indian Constitutional Law Review EDITION VIII | JULY 2019 Dedicated to the Growth & Evolution of Constitutional Law in India © Publication of Agradoot for July 2019 Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] Editorial Board: Advisory Council & Journal Coordinators Honorary Advisors 1. Remembering Hon‟ble Justice (Dr) A. S. Anand, 29th Chief Justice of India, Former Chairman, NHRC 2. Hon‟ble Justice Arjan Kumar Sikri, Former Judge, Supreme Court of India 3. Hon‟ble Justice K. S. Panicker Radhakrishnan, Former Judge, Supreme Court of India 4. Hon‟ble Justice Prakash Prabhakar Naolekar, Former Judge, Supreme Court of India, Former Lokayukta, Madhya Pradesh 5. Hon‟ble Justice Peter Mohan Peiris, 43rd Chief Justice of the Republic of Sri Lanka 6. Hon‟ble Justice Kalyan Shrestha, 23rd Chief Justice of the Federal Democratic Republic of Nepal 7. Prof. (Dr.) Ranbir Singh, Vice-Chancellor, NLU, Delhi 8. Prof. (Dr.) Mahendral Pal Singh, Chancellor, Central University of Haryana 9. Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, NALSAR Hyderabad 10. Prof. (Dr.) R. Venkata Rao, Vice-Chancellor, NLSIU Bengaluru 11. Prof. (Dr.) Shashikala Gurpur, Director, Symbiosis Law School, Pune 12. Prof. (Dr.) A. Lakshminath, Former Vice-Chancellor, CNLU Patna 13. Prof. (Dr.) Sukh Pal Singh, Former Vice-Chancellor, HNLU Raipur 14. Prof. (Dr.) Paramjit Jaswal, Vice-Chancellor, RGNUL Patiala 15. Prof. (Dr.) Rose Varghese, Former Vice-Chancellor, NUALS Kochi 16. Mr. Arvind Datar, Senior Advocate, Supreme Court of India 17. Mrs. Geeta Luthra, Senior Advocate, Supreme Court of India 18. Dr. Adish C Aggarwala, Sr. Advocate & President of International Council of Jurists 19. Ms. Maneka Guruswamy, Senior Advocate, Supreme Court of India 20. Ms. Karuna Nundy, Advocate, Supreme Court of India 21. Prof. S. Sivakumar, Member, 21st Law Commission of India (2016-18) 22. Prof. Michael Keating, Director, Center for Constitutional Change, University of Aberdeen 23. Prof. Richard Albert, Professor, University of Texas 24. Prof. Andrew James Harding, Professor of Law, National University of Singapore 25. Prof. Madabhushi Sridharacharyulu, Former Central Information Commissioner 3 Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] Esteemed Members 1. Dr. Satish Gowda, Senior Professor of Law, P.G. Department of Law, Bangalore University, Bengaluru, Honorary Member, Advisory Council 2. Dr. Atmaram Shelke, Assistant Professor, Symbiosis Law School, Pune 3. Mr. Mohd Imran, Asst Prof., School of Law & Constitutional Studies, Shobit University, Meerut 4. Adv. Manjeet Kumar Sahu, Advocate, High Court of Jharkhand 5. Ms. Navtika Singh, Assistant Professor, ICFAI University, Dehradun 6. Adv. S. Basavaraj, Advocate, Karnataka High Court, Daksha Legal Advocates, Bengaluru, Honorary Member, Advisory Council 7. Ms. Sanya Yadav, Assistant Professor, Amity Law School, Jaipur 8. Mr. Niteesh Kumar Upadhyay, Asst. Professor, School of Law, Galgotia University, Founder, Knowledge Steez Founding Board (Permanent Members) Sameer Avasarala, Founder Editor Shashank Kanoongo, Founding Editor Samiya Zehra, Founding Editor Core Team Ankita Aseri, Publishing Editor Anubhuti Maithani, Deputy Publishing Editor Amit Singhal, Editor-in-Chief Aswinikumar Bairagya, Deputy EiC Kriti Johri, Senior Editor Sr. Associate Editors Mahvish Shahab Promita Sinha Associate Editors Shreetama Ghosh Velpula Auditya Aditi Duggal Mythili Mishra Ankit Tripathi Mohit Vats Aanchal Pandey Anisha Singh Anushka Sharma Aparajitha Jha Lakshmi Menon Naina Nerli Nipuna Varman Shipra Sayal Sonal Gupta Tanya Arora 4 Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] Contents FROM THE DESK OF THE EDITOR-IN-CHIEF ............................................................. 6 PRESIDENTIAL PARDONING POWER, JUDICIAL REVIEW, AND THE NEW FACE OF „MERCY‟: AN EXAMINATION OF THE EXERCISE OF PARDONING POWER IN NIGERIA AGAINST THE CONSTITUTIONAL DEVELOPMENT IN INDIA ...................... 8 CONSTITUTIONAL & LEGISLATIVE FRAMEWORK OF THE CIVIL SERVICES IN INDIA IN CONTEMPORARY WORLD SCENARIO ................................................ 37 NRC IN ASSAM: ANALYSING THE QUESTION OF CONSTITUTIONAL MORALITY AND LEGAL RATIONALITY ................................................................................................... 61 FAKE NEWS: A CLEAR LOOK BEYOND THE VAGUENESS ............................................ 72 THE ESSENTIAL RELIGIOUS PRACTICES DOCTRINE: ITS FALLACY AND FUTURE .................................................................................................................................. 86 CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES & DILUTION OF SEPARATION OF POWER BY THE SUPREME COURT: A BENEVOLENT HYPOCRISY................................................................................................... 92 ANALYSING THE PRACTICAL IMPLICATIONS OF A RIGHT TO PRIVACY: STATE SURVEILLANCE AND CONSTITUTION ................................................................... 99 ENFORCEMENT OF UNCONSTITUTIONAL STATUTES ........................................ 119 BALANCING CONSTITUTIONAL MORALITY AND RELIGIOUS FAITH: THE DISPUTE OVER RIGHTS AROUND SABARIMALA ISSUE ................................................ 136 VIRTUAL CENSORSHIP IN THE ERA OF ONLINE STREAMING: THE CHALLENGES AND CONSEQUENCES ..................................................................................... 150 5 Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] PRESIDENTIAL PARDONING POWER, JUDICIAL REVIEW, AND THE NEW FACE OF „MERCY‟: AN EXAMINATION OF THE EXERCISE OF PARDONING POWER IN NIGERIA AGAINST THE CONSTITUTIONAL DEVELOPMENT IN INDIA Authored by Olusola Babatunde Adegbite* ABSTRACT The exercise of pardoning power is one of the most misused constitutional privileges today the world over. In the last one hundred years of the development of constitutional practice, the nation‟s Chief Executives have seen this power as a sort of birth-right that can be wielded as their whims and caprices permit. Nigeria‟s nascent constitutional democracy has not been spared of this malaise. Given the delicateness of this power, it becomes important that discussion around its exercise must remain an ongoing debate. Against this background, this paper examines the exercise of presidential pardoning power under the Nigerian Constitution, balancing the same with what currently obtains in India, after years of rich constitutional development. This paper concludes that Nigeria has a lot to learn from India, particularly with regard to constitutionalising the role of the Judiciary in the pardoning process. INTRODUCTION In nearly all jurisdictions of the world, the exercise of the Presidential pardoning power is a key feature of the Constitution, with such powers vested exclusively in the nation‘s Chief Executive often symbolised by the President and Commander-in-Chief1. For instance, in the more than two hundred years of the American constitutional democracy, the exercise of this power has remained the exclusive preserve of the United States‘ (US) President2. In a similar * LL.B (Hons.) (Ife), LL.M (Ife), LL.M, (Cardozo, Yeshiva University, New York), B.L., Ph. D. Candidate, Faculty of Law, Rhodes University, Grahamstown, Eastern Cape, South Africa, & Lecturer, Department of Public Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria. Author can be reached at [email protected]. 1 In some other jurisdictions, the designation of executive powers may be vested in other titular heads such as the Prime-Minister, Premier, or Head of State. These designations notwithstanding, where an Office had been vested with executive powers, the location of the presidential power of pardon is most likely to be found in such an office. 2 Under American law, presidential power of pardon is vested in the US President under the United States Constitution in Section 2, Article II which provides that the President ―shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment‖. Historically, the power has 8 Published by Agradoot Web Technologies LLP Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019] fashion, in the more than fifty years of Nigeria‘s post-independence constitutional framework, the presidential power of pardon has remained a major feature of the Executive arm of government. This is however not a strict rule. Nearly all jurisdictions also provide for certain ancillary power of pardon, exercisable by the other arms of government i.e. the Legislature and the Judiciary3. These groups of pardoning powers are however lesser in significance and as such, are less likely to attract controversy. According to Duker, the exercise of this power is not designed to be a show of might, but a demonstration of benevolence4. Notwithstanding Duker‘s position, the reality is that often when this power is exercised, the politics therein trumps

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